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. Collateral consequences are disqