Friday, August 19, 2022

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B. The New Civil Death in the Regulatory State

Even as civil death as an institution bearing that name withered, it was replaced with a new version--a pervasive system of collateral consequences applicable to people convicted of crimes. Historically, such a judgment meant that the person was dead in the eyes of the law; now, the judgment means that the person has a shattered character. This is not merely a moral observation. It gives rise to a legal status making convicted persons subject to restrictions on freedom, benefits, and rights. Indeed, the Supreme Court has recognized that [a] felon customarily suffers the loss of substantial rights. However, these effects are not limited to those with felony convictions, as [a] wide range of civil disabilities may result from misdemeanor convictions. Every conviction implies a permanent change, because these disabilities will carry through life. For citizens, a prominent collateral consequence is the loss of civil rights : A convicted criminal may be disenfranchised, lose the right to hold federal or state office, be barred from entering certain professions, be subject to impeachment when testifying as a witness, be disqualified from serving as a juror, and may be subject to divorce. To this ever-increasing list may be added the loss of the right to keep and bear arms. For noncitizens, conviction may result in deportation.

The effects of the loss of status are particularly profound given the many areas of life now subject to governmental regulation. Conviction potentially affects many aspects of family relations, including, for example, the ability to adopt, be a foster parent, or retain custody of one's own children. Conviction can make one ineligible for public employment, such as in the military and law enforcement. It can preclude private employment, including working in regulated industries, with government contractors, or in fields requiring a security clearance.

Conviction can also restrict one's ability to hold a government contract, to obtain government licenses and permits, or to collect a vested public pension. Those convicted of certain crimes may lose the right to drive a car. Persons convicted of sex offenses usually have to register, may be excluded from living in particular areas, and are even subject to post-incarceration civil confinement.

Again, the phenomenon addressed here is the myriad legal consequences of conviction imposed by law. There is a general problem of reentry of released prisoners and reintegration of anyone with a criminal record. Having a criminal history generates a range of social effects, most prominently including employment discrimination and other forms of market discrimination. Conviction may result in psychological effects and impair future employability because of forced removal from the labor market. As important and problematic as these limitations are, they are not directly at issue here. Here, the focus is on penalties imposed by positive law, by or at the command of the government itself.

There are differences between traditional civil death and its modern form. Today, a convicted person does not lose her right to sue, one of the features of historical common law and statutory civil death. The new civil death is also not as harsh as expatriation, in that a modern citizen subject to civil death nevertheless remains a citizen and therefore may continue to reside in the United States.

On the other hand, modern civil death is harsher and more severe in several important ways. First, extinction of equal legal status affects a wider range of interests than it did in past decades. In England and even in early to mid-twentieth century America, there were fewer public benefits to lose. In addition, there were then many fewer businesses and professions for which one did not need a license, a permit, or the ability to obtain a government contract. Now, for a person who must work for a living, loss of the right to do business with the government--or work in any regulated industry-- could result in exclusion as complete as civil death under the nineteenth-century statutes.

The disabilities are also stickier. While the new civil death, like the old, can be mitigated through pardon and other forms of legal relief, pardon was a much more realistic hope for convicted persons in the past than it is now. Moreover, while historically the disabilities of civil death generally applied only in the state of conviction, now a conviction in one jurisdiction generally has effects across the entire country. Often one jurisdiction will impose a disability without regard to whether the jurisdiction of conviction does so. In both of these ways, the new civil death is more difficult to escape than the old.

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