Collateral Damage - Unintended Consequences

Collateral consequences to criminal convictions range from the immediate loss of liberty to future complications not imagined at the time of trial.  These range from possible deportation  to enhanced sentences for later crimes and a considerable amount in between.  Public housing agencies have rules and regulations regarding prior convictions: in Lowell Housing Authority v.Melendez, the Supreme Judicial Court ruled that a violent offense which occurred within one mile from the defendant’s home in a public housing complex was close enough to endanger the other tenants of the housing complex to permit the termination of the defendant's lease.  If the property is owned by Housing and Urban Development, entire families may be evicted due to the criminal drug offenses of one member. 

Additionally, driver’s licenses may be suspended and professional licenses revoked.  People with criminal convictions may be barred from creating business contracts with the government; employers may use criminal records to exclude candidates.  Those convicted of crimes may be required to submit their DNA to a national database, many will lose or have limitations on their right to access firearms; some may face civil commitment after the completion of their criminal sentence and some may be required to register as a sex offender which will carry additional restrictions on habitation and employment.  The overall cost to society for crime, punishment and collateral consequences is utterly unknown.  And, new questions arise on a regular basis in regard to the consequences of crimes.  Many of these issues are complex with sympathies and emotional pull for the victim but law and practicality on the side of the offender.

For example, at least one man in Pennsylvania is being sued for the purpose of purchasing his victim’s home.  The allegation is that the victim’s family moved into their home in 2005 at which time the victim was 2.  Their 65 year old neighbor, the defendant, befriended them gaining their trust and the trust of their daughter until such time, when she was 8, when he molested her.  Convicted of the offense, he was ordered to serve less than 2 years of incarceration after which time he moved back into his family home…next door to the victim.  The victim’s family has sued for damages related to the assault but also for what appears to be specific performance of purchasing their home.

The victim’s family’s suit claims that their house is unsaleable due to its proximity to a registered sex offender who is a child molester; yet the family is under duress to move due to the young victim’s trauma of seeing her rapist on a regular basis (although it is unclear why the victim's family did not seek to sell the house before the offender returned home from prison.)  Counsel for the defendant has asked for the court to dismiss that portion of the law suit requiring home purchase as stating a claim for which no relief can be granted…essentially comparing his client to a toxic waste dump.  The defense attorney cited a case where a plaintiff could not collect damages due to inability to sell his home despite living next to a toxic waste dump.

In another case – here in Massachusetts (but it is not unique) – the victim of a rape was impregnated (and, despite rhetoric to the contrary, that fact does not invalidate the crime of rape) and chose to carry the pregnancy to term, keeping the child.  The criminal court judge sought to transfer a portion of the case to Family Court in order to enforce child support payments upon the putative father.  The putative father averred that if he was to be ordered to pay child support payments then he would like to establish a relationship with the child and gain parental rights.  The victim, understandably, wants nothing to do with the father of her baby and has asked that the case not be transferred to the Family Court, but rather that restitution payments be ordered in the amount that would be ordered from Family Court by the Superior Court.  That case is pending in the Supreme Judicial Court under the caption Commonwealth v. Jaime Melendez, SJC-11326.

The victim's argument that the criminal court has no authority to transfer the case to the Family Court is unfounded.  Courts of limited jurisdiction can request such a transfer from the Chief Judge for Administration and Management (CJAM).  Before states will provide services, they require that the mother make every effort to identify the father and then hale the putative father in to pay his portion of child support.  Thus, the transfer seems to be a legitimate and, in many ways, prudent action by the Superior Court judge from a financial, if not emotional standpoint.

In Melendez, it appears that the victim wants it both ways: she wants the child support payments but also that the father be denied all other rights pertaining to the child.  Not only is this an inappropriate criminal sanction, and an almost assured violation of the Eighth Amendment and Art. 26, it is also an impossible restitution order (See, The Charge dated February 4, 2013).  That is, criminal restitution is to pay for damages incident to a crime, not for future contingencies and collateral consequences of that offense.  Even if ordered, criminal courts and probation offices are wholly incapable of enforcing this type of penalty, a function the Family Court conducts on a regular basis.  Not only would any restitution order be subject to the defendant's ability to pay, nothing in a restitution order would prohibit the putative father from taking an active role in the child's life by asserting an action in Family Court.  Clearly the victim’s solution cannot succeed.

