Collateral Consequences of Punishment: Civil Penalties Accompanying Formal Punishment

Abstract

When most people think of legal punishment, they envision a judge or jury convicting a person of a crime, and then sentencing that person in accordance with clearly prescribed penalties, as specified in the criminal law. The person serves the sentence, is released (perhaps a bit early for “good behaviour”), and then welcomed back into society as a full-functioning member, adorned with all the rights and responsibilities of ordinary citizens. If only it were so. For upon conviction of a felony in the United States, criminals face substantial collateral consequences — civil penalties, which, unlike fines, prison time, or probation, are not specified in the criminal law and are rarely mentioned during sentencing. These penalties are imposed not just while a felon is incarcerated or paroled or on probation, but after completion of her sentence — and often permanently. There are important questions about the propriety of all collateral consequences, including those assessed against a felon serving her sentence. However, I am concerned here only with post-sentence collateral consequences (hereafter, just “collateral consequences”). The best-known example of such consequences is the disenfranchisement of felons. At the time of this writing, seven states permanently bar all felons from voting [1], and another five permanently disenfranchise some felons [2]. Because of its political significance (it probably determined the outcome of the 2000 presidential race) and theoretical importance, this is surely a significant instance of collateral consequences. But it is far from the only one. The official listing of collateral consequences requires more than 140 pages [3]. Obviously, I cannot discuss them all. But here are some important legal disabilities convicted felons face in the United States. These (or their effects, in the case of the first two) continue post-sentence.