“Divergent moral vision” — Collateral consequences in Europe and the U.S.

A new article in the Stanford Law Review discusses the radically different forms of punishment in the United States and Europe, which its author attributes at least in part to differing moral visions of wrongdoing and wrongdoers.  In Two Cultures of Punishment, Joshua Kleinfeld argues that while Americans tend to regard serious offenders as “morally deformed people rather than ordinary people who have committed crimes,” European cultures “affirm even the worst offenders’ claims to social membership and rights.” Kleinfeld illustrates this “divergent moral vision” by the very different approach European countries take to collateral consequences. (The other two areas discussed in the article are lengthy prison terms and capital punishment).  Whereas in this country people convicted of crime are subject to a lifetime of legal restrictions and social stigma analogous to older forms of civil death, and are effectively consigned to a kind of “internal exile,” in Europe people who have committed a crime benefit from numerous measures to encourage their reintegration.

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How prosecutors use collateral consequences

A new article published in the Georgetown Law Journal argues that collateral consequences are becoming a valuable tool for prosecutors in the plea bargaining process, enabling them to leverage their existing power to control the outcome of criminal cases.  In Prosecuting Collateral Consequences, Eisha Jain of the University of North Carolina law faculty attributes this trend to a new awareness of collateral consequences made possible by initiatives like the National Inventory of the Collateral Consequences of Conviction, which show that even minor convictions can trigger serious civil penalties.  She explains the “structural incentives” that offer prosecutors an opportunity to avoid or trigger important civil penalties, or to bargain for enhanced criminal penalties in exchange for circumventing a particularly unwelcome collateral consequence (like deportation or eviction). Jain concludes that, for some prosecutors, “enforcing collateral consequences serves as an administratively efficient substitute for a criminal conviction” and a way to “promote their own policy preferences.”   In this fashion, prosecutors’ largely unreviewable discretion is extended to “an array of legal consequences, regulatory policies, and public interests.”

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The pros and cons of fingerprinting Uber drivers

The following piece by Maurice Emsellem of the National Employment Law Project was originally published on the Huffington Post.   Uber’s ruthless expansion strategy has put state and local legislators in the middle of the debate over regulation of the on-demand, ride-hailing workforce. Laws requiring background checks for drivers, which can restrict access to Uber’s core asset, are now a central theme of the regulatory battle, focusing specifically on the use of state and federal criminal history databases that require fingerprinting of ride-hailing drivers. Indeed, Uber and Lyft recently chose to abandon the Austin, Texas market rather than comply with local laws requiring taxi drivers to undergo fingerprint-based background checks (56 percent of Austin voters rejected an initiative to exempt on-demand companies from the city’s law). And in New Jersey and Chicago, where similar measures are now being actively debated, Uber retained former U.S. Attorney General Eric Holder to lobby against the bills by challenging the accuracy and fairness of fingerprint-based FBI background checks (which is an issue that NELP has championed as an advocate of bi-partisan federal reform legislation). To help inform the debate, it’s important to first clarify that “fingerprinting” is a shorthand term referring to background checks that require […]

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Washington enacts Certificate of Restoration of Opportunity

Washington State courts are now authorized to grant certain individuals a Certificate of Restoration of Opportunity (CROP), which prohibits many state licensing entities from disqualifying the holder solely based on his or her criminal history.  A CROP also protects employers and housing providers from liability for negligent hiring and renting.  The new certificate authority was created by HB 1533, which was signed by Governor Jay Inslee on March 31 and took effect last month. In light of the trend toward giving courts responsibility for restoring legal rights and certifying rehabilitation, we took a closer look at who is eligible for this newest judicial certificate and the benefits it confers. 

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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.

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