The new civil death: Rethinking punishment in the era of mass conviction

University of Pennsylvania Law Review

Volumn 160, Issue 6, 2012, Pages 1789-1833

  Chin, Gabriel J ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 84863577917     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Review

References (291)

1. Chaunt v. United States, 364 U.S. 350, 358 (1960) (Clark, J., dissenting).
2. See Margaret Colgate Love, Essay, The Collateral Consequences of Padilla v. Kentucky: Is Forgiveness Now Constitutionally Required?, 160 U. PA. L. REV. PENNUMBRA 113, 116 n.12 (2011), http://www.pennumbra.com/essays/12-2011/Love.pdf (listing inventories of collateral consequences in particular jurisdictions).
3. Sutton v. McIlhany, 1 Ohio Dec. Reprint 235, 236 (C.P. Huron County 1848).
4. See, e.g., UNIF. COLLATERAL CONSEQUENCES OF CONVICTION ACT §§ 2(1), 5 (2010) (defining the term "collateral consequence" and describing how judges should give notice of these consequences);
5. STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS standard 19-1.1 (2003) ("The term 'collateral sanction' means a legal penalty, disability or disadvantage, however denominated, that is imposed on a person automatically upon that person's conviction for a felony, misdemeanor or other offense, even if it is not included in the sentence.");
6. Dan Markel & Chad Flanders, Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice, 98 CALIF. L. REV. 907, 968 (2010) ("The state thus bears responsibility for what it does and authorizes during the term of punishment. . But the retributive punishment does not include whatever difficulties-economic, physical, psychological-the offender may suffer after release from supervision of the criminal justice system. . When the state releases the offender and extinguishes any remaining conditions, it has said all it had to say.").
7. Perhaps a good place to begin such an inquiry is to note the connections between race and status, conviction, and collateral consequences. See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 173-208 (2010) (arguing that collateral consequences disproportionately affect African Americans and resemble old Jim Crow laws);
8. ORLANDO PATTERSON, SLAVERY AND SOCIAL DEATH 35-76 (1982) (examining slavery across cultures and arguing that a complex system of social exclusion, rather than race alone, drives slavery systems);
9. Gabriel J. Chin, Race, the War on Drugs, and the Collateral Consequences of Criminal Conviction, 6 J. GENDER RACE & JUST. 253, 262-64 (2002) (discussing the disproportionate effect of collateral consequences on African Americans in the context of drug crimes).
10. See generally 13 CORPUS JURIS Convicts § 2 (1917) ("By the ancient common law when sentence was pronounced for treason or other felony the offender was. placed in a state of attainder. And there were three principal incidents consequent on such attainder, namely, forfeiture, corruption of blood, and an extinction of civil rights, more or less complete, which was denominated civil death." (footnotes omitted));
11. COLIN DAYAN, THE LAW IS A WHITE DOG: HOW LEGAL RITUALS MAKE AND UNMAKE PERSONS 44-70 (2011) (discussing legal alienation in American history and how historic practices paved the way for contemporary developments);
12. READINGS ON THE HISTORY AND SYSTEM OF THE COMMON LAW 490-92 (Roscoe Pound & Theodore F.T. Plucknett eds., 3d ed. 1927) (citing additional sources);
13. Rebecca McLennan, The Convict's Two Lives: Civil and Natural Death in the American Prison (exploring the development of civil death in American prisons in the nineteenth century and its relation to contemporary policy), in AMERICA'S DEATH PENALTY: BETWEEN PAST AND PRESENT 191, 194-98, 208-12 (David Garland et al. eds., 2011);
14. Kim Lane Scheppele, Facing Facts in Legal Interpretation (examining the concept of civil death in the context of a case where a court refused to allow a murderer to inherit from the decedent), in LAW AND THE ORDER OF CULTURE 42, 54-59 (Robert Post ed., 1991);
15. Note, Civil Status of Convicts, 14 COLUM. L. REV. 592, 592-94 (1914) (analyzing various judicial interpretations of state civil death statutes);
16. Note, The Legal Status of Convicts During and After Incarceration, 37 VA. L. REV. 105, 105-10 (1951) (describing civil death jurisprudence under then-existing law);
17. Case Comment, Persons: The Status of Convicts, 5 CALIF. L. REV. 81, 82-83 (1916) (investigating the history and then-contemporary application of civil death in California).
18. The opposite of "civil death" was not "criminal death." See Wageman v. Brown, 1 Ohio Dec. Reprint 69, 72 (1844) ("The words natural death were used in contradistinction to the words 'civil death.'");
19. see also Ex parte Christy, 44 U.S. (3 How.) 292, 325 (1845) (Catron, J., dissenting) (referring to "a natural or civil death").
20. Avery v. Everett, 18 N.E. 148, 150 (N.Y. 1888) (citations omitted)
21. (quoting 3 EDWARD COKE, COMMENTARY ON LITTLETON *386)
22. and 1 JOSEPH CHITTY, A PRACTICAL TREATISE ON CRIMINAL LAW *725);
23. see also, e.g., Wallach v. Van Riswick, 92 U.S. 202, 210 (1875) (describing forfeiture and corruption of blood under English common law);
24. Rhea v. Rhenner, 26 U.S. (1 Pet.) 105, 108 (1828) ("It has been uniformly considered, that banishment, or abjuration, is a civil death of the husband.");
25. Rutherford's Heirs v. Wolfe, 10 N.C. (3 Hawks) 272, 277 (1824) (noting the connection between attainder and civil death);
26. State v. Duket, 63 N.W. 83, 85 (Wis. 1895) ("By the common law certain consequences resulted from judgment given in capital cases, namely, attainder, 'by which the defendant was no longer of any credit or reputation. He cannot be a witness in any court, neither is he capable of performing the functions of another man; for, by anticipation of his punishment, he is already dead in law.'" (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *380-81)).
27. But see Rankin's Heirs v. Rankin's Ex'rs, 22 Ky. (6 T.B. Mon.) 531, 537 (1828) (holding a man sentenced to death for murder still had the power to make a will).
28. Hayden v. Pataki, 449 F.3d 305, 316 (2d Cir. 2006) (en banc)
29. (citing Mirjan R. Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study, 59 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 347, 351 (1968)). The Supreme Court has also recognized this history.
30. See, e.g., United States v. Brown, 381 U.S. 437, 448 (1965)
31. ("The deprivation of any rights, civil or political, previously enjoyed, may be punishment. ." (quoting Cummings v. Missouri, 71 U.S. (4. Wall.) 277, 320 (1866)));
32. see also, e.g., 1 SAMUEL HALLIFAX, ELEMENTS OF THE ROMAN CIVIL LAW 110 (London, n. pub. 1818) ("Punishments of Natural or Civil Death were called Capital: others, short of Natural or Civil Death, were called Not-Capital.");
33. The Russian Code (pt. III), 10 LEGAL OBSERVER 375, 377 (1835) (noting that in the nineteenth century Russian Code "[t]he punishments are those of death; political death; privation of civil rights; corporal punishment; hard labour; transportation; forced enlistment; fines; confiscations and ecclesiastical censures").
34. U.S. CONST. art. III, § 3, cl. 2. Note that the word "attainder" as used in the Constitution has the dual meaning of conviction and punishment. A "Bill of Attainder" means conviction by the legislature. See Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 86 (1961) ("The singling out of an individual for legislatively prescribed punishment constitutes an attainder. .");
35. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323-24 (1866) ("The expression [bill of attainder] is generic, and includes not only legislative acts to punish felonies, but every legislative act which inflicts punishment without a judicial trial.");
36. Briscoe v. Bank of Ky., 9 L. Ed. 709, 930 (1837) (Baldwin, J., concurring) ("Hence, the term bill of attainder, means the conviction of a person of a crime by legislative power. ."). "Attainder" as used in the Treason Clause also refers to a specific set of punishments.
37. See Nixon v. Adm'r of Gen. Servs, 433 U.S. 425, 473 & n.35 (1977) (explaining that "a bill of attainder originally connoted a parliamentary Act sentencing [someone] to death" and that "attainder of death was usually accompanied by a forfeiture of the condemned person's property. and the corruption of his blood, whereby his heirs were denied the right to inherit his estate");
38. Furman v. Georgia, 408 U.S. 238, 317 n.8 (1972) (Marshall, J., concurring) ("[T]he English also provided for attainder ('dead in law') as the immediate and inseparable concomitant of the death sentence. The consequences of attainder were forfeiture of real and personal estates and corruption of blood.").
39. See Austin v. United States, 509 U.S. 602, 613 (1993) ("The Constitution forbidsforfeiture of estate as a punishment for treason 'except during the Life of the Person attainted,' and the First Congress also abolished forfeiture of estate as a punishment for felons." (citations omitted)).
40. See, e.g., Frazer v. Fulcher, 17 Ohio 260, 262-64 (1848) (rejecting the English common law punishment and distinguishing the tradition of civil punishment in New York because there it was enacted by statute);
41. Note, Civil Death Statutes-Medieval Fiction in a Modern World, 50 HARV. L. REV. 968, 968 n.1 (1937) (listing civil death statutes from eighteen states).
42. See ELIZABETH A. HULL, THE DISENFRANCHISEMENT OF EX-FELONS 17 (2006) (noting that many states imposed felon disenfranchisement even if they did not impose civil death).
43. Hovey v. Elliott, 167 U.S. 409, 444 (1897).
44. Collins v. Metro. Life Ins. Co., 83 N.E. 542, 545 (Ill. 1907)
45. (quoting 1 FRANCIS WHARTON, A TREATISE ON THE CONFLICT OF LAWS § 107, at 252 note (3d. 1905)).
46. 1 HEINRICH VON TREITSCHKE, POLITICS 161-62 (Blanche Dugdale & Torben de Bille trans., 1916).
47. Susan N. Herman, Slashing and Burning Prisoners' Rights: Congress and the Supreme Court in Dialogue, 77 OR. L. REV. 1229, 1238 n.31 (1998) ("Civil death statutes applied to prisoners facing a capital sentence (a larger proportion of convicted felons at common law than under current laws) to help the death row prisoner's family settle property matters immediately.");
48. Harry David Saunders, Civil Death: A New look at an Ancient Doctrine, 11 WM. & MARY L. REV. 988, 990 (1970) ("[C]ivil death was a practical way of settling the earthly affairs of a convicted felon soon to be executed.").
49. 4 WILLIAM BLACKSTONE, COMMENTARIES *374.
50. See, e.g., Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 FORDHAM URB. L.J. 1705, 1707-17 (2003) (discussing reformers' efforts to limit collateral consequences).
51. Id. at 1708 (quoting NAT'L PROB. & PAROLE ASS'N, PAROLE IN PRINCIPLE AND PRACTICE 136 (1957)).
52. Margaret Colgate Love, Paying Their Debt to Society: Forgiveness, Redemption, and the Uniform Collateral Consequences of Conviction Act, 54 HOW. L.J. 753, 768 (2011)
53. (citing STANDARDS FOR CRIMINAL JUSTICE: LEGAL STATUS OF PRISONERS standard 23-8.2 cmt. (1985)).
54. Id. at 767 (citing H.R. REP. NO. 98-1017, at 134 (1984)).
55. See generally 3 MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS § 16:2, at 482-88 (4th ed. 2009) (listing state civil death statutes and the repeal or invalidation of most of them).
56. See N.Y. CIV. RIGHTS LAW § 79-a(1) (McKinney 2009) ("[A] person sentenced to imprisonment for life is thereafter deemed civilly dead."). New York's first civil death statute was passed on March 29, 1799.
57. Platner v. Sherwood, 6 Johns. Ch. 118, 120 (N.Y. Ch. 1822).
58. See V.I. CODE ANN. tit. 14, § 92 (1996) ("Whoever is sentenced to imprisonment for life is thereafter deemed civilly dead.").
59. See R.I. GEN. LAWS § 13-6-1 (2002) (declaring that a life prisoner is "deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction").
60. See IDAHO CODE ANN. § 18-310(1) (2004) ("A sentence of custody to the Idaho state board of correction suspends all the civil rights of the person so sentenced. ."). Rights are restored upon discharge from prison, probation and parole. Id. § 18-310(2).
61. Chaunt v. United States, 364 U.S. 350, 358 (1960) (Clark, J., dissenting).
62. Estep v. United States, 327 U.S. 114, 122 (1946);
63. see also Daniels v. United States, 532 U.S. 374, 379 (2001) ("States impose a wide range of disabilities on those who have been convicted of crimes, even after their release.");
64. Baldwin v. New York, 399 U.S. 66, 69 n.8 (1970) ("Both the convicted felon and the convicted misdemeanant may be prevented under New York law from engaging in a wide variety of occupations. In addition, the convicted felon is deprived of certain civil rights, including the right to vote and to hold public office.").
65. See Argersinger v. Hamlin, 407 U.S. 25, 48 n.11 (1972) (Powell, J., concurring) (listing such civil disabilities as "forfeiture of public office, disqualification from a licensed profession, and loss of pension rights" (citations omitted));
66. see also Hopper v. State, 957 N.E.2d 613, 625 (Ind. 2011) (Rucker, J., dissenting) ("Uncounseled pro se defendants may very well plead guilty even to certain misdemeanor offenses that carry devastating collateral consequences ranging from deportation, to eviction from public housing, to barriers in employment.");
67. Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Courts, 45 U.C. DAVIS L. REV. 277, 297-303 (2011) (reviewing a list of possible collateral consequences of misdemeanors, including deportation for noncitizens, sex-offender registration, and eviction from public housing).
68. Misdemeanor convictions can also lead to sex offender registration, e.g., United States v. Ross, 778 F. Supp. 2d 13, 15 (D.D.C. 2011)
69. or deportation, e.g., Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2580-81 (2010).
70. Disenfranchisement is also imposed on people with misdemeanor convictions under the law of some states. See, e.g., S.C. CODE ANN. § 7-5-120(B)(2)-(3) (Supp. 2008);
71. Snyder v. King, 958 N.E.2d 764, 788 (Ind. 2011);
72. see also Richardson v. Ramirez, 418 U.S. 24, 76 n.24 (1974) (Marshall, J., dissenting) ("Even a jaywalking or traffic conviction could conceivably lead to disenfranchisement, since § 2 [of the Fourteenth Amendment] does not differentiate between felonies and misdemeanors.");
73. Kane v. Winn, 319 F. Supp. 2d 162, 177 n.18 (D. Mass. 2004) ("The Court does not use the term 'felon,' often used in discussing the disenfranchisement problem, because it is in fact possible to lose the vote for conviction of misdemeanors. .").
74. Fiswick v. United States, 329 U.S. 211, 222 (1946);
75. see also, e.g., Chaunt, 364 U.S. at 356 (Clark, J., dissenting) (noting that a federal felony conviction "strips an offender of all civil rights and leaves a shattered character that only a presidential pardon can mend");
76. Parker v. Ellis, 362 U.S. 574, 593-94 (1960) (Warren, C.J., dissenting) ("Conviction of a felony imposes a status upon a person which not only makes him vulnerable to future sanctions through new civil disability statutes, but which also seriously affects his reputation and economic opportunities.")
77. overruled by Carafas v. LaVallee, 391 U.S. 234 (1968).
78. See LEGAL ACTION CTR., AFTER PRISON: ROADBLOCKS TO REENTRY (2004), available at http://www.lac.org/roadblocks-to-reentry/upload/lacreport/LAC- PrintReport.pdf (discussing the legal barriers facing individuals following a criminal conviction).
79. But see Caron v. United States, 524 U.S. 308, 318 (2007) (Thomas, J., dissenting) (discussing the possibility that "an ex-felon's. civil rights, such as the right to vote, the right to seek and to hold public office, and the right to serve on a jury, [might be] restored. In restoring those rights, the State has presumably deemed such ex-felons worthy of participating in civic life." (citation omitted)).
80. North Carolina v. Rice, 404 U.S. 244, 247 n.1 (1971) (citations omitted).
81. See District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (recognizing a fundamental Second Amendment right to keep and bear arms, but noting that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons").
82. See Mahler v. Eby, 264 U.S. 32, 39 (1924) ("It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment.").
83. See McGregor Smyth, From "Collateral" to "Integral": The Seismic Evolution of Padilla v. Kentucky and Its Impact on Penalties Beyond Deportation, 54 HOW. L.J. 795, 825 (2011) ("Certain charges and convictions result in the loss of custody of a child or irrevocable termination of parental rights.").
84. FLA. STAT. ANN. § 943.13(4) (West Supp. 2009) (prohibiting employment as law enforcement officers of those convicted of felonies and certain misdemeanors).
85. See, e.g., Commonwealth v. Abraham, 996 A.2d 1090, 1095 (Pa. Super. 2010) (holding that counsel must "warn his client of the loss of pension as a consequence to pleading guilty"), appeal granted, 9 A.3d 1133 (Pa. 2010).
86. See 23 U.S.C. § 159 (requiring states to suspend driver's licenses of people convicted of drug crimes or else lose significant federal highway funds).
87. See, e.g., CIVIL PENALTIES, SOCIAL CONSEQUENCES (Christopher Mele & Theresa A. Miller eds., 2005);
88. INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT (Marc Mauer & Meda Chesney-Lind eds., 2002);
89. JEREMY TRAVIS, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER REENTRY (2005);
90. Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. REV. 457 (2010).
91. See, e.g., Roberts v. U.S. Dist. Court, 339 U.S. 844, 845 (1950) (per curiam) (holding that a conviction does not strip a prisoner of her right to proceed in federal court in forma pauperis);
92. Thompson v. Bond, 421 F. Supp. 878, 882 (W.D. Mo. 1976) ("[A] state statute, which. deprives all state inmates of the right to file any type of civil action in state court contravenes the constitutional imperative that citizens are entitled to reasonable access to courts.");
93. Sabin v. Butter, 493 So. 2d 469, 469-70 (Fla. App. 1986) (holding that a state law limiting access to state court was unconstitutional).
94. But see Joan Dayan, Held in the Body of the State: Prisons and the Law (suggesting that elimination of prison law libraries effectively eliminated prisoners' right to sue), in HISTORY, MEMORY, AND THE LAW 183, 244-47 (Austin Sarat & Thomas R. Kearns eds., 1999).
95. Charles A. Reich, The New Property, 73 YALE L.J. 733, 734-37 (1964).
96. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 262 n.8 (1970) ("Society today is built around entitlement. . Many of the most important of these entitlements now flow from government. ." (alteration omitted)
97. (quoting Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 YALE L.J. 1245, 1255 (1965))).
98. See MARGARET COLGATE LOVE, RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION: A STATE BY STATE RESOURCE GUIDE (2006) ("Pardon is assigned a central role in overcoming the legal barriers to reintegration of criminal offenders in almost every U.S. jurisdiction[]; indeed, in most jurisdictions it is the only mechanism by which adult felony offenders can avoid or mitigate collateral penalties and disabilities.").
99. See Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. CRIM. L. & CRIMINOLOGY 1169, 1181-82 (2010) ("[I]n most years between 1900 and 1936, more than half of the thousands of petitions filed were sent forward to the White House with a favorable official recommendation. At the White House, the president usually ap proved cases recommended favorably. and sometimes was more inclined to leniency." (footnote omitted));
100. See Huntington v. Attrill, 146 U.S. 657, 673 (1892) ("And personal disabilities imposed by the law of a State, as an incident or consequence of a judicial sentence or decree, by way of punishment of an offender, and not for the benefit of any other person. are doubtless strictly penal, and therefore have no extra-territorial operation.").
101. See, e.g., FLA. STAT. ANN. § 790.23(1)(e) (West Supp. 2009) (denying firearms to those convicted in other states).
102. see also, e.g., HAW. REV. STAT. § 846E-1 (Supp. 2007) (defining "sexual offense" to include "any federal, military, or out-of-state conviction for any offense that under the laws of this State would be a sexual offense");
103. Jeffrey B. Kuck, Annotation, Elections: Effect of Conviction Under Federal Law, or Law of Another State or Country, on Right to Vote or Hold Public Office, 39 A.L.R.3d 303, 313-14 (1971) (discussing cases holding that under the law of one state, conviction in another state can trigger disenfranchisement).
104. TODD R. CLEAR, IMPRISONING COMMUNITIES: HOW MASS INCARCERATION MAKES DISADVANTAGED NEIGHBORHOODS WORSE (2007);
105. MARIE GOTTSCHALK, THE PRISON AND THE GALLOWS: THE POLITICS OF MASS INCARCERATION IN AMERICA (2006);
106. DEVAH PAGER, MARKED: RACE, CRIME, AND FINDING WORK IN AN ERA OF MASS INCARCERATION (2007);
107. MARY PATTILLO ET AL., IMPRISONING AMERICA: THE SOCIAL EFFECTS OF MASS INCARCERATION (2004);
108. Ian F. Haney López, Post-Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 CALIF. L. REV. 1023 (2010);
109. Joseph E. Kennedy, The Jena Six, Mass Incarceration, and the Remoralization of Civil Rights, 44 HARV. C.R.-C.L. L. REV. 477 (2009);
110. Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African American Communities, 56 STAN. L. REV. 1271 (2004);
111. Jonathan Simon, Consuming Obsessions: Housing, Homicide, and Mass Incarceration since 1950, 2010 U. CHI. LEGAL F. 165;
112. Anthony C. Thompson, Unlocking Democracy: Examining the Collateral Consequences of Mass Incarceration on Black Political Power, 54 HOW. L.J. 587 (2011);
113. James Forman, Jr., Why Care About Mass Incarceration?, 108 MICH. L. REV. 993 (2010) (book review).
114. Jude McCulloch & Phil Scraton, Introduction to THE VIOLENCE OF INCARCERATION 1, 14 (Phil Scraton & Jude McCulloch eds., 2009).
