Collateral consequences and the preventive state.

• Author: Mayson, Sandra G.
• Position: Abstract through II. Punishment Versus Preventive Restraint C. The Distinction in U.S. Law 2. The Distinction Under Siege, p. 301-332

ABSTRACT

Approximately eight percent of adults in the United States have a felony conviction. The "collateral consequences" of criminal conviction (CCs)--legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence--have relegated that group to permanent second-class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs as "punishment, " the consensus holds, such that constitutional constraints on punishment will apply.

This Article argues for a different approach. The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis fcrr limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people's liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs--for both theoretical and tactical reasons--is to recognize them as predictive risk regulation and seek to develop appropriate constraints.

INTRODUCTION

One in four American adults has a criminal record. (1) That statistic includes people who have only been arrested, but the conviction numbers are just as staggering. A recent study finds that "19.8 million persons, representing 8.6 percent of the adult population and approximately one-third of the African American adult male population," have been convicted of a felony. (2) Including misdemeanors, the number must be much greater. No one has managed to calculate it. It is a simple reality: Three decades of mass prosecution have produced a vast criminal class. If we empty the prisons tomorrow, this fact will not change.

This would be sobering news even if people with past convictions could resume normal lives, but we have made that very difficult. "Collateral consequences of conviction" (CCs)--legal disabilities imposed by legislatures on the basis of past conviction, but not as part of a criminal sentence--have proliferated over the last thirty years. (3) They include employment bars, disqualification from public housing and benefits, immigration consequences, offender registration, voter disenfranchisement, and many, many more. (4) The increasing availability and permanence of digital criminal record information has facilitated CCs and amplified their effects. (5) As a composite, CCs exclude a significant proportion of the populace, disproportionately poor and minority, from basic opportunity and participation in our society. As one scholar has opined, "The collateral consequences of criminal proceedings inflict damage on a breadth and scale too shocking for most lawyers and policy makers to accept." (6)

Constitutional challenges to CCs, meanwhile, have generally failed. Courts have consistently found that CCs do not constitute punishment, and so cannot violate any constraint on the state's power to punish (like the Ex Post Facto Clause or Eighth Amendment). Analyzing CCs pursuant to principles of equal protection or substantive due process, courts have applied the deferential standard of rational basis review, and have rejected nearly all challenges. Immune from the constitutional constraints on punishment and subject only to rational basis review as regulation, CCs have proliferated unchecked. (7)

Among scholars who have addressed this situation, a consensus has emerged that courts have erred by refusing to classify CCs as punishment. These critics contend that CCs are a form of additional punishment, and that courts have defied reality and strained the law to hold otherwise. In one particularly compelling analysis, Gabriel Chin argues that CCs have effectively resurrected the colonial-era punishment of "civil death," and must be understood as punishment, just as civil death was. (8) Meanwhile, mainstream legal organizations have proposed reforms (including revisions to the Model Penal Code) encouraging sentencing judges to consider CCs as part of the punishment for an offense. (9) There is considerable momentum behind the consensus that the law should treat CCs, substantively and procedurally, as "punishment."

This Article argues that the consensus view has overlooked a critical fact: Most CCs purport to control and restrain people not for what they have done, but for what they might do. They claim authority to restrict individual liberty on the basis of a judgment of future risk. This predictive logic does not make CCs unique. On the contrary, they belong to the expanding "preventive state." (10) They are contiguous with other mechanisms of predictive control that have multiplied both within and outside of the criminal justice system, including predictive policing, risk-based sentencing, and targeted surveillance.

Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people's liberty on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Predictions of future crime are highly inaccurate; they tend to track stereotypes, and factors used as proxies for future risk both reflect and perpetuate race and class inequality. More fundamentally, predictive restraint contravenes the liberal ideal that the state may not preemptively restrain people who are responsible actors to stop them from committing future crimes.

Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs--for both theoretical and tactical reasons--is to recognize them as predictive risk regulation, and seek to develop appropriate constraints. The true challenge, in other words, is the one that Carol Steiker identified fifteen years ago: to develop a rational, robust jurisprudence of preventive justice. (11) The Constitution itself includes no specific constraints on predictive deprivations of liberty, and jurisprudence addressing non-custodial predictive restraints has been almost nonexistent. But the general principles of equal protection and substantive due process can and should have greater traction in this sphere. A meaningful judicial assessment of a given CC, pursuant to either of those guarantees, would consider whether it is a reasonable means of preventing the feared future harm, taking into account (a) the severity and likelihood of the harm, (b) the degree to which the CC infringes individual liberty, and (c) the availability of less restrictive alternatives.

This Article connects and contributes to three scholarly literatures. The first is the legal literature on CCs, which has been primarily concerned with exposing the devastating impact of CCs and advancing pragmatic proposals to mitigate it, and which has urged courts to construe CCs as a form of punishment. (12) The second is the literature of the preventive state, which diagnoses and explores the increasing entanglement of criminal justice and predictive risk regulation. (13) Several preventive-state scholars have addressed sex offender registration and civil commitment regimes, but none have considered CCs as a whole. (14) The third is the broader philosophical literature on preventive justice, which has blossomed in recent years. (15) The Article's overarching thesis is that most of today's CCs are a manifestation of the preventive state; that for courts and scholars to classify them as punishment obscures that fact to no good end; and that the urgent need to curtail CCs offers an opportunity to recognize that predictive restraint premised on conviction status is an exercise of the state's police power that warrants greater constitutional oversight than courts have been willing to deploy.

The Article proceeds in four Parts.

Part I briefly narrates the advent of CCs and describes the emerging critical consensus that they should be classified as punishment for constitutional purposes. It notes several reasons for pause.

Part II offers a theoretical framework by positing idealized conceptions of "punishment" and "prevention," then examining the relationship between them and that relationship's implications for legal structure. The model defines punishment as a deprivation that claims normative authorization from a judgment of past culpability and preventive restraint as a deprivation that claims authorization from a judgment of future risk. Part II argues that this conceptual distinction has practical implications for the structure of law because different claims of authority require different procedures and constraints. It contends, finally, that U.S. criminal and constitutional law reflect a deep commitment to the punishment-prevention dichotomy, although current practices threaten it, and that there is good reason to maintain the distinction in law.

Part III acknowledges the dilemma that the real world presents. Realworld restraints on liberty do not often make unitary claims of authority. Many real-world practices instead invoke mixed judgments of culpability and risk; this is the hallmark of the preventive state. It is more accurate to think of these practices along a...