"The Color of Collateral Damage: The Mutilating Impact of Collateral Consequences on the Black Community and the Myth of Informed Consent"

The title of this post is the title of this new paper authored by Trevor Shoels and recently made available on SSRN.  Here is its abstract:

The rights of the convicted have long been constrained by the relentless imposition of collateral consequences of criminal convictions.  More specifically, collateral consequences of drug convictions have a disparate impact on the Black community due to over-policing of Black neighborhoods.  Consequently, Black people are over-prosecuted, leading to more convictions and ultimately making them the primary victim of collateral consequences. Certain collateral consequences almost exclusively affect Black people and are strikingly similar to Jim Crow laws.  Similar to Jim Crow laws, these collateral consequences almost exclusively prohibit the Black convicted from public housing, welfare assistance, financial aid, the ability to vote, the ability to receive certain jobs and licenses, and more.

Collateral consequences are considered categorically different from forms of direct punishment like fines, jail time, and probation.  Due to this deceptive distinction, there is no notice requirement for collateral consequences at the plea stage.  Thus, many defendants will accept deals for guilty pleas, completely unaware that collateral consequences will affect them for what could be the rest of their lives.  In regard to this mockery of justice, this Article implores the argument that the informed consent requirement, as it stands, is a myth.

This article discusses the constitutional implications surrounding the prejudicial imposition of collateral consequences and the blurred distinction made between collateral consequences and direct punishment.  In doing so, this article proposes (1) Congress employ a legislative overhaul to remove prejudicial collateral consequences (2) Supreme Court change the standard of judicial review from the rational basis test to strict scrutiny and extend their holding in Padilla v. Kentucky to apply to all collateral consequences, and (3) Federal and State legislators enact legislation aimed at placing procedural safeguards — like a notice requirement — at the plea stage.