Holistic is Not a Bad Word: A Criminal Defense Attorney’s Guide to Using Invisible Punishments as an Advocacy Strategy

By McGregor Smyth.

The legal disabilities and social exclusion resulting from any adverse encounter with the criminal justice system erect nearly insurmountable barriers for criminal defendants, people with criminal records, those returning to their communities after incarceration, and their families. Recent scholarship has highlighted the draconian effects of these invisible punishments and has argued that criminal defense attorneys should expand their practice to include defending against these hidden consequences. However, few of these articles have explored the practical difficulties of taking account of hidden sanctions in defense work, or how new advocacy strategies based on these sanctions may actually benefit the defense. From a defense attorney’s perspective, particularly one who represents indigent clients, an expanded vision of advocacy is both exciting and extremely daunting.

Any approach to true reform must accept the fundamental truth that criminal justice practitioners have a difficult job. Public defenders and others who represent indigent people charged with crimes operate under crushing caseloads and within unsympathetic court systems. To be viable, a practice model must work within this context and cannot mandate unreasonable duties.

When considering the complex web of invisible punishments in the aggregate, the task of incorporating them into daily defense practice appears overwhelming. But I consult with defenders every day, and I can assure practitioners of two things: (1) a number of practical tips can make a world of difference for many clients—especially if you routinize them—and can actually result in improved criminal dispositions; and (2) even if you cannot avoid a hidden consequence, your client cannot make an informed choice unless you explain it.

This article provides a roadmap for incorporating invisible punishments into criminal defense practice. First, part I outlines the broader context of client need that demands an altered defense role. Part II discusses one attempt at a coordinated approach—the new ABA Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons (the Standards)—and examines its contributions and limitations in supporting this altered role. Part III lays out in detail how defense attorneys can use knowledge of hidden sanctions to obtain better outcomes in criminal cases and improve their advocacy. Part IV describes strategies for defenders to gain the requisite knowledge of invisible punishments through existing resources and collaborations.

Read the full article here: Holistic is Not a Bad Word