Volume 2015, No. 2

Symposium Issue — Beyond the Sentence: Collateral Consequences of Conviction


Criminal Justice Reform: The Present Moment

Lynn Adelman

I thank the editors of the Wisconsin Law Review for the opportunity to participate in a symposium on the collateral consequences of criminal convictions. By collateral consequences, I refer both to the formal consequences of conviction, such as deportation, loss of public housing eligibility, electoral disenfranchisement, and occupational disqualification, which attach by operation of law, and also to the many consequences which are informal in origin, such as the negative social, economic, medical, and psychological consequences that fall both on the offender and on others, primarily dependents. I note also that, in addition to the consequences incurred by offenders and their families, incarceration is producing deep social transformations in the communities of those incarcerated, communities that are disproportionately poor, urban, and African American.

Determining how we can eliminate some of these consequences or lessen their burden is an enormously important subject that scholars, judges, and practitioners are only beginning to explore. From my standpoint, that of a judge who adjudicates guilt and imposes sentences on an almost daily basis, the topic of the symposium is particularly significant.


Juvenile Sentencing Post-Miller: Preventive and Corrective Measures

Cara H. Drinan

At the end of the twentieth century, the United States was an international outlier in the severity of its juvenile sentencing practices despite having invented the juvenile court model one century earlier. Today, juvenile sentencing reform is underway, particularly in the wake of recent Supreme Court decisions that have cabined the states’ capacity to impose extreme sentences on juveniles. In this Article, I propose two additional reform measures that would help to rationalize the sentences imposed on children in the American criminal justice system—one on the front end of the system and one on the back end.

In particular, on the front end, in states where life without parole (LWOP) is still a lawful sentence for a juvenile homicide defendant, courts should ensure that children facing that sentence are afforded procedural safeguards akin to those recommended for adults who face the death penalty. On the back end, executive actors should install juvenile-specific clemency boards—what I have called Miller Commissions—to give children serving lengthy sentences a second look.


Database Infamia: Exit from the Sex Offender Registries

Wayne A. Logan

For better or worse, it is now widely accepted that we live in an “information age,” enabled by powerful technologies that collect, store, and analyze personal data. Businesses track purchases and Internet activity for commercial purposes, law enforcement agencies maintain expansive criminal record and biometric information databases, and the federal government makes regular use of “terrorist watch” and “no fly” lists. The databases, which have prompted a fruitful ongoing national discussion on the parameters of informational privacy, share a common feature: they usually are not shared with the public. This Article considers another kind of database, one that is decidedly more public in nature: sex offender registries.

Today, as a result of laws in effect nationwide, identifying information on almost eight hundred thousand convicted sex offenders is collected and posted on government-operated Internet websites. Colloquially known as Megan’s Laws—named after a seven-year-old girl in New Jersey who in 1994 was sexually assaulted and murdered by a recidivist sex offender who lived nearby—the laws require that targeted individuals provide an array of data to law enforcement, including photos; home, school, and work addresses; vehicle identification information; e-mail or Internet identifiers; and descriptions of identifying body marks, such as scars and tattoos. Targeted individuals must thereafter verify the accuracy of information, on at least an annual basis (for some, every 90 days), and update it in the event of any changes (e.g., changes in residence or workplace or the growth of a beard), facing possible felony prosecution if they fail to do so.


Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code

Margaret Colgate Love

The debased legal status that results from a criminal conviction makes possible a regime of restrictions and exclusions that feels like punishment to those who are subject to it and looks like punishment to the community. Policy makers are beginning to understand that the goal of reintegrating criminal offenders into society is not well served by a legal system that makes them permanently ineligible for many of its benefits and opportunities and effectively marks them as social outcasts. Because courts have failed to address issues of severity and proportionality raised by punitive mandatory collateral penalties, and because legislatures have been unwilling to dial them back in any meaningful fashion, reformers have turned to the sentencing system to restore collateral consequences to an appropriate regulatory role.

One such reform proposal is the American Law Institute’s Model Penal Code: Sentencing (MPC), which integrates collateral consequences into a sentencing system that gives the court rather than the legislature responsibility for shaping and managing criminal punishment in particular cases. Just as the court decides what sentence it will impose within a statutory range, the court also decides which mandatory collateral penalties will apply and for how long. This gives sentencing courts new tools to further the rehabilitative goals of sentencing, and at the same time it enables them to avert issues of proportionality and procedural fairness that lurk in any categorical scheme. In effect, the MPC scheme converts collateral consequences from senseless punishment to reasonable case-specific regulation.


Notice(ing) Ex-Offenders: A Case Study of the Manifest Injustice of Passively Violating a “Felon-in-Possession” Statute

S. David Mitchell

Willie L. Williams went to sleep one evening in compliance with the law and arose the next morning once more a felon. Well, not exactly. He was not a felon that morning because he had yet to be charged and convicted of violating Missouri’s felon-in-possession statute that barred ex-felons from possessing a weapon. But for Williams, the change in the law would soon make him a felon once more. Missouri’s amended felon-in-possession of a firearm statute prohibits all ex-felons from possessing a weapon of any kind. Williams was an ex-felon, and he owned a rifle. Therefore, he was clearly in violation of the statute. He was not only in jeopardy of being deprived of his liberty, but he was also at risk of losing a host of rights that he had regained, most notably the right to vote. Williams would be once again cast as a noncitizen. And yet, nothing is ever that clear.

[. . .] This Article proceeds as follows. Part I discusses Missouri’s current and prior felon-in-possession statutes. Part II presents Willie L. Williams’s background and discusses when notice is provided in other legal contexts and why it should have been provided in this instance. Part III presents a policy recommendation to address such issues in the future.


