THIRD-CLASS CITIZENSHIP: THE ESCALATING LEGAL CONSEQUENCES OF COMMITTING A 'VIOLENT' CRIME.

• Author: O'hear, Michael

Table of Contents Introduction 167 I. What Makes a Crime "Violent"? 170 A. Qualitative Statutory Definitions 170 B. Laundry List Definitions 171 1. List Content 172 2. The Federalism Problem 177 C. Hybrid Statutes 178 D. Fault Lines 179 II. Other Definitional Dimensions of "Violent Crime" 179 A. Offense Severity: Felony Versus Misdemeanor 180 B. Offender Age: Adult Convictions Versus Juvenile Adjudications 181 C. Consequences in the Absence of Convictions 183 D. Age of Convictions 184 III. Legal Consequences of a "Violent Crime" 185 A. Pre-conviction CVCs 189 1. Pretrial Release 189 2. Pretrial Diversion 191 3. Other Preconviction CVCs 194 B. Sentencing-Related CVCs 195 1. Alternatives to Conventional Incarceration 195 2. Sentence Enhancements 198 3. Other Effects on the Sentence 202 C. Corrections-Related CVCs 203 1. Release from Prison 203 2. Community Supervision 207 3. Other Corrections CVCs 208 D. CVCs Specific to Juvenile Offenders 209 E. Consequences Outside the Criminal-Justice System 212 1. Employment-Related CVCs 212 2. CVCs Relating to Privacy and Stigma 217 3. Parenting-Related CVCs 220 4. Possession of Firearms and Similar Items 221 5. Other Collateral Consequences 222 F. Synthesis 223 IV. Concerns with CVCs 227 A. Fair Notice 228 B. Proportionality 229 C. Efficacy 231 Conclusion: Next Steps 233 INTRODUCTION

No federal statute has proven more of a jurisprudential quagmire for the United States Supreme Court in recent years than the Armed Career Criminal Act (ACCA). At first blush, the ACCA's basic structure seems straightforward enough: any person with three or more prior convictions for a violent felony or serious drug offense who is found in possession of a firearm is subject to a mandatory minimum prison term of fifteen years. But the statute's implementation has been bedeviled by a surprisingly complex definitional problem: what counts as a "violent felony"? Time and again, the Supreme Court has returned to this problem in order to resolve circuit splits. For instance, in 2007, the Court decided that attempted burglary is a violent felony. By contrast, in 2008, the Court ruled that the crime of driving under the influence does not count as violent. The very next year, the Court similarly held that the offense of failing to report for penal confinement is not violent. In 2011, though, the Court decided that vehicular flight from a law enforcement officer is violent. Then, in the 2015 case of Johnson v. United States, in frustration with the seemingly endless ACCA litigation bubbling up from the lower courts, the Court declared a key portion of the statutory definition of "violent felony" to be unconstitutionally vague. The majority opinion noted the "Court's repeated attempts and repeated failures to craft a principled and objective standard out of the [definitional provision.]" Yet, even Johnson failed to stem the tide of ACCA cases. In April 2018, the Court granted certiorari in Stokeling v. United States in order to decide whether the crime of robbery, as defined in Florida law, counts as violent.

While notable in its own right, the growing body of ACCA cases also highlights a more generalized and increasingly important feature of American criminal law: convictions for "violent" crimes--however the term is defined--carry a unique weight relative to other convictions. For instance, consider the ACCA in its legal context. Under federal law, a conviction of any felony disqualifies a person from possessing a firearm, but the penalty for violating this restriction is normally no more than ten years in prison, with no mandatory minimum. However, if that felony is classified as "violent," and if there are two others so classified on the defendant's record, then, by virtue of the ACCA, the penalty balloons to a minimum of fifteen years and a maximum of life.

Similarly, though with far less national visibility, state criminal codes are full of their own sentence-enhancement provisions that are triggered by prior convictions for "violence." However, such recidivism statutes only begin to scratch the surface of the special significance of a conviction (or even just a charge) for a violent crime. Depending on the state, violent offenders may confront distinct procedural rules, special sentencing provisions, disqualification from a wide range of jobs that are otherwise open to individuals with felony convictions, disqualification from rehabilitative treatment programs, and disqualification from opportunities to earn an accelerated release from prison. By way of shorthand, I will refer to these various legal consequences of a violence charge or conviction collectively as categorical violence consequences, or "CVCs."

