As this story demonstrates, plea bargains received just be- fore the first hearing, which will expire just after the hear- ing, also place extraordinary pressure on defenders. They must either stand up with the client as he or she accepts the plea without knowing whether a factual or legal investiga- tion would lead to a better result or convince the client to allow further investigation even though it would require the client to remain in jail and might not lead to a better result.
eral consequences for a particular defendant and then de- velop evidence to challenge any conditions precedent to the consequence. For example, one of the most common types of collateral consequence is a sentencing enhancement for prior convictions, meaning the defendant will get a greater penalty if she previously has been convicted of certain types of crimes. To try to avoid the sentencing enhancement, the defender must assess any past convictions the defendant may have and develop an argument to challenge the appli- cability of the enhancement. Professor Zeidman observed that, with the rise of collateral consequences, one should see trial rates increase, particularly for low-level offenses, where the direct consequences of the conviction are not as severe. “In these days of burgeoning collateral consequences, when arrests and pleas can result in deportation, eviction, loss of government benefits, manda- tory DNA samples, etc., one would expect to see defense at- torneys impelled to aggressively contest the legality of their clients’ arrests.” 169 In other words, the increase in collateral consequences should increase not just the amount of research and training needed by misdemeanor attorneys but also the amount of in-court advocacy they are doing. To the contrary, no person interviewed related an increase in the number of trials conducted in misdemeanor courts as a result of the expansion of collateral consequences. In fact, the overwhelming evidence reveals that trials are nearly non-existent in misdemeanor courtrooms. 170 This lack of trial activity may be due to the fact that de- fenders, particularly those overburdened by excessive case- loads, do not have time to research the impact of collateral consequences on their clients. At the New York conference, many defenders acknowledged that they do not know the range of collateral consequences in their jurisdictions. A district attorney in attendance noted that prosecutors do not know of all the consequences either. Attendees also stated they believe most judges do not understand the collateral consequences. Early Disposition Projects In response to overwhelming caseloads, a number of juris- dictions have established early disposition projects. In- tended to assist clients by resolving cases quickly, these projects have some very positive features, such as the inte- gration of social service organizations into the adjudication process. However, they also often require defenders to carry overwhelming caseloads and frequently demonstrate how the pressure to move cases quickly results in an assembly line plea process. In Pittsburgh, the site team observed the Allegheny County Early Disposition Project. The project was intended to bene- fit clients by promoting coordination between the courts and social service agencies to help clients get out of jail and re- solve their cases earlier. One of the supervisors noted that the program accepts cases with minimal or no trial issues and can
Impact of Increased Collateral Consequences on Misdemeanor Caseloads
The secondary impact of a criminal conviction, particularly a minor criminal conviction, has expanded significantly since the caseload standards were created in the 1970s. As Sey- mour James of the New York Legal Aid Society observed at the conference in New York, even a disorderly conduct con- viction can result in harsh civil penalties, including losing el- igibility for public housing, deportation, and suspension of college student aid. As discussed in the introduction, a con- viction for a misdemeanor can affect all aspects of life from child custody arrangements to employment. This vast array of collateral consequences has a dramatic impact on the work of the defender: (1) it adds to the re- search and advocacy that must be done in each case, thus decreasing the number of cases that a defender can effec- tively handle in any given period of time; (2) it changes the cost-benefit analysis of accepting a plea bargain; and (3) it places the client at greater risk of unforeseen harm if the defender is too overburdened by his caseload to properly advise the client of the impact of the decision to plead guilty or proceed to trial. Additionally, defenders often cannot ac- curately advise their clients regarding future collateral con- sequences that might be imposed because there is no uniform enforcement of collateral consequences. As David Newhouse of the Spangenberg Group pointed out in an email, “Even where misdemeanor caseloads may not have increased over time, workload has due to collateral consequences [and] enhanced sentences[.]” Defenders need to spend considerable time researching the possible collat-
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“A lot of the problems with the public defense system are structural. We can’t expect an attorney to function properly with the caseloads they have.”
— Cory Stoughton, New York Civil Liberties Union.
Minor Crimes, Massive Waste
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