Collateral Consequences of Conviction in South Carolina Courts: A Study of South Carolina Defense Lawyers

Abstract

Recognizing the negative impacts of collateral consequences, policy-makers and scholars have sought to implement formal and informal standards aimed at increasing defendant notice of such consequences before pleading guilty. However, very few studies have sought to explore the actual practices of court room actors regarding collateral consequence notice. The current study filled this gap in knowledge using a survey of South Carolina defense lawyers. Specifically, South Carolina defense attorneys were surveyed about their practices regarding collateral consequence notice as well as their observations of judicial practices regarding collateral consequences. Results indicate that while a large majority of defense attorneys felt that it was their responsibility to inform their clients of collateral consequences, only 36% of respondents agreed that attorneys do a good job informing clients about collateral consequences. In fact, few respondents noted that they always inform their clients about collateral consequences that ex-offenders, probation and parole officers, and social workers consistently identify as particularly impactful to a successful reentry (those related to employment, housing, civic rights, and public benefits) and many never or rarely do so. However, 94.3% of respondents noted that they commonly discuss other collateral consequences with clients. Further, respondents noted that few judges always or often discuss collateral consequences. These results suggest that some collateral consequences are being discussed with some defendants, but also that these practices are inconsistent. Informed by these findings, recommendations for increasing defendant notice of collateral consequences are discussed.

Keywords:

• Collateral consequences of conviction
• voluntary
• intelligent
• and knowing waiver
• defense attorneys
• guilty pleas

Cases and statutes

Alexander v. State, 297 Ga. 59, 65 (772 SE2d 655) (2015).

Boykin v. Alabama, 395 U.S. 238 (1969).

Carter v. State, 329 S.C. 355 (1998).

Commonwealth v. Pridham, 394 S.W.3d 867 (Ky. 2012);

Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977).

Holden v. State, 393 S.C. 565 (2011).

Padilla v. Kentucky, 559 U.S. 356 (2010).

People v. Hughes, IL 112817 (2012).

Robinson v. State, No. A11- 550, 2012 WL 118259 (Minn. Ct. App. Mar. 28, 2012)

Sames v. State, 805 N.W.2d 565 (Minn. Ct. App. 2011)

Smith v. State, 329 S.C. 280 (1997).

State v. Trotter https://cases.justia.com/utah/supreme-court/2014-20111056.pdf?ts=1400606075 (2014).

Steele v. State, 291 P.3d 466 (Idaho Ct. App. 2012)

Strickland v. Washington, 466 U.S. 668 (1984).

Taylor v. State, 698 S.E.2d 384 (Ga. Ct. App. 2010)

Texas v. EEOC, No. 18-10638. 2019. Retrieved from http://www.ca5.uscourts.gov/opinions/pub/18/18-10638-CV0.pdf.

Wisconsin v. Lemere 2016 https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=168449

Notes

1 See Anderson, Buenaventura and Heaton (2019) for a study exploring whether holistic defense strategies improved defendant case outcomes such as recidivism.

2 Many portions of the literature review and methods sections follow our companion paper given the significant overlap in topic and study design (Leasure et al. 2019).

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

4 While some local jurisdictions in South Carolina have recently passed Ban-the-Box laws, such laws only prohibit criminal record questions on applications. Employers can still conduct criminal history inquiries/background checks in later stages of the hiring process (see Devata and Blecher 2019.

5 See Handelsman (2004) for a review of cases that have challenged state disenfranchisement laws because of their disparate impact on minorities.

6 The identification of all potential collateral consequences is beyond the scope of this paper. 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.

7 Despite Justice Scalia’s dissent, it is interesting to note that he stated “[i]n the best of all possible worlds, criminal defendants contemplating a guilty plea ought to be advised of all serious collateral consequences of conviction, and surely ought not to be misadvised.”

8 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.

9 See Anderson, Buenaventura and Heaton (2019) for a study exploring whether holistic defense strategies improved defendant case outcomes such as recidivism.

10 However, Roscoe v. State, 345 S.C. 16 (2001) states that even if trial counsel actively misinforms defendant, who enters a plea on the advice of counsel, the defendant still must prove that he relied on the misinformation and show that counsel's representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty, but would have insisted on going to trial. Further, Jones v. State, 382 S.C. 589 (2009) says that there is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case. Therefore, a defendant faces a high bar to successfully claim ineffective assistance in regards to collateral consequence notice.

11 We use the term pseudo-snowball as 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.

12 Our approach in this paper is descriptive because of the exploratory nature of this study.

13 While we collected data on attorney type and years practiced, the small numbers of respondents in each category (e.g., public defender with low experience) make those results very sensitive. Therefore, the most conservative approach is to focus upon the overall pooled results in the results and discussion section. Nonetheless, results by attorney type and years practiced are presented in the Online Technical Appendix.

14 In our results section, we present questions in the order in which they were asked in the survey (see Kalton and Schuman 1982 for a detailed discussion on question ordering).

15 It is also important to note that the National Inventory is an extremely large database, and could be cumbersome for the average user.

16 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 and or probation/parole officers 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). Further, future research should explore in more detail why defense attorneys provide notice of particular consequences and not others, how and when discussions on collateral consequences arise, and client responses to notice.

Additional information

Notes on contributors

Peter Leasure

Peter Leasure, J.D., Ph.D. is an Assistant Professor at York College of Pennsylvania in the Department of Criminology and Criminal Justice. His research focuses on corporate compliance and collateral consequences of conviction.

John Burrow

John D. Burrow, J.D., Ph.D. teaches law and criminology at the University of South Carolina. His areas of specialization focus on the nexus between race and crime, sentencing, death penalty, sex offenders, and juvenile offending. His research has appeared in Crime and Delinquency, Justice Quarterly, Criminal Justice Policy Review, and Youth Violence and Juvenile Justice.

Gary Zhang

Gary Zhang, Ph.D. received his Ph.D. in Criminology and Criminal Justice from the University of South Carolina in 2018. His recent publications have appeared in a variety of peer-reviewed journals, including American Journal of Criminal Justice, Crime & Delinquency, Deviant Behavior, and Policing: An International Journal.

Hunter M. Boehme

Hunter M. Boehme, Ph.D. is an Assistant Professor and Juvenile Justice Faculty Fellow in the Department of Criminal Justice at North Carolina Central University. His research focuses on policing, place-based criminology, and hate crimes.