Beyond the Right to Counsel: Increasing Notice of Collateral Consequences
52 Pages Posted: 15 Feb 2015 Last revised: 8 Jul 2015
Date Written: 2014
In recent years, the increased collateral consequences of a criminal conviction have led to crippling effects on individuals and communities. In response to the problem of defendants pleading guilty without awareness of these indirect, albeit severe penalties, many commentators have called for an expansion of the right to counsel. These efforts, which are a step in the right direction, remain practically difficult to institute given current Supreme Court jurisprudence, legislative will, and resource deficiencies in the system. Expansion of the right to counsel also would keep the hefty burden of navigating the labyrinth of collateral consequences almost entirely on the defendant and defense attorneys, who are often overwhelmed and unable to account for the myriad consequences in a particular jurisdiction. This Article conceptualizes the issue of collateral consequences as a systemic literacy problem that requires an institutional solution that extends beyond the duties of defense counsel. It argues that because the criminal justice system is primarily one of pleas rather than trials, alternative solutions that involve active participation by other actors involved in the plea process are necessary. Judicial participation in the notice process, informed by the guarantees of the Fifth Amendment, should be from beginning to end, starting with arraignment and ending with the guilty plea colloquy presented to the court. This solution comports with the spirit of Missouri v. Frye and Padilla v. Kentucky, which recognize the significance of notice as essential to combating the root of the problem, albeit in the Sixth Amendment context. Likewise, prosecutors must become more mindful of the how convictions affect individuals and should contribute to improving awareness through disclosure obligations at the time of a plea offer. These efforts will cumulatively heighten legal literacy over time – amongst all players within the system – and allow for an equitable distribution of burdens when addressing this issue.
Keywords: right to counsel, collateral consequences, ineffective assistance, Padilla, Frye, criminal law
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