Collateral consequences: punishment or regulation?

Have we been wrong in trying to fit the round peg of collateral consequences into the square hole of punishment?  Sandra Mayson, a Fellow at the Quattrone Center at the University of Pennsylvania Law School, says yes.  In an article published in the Notre Dame Law Review, Mayson challenges the view of some scholars that mandatory collateral consequences should be considered part of the court-imposed sentence, and thus potentially limited by procedural due process and ex post facto principles.  For starters, the Supreme Court has told us that dog won’t hunt.

But that doesn’t mean that collateral consequences should be immune from constitutional constraint. Mayson proposes instead to analyze collateral consequences as “preventive risk regulation” under principles developed in the administrative law context.  Specifically, she argues that a severe collateral consequence (such as sex offender registration) may be justified only if it can be shown to serve a public safety purpose in a particular case.

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