But, if (and logically when) the Family Court takes jurisdiction over this case, what are the lifelong ramifications for the victim and her child?  As a single parent, the odds suggest that she will require public funds for everything from child care to educational benefits to housing preferences to supplemental nutritional assistance in addition to whatever contributions may be made by the biological father.  The average cost of raising a child in this country is in the hundreds of thousands of dollars.  When a child is born as a result of rape, does society accept the costs of raising that child because the mother of the child (understandably) does not want the father involved in her life or the life of her child?  Or, does a man convicted of rape gain full rights (and also responsibilities) of parenthood due to the result of his crime?  Does society gain some authority to encourage abortion or adoption over the public cost of raising a child?

Massachusetts has reasonable access to abortion services.  Clearly the victim – for her own reasons which are unassailable and personal to her – chose not to have an abortion.  That is not always a choice.  Indeed, restrictions on abortion would often result in this very outcome which seems, well, wrong.  And, legislative solutions outside of freeing a woman to seek adoption or abortion without any involvement from her rapist cross over the line of constitutionality.

Massachusetts has a "slayer statute" prohibiting anyone charged with murder or manslaughter from taking distributions from the decedent’s estate; anyone convicted would be deemed to have predeceased the victim and therefore ineligible to claim rights of succession (however those found not guilty would be in the same stead as if never accused).  While this legislative response to prevent killers benefiting from their crimes suggests a legislative option for rapists, crafting a law that would de facto deprive a biological parent of parental rights would be impossible to devise within constitutional confines. One that would require payments in child support but deny parental rights is almost unthinkable, even for those convicted of serious offenses. Further, no rational law could aver that rape victims who carry to term will be eligible for all services without regard for the rapist as those kinds of laws are too susceptible to corruption and false claims.  Further, what happens if the male is acquitted? 

Women victims of rape, like all women, should have every option – safe, legal and accessible -  available to them in regard to any resulting pregnancy.  No one takes the idea of abortion any more lightly than carrying a pregnancy to term (oddly, the cost of the abortion fits easily into a criminal restitution argument and would be subject to such an order while child support payments, due to their variability, could not).  

In a twist to the well-intended but ill conceived "victim rights" movement which has distorted and confused the role of the public prosecutor, must a rape victim be informed that her rapist may also be attending soccer games in the future?  Who must provide this information to the victim and when?  With all of the collateral consequences defense attorneys must advise their clients before a guilty plea, is this a collateral consequence about which a prosecutor must advise the victim…even a prosecutor opposed to abortion (or to public funding for children of the indigent)...regarding carrying the pregnancy to term?  Must a prosecutor be in the position of informing a rape victim that she might have lifetime contact with its father or become ineligible for state or federal services?  For, without that knowledge, she cannot make a rational, informed decision whether or not to terminate her pregnancy. 

Query also the child male victim of statutory rape by a woman.  If the offender is impregnated and carries to term, must the victim pay child support?  If not, why not?  Just as a court or legislature could not, within the parameters of the Constitution, prohibit a biological parent's involvement in a child's life by virtue of the fact that he committed a heinous crime, neither could require such an offender to abort a fetus.  Offenders may be guilty of the statutory rape and still choose to carry to term: who pays for the care of that baby?  On the flip side, those who are raped are victims, but who pays for care of the resulting child?  

One strong argument is that the child is innocent and has its "right to life" thereby prohibiting forced abortion for an offender or a victim.  Another, that abortion should be available to the victim or offender along with information about the potential for the male party - offender or victim - to have a lifelong involvement with any resulting child.  As a society, are we prepared for the rapist coordinating schedules for weekend visits?  What about future consequences for the victim in a case of male rape by a woman?  Is the male involved in rape - offender and victim - more like the child molester-toxic waste site comparison, not responsible for the unintended, albeit foreseeable consequences?  

