Should potentially severe collateral consequences trigger enhanced procedural protections?
In two recent law review articles, Professor Paul T. Crane of the University of Richmond School of Law proposes that courts and legislators—when deciding whether a criminal defendant is entitled to a particular procedural right—should take into account potential exposure to severe collateral consequences. The two articles together mark a major contribution to the literature. Much attention has focused on alleviating or eliminating collateral consequences after the criminal case is closed, via restoration of rights, clemency, expungement, and other forms of relief. Also, lawmakers, courts, and prosecutors have increasingly turned to diversions and deferred adjudications to avoid a conviction record in the first instance. However, far less attention has been paid to the procedural rights provided to criminal defendants facing potentially severe collateral consequences. As Crane points out, collateral consequences are “generally deemed irrelevant for determining what procedural safeguards must be afforded.”
In Crane’s first article, he argues that courts and legislatures ought to take into account a defendant’s exposure to potentially severe collateral consequences in determining whether procedural safeguards, such as the right to counsel and to a jury trial, apply. In his second article, he proposes a framework for determining when defendants may be entitled to enhanced procedural protections.