Scholarship round-up II – two new articles by Jack Chin

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.

Here are links to the two articles with their abstracts:

Gabriel J. Chin, Collateral Consequences of Criminal Conviction in Academy for Justice, A Report on Scholarship and Criminal Justice Reform (Erik Luna ed., forthcoming 2017):

For many people convicted of crime, the greatest effect will not be imprisonment, but being marked as a criminal and subjected to collateral consequences. Consequences can include loss of civil rights, public benefits, and ineligibility for employment, licenses, and permits. Often applicable for life, the United States, the 50 states, and their agencies and subdivisions impose collateral consequences based on convictions from any jurisdiction. Collateral consequences are so numerous and scattered as to be virtually uncountable. In recent years, the American Law Institute, ABA, and Uniform Law Commission all have proposed reforms. Collateral consequences should be: (1) Collected so that defendants, lawyers, judges and policymakers can know what they are; (2) Incorporated into counseling, plea bargaining, sentencing and other aspects of the criminal process; (3) Subject to relief so that individuals can pursue law-abiding lives, and regain equal status; and (4) Limited to those that evidence shows reasonably promote public safety.

 

 

Gabriel J. Chin & John Ormonde, Infamous Misdemeanors and the Grand Jury Clause, Minnesota Law Review, Vol. 102 (forthcoming 2017)

Under an overlooked body of constitutional law, many more federal offenses must be prosecuted by grand jury indictment than is now the practice. Current rules provide that felonies must be prosecuted by grand jury indictment, but misdemeanor charges may be based on a prosecutor’s information, or even a “ticket” issued by a law enforcement officer. However, serious consequences fall on people convicted of federal misdemeanors, including deportation, sex offender or other criminal registration, ineligibility for public benefits, and loss of civil rights. In the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment. The Court held that infamous offenses were ones potentially resulting in stigmatizing punishments degrading the offender’s status, indicating that the person is less than a full member of the community. These include corporal punishment, incarceration in a prison or penitentiary (as opposed to a jail), loss of civil rights or imposition of civil disabilities, and convictions implying moral turpitude. Many federal misdemeanors carry these consequences. And federal misdemeanors are much more likely to be dismissed without trial than felonies. More thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge. As a result, thousands of Americans would avoid the stigma of a criminal record where it is unwarranted. This is what the framers of the Constitution intended.

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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