Collateral Consequences of Criminal Convictions in American Courts: The View from the State Bench*
Ewald, Alec C., Smith, Marnie, Justice System Journal
Collateral consequences of criminal convictions are restrictions, penalties, and sanctions generally not included in penal codes or sentencing guidelines, but resulting from criminal convictions under U.S. state and federal law. Despite growing interest in these sanctions, we know very little about their presence in American courtroom practice. This article summarizes results of the first survey to query U.S. state-court judges about what role collateral consequences play in criminal proceedings and about judges' general understanding of the nature and efficacy of such sanctions. Our survey yielded some surprising and important results. While critics of collateral consequences often refer to these penalties as silent and invisible, in fact our judges told us that defense attorneys, prosecutors, defendants, and judges frequently discuss these policies in court. At the same time, our results serve as further evidence of serious ambiguities and variation in these laws' purpose, character, and imposition.
More than two million Americans are now in prison or jail, and approximately seven million adults are under criminal supervision of one form or another (Bureau of Justice Statistics, 2006). Those figures give the United States the dubious distinction of having the world's highest incarceration rate (Gottschalk, 2006). About 600,000 offenders are released from U.S. prisons and jails in a typical year, more than four times the rate of thirty years ago (Pinaire, Heumann, and Lerman, 2006). Such figures have helped draw the attention of scholars, practitioners, and the public to what are known as the "collateral" consequences of criminal convictions. Beyond their formal sentence, people convicted of felonies and some misdemeanors in U.S. courts face a number of penalties, restrictions, and disabilities called "collateral" because they lie not in the penal code but in state and federal gun-ownership and voting laws, juror-qualification standards, professional-licensure requirements, entitlement-eligibility rules, and so on. Some restrictions are contained in federal law, such as limits or outright bars for drug offenders on access to federal housing, Social security, student loans, and federal employment. But most are scattered throughout various parts of state law. Collateral consequences continue to restrict offenders after their actual sentence has ended; indeed, some apply indefinitely, barring a formal pardon or other administrative release.
These sanctions can have serious effects on an individual's life course after prison-and on the broader society. The presidential election of 2000 shined a spotlight on felony disenfranchisement, particularly Florida's law (since amended) indefinitely preventing felons from voting even after their sentences were completed. Professional-licensing restrictions have also begun to draw attention-like press stories about the inmate trained to cut hair in a New York prison, and then barred by law from receiving a barber's license upon release (Haberman, 2003). (As of 1999, all fifty states restricted former felony offenders from working as barbers, beauticians, or nurses [Pinaire, Heumann, and Lerman, 2006].) Beyond such discrete examples, incarceration and collateral consequences together now skew some of our most fundamental social measurements, such as rates of unemployment (Western, 2006) and voter turnout (McDonald and Popkin, 2001). If we accept political philosopher Judith Shklar's conclusion that the right to vote and the ability to work are at the very core of American citizenship (Shklar, 1991), the meaning of these sanctions runs deep indeed.
One authority concludes that imposing collateral consequences "has become an increasingly central purpose of the modern criminal process" (Chin and Holmes, Jr., 2002:699). Yet despite some outstanding recent scholarship on collateral sanctions, much remains unknown, including their place in courtroom practice. This article begins to fill that gap, focusing on "the view from the bench": how collateral consequences in American courts look through the eyes of the more than two hundred general-jurisdiction state-court judges from forty-one states who completed a bymail survey about these policies. …