Minimizing the Collateral Consequences of a Conviction

Timothy C. Evans, chief judge of the Circuit Court of Cook County in Illinois, explains how courts can help mitigate the collateral consequences of justice system involvement. Among other things, courts can reach out to those affected to educate them about their rights and options, Evans says in this New Thinking podcast. Chief Judge Timothy C. Evans of Cook County, Illinois, participates in a panel on “Minimizing the Collateral Consequences of Justice Involvement” at Community Justice 2014.                         JUDGE TIMOTHY C. EVANS: We’ve had instances where people were locked up pending trial, asking—well let me just enter a plea of guilty so I can get out. They want to get out of jail and don’t realize, hey, that conviction is going to follow you wherever you’re gonna go. ROBERT V. WOLF: Hi, I’m Rob Wolf, director of communications at the Center for Court Innovation. I’m in San Francisco at Community Justice 2014. Today I’m speaking with Timothy C. Evans, the Chief Judge of the Circuit Court of Cook County in Chicago, Illinois. Welcome to our New Thinking podcast series. JUDGE EVANS: Well thank you, Rob, for inviting me. It’s a pleasure to be here with you. WOLF: You participated in a plenary session this morning that was titled Minimizing the Collateral Consequences of Justice Involvement. So I thought that’s what we would spend these next few minutes focusing on, and maybe we could start off just by you sharing a little bit or explaining when we talk about collateral consequences of justice involvement, what exactly does that mean? JUDGE EVANS: All right, most people would realize that if, in the criminal justice system, someone is arrested and is charged with a given offense, let’s say some kind of drug-oriented offense, that if a person is going to enter a plea of guilty, or goes to trial on an issue like that, probably the direct consequence is going to be some kind of time in jail, some kind of a conviction that might result in someone losing his or her freedom for a period of time. That’s a direct consequence. But the collateral consequence would be, using this example but going a step further, that in addition to the person being convicted and locked up for a time, that person might also find himself deported, lose his right to stay in the country. So that’s a collateral consequence. An additional one might be that the person could no longer be in a profession that requires a license. Let’s say barbers, for example, can’t be convicted of certain offenses, and so that would be a collateral consequence in addition to a plea of guilty for this particular problem with the drug, they end up losing the right to have that license. Housing is another collateral consequence. There may be some division where a person is living that says that if you’re convicted of a certain offense you can’t live there any longer. Scholarships and educational opportunities, if you are convicted of certain things, you don’t qualify for that. Or you might go into a career like public transportation, driving a bus—they might say, no, you can’t do that if you’re convicted of this kind of offense. So these are the kinds of collateral consequences that we’re talking about. WOLF: So it sounds like someone could be convicted of one thing and receive a sentence that is proportionate to—hopefully proportionate to the crime, the offense, but then these collateral consequences could go on for many years to come and affect employment, housing—I mean it sounds like you could end up homeless if you get kicked out of public housing because of rules against having, you know, certain kinds of convictions. So it’s very expansive, in a sense. You have a discreet sentence, but then it affects your life. JUDGE EVANS: It truly does affect your life in many ways, and the focus today in the session that we alluded to earlier gave us a chance to concentrate on who has the responsibility of ameliorating some of these collateral consequences. The Supreme Court case, the Padilla case that was the subject of that particular discussion, said that at the very least, the lawyer representing the defendant who has been charged has a responsibility, yes discussing the direct consequences, but also the collateral consequences in a particular case. A person didn’t have that kind of advice and there was a question whether the sixth amendment applied, to have effective counsel. But my point of view is that it permeates throughout a system of fairness that should be committed to justice, that it shouldn’t just be on the shoulder of the defense attorney. But the prosecutorial segment of our society has to be interested in justice, and certainly the judge hearing that case has a responsibility too, and I shared that in the state of Illinois, in Cook County, we certainly put that burden on the judge as well. We want the judge to tell the defendant appearing before the judge—are you aware that if you’re not a citizen, these are the consequences that may flow from this plea of guilty. So I think it’s a commitment, and we have to make the fairness, no matter what. And we have to assume that people who are going through that particular phase of their lives, that they’re not focusing on anything like that. We’ve had instances where people were locked up pending trial, asking—well let me just enter a plea of guilty so I can get out. They want to get out of jail and don’t realize, hey, that conviction is going to follow you wherever you’re gonna go. And that gets back to your question. It absolutely does transcend this time period that they might otherwise be thinking about. WOLF: You talked about how judges in Cook County will explain the collateral consequence vis-à-vis immigration status. Are there other ways that the justice system in Cook County is trying to minimize collateral consequences? JUDGE EVANS: Yes, we have several. One would be a commitment to sealed records so that they couldn’t be used in an inappropriate way. We have several other kinds of activities I discussed, for example certificates of relief, certificates of good character, certificates of innocence, that make it possible for the person who has been rehabilitated to obviate some of the collateral consequences that we talked about. For example, the licensing. If a person wants to resume being a licensed barber, even though he’d been convicted of something that would normally take that licensing capability away, under this certificate of relief that we talked about, we could have that hearing, enter that order, the person receive that certificate, then we would tell the employer you won’t be charged with any particular problem if you hire this person. They are rehabilitated and they now qualify for the license that had been taken away from them. So we have all kinds of programs like that and we are pleased to see them work. WOLF: And are those programs that are initiated through the judiciary, or are they legislatively enacted? JUDGE EVANS: They are carried out by the judiciary, but they are statutorily in effect. The state legislature has worked closely with the judiciary in trying to make these opportunities available. But we have to be proactive as members of the judiciary or members of the legal community to make these opportunities available to people who are not comfortable in our setting. Most people don’t know that they’ve got the right to petition to expunge a certain record. They don’t know what they have to do to qualify for that, so they don’t know how to seal a background, they don’t know about these certificates of relief unless we be proactive in making sure they’re given access to these kinds of activities. I discussed one particular thing that I thought was particularly helpful in this pending before the legislature right now, and that is the expungement of juvenile records. Certainly if adults don’t know what it is that I’m talking about, children certainly would not know and under the legislation that is pending in the legislature in Springfield, Illinois now, that expungement would be automatic. When a child reaches the age of 18, his or her record would automatically be expunged and they would then be given a new chance, a second chance to apply for that scholarship to go on to college, or to apply for the first job they’re gonna get, or to apply for housing for the first time they’ll have access to. WOLF: And let me just ask you one last question, because you mentioned the fact that although you have these different ways that people can mitigate the collateral consequences through expungement or these different certificates, they don’t always take advantage of it. And you alluded to a little of that before as well. What are the strategies? How do you engage people so that they do come in or they do find out that these things are possible and t...