Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 3
A Preview of the Section’s Project on Collateral Sanctions
By Margaret Colgate Love
Convicted felons are not allowed to vote in Florida, a circumstance that some believe may have determined the outcome of the recent presidential election. ( See Johnson v. Bush, No. 00–CV–3542 (S.D. Fla.).) Scholars argue that felony disenfranchisement laws such as Florida’s have the effect (if not the intent) of excluding racial and ethnic minorities from the political process. ( See, e.g., Andrew L. Shapiro, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103 Yale L.J. 537 (1993).) Felony disenfranchisement is a remnant of the ancient Greek concept of infamy, or the penalty of outlawry among the Germanic tribes, both of which implied the permanent exclusion of an offender from the community: "The outlaw’s children were considered as orphans and his wife a widow. Besides losing his family rights, he also lost all his possessions and even his right to life (if we can use that expression), for anyone could kill him with impunity." (Mirjan Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study, 59 J.L., Crim. & Police Sci. 347, 350 (1968).)
Disenfranchisement is only one sign of the lingering legal and social stigma that marks offenders long after they have fully satisfied the conventional elements of their sentence. And it is richly symbolic of the ambivalent public attitude toward those who have committed a crime: They are expected to become law-abiding and productive citizens, while at the same time they are denied many of the usual means of doing so.
The half-hidden adverse legal consequences of a criminal conviction have been growing steadily in variety and in severity over the past 20 years, creating a new and insidious form of infamy. And increases in the numbers of individuals convicted and imprisoned mean that the resulting disabilities affect a growing proportion of the populace. Laws that penalize or exclude convicted felons have accumulated with little coordination in scattered parts of state and federal codes, and they are usually not brought to the attention of a defendant at the time of sentencing. Indeed, they may not even be known to the sentencing judge. As a result, all those present at a sentencing may later be surprised to learn the full extent of the defendant’s changed legal status. In many cases the court-imposed sentence will be trivial in comparison. For example, as the Supreme Court recognized in INS v. St. Cyr, 121 S. Ct. 2271, 2291 (2001), avoiding the collateral consequence of deportation is likely to be "one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead proceed to trial." There is often no mechanism for obtaining relief, so that "one’s debt to society is never paid." (Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in Marc Mauer, Collateral Damage: The Social Cost of Mass Imprisonment (2001) (forthcoming).) Quite apart from the moral implications of such a "network of invisible punishment," id., it is exceedingly inefficient insofar as it frustrates rehabilitation and encourages recidivism.
A typical case illustrates the breadth and impact of collateral consequences. A first offender convicted in New York of possessing codeine cough syrup, a class D felony, might be sentenced to five years’ probation, 150 hours of community service, and court costs. Unbeknownst to this offender, and perhaps to any other actor in the sentencing process, other provisions of state and federal law will make him ineligible for certain federally funded health care and Social Security benefits, food stamps, and federal educational assistance. His driver’s license will be suspended, and he will be ineligible to enlist in the military or to possess a firearm. He and his family may be evicted from public housing. If a parent, he may lose custody of his children; if not, he may find it impossible to adopt. He will be exposed to possible future sentence enhancements; and, if an alien, he will be deported. In this case, the real punishment is imposed not at sentencing, but through collateral consequences that may only gradually become clear. Until they do, the offender may unwittingly be in violation of the law. An offender’s failure to appreciate how his or her legal situation has changed may have far-reaching consequences. ( See, e.g., Gary Fields, Career Felons Feel the Long Arm of Gun Laws, Wall St. J., July 3, 2001, at A15.)
The two short articles that follow illustrate these points from the perspectives of an elected county prosecutor and a self-described "ex-con." Robert Johnson argues that it is both unfair and shortsighted for prosecutors and judges to fail to consider the full range of adverse legal consequences of conviction in making charging and sentencing decisions. Webb Hubbell speaks from personal experience of the difficulties experienced by a convicted felon seeking to rebuild his life after leaving prison. Together they provide an excellent introduction to the effort presently under way in the Criminal Justice Standards Committee to develop a comprehensive approach to the legal and policy questions presented by collateral consequences. They will be followed in a later issue of Criminal Justice magazine by an article in which Jeremy Travis and Laurie Robinson discuss the relationship between sentencing policies and the challenges and hurdles facing prisoners as they reenter society.
