It’s time for another scholarship round-up! A more complete collection of scholarship on issues relating to collateral consequences and restoration of rights can be found on our “Books & Articles” page. (Abstracts follow list of articles.) Past round-ups here.
Thea Johnson, University of Maine School of Law
Indiana Law Journal, Vol. 92, 901 (2017)
Anna Roberts, Seattle University School of Law
Alabama Law Review (Forthcoming)
Brian M. Murray, University of Pennsylvania Law School
86 Fordham Law Review (Forthcoming)
Mike Vuolo, Ohio State University
Sarah Lageson, Rutgers University
Christopher Uggen, University of Minnesota
16 Criminology & Public Policy 139 (2017)
130 Harvard Law Review 811, 838 (2017)
Margaret Colgate Love
29 Federal Sentencing Reporter (forthcoming 2017)
Rachel E. Barkow, New York University School of Law
Mark William Osler, University of St. Thomas – School of Law (Minnesota)
William & Mary Law Review, Vol. 59 (2017)
Loyola University Chicago Law Journal (Forthcoming)
Doris Del Tosto Brogan, Villanova University School of Law
Susan P. Sturm, Columbia Law School
Haran Tae, Yale University Law School
Columbia Public Law Research Paper No. 14-547 (2017)
Vidhi Sanghavi Joshi, Legal Aid Society of Middle Tennessee
Clearinghouse Article, Sargent Shriver Center on Poverty Law (June 2017)
A number of new and interesting articles on collateral consequences have come to our attention since we published our first big scholarship round-up only weeks ago. We provide information, links, and abstracts on these pieces below. A more complete collection of scholarship on issues relating to collateral consequences can be found on our “Books & Articles” page.
Joann Sahl, University of Akron School of Law
100 Marquette Law Review 527 (2017)
Each year courts issue more than 1 million civil domestic violence protection orders (CPOs). Although most of these orders will expire in one or two years, their impact often remains for much longer periods. The expired CPOs continue to carry stigma and significant prejudicial consequences for someone once labelled as a batterer. This Article explores how collateral consequences, generally recognized only in criminal cases, now afflict those involved in civil domestic violence cases. It examines the civil domestic violence process and discusses why the process and its resulting orders create collateral consequences. The Article also identifies those collateral consequences unique to CPO cases and reveals why these consequences continue to impact negatively former CPO perpetrators even when there is no active CPO. This Article recommends that courts adopt a judicial sealing remedy to limit the impact of collateral consequences in CPO cases with no active order. The Article also proposes a test that allows a court to seal a CPO case if the case presents unusual and exceptional circumstances and the applicant’s interest in having the case sealed outweighs any government interest in the case remaining public.
Murat C. Mungan, George Mason University – Antonin Scalia Law School
Public Choice (forthcoming)
Date Posted on SSRN: April 5, 2017
This article presents a model wherein law enforcers propose sentences to maximize their likelihood of reelection, and shows that elections typically generate over-incarceration, i.e., longer than optimal sentences. It then studies the effects of disenfranchisement laws, which prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group, and thereby causes the political process to push the sentences for criminal offenses upwards. Therefore, disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people’s criminal tendencies, i.e., when criminals vote less frequently than non-criminals.
CCRC board member Jack Chin, Professor of Law at U.C. Davis, has recently posted two important articles about collateral consequences. One is a general overview of various recent proposals to reform the way collateral consequences are treated in the justice system, which will be published as part of a report on scholarship on criminal justice reform edited by Professor Eric Luna. The other argues that under the Grand Jury Clause of the Constitution certain federal misdemeanors may only be prosecuted by indictment because of the severe collateral consequences they carry. Chin and his co-author John Ormonde propose that “[m]ore thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge,” thereby sparing less serious offenders from the stigma of a criminal record. Because federal law makes no provision for sealing or expunging nonconviction records, even dismissed charges will appear on a rap sheet. Read more
Collateral consequences and restoration of rights have become hot topics in academia as the consequences of conviction grow more severe and the need for law reform becomes more apparent. Below we survey notable articles on topics relating to collateral consequences that have been released so far in 2017, some of which will be covered in more detail in subsequent posts. We hope to make scholarship round-ups a regular feature on the CCRC site, and we welcome submissions on relevant topics. A more complete collection of scholarship on issues relating to collateral consequences can be found on our “Books & Articles” page.
Melissa Hamilton, University of Houston Law Center
Emory Law Journal Online (Forthcoming)
Date Posted on SSRN: March 23, 2017
The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders. An issue that has arisen in the case is the state’s justification for the ban. North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes. The collective states contend that these three claims are supported by scientific evidence and common sense. This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.