Collateral Consequences: the Normative Issues

1. Hugh LaFollette University of Minnesota Law School 19 October 2012 Collateral Consequences:the Normative Issues

2. What CC Are • Civil penalties • Unlike fines, imprisonment, or probation—rarely part of the formal sentence • Frequently assessed after sentence served • Rarely part of the criminal law • Many charged do not know what they face • Violates principle of publicity • MN legislature is considering a bill to change that

3. Examples • Best known: voter disenfranchisement • Many more: state listing 175 pp.; federal, 75 • 25 jurisdictions: never hold public office • Often automatic grounds for divorce • Six states: no public employment • Barred from many federal jobs • 31 jurisdictions: cannot serve on a jury

4. This conference • Narrower focus, but extremely important • Significant impact, with ripple effects • Aim is to isolate normative issues. • Start with 3 preliminary yet related ones • Who • What (penalties) • When (for which crimes?)

5. Who • Previously licensed attorneys and medical practitioners • Narrow focus is more manageable • Use in these cases is more plausible • Perhaps generalize

6. What (penalties) • Options along a continuum • One extreme: mandatorily barred for life • Other: automatically regain. No discrimination • In between • Permanent, but not automatic (assessed at trial) • Indefinitely barred • Barred for # of years; if long enough . . . • Don’t mandate, but don’t bar discrimination • Permutation: reinstated upon appeal. Burden?

7. When (for which crimes?) • Three overlapping ways: • Class of crime • Relation to profession • Particulars of the case • Helps further isolate normative considerations

8. Class of crime • In most: follow higher classes of felonies • NJ • Bars attorneys convicted of C felonies & above • Others reach much lower • Texas bans midwives convicted of any felony • And many misdemeanors • Similarly for electricians • Too blunt — violates proportionality

9. Relation of crime to profession • Performed while acting as a professional • Genene Ann Jones • Oliver O’Grady • Begin to formulate a rationale • Patients and children especially vulnerable • If successful, require (merited) trust • Since felons harmed others for many years, vile . . . • Me or my children

10. Also those analogous • Doc who experiments • Embezzler • Rationale same as before • Still . . .

11. Not barred from all jobs • Would be effectively a death sentence • Law should still permit genuine opportunities • Perhaps not jobs they want • But that is true of many non-felons

12. Case specific • Regain, indefinite, or permanent, depending . . . • Set at sentencing (authorized) • Range • Detect global detrimental trait (exacerbating) • One-off, especially if mitigating factors

13. MN law used blended approach • Elements of 1st • Seems some are permanent • More commonly fixed number of years • And 2nd: crimes related to job sought • Normally crimes against individuals • Blocks working with vulnerable people • Doesn’t forbid, even if not convicted, but . . .

14. Reveals competing aims • Rehabilitate and reintegrate • While taking strong steps to protect innocent people • Nationally, CCs are added ad hoc • MN Collateral Sanction Commission wants more limited use and more reasonable rules

15. Previous suggests • Sometimes legit; sometimes not • Reasons to be squeamish • “Paid debt” to society • Easy to use indiscriminately • Cost to felons and society is too great • Yet reasons to sometimes use • Oliver O’Grady • Bernie Madoff • Cases where have compelling evidence of deep disposition and a vulnerablepopulation

16. Rationale for using • Not idle prediction or baseless hope • Med school as predictor • ¼ recidivism • 1 in 4 insufficient for tight supervision • Arguably sufficient for less drastic measures • In situations like those mentioned • Would distress felons . . . but not a right • Even if conditional right — burden of proof? • Plausible consequentialist rationale

17. Perhaps also retributive • Professions governed by norms; these felons’ actions violate those norms • Analogy • Plagiarism policies • Strict honor code • Doesn’t share core academic values

18. Variations on standard just. • Consequentialism • Protect by taking criminals off the street • Rehabilitation and deterrence • MCCC and MN law suggest primary engines • Retributive misgivings • Punish innocent; unduly stringer or lenient; wrong reasons • Should give them what they deserve (just deserts)?

19. Problem: how to resolve tension? • One option: levels of justification • Consequentialism is insufficient because if sometimes seems to justify . . . • Retributivism insufficient since . . . • So proposed solution: • Consequentialism justifies the practice and which actions are criminalized • Retributivism: actions falling under the practice

20. Can we use approach for CC? • One difficulty • Seems retributivism justify large disparities in CC that we currently use • Joe upon release; Bob after 2 yrs.; Sam never? • Consequential seemingly can explain • Unclear that retributivism can • von Hirsh and Wasik: not punishment and rarely used

21. Retributivist response • Cannot justify such wide disparities since they are not justified • Rarely use • Then retributive principle of proportionality

22. Another option • Ferzan: bridge by focusing on “responsible agency” • Common distinctions blind us “to a familiar predictive practice that is grounded in responsible agency. We can have a model that looks not only at what the agent has done but also at what he will do. Sometimes what actors do justifies acting on predictions of what they might do in the future.”

23. Summary • Some reasons plausible • Crime while acting as professional (or in analogous ways to it) • Nature of crime justifies prediction • Without these, little or no basis • Garbage collectors, septic tank cleaners • Running a small business • Or, if they are, only in rare cases • Currently used excessively to detriment