Race, The War on Drugs, and the Collateral Consequences of Criminal Conviction

Author:Gabriel J. Chin
Position:Rufus King Professor of Law, University of Cincinnati College of Law

Introduction I. Collateral Consequences, Drug Regulation, And Jim Crow II. Contemporary Collateral Consequences III. Racial Disparity In Drug Prosecutions IV. The Failure Of Legal Challenges V. Conclusion: A Proposed Reform


    Gabriel J. Chin, Rufus King Professor of Law, University of Cincinnati College of Law; Reporter, ABA Task Force on Collateral Sanctions. LL.M., Yale Law School, J.D., Michigan Law School, B.A., Wesleyan University. Email: gchin@aya.yale.edu. Although the views expressed herein are solely those of the author, some of the facts and analysis have been drawn from reports of the ABA Task Force on Collateral Sanctions, primarily written by the author and Margaret Colgate Love, Esq.

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One of the most important recent developments in the criminal justice system is the increasing imposition of sanctions for conviction "off-budget," covertly. These sanctions, often called "collateral consequences," are not imposed explicitly as part of the sentencing process, but by legislative creation of penalties applicable by operation of law to persons convicted of particular crimes. Yet, collateral consequences may be the most significant penalties resulting from a criminal conviction.

Imagine, for example, an individual who possessed or sold a hard drug. Even in a tough-on-crime state, a first offender pleading guilty might receive a probationary sentence or a suspended term of incarceration.1 Judges and prosecutors might not insist on incarceration in such a case, even though long sentences are authorized by statute, because actors in the trenches understand that low-level drug sellers are not cartel kingpins, but more typically users supporting their habits. Engaging in a consensual drug transaction is less reprehensible than robbery, rape, or murder. Thus, the formal sentence the individual receives at the plea might be insignificant.

The real sentence comes like a ton of bricks in the form of a series of statutes denying convicted felons a variety of rights. The collateral sanctions begin with depriving them of the basic rights of membership in society: denying them the right to serve on juries or vote if they are citizens, and expelling them from the United States if they are non-citizens. The sanctions also include deprivation of a wide variety of rights, benefits, and privileges.

The ton of bricks is invisible. Because these statutes are deemed "civil" and "regulatory" the individual need not be told by the court or defense counsel at plea and sentence of the full consequences of conviction. Even if the court or Page 254 counsel wanted to explain, it would be very difficult to do so because laws imposing collateral consequences are dispersed in various codes, executive...

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