On Monday, the CCRC posted the abstract of an extensive new law review article, Prosecuting Collateral Consequences, 104 Georgetown L. J. 1197 (2016). The article, by a brand new University of North Carolina Law Professor, Elisha Jain, argues that new awareness of the collateral consequences of criminal conviction has extended the largely unreviewable discretion of public prosecutors into civil public policy decisions like deportation and licensing.
This should not be news to anyone who has followed the developing scholarship in the field, but it is a point worth making at some length. The article makes unmistakable a point that is only now emerging among many participants in the criminal justice system: that because the collateral consequences of conviction are often, particularly as to minor crimes, more important than the direct consequences of conviction, sophisticated defense lawyers, prosecutors, and judges will make negotiating about collateral consequences a central feature of the plea bargaining process.
A new article published in the Georgetown Law Journal argues that collateral consequences are becoming a valuable tool for prosecutors in the plea bargaining process, enabling them to leverage their existing power to control the outcome of criminal cases. In Prosecuting Collateral Consequences, Eisha Jain of the University of North Carolina law faculty attributes this trend to a new awareness of collateral consequences made possible by initiatives like the National Inventory of the Collateral Consequences of Conviction, which show that even minor convictions can trigger serious civil penalties. She explains the “structural incentives” that offer prosecutors an opportunity to avoid or trigger important civil penalties, or to bargain for enhanced criminal penalties in exchange for circumventing a particularly unwelcome collateral consequence (like deportation or eviction).
Jain concludes that, for some prosecutors, “enforcing collateral consequences serves as an administratively efficient substitute for a criminal conviction” and a way to “promote their own policy preferences.” In this fashion, prosecutors’ largely unreviewable discretion is extended to “an array of legal consequences, regulatory policies, and public interests.”
Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the same kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access.