The new civil death: rethinking punishment in the era of mass conviction.

• Author: Chin, Gabriel J.

INTRODUCTION I. CIVIL DEATH IN THE UNITED STATES A. Civil Death and Its Decline Before 1980 B. The New Civil Death in the Regulatory State C. Mass Conviction, Not (Just) Mass Incarceration D. Collateral Consequences as Unrestrained by the Constitution 1. Individual Collateral Consequences as Regulatory Measures 2. Innovative Collateral Consequences 3. No Right to Notice at Plea or Sentence II. THE CONSTITUTION AND THE NEW CWIL DEATH A. Civil Death and Collateral Consequences as Punishment B. Collateral Consequences and Constitutional Criminal Procedure III. TOWARD ACCOMMODATING THE NEW CIVIL DEATH INTO CRIMINAL PROCEDURE A. Ex Post Facto B. Notice C. Consideration in Sentencing D. Legislative Reform CONCLUSION INTRODUCTION

Borrowing from its English forebears, the United States once had a form of punishment called civil death. Civil death extinguished most civil rights of a person convicted of a crime and largely put that person outside the law's protection. Civil death as an institution faded away in the middle of the twentieth century. Policymakers recognized that almost all convicted persons eventually rejoin society, and therefore, it was wise and fair to allow them to participate in society with some measure of equality.

This Article proposes that civil death has surreptitiously reemerged. It no longer exists under that name, but effectually a new civil death is meted out to persons convicted of crimes in the form of a substantial and permanent change in legal status, operationalized by a network of collateral consequences. A person convicted of a crime, whether misdemeanor or felony, (1) may be subject to disenfranchisement (2) (or deportation if a noncitizen (3)), criminal registration and community notification requirements, (4) and the ineligibility to live, work, or be present in a particular location. (5) Some are not allowed to live outside of civil confinement at all. (6) In addition, the person may be subject to occupational debarment (7) or ineligibility to establish or maintain family relations. (8) While the entire array of collateral consequences may not apply to any given person, the State is always able to add new disabilities or to extend existing limitations. As a practical matter, every criminal sentence contains the following unwritten term:

The law regards you as having a "shattered character." (9) Therefore, in addition to any incarceration or fine, you are subject to legal restrictions and limitations on your civil rights, conduct, employment, residence, and relationships. For the rest of your life, the United States and any State or locality where you travel or reside may impose, at any time, additional restrictions and limitations they deem warranted. Their power to do so is limited only by their reasonable discretion. They may also require you to pay the expense of these restrictions and limitations. For many people convicted of crimes, the most severe and long-lasting effect of conviction is not imprisonment or fine. Rather, it is being subjected to collateral consequences involving the actual or potential loss of civil rights, parental rights, public benefits, and employment opportunities.

The magnitude of the problem is greater than ever. The commonly used term "mass incarceration" implies that the most typical tool of the criminal justice system is imprisonment. Indeed, there are two million people in American prisons and jails, a huge number, but one which is dwarfed by the six-and-a-half million or so on probation or parole (10) and the tens of millions in free society with criminal records. (11) The vast majority of people who have been convicted of crimes are not currently in prison. However, because of their criminal records, they remain subject to governmental regulation of various aspects of their lives and concomitant imposition of benefits and burdens. People convicted of crimes are not subject to just one collateral consequence, or even a handful. Instead, hundreds and sometimes thousands of such consequences apply under federal and state constitutional provisions, statutes, administrative regulations, and ordinances. (12) As one Ohio court recognized in 1848, "[D]isabilities ... imposed upon the convict" are "part of the punishment, and in many cases the most important part." (13)

As practically important as collateral consequences are, in a line of cases examining individual restrictions, the Court has held they are subject to extremely limited constitutional regulation. (14) Because collateral consequences are deemed to be something other than criminal sanctions, they can generally be applied without notice from the court or defense counsel at the time of a guilty plea. (15) Moreover, new ones can be imposed retroactively after plea bargains have been made and satisfied. (16) sentences fully

There is a little-noticed but significant countertradition. In Weems v. United States (17) and Trop v. Dulles, (18) the Supreme Court found punishments cruel and unusual under the Eighth Amendment in part because of burdensome and systematic collateral consequences. (19) In addition, alongside cases holding that particular collateral consequences were not punishment, other Supreme Court decisions have shaped the right to jury trial, right to counsel, and other aspects of criminal procedure in light of the fact that collateral consequences are at stake in criminal judgments.

