Collateral consequences: how reliable data and resources can change the way law is practiced.

• Author: Gowen, Christopher
• Position: Padilla and the Future of the Defense Function

Introduction I. Overview of Collateral Consequences' Impact on Convicted A. Defining "Collateral Consequences" B. Operational Effect of Automatic and Discretionary Collateral Consequences C. Addressing the Problems II. American Bar Association Collateral Consequence Federal Grant III. Impact of Collateral Consequences on Occupational Licensure: Cosmetology License Case Study IV. Reducing Ambiguity in the Statutory Language of Collateral Consequences A. Application of Heightened Rational Basis Review for Collateral Consequences B. Reducing Ambiguity with Clear and Concise Language C. Providing Clear, Identifiable Expiration Dates for Penalties V. Ethical Obligations and Responsibilities of Defense Attorneys Conclusion INTRODUCTION

The United States has 7.2 million adults in prison or under correctional supervision, accounting for some 3.1% of the population. (1) Ninety-five percent of these convicts will eventually return home and begin to encounter "hidden" consequences. (2) Our economic, legal, and regulatory schemes systematically marginalize people with criminal records by imposing penalties on ex-offenders that are commonly described as the "collateral consequences of criminal convictions." The term "collateral consequences" refers to the denial of rights, privileges, benefits, and opportunities in addition to the sanctions imposed by the original criminal sentence. Many of these consequences haunt ex-offenders for the rest of their lives.

1. OVERVIEW OF COLLATERAL CONSEQUENCES' IMPACT ON CONVICTED

   The issue of collateral consequences is one of the most hotly debated topics among practitioners, lawmakers, and academics. A persistent problem in studying the issue is the inability of any of these groups, let alone the general public, to determine the sheer volume and scope of these penalties. In the fall of 2009, the National Institute of Justice awarded the American Bar Association (ABA) a grant to address this issue and develop a comprehensive national database of consequences on a state-by-state basis.

   1. Defining "Collateral Consequences"

      Collateral consequences are codified in state and federal statutory codes and administrative regulations. They attach by operation of law or through an act of a government entity, (3) such as an administrative body, government official, or civil court. Unfortunately, the term "collateral consequences" defies accurate definition and categorization. The jurisprudence on the matter does not seek to identify the phenomenon or fix its boundaries. Rather, the law has developed from an effort to maximize the authority of regulatory bodies and protect the finality of guilty plea convictions by minimizing the duties of actors within the criminal justice system. (4)

      Collateral consequences can be classified as automatic collateral sanctions or discretionary disqualifications. Automatic collateral sanctions are penalties, disabilities, or disadvantages automatically imposed on an individual as a result of a conviction. (5) These sanctions attach by operation of law or through the non-discretionary act of a government entity following notice of conviction. On the other hand, discretionary disqualifications are not mandatory. A government entity is authorized--but not required--to impose the consequence on an ex-offender because of a conviction. (6)

      Both automatic and discretionary consequences raise troubling questions about the fairness of these penalties and the procedures used to impose them. Automatic sanctions are necessarily overbroad, but they are uniformly applied and provide notice to the public of the penalties inevitably resulting from conviction. These sanctions penalize ex-offenders whose convictions might otherwise be mitigated by the factual circumstances of their criminal behavior, the passage of time, or through their efforts toward rehabilitation. On the other hand, discretionary disqualifications nominally protect against the risk of unjustified application by authorizing the government entity to hear evidence and determine whether the penalty is appropriate in any particular case. Agency discretion, however, introduces the risk of unpredictable or arbitrary applications of penalties.

      Before hearing evidence on an individual ex-offender, the government entity determines whether the legislature authorizes it to sanction people convicted of the offense at issue. The government entity makes this categorical determination by interpreting the language of its authorizing statute and deciding whether the offense falls within its permissible scope of authority. (7) While the authority to hear evidence and make individualized determinations addresses the concern that automatic sanctions are overbroad, the categorical determination is fraught with uncertainty.