115. LAUREN E. GLAZE, BUREAU OF JUSTICE STATISTICS, NCJ 236319, CORRECTIONAL POPULATION IN THE UNITED STATES, 2010, at 1 tbl.1 (2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus10.pdf;
116. PAUL GUERINO ET AL., BUREAU OF JUSTICE STATISTICS, NCJ 236096, PRISONERS IN 2010, at 2 tbl.1 (2011), available at http://bjs.ojp.usdoj.gov/content/pub/ pdf/p10.pdf;
117. see also ALLEN J. BECK & DARRELL K. GILLIARD, BUREAU OF JUSTICE STATISTICS, NCJ 151654, PRISONERS IN 1994, at 2 (1995), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/Pi94.pdf.
118. E.g., SEAN ROSENMERKEL ET AL., BUREAU OF JUSTICE STATISTICS, NCJ 226846, FELONY SENTENCES IN STATE COURTS, 2006-STATISTICAL TABLES 1 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf.
119. Systematic misdemeanor statistics are not readily available, but it is clear that misdemeanor convictions are more common than felony convictions. See KAMALA D. HARRIS, CAL. DEP'T OF JUSTICE, CRIME IN CALIFORNIA 2010, at 16 (2011), available at http://ag.ca.gov/cjsc/publications/candd/cd10/preface.pdf (reporting nearly 1.4 million arrests in California in 2010, of which 448,552 were for felonies and the remainder for misdemeanors or status offenses);
120. NAT'L CTR. FOR STATE COURTS, EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2008 STATE COURT CASELOADS 47 (2010), available at http://www.ncsconline.org/d-research/csp/2008-files/EWSC-2008- Online%20Version%20v2.pdf (reporting that misdemeanors comprised seventy-nine percent of the criminal caseload in a 2008 study of eleven state courts);
121. LYNN LANGTON & DONALD J. FAROLE, JR., BUREAU OF JUSTICE STATISTICS, NCJ 228538, PUBLIC DEFENDER OFFICES, 2007-STATISTICAL TABLES 12 tbl.5a (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pdo07st.pdf (reporting that public defenders surveyed were assigned a total of 378,400 felony and 575,770 misdemeanor cases in 2007);
122. 2006-2010 Disposition of Adult Arrests, N.Y. ST. DIVISION CRIM. JUST. SERVICES, http://criminaljustice.state.ny.us/crimnet/ojsa/dispos/nys.pdf (last visited Mar. 15, 2012) (reporting that in 2010, there were 546,416 adult arrests, leading to 35,597 felony convictions, and 286,131 convictions for misdemeanors or lesser offenses);
123. Alexandra Natapoff, Misdemeanors, 85 S. CAL. L. REV. (forthcoming 2012) (manuscript at 9 & n.25), available at http://ssrn.com/abstract-2010826 (estimating 10.5 million nontraffic misdemeanors annually
124. (citing NAT'L ASS'N OF CRIMINAL DEF. LAWYERS, MINOR CRIMES, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICA'S BROKEN MISDEMEANOR COURT 11 (2009))).
125. See Federal Justice Statistics, 2008-Statistical Tables, BUREAU JUST. STAT. tbl.5.1 (Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/html/fjsst/2008/ tables/fjs08st501.pdf (reporting 82,823 federal convictions in the year ending September 30, 2008, of which 75,832 were felonies).
126. LAUREN E. GLAZE & THOMAS P BONCZAR, BUREAU OF JUSTICE STATISTICS, NCJ 231674, PROBATION AND PAROLE IN THE UNITED STATES, 2009, at 3 tbl.2 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/ppus09.pdf.
127. MICHELLE NATIVIDAD RODRIGUEZ & MAURICE EMSELLEM, NAT'L EMP'T LAW PROJECT, 65 MILLION "NEED NOT APPLY": THE CASE FOR REFORMING CRIMINAL BACKGROUND CHECKS FOR EMPLOYMENT 27 n.2 (2011), available at http://www.nelp.org/page/-/65-Million-Need-Not-Apply.pdf;
128. see also Robert Brame et al., Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 PEDIATRICS 21, 25 (2012) (reporting the results of a study showing that 30% of surveyed twenty-three-year-olds had been arrested, compared to 22% that had been arrested in a similar 1965 study).
129. See JEFF MANZA & CHRISTOPHER UGGEN, LOCKED OUT: FELON DISENFRANCHISEMENT AND AMERICAN DEMOCRACY 70 (2006) ("While some felons go to prison. many others serve time in jail or on probation in their communities.. [A]t least some states disenfranchise misdemeanants as well.");
130. see also, e.g., Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL'Y REV. 153, 154 (1999) ("Despite their innocuous name, for many convicted offenders, and especially those who never serve any prison time, these 'collateral' consequences 'are. the most persistent punishments that are inflicted for [their] crime.'" (alteration in original)
131. (quoting Velmer S. Burton, Jr. et al., The Collateral Consequences of a Felony Conviction: A National Study of State Statutes, FED. PROBATION, Sept. 1987, at 52));
132. Alec C. Ewald, "Civil Death": The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 WIS. L. REV. 1045, 1054 (noting that of the forty-eight states and the District of Columba with disenfranchisement policies, only seventeen limit disenfracement to periods of incarceration);
133. George P. Fletcher, Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L. REV. 1895, 1898 (1999) (criticizing criminal disenfranchisement "as a technique for reinforcing the branding of felons as the untouchable class of American society").
134. See James Jacobs & Tamara Crepet, The Expanding Scope, Use, and Availability of Criminal Records, 11 N.Y.U. J. LEGIS. & PUB. POL'Y 177, 179-80 (2007) ("[A]dvances in information technology have made. criminal records systems more comprehensive, efficient, and easier to use.").
135. Sutton v. McIlhany, 1 Ohio Dec. Reprint 235, 236 (C.P. Huron County 1848);
136. See, e.g., Juliet Stumpf, Fitting Punishment, 66 WASH. & LEE L. REV. 1683, 1684-89 (2009) (discussing a lack of proportionality in immigration law as compared to criminal punishments).
137. For an extended discussion of this case, see Gabriel J. Chin, Are Collateral Sanctions Premised on Conduct or Conviction?: The Case of Abortion Doctors, 30 FORDHAM URB. L.J. 1685 (2003).
138. See United States v. Ward, 448 U.S. 242, 249 (1980) (holding that the factors may overlap, and that not all need be present in every case).
139. E.g., Seling v. Young, 531 U.S. 250, 261 (2001).
140. Hudson v. United States, 522 U.S. 93, 100 (1997).
141. See, e.g., Wayne A. Logan, The Ex Post Facto Clause and the Jurisprudence of Punishment, 35 AM. CRIM. L. REV. 1261, 1282 (1998) ("The Mendoza-Martinez factors over the years have been applied in a highly selective and ultimately inconsistent manner."); (Pubitemid 128435129)
142. Paul W. Tappan, The Legal Rights of Prisoners, 293 ANNALS AM. ACAD. POL. & SOC. SCI. 99, 109 (1954) ("The deprivation of 'civil rights' may be conceived to be either an auxiliary punishment in itself or the incidental consequence of conviction and sentence, not intended to be specifically punitive but merely protective of public interests and of official convenience. Such a distinction as this appears unimportant to the offender: he may well consider these losses to be a part of the vindictive punishments that society exacts. And, in fact, they do appear very frequently to reflect retributive sentiments rather than any real need for community protection.").
