Significant entanglements: a framework for the civil consequences of criminal convictions.

• Author: Shanahan, Colleen F.

A significant and growing portion of the U.S. population is or has recently been in prison. Nearly all of these individuals will ,face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. The phenomenon of civil consequences of conviction presents an overlap of civil and criminal law that poses difficult questions about how the theory behind this overlap translates to practical application.

Padilla v. Kentucky, heralded by some as a watershed and treated by others as an anomaly, is a first step in matching the law to the practical reality of the civil consequences of criminal convictions. This Article examines Padilla and the context in which it was decided and suggests that, although the dissenters in Padilla may be correct that the opinion will be difficult to apply in a coherent way, the decision has taken the first step towards a new legal doctrine of civil consequences. The Supreme Court's recent decision in Turner v. Rogers underscores that the Court's approach in these two cases creates an opportunity to consider this overlap of civil and criminal law and to create a more realistic, consistent, and just doctrine of civil consequences of criminal convictions.

This Article begins the process of defining this doctrine by suggesting that instead of inquiring into whether consequences are direct or collateral as courts have in the past, courts should inquire into whether these civil consequences are "significant entanglements" of civil and criminal law. First, courts should analyze whether the civil consequence is significant, in both an objective and subjective sense. Second, courts should examine whether the consequence is entangled with the criminal process. Where significant entanglements exist, corresponding protections should follow. The Article goes on to suggest that the significant entanglement framework can be used to analyze whether Sixth Amendment protections should apply to a particular civil consequence at a particular stage of the criminal process. Further, the significant entanglement framework can be applied outside the Sixth Amendment context to understand the other constitutional protections that may be applied by courts as a result of civil consequences of criminal convictions. Thus, the significant entanglement framework is the next step in developing a new doctrine for the protections that apply to civil consequences of criminal convictions and for understanding this particular intersection of civil and criminal law.

1. INTRODUCTION II. CIVIL CONSEQUENCES OF CONVICTION, PADILLA, AND TURNER A. What Is a Civil Consequence of Conviction? B. Civil Consequences of Conviction in the Courts Before Padilla C. The Padilla Decision 1. Replacing the Direct-Collateral Distinction 2. Predicting Broad Application 3. Application Beyond Deportation D. The Turner Decision III. THE NEW CIVIL CONSEQUENCES TEST A. The Direct-Collateral Distinction Is Gone B. Significance to Defendant C. Entanglement of Civil and Criminal Law D. If There Is a Significant Entanglement, Protections Apply IV. APPLYING THE SIGNIFICANT ENTANGLEMENT FRAMEWORK . A. Sixth Amendment Protection for Consequences of a Guilty Plea Other Than Deportation 1. Additional Imprisonment 2. Other Deprivations of Liberty 3. Financial Loss 4. Other Consequences B. Transferring the Significant Entanglement Framework to Civil Consequences of Conviction in Other Contexts 1. Right to Counsel at Other Critical Stages 2. Significant Entanglements Outside the Sixth Amendment V. CONCLUSION: A GENERAL SIGNIFICANT ENTANGLEMENT INQUIRY EMERGES I. INTRODUCTION

   The United States is facing the results of decades of being "tough on crime": millions of people who are leaving jail--many on probation and parole--are attempting to reenter society. (1) This influx of individuals is a reentry crisis that potentially threatens our social and economic stability and consigns millions of Americans to a lifetime of poverty. (2) A key part of this reentry crisis is the civil consequences that state and federal legislatures have imposed on those convicted of a crime. (3) Remarkably, many of these consequences are unknown to defendants, defense attorneys, prosecutors, and judges during plea and sentencing proceedings. (4) The reality of this system is that individuals who have been convicted, served a sentence, and are attempting to reintegrate into society become aware of these consequences only when they are directly confronted by them--sometimes well after their interaction with the criminal justice system has ended and outside of any court proceeding. (5) Yet, courts for years found no obligation--for a court or for counsel--to advise defendants of the consequences they would face after serving a sentence. (6) Rather, courts relied on the theoretical division of civil and criminal law to create a distinction that labels these consequences "collateral" and isolates them from procedural protections afforded the "direct" consequences of conviction such as a jail sentence. (7) It was into this reality that the Supreme Court's decision in Padilla v. Kentucky stepped. (8)

   For the first time, the Court in Padilla considered the practical functioning of the civil consequences of criminal convictions and rejected the distinction between direct and collateral consequences as a meaningful framework for analyzing the rights of defendants. (9) In Padilla, the defendant, a legally resident alien, pied guilty to a drug charge that made him automatically deportable. (10) Before Mr. Padilla pled guilty, his attorney incorrectly advised him that he did not have to worry about being deported. (11) As a result, Mr. Padilla raised a Sixth Amendment claim for ineffective assistance of counsel. (12) The cases that preceded Padilla--including the Kentucky decision Mr. Padilla appealed--had found that immigration consequences were collateral and thus unprotected by the Sixth Amendment. (13) In its reversal, the Supreme Court found that the immigration consequences to which Mr. Padilla was exposed were due Sixth Amendment protections. (14) The Court then applied the two-prong test for ineffective assistance of counsel, (15) found that Mr. Padilla had shown deficient performance by his attorney, and remanded for a consideration of whether prejudice had also been shown. (16)

   In reaching its conclusion in the context of deportation resulting from a guilty plea, the Court rejected the direct-collateral distinction as a meaningful way of deciding whether Sixth Amendment protections apply to a particular civil consequence of conviction, and instead, chose to evaluate the consequence on its own terms. (17) Through this fact-specific analysis, the Court found that Sixth Amendment protections apply to the consequence of deportation. (18) In particular, the Court focused on the severity of deportation and examined the nature of the consequence and the criminal process to determine that a right to effective counsel existed. (19) The Court's recognition of the lack of clarity and usefulness of the direct-collateral distinction, and its willingness to analyze the characteristics of a specific consequence rather than simply labeling it direct or collateral, civil or criminal, presents an opportunity. (20) This opportunity is to develop a coherent framework for analyzing the civil consequences of criminal convictions that reflects how these consequences actually operate for millions of Americans. In short, it is an opportunity to provide access to justice that is currently blocked for many.

   Padilla is not the only entry point for developing a new framework of civil consequences of conviction. Indeed, the broadest expression of the issue confronted in Padilla is the distinction between civil and criminal law. (21) Although the theoretical distinction between civil and criminal law, the broad practical implications of that distinction, the evolution of that distinction across our legal system, and how the distinction serves (or does not serve) society are well beyond the reach of this Article, the civil consequences of conviction are one application through which to examine the fluidity between civil and criminal law.

   Padilla poses this issue in the context of the fight to counsel where deportation is a possible consequence of conviction, but courts are grappling with the fight to counsel in multiple contexts. In the criminal process, the Sixth Amendment places the fight to counsel at issue, and the protection has heightened importance because the adverse party is always the government. (22) Padilla directly applies to those situations where the starting point is a criminal prosecution and the result is the imposition of a consequence that exists in civil law, specifically, of a consequence not created by criminal statute or regulation but by civil statute or regulation. But the fight to counsel is also at issue in the civil process, where case law continues to evolve regarding how due process rights apply. (23) This related evolution that uses civil law as its entry point reveals the blurred distinction between civil and criminal law, and suggests that Padilla's approach of intensive factual analysis in the criminal context also translates to protections in civil proceedings. The most recent development in this evolution is the decision in Turner v. Rogers. (24)

   The Supreme Court's decision in Turner underscores the staying power of Padilla's analysis. Turner considered the fight to counsel in a civil contempt proceeding and concluded that a defendant in such a civil...