The Effectiveness of the ABA’s Efforts to Increase Defendant Notice of Collateral Consequences: A Survey of South Carolina Defense Attorneys

Abstract

Recognizing the negative impacts of collateral consequences of conviction, the American Bar Association published advisory standards and other online compendium resources aimed at increasing defendant notice of such consequences before pleading guilty. However, no study has explored defense attorney awareness of these efforts or their perceived effectiveness. The current study fills this gap with a survey of South Carolina criminal defense lawyers. Results indicate that the majority of respondents felt that non-binding standards were ineffective, and most were unaware of an ABA standard aimed at increasing notice of collateral consequences. Further, a significant number of respondents were unaware of electronic sources that provided comprehensive lists of collateral consequences. These results indicate that non-binding standards may not be effective at changing attorney practices with regard to providing notice of collateral consequences. Jurisdictions may need to consider implementing binding standards and additional training meant to educate defense attorneys about the availability of electronic legal source material that provides comprehensive lists of collateral consequences.

Keywords:

• Collateral consequences of conviction
• ABA standards
• National Inventory of Collateral Consequences of Conviction

Notes

1 It is also important to note that collateral consequences can arise from arrests (see Uggen et al. 2014).

2 The identification of all potential collateral consequences is beyond the scope of this article. However, examples of other collateral consequences include federal health care debarment, loss of Social Security and veterans’ benefits, forfeiture of government employee pensions and annuities, loss of parental/foster parent rights, firearms restrictions, sex-offense notification and or commitment requirements, immigration and deportation complications, and future sentence enhancements. While these were not discussed in detail, their importance should not be diminished.

3 The original standards and year they were adopted are as follows: Appellate Review of Sentences (1968), Fair Trial and Free Press (1968), Pleas of Guilty (1968), Speedy Trial (1968), Providing Defense Services (1968), Joinder and Severance (1968), Sentencing Alternatives and Procedures (1968), Pretrial Release (1968), Criminal Appeals (1970), Probation (1970), Discovery and Procedure before Trial (1970), Prosecution and Defense Functions (1971), Electronic Surveillance (1971), Function of the Trial Judge (1971), and Urban Police Function (1973) (see Jameson 1974).

4 State v. Trotter 2014 and Wisconsin v. Lemere 2016 (sex offense civil commitment); Robinson v. State, No. A11- 550, 2012 WL 118259 Minn. Ct. App. March 28, 2012 (lifetime sex-offender registration); Steele v. State, 291 P.3d 466 Idaho Ct. App. 2012 (ineligibility for parole). See Rosenberg (2013) for an excellent review of many of these cases that extend or limit Padilla.

5 We use the term “pseudo-snowball” because the initial sampling method resembled a census approach given that all members in the SCACDL and NACDL Listservs were sent a survey. We then contacted lawyers on the Avvo and SCCID directories following the recommendations of SCACDL and NACDL members (snowball method). However, despite knowing the number of individuals in each Listserv and directory, we could not calculate a response rate because the same lawyers could be listed in each directory (one could be listed on avvo.com and also be a member of NACDL and or SCACDL) and our survey was anonymous. Additionally, lawyers were encouraged to forward surveys to colleagues. Because of this, it is possible that a lawyer not in a Listserv or directory could have completed a survey, which would further complicate calculating a response rate.

6 Our approach in this article is descriptive because of the dearth of research in this area. We did, however, use binary and ordinal logistic regression in an early exploratory phase of analysis. The five closed-ended questions served as dependent variables, and attorney type and experience level served as predictors. None of the models were significant.

7 While defense attorneys were the focus of the current study, future research should also seek to assess defendant knowledge of collateral consequences (or their understanding of the collateral consequences conveyed by their attorney) before entering into a plea bargain. Researchers could also examine if and to what extent prosecutors consider collateral consequences (see Austen 2018 and Jain 2015 discussing prosecutors who consider collateral consequences and also presenting several testable theories regarding prosecutors and collateral consequences).