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Excerpted from: Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 University of Pennsylvania Law Review 1789 (May, 2012)(222 Footnotes)
Borrowing from its English forebears, the United States once had a form of punishment called civil death. Civil death extinguished most civil rights of a person convicted of a crime and largely put that person outside the law's protection. Civil death as an institution faded away in the middle of the twentieth century. Policymakers recognized that almost all convicted persons eventually rejoin society, and therefore, it was wise and fair to allow them to participate in society with some measure of equality.. . .[C]ivil death has surreptitiously reemerged. It no longer exists under that name, but effectually a new civil death is meted out to persons convicted of crimes in the form of a substantial and permanent change in legal status, operationalized by a network of collateral consequences.
A. Civil Death and Its Decline Before 1980
At common law, there was an English and American institution of civil death as a punishment associated with conviction (or attainder) for treason or felony. As the New York Court of Appeals explained in 1888, under the English common law, a person sentenced for felony was
placed in a state of attainder. There were three principal incidents consequent upon an attainder for treason or felony,--forfeiture, corruption of blood, and an extinction of civil rights, more or less complete, which was denominated civil death. Forfeiture was a part of the punishment of the crime . . . by which the goods and chattels, lands and tenements of the attainted felon were forfeited to the king . . . . The blood of the attainted person was deemed to be corrupt, so that neither could he transmit his estate to his heirs, nor could they take by descent from the ancestor . . . . The incident of civil death attended every attainder of treason or felony, whereby, in the language of Lord Coke, the attainted person is disabled to bring any action, for he is extra legem positus, and is accounted in law civiliter mortuus, or, as stated by Chitty, he is disqualified from being a witness, can bring no action, nor perform any legal function; he is in short regarded as dead in law.
Loss of status as a form of punishment also existed in other ancient legal regimes.
The consequences of attainder were on the minds of our Constitution's drafters. The Constitution provides, The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. The delegates declined to adopt forfeiture and corruption of blood beyond a person's lifetime. Civil death, though punishment, was not categorically prohibited.
In England, civil death was a common law punishment, but in the United States, it existed only if authorized by statute. It was far from universal; only eighteen states employed it as of 1937, although states without a formal system of civil death restricted particular civil rights of convicted persons.
By the turn of the nineteenth century, civil death faced increasingly withering criticism. In 1897, a unanimous Supreme Court held that a court of equity could not disregard an answer and enter default judgment against a defendant who was in contempt on another issue. As Justice White explained for the Court, [I] f such power obtained, then the ancient common law doctrine of outlawry, and that of the continental systems as to civil death, would be a part of the chancery law, a theory which could not be admitted without violating the rudimentary conceptions of the fundamental rights of the citizen. The Illinois Supreme Court in 1907 quoted approvingly a scholar's conclusion that it raises a feeling of repulsion, whether the incapacity is presented singly or as a consequent of another punishment. It is a barbarism condemned by justice, by reason and by morality. A German commentator wrote in 1916:
The recognition of the legal rights of the individual follows naturally upon the conception of the free personality. Hence it comes that the penalty of so-called civil death pronounced upon a living man is not consonant with our conception of justice. Therefore this punishment has been done away with nearly everywhere and is not likely to recur.
Perhaps the decline of civil death can be traced to the new reality that conviction of a felony no longer necessarily implied a capital sentence. When all felonies were punishable by death--and such sentences were regularly and speedily carried out--it made some sense to begin to settle the convicted person's affairs as soon as the sentence became final. Civil death in its original application was thus a transitional status in the period between a capital sentence and its execution, not a condition applicable potentially for decades. Blackstone reported, for example, that a benefit of clergy, which prevented execution for a capital felony, also restored [the convicted person] to all capacities and credits, and the possession of his lands, as if he had never been convicted.
The developing principle of sentencing proportionality reduced the number of executions, which raised doubts about the wisdom and utility of civil death. As a Harvard Law Review Note argued in 1937, It is the volume of parole and pardon figures that gives the vestigial doctrine of civil death a new significance, warranting an examination of the conflicts and inconsistencies into which it has led courts and legislatures. Civil death contradicted the idea that offenders could pay their debt to society and the reality that the prison experience, for many, would be a temporary if significant interruption to their lives.
