Collateral Consequences Research Articles

An extension of collateral consequences: Impact on the recovery process

With the War on Drugs came a punitive approach to drug use and addiction, which has resulted in a large increase in the prison population, specifically for those who use drugs. The purpose of this paper is to illuminate the distinct impacts this approach has had on those who commit crime and also have a substance use dependence. The analysis is based on 32 semi-structured life event narratives of individuals with substance use histories originally released from prison in the early 1990's and re-interviewed in 2010. The interview narratives revealed the nuanced impact of collateral consequences that affect individuals who have both a criminal record and an addiction to drugs and/or alcohol. These consequences impacted not only their ability to reintegrate successfully into the community after prison, but also limited their recovery efforts. The implications of these findings include advancing alternatives to incarceration and expanding support services, enhancing harm reduction policies, and promoting diversion options for individuals committing crimes who portray chronic addiction.

The Duality of Stigmatization: An Examination of Differences in Collateral Consequences for Black and White Sex Offenders

Isolating particular groups of individuals is nothing novel within American society, and two prevalent examples of this are the historical and current treatment of Blacks and sex offenders. To date, few studies have examined how race is related to sex offenders’ experiences, never mind how race compounds the effects of social stigmatization for registered sex offenders (RSOs). Using a statewide sample of RSOs (n = 306), the primary goal of this study is to examine how race is related to sex offenders’ experiences and perceived stigma are impacted by sex offender policies. Findings showed significant differences in the experiences and perceptions of Black and White sex offenders. Specifically, Blacks reported fewer experiences of collateral consequences, and overall a lower degree of perceived stigma. Implications are discussed.

The Effectiveness of the ABA’s Efforts to Increase Defendant Notice of Collateral Consequences: A Survey of South Carolina Defense Attorneys

Recognizing the negative impacts of collateral consequences of conviction, the American Bar Association published advisory standards and other online compendium resources aimed at increasing defendant notice of such consequences before pleading guilty. However, no study has explored defense attorney awareness of these efforts or their perceived effectiveness. The current study fills this gap with a survey of South Carolina criminal defense lawyers. Results indicate that the majority of respondents felt that non-binding standards were ineffective, and most were unaware of an ABA standard aimed at increasing notice of collateral consequences. Further, a significant number of respondents were unaware of electronic sources that provided comprehensive lists of collateral consequences. These results indicate that non-binding standards may not be effective at changing attorney practices with regard to providing notice of collateral consequences. Jurisdictions may need to consider implementing binding standards and additional training meant to educate defense attorneys about the availability of electronic legal source material that provides comprehensive lists of collateral consequences.

The Limits of Delaware Corporate Law: Internal Affairs, Federal Forum Provisions, and Sciabacucchi

