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.”
“Managing Collateral Consequences in the Information Age” is the title of a symposium issue of the Federal Sentencing Reporter. It is composed of papers prepared for a Roundtable conference on criminal records issues jointly sponsored by the American Law Institute and the National Conference of State Legislatures in January 2018, and associated primary source materials. The issue’s Table of Contents shows the breadth and variety of topics covered. An introductory essay by Margaret Love summarizes the approach to managing collateral consequences in the revised sentencing articles of the Model Penal Code, and the seemingly contrary trends in criminal records management in state legislatures in recent years. She describes each of the papers in the issue, and policy recommendations tentatively reached by participants in the January Roundtable.
- Alessandro Corda of Queens University (Belfast) contributes a discussion of “American exceptionalism” in criminal records matters, and proposes a way of neutralizing their malign effect.
- Scholars and practitioners describe how relief schemes work (or don’t work) in states as diverse as:
- North Carolina (John Rubin, UNC/Government)
- Tennessee (Joy Radice, UT/Law)
- Nevada (Sen. Tick Segerblom and Nick Anthony, NV Legislature)
- California (Jack Chin, UC Davis/Law; Eliza Hersh)
- Indiana (Josh Gaines and Margaret Love, CCRC)
- Douglas Berman and Nora Demleitner write about subsets of the collateral consequences problem (sex offender registration and marijuana decriminalization).
The issue also publishes the provisions of the Model Penal Code: Sentencing on non-conviction dispositions and on collateral consequences, and a collection of reports and other materials from the Collateral Consequences Resource Center.
The University of California Press has generously made available to non-subscribers the entire FSR issue for downloading at this link
A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction. The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences. [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.]
In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief. As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences. The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone searching for innovative ways to lighten the burden of a criminal record.
A new paper by CCRC editor Margaret Love describes how the newly revised sentencing articles of the Model Penal Code manage collateral collateral consequences by integrating them into the sentencing process. The article, published in the Wisconsin Law Review, compares the new MPC provisions with the collateral consequences provisions of the original 1962 Code. Here is the abstract:
The debased legal status that results from a criminal conviction makes possible a regime of restrictions and exclusions that feels like punishment to those who are subject to it and looks like punishment to the community. Policy makers are beginning to understand that the goal of reintegrating criminal offenders into society is not well served by a legal system that makes them permanently ineligible for many of its benefits and opportunities and effectively marks them as social outcasts. Because courts have failed to address issues of severity and proportionality raised by punitive mandatory collateral penalties, and because legislatures have been unwilling to dial them back in any meaningful fashion, reformers have turned to the sentencing system to restore collateral consequences to an appropriate regulatory role.
One such reform proposal is the American Law Institute’s Model Penal Code: Sentencing (MPC), which integrates collateral consequences into a sentencing system that gives the court rather than the legislature responsibility for shaping and managing criminal punishment in particular cases. Just as the court decides what sentence it will impose within a statutory range, the court also decides which mandatory collateral penalties will apply and for how long. This gives sentencing courts new tools to further the rehabilitative goals of sentencing, and at the same time it enables them to avert issues of proportionality an
Oklahoma is the most recent state to expand its expungement laws to make more people eligible for record-clearing at an earlier date. While the specific changes adopted by the Oklahoma legislature are relatively modest, involving reduced waiting periods and fewer disqualifying priors, they are significant as part of a national trend toward enlarging this type of “forgetting” relief for people with minor criminal records. Details of Oklahoma’s law are available here.
Other states that have enacted new expungement laws or broadened existing ones in the past two years include Alabama, Arkansas, Colorado, Indiana, Minnesota, and Tennessee.
Alabama’s new expungement law is the first record-closing law in that state and applies only to non-conviction records. Arkansas and Minnesota broadened or consolidated existing expungement schemes that were already quite extensive. The Indiana expungement scheme is entirely new and particularly comprehensive and progressive. (An analysis of the new law by its primary sponsor in the Indiana legislature will be posted in this space very soon.) The effect of this type of “forgetting” relief varies widely from state to state, from complete destruction of records in states like Pennsylvania and Connecticut to more limited relief in Kansas and Indiana, where expunged records remain accessible to some employers as well as law enforcement.
The other type of individualized judicial relief from collateral consequences that is growing in popularity relies not on limiting public access to a person’s criminal record, but instead on Read more