      If the government entity has yet to decide whether a particular offense is within the scope of the authorizing statute, a defense attorney in plea negotiations may find it impossible to predict whether consequences may attach and how to advise the client accordingly. This is especially true where the statute is vague or delegates to the agency the power to define the scope of its own authority. For instance, authorizing statutes commonly define a criminal offense as one "reasonably related to the profession." (8) If there is no controlling authority on point, a defense attorney's analysis of whether a particular offense would subject a client to sanctions becomes an exercise in mind-reading or guesswork.

      The duration for which collateral consequence statutes are enforced varies. Some range from a few months to many years, while others simply do not indicate whether the consequence will expire at all. (9) Two types of statutes are understood to mean that the consequence can last forever: statutes that explicitly state that the consequence is indefinite (10) and statutes that give no indication of expiration even if an administrative board has the discretion to cut it short. (11)

      Moreover, some collateral sanctions remove potential workers from the employment market even though ex-offenders, employers, and consumers could all benefit from less regulation. In some instances, collateral bars to employment prevent someone who was trained for a job while incarcerated--at taxpayers' expense--from taking the very job for which he or she was trained. (12)

      The systematic application of collateral consequences in the United States interferes with ex-offenders' successful rehabilitation and reentry into society. This leads to increased recidivism, inadequately protects public safety, and contributes to the nation's incarceration rate, which is the highest in the world. (13) Whether it was the war on drugs, "get tough on crime" campaigns, mandatory minimums, or any of the other programs implemented during the past twenty years, the results have, for the most part, been the same: the United States still has the largest prison population in the world and the highest rates of recidivism. (14) Furthermore, these policies disproportionally affect minority populations, males, and the young. (15)

      Lawmakers employing crime deterrence policies have made stricter laws and longer sentences, and have strengthened the ability of police to vigorously investigate all types of criminal activity. But testimony given by Stephen Saltzburg before the Equal Employment Opportunity Commission on behalf of the ABA suggests that removing barriers to employment and government services may better serve the community. (16) The achievement of short-term employment reduced recidivism rates of ex-offenders by as much as 58%. (17)

      Aside from the substantial economic burden to tax payers--over fifty billion dollars a year--incarceration carries far-reaching economic and social externalities for ex-offenders, families, and communities. The ABA data shows that, nationwide, thousands of statutes operate to deny an employment opportunity to people with criminal records. (18) Even though an ex-offender "pays his debt to society" by successfully completing the criminal sentence and community supervision imposed on him, the punishment continues long after the jailer puts the ex-offender on a bus home. (19) These statutes add a large piece to the employment puzzle, which is in addition to that created by the thousands of unregulated employers who deny employment to those with a criminal record. (20)

      Recidivism will remain uncontrolled so long as ex-offenders are systematically denied employment opportunities--no matter how draconian criminal sentences become or how vigorously law enforcement works to investigate criminal activity. Without the opportunity to work for an "honest dollar," ex-offenders are faced with the Hobson's choice of returning to criminal activity to support themselves and provide for their families. For those ex-offenders fortunate enough to find work, they can expect to be paid 11% less in wages than an individual without a criminal conviction. (21) Allowing access to employment would enhance public safety by addressing a key contributor to recidivist criminal activity and giving the ex-offender an opportunity to rehabilitate.

   2. Operational Effect of Automatic and Discretionary Collateral Consequences

      The jurisprudence concerning collateral consequences developed to protect several interests. One interest is to protect the state's authority to regulate commercial activity. Another interest is to preserve the efficiency and finality of guilty plea convictions against constitutional challenges based on the double jeopardy clause (22) and other protections afforded to criminal defendants. The judicial opinions promoting the state interest in effective governance over the fundamental rights of criminal defendants weakened the very constitutional protections that criminal defendants and ex-offenders asserted. This phenomenon may be observed in the formalistic distinctions made between direct criminal punishments and collateral consequences...