What is the cost of these crimes - these collateral costs that seem far removed and yet are intricately involved with these offenses?  These are not new problems.  Taking responsibility for offspring was often interwoven in the laws of intestacy where the child born out of wedlock was simply not recognized, perhaps the putative father would be required to pay a bond for the child's welfare, but just as easily, the child could become (with its mother) a ward of the state or sold in vendue to the lowest bidder.

In early America, abortion did not carry today's religious taboo, and adoption was widely practiced for out of wedlock pregnancies whether voluntary or not.  Indeed, the idea of the single mother intent on raising her own child - especially one who was the product of a rape - seems relatively new in comparison (undoubtedly it has always been a reality but rape was potentially a capital offense until 1976 and so the father would unlikely be asked for child support payments).   Still, the question remains as to who will pay the cost where the single mother is incapable of supporting herself and her child?  The rapist (or in the case of statutory male rape, the victim)?  The state without any involvement by the rapist (or victim)?  And regardless of cost, can the rapist (or victim) be prohibited from involvement in the child's life if the child is not placed into an adoptive home where parental rights have been surrendered?

A battle is raging in this country that is internally inconsistent and not reflective of reality. It is inconsistent to seek to abolish abortion in all cases and simultaneously argue for personal responsibility for all actions.  That places the woman rape victim in the impossible position of being intertwined with her rapist forever and the male rape victim responsible for the care and upbringing of his offender's child.  Further, reduced availability of state and federal aid will undoubtedly press courts to seek payments from rapists and victims in child support for the offspring of the crime, putting government in the unenviable position of requiring victims of crimes to have lifelong interaction with their assailants.

The pending Melendez case raises important and difficult questions not only for the parties but for society.  Historically, Americans have looked askance at single mothers, particularly those accepting public services.  At the same time, we have tremendous sympathy for rape victims and an inherent sense that women should have total control over their own bodies and destiny.  Is our disdain for delinquent fathers more powerful than our disgust with rapists who want to be involved in their child's life, especially those with the financial means to support the child?  And, in this nation, where our emotions drive our zeal to brand people as criminals and deprive them of dignity and resources otherwise inherent in citizenship, how and where do constitutional principles and protections fit into that charged landscape when a child is involved? 

Criminal Restitution Fails to Satisfy

Exacting punishment is a difficult process and it has ever been thus.  Ancient law discussed the misunderstood "eye for an eye" retributive justice which, scholars explain, was not the actual eye removal, but rather the limit of the punishment; for harming one's eye, the penalty shall be the value no greater than the harm to the offender's eye.  It was monetary and value based rather than literal.  The notion of criminal restitution draws on this ancient doctrine for its validity.

In Massachusetts, while criminal restitution enjoys large judicial support, its purpose is utterly unclear.  It seems not to have a home: whether to punish or reform, to rehabilitate the offender or to compensate for loss.  Criminal restitution must not exceed the actual cost of repair or damage and the offender is entitled to a hearing where such proof is presented; ability to pay must be factored in to the equation and so it is unlike its civil restitution counterpart.  The system is so ill designed that payments, when they can be made, are submitted to the probation department which then has no regulated accounting process by which it must account for the funds and release them to victims save keeping a receipt therefore.

Criminal restitution is "punitive" in nature.  Unlike compensatory damages, it is, therefore, subject to taxation by the recipient.  Not only does this mean it fails in its purpose of making whole, but there is no industry watchdog to ensure that the state receives its proper tax through this haphazard system. If not taxed and treated more like civil compensation to make the victim whole, then query its place in the echelons of criminal justice, a state-driven punitive entity.  Despite its chameleon-like existence, criminal restitution is decidedly disciplinary enough so that if an individual owing restitution misses a payment, s/he is subject to probation violation proceedings.

