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August 13, 2012

"The New Civil Death: Rethinking Punishment in the Era of Mass Conviction"

The title of this post is the title of this important new piece now up on SSRN authored by Gabriel ("Jack") Chin. Here is the abstract:

Most people convicted of felonies are not sentenced to prison; a majority receive straight probation, or probation with a jail term.  However, this hardly means that the conviction is inconsequential.  Tens of thousands of federal, state, and local laws, regulations, and ordinances restrict the civil rights, employment, eligibility for public benefits, residence and other aspects of the status of convicted persons.

Accordingly, for many, the most serious and long-lasting effects of conviction flow from the status of being convicted and the concomitant lifetime subjection to collateral consequences.  However, courts generally treat collateral consequences as non-punitive civil regulations, and therefore not subject to constitutional limitations on criminal punishment.

This treatment of collateral consequences is surprising.  In cases like Weems v. United States and Trop v. Dulles, the Supreme Court understood systematic loss of status not only to be punishment, but to be cruel and unusual punishment.

Further, collateral consequences have practically revived the traditional punishment of civil death.  Civil death deprived offenders of civil rights, such as the right to sue, and other aspects of legal status.  Most civil death statutes were repealed in the Twentieth Century, but its equivalent has been reproduced through systematic collateral consequences. Instead of losing rights immediately, convicted people now hold their rights at sufferance, subject to limitation and restriction at the discretion of the government.

The new civil death, loss of equal legal status and susceptibility to a network of collateral consequences, should be understood as constitutional punishment.  In the era of the regulatory state, collateral consequences may now be more significant than was civil death in past decades.  The actions of judges, defense attorneys, and prosecutors should attend to what is really at stake in criminal prosecutions.

August 13, 2012 at 07:00 PM | Permalink


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Yep i'm just waiting till they realise since the new numbers say one out of every 36 people in america are NOW IN THIS GROUP!

They really don't have to take this shit any longer. Anytime they finaly realize that number and mass and walk into any govt off...it's DONE!

Posted by: rodsmith | Aug 13, 2012 9:40:36 PM

Should a violent convict be granted a license to carry a gun?

Should a sex offender get a job in a daycare center?

The promulgators of the endless regulations should carry the burden to prove the relevance and benefit to public safety. However, if the civil collateral consequence is related to the offense and protects the public, there is nothing wrong with it.

Posted by: Supremacy Claus | Aug 14, 2012 2:29:33 AM

I would prefer to sentence the offender to actual, rather than civil, death. But that's just me.

Posted by: Soronel Haetir | Aug 14, 2012 12:31:57 PM

well SC the only problem with the Not giving violent convict a gun is that ONCE released under our LEGAL CONSTUTITION they have the same RIGHTS as everyone else....unfortunatley that LEGALLY means the RIGHT TO KEEP AND BEAR ARMS!

the problem is using a gun in a crime that results in death or injury of a person should result in DEATH to the user. End of problem!

as for your second one.

Well no shit.. the answer should be no of course. There is no right to work in a day care. Just like an alcoholic should NOT work in a bar or liquor store.

i love this!

"The promulgators of the endless regulations should carry the burden to prove the relevance and benefit to public safety. However, if the civil collateral consequence is related to the offense and protects the public, there is nothing wrong with it."

Of course the burdon of proof should be on the state and they should be required to PRESENT that proof BEFORE the law is allowed to be implimented!

and i'm not talking about regulations. those are a chicken-shit way of bypassing the requiremen to PASS A LAW! that has to pass constutional muster!

Posted by: rodsmith | Aug 14, 2012 2:14:31 PM

Congratulations are due to Jack Chin on important piece of legal scholarship with very significant policy implications.
Jack Chin's article is worth reading in full. It points, for example that,“[a]t the broadest level of generality, approximately sixty-five million adults have a criminal record of some kind, although some of those involve arrests not leading to conviction.”

As a lawyer who serves on the Advisory Committee to the ABA Criminal Justice Section’s NIJ supported 50 state survey of collateral consequences, I am quite certain that when its results become publically available, those who look will find that the collateral consequences of conviction are shockingly pervasive.

The result: As a nation, we are at risk of creating a huge number of persons who bear convictions and are therefore permanently relegated to under-class status. We need reform.

Thanks for pointing it out Jack


Posted by: Rich Cassidy | Aug 14, 2012 11:17:58 PM

Once the criminal has served -(paid)their debt to society, then they should realize all rights restored.
Give a man the title of felon for life - Then hope he doesn't commit any more felonies!
Thats Pathetic
Who's worse -
The Trash(politicians)that have managed to incarcerate more of it's citizens than any other nation in history. (because it's profitable)<- that stinks
The Addict/drug dealer.
Addiction is a medical problem people.

I would set beside a killer for dinner long before breaking bread with a politician - that is a fact !

Posted by: Mark H. Stafford | Nov 18, 2012 9:35:03 PM

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