The Securities Act of 1933 provides for concurrent federal and state jurisdiction. Securities Act claims were historically litigated in federal court, but in 2015 plaintiffs began filing far more frequently in state court where dismissals are less common and weaker claims more likely to survive. D&O insurance costs for IPOs have since increased significantly. Today, approximately 75% of defendants in Section 11 claims face state court actions. Federal Forum Provisions [FFPs] respond by providing that, for Delaware-chartered entities, Securities Act claims must be litigated in federal court or in Delaware state court. In Sciabacucchi, Chancery applies “first principles” to invalidate FFPs primarily on grounds that charter provisions may only regulate internal affairs, and that Securities Act claims are always external. In so concluding, Sciabacucchi adopts a novel definition of internal affairs that is narrower than precedent, and asserts that plaintiffs have a federal right to bring state court Securities Act claims. It describes all Securities Act plaintiffs as purchasers who are not owed fiduciary duties at the time of purchase. The opinion constrains all actions of the Delaware legislature relating to the DGCL to comply with its novel definition of “internal affairs.” Sciabacucchi’s logic and conclusion are fragile. The opinion conflicts with controlling U.S. and Delaware Supreme Court precedent and relies critically on assumptions of fact that are demonstrably incorrect. It asserts that FFPs are “contrary to the federal regime” because they preclude state court litigation of Securities Act claims. But the U.S. Supreme Court in Rodriguez holds that there is no immutable right to litigate Securities Act claims in state court, and enforces an agreement that precludes state court Securities Act litigation. Sciabacucchi assumes that Securities Act plaintiffs are never existing stockholders to whom fiduciary duties are owed. But SEC filings and the pervasiveness of order splitting conclusively establish that purchasers are commonly existing holders protected by fiduciary duties. The opinion fears hypothetical extraterritorial application of the DGCL. To prevent this result, it invents a novel definition of “internal affairs” that it applies to constrain all of the Legislature’s past and future activity. But the opinion nowhere addresses the large corpus of U.S. and Delaware Supreme Court precedent that already precludes extraterritorial applications of the DGCL. It thus invents novel doctrine that conflicts with established precedent in an effort to solve a problem that is already solved. The opinion’s novel, divergent definition of “internal affairs” also conflicts with U.S. and Delaware Supreme Court precedent that the opinion nowhere considers. Sciabacucchi is additionally problematic from a policy perspective. By using Delaware law to preclude a federal practice in federal court under a federal statute that is permissible under federal law, Sciabacucchi veers Delaware law sharply into the federal lane and creates unprecedented tension with the federal regime. Its narrow “internal affairs” definition invites sister states to regulate matters traditionally viewed as internal by Delaware, and advances a position inimical to Delaware’s interests. By propounding its divergent internal affairs constraint as a categorical restriction on the General Assembly's actions, past and future, the opinion causes the judiciary to intrude into the legislature’s lane. And, data indicate that the opinion in Sciabacucchi caused a statistically and economically significant decline in the stock price of recent IPO issuers with FFPs in their organic documents. In contrast, a straightforward textualist approach would apply the doctrine of consistent usage and use simple dictionary definitions to preclude any extension of the DGCL beyond its traditional bounds. Textualism avoids all of the concerns that inspire the invention of a divergent “internal affairs” definition. Textualism does not require counter-factual assumptions, conflict with U.S. or Delaware Supreme Court precedent, cause Delaware to constrain federal practice in a manner inconsistent with federal law, or advocate policy positions inimical to Delaware’s interest. Textualism also interprets the DGCL in a manner that profoundly constrains the ability of all Delaware corporations to adopt mandatory arbitration of Securities Act claims. Textualism validates FFPs in a manner that precludes the adverse, hypothetical, collateral consequences that animate Sciabacucchi’s fragile analysis, without generating Sciabacucchi’s challenging sequelae.

Examining the relationship between U.S. incarceration rates and population health at the county level.

A collateral consequence of mass incarceration in the United States is its negative effects on population health. Using data from 2015, this study examines the relationship between incarceration rates and population health for a national sample of U.S. counties. To obtain unbiased estimates of the effect of incarceration on health, we use multivariate models which account for the endogeneity of incarceration rates when determining their effect on population health by employing an instrumental variable approach where the robust instrumental (exogenous) variable per capita corrections expenditures is used to predict incarceration rate. We then estimate population health outcomes as a function of predicted incarceration rate alongside factors such as public health spending, indicators of health behavior and control variables in models explaining county-level population health. Consistent with findings from prior research on individuals, families and at the state level, results of our analyses indicate that higher levels of incarceration are associated with higher levels of both morbidity (percentage reporting fair or poor health) and mortality (life expectancy). Implications of these findings for health and criminal justice policy, as well as research, are considered.

Gender and incarceration as coercive mobility: a theoretical model of effects on women’s forms of capital and informal social control

ABSTRACT Previous work has theorized that the removal of residents due to incarceration, known as coercive mobility, contributes to disruptions in neighboring relationships and therefore, impedes the community’s ability to engage in informal social control and prevent crime. However, research to date has yet to examine how women residents, who largely make up the population of residents who ‘remain behind,’ are affected by the incarceration of concentrated segments of male residents, who make up the majority of the prison population. Synthesizing prior research on coercive mobility, social capital, and the collateral consequences of incarceration, the present theoretical contribution incorporates effects to women’s forms of capital, including women’s social (i.e., resources inherent in neighboring relationships), physical (e.g., income), and human capital (e.g., education), as a mechanism to explain how concentrated incarceration contributes to deleterious consequences to informal social control. The author recommends that scholars examine the potentially gendered consequences of incarceration in future research.