That is, failing to pay restitution can lead to incarceration.  This conflicts with the concept of ordered liberty.  An inability or lack of desire to pay a private debt may have consequences, but jail should not be one of them.  Civil action by the creditor is a possibility, and most private debts can be dismissed in bankruptcy proceedings if necessary.  But, criminal restitution essentially establishes a debt under the auspices of criminal courts which have the ability to jail people...for failing to pay a debt...to a private party...whose counsel was provided by the state...and which is not eligible for relief from the bankruptcy courts.  This just seems wrong; it even raises concerns about the use of criminal courts, payment for prosecutors and equal protection since civil litigants will not lose liberty of they cannot pay.

If the goal includes reform and rehabilitation, then it must not depend on the size of the loss to the victim.  The aspiration is to teach the offender that s/he is part of a greater society, a society that values all members and wants participation from all members.  This view of restitution has resonance; our actions affect others and those others are part of our greater world.  When we harm them, we harm ourselves and therefore, to make the victim whole and to restore our community to stasis, we must heal the wounds we created.  In the eye for an eye comparison, this represents that the value of the eye is the maximum penalty, but that a lesser penalty can satisfy justice.

If the goal is punitive and designed to compensate for loss, putting aside the civil court system designed for that purpose, criminal restitution becomes a sword.  The aspiration is to demonstrate that providing funds to the victim evidences penance.  This view of restitution has resonance, too; our actions have consequences not only for those we harm but to us in our daily lives.  When we harm people, we too will face financial harm until such time as we compensate the loss.  In the eye for an eye comparison, this represents the equitable scale where the maximum penalty is the only just penalty.

Regardless of the view of criminal restitution, or even when it may be appropriate and for what types of losses, unlike its civil counterpart, ability to pay is always a factor for consideration.  This is true because due process of law demands it but also because criminal courts are busy doling out punishment for crimes; they are not collection agencies.  Given that the vast majority of criminal defendants are indigent, many with mental health or addiction problems, ability to pay takes on great force in the process from the initial award to the concept of probation violation for failing to pay restitution.  We rid ourselves of debtors prisons by federal law in 1833.  But, in a recent case mimicking a morality play, ability to pay stands front and center in a starring role.

In Commonwealth v. Avram A. , an 11 year old boy was found delinquent for "tagging" - expressing his creativity with spray paint on other people's property.  He admitted to sufficient facts and agreed to a hearing to determine restitution and his ability to pay.  It is doubtful he anticipated the $1313.78 sum determined by the juvenile court judge; there is no record of how the court decided the child's ability to pay the restitution.  He was placed on a type of probation called a continuance without a finding; a fancy way of saying if he completed his probation, the charge would be dismissed.  A year later, having failed to pay, he was surrendered on a probation violation, found in violation and his probation was extended until his 16th birthday with the requirement to pay the restitution.

Although acknowledging that the child was 12, and subject to child labor laws prohibiting work, the Appeals Court upheld the violation and the sentence extension reasoning, in part, that as the child got older he would become more and more capable of paying the debt.  Indeed, at his age he was old enough to get a paper route...for newspapers that are losing readership at an alarming rate...and which routes have long been replaced by adults with cars to cover the broader area required for the few folks who like ink on their hands...in support of a sadly dying industry.

In the penance/punishment model of restitution, the boy needs to understand that his actions have consequences.  But, doesn't he?  He got caught which is often enough to scare a young child. Reforms on child labor put in place a century ago finally took hold during the Great Depression because adults needed the jobs that children formerly held - a phenomenon as true today as then.  Thus, even if America were not in a jobless recovery, he is prohibited by law from working for money except under limited conditions and the court knew that when it initially sentenced him.  Under principles of due process of law, cruel or unusual punishment, double jeopardy, and the reformatory nature of juvenile justice, by what fiat can that sentence be enhanced for four additional years so that he can grow into a place where he might earn over $1000?

Whatever the lessons of criminal restitution, they cannot be the beating of the tell-tale heart echoing forever no matter what one does.  The boy was 11 at the time of his offense.  11 year olds cannot even see The Hobbit without parental permission.  And it is reasonable for a court to hold him under terms of probation until he is 16 for a debt to a private party?