143. see also, e.g., Jenny Roberts, The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of "Sexually Violent Predators," 93 MINN. L. REV. 670, 708-09 (2008) (arguing that involuntary commitment of "sexually violent predators" is punishment because it is "quite similar to incarceration").
144. See Orly Lobel, Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations, 97 CALIF. L. REV. 433, 494 (2009) ("In an advanced regulatory pyramid. self-regulation constitutes the base of the pyramid with escalated forms of enforcement-command regulation and punishment-at the top.");
145. Max Minzner, Why Agencies Punish, 53 WM. & MARY L. REV. 853, 857 (2012) (arguing that "retribution is an important and, in most cases, the dominant motivation" for "civil" regulatory sanctions);
146. see also Dan Markel et al., Beyond Experience: Getting Retributive Justice Right, 99 CALIF. L. REV. 605, 620-21 (2011) (arguing that some collateral consequences are punishment because with them "the state may. be continuing its message of condemnation").
147. See generally BARRY M. MITNICK, THE POLITICAL ECONOMY OF REGULATION (1980);
148. Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169 (1968).
149. Smith v. Doe, 538 U.S. 84, 113 (2003) (Stevens, J., dissenting).
150. See Marshall v. United States, 414 U.S. 417, 430 (1974) (upholding the exclusion from a rehabilitation program of persons with more than one felony conviction).
151. See generally Miriam J. Aukerman, The Somewhat Suspect Class: Towards a Constitutional Framework for Evaluating Occupational Restrictions Affecting People with Criminal Records, 7 J.L. SOC'Y 18, 27-51 (2005) (analyzing case law on criminal record-based occupational restrictions).
152. For example, it is not necessarily unconstitutional to treat license holders with convictions differently from applicants. Compare Heller v. Ross, 682 F. Supp. 2d 797, 807 (E.D. Mich. 2010) (upholding differential treatment of applicants and licenseholders convicted of felonies)
153. with Miller v. Carter, 547 F.2d 1314, 1316 (7th Cir. 1977) (per curiam) (invalidating differential treatment), aff'd by an equally divided Court, 434 U.S. 356 (1978).
154. See Houston v. Williams, 547 F.3d 1357, 1364 (11th Cir. 2008) ("[C]onservation of funds constitutes a rational basis on which to deny assistance to convicted felons and sex offenders.");
155. Turner v. Glickman, 207 F.3d 419, 424-25 (7th Cir. 2000) (holding that denial of food stamp program benefits to convicted persons does not violate the Equal Protection Clause);
156. Hall v. West, No. 99-7070, 1999 WL 1072252, at *2 (Fed. Cir. Nov. 17, 1999) (per curiam) (upholding denial of veterans' benefits to those in prison);
157. Peeler v. Heckler, 781 F.2d 649, 651-52 (8th Cir. 1986) (upholding the denial of Social Security disability benefits to an inmate against an ex post facto challenge because "there is a rational connection between [the denial] and the nonpunitive goal of regulating the distribution of disability benefits");
158. Carbonaro v. Reeher, 392 F. Supp. 753, 760 (E.D. Pa. 1975) (upholding the restriction on educational aid to people with felony convictions and explaining that "[t]he felon classification bears a rational canrelationship to the legitimate state purpose of assuring that only responsible citizens receive state aid").
159. See, e.g., Carbonaro, 392 F. Supp. at 759-60 (rejecting the claim that classification was unconstitutionally under- or overinclusive).
160. Galvan v. Press, 347 U.S. 522, 529 (1954).
161. Richardson v. Ramirez, 418 U.S. 24, 54-55 (1974).
162. See Baldwin v. New York, 399 U.S. 66, 69 n.8 (1970) (noting that in New York, "the convicted felon is deprived of certain civil rights, including the right. to hold public office");
163. see also Caron v. United States, 524 U.S. 308, 318 (1998) (Thomas, J., dissenting) (discussing the possibility that "an ex-felon's. civil rights, such as the right to vote, the right to seek and to hold public office, and the right to serve on a jury, [might be] restored. In restoring those rights, the State has presumably deemed such ex-felons worthy of participating in civic life." (citation omitted));
164. Andrea Steinacker, Note, The Prisoner's Campaign: Felony Disenfranchisement Laws and the Right to Hold Public Office, 2003 BYU L. REV. 801, 804-08 (reviewing state positions on restrictions on former felons' right to hold public office).
165. See generally Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 AM. U. L. REV. 65 (2003).
166. E.g., FED. R. EVID. 609.
167. Hawker v. New York, 170 U.S. 189, 196 (1898);
168. see also Upshaw v. McNamara, 435 F.2d 1188, 1189-90 (1st Cir. 1970) (upholding a restriction on public employment);
169. M & Z Cab Corp. v. City of Chicago, 18 F. Supp. 2d 941, 951 (N.D. Ill. 1998) (upholding denial of a taxi medallion).
170. See De Veau v. Braisted, 363 U.S. 144, 160 (1960) (upholding the disqualification of ex-felons from waterfront union office).
171. See Flemming v. Nestor, 363 U.S. 603, 612 (1960) (upholding the denial of Social Security benefits on the basis of a statute that denied benefits to those deported for criminal convictions); see also supra note 109.
172. Smith v. Doe, 538 U.S. 84, 105-06 (2003).
173. Kansas v. Hendricks, 521 U.S. 346, 371 (1997).
174. A number of opinions recognize that inmates retain some civil rights. See, e.g., Turner v. Safley, 482 U.S. 78, 84 (1987) ("Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.").
175. See Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541-42 (1942) (striking down a law mandating sterilization of repeat offenders convicted of larceny but not embezzlement).
176. As FCC v. Beach Communications, Inc. summarized, On rational-basis review, a classification in a statute. comes to us bearing a strong presumption of validity, and those attacking the rationality of the legislative classification have the burden to negative every conceivable basis which might support it. Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. Thus, the absence of legislative facts explaining the distinction in a record has no significance in rational-basis analysis. 508 U.S. 307, 314-15 (1993) (citations omitted) (internal quotation marks omitted).
177. For example, 21 U.S.C. § 862(b) allows state and federal sentencing judges to deny federal benefits to those convicted of drug possession offenses. See Students for Sensible Drug Policy Found. v. Spellings, 523 F.3d 896, 901 (8th Cir. 2008).
178. Houston v. Williams, 547 F.3d 1357, 1364 (11th Cir. 2008).
179. Barsky v. Bd. of Regents of Univ. of N.Y., 111 N.E.2d 222, 226 (N.Y. 1953)
180. (quoting Hawker v. New York, 170 U.S. 189, 196 (1898)), aff'd, 347 U.S. 442 (1954).
181. See WAYNE LOGAN, KNOWLEDGE AS POWER: CRIMINAL REGISTRATION AND COMMUNITY NOTIFICATION LAWS IN AMERICA 20-48 (2009) (tracing the early development of registration requirements in the United States).
182. see also, e.g., FLA. STAT. ANN. § 775.13 (West 2005) (providing for general felon registration).
183. See Standley v. Town of Woodfin, 661 S.E.2d 728, 729 (N.C. 2008) (upholding ordinance prohibiting sex offenders from entering public parks owned, operated, or maintained by the municipality);
184. see also Doe v. City of Lafayette, 377 F.3d 757, 758 (7th Cir. 2004) (en banc) (upholding a prohibition on a particular sex offender's entering into any of the city's parks).
