Editor’s note: This past year has seen a burgeoning of scholarship dealing with collateral consequences broadly defined, from lawyers, social scientists, and philosophers. CCRC’s good friend Alessandro Corda has selected fifteen notable articles published in 2018-19, with information, links, and abstracts. They are organized into five categories:
(1) Legal collateral consequences
(2) Collateral consequences and criminal procedure
(3) Sex offender registration laws
(4) Informal collateral consequences
(5) Criminal records, expungement, sealing, and other relief mechanisms
A complete and regularly updated collection of scholarship on issues relating to collateral consequences and criminal records can be found on our “Books & Articles” page. From time to time we will preview and comment on new articles, and Alessandro has promised to provide another round-up by the end of the year. We hope he will continue indefinitely in the role of CCRC’s official bibliographer. (A PDF copy of this scholarship round-up is here.)
Can people restored to full legal status in one state expect their status to be recognized if they move to another state, just as marriage is generally given interstate recognition? Can a person convicted in one state qualify for restoration of rights in another? What about a federal offender seeking relief under state law, or a state offender seeking relief from federal collateral consequences? Is there a role for Congress to play in ensuring fair treatment of people with a criminal record as they move around the country? These questions are increasingly important both as a practical and theoretical matter, as collateral consequences multiply and begin to limit Americans’ right to travel.
So it is timely that Wayne Logan, a Florida State University law professor widely known for his work on sex offender registration and other collateral consequences, has published a fascinating new treatment of the issue titled ‘When Mercy Seasons Justice’: Interstate Recognition of Ex-Offender Rights. The article, which appears in the UC Davis Law Review, examines the impact of federalism on the ability to obtain true relief from the collateral consequences of conviction in a mobile society. It is an issue that is widely overlooked, and the article reminds us that a comprehensive discussion about the impact of collateral consequences must take into account their inter-jurisdictional effects. The true impact of collateral consequences and relief mechanisms must be measured by the interplay of laws between jurisdictions as well as by the interplay of laws within them. Read more
Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan’s work. You can find the chart at this link.
There has been a lot of discussion about how one gets ON a sex offender registry. Now Wayne Logan has given us a fascinating study of what it takes to get OFF in different U.S. jurisdictions. His article, forthcoming in the Wisconsin Law Review, is a must-read for any practitioner, and a helpful guide to law reformers in many jurisdictions. Its title is “Database Infamia: Exit from the Sex Offender Registries,” and its abstract follows:
Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means. Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships. This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.
In an important decision for firearms-related collateral consequences, the New Hampshire Supreme Court relied on the Second Amendment to carve out an exception to the so-called federal felon-in-possession statute, declining to follow relevant federal court precedents. At stake is whether state or federal courts have the last word on the scope of the exceptions in 18 U.S.C. 921(a)(20). In DuPont v. Nashua Police Department, the court held that a man convicted of a misdemeanor DUI, who as a result lost his right to possess a firearm under state and federal law, was able to avoid federal firearms disability by virtue of the restoration of his state firearms rights, even though he lost none of the traditional “core” civil rights (vote, office, jury). In order to get to this result, the court had to conclude that the right to possess a firearm is itself a civil right, whose loss and restoration under state law is sufficient to satisfy the “civil rights restored” requirement in 921(a)(20), thus creating a narrow but significant exception to the U.S. Supreme Court’s holding in Logan v. United States.
While the holding in DuPont applies only to a limited class of misdemeanants (those who lost and regained state firearms rights), the decision may be the opening salvo in a state backlash against federal efforts to define the scope of state relief recognized in 921(a)(20).