The Court's cases, then, simultaneously suggest that individual collateral consequences are not punishment, but that systematic loss of legal status in the form of actual or potential subjection to an interlocking system of collateral consequences is punishment. This paradox can be reconciled by understanding the degradation of a convict's legal status to be a unitary punishment, the new civil death.

Exclusively at issue in this Article are legal consequences imposed by state action, not social stigma or status in the sense of reputation or esteem. To illustrate, that some may choose not to hire or marry a person with a criminal record is not a collateral consequence of conviction or a part of civil death as used here; however, legal prohibitions on hiring or marriage of convicted persons would be. (20) In addition, the wisdom, fairness, efficiency, and justice of the new civil death are important topics, but ones beyond the scope of this Article. (21) Instead, the primary goal is to show that civil death both exists and is constitutionally significant.

This Article proceeds in three parts. Part I describes the historical punishment of civil death, its decline, and its revival in the form of a system of collateral consequences imposed by positive law based on criminal conviction. Part I also describes the lenient judicial regulation of these restrictions, which has generally found individual collateral consequences to be "civil" and "regulatory" and thus not subject to constitutional limits applicable to criminal punishment.

Part II proposes that civil death should be constitutionally cognizable by showing that the systematic loss of legal status, subjecting an individual to numerous collateral consequences, has historically been treated as criminal punishment. In addition, the Supreme Court has frequently recognized the role of criminal convictions in imposing collateral consequences and shaped criminal procedure to account for this reality.

Part III proposes a reconciliation of the Court's holdings, showing that while the Court has held that individual collateral consequences are not punishment, it has nevertheless held that systematic loss of legal status is. It also describes some of the implications of under-standing a civil death loss of legal status to be an inherent element of criminal, not civil, punishment, or at least that such a loss ought to be a subject of constitutional concern.

1. Civil DEATH IN THE UNITED STATES

   1. Civil Death and Its Decline Before 1980

      At common law, there was an English and American (22) institution of "civil death" as a punishment associated with conviction (or "attainder") for treason or felony. (23) As the New York Court of Appeals explained in 1888, under the English common law, a person sentenced for felony was

      placed in a state of attainder. There were three principal incidents consequent upon an attainder for treason or felony,--forfeiture, corruption of blood, and an extinction of civil rights, more or less complete, which was denominated civil death. Forfeiture was a part of the punishment of the crime ... by which the goods and chattels, lands and tenements of the attainted felon were forfeited to the king.... The blood of the attainted person was deemed to be corrupt, so that neither could he transmit his estate to his heirs, nor could they take by descent from the ancestor.... The incident of civil death attended every attainder of treason or felony, whereby, in the language of Lord Coke, the attainted person "is disabled to bring any action, for he is extra legem positus, and is accounted in law civiliter mortuus," or, as stated by Chitty, "he is disqualified from being a witness, can bring no action, nor perform any legal function; he is in short regarded as dead in law." (24) Loss of status as a form of punishment also existed in other ancient legal regimes. (25)

      The consequences of attainder were on the minds of our Constitution's drafters. The Constitution provides, "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." (26) The delegates declined to adopt forfeiture and corruption of blood beyond a person's lifetime. (27) Civil death, though punishment, was not categorically prohibited.

      In England, civil death was a common law punishment, but in the United States, it existed only if authorized by statute. (28) It was far from universal; only eighteen states employed it as of 1937, (29) although states...