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 Most civil death statutes were repealed in the Twentieth Century, but its equivalent has been reproduced through systematic collateral consequences.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.Chin notes that
In Weems v. United States and Trop v. Dulles the Court found total destruction of a person’s legal status in society to be cruel and unusual punishment under the Eighth Amendment.
Weems originated in the Philippines which was a U.S. territory at the time. The Court in Weems invalidated the cadena temporal, a punishment where, for a period of years, the person sentenced would be imprisoned and perform hard labor for the State. In addition to the hard labor, those sentenced to cadena temporal would thereafter suffer “accessory penalties,” namely, “civil interdiction,” “perpetual absolute disqualification,” and “subjection to surveillance during life.” The Court regarded these penalties, clearly recognizable as versions of modern collateral consequences, as harsh:
His prison bars and chains are removed, it is true, after twelve years, but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicil without giving notice to the “authority immediately in charge of his surveillance,” and without permission in writing. He may not seek, even in other scenes and among other people, to retrieve his fall from rectitude. Even that hope is taken from him and he is subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by their continuity, and deprive of essential liberty.
The Court was also concerned about the portion of the sentence involving painful labor, and it is difficult to identify precisely what about the nature and degree of cadena temporal made it unconstitutional. Nevertheless, the “accessory penalties” were a basis, perhaps the most important basis, for the Court’s ruling. A half-century later in Trop v. Dulles, five Justices found another “accessory penalty”— expatriation or denationalization of a United States citizen — to be cruel and unusual because it destroyed legal personality. They ruled that Congress had no power to punish a U.S. citizen with denationalization for desertion in time of war. The citizen could be executed, they explained, but deprivation of citizenship was cruel and unusual.
The plurality opinion suggested that denationalization is substantially similar to civil death. By imposing denationalization as punishment, they explained,
There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. ... In short, the expatriate has lost the right to have rights.
Uncertainty based on the possibility of future discrimination was the key feature making “[t]his punishment ... offensive to cardinal principles for which the Constitution stands.” Justice Brennan’s opinion, providing the necessary fifth vote, also found the uncertainty created by the status to be critical.