A sentence can take a number of forms, such as loss of privileges (e.g. driving), house arrest, community service, probation, fines and imprisonment.
Collectively, these sentences are referred to as direct consequences – those intended by the judge, and frequently mandated at least in part by an applicable law or statute.
In 2010, a Victorian government review found only 26% of prisoners serving less than three year sentences were enrolled, despite them being eligible and legally obliged to do so.
[12] R. v. Pham involved an offender whose sentence would have made him ineligible to appeal his deportation if it were not reduced in length by one day.
For example, courts have held that stigma or the loss of employment following a conviction to be collateral consequences that can be taken into account during sentencing.
[25] In general, all states impose such consequences except in situations where criminal charges are dropped or dismissed.
In recent years, some governmental organizations have, however, discouraged actions that would cause unfairly harsh collateral consequences; for example, the Equal Employment Opportunity Commission (EEOC) urges human resources managers not to automatically exclude all ex-convicts from employment consideration, particularly if they are members of minorities with disproportionate incarceration rates.
In the worst case, this might violate protections under the United States Constitution, including the Eighth Amendment, which forbids "cruel and unusual punishments".
The Supreme Court of the United States addressed collateral consequences of criminal convictions as early as 1984.
In Strickland v. Washington, the Court explored ineffective assistance of counsel with respect to collateral consequences of criminal convictions.
Since Strickland did not require an analysis of collateral consequences, they generally are not regarded as cause to overturn criminal convictions.
After Padilla, there has been significant litigation in the lower courts about whether attorneys are required to advise their criminal clients about other consequences of convictions.
[34] In May 2005, Chief Judge Judith S. Kaye of the New York State Court of Appeals organized the Partners in Justice Colloquium to address the issue of collateral consequences.
[35] Judge Kaye formed a working group which, in partnership with the Lawyering in the Digital Age Clinic at the Columbia University Law School, created a site that, for the first time, collects academic works, court opinions, and professionals' resources (by virtue of a message board and database) in one place.