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.

Mayson notes that the Supreme Court’s two 2003 decisions upholding sex offender registration schemes in Connecticut and Alaska did not rule out the possibility of substantive due process as a basis for challenge.  (An example of this, decided after Mayson’s article was published, is the Pennsylvania Court of Appeals’ decision in Peake v. Commonwealth, striking down provisions of the PA Older Adults Protective Services Act under the state constitution on substantive due process grounds.)

Because Mayson doesn’t regard collateral consequences as part of the sentence, she questions the advisability of making sentencing courts responsible for managing them in the sentencing process, as proposed by the Uniform Law Commission and the American Law Institute.

The analytical framework proposed by Mayson for dealing with mandatory collateral consequences is appealing, but it is not likely to have much practical effect except in the kind of extreme circumstances involved in Peake.  The problem is that we have constructed a vast apparatus of mandatory collateral penalties with no possibility for administrative challenge, and litigation is costly and time-consuming.  The dispensing role assigned courts under the ULC and ALI proposals, already in effect in several states including New York and Vermont, has greater potential for delivering individualized relief.  At the same time, it is important to devise clear enforceable risk-related standards to guide courts in deciding when a mandatory consequence is inappropriate.

The article’s abstract follows:

Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs as “punishment,” the consensus holds, such that constitutional constraints on punishment will apply.

This Article argues for a different approach. The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis for limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people’s liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs — for both theoretical and tactical reasons — is to recognize them as predictive risk regulation and seek to develop appropriate constraints.

You can find more scholarly articles dealing with collateral consequences and relief from their effects on our resource page here.

Margaret Love

Margaret Love is CCRC's Executive Director. A former U.S. Pardon Attorney, she represents applicants for executive clemency in her private practice in Washington, D.C.. She is lead co-author of Collateral Consequences of Criminal Conviction: Law, Policy, and Practice (4th ed. 2021), and served as an advisor to the ALI Model Penal Code: Sentencing.

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