After the Crime: Rewarding Offenders’ Positive Post-Offense Conduct

While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system. Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive post-offense conduct that merit special recognition and preferential treatment: the responsible offender, who avoids further deceit and damage to others during the process leading to conviction, the debt-paid offender, who suffers the full punishment deserved (according to true principles of justice rather than the sentence actually imposed), the reformed offender, who takes affirmative steps to leave criminality behind, and the redeemed offender, who out of genuine remorse tries to atone for the offense. The essay considers how one might operationalize a system for giving special accommodation to such offenders. Positive post-offense conduct might be rewarded, for example, through the selection and shaping of sanctioning methods, through giving preference in access to education, training, treatment, and other programs, and through elimination or restriction of collateral consequences of conviction that continue after the sentence is completed.

Net-Widening in Schools?: The Collateral Consequences of Safe School Expenditures for Suspension Rates

Concerns about school safety are increasingly commonplace, especially considering the attention garnered by mass shootings and other instances of crime in schools. In response, billions of dollars in federal and state funding have been allocated to assist and support the safeguarding of the school environment and those within the school. However, it remains unclear whether safe school expenditures are consequential for school-related outcomes—specifically, school suspension rates. To fill this void, the current study uses multilevel Poisson and negative binomial regression to analyze school and school district data from the Florida Department of Education, the U.S. Census, the Uniform Crime Report, and the Florida Division of Elections. Findings suggest that safe school expenditures are associated with lower suspension rates for all students. However, the effect of expenditures on Black suspension rates indicates a curvilinear relationship. Safe school expenditures are associated with an initial reduction in the Black suspension rate to a certain threshold; however, once that threshold is met, continual increases in expenditures increase the likelihood of Black suspensions. Although safe school expenditures are associated with lower suspension rates for all students, additional increases in spending on school safety widen the social control net for Black students, thereby amplifying their likelihood of punishment.

The Collateral Consequences of State Central Registries: Child Protection and Barriers to Employment for Low-Income Women and Women of Color.

The Collateral Consequences of State Central Registries: Child Protection and Barriers to Employment for Low-Income Women and Women of Color.

The Opposite of Punishment: Imagining a Path to Public Redemption

The criminal justice system traditionally performs its public functions – condemning prohibited conduct, shaming and stigmatizing violators, promoting societal norms – through the use of negative examples: convicting and punishing violators. One could imagine, however, that the same public functions could also be performed through the use of positive examples: publicly acknowledging and celebrating offenders who have chosen a path of atonement through confession, apology, making amends, acquiescing in just punishment, and promising future law abidingness. An offender who takes this path arguably deserves official public recognition, an update of all records and databases to record the public redemption, and an exemption from all collateral consequences of conviction. This essay explores how and why such a system of public redemption might be constructed, the benefits it might provide to offenders, victims, and society, and the political complications that creation of such a system might encounter.

Statement of Commissioners Gail Heriot and Peter N. Kirsanow in the U.S. Commission on Civil Rights: Report on Collateral Consequences of Felony Convictions.

On June 13, 2019, the U.S. Commission on Civil Rights released a report entitled Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities. The report concerns the many legal consequences (in addition to the obvious prison terms and fines) that attach when an individual is convicted of a felony. Examples include restrictions on owning a firearm, on qualifying for public housing and on holding certain jobs. This Statement by individual Commissioners Gail Heriot and Peter Kirsanow was part of that report. There is much bipartisan agreement that the number of collateral consequences accompanying a criminal conviction has grown too large. Ex-felons are sometimes prohibited from holding particular jobs for no good reason. Making it difficult for ex-felons to re-adjust to life on the outside is unwise. On the other hand, Commissioners Heriot & Kirsanow take the position here that the Commission’s majority is too quick to dismiss certain collateral consequences as serving no useful purpose. Some are justified. Reform in this area will need to proceed with great caution to separate the good from the bad. Commissioners Heriot & Kirsanow also note with what they regard as the majority’s over-emphasis of the voting right issue. If the point of reform in this area is to help ex-felons re-adjust to outside world, collateral consequences that affect their ability obtain jobs, housing and the necessities of life need to receive priority. But the report devotes the largest number of pages and its most passionate rhetoric to voting rights. It isn’t hard to see why elected officials might choose to emphasize voting rights over more pressing needs. But it is disappointing that the Commission would do so.

