February 20, 2020
When a criminal defendant is found guilty of a crime, or pleads guilty to it, a judge imposes a sentence for the conviction. A conviction includes any case where a person pleads guilty to a crime or some kind of punishment is imposed. This could include a mandatory diversion program. Approximately 77 million Americans, or 1 in 3 adults, has a criminal record.
The sentence that the defendant receives is considered a “direct consequence” of the conviction. When you are convicted of a crime as an adult, you are sentences to a direct punishment, such as jail or prison time, fines, restitution, forfeiture and probation. These are sometimes referred to as “direct consequences.” Direct consequences can include loss of privileges, such as driving, house arrest, community service, probation, fines and imprisonment.
However, an individual with a conviction on his criminal record may fall victim to another sentence: something called “collateral consequences.” These consequences are not judge-imposed–they are the civil repercussions that stem from obtaining a criminal conviction. Examples of collateral consequences include things such as:
Being subject to the collateral consequences of a criminal conviction can be so detrimental to an offender that it has been dubbed a form of “civil death” within the legal community. Often times these collateral consequences are not communicated to defendants accepting a plea deal. Nationally, more than 45,000 collateral consequences restrict all aspects of civil life, including the right to vote and access to government benefits, housing, and student loans; however, the vast majority are employment related.Undocumented Immigrants
Undocumented immigrants that obtain criminal convictions face the risk of deportation, detention, and the denial of statuses like asylum and U.S. citizenship. Certain immigration laws passed in 1996 made the process easier for undocumented immigrants to be deported when they got convicted of a crime.
The Supreme Court even found that these penalties were so impactful that defense attorneys are required to advise noncitizen defendants as to the possible results of a criminal conviction before they are can enter a guilty plea in court. Assistant Professor of Clinical Law at New York University School of Law, Alina Das, wrote that because deportation is such a severe penalty, “noncitizen defendants may be more concerned with the possibility of exile from the United States than a potential jail sentence or other criminal sanctions.” Often times, even if the record gets expunged or sealed, it can still be used as a justification for deportation.Barriers to Work
If the defendant remains out of jail in the United States after a criminal conviction, he or she will often face struggles in obtaining employment.
The National Inventory of Collateral Consequences of Conviction (the NICCC), provides a catalogue of laws that limit occupational licensing opportunities for individuals with criminal convictions on their record. Occupational licenses are mandatory license that are required in certain occupations; they set the professional standards and establish work and safety requirements.
This is problematic because research has indicated that staying out of the critical justice system requires the crucial combination of:
Limiting offenders access to employment is weakening their chances of success; continuous employment job provides financial resources and prosocial connections that build motivation.
However, research shows that this is bad for both defendants and the public. Astoundingly, estimates reflect that occupation restrictions can result in 2.85 million fewer people employed nationwide and raise consumer expenses by more than $200 billion. Additionally, criminal convictions could be the barriers largely contributing to worker shortages faced by high-growth job sector, such as health care. Criminal convictions come in the way where positions, such as a personal aide caregivers, requires a background check.Students with Criminal Convictions
Students are also impacted by criminal convictions; most universities require full disclosure of criminal background information at the time the applicant applies. Eligibility may be impacted before or after the loans have been distrusted to students; for example, if the prospective student received the criminal conviction prior to their application, or if the student received the criminal conviction during their enrollment at the university.
Students who are in federal or state institutions aren’t eligible for the Federal Pell Grant or federal student loans. While you can may be eligible to get a Federal Supplemental Educational Opportunity Grant (FSEOG)) and Federal Work-Study, it is unlikely that will occur because:
If you are in an institution other than a federal or state institution you can’t get federal loans. However, you can get a Federal Pell grant. You are also eligible for a Federal Supplement Educational Opportunity Grant and Federal Work-Study but sources say it is unlikely because:
However, once you are released from the sentence imposed after your criminal conviction, it is likely that most eligibility limitations will be removed. Sometimes, incarcerations for drug-related offenses, or involuntary civil commitment for sexual offenses, may limit eligibility. This means that while a defendant may be on probation or parole–or living in a halfway house–they may be limited in their aid eligibility.
At the time applicants complete the FAFSA form, they are asked whether or not they have received a drug-related criminal conviction for an offense that occurred at the time they were receiving federal student aid. If the answer as to the criminal conviction is yes, the individual is typically provided a worksheet that helps determine whether the convictions affects federal student aid eligibility.
Sometimes, those who have had their federal student aid eligibility suspended to a drug conviction can regain their eligibility at an earlier time by completing an approved drug rehabilitation program or by passing two random drug-tests that are administered by approved drug rehabilitation programs. If someone is able regain eligibility for financial aid after receiving a criminal conviction during the award year, it is important that they notify their financial aid office to access the aid that they are eligible for.
In conclusion, receiving a criminal conviction can have both direct and collateral consequences on an individual. As stated, collateral consequences can often be so severely detrimental to the individual who receives the criminal conviction that they have been deemed a “civil death” within the legal community. To avoid obtaining a criminal conviction, it is in your best interest to seek legal advice and representation if you are charged with a crime. The impact of obtaining a criminal record is not worth the risk.