Criminal Justice Standards
The provisions of the ABA Criminal Justice Standards that currently deal with the collateral consequences of conviction are quite enlightened, but they have generally gone unnoticed by policymakers and commentators. ( See "Civil Disabilities of Convicted Persons," Part VIII of Chapter 23 (Standards on the Legal Status of Prisoners).) Those standards conceive collateral consequences as essentially a form of discrimination against convicted persons, as opposed to a form of sanction that brings into play the substantive and procedural requirements of the sentencing laws. A Task Force of the Standards Committee that is presently considering the issues raised by collateral consequences has concluded that the sentencing model is more suitable, both for reasons of fairness and for reasons of utility. To underscore their close relationship with the more conventional elements of a sentence, the task force proposes to deal with collateral consequences in an entirely new chapter of the standards entitled "Collateral Sanctions," immediately following the sentencing standards.
Like the Standards on Sentencing, the proposed new Standards on Collateral Sanctions will make truth in sentencing a central goal. There is no justification for the legal system to operate in ignorance of the effects of its actions. Prosecutors when deciding how to charge, defendants when deciding how to plead, defense lawyers when advising their clients, and judges when sentencing should be aware, at least, of the legal ramifications of the decisions they are making. ( See, e.g., Barkley v. State, 724 A. 2d 558 (Del. 1999) (automatic revocation of driver’s license upon conviction was "mandatory minimum penalty" of which defendant was required to be informed in connection with entry of his guilty plea); (s ee also Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. (forthcoming 2002) (criticizing legal doctrine distinguishing between direct and collateral consequences of a guilty plea).)
Codification of collateral sanctions is one method of ensuring truth in sentencing, and inclusion as part of the punishment meted out by a judge is another. Case-by-case tailoring is a third principle that has been imported from the sentencing standards: The sentencing judge must always have the option of waiving any categorical sanction in appropriate cases. Finally, it follows from the principle that collateral sanctions are a part of a criminal sentence that they may not be imposed retroactively. Nor may they be enhanced or enforced except in accordance with the same principles that apply to other elements of a criminal sentence.
In the main, the proposed new standards will not address discretionary punishments and penalties that do not flow from the fact of conviction, but rather are based on the conduct underlying the conviction. The task force recognizes, however, that the line between a per se sanction and a discrimination based on conduct is not always a bright one. But de facto distinctions based on the fact of conviction may as a practical matter be just as burdensome and discouraging as distinctions based on rigid legal categories. Thus, while these standards are concerned primarily with bringing collateral sanctions into the sentencing process, they also carry forward the policy of nondiscrimination established by the current Standards on the Legal Status of Prisoners. Like those standards, they disfavor unreasonable discrimination against a convicted person in insurance, credit and employment reports, housing, and employment, whether by a public entity or private person. Although such discrimination is not an integral part of a criminal sentence, it is nevertheless a concern of the criminal justice system to the extent it prevents or discourages convicted persons from successfully reentering the community and remaining law abiding.
The task force welcomes all contributions to this timely and challenging project, for it seems to be taking us into uncharted waters. Contact Susan Hillenbrand, director of the Criminal Justice Standards Project at (202) 662–1503 or e-mail to firstname.lastname@example.org. We expect to present a draft to the Standards Committee in the fall, at which time it will be circulated widely for comment. We hope to have a proposal ready for consideration by the Criminal Justice Section Council in the spring.
Margaret Colgate Love is of counsel at Brand & Frulla in Washington, D.C. She is also chair of the ABA Criminal Justice Standards Committee’s Task Force on Collateral Sanctions.