Begging for Change: Begging Restrictions Throughout Washington

The act of panhandling, commonly known as begging, is a form of speech protected by the United States Constitution. But Washington’s cities are increasingly enacting laws that criminalize begging, despite courts finding these laws unconstitutional under both the First Amendment and the Due Process Clause. This brief surveys begging restrictions, assessing their scope and legality. This report offers the first statewide analysis of laws that restrict begging. Among the brief's key findings is that the vast majority (86%) of Washington cities criminalize begging; the majority (83%) of these laws result in a criminal charge if violated, leading to serious collateral consequences that impact one’s eligibility for housing and employment. Many of these laws would not survive constitutional scrutiny.

State of the States: A survey of statutory law, regulations and court rules pertaining to guilty pleas across the United States.

A psycholegal research agenda on guilty pleas is in its nascent stage. Multijurisdictional surveys of related law and policy may advance this research agenda by focusing investigators on the specifics of existing policies and motivating cross-jurisdictional comparisons of diverse policies. We thus conducted a systematic, national survey of statutes, regulations and court rules across the United States pertaining to nine aspects of the guilty plea process, including sentencing differentials, collateral consequences and waiver of rights, which have been identified in existing legal and psycholegal research and commentary. Following a discussion of these issues, including legal concerns and existing research findings, we present the results of our systematic survey. We supplement this review with a non-systematic sampling of appellate case law. Broadly, there was notable diversity in whether and how jurisdictions approached these issues. We discuss general and specific implications of our findings for future research, emphasizing the importance of data on actual policies and procedures to the design of studies that may contribute to evidence-based criminal justice policy.

The mediating role of family dynamics in the relationship between paternal incarceration and child behavior problems

ABSTRACT While many scholars acknowledge that there are collateral consequences of mass incarceration, there remains considerable work to be done in understanding the nuanced way in which paternal incarceration influences child development. A growing body of research has begun examining the specific mechanisms through which a father’s time in jail or prison might influence child behavior. Using data from the Fragile Families and Child Wellbeing Study, this study examines maternal depression, maternal parenting stress, paternal involvement, and spanking as potential mediators in the relationship between paternal incarceration and child behavior problems. Results indicate that paternal incarceration exerts a persistent direct effect on child externalizing behaviors (i.e., aggression, rule-breaking), and an indirect effect on both externalizing and internalizing behaviors (i.e., withdrawal, anxiety, and somatic disorders) via parenting mechanisms, even after controlling for pre-incarceration levels of mechanisms and child behavior problems. The limitations of this study and directions for future research are discussed.

Parental Perspectives on the Emotional, Relational and Logistical Impacts on Siblings of Youth Who Sexually Offend

This qualitative study explored parents’ perspectives on the collateral consequences of youth sexual offending on siblings through the analysis of interview data among 16 caregivers from 10 Canadian families. Using thematic coding procedures, findings indicated that parents identified a range of safety, emotional and interpersonal impacts on siblings beginning with the criminal justice and child welfare investigations of the sexual offending and extending to siblings’ relationships with the offending youth, their caregivers and other relatives. Results demonstrate the need for greater acknowledgement of, and parent‐informed interventions that specifically address the impact of youth sexual offending on siblings by professionals and non‐professionals (e.g. relatives) alike.

Collateral Consequences for Juveniles in the Justice System: Change in Perceptions after an Educational Intervention

AbstractThere is a dearth of empirical research investigating public awareness or perceptions of the impact of collateral consequences of juvenile justice system involvement on youths’ lives. The current study recruited 555 Pennsylvania residents through Amazon Mechanical Turk to participate in a brief, educational intervention on collateral consequences of system involvement. Participants read a short vignette about a hypothetical youth who was adjudicated delinquent in Pennsylvania, answered 20 knowledge‐based questions, and provided pre‐ and postintervention ratings of the impact the delinquency finding would have on the youth's life in the short term and in the long term. Results of linear mixed model analysis revealed significant fixed effects of both phase (pre‐post educational intervention), b = .62, p < .001, 95% CI [.47, .78] and timing (before the youth turns age 18 and after the youth turns age 18), b = –.98, p < .001, 95% CI [–1.18, –.78], on impact ratings (i.e., how big an impact a juvenile adjudication will have on the youth's life). Participants provided incorrect responses to approximately half of collateral consequences, indicating a gap in knowledge. Findings from the current study can inform targeted intervention efforts to increase public awareness of the consequences of juvenile justice system involvement.

