Informal Collateral Consequences

• Publication year: 2021

INFORMAL COLLATERAL CONSEQUENCES

Wayne A. Logan(fn*)

After a thirty-year punitive binge, the nation is in the process of awakening to the vast array of negative effects flowing from its draconian crime control policies.(fn1) The shift is perhaps most evident in the realm of corrections, which since the early 1980s has experienced unprecedented population growth.(fn2) Driven by a number of factors, not the least of which is the enormous human and financial cost of mass incarceration,(fn3) policy makers are now shrinking prison and jail populations(fn4) and pursuing cheaper non-brick-and-mortar social control options.(fn5)

This Essay examines another facet of the shift: increasing concern over collateral consequences, the many ostensibly non-penal sanctions attaching to convictions, which have proliferated in recent years(fn6) and impose disabilities that often dwarf in personal significance the direct consequences of conviction, such as imprisonment.(fn7) Long the focus of critical scholarly commentary,(fn8) collateral consequences recently drew the attention of the Supreme Court in its landmark decision Padilla v. Kentucky(fn9) holding that defendants have a Sixth Amendment right to be informed of a collateral consequence (in Padilla, deportation) attaching to a guilty plea.(fn10) Further testament to the national concern, the American Bar Association is now compiling a comprehensive inventory of collateral consequences imposed nationwide,(fn11) casting in bold relief the many "invisible punishments" to which convicted individuals are subject.(fn12)

The attention now being paid to collateral consequences is most assuredly welcome. Missing from the reappraisal, however, is attention to the range of informal consequences of conviction. Unlike formal collateral consequences, such as loss of public housing eligibility, deportation, occupational disqualification, or electoral disenfranchisement, these consequences do not attach by express operation of law. Rather, they are informal in origin, arising independently of specific legal authority, and concern the gamut of negative social, economic, medical, and psychological consequences of conviction. For instance, it is well known that a criminal conviction can legally disqualify an individual from an occupation and housing; yet, a conviction also has a very negative impact on individuals' job and housing prospects even absent such formal disqualifications. No less significant are the negative social and economic effects felt by third parties of convicted individuals, especially dependents, yet these effects too have gone largely unacknowledged in the post-Padilla discourse.

This Essay makes the case that attention should be directed to the array of formal and informal collateral consequences alike that are associated with criminal conviction. Part I provides an inventory of informal collateral consequences, which include the negative effects for individuals of stigma, diminished housing and economic opportunities, and ways in which conviction can adversely affect the well-being of third parties, such as family members. Part II examines the meager extent to which such consequences have figured in criminal justice doctrine and policy to date, especially relative to plea advisement and negotiation, and argues for a more robust understanding. Part III offers recommendations on how this fuller understanding can be operationalized.

The task undertaken here is as timely as it is important. While the nation's appetite for incarceration appears to be waning,(fn13) state, local, and federal criminal justice systems continue to adjudicate millions of cases annually,(fn14) and little reason exists to conclude that criminal prosecution and conviction will abate as the preferred public response to misconduct.(fn15) As criminal justice actors and policymakers have become sensitized to the adverse effects of the formal collateral consequences of conviction, so too should they take account of informal collateral consequences, which can have an equal if not greater effect on individuals' lives.

I. INFORMAL COLLATERAL CONSEQUENCES

A criminal conviction, while a culminating event in the criminal justice process, carries with it an array of negative consequences. The most concrete and well-known consequence involves the deprivation of liberty, by means of imprisonment or community supervision.(fn16) Perhaps less well known, until Padilla at least, conviction very often also triggers an array of formal collateral consequences.(fn17) This Part provides an overview of the many informal collateral consequences of conviction, arising outside formal operation of law, significantly affecting the lives of convicted individuals. These negative consequences, ranging from social stigma to diminished housing and employment opportunities, very often also have a spill-over effect on friends and family.

Social stigma has long been recognized as a defining consequence of criminal conviction.(fn18) While in the past opprobrium associated with criminal status visibly manifested in physical branding and mutilation,(fn19) over time, societies, including early America, adopted a more forgiving outlook. As the New York Court of Appeals put it in 1936, persons convicted of crimes are "not outcasts, nor to be treated as such."(fn20)

In recent decades, however, this forgiving sentiment has been replaced by a far harsher view. Today, convict status serves as a perpetual badge of infamy, even serving to impugn reputation beyond the grave.(fn21) One data point highlighting this shift is found in the significantly decreased application of the executive pardon authority.(fn22) Another is the current nationwide network of sex offender registration and community notification laws, which took root in the 1990s.(fn23) The laws require the assemblage of conviction and personal identifying information on eligible individuals, and make the information publicly available by way of the internet and other means, often for registrants' lifetimes.(fn24) Fairly capturing modern sentiment, Chief Justice Rehnquist posited in the 2002 oral argument in Smith v. Doe, involving a constitutional challenge to registration and community notification, that targeted individuals "deserve[] stigmatization."(fn25)

Stigma can affect individual well-being in a variety of ways. Research dating back to the 1960s, for instance, highlights the significant social and psychological difficulties associated with criminal stigma.(fn26) More recent research makes clear that stigma can have a self-fulfilling criminogenic effect, predisposing individuals to become the deviants they were branded to be.(fn27) It is also not uncommon for convicts to be singled out for death, beatings, arson, and vandalism by fellow community members.(fn28)

A criminal record can also have profound economic impact, serving in Professor James Jacobs' words as a "negative curriculum vitae" for individuals.(fn29) Criminal records, now more readily available than ever before,(fn30) have been shown to significantly diminish near and long-term economic well-being.(fn31) A criminal conviction often serves as a de facto informal basis for job denial,(fn32) augmenting occupational bars triggered by formal operation of law.(fn33) More subtly, conviction can function to disrupt or sever social ties that can be key to finding employment.(fn34) And even when able to secure a job, convicted individuals on average enjoy much lower earning capacity than individuals without a conviction.(fn35) Dashed or limited employment prospects, research has also shown, in turn fuel depression and lessen perceived self-worth, further impairing employment prospects.(fn36)

Housing opportunities are also negatively affected by convict status. While statutes and regulations impose formal legal limits on public housing opportunities,(fn37) landlords in the private sector often informally use criminal history as a screening device.(fn38) The fact of criminal conviction, ex-convicts report, serves as the single greatest impediment to securing housing.(fn39) In turn, homelessness itself, in addition to making such matters as job searches far more difficult, increases the likelihood of subsequent arrest and conviction.(fn40)

Finally, conviction affects far more than the convicted individual. Family and friends endure secondary stigma and ostracism as a result of their connection to convicts,(fn41) and it is not uncommon for them to experience spill-over violence and disdain.(fn42) It should also come as no surprise that the limited housing opportunities of convicts negatively affect their families and dependents;(fn43) so too do employment barriers,(fn44) denied access to federal government loans for education and training(fn45) and eligibility for food stamps.(fn46) And, when conviction results in incarceration, others very often feel its negative effects. Imprisonment significantly increases risk of sexual(fn47) and physical assault(fn48) and exposure to serious medical problems (such as HIV, tuberculosis, and hepatitis).(fn49) It also adversely affects mental health,(fn50) creating significant difficulties for individuals that impair their ability to function when released.(fn51) These health-related outcomes can have a direct impact on family members, exacerbating financial hardships experienced,(fn52) with the situation being made worse when the inmate is a sole caregiver.(fn53)

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