Awareness of Collateral Consequences: The Role of the Prosecutor


The New York County Lawyers’ Association President, Norman Reimer, stated: “The ‘collateral consequences’ of a criminal conviction, the focus of this [C]olloquium, have multiplied exponentially in the past decade. For an everexpanding multitude of offenders … [,] these consequences dwarf the severity of the criminal sanction itself.” Some examples of the collateral consequences of a criminal conviction are: (a) disenfranchisement; (b) employment; (c) public housing (Narcotics Eviction Programs); (d) driving privileges; (e) firearms possession; (f) immigration status; and, (g) civil forfeiture. How much should the prosecutor consider consequences that are “peculiar to the individual and generally result from actions taken by agencies” not within their control? Practically speaking, it is impossible not to consider the effects of these collateral consequences during the prosecution of a criminal case. The ethical prosecutor appreciates the importance of objectivity and fairness in prosecution. “The responsibility of a public prosecutor differs from that of the usual advocate; … [her] duty is to seek justice, not merely to convict.” Accordingly, prosecutors must consider the collateral consequences of the convictions they obtain if they are to ensure that justice is achieved. In this short article, I present a few brief examples of how prosecutors can assist in avoiding an unjust collateral consequence of a criminal conviction. First time offenders who commit truly minor, nonviolent offenses who will face, among other things, a loss of a professional license, employment, and deportation should, upon conviction and depending on the facts of the case, be afforded an opportunity of a more favorable disposition, i.e., a violation or Adjournment in Contemplation of a Dismissal. In narcotics eviction programs, the prosecution should review each case individually and be careful not to seek eviction where fairness requires a different remedy. The primary mission of a Civil Asset Forfeiture Program should be to remove the proceeds of crime and other assets relied upon by criminals and their criminal associates to perpetuate their criminal activity. Prosecutors should scrupulously avoid depriving assets from those not proven to be involved in the criminal activity. “Our job, our duty, [as prosecutors] is to seek justice… How can we ignore a consequence of our prosecution that we know will surely be imposed by the operation of law?” We can not and should not.

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