As Margaret Colgate Love has written, mainstream legal opinion began to recognize the problem of excessive collateral consequences in the 1950s. The 1956 National Conference on Parole, a joint effort of the U.S. Attorney General, the U.S. Board of Parole, and the National Council on Crime and Delinquency, called loss of civil rights an archaic holdover from early times meriting abolition. In 1983, the American Bar Association confidently predicted that collateral sanctions were on their way to extinction: As the number of disabilities diminishes and their imposition becomes more rationally based and restricted in coverage, the need for expungement and nullification statutes decreases. By 1984, a House committee had claimed the existence of a consensus that arbitrary restrictions on the rights of former offenders should be eliminated. In the mid-twentieth century, many civil death statutes were repealed or wholly or partially voided. However, civil death never fully disappeared. New York, the Virgin Islands, and Rhode Island retain forms of it for persons sentenced to life imprisonment, and Idaho retains a version of it for all prisoners, but textually and by court decision, these statutes leave convicted persons in possession of some rights.
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.
C. Mass Conviction, Not (Just) Mass Incarceration
The new civil death is of great practical importance because of the rise of mass conviction. Many distinguished scholars have used a different term to describe this phenomenon: mass incarceration. They observe that since 1970, and even more profoundly since 1980, there has been an increase in both the rate of imprisonment and the absolute number of people in prison. That increase has been called unprecedented in the history of liberal democracy. In 1980, more than 500,000 Americans were confined to prisons and jails; today there are nearly two million.
Yet, focusing exclusively on mass incarceration obscures the reality that most convicted persons are not sentenced to prison. There are approximately 1.1 million new state felony convictions in a typical year, and some multiple of that in misdemeanor convictions. In addition, there are approximately 80,000 federal convictions each year, most of which are felonies. Most defendants convicted of felonies are not sentenced to state prison--about sixty percent receive probation only or probation with local jail time. Even more defendants convicted of misdemeanors avoid incarceration altogether. While many are sentenced to prison, and even though sentence length has increased in recent decades, the average term is now less than five years. Accordingly, it is likely that the vast majority even of those sentenced to prison will spend most of their lives in free society.
Those convicted but not incarcerated are typically sentenced to probation. Six-and-a-half million people were on probation at some point during 2009, three times the number in prison or jail. At the broadest level of generality, approximately sixty-five million adults have a criminal record of some kind, although some of those involve arrests not leading to conviction. Accordingly, the size of the offender population is not just the two million in custody; it also includes the more than six million in the control of the criminal justice system who are not in custody plus the tens of millions who have a record but are not in prison or jail or on probation or parole.
The incarceration part of mass incarceration implies that actual confinement is the most important feature of the system. However, as legally and socially significant as a term in prison is, for most people convicted of crimes, collateral consequences will generate the most significant effects. Merely escaping incarceration hardly means that a person with a conviction is not subject to other legal consequences as a result of her conviction. Criminal records are increasingly available to all branches of the government and all segments of the public through computer databases, thus making collateral consequences more susceptible to ready enforcement.
Loss of legal status is more important, ironically, for relatively less serious crimes. If a person is sentenced to twenty-five years imprisonment at hard labor, it likely matters little that she will be ineligible to get a license as a chiropractor when she is released. But to a person sentenced to unsupervised probation and a $250 fine for a minor offense, losing her city job or being unable to teach, care for the elderly, live in public housing, or be a foster parent to a relative can be disastrous. [I] n many cases the most important part of the conviction, in terms of both social policy and the legal effect, lies in the collateral consequences.
D. Collateral Consequences as Unrestrained by the Constitution
Courts have imposed few limits on creation and implementation of collateral consequences. They are generally regarded as nonpunitive. Accordingly, they are not evaluated for overall proportionality, nor is there significant scrutiny for reasonableness. In addition, existing collateral consequences may be imposed without warning, and new ones may be created and imposed after a sentence has been fully served.