In the reform/rehabilitation model of restitution, the boy needs to feel responsible for his actions.  But, doesn't he?  He got caught which is often enough to scare a young child.  He has not otherwise violated his probation.  He cannot legally earn the amount of money needed to compensate for his actions, but he has taken steps to reform his behavior.   Thus, rather than violating him on his probation, the court should have accepted that the penalty was too high; he lacked the ability to pay but the other aspects of restitution and probation had been accomplished.  Indeed, built into the criminal restitution model is the opportunity for review as to ability to pay. 

Both models have the potential to leave the victims without compensation.  But, compensation to victims is not part of the criminal justice model anymore: that whole eye for an eye idea faded when criminal and civil law grew into their own branches.  In a reform movement several years ago, the idea of victims rights developed.  Pursuant thereto, a fund was established under G.L. c. 258  as part of a larger framework for victims of crime.  Understanding that certain expenses might accompany criminal acts, each district attorney is obliged to establish services and programs to assist crime victims in the system.  Convicted offenders must pay in to the victim/witness fund; adults must pay $90 and juveniles 14 and over are not required to pay more than $45.  There is no required amount for juveniles under 14, probably due to an implied inability to pay.  G.L. c. 258B sec. 8. The maximum amount allowed for compensating a crime victim is $25,000. G.L. c. 258C sec. 3. Surely, once the court realized its error in requiring a child to pay an amount he could not legally earn in a year - or realistically during the jurisdiction of the court's authority over him -  the court should have instructed the prosecutor to relieve the victims by way of the fund.

The legislature has deemed that juveniles of this age presumptively cannot pay $45, so can a court hold an individual in perpetual restraint of liberty for failing to pay $1300?  The case of this young boy is troubling on a number of levels.

As a practical matter, criminal restitution, an extremely popular and widespread punishment, is unworkable and contrary to the criminal justice system.  Payments to crime victims should come directly from the victim/witness fund and not from the offender.  The offender may be charged fines to the state, so long as they are not excessive as per the Eighth Amendment And Art. 26.  The offender may lose his liberty as a result of the criminal acts.  But, it is a waste of public dollars for the government to use valuable resources in order to collect a private debt.  The system is not designed for that purpose and the costs far outweigh the benefits.  If restitution is desired, the case should be sent for mediation with a legitimate plan for compensation or acceptance of responsibility satisfactory to the victim without the threat of a loss of liberty for failing to pay.  If punishment is desired, then the state has plenty of tools in its shed to implement.  The real questions that must be asked - and if possible, answered - what are we trying to do?  And, what methods best help us achieve that goal?  Regardless of the answers, criminal restitution will never satisfy.

Driven to Extremes

Concerned about acquittal numbers in criminal trials for operating a motor vehicle under the influence of alcohol, the Massachusetts Supreme Judicial Court commissioned a report to identify issues related to this perceived phenomenon.  The report is thorough and explanatory.  It seems that the primary reasons for high acquittal rates have nothing to do with corruption within the system, but rather weak cases for the prosecution combined with defense attorney operating under the influence specialization.  This comes as no surprise as a quick search of "oui" or "operating under the influence" does not return statistics on deaths or accidents, it yields names of lawyers holding themselves out as skilled in this type of defense alone.

But, one surprising outcome of the report was included in its four recommendations, three of which are unobjectionable on any level as they tend more toward fairness in the proceedings and the ability of the fact finder to ascertain the truth of the event.  But, one recommendation (which, the Supreme Judicial Court admits would require legislative action) is to amend G.L. c. 90 sec. 24(1)(f)(1) to deny the restoration of a driver's license, suspended upon refusal to take a breathalyzer test, regardless of the outcome of the case.  Assuming the driver has the right to refuse the test (knowing that his or her license will be suspended automatically for that refusal), why shouldn't the privilege of driving be restored immediately upon a determination, as outlined in the statute, within 15 days of offense if the officer did not have probable cause to stop the person or, certainly upon acquittal or dismissal of the case?  The minimum suspension of a driver's license for refusing to take a breathalyzer test is six months.