185. See, e.g., Terrance v. City of Geneva, 799 F. Supp. 2d 250, 254 (W.D.N.Y. 2011);
186. Fross v. Cnty. of Allegheny, 20 A.3d 1193, 1207 (Pa. 2011).
187. See Wayne Logan, Populism and Punishment: Sex Offender Registration and Community Notification in the Courts, CRIM. JUST., Spring 2011, at 37, 39-40 (discussing a variety of state court cases relying on ex post facto arguments to invalidate residential restrictions).
188. See, e.g., Weems v. Little Rock Police Dep't, 453 F.3d 1010, 1017 (8th Cir. 2006) (holding that residency requirements were not punishment);
189. Crawford v. State, No. CR-09-1883, 2011 WL 2658813, at *9 (Ala. Crim. App. July 8, 2011) (holding that a residency restriction was not an ex post facto law due to a lack of punitive effect);
190. People v. Picklesimer, 226 P.3d 348, 358 (Cal. 2010) (finding that sex offender residency restrictions were not punishment).
191. But see, e.g., ACLU of Nev. v. Cortez Masto, 719 F. Supp. 2d 1258, 1260 (D. Nev. 2008) (finding registration and residency restriction laws to be "the equivalent [of] a new punishment tacked on to the original sentence. in violation of the Ex Post Facto. Clause[]"), aff'd in part, rev'd in part, No. 08-17471, 09-16008, 2012 WL 414664 (9th Cir. Feb. 20, 2012);
192. State v. Letalien, 985 A.2d 4, 7 (Me. 2009) (concluding that retroactive application of new sex offender registration and inperson verification requirements were punitive).
193. See generally Marjorie A. Shields, Annotation, Validity of Statutes Imposing Residency Restrictions on Registered Sex Offenders, 25 A.L.R. 6th 227, 305-16 (2007) (collecting cases where residency laws were held constitutional or not);
194. William M. Howard, Jr., Validity of State Sex Offender Registration Laws Under Ex Post Facto Prohibitions, 63 A.L.R. 6th 351, 378-427 (2011) (discussing validity of state sex offender registration laws under ex post facto principles).
195. See Catherine L. Carpenter & Amy E. Beverlin, The Evolution of Unconstitutionality in Sex Offender Registration Laws, 63 HASTINGS L.J. 1071, 1080-81 (2012) (providing examples of sex offenders forced to leave their homes to comply with residency requirements);
196. Joseph L. Lester, Off to Elba!: The Legitimacy of Sex Offender Residence and Employment Restrictions, 40 AKRON L. REV. 339, 350-51 (2007) (discussing the effects of restrictions on sex offenders, including being forced to quit their jobs and move).
197. Doe v. Bredesen, 507 F.3d 998, 1000 (6th Cir. 2007) (2-1 decision).
198. See generally Frank Jaehoon Lee, Note, Severing the Invisible Leash: A Challenge to Tennessee's Sex Offender Monitoring Act in Doe v. Bredesen, 44 U.C. DAVIS L. REV. 683, 696-99 (2010).
199. State v. Bowditch, 700 S.E.2d 1, 2 (N.C. 2010) (4-3 decision).
200. Commonwealth v. Cory, 911 N.E.2d 187, 198 (Mass. 2009) (4-3 decision).
201. State v. Vogt, 685 S.E.2d 23, 26 (N.C. Ct. App. 2009) (2-1 decision), aff'd per curiam, 700 S.E.2d 224 (N.C. 2010) (4-3 decision). But see id. at 24 n.7 (reserving ability of monitorees to challenge particular features of the rules).
202. See ALA. CODE § 15-20A-20(e) (Westlaw through Act 2012-78 of 2012 Reg. Sess.) ("Anyone subject to electronic monitoring pursuant to this section, unless he or she is indigent, shall be required to reimburse the supervising entity a reasonable fee to defray supervision costs. [and] such amount shall not exceed fifteen dollars ($15) per day.").
203. See, e.g., In re DNA Ex Post Facto Issues, 561 F.3d 294, 297 (4th Cir. 2009) (upholding a requirement that prisoners pay for DNA testing against an ex post facto challenge);
204. State ex rel. Olivieri v. State, 779 So. 2d 735, 739-40, 749-50 (La. 2001) (upholding a requirement that offenders bear expenses of community notification);
205. Commonwealth v. Derk, 895 A.2d 622, 630 & n.6 (Pa. Super. Ct. 2006) (rejecting ex post facto challenge to a $250 fee for processing a DNA sample that the sentencing judge ordered the defendant to submit).
206. Cf. Village of Belle Terre v. Boraas, 416 U.S. 1, 7-9 (1974) (upholding as rational a ban on two unrelated persons living in a single housing unit).
207. Recent cases include Davis v. Russell, No. 08-0138, 2011 WL 1770932, at *12 (E.D. Mo. May 10, 2011) ("Petitioner's counsel did not provide ineffective assistance of counsel and the plea court did not violate Petitioner's federal constitutional rights by failing to advise Petitioner that he may be subject to civil commitment. upon his release from prison. .");
208. Rigger v. State, 341 S.W.3d 299, 313 (Tenn. Crim. App.2010) ("A trial court has no duty to advise a guilty-pleading defendant of a collateral consequence of his plea.");
209. Carroll v. Commonwealth, 701 S.E.2d 414, 420 (Va. 2010) (holding that a plea was not invalid for failure of the court to warn of collateral consequence).
210. See generally Gabriel J. Chin & Richard W. Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 703-12 (2002) (discussing the general rule that counsel is not required to warn about collateral consequences);
211. Jenny Roberts, Ignorance is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process, 95 IOWA L. REV. 119, 131-34 (2009) (same).
212. See Margaret Colgate Love, Collateral Consequences after Padilla v. Kentucky: From Punishment to Regulation, 31 ST. LOUIS U. PUB. L. REV. 87, 105-11 (2011) (discussing lower court cases applying Padilla beyond deportation).
213. Johnson v. Rockefeller, 365 F. Supp. 377, 380-81 (S.D.N.Y. 1973)
214. aff'd mem. sub nom. Butler v. Wilson, 415 U.S. 953 (1974).
215. Butler, 415 U.S. 953.
216. Johnson, 365 F. Supp. at 380.
217. Id. at 96;see also Langone v. Coughlin, 712 F. Supp. 1061, 1066 (N.D.N.Y. 1989) (finding the restriction under the New York law as amended to be irrational even though "punishment is the primary justification for the marriage prohibition").
218. See Stogner v. California, 539 U.S. 607, 647 (2003) (Kennedy, J., dissenting) (discussing an English statute declaring Bishop Francis Atterbury a traitor and "subject[ing] him to a range of punishments not previously imposed, including exile and civil death. The Duke of Wharton, who registered the lengthiest dissent, commented that 'this Bill seems as irregular in the punishments it inflicts, as it is in its foundation, and carries with it an unnatural degree of hardship.'" (citations omitted));
219. see also Ullmann v. United States, 350 U.S. 422, 453 & n.8 (1956) (Douglas, J., dissenting) (noting that under French law, civil death was one of the punishments leading to infamy).
220. See, e.g., Simmons v. Galvin, 575 F.3d 24, 62-63 (1st Cir. 2009) (Torruella, J., dissenting) (arguing that the historical function of disenfranchisement and civil death was punishment);
221. Villalon v. Bowen, 273 P.2d 409, 412 (Nev. 1954) ("[E]ven where a statute has incorporated [civil death] as a part of the punishment for crime, the courts have been reluctant to invoke it unless the express language of the statute left no escape and compelled them to do so."
