Academic journal article Washington Law Review

Informal Collateral Consequences

Academic journal article Washington Law Review

Informal Collateral Consequences

Article excerpt

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.1 The shiftis perhaps most evident in the realm of corrections, which since the early 1980s has experienced unprecedented population growth.2 Driven by a number of factors, not the least of which is the enormous human and financial cost of mass incarceration,3 policy makers are now shrinking prison and jail populations4 and pursuing cheaper non-brick-and-mortar social control options.5

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 years6 and impose disabilities that often dwarf in personal significance the direct consequences of conviction, such as imprisonment.7 Long the focus of critical scholarly commentary,8 collateral consequences recently drew the attention of the Supreme Court in its landmark decision Padilla v. Kentucky9 holding that defendants have a Sixth Amendment right to be informed of a collateral consequence (in Padilla, deportation) attaching to a guilty plea.10 Further testament to the national concern, the American Bar Association is now compiling a comprehensive inventory of collateral consequences imposed nationwide,11 casting in bold relief the many "invisible punishments" to which convicted individuals are subject.12

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,13 state, local, and federal criminal justice systems continue to adjudicate millions of cases annually,14 and little reason exists to conclude that criminal prosecution and conviction will abate as the preferred public response to misconduct.15 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. …

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