Alessandro Corda has a new article that compares the treatment of regulatory collateral consequences in the United States and in European legal systems.  He argues that the primary difference is that in Europe proportionality is central to punishment schemes, and that sentencing courts must consider the impact of all combined sanctions on the defendant, including collateral consequences, in deciding whether a sentence is proportional to the crime.  “Collateral restrictions in the United States, instead, are not taken into account in determining the overall proportionality of the sentence to the seriousness of the offense since they are not considered as punishment.”  Criminal courts in the United States rarely consider collateral consequences in imposing a sentence, and for the most part have not regarded them as any of their business.

Corda points out that “Europe never moved completely away from a rehabilitative model of punishment,” and that “the ultimate goal of European penal systems widely remains the reintegration of ex-offenders.”  In contrast, “the approach toward collateral restrictions in the United States tends to mirror prevailing criminal justice attitudes oriented primarily toward harsh and prolonged measures of penal control.”  Even during a period of “penal climate-change,” when sentencing and corrections policies are being rethought in this country, collateral consequences have been largely left out of the reform picture.  He argues that “no reform aimed at moving away from mass incarceration and overreliance on penal control can ultimately succeed if indirect ramifications of ‘being a criminal’ are ignored.”

Corda proposes that collateral consequences should be integrated into the sentencing process as a formal part of the sentence, “thus moving beyond the legal fiction of the divide between direct and indirect consequences of a criminal conviction.”  Proposals of national law reform organizations like the American Law Institute are a step in the right direction in giving sentencing courts the authority to dispense with mandatory collateral penalties, but they stop well short of regulating discretionary consideration of criminal record.

Corda concludes that there is an “inherent contradiction” in “policies of massive investments in reentry programs (e.g., the Second Chance Act Grant Program) that simultaneously leave collateral restrictions out of the equation.”  Legislative programs designed to promote reintegration are “doomed to fail if the issue of [collateral consequences] is not considered and tackled properly and effectively.”

One sign that this is beginning to happen is the expansion of authorized diversionary dispositions whereby courts may afford less serious offenders an opportunity to avoid a criminal record entirely.  For example, the Forgiving & Forgetting report (pp. 13-15) notes that all but 13 states now authorize deferred adjudication, many for felony-level offenses, and most including expungement for successful participants.  In some jurisdictions access to such court-managed diversionary programs is controlled by prosecutors, but there are hopeful signs that prosecutors are becoming more sensitive to the impact of collateral consequences on recidivism.

Here is the citation and abstract for Professor Corda’s article:

Alessandro Corda, The Collateral Consequences Conundrum: Comparative Genealogy, Current Trends, and Future Scenarios, in AFTER IMPRISONMENT, a special issue of Studies in Law, Politics and Society, edited by Austin Sarat.

Abstract:

Collateral consequences (CCs) of criminal convictions such as disenfranchisement, occupational restrictions, exclusions from public housing, and loss of welfare benefits represent one of the salient yet hidden features of the contemporary American penal state. This chapter explores, from a comparative and historical perspective, the rise of the many indirect “regulatory” sanctions flowing from a conviction and discusses some of the unique challenges they pose for legal and policy reform. US jurisprudence and policies are contrasted with the more stringent approach adopted by European legal systems and the European Court of Human Rights (ECtHR) in safeguarding the often blurred line between criminal punishments and formally civil sanctions. The aim of this chapter is twofold: (1) to contribute to a better understanding of the overreliance of the US criminal justice systems on CCs as a device of social exclusion and control, and (2) to put forward constructive and viable reform proposals aimed at reinventing the role and operation of collateral restrictions flowing from criminal convictions.