Persons convicted of crime are subject to a wide variety of legal and regulatory sanctions and restrictions in addition to the sentence imposed by the court. These so-called “collateral consequences” of conviction have been promulgated with little coordination in disparate sections of state and federal codes, which makes it difficult for anyone to identify all of the penalties and disabilities that are triggered by conviction of a particular offense. While collateral consequences have been a familiar feature of the American justice system since colonial times, they have become more important and more problematic in the past 20 years for three reasons: they are more numerous and more severe, they affect more people, and they are harder to avoid or mitigate. As a result, millions of Americans are consigned to a kind of legal limbo because at one point in their past they committed a crime.As an example of how vast the number of collateral consequences are in practice, go to Texas and search on "Employment" and "Any Misdemeanor," and 116 different state and federal statutory and regulatory restrictions are listed.
Some collateral consequences serve an important and legitimate public safety or regulatory function, such as keeping firearms out of the hands of violent offenders, protecting children or the elderly from persons with a history of abuse, or barring people convicted of fraud from positions of public trust. Others are directly related to the particular crime, such as registration requirements for sex offenders, driver’s license restrictions for those convicted of serious traffic offenses, or debarment of those convicted of procurement fraud. But many others apply across the board to people convicted of crimes, without regard to any relationship between crime and consequence, and frequently without consideration of how long ago the crime occurred or what the individual has managed to accomplish since. Many consist of nothing more than a direction to conduct a criminal background check, and an unspoken warning that it is safest to reject anyone with a record. When convicted persons are limited in their ability to support themselves and to participate in the political process, this has both economic and public safety implications. When society is discouraged from recognizing and rewarding genuine rehabilitation, this has moral and social implications as well. When particular restrictions have no apparent regulatory rationale, and cannot be avoided or mitigated, they function as additional punishment, though without due process protections.
Of particular relevance in the present context is the fact that collateral consequences are scattered throughout the codebooks and frequently unknown even to those responsible for their administration and enforcement. The Supreme Court has recognized that when a person considering a guilty plea is unaware of severe consequences that will inexorably follow, this raises questions of fairness and implicates the constitutional right to effective assistance of counsel. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010). When the obligations and restrictions imposed as a result of conviction are unknown to those individuals directly affected by them, it invites noncompliance with the law. When legislatures and executive officials are unaware of the full range of penalties and disabilities imposed by law on convicted individuals, it is unlikely that they will take the opportunity to reconsider them, in whole or in part.
Tuesday, September 25, 2012
State by state database of collateral consequences
A reader informs me of a new national inventory of collateral consequences resulting from criminal convictions, from employment to government benefits to education to civic participation, with state-by state specifics. The website was created by the American Bar Association and the National Institute of Justice. Here's an interesting excerpt from the Project Description articulating why the project was undertaken: