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Confronting the Collateral Consequences of Conviction

Confronting the Collateral Consequences of Conviction. Cecelia Klingele October 19, 2012. What is a “collateral” consequence?. Also called “civil disability,” “invisible punishment,” “civil consequence,” “silent sentence” Formal (legally-imposed) vs. informal (reputational & economic)

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Confronting the Collateral Consequences of Conviction

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  1. Confronting the Collateral Consequences of Conviction Cecelia Klingele October 19, 2012

  2. What is a “collateral” consequence? Also called “civil disability,” “invisible punishment,” “civil consequence,” “silent sentence” Formal (legally-imposed) vs. informal (reputational & economic) Collateral sanction vs. discretionary disqualification

  3. Historical Overview • “Infamy” in the Classical World • Consequences of Felony Conviction at Common Law (“Incidents of Attainder”) • Early America & Constitutional Limits

  4. The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. U.S. Const., Art. III, § 3, cl. 2

  5. Historical Overview • “Infamy” in the Classical World • Consequences of Felony Conviction at Common Law (“Incidents of Attainder”) • Early America & Constitutional Limits • Early to Mid-20th Century • 1980s and Beyond

  6. Changes in America’s Custodial Population: 1980-2008 Bureau of Justice Statistics data

  7. Types of Collateral Consequences o Civil and Political Rights o Community and Military Service o Employment and Occupational Licensure oHousing o Public Benefits oDebarment from Federal Program Participation o Family-related rights o Firearms o Sex offender consequences o Immigration o International Travel Restrictions

  8. Legal Structure Constitutional Limits Limitations on Access to and Use of Criminal Records Regulation of Employment and Occupational Licensing

  9. Restoration of Rights & Status Automatic restoration of rights Executive Pardon Administrative Certificates of Good Conduct Judicial Relief Mechanisms Deferred Adjudication and other Avoidance Mechanisms

  10. Advocacy in the Criminal Case Charging Decisions The Client Interview Plea Bargaining Counseling the Client Trial or the Guilty Plea Sentencing Training about Collateral Consequences

  11. Future of Legal Reform ABA Criminal Justice Standards National Conference of Commissioners on Uniform State Law’s Uniform Collateral Consequences of Conviction Act American Law Institute’s Model Penal Code: Sentencing revision State law reform

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