Presentation on theme: "Collateral Consequences: the Normative Issues Hugh LaFollette University of Minnesota Law School 19 October 2012."— Presentation transcript:
Collateral Consequences: the Normative Issues Hugh LaFollette University of Minnesota Law School 19 October 2012
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
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
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?)
Who Previously licensed attorneys and medical practitioners Narrow focus is more manageable Use in these cases is more plausible Perhaps generalize
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?
When (for which crimes?) Three overlapping ways: Class of crime Relation to profession Particulars of the case Helps further isolate normative considerations
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
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
Also those analogous Doc who experiments Embezzler Rationale same as before Still...
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
Case specific Regain, indefinite, or permanent, depending... Set at sentencing (authorized) Range Detect global detrimental trait (exacerbating) One-off, especially if mitigating factors
MN law used blended approach Elements of 1 st Seems some are permanent More commonly fixed number of years And 2 nd : crimes related to job sought Normally crimes against individuals Blocks working with vulnerable people Doesn’t forbid, even if not convicted, but...
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
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 vulnerable population
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
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
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)?
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
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
Retributivist response Cannot justify such wide disparities since they are not justified Rarely use Then retributive principle of proportionality
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.”
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