Academic journal article Fordham Urban Law Journal

Collateral Consequences: How Reliable Data and Resources Can Change the Way Law Is Practiced

Academic journal article Fordham Urban Law Journal

Collateral Consequences: How Reliable Data and Resources Can Change the Way Law Is Practiced

Article excerpt

  I. Overview of Collateral Consequences' Impact on Convicted
     A. Defining "Collateral Consequences"
     B. Operational Effect of Automatic and Discretionary
        Collateral Consequences
     C. Addressing the Problems
 II. American Bar Association Collateral Consequence Federal
III. Impact of Collateral Consequences on Occupational
     Licensure: Cosmetology License Case Study
 IV. Reducing Ambiguity in the Statutory Language of
     Collateral Consequences
     A. Application of Heightened Rational Basis Review for
        Collateral Consequences
     B. Reducing Ambiguity with Clear and Concise
     C. Providing Clear, Identifiable Expiration Dates for
  V. Ethical Obligations and Responsibilities of Defense


The United States has 7.2 million adults in prison or under correctional supervision, accounting for some 3.1% of the population. (1) Ninety-five percent of these convicts will eventually return home and begin to encounter "hidden" consequences. (2) Our economic, legal, and regulatory schemes systematically marginalize people with criminal records by imposing penalties on ex-offenders that are commonly described as the "collateral consequences of criminal convictions." The term "collateral consequences" refers to the denial of rights, privileges, benefits, and opportunities in addition to the sanctions imposed by the original criminal sentence. Many of these consequences haunt ex-offenders for the rest of their lives.


The issue of collateral consequences is one of the most hotly debated topics among practitioners, lawmakers, and academics. A persistent problem in studying the issue is the inability of any of these groups, let alone the general public, to determine the sheer volume and scope of these penalties. In the fall of 2009, the National Institute of Justice awarded the American Bar Association (ABA) a grant to address this issue and develop a comprehensive national database of consequences on a state-by-state basis.

A. Defining "Collateral Consequences"

Collateral consequences are codified in state and federal statutory codes and administrative regulations. They attach by operation of law or through an act of a government entity, (3) such as an administrative body, government official, or civil court. Unfortunately, the term "collateral consequences" defies accurate definition and categorization. The jurisprudence on the matter does not seek to identify the phenomenon or fix its boundaries. Rather, the law has developed from an effort to maximize the authority of regulatory bodies and protect the finality of guilty plea convictions by minimizing the duties of actors within the criminal justice system. (4)

Collateral consequences can be classified as automatic collateral sanctions or discretionary disqualifications. Automatic collateral sanctions are penalties, disabilities, or disadvantages automatically imposed on an individual as a result of a conviction. (5) These sanctions attach by operation of law or through the non-discretionary act of a government entity following notice of conviction. On the other hand, discretionary disqualifications are not mandatory. A government entity is authorized--but not required--to impose the consequence on an ex-offender because of a conviction. (6)

Both automatic and discretionary consequences raise troubling questions about the fairness of these penalties and the procedures used to impose them. Automatic sanctions are necessarily overbroad, but they are uniformly applied and provide notice to the public of the penalties inevitably resulting from conviction. These sanctions penalize ex-offenders whose convictions might otherwise be mitigated by the factual circumstances of their criminal behavior, the passage of time, or through their efforts toward rehabilitation. …

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