Scholarship round-up III

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.

“Can We Forgive Those Who Batter? Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases”

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.

“Over-Incarceration and Disenfranchisement”

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.

“Criminal Employment Law”

Benjamin Levin, Harvard Law School

Cardozo Law Review (forthcoming 2017)
Date Posted on SSRN: April 3, 2017

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal justice system. But private employers act without constitutional or significant structural checks. Therefore, I argue that the criminal justice system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment. Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market. And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers.

“Statistical (and Racial) Discrimination, ‘Banning the Box’, and Crime Rates”

Murat C. Mungan, George Mason University – Antonin Scalia Law School

George Mason Law & Economics Research Paper No. 17-13 (2017)
Date Posted on SSRN: March 27, 2017

This article presents law enforcement models where employers engage in statistical discrimination, and the visibility of criminal records can be adjusted through policies (such as ban the box campaigns). I show that statistical discrimination leads to an increase in crime rates under plausible conditions. This suggests that societies in which membership to disadvantaged groups is salient (e.g. through greater racial or religious heterogeneity) are, ceteris paribus, likely to have higher crime rates. Attempting to fix the negative impacts of statistical discrimination through policies that reduce the visibility of criminal records increases crime rates further. Moreover, such policies cause a greater negative effect for law abiding members of the disadvantaged group than members of the statistically favored group.

“More Justice and Less Harm: Reinventing Access to Criminal History Records”

Alessandro Corda, University of Minnesota Law School

60 Howard Law Journal 1-60 (2016)
Date Posted on SSRN: August 18, 2016

This Article challenges the conventional wisdom that public access and dissemination of criminal history information raise no special problems once a conviction occurs. The label “offender” burdens convicted individuals long after their debt to society has been paid. Numerous damaging effects labeled as mere “informal” collateral consequences of conviction go largely unquestioned. Contemporary debate revolves around partial remedial measures (“Ban the Box,” sealing and expungement schemes, issuance of certificates of relief/rehabilitation). These narrow although important proposals largely miss the point. For different reasons, they fail to effectively curb the devastating stigma produced by the current system that creates huge obstacles to people’s efforts to live law-abiding lives, and fosters unjust discrimination. How, when, and why criminal records should be generally accessible needs to be reconceived. Until the mid-1970s, conviction records were largely inaccessible except to public officials. There was near consensus that widespread dissemination is undesirable and inimical to reintegration of ex-offenders.

Yet the ill-fated combination of uncoordinated factors has led over time to unplanned results. The Article contends that the current state of affairs is an unintended consequence of post-Watergate open records movement and emphasis on public safety in criminal justice policy, compounded by the development of information technology and the Internet, and emergence of a private industry that trawls, sells, and often sensationalizes criminal records. Such industry has made access to criminal history information easy, cheap, ubiquitous, and unlimited in time. The Article argues for a reimagining of the way the criminal justice system and the legal system as a whole classify and use records of criminal convictions. In particular, it contends that the stigma that public access and dissemination entail must be reinvented as an ancillary criminal sanction that is ordered at sentencing, if at all, for a limited time as a deserved supplement to criminal sanctions imposed.