Collateral Consequences:the Normative Issues

Hugh LaFollette

University of Minnesota Law School

19 October 2012

What CC Are

• Civil penalties• Unlike fines, imprisonment, or probation—

rarely part of the formal sentence• Frequently assessed after sentence served• Rarely part of the criminal law• Many charged do not know what they face

Violates principle of publicityMN legislature is considering a bill to change that

Examples

• Best known: voter disenfranchisement• Many more: state listing 175 pp.; federal, 75

25 jurisdictions: never hold public officeOften automatic grounds for divorceSix states: no public employmentBarred from many federal jobs31 jurisdictions: cannot serve on a jury

This conference

• Narrower focus, but extremely important• Significant impact, with ripple effects

• Aim is to isolate normative issues.• Start with 3 preliminary yet related ones

WhoWhat (penalties)When (for which crimes?)

Who

• Previously licensed attorneys and medical practitioners

• Narrow focus is more manageable

• Use in these cases is more plausible

• Perhaps generalize

What (penalties)

• Options along a continuumOne extreme: mandatorily barred for lifeOther: automatically regain. No discrimination In between

○ Permanent, but not automatic (assessed at trial)○ Indefinitely barred○ Barred for # of years; if long enough . . .○ Don’t mandate, but don’t bar discrimination

• Permutation: reinstated upon appeal. Burden?

When (for which crimes?)

• Three overlapping ways:Class of crimeRelation to professionParticulars of the case

• Helps further isolate normative considerations

Class of crime

• In most: follow higher classes of feloniesNJBars attorneys convicted of C felonies & above

• Others reach much lowerTexas bans midwives convicted of any felonyAnd many misdemeanorsSimilarly for electricians

• Too blunt — violates proportionality

Relation of crime to profession

• Performed while acting as a professionalGenene Ann JonesOliver O’Grady

• Begin to formulate a rationalePatients and children especially vulnerable If successful, require (merited) trustSince felons harmed others for many years,

vile . . .Me or my children

Also those analogous

• Doc who experiments

• Embezzler

• Rationale same as before

• Still . . .

Not barred from all jobs

• Would be effectively a death sentence• Law should still permit genuine

opportunities• Perhaps not jobs they want• But that is true of many non-felons

Case specific

• Regain, indefinite, or permanent, depending . . .

• Set at sentencing (authorized)

• RangeDetect global detrimental trait (exacerbating)One-off, especially if mitigating factors

MN law used blended approach

• Elements of 1st

Seems some are permanentMore commonly fixed number of years

• And 2nd: crimes related to job soughtNormally crimes against individualsBlocks working with vulnerable people

• Doesn’t forbid, even if not convicted, but . . .

Reveals competing aims

• Rehabilitate and reintegrate• While taking strong steps to protect

innocent people

• Nationally, CCs are added ad hoc• MN Collateral Sanction Commission

wants more limited use and more reasonable rules

Previous suggests

• Sometimes legit; sometimes not• Reasons to be squeamish

“Paid debt” to societyEasy to use indiscriminatelyCost to felons and society is too great

• Yet reasons to sometimes useOliver O’GradyBernie MadoffCases where have compelling evidence of deep

disposition and a vulnerable population

Rationale for using

• Not idle prediction or baseless hopeMed school as predictor¼ recidivism

• 1 in 4 insufficient for tight supervisionArguably sufficient for less drastic measures

○ In situations like those mentioned○ Would distress felons . . . but not a right○ Even if conditional right — burden of proof?

• Plausible consequentialist rationale

Perhaps also retributive

• Professions governed by norms; these felons’ actions violate those norms

• AnalogyPlagiarism policiesStrict honor code

• Doesn’t share core academic values

Variations on standard just.

• ConsequentialismProtect by taking criminals off the streetRehabilitation and deterrenceMCCC and MN law suggest primary engines

• Retributive misgivingsPunish innocent; unduly stringer or lenient; wrong

reasonsShould give them what they deserve (just

deserts)?

Problem: how to resolve tension?

• One option: levels of justification• Consequentialism is insufficient because if

sometimes seems to justify . . .• Retributivism insufficient since . . .• So proposed solution:

Consequentialism justifies the practice and which actions are criminalized

Retributivism: actions falling under the practice

Can we use approach for CC?

• One difficulty• Seems retributivism justify large disparities

in CC that we currently useJoe upon release; Bob after 2 yrs.; Sam never?Consequential seemingly can explainUnclear that retributivism can

• von Hirsh and Wasik: not punishment and rarely used

Retributivist response

• Cannot justify such wide disparities since they are not justified

• Rarely use

• Then retributive principle of proportionality

Another option

• Ferzan: bridge by focusing on “responsible agency”

• Common distinctions blind us “to a familiar predictive practice that is grounded in responsible agency. We can have a model that looks not only at what the agent has done but also at what he will do. Sometimes what actors do justifies acting on predictions of what they might do in the future.”

Summary

• Some reasons plausibleCrime while acting as professional (or in

analogous ways to it)Nature of crime justifies prediction

• Without these, little or no basisGarbage collectors, septic tank cleanersRunning a small businessOr, if they are, only in rare cases

• Currently used excessively to detriment