Breathalyzer tests may not be consistent or reliable; results may be challenged effectively at trial.  But, there is a presumption of guilt with a reading of 0.08 or higher.  Query the purpose of the law: to prevent erratic driving due to the influence of drugs or alcohol.  A sleepy or elderly or newly licensed or distracted driver may be more dangerous than one who has a high tolerance for alcohol; but if they are stopped for another reason, their licenses will not be suspended.  The suggestion by the otherwise thorough and compelling report to suspend people's driver's licenses for a minimum of six months, whether innocent or guilty of a specific offense, or whether there is even probable cause to arrest someone is an invitation for abuse by the police as well as a swift slide down a slippery slope.

It is reasonable to place a minimal penalty on the refusal to submit to a breathalyzer (and query whether the refusal alone suggests a higher brain functioning and reaction time than one who submits).  However, the statutory suspensions are lengthy and can be burdensome to individuals who depend on cars for their livelihood.  Further, mass transit options in some parts of the state are non existent and even if one has a bicycle and the ability to ride, winter is cold in Massachusetts.  A rule change may result in an innocent person who was not impaired but refused the breathalyzer for any one of a number of legitimate reasons to be acquitted of the offense but possibly lose her job and her ability to manage her life. That seems extreme.

Putting aside the overdependence we have on cars and putting aside that there are additional options and putting aside that driving is a privilege and not a right - all legitimate, but irrelevant, issues.  The question is what penalty do we assign to the refusal to submit to a potentially faulty test, the refusal of which is not admissible evidence in a court of law, when the government is incapable of proving guilt beyond a reasonable doubt?  The statute itself states that by getting behind the wheel all drivers consent to this test - the individual who refuses negates this presumed consent and sacrifices the loss of a license for a short period of time.

However, the potential for restoration of rights necessarily advances the case more quickly through the courts with the potential to clear the docket.  The knowledge that a mere arrest - even one without probable cause - would result in a loss of license regardless of outcome relegates the case to a low priority for both parties resulting in even further clogged court dockets.  Such a determination suggests a poor example of due process and fair play, the very attributes of government that prompt apathy and disaffection, not responsible citizenship.  And, to what end?

Collateral consequences are serious matters not just to defendants, but to justice itself.  This is not to say that driving a car or the deprivation of that privilege is anything close to being deported (as in Padilla v. Kentucky), but for many years, courts had incorrectly concluded that immigration consequences were collateral damage to convictions and not a basis for withdrawing a guilty plea.  The collateral consequence of a loss of license despite innocence may be utterly unknown by the individual who is not in a position to obtain legal advice before making a decision to submit to a breathalyzer test.  Indeed, innocent food products, common medical conditions and poor machine calibration could result in a presumption of guilt.

Operating a 4500 pound machine that can move at a pretty nice clip with only a foot touch on a pedal is an inherently dangerous undertaking.  Impairing that action by ingesting a substance that delays reaction time and confuses the mind is the equivalent of walking around with a loaded gun.  It might not go off, but if it does, some innocent person can die.  That is tantamount to second degree murder, not the vehicular homicide misdemeanor we embrace.  The minimal consequences of a guilty verdict for drunk drivers is, quite frankly, too low.  But, if someone is not impaired, but merely fearful of a test that might demonstrate impairment and, indeed is acquitted of the offense of driving while impaired, the continued loss of a license is unconscionable.

Our foundation relies on the belief that it is more important to protect the innocent than punish the guilty.  Criminal defendants enjoy the presumption of innocence and the burden of proof beyond a reasonable doubt rests solely upon the government for each and every element of the offense it charges.  The suggestion that a punishment, whether collateral or otherwise, be imposed upon an individual even where the government failed to prove a crime is antithetical to our founders and the constitutions they placed in our safekeeping.