Or, When is a Punishment Not a Punishment?
As everybody knows, when you are convicted of a crime you get a punishment. Your punishment can be a fine, jail time, or probation. But as everyone also knows, there are other consequences of being convicted of a crime that have nothing to do with the punishments that are on the books. In law, we call these “collateral consequences.” Here is a sampling of some very significant collateral consequences that can arise from a criminal conviction. If you are faced with a crime, you should be aware of these potential collateral consequences before you enter a plea. If you are representing yourself, the prosecutor is never going to discuss these with you, so they may come as a surprise once it is too late. A good reason to have a lawyer in a criminal case is that a defense attorney will consider collateral consequences in trying to shape a result for you.
Civil actions. Most of the time, crimes have victims. When a person is a victim of a crime, something wrong has been done to them. In our society, when someone wrongs you, you are allowed to sue the person who wronged you for money damages. Very often, the commiting of a criminal act also exposes the person to the potential for civil damages. When you plead guilty, that basically serves as an absolute admission for the purposes of a civil case as well. If you think you are facing a possible civil action arising out of criminal conduct, entering a no contest plea might help protect you somewhat, but you should explore the possible civil liability issues before entering any plea.
Immigration. The potential immigration consequences for a criminal conviction are vast and numerous. If you are not a natural-born United States citizen, you should seek an immigration opinion from an immigration attorney before entering any plea agreement. The immigration law is not consistent and very harsh. Even something as minor as a first offense possession of marijuana conviction could potentially lead to permanent exclusion from the United States. The immigration system doesn’t care if you’ve lived in the United States since you were 9 months old and have never known any other country. If you commit the right kind of crime and haven’t achieved citizenship, you may find yourself deported back to a place you never recall being. The criminal law, though, doesn’t consider this a punishment, just a collateral consequence.
SORNA Issues. SORNA stands for Sex Offender Registration and Notification Act. Despite repeated efforts by defense attorneys, being forced to register as a sex offender is considered a collateral consequence and not a punishment. This distinction takes on increasing dire consequences as every year both the state of Wisconsin and the Federal Government pass more laws to make sex offender registration required for more offenses and make the reporting and notification requirements even more onerous. This is a very confusing area. There are both Federal and Wisconsin requirements. The requirements are not consistent with one another. There is inadequate government implementation of both sets of requirements, so it is often difficult to register as a sex offender even if you are trying to do so. And, you can face criminal charges and prison time if you fail to register correctly. The laws are changing rapidly, and it is difficult to know what a person is supposed to do if they’re required to register. Moreover, offenses that once would not necessarily require a person to register are starting to be changed so that registration is mandatory. An example would be 4th degree sexual assault, which can be committed by touching someone on the buttocks in a bar over their clothes. In the past, it would be up to a judge whether the person who did that had to register. New federal law is changing that so probably that person is required to register for at least 15 years. Worse, the laws are retroactive, so the person who plead guilty to a 4th degree case in the past might now be required to register even though when he plead guilty he was told he did not have to.
Possession of Firearms. Most people know if you are convicted of a felony you lose your right to bear arms under Wisconsin law. Many people do not know that if you are convicted in a misdemeanor case involving domestic violence, you may also fall under Federal guidelines prohibiting firearm possession. The enforcement of this law is being stepped up. Now, even if you plead to a misdemeanor without a Domestic Violence label, the federal government will pull the criminal file and see if there was a domestic element to the offense. If there was, you would be denied the right to buy a gun. Even if it was just a disorderly conduct.
Right to Vote. If you are convicted of a felony, you lose your right to vote until you go through a separate legal procedure to have your civil rights restored.
People look. In Wisconsin, criminal convictions, charges, filings, dismissals –everything – is on CCAP. If you plead guilty to something, a future employer can look you up and see that you pled guilty. For that matter, a future employer, or boyfriend, girlfriend, buddy, teacher, anyone, can look up and see if you’ve even ever been charged. True, there are rules and laws prohibiting the use of that information against you in certain contexts, but how are you ever going to prove that you didn’t get a job because CCAP listed you as having once been charged with a drug crime? CCAP makes it very easy for people to look up what you have been convicted of, so it is important to consider that before deciding on taking a plea.
This is just a list of the main ways that collateral consequences can impact you if you are involved in a criminal case. There may be others that are particular to your situation. If you are in the military or have a stock traders or other professional license, a criminal conviction can have even more significant consequence. There are situations where if you are a student you may not be able to get student loans anymore. There are many different ways that a criminal conviction can impact your life, and before you enter into a plea which requires you to be convicted of a crime, you should research and consider all of the possible collateral consequences, or talk to an attorney who can help you.