“They Look at You like You're Nothing”: Stigma and Shame in the Child Support System

More than 22 million or 1 in 4 children in the United States are currently served by the child support program. This program, the third largest used to address childhood poverty, regulates non‐custodial parents' financial support of their children through federal, state, and municipal legislation and policies. The collateral consequences, particularly those related to economic stability and criminal justice involvement, associated with child support system participation have been widely studied. However, many of the interpersonal interactions between those who have cases in the system and those who work in the system have been largely ignored. In this article, I use courtroom observations, in‐depth interviews, and cultural artifacts to explore the practices of stigmatization and shaming in this important legal and bureaucratic process. I explore stigma and shame in three thematic areas: (1) shame in social interactions, (2) shame as a tool of social control, and (3) the social consequences of shame. I ultimately suggest that stigma and shame in the child support system, resembling that in the welfare and criminal justice systems, reinforces cognitive boundaries between parents perceived as “responsible” and those perceived as “deadbeats.”

Misdemeanors by the Numbers

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue. But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research. This Article represents the most substantial empirical analysis of misdemeanor case processing to date. Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing. The resulting portrait reveals a system that disproportionately impacts poor people and people of color. Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention even at relatively low amounts, and imposed court costs upon conviction. There were substantial racial disparities in case-filing rates across locales and offense categories. The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted. The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and serve different functions, from place to place. It thus presents a major challenge to efforts to describe and theorize the contemporary landscape of misdemeanor justice. At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor, or of misdemeanor criminal justice. As appreciation for the significance of lowlevel law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world.

Punishment Beyond the Deportee: The Collateral Consequences of Deportation

Deportations from the United States reached record highs in the aftermath of the Great Recession (2007-2009). At the peak of this wave of deportations, over 400,000 people were deported from the United States—as many in 1 year as in the entire decade of the 1980s. The majority of these deportees have U.S. citizen family members, nearly all of whom continue to live in the United States. Over 90% of these deportees are men, and nearly all are sent to Latin America, creating gendered and raced consequences for specific communities. This article draws from interviews with 27 people from California who experienced the deportation of a family member to provide insight into the effects of deportation on these families. This article builds on scholarship on the collateral consequences of incarceration to enhance our understanding of the collateral consequences of deportation. The findings reveal that family members face short, medium, and long-term consequences in the aftermath of a deportation and that many adolescents are forced to make an abrupt transition to adulthood when one or both of their parents is deported.

Engineered Credit Default Swaps: Innovative or Manipulative?

Credit default swaps (“CDS”) are, once again, making waves. Maligned for their role in the 2008 financial crisis and condemned by the Vatican, investors are once more utilizing CDS to achieve results of questionable market benefit. A CDS is a financial contract that allows investors to “bet” on whether a borrower will default on its loan. However, rather than waiting to see how their bets pan out, some CDS investors are collaborating with financially distressed borrowers to guarantee the profitability of their CDS positions—“engineering” the CDS’ outcome. Under the CDS contract, these collaborations are not prohibited, yet they have roiled the CDS market, leading some market participants to view the collaborations as a sign that CDS are little more than a rigged game. On the other hand, some view “engineered CDS transactions” as an innovative form of financing for distressed companies. As engineered CDS transactions proliferate in the market, it becomes increasingly prudent to look beyond their contractual acceptability to assess whether, from a legal point of view, these transactions are permissible. Engineered CDS transactions demonstrate the challenges that the existing legal and non-legal framework face in effectively responding to new forms of market distortion. This Article examines the costs and benefits of engineered CDS transactions on the market as a precursor to determining whether legal intervention is needed. Assessment of the relative costs and benefits of engineered transactions indicates that despite their innovativeness, engineered CDS transactions are largely detrimental to the markets because they impose costs on actors unaffiliated with the CDS market and, more broadly, destroy public trust in the financial markets. Yet, despite their associated harms, this Article demonstrates that, legally, engineered transactions exist in a gray space. This Article analyzes the phenomenon of engineered CDS transactions, assessing the capacity of applicable legal frameworks, private standards, and market discipline, to address these transactions and finds each to be lacking. Thus, this Article proposes a range of responses, including modernization of the existing anti-manipulation framework, to mitigate against the harm and collateral consequences that stem from engineered CDS transactions.