Confronting the Collateral Consequences

of Conviction

Cecelia KlingeleOctober 19, 2012

What is a “collateral” consequence?• Also called “civil disability,” “invisible

punishment,” “civil consequence,” “silent sentence”

• Formal (legally-imposed) vs. informal (reputational & economic)

• Collateral sanction vs. discretionary disqualification

Historical Overview “Infamy” in the Classical World

Consequences of Felony Conviction at Common Law (“Incidents of Attainder”)

Early America & Constitutional Limits

U.S. Const., Art. III, § 3, cl. 2

THE CONGRESS SHALL HAVE POWER TO DECLARE THE PUNISHMENT OF TREASON, BUT NO ATTAINDER OF TREASON SHALL WORK CORRUPTION OF BLOOD, OR FORFEITURE EXCEPT DURING THE LIFE OF THE PERSON ATTAINTED.

Historical Overview “Infamy” in the Classical World

Consequences of Felony Conviction at Common Law (“Incidents of Attainder”)

Early America & Constitutional Limits

Early to Mid-20th Century

1980s and Beyond

Changes in America’s Custodial Population: 1980-2008

1982

1984

1986

1988

1990

1992

1994

1996

1998

2000

2002

2004

2006

2008

0

500000

1000000

1500000

2000000

2500000

JailPrisonTotal

Bureau of Justice Statistics data

Types of Collateral Consequenceso Civil and Political Rights o Community and Military Serviceo Employment and Occupational Licensure o Housingo Public Benefitso Debarment from Federal Program Participation o Family-related rights o Firearms o Sex offender consequenceso Immigrationo International Travel Restrictions

Legal Structureo Constitutional Limits

o Limitations on Access to and Use of Criminal Records

o Regulation of Employment and Occupational Licensing

Restoration of Rights & Statuso Automatic restoration of rights

o Executive Pardon

o Administrative Certificates of Good Conduct

o Judicial Relief Mechanisms

o Deferred Adjudication and other Avoidance Mechanisms

Advocacy in the Criminal Caseo Charging Decisionso The Client Interviewo Plea Bargaining o Counseling the Cliento Trial or the Guilty Pleao Sentencingo Training about Collateral

Consequences

Future of Legal Reformo ABA Criminal Justice Standards

o National Conference of Commissioners on Uniform State Law’s Uniform Collateral Consequences of Conviction Act

o American Law Institute’s Model Penal Code: Sentencing revision

o State law reform