1. Individual Collateral Consequences as Regulatory Measures
The modern law of collateral consequences seems to have begun with Hawker v. New York. Hawker, a physician, was convicted of performing an abortion, a felony at the time. The New York legislature later passed a law prohibiting those convicted of a felony from being licensed to practice medicine. The Supreme Court upheld the prohibition by a vote of six to three, with Justice Harlan writing for the dissenting Justices.
The majority concluded that the disqualification was not truly based on the conviction; the conviction was mere evidence. The disability was instead based on violating the law, which made Hawker ineligible because he had a bad moral character. The law was not ex post facto, because the disability was based on the illegal conduct of which the conviction is mere evidence. Anyone proved to have performed abortions would be similarly ineligible.
Another leading (and problematic) decision, Kennedy v. Mendoza-Martinez, establishes a test for determining whether a law is criminal punishment or civil regulation. The test employs seven nonexclusive, unweighted factors, filtered through a rule that only the clearest proof will overcome a legislative claim that a measure is civil. Examination of the purposes of the legislature generally does not extend beyond the text of the law itself. Of course, the outcome of any seven-factor, nonexclusive test is indeterminate, and the key cases have been decided by very close votes. Mendoza-Martinez itself invalidated, by a five-to-four vote, automatic expatriation of those who avoided wartime military service by leaving the United States.
The result is that a State may subject convicted persons to harsh treatment. While it is unconstitutional if the State acts in such a fashion for punitive purposes, that treatment is entirely permissible if the underlying reason is to protect public safety or to promote some other aspect of the public interest. But virtually no examination of the actual motivation of the legislature is permitted by the judiciary. Obviously, a test putting so much weight on formal categorization will uphold many measures that are in fact motivated by a desire to punish.
United States v. Brown held that a law criminalizing service by a Communist in union offices was an unconstitutional bill of attainder, which necessarily required a finding that the law constituted punishment. The opinion offered a compelling argument that the quest for a sharp difference between punitive and regulatory measures is futile; punishment, including imprisonment and capital punishment itself, is often imposed for preventative purposes. One must, therefore, question the wisdom of a rule relying so much on a distinction between regulation and punishment, when the two are often not different in principle. More recently, Justice Stevens persuasively argued that the search for legislative intent behind sex offender registration laws was beside the point: In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person's liberty is punishment. Whatever the merits of these more searching tests for punishment, they are not the law today.
Even if they do not rise to the level of punishment, restrictions on people with convictions must nevertheless be rational under the Equal Protection Clause. However, rational basis review performed by courts in this context is far from exacting. For example, courts have found denials of public benefits to people with convictions to be rational because such restrictions save taxpayer money. In addition, courts do not require legislatures or agencies to classify people with convictions precisely.
The Supreme Court has found denial or burdening the exercise of civil rights to be unobjectionable in many circumstances, including deportation for noncitizens and deprivation of a citizen's right to vote, hold public office, serve on a jury, testify, and possess firearms. It has approved prohibitions on occupational licenses, and on private employment where there is a public interest. It has upheld denial of public benefits, and special restrictions, such as registration and incarceration of sex offenders.
At some point, the Constitution limits the power of legislatures. The Court has held that prisoners serving less than life sentences cannot be denied the right to marry; and so people with convictions who are not in prison, on probation, or on parole cannot be arbitrarily prohibited from marrying. Nor, probably, could a legislature require the sterilization of convicted people, at least without careful line-drawing and process. Nevertheless, an extremely broad range of restrictions is permissible, so long as the restrictions are regulatory and rational within the meaning of the law.
2. Innovative Collateral Consequences
Because collateral consequences are not, strictly speaking, punishment, existing limitations may be imposed retroactively on people not subject to them at the time of conviction. In addition, states are free to create new restrictions in previously unregulated areas. Thus, if rational basis review is taken seriously, then it appears that a truly unfortunate and spectacular range of potential discriminations may be visited long after the fact on those convicted of crime.
It would seem that virtually all denials of public benefits or services are rational because such benefits direct scarce resources to the most deserving. The federal government could, apparently, deny applications for Social Security, Medicare, and Medicaid from some or all people with felony convictions --because conservation of funds constitutes a rational basis on which to deny assistance to convicted felons and sex offenders. In the absence of some positive federal law to the contrary, states apparently could deny people with convictions access to public hospitals, higher education, and state benefit programs for the same reason.
