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September 21, 2011

"Significant Entanglements: A Framework for the Civil Consequences of Criminal Convictions"

The title of this post is the headline of this interesting-looking new article by Professor Colleen Shanahan, which is now available via SSRN.  Here is the abstract: 

A significant and growing portion of our population is in or has recently been in prison. Nearly all members of this population will face significant obstacles as they struggle to reintegrate into society.  A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction.  As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes.

Padilla v. Kentucky, heralded by some as a watershed and others as an anomaly, is a first step in matching the law to the practical reality of the civil consequences of criminal convictions.  This article examines Padilla and the context in which it was decided and suggests that, although the dissenters in Padilla may be correct that the opinion will be difficult to apply in a coherent way, the solution to this challenge can be found in the decision itself, which has laid the foundation for a legal doctrine of civil consequences that reflects the reality of these consequences.  The Supreme Court’s recent decision in Turner v. Rogers underscores that the Court’s approach in these two cases creates the opportunity for a more realistic, consistent, and just doctrine of civil consequences of criminal convictions.

This article begins the process of defining this doctrine by suggesting that instead of inquiring into whether consequences are direct or collateral, the test used in the past, courts should inquire into whether these civil consequences are “significant entanglements” of civil and criminal law.  First, courts should analyze whether the civil consequence is significant, in both an objective and subjective sense.  Second, courts should examine whether the consequence is entangled with the criminal process.  Where significant entanglements exist, corresponding protections should follow. The article goes on to suggest that the significant entanglement framework can be used to analyze whether Sixth Amendment protections should apply to a particular civil consequence at a particular stage of the criminal process.  Further, the significant entanglement framework applies outside the Sixth Amendment to understand the other constitutional protections that may be applied by courts to civil consequences of criminal convictions.  Thus, the significant entanglement framework is the next step in developing a new doctrine for the protections that apply to civil consequences of criminal convictions.

September 21, 2011 at 09:22 AM | Permalink


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You know, this is another example of why academics are treated with such little regard by those of us in the trenches of criminal law. I would be curious as to whether Profesor Shanahan ran her "solution" past an overworked public defender, who is likely juggling a ridiculous caseload. This "significant entanglement framework" sounds more like something out of Harry Potter than a doctrine that would be of any use in the real world.

Posted by: Cal. Prosecutor | Sep 21, 2011 12:39:50 PM

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