an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Since the 1970s, the central characteristic of the U.S. criminal justice system has been mass incarceration, which involves more people being imprisoned for longer periods of time. As to prison sentences and other traditional forms of punishment, such as probation, and fines, current constitutional doctrine accommodated the changes reasonably well. A defendant is entitled to counsel in connection with a criminal prosecution, including sentence issues, and, when pleading guilty, to notice from the judge of the potential imprisonment, probation and fine. In addition, criminal punishments are fixed at the time the conduct occurs; criminal codes provide for a maximum term of imprisonment for particular offenses, for example, which cannot be lengthened ex post facto, even if the legislature decides that penalties were too low. Some, including me, agree with Justice Kennedy’s famous 2003 speech to the American Bar Association which concluded that “Our resources are misspent, our punishments too severe, our sentences too long.” Yet, in terms of determinability and notice, the Constitution regulates imprisonment and fines in criminal cases reasonably fairly: What you see is what you get.
However, even with the unprecedented imprisonment rate, the most lasting social effects of criminal convictions are not about prison. Most of the 1.1 million or so people convicted of a felony each year—sixty percent—never go to prison. They receive straight probation or probation plus some time in jail. Misdemeanor convictions are even less likely to result in incarceration. In addition, even those convicted of felonies and sentenced to prison receive an average term of less than five years. Even now, then, the vast majority of people convicted of a felony will spend all or almost all of their lives out of the direct control of the criminal justice system—not in prison, and not on probation or some other form of supervision. Conviction and punishment, it is said, are the ways defendants “pay their debt to society.” But it turns out that criminal conviction is a debt that can never be paid. In every state and under federal law, there are hundreds of collateral consequences that apply automatically or on a discretionary basis, to people convicted of crimes. Most of these apply for life, apply based on convictions from other jurisdictions, and can never be removed, or can be relieved only through virtually unavailable methods like a pardon from the President. The rise of computer databases means that factual disclosure of convictions is inescapable.
These collateral consequences, depending on the crime, include such things as deportation for non-citizens, ineligibility for public benefits, and government licenses, permits, and public employment, ineligibility for private employment requiring security clearances or contact with vulnerable populations like children and the elderly, loss of civil rights like voting, office-holding and jury service, and loss of parental rights or ability to adopt or be a foster parent.
The Constitution does not handle collateral consequences well. Under current constitutional doctrine, most of these effects of a conviction are divorced from the criminal process. Collateral consequences apply because and only because of the conviction—someone convicted of smoking marijuana is in a very different position than someone who admits smoking marijuana. Yet, collateral consequences have been deemed not to be “criminal punishment.” Therefore, there is no ex post facto limitation, no question of proportionality, no right to counsel, and, until March of 2010, no right to notice from the court or counsel when pleading guilty to an offense with collateral consequences. Accordingly, it is common for people to plead guilty to an offense with a minor penalty without being told by the court or counsel that catastrophic consequences will result, such as deportation, or loss of the ability to earn a living. It is also common to plead to an offense that does not have a severe collateral consequence, only to have it added later and impose a new burden on an individual’s life.
The Constitution in 2020, I hope, will recognize collateral consequences as an integral part of the criminal justice system, and pay more attention to how they are created and imposed. One avenue for change is doctrinal. In Padilla v. Kentucky, decided in March, 2010, seven justices agreed that counsel had a Sixth Amendment obligation to advise that a guilty plea could lead to deportation, even though the Court reaffirmed the ancient rule that deportation was not technically criminal punishment. The Justices reasoned that deportation was closely connected to the criminal process and important to the individual; the same can be said of sex offender registration or residency requirements, and of convictions, particularly for minor offenses, that will render the individual unable to work or to receive public benefits. As Justice Alito suggested, warning about some collateral consequences can be misleading if others are not mentioned; the logic of Padilla implies that defense counsel should investigate and advise about the complete range of possible collateral consequences.
Justice Stevens’ majority opinion suggested that it was appropriate to bargain about charges, in some cases resulting in a conviction avoiding deportation. This implies the possibility of more fundamental change: Perhaps collateral consequences, applicable automatically because of a criminal conviction, should be understood as punishment for some or all constitutional purposes. There is a serious argument that the network of collateral consequences affecting a person convicted of a crime is the modern equivalent of “civil death” that accompanied felony conviction at common law. This in turn suggests that that additional collateral consequences cannot be added to a punishment at a later time, because of the ex post facto clause. Further, it implies that judges should give some warning about collateral consequences as a matter of due process; this is what the Uniform Law Commission proposed in Sections 5 and 6 of the ”Uniform Collateral Consequences of Conviction Act, approved in 2009 (which I served as Reporter).
Constitutional change is more likely to happen if it is practical and feasible. Padilla v. Kentucky, for example, was decided only after three dozen or so states determined on their own to require warnings about the possibility of deportation. In this regard, it is worth noting that one of the traditional objections to bringing collateral consequences into pleas or criminal sentences is about to disappear. Many courts reasoned that collateral consequences were so numerous and obscure that it was impossible to ask judges or lawyers to advise about them. But the ABA, under a contract with the National Institute of Justice, is in the process of collecting the collateral consequences applicable under the laws of the 50 states. Accordingly, before too long, they should be readily available to judges, lawyers, legislators, sentencing commissions and policy makers who can consider whether and how they should be made part of the criminal process.
Gabriel “Jack” Chin is Chester H. Smith Professor of Law at the University of Arizona James E. Rogers College of Law. You can contact him by e-mail at jack.chin at law.arizona.edu. Posted
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