Expunging America’s Rap Sheet in the Information Age

Jenny Roberts

“Getting a Second Chance After a Criminal Record.” “Want to Expunge Your Record?” “South Carolina Debating If It Should be Easier to Expunge a Brush with the Law.” “Making a Fresh Start in Little Village.” These are only some of the headlines of newspaper articles and television segments that came up in a Google Alert for “expungement” during one typical week in late 2014. The same week, in Cincinnati, Ohio, city council members backed expungement of low-level marijuana convictions. Expungement news that week was not limited to the United States. In Jamaica, the legislature passed a bill that allows expungement of some convictions records, including minor marijuana offenses, calling it “the beginning of the end for persecution.”

There is good reason for all the media attention. Nationally, a number of states are now updating or considering new and broader sealing and expungement laws. Advocacy organizations and think tanks are calling for sealing and expungement of at least some criminal records. Public defender and civil legal aid offices are increasingly offering to help clients expunge or seal records, and there are reentry clinics handling criminal records matters and law school clinics and courses that cover expungement. Recent expungement summits around the nation draw high attendance. Researchers are studying the positive effects of sealing and expungement on individuals’ ability to gain employment and housing.


A Sociocognitive Approach to Studying the Effects of Incarceration

Jason Schnittker & Michael Massoglia

Incarceration has pervasive negative effects on life outcomes, including employment, but explanations for these effects (apart from those based on selection) tend to be divided between those that focus on the lingering pains of imprisonment and those that focus on discrimination. In this Article, we attempt to provide a bridge between these two foci by situating both within a larger sociocognitive context. This involves reviewing the contemporary literature on prisonization with an eye toward identifying corollaries in the social-psychological literature. It also involves situating research on the “mark” of a criminal record within the larger social-psychological literature on stigma.

Recasting the incarceration literature using sociocognitive terms and concepts sheds some additional light. In particular, some of the self-defeating behavior of former inmates, including disengagement, can be seen as reflecting the psychological dilemmas former inmates face after release. Furthermore, a sociocognitive perspective sheds light on some of the unique features of incarceration stigma. Although coping with stigma is difficult for all stigmatized persons, the situation of former inmates may be especially difficult given a confluence of factors, including some atypical features of incarceration stigma, institutional pressures that amplify that stigma, and the lingering psychological pains of imprisonment, which mitigate effective coping.


Criminal Histories in Public Housing

Lahny R. Silva

As America attempts to remedy the harsh sentencing policies enacted during the “War on Drugs” in the 1980s and 1990s, hundreds of thousands of ex-offenders are being released from jails and prisons annually. Upon release, these individuals will confront legal obstacles in their quest to reenter society. Based solely on the fact of prior criminal conviction, new releasees will inevitably confront statutory “civil” penalties severely limiting their most basic opportunities for employment, education, and housing. Known as “collateral consequences,” these penalties relegate ex-offenders to the status of second-class citizens by systematically depriving them of individual rights and privileges. Professor Gabriel “Jack” Chin has classified this socioeconomic phenomenon as the “New Civil Death.” This Article focuses on one cluster of collateral consequences that deprive those who have paid their debt to society of a basic necessity—affordable housing.

[. . .] This Article adds to the existing reentry scholarship and advocacy by identifying and examining issues in the administration of federal public housing policy and inequities inherent in the current system. More specifically, this Article explores federal public housing policies regarding the use of criminal history information in determining the eligibility of applicants seeking admission to federal public housing programming. This criminal history information includes not only criminal convictions but also arrests and prior drug use. I argue that in light of recent federal reentry initiatives, federal housing law must be substantially reformed.


Realizing the Promise of Padilla Through a Law School/Public Defender Collaboration

Stacy Taeuber

The Supreme Court’s 2010 decision in Padilla v. Kentucky thrust the issue of the immigration consequences of crime into the legal limelight. The Court held that the Sixth Amendment’s guarantee of effective assistance of counsel requires defense counsel to provide their noncitizen clients with specific advice regarding immigration consequences. Deportation, the Court found, is a uniquely severe penalty that is “intimately related to the criminal process,” and that, for many noncitizens, is the most important potential consequence of the criminal process. Suddenly, defense attorneys found themselvesdeputized as the first line of defense against deportation for their noncitizen clients. By “plea bargain[ing] creatively,” the Padilla Court explained, counsel may be able “to craft a conviction and sentence that reduce the likelihood of deportation.” Widely hailed as a landmark decision—a “Gideon for immigrants”
Padilla’s promise has proved elusive in practice, particularly in the realm of indigent defense. Implementing Padilla has proven a daunting challenge for defender offices across the country given the complexity of the law, the lack of lawyers with the appropriate expertise, and the already stretched financial and personnel resources of indigent defense offices.

[. . .] In this Article, I describe a hypothetical collaboration between a law school immigration clinic and a local public defender office for the purpose of providing noncitizen defendants with a more holistic service. The collaboration will facilitate the provision of complete and accurate advice on immigration consequences and support plea bargaining efforts in light of those consequences. Once the criminal case is complete, the law school clinic will provide representation in any resulting immigration proceedings. The clinic will provide students a unique pedagogical experience that encompasses both fields of law. As those students graduate and join the workforce as criminal defense or immigration lawyers, they will begin to fill the critical gap in legal expertise in the overlap between these two fields. While this example is specific to immigration consequences, it could serve as a model for expanding collaborations between law school clinical programs and indigent defender offices in order to provide poor people accused of crime with more holistic services around other collateral consequences.