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What is a “collateral” consequence?• Also called “civil disability,” “invisible
punishment,” “civil consequence,” “silent sentence”
• Formal (legally-imposed) vs. informal (reputational & economic)
• Collateral sanction vs. discretionary disqualification
Historical Overview “Infamy” in the Classical World
Consequences of Felony Conviction at Common Law (“Incidents of Attainder”)
Early America & Constitutional Limits
U.S. Const., Art. III, § 3, cl. 2
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.
Historical Overview “Infamy” in the Classical World
Consequences of Felony Conviction at Common Law (“Incidents of Attainder”)
Early America & Constitutional Limits
Early to Mid-20th Century
1980s and Beyond
Changes in America’s Custodial Population: 1980-2008
1982
1984
1986
1988
1990
1992
1994
1996
1998
2000
2002
2004
2006
2008
0
500000
1000000
1500000
2000000
2500000
JailPrisonTotal
Bureau of Justice Statistics data
Types of Collateral Consequenceso Civil and Political Rights o Community and Military Serviceo Employment and Occupational Licensure o Housingo Public Benefitso Debarment from Federal Program Participation o Family-related rights o Firearms o Sex offender consequenceso Immigrationo International Travel Restrictions
Legal Structureo Constitutional Limits
o Limitations on Access to and Use of Criminal Records
o Regulation of Employment and Occupational Licensing
Restoration of Rights & Statuso Automatic restoration of rights
o Executive Pardon
o Administrative Certificates of Good Conduct
o Judicial Relief Mechanisms
o Deferred Adjudication and other Avoidance Mechanisms
Advocacy in the Criminal Caseo Charging Decisionso The Client Interviewo Plea Bargaining o Counseling the Cliento Trial or the Guilty Pleao Sentencingo Training about Collateral
Consequences
Future of Legal Reformo ABA Criminal Justice Standards
o National Conference of Commissioners on Uniform State Law’s Uniform Collateral Consequences of Conviction Act
o American Law Institute’s Model Penal Code: Sentencing revision
o State law reform