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Chapter 15. Collateral Consequences of Conviction, Pardon, and Restoration of Rights. Introduction. Conviction of a crime carries direct and collateral (indirect) consequences. Direct consequences are penalties such as a fine, probation and commitment to jail or prison.

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chapter 15

Chapter 15

Collateral Consequences of Conviction, Pardon, and Restoration of Rights

introduction
Introduction
  • Conviction of a crime carries direct and collateral (indirect) consequences.
  • Direct consequences are penalties such as a fine, probation and commitment to jail or prison.
  • Collateral consequences are disqualifications or deprivations that are civil in nature.

LO: 1

civil and political rights
Civil and Political Rights
  • Civil Rights are personal, natural rights guaranteed by the constitution, such as:
    • Freedom of speech, freedom of the press, freedom from discrimination and freedom of assembly
  • Political Rights are rights of citizens which give them the power to participate in government.
    • Political rights are limited to citizens of a state, such as the right to vote or hold public office. LO: 1
background of civil rights
Background of Civil Rights
  • Civil disabilities as a consequence of crime date back to ancient Greece.
    • Infamy led to infamous crimes
    • Outlawry considered a person outside the protection of the law
    • Attainder was the extinction of civil rights
  • A convicted offender is assumed to lack good moral character and therefore lacks the requirement to exercise most political rights.

LO: 1

civil disabilities today
Civil Disabilities Today
  • The main justifications for collateral consequence statutes are:
    • Some civil rights are removed to maintain public confidence in government operations, such as running for public office.
    • A second reason involves a cutback on government benefits, narrowing the benefits to the law-abiding.
    • More recently, loss of some rights have centered around increasing public safety and protecting children from harm. LO: 1
differences by state
Differences by State
  • Some statutes deprive the criminal of all or almost all civil rights while he or she is serving a prison sentence.
  • The trend has been toward finding ways of restoring rights.
  • Examples of restricted rights are:
    • Loss of right to vote
    • Loss of right to serve on a jury
    • Loss of right to own a gun LO: 2
employment issues
Employment Issues
  • Limitations of employment related rights subsequent to conviction:
      • Public employment
      • Private employment
      • Right to an occupational license
      • Loss of capacity to be bonded
      • Loss of good moral character

LO: 3

loss of right to own or possess a firearm
Loss of Right to Own or Possess a Firearm
  • For some individuals, the loss of the right to own a firearm continues to be the most restrictive of all civil disabilities lost by conviction.
  • Federal law prohibits convicted felons from possessing, shipping, transporting, or receiving any firearms or ammunition.
  • It also prohibits the possession of guns by anybody convicted in any court of domestic violence, which is a misdemeanor crime. LO: 3
problems with civil disability laws
Problems with Civil Disability Laws
  • Critics of civil disability laws say they violate the provisions of due process, equal protection and constitute cruel and unusual punishment.
  • Recommendations include:
    • Elimination of unnecessary restrictions
    • Reasonable application of necessary restrictions
    • Greater participation by the sentencing court
    • Automatic restoration after certain period

LO: 2

sex offenders
Sex Offenders
  • Sex offender registration laws
      • A requirement in all 50 states and DC
  • Sex offender notification laws
      • Required in at least 32 states
  • Involuntary commitment of sexual predators, if:
      • He or she poses a continuous threat
      • The threat is related to a lack of control
      • The offender has a severe mental illness LO: 4
pardon
Pardon
  • A pardon is an act of forgiveness, or mercy.
    • Typically, the only mechanism by which adult offenders can avoid or mitigate collateral penalties and disabilities.
  • Courts differ on the legal effect of a pardon.
  • The power to pardon historically belonged to a king or sovereign.

LO: 5

power to pardon and types of pardon
Power to Pardon and Types of Pardon
  • In the U.S. Constitution, the power to pardon was given to the president in all federal cases except impeachment.
  • In most states, the power to pardon belongs to the governor, often in conjunction with another official or board.
  • Pardons are either absolute (full) or conditional.

LO: 2

power to pardon and types of pardon con t
Power to Pardon and Types of Pardon, Con’t.
  • Generally, the convicted person must apply for a pardon.
  • An absolute pardon restores most, but not all, civil rights.
  • A pardon does not automatically restore an occupational license.

LO: 5

restoration of rights
Restoration of Rights
  • Restoration of rights may be done by application or by automatic restoration.
  • Restoring the right to vote varies with the states, with most offenders regaining the vote upon completion of their sentence.
  • Restoring good moral character is virtually impossible due to the lack of a generally accepted standard. LO: 5
expungement of arrest and conviction records
Expungement of Arrest and Conviction Records
  • Expungement (erasing or destroying a record) and sealing (closing an existing record) are 2 ways to limit public availability to arrest and conviction records.
  • Each state deals with expunging and sealing arrest and conviction records differently.
  • 40 states allow people to expunge or seal arrest records and if the applicant is successful, 30 of those same states also allow the denial that these arrest records exist.
  • Less than ½ that number of states allow expungement for convictions. LO: 6
expungement of arrest and conviction records con t
Expungement of Arrest and Conviction Records, Con’t.
  • In all but 10 states, even if the record is expunged, the information is still accessible to law enforcement, courts, and other government agencies.
  • The meaning of the word can be misleading, because some expungement statutes only remove the court decision, but not evidence of the case itself. If allowable, a defendant must specify the expungement of both the arrest records and the conviction records, or must first expunge the decision, and then seal the rest of the record.

LO: 6