Courts could find virtually all employment and licensing restrictions rational, as long as the job or occupation is one for which honesty, integrity, and moral character are relevant, for [i] t is not open to doubt that the commission of crime--the violation of the penal laws of a state--has some relation to the question of character. It is hard to imagine a job so insignificant and inconsequential that it could be done as well by a person of bad character as by someone who was hard working and honest. Because public employment is both a public benefit and a public trust, perhaps all restrictions in that area are rational.
Registration requirements, which originated outside the sex offender context, are now returning to their roots, with more jurisdictions requiring the registration of people with records involving non-sex crimes. Although Lambert v. California held that a particular person with a conviction could not be held liable for nonregistration based on the facts of that case, the Court did not hint that criminal registration might be unconstitutional in general.
One novel restriction is the limitation on the residence and movement of people convicted of sex offenses. The North Carolina Supreme Court held that people with criminal records can be denied access to public parks. Although some residential restrictions have been struck down on state law grounds, including under state ex post facto clauses, many courts considering the question have held that these restrictions are not ex post facto punishments, but instead reasonable regulations --even if they mean that for practical purposes a person cannot legally live anywhere in a particular city.
Bare majorities of the Sixth Circuit and the North Carolina Supreme Court upheld a satellite-based monitoring (SBM) program. The Massachusetts Supreme Judicial Court invalidated one by an equally close margin. The North Carolina Court described the program as remarkably burdensome and intrusive. Participants are required to
wear a transmitter, which is a bracelet held in place by a strap worn around one ankle. . . . Second, participants wear a miniature tracking device (MTD) around the shoulder or at the waistline on a belt. The MTD may not be hidden under clothing. The device contains the Global Positioning System (GPS) receiver and is tethered to the ankle bracelet by a radio-frequency (RF) signal. . . . The MTD includes an electronic screen that displays text messages communicating possible violations or information to the participant. Third, a base unit is required for charging the MTD's battery . . . . The MTD requires at least six hours of charging per twenty-four hour period.
In another case, a North Carolina court upheld the SBM program against an ex post facto challenge even though the program rules imposed a curfew, required a daily schedule, and necessitated six hours at home to charge the tracking device.
Regulation of this kind is costly, which ordinarily might deter states from creating and expanding such programs. However, statutes often require the people being monitored to pay the costs; these requirements have been upheld.
If residence and movement restrictions and monitoring requirements are rational and not punishment as applied to sx offenders, then there is a strong argument that they are also rational and not punishment for those convicted of other crimes. If children and others should be protected from sex offenders, then surely it is rational that they be protected from drug offenders, those who committed violent offenses or offenses with high possibilities of violence such as burglary, or, for that matter, from serial quality-of-life misdemeanants.
3. No Right to Notice at Plea or Sentence
Because collateral consequences have traditionally been understood as civil and nonpunitive, a defendant has not been constitutionally entitled to notice of existing restrictions from the Court before pleading guilty or to advice about the restrictions from defense counsel when considering how to proceed in the case. Deportation is, at the moment, the important exception. In March 2010 in Padilla v. Kentucky, seven Justices voted that the Sixth Amendment required defense counsel to advise clients about the possibility that a guilty plea would lead to deportation. Some lower courts have applied the advice requirement of Padilla to other collateral consequences, but the Supreme Court itself has not yet indicated how broadly Padilla will apply. As a general matter, people plead guilty to relatively minor offenses with relatively small punishments having no idea of what could happen to them, other than the possibility of deportation. Or, they plead guilty because they do know what will happen and they can live with it, but years later, the legislature adds additional collateral consequences (possibly including, of course, deportation) to an old conviction.
In sum, particularly in cases where the traditional forms of punishment are relatively light, collateral consequences will be one of the major effects of the criminal judgment. Yet, under the law as it now exists, it is not clear that the defendant has a right to be advised of the most important legal effects of the decision to enter a plea agreement.
. Professor of Law, University of California, Davis, School of Law.