As is well known, conviction of a crime--especially if it is a felony--results in a sharp, multidimensional loss of legal status such that individuals with convictions seem reduced to a sort of second-class citizenship. Increasingly, though, the growing network of CVCs seem to impose on violent offenders an even deeper loss of status than that which follows from other convictions--a veritable third-class citizenship.

Constructed quietly in an ad hoc, piecemeal fashion over the course of a generation, this third-class citizenship has received no sustained attention from legal scholars. This Article thus constitutes a first effort to systematically identify and assess the significance of the growing network of CVCs.

The aims here are primarily empirical, not normative, although several points of concern are noted along the way. A comprehensive critique and reform proposal must await another day, but the present work lays a necessary foundation by surveying and drawing attention to current legal arrangements. Indeed, what is problematic about these arrangements cannot be fully perceived without an appreciation of the number, scope, and mutually reinforcing character of CVCs. For instance, viewed in isolation, a particular employment disqualification for individuals who have a violentcrime conviction might seem reasonable enough, but when seen in relation to a web of additional employment disqualifications, long mandatory minimum prison terms, exclusions from potentially beneficial treatment programs, and stigmatizing offender registration requirements, the same CVC may be more properly viewed as one component of a system of laws that collectively serve to hold a large group of former offenders in a permanently degraded social status.

Although unique in its focus, this Article complements and draws insight from four substantial, overlapping bodies of existing scholarship. First, numerous authors have critically assessed recidivism laws, which require longer sentences for repeat offenders, as in a "three strikes and you are out" statute. Many, but not all, recidivism laws particularly target repeat offenders who have been convicted of violent crimes. Such laws are a small, but significant, part of the broader CVC phenomenon considered here. Second, a growing body of research catalogs and critiques the so-called

"collateral" consequences of criminal convictions. These are adverse legal consequences, such as categorical bars to working in certain fields or obtaining certain kinds of public benefits, that follow from a conviction, but that are not formally part of the sentence. Many collateral consequences apply broadly to any felony conviction, but some are expressly limited to convictions for violent crimes. The latter collateral consequences constitute another significant part of the CVC phenomenon. Third, many scholars have evaluated some of the special legal consequences that can result from a conviction for a sexual offense, such as registration requirements, residence restrictions, and indefinite civil commitment. Sexual offenders face a set of consequences that are, if anything, even harsher and more numerous than those facing violent offenders--perhaps establishing a fourth-class citizenship for them. Consequences that are specific to sexual crimes lie beyond the scope of this Article, but it should be noted that some of the criticisms that have been raised about these consequences--e.g., that social isolation of offenders may increase rather than diminish their recidivism risk--might also be applicable to some CVCs. Fourth, and finally, another body of research assesses the impact of "justice reinvestment" reforms. Adopted in more than two dozen states since 2004, these reforms have been premised on the belief that public-safety outcomes could be improved if more offenders were diverted from costly prison cells and the resulting savings "reinvested" in evidence-based rehabilitative treatment programs and other crime-prevention initiatives. Despite some notable successes, the justice reinvestment movement has thus far fallen well short of expectations in reducing incarceration. One important weakness has been the tendency for reforms to draw sharp, categorical distinctions between violent and nonviolent offenders, excluding the former from the new divert-and-treat paradigm and thus contributing to the broader network of CVCs.

The remainder of the Article is organized as follows. Part I canvasses the wide range of statutory definitions of "violent crime," "violent offense," and "violent felony" that have been adopted by different states for CVC purposes. Importantly, many such definitions sweep in large numbers of offenses that lie outside core understandings of what constitutes violence. Part II highlights other ways in which CVCs can have an unexpectedly wide reach. For instance, depending on the state, CVCs might be triggered by a misdemeanor conviction, a juvenile adjudication, or an old conviction of an individual who has been crime-free for many years or even decades. Part III, the heart of the article, provides a thorough, fifty-state overview of statutory CVCs. The consequences are divided into five major categories: pre-conviction, sentencing, corrections, juvenile...