222. (quoting Annotation, Civil Effects of Sentence to Life Imprisonment, 139 A.L.R. 1308, 1310 (1942)) (internal quotation marks omitted));
223. Cole v. Campbell, 968 S.W.2d 274, 277 (Tenn. 1998) ("Tennessee does not have a civil death statute.. In addition, the limits of punishment are set by the Legislature and no punishment may be imposed without statutory authority. Accordingly, the [court below] erred in concluding that the convicted felon. lacked standing to file an action to seek public records under the Public Records Act.");
224. see also Deutch v. Hoffman, 211 Cal. Rptr. 319, 320 (Ct. App. 1985) ("Statutes relating to civil death or the suspension of civil rights are penal in nature and are to be strictly construed.");
225. Hughes v. Dwyer, 546 S.W.2d 733, 735 (Mo. Ct. App. 1977) ("Upon conviction for a felony the English Common Law assessed the additional penalty of 'attainder' which included the concepts of forfeiture, corruption of the blood and civil death.. It is evident that the civil death statute, being penal in nature, has received a rigid interpretation from the Missouri courts.");
226. Platner v. Sherwood, 6 Johns. Ch. 118, 131 (N.Y. Ch. 1822) ("The penal consequences of attainder must be necessary deductions, severely required by the premises. .").
227. See, e.g., 4 WILLIAM BLACKSTONE, COMMENTARIES *377 ("Some punishments consist in exile or banishment, by abjuration of the realm, or transportation to the American colonies: others in loss of liberty, by perpetual or temporary imprisonment.. [O]thers induce a disability, of holding offices or employments, being heirs, executors, and the like.");
228. 2 POLITICAL DICTIONARY, FORMING A WORK OF UNIVERSAL REFERENCE, BOTH
229. Robert D. Cooter & Wolfgang Fikentscher, Indian Common Law: The Role of Custom in American Indian Tribal Courts (pt. II), 46 AM. J. COMP. L. 509, 534 n.53 (1998) ("A 'civil death,' which arose historically. as a punishment for wrongdoing, implied that the person ceases to be a legal person and loses the rights of a person."); (Pubitemid 128433220)
230. R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. REV. 803, 917 (2004) (noting that some penal systems imposed "a kind of 'civil death' as further punishment");
231. Debra Parkes, Ballot Boxes Behind Bars: Toward the Repeal of Prisoner Disenfranchisement Laws, 13 TEMP. POL. & CIV. RTS. L. REV. 71, 73-74 (2003) ("Criminal disenfranchisement has its roots in the punishment of 'civil death,' imposed for criminal offences under Greek, Roman, Germanic and later Anglo-Saxon law." (footnote omitted));
232. Note, Constitutional Rights of Prisoners: The Developing Law, 110 U. PA. L. REV. 985, 985 n.4 (1962)
233. ("Civil death statutes have been sustained as valid exercises of legislative power to prescribe punishment for crimes." (citing Quick v. W. Ry., 92 So. 608 (Ala. 1922)));
234. 217 U.S. 349 (1910). See generally Margaret Raymond, "No Fellow in American Legislation": Weems v. United States and the Doctrine of Proportionality, 30 VT. L. REV. 251 (2006) (discussing the facts and holding of Weems).
235. see also Herbert L. Packer, Making the Punishment Fit the Crime, 77 HARV. L. REV. 1071, 1075 (1964) ("It was plainly not the length of the imprisonment alone, considered in relation to the gravity of the offense, that determined the result. Rather, it was the combination of an excessive but conventional mode of punishment with a good deal of laid-on unpleasantness offensive for its novelty as well as its severity that supported the characterization of Weems' punishment as cruel and unusual.").
236. Sentences to hard labor were constitutionally uncontroversial. In any event, the Court affirmed many such convictions. See, e.g., Hendrix v. United States, 219 U.S. 79, 91 (1911) (upholding the lower court's penalty of life at hard labor for murder)
237. overruled on other grounds by Funk v. United States, 290 U.S. 371 (1933).
238. This outcome held true even for nonhomicide cases. See, e.g., Rodriguez v. United States, 198 U.S. 156, 157 (1905) (embezzlement);
239. Hall v. United States, 168 U.S. 632, 634 (1898) (mail theft).
240. Given this, Justice White, dissenting for himself and Justice Holmes, concluded "that the accessory punishments are the basis of the ruling now made." Weems, 217 U.S. at 412 (White, J., dissenting). White argued that the accessory punishments, even if unconstitutional, were severable. Id. The majority's response indicated that White correctly perceived the centrality of the accessory punishment: "It is suggested that the provision for imprisonment in the Philippine Code is separable from the accessory punishment, and that the latter may be declared illegal, leaving the former to have application." Id. at 381. Instead of holding that the conditions of imprisonment would themselves have invalidated the sentence, the Court concluded that the accessory punishments were not severable. Id. at 381-82.
241. See Trop, 356 U.S. at 124-25 (Frankfurter, J., dissenting).
242. See id. at 1481 ("[R]emoval proceedings are civil in nature. ." (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984))).
243. Reno v. ACLU, 521 U.S. 844, 872 (1997);
244. see also, e.g., Lewis v. United States, 518 U.S. 322, 334 (1996) (Kennedy, J., concurring in the judgment) ("Opprobrium attaches to conviction of. crimes [punishable by more than six months incarceration] regardless of the length of the actual sentence imposed, and the stigma itself is enough to entitle the defendant to a jury.. [C]onvictions for petty offenses do not carry the same stigma as convictions for serious crimes.");
245. Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
246. ("The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring)) (internal quotation marks omitted));
247. United States v. Dotterweich, 320 U.S. 277, 286 (1943) (Murphy, J., dissenting) ("Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous.").
248. See, e.g., Spencer v. Kemna, 523 U.S. 1, 8-11 (1998);
249. Sibron v. New York, 392 U.S. 40, 55-57 (1968);
250. see also United States v. Morgan, 346 U.S. 502, 512-13 (1954) (holding that the defendant could challenge an old federal conviction through coram nobis when it increased the sentence under a subsequent state conviction). However, "[o]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual 'in custody' for the purposes of a habeas attack upon it."
251. Maleng v. Cook, 490 U.S. 488, 492 (1989).
252. Daniels v. United States, 532 U.S. 374, 379 (2001);
253. see also Pennsylvania v. Mimms, 434 U.S. 106, 108 n.3 (1977) ("If the prospect of the State's visiting. collateral consequences on a criminal defendant who has served his sentence is a sufficient burden as to enable him to seek reversal of a decision affirming his conviction, the prospect of the State's inability to impose such a burden following a reversal of the conviction of a criminal defendant in its own courts must likewise be sufficient to enable the State to obtain review of its claims on the merits here.").
254. Huntington v. Attrill, 146 U.S. 657, 673 (1892);
255. see also Singleton v. State, 21 So. 21, 23 (Fla. 1896) (explaining that testimonial "disability is as much a part of the pains and penalties of the violated law as incarceration, and, after conviction, it attaches as surely as any other part of the punishment");
256. State ex rel. Mitchell v. McDonald, 145 So. 508, 511 (Miss. 1933)
257. ("'[T]he conviction of an infamous crime in a foreign country, or in any other of the United States, does not render the subject of such conviction an incompetent witness in the courts of this state,' [since] 'infamy is a punishment as well as stigma on character.'"
258. (quoting Commonwealth v. Green, 17 Mass. (16 Tyng) 515, 515 (1822) and 1 JOHN HENRY WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE IN TRIALS AT COMMON LAW § 522, at 939 n.3 (2d ed. 1923))).
259. 470 U.S. 856, 865 (1985); see also Rutledge v. United States, 517 U.S. 292, 302 (1996) ("[C]ollateral consequences of a second conviction make it as presumptively impermissible to impose as it would be to impose any other unauthorized cumulative sentence.").
260. Id. In Middendorf v. Henry, 425 U.S. 25 (1976), all of the Justices found collateral consequences to be relevant to the question of the right to counsel in summary courts martial. Compare id. at 58 (1976) (Marshall, J., dissenting) (arguing for a right to counsel in "a summary court-martial conviction [because it] is. regarded as a criminal conviction. that. has collateral consequences both in military and civilian life"), with id. at 39 (majority opinion) (holding no right to counsel to exist in part becuase "[c]onviction. would likely have no consequences. beyond the immediate punishment meted out by the military, unlike conviction for such civilian misdemeanors as vagrancy or larceny which could carry a stamp of 'bad character' with conviction").
261. While in Scott v. Illinois, 440 U.S. 367, the Court held five to four that there was no right to counsel in misdemeanor prosecutions when no jail sentence was imposed, opinions of the four dissenters and Justice Powell's concurrence recognized the importance of collateral consequences.
262. Lewis v. United States, 518 U.S. 322, 334 (1996) (Kennedy, J., concurring in the judgment). Justice Kennedy's opinion in Lawrence v. Texas, joined by Justice Breyer, included the fact of collateral consequences as part of the "stigma" resulting from a criminal conviction.
263. See supra note 184; see also Blanton v. City of N. Las Vegas, 489 U.S. 538, 543-45 (1989) (noting the possibility that nonincarceration penalties for a DUI could trigger the right to a jury trial, but a ninety-day driver's license suspension and the possibility of a higher sentence for a future offense was insufficient).
264. See Mayer v. City of Chicago, 404 U.S. 189, 197 (1971) ("The practical effects of conviction of even petty offenses of the kind involved here are not to be minimized. A fine may bear as heavily on an indigent accused as forced confinement. The collateral consequences of conviction may be even more serious, as when. the impecunious medical student finds himself barred from the practice of medicine because of a conviction he is unable to appeal for lack of funds.").
265. See Blackledge v. Perry, 417 U.S. 21, 28 n.6 (1974) (invalidating an increase in charges from a misdemeanor to a felony based on the exercise of the right to appeal, noting that "conviction of a 'felony' often entails more serious collateral consequences than those incurred through a misdemeanor conviction").
266. Parker v. Ellis, 362 U.S. 574, 593-94 (1960) (Warren, C.J., dissenting)
267. overruled by Carafas v. LaVallee, 391 U.S. 234 (1968).
268. See, e.g., United States v. Garcia, 698 F.2d 31, 33 (1st Cir. 1983) (holding that withholding information regarding the parole evaluation process did not violate "the principles of due process");
269. Houston v. Lack, 625 F. Supp. 786, 790-91 (W.D. Tenn. 1986) (refusing to require advising felons about ineligibility for programs that could reduce their sentences), aff'd per curiam, No. 86-5198, 1989 WL 47448 (6th Cir. May 9, 1989);
270. State v. Parker, 629 N.W.2d 77, 80 (Wis. Ct. App. 2001) (finding no due process obligation to warn of a possible transfer to an out-of-state prison).
271. see, e.g., Margaret Love & Gabriel J. Chin, The "Major Upheaval" of Padilla v. Kentucky: Extending the Right to Counsel to the Collateral Consequences of Conviction, CRIM. JUST., Summer 2010, at 36, 40 (analyzing the implications of Padilla);
272. Gabriel J. Chin & Margaret Love, Status as Punishment: A Critical Guide to Padilla v. Kentucky, CRIM. JUST., Fall 2010, at 21, 22 (same).
273. See id. at 1486 ("The severity of deportation-'the equivalent of banishment or exile'-only underscores how critical it is for counsel to inform her noncitizen client that he faces a risk of deportation." (quoting Delgadillo v. Carmichael, 332 U.S. 388, 390-391 (1947))).
274. Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).
275. Parker v. Ellis, 362 U.S. 574, 593-94 (1960) (Warren, C.J., dissenting)
276. overruled by Carafas v. LaVallee, 391 U.S. 234 (1968).
277. Padilla, 130 S. Ct. at 1481
278. (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)).
279. Haring v. Prosise, 462 U.S. 306, 319 (1983) (alterations omitted)
280. (quoting Brady v. United States, 397 U.S. 742, 748 (1970)).
281. See Gabriel J. Chin, Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea, 54 HOW. L.J. 675, 684-85 (2011) (describing the task of informing defendants of collateral consequences as "herculean").
282. See Nichols v. United States, 511 U.S. 738, 748 (1994) (rejecting a claim that courts should warn uncounseled misdemeanor defendants of the possibility of a higher sentence if convicted of another crime);
283. United States v. Cariola, 323 F.2d 180, 186 (3d Cir. 1963) ("[U]nsolicited advice concerning the collateral consequences of a plea which necessitates judicial clairvoyance of a superhuman kind can be neither expected nor required.");
284. Joseph v. Esperdy, 267 F. Supp. 492, 494 (S.D.N.Y. 1966) ("[I]t seems onerous and absurd to expect a judge to explain to each and every defendant who pleads guilty the full range of collateral consequences of his plea and, indeed, to anticipate what those collateral consequences are." (emphasis omitted)).
285. See STANDARDS FOR CRIMINAL JUSTICE: PLEAS OF GUILTY standard 14-1.4(c) (1997) ("[T]he court should also advise the defendant that by entering the plea, the defendant may face additional consequences including but not limited to the forfeiture of property, the loss of certain civil rights, disqualification from certain governmental benefits, enhanced punishment if the defendant is convicted of another crime in the future, and, if the defendant is not a United States citizen, a change in the defendant's immigration status.");
286. see also STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS standard 19-2.3(a) (2003) ("[A] court [should] ensure, before accepting a plea of guilty, that the defendant has been informed of collateral sanctions made applicable to the offense.. by confirming on the record that defense counsel's duty of advisement under Standard 14-3.2(f) has been discharged.").
287. UNIF. COLLATERAL CONSEQUENCES OF CONVICTION ACT § 5(a) (2010).
288. Id.; see also Gabriel J. Chin, Illegal Entry as Crime, Deportation as Punishment: Immigration Status and the Criminal Process, 58 UCLA L. REV. 1417, 1435 (2011) ("[B]ased on negotiations with defense counsel, prosecutors regularly consider lesser charges, diversion, or non-prosecution to allow relatively less serious offenders to avoid deportation.").
289. STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS standard 19-1.1.
290. See id. standard 19-2.6 (listing collateral sanctions that legislatures should not impose, including deprivation of the right to vote, and other civil rights, public benefits, and programs relevant to reentry); see also UNIF. COLLATERAL CONSEQUENCES OF CONVICTION ACT § 7 (2010) (limiting authority of subordinate levels of government to create mandatory collateral consequences and presuming that ambiguous sanctions are discretionary, not mandatory).
291. See STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS standard 19-2.2 (stating that restrictions should be discretionary rather than automatic unless "the legislature cannot reasonably contemplate any circumstances in which imposing the sanction would not be justified").