Collateral Consequences

Collateral Consequences of Criminal Convictions

Collateral consequences are legal disabilities imposed by law as a result of a criminal conviction, regardless of whether the convicted individual serves any time incarcerated¹. These consequences create social and economic barriers for individuals reentering society by denying or restricting benefits otherwise available to all Americans.

Collateral consequences are known to adversely affect adoptions, housing, welfare, immigration, employment, professional licensure, property rights, mobility, and other opportunities —the collective effect of which increases recidivism and undermines meaningful reentry of the convicted for a lifetime². Moreover, collateral consequences disproportionately affect minority and economically disadvantaged populations³. Despite the sweeping adverse consequences flowing from collateral consequences, they remain largely unknown —even to judges, attorneys and individuals.

Types of Collateral Consequences

Some commonly recognized collateral consequences include:

• Prohibition on gun possession after conviction of a felony
• Revocation of a driver’s license
• Loss of voting rights
• Ineligibility for jury service
• Loss of eligibility for public housing and benefits
• Loss of eligibility for student loans and grants
• Employment restrictions, especially for government jobs
• Professional licensing restrictions
• Registration as a sex offender
• Deportation for non-citizen immigrants

These consequences can last for years or even a lifetime after the original criminal sentence is complete. They affect major aspects of daily life, making it much more difficult for individuals with a criminal record to successfully reintegrate into society.

Lack of Knowledge About Collateral Consequences

One major issue with collateral consequences is that most people, including judges, attorneys, and defendants, lack awareness and understanding of their scope and impact⁴. Many collateral consequences are buried in state statutes and administrative codes, making them obscure and difficult to find. Even criminal law experts are often unaware of the full range of collateral consequences applicable in their jurisdictions.

This lack of knowledge prevents attorneys from properly advising clients on the indirect effects of pleading guilty. Defendants may plead guilty without fully understanding the additional penalties they will face outside of court. Judges cannot consider collateral consequences when sentencing if they do not know about them. And policymakers cannot reform the system if they do not understand it.

Increasing Focus on Collateral Consequences

Over the past two decades, collateral consequences have received increasing attention from lawmakers, courts, bar associations, and advocacy groups. Some key developments include:

• The American Bar Association created a National Inventory of Collateral Consequences to catalog state and federal laws.⁵
• The Uniform Law Commission drafted a Uniform Collateral Consequences of Conviction Act to help notify defendants.
• State bar associations have issued standards for defense attorneys to advise clients on collateral consequences.
• Some state legislatures have enacted reforms, like certificates of relief to mitigate certain collateral penalties.
• Advocacy groups like the National Association of Criminal Defense Lawyers now train lawyers on this issue.
• Some courts have found ineffective assistance of counsel when lawyers fail to advise clients of deportation risks.

While progress has been made, most collateral consequences still remain hidden from view. Much work remains to improve awareness and reform overly harsh policies.

Arguments For and Against Collateral Consequences

There are reasonable arguments on both sides of this complex issue⁶:

Arguments Supporting Collateral Consequences

• They protect public safety by keeping firearms, licenses, benefits, etc. out of the hands of convicted criminals.
• They deter crime by increasing the indirect penalties for unlawful acts.
• They provide appropriate punishment and accountability for wrongdoing.
• They are often triggered automatically by statute, rather than imposed subjectively by judges.

Arguments Opposing Collateral Consequences

• They impose extrajudicial punishment without due process.
• They are disproportionate, unrelated to the crime, and counterproductive.
• They increase recidivism by blocking reintegration.
• They disproportionately impact minorities and the poor.
• They undermine respect for the law by imposing invisible penalties.

In many cases, the collateral consequences seem disproportionate and counterproductive, blocking reintegration without improving public safety. However, some consequences directly related to the crime, like firearm bans for violent felons, may be justified.

Potential Reforms

Many experts argue collateral consequences should be tailored, proportional, and related to public safety. Potential reforms include⁷:

• Limiting collateral consequences only to serious crimes.
• Allowing discretion in imposing collateral penalties.
• Creating waiver or certification programs to lift specific disabilities.
• Improving transparency so consequences are not hidden.
• Limiting duration of collateral penalties.
• Providing rehabilitation and reintegration programs.
• Banning blanket employment and licensing restrictions.

A balanced approach can impose reasonable consequences related to the crime and public safety, while avoiding a complex web of hidden penalties that prevent reintegration.

Conclusion

Collateral consequences of criminal convictions impose huge burdens that undermine reentry and rehabilitation. Lack of awareness and proportionality in these consequences fuel recidivism and injustice. While some collateral penalties may be justified, the system needs reform to become more transparent, proportional, and focused on public safety rather than perpetual punishment. With smarter policies, society can balance accountability with providing opportunities for individuals with records to redeem themselves and productively rejoin their communities.

References

1. National Inventory of Collateral Consequences of Conviction, https://www.ojp.gov/pdffiles1/nij/grants/251583.pdf

2. Office of Justice Programs, https://www.ojp.gov/pdffiles1/nij/241927.pdf

3. U.S. Commission on Civil Rights, https://www.usccr.gov/files/pubs/2019/06-13-Collateral-Consequences.pdf

4. University of Minnesota Robina Institute, https://robinainstitute.umn.edu/articles/revisiting-collateral-consequences-their-impact-and-outside-courtroom

5. American Bar Association, https://www.americanbar.org/groups/criminal_justice/niccc/

6. U.S. Commission on Civil Rights, https://www.usccr.gov/files/pubs/2019/06-13-Collateral-Consequences.pdf

7. Office of Justice Programs, https://www.ojp.gov/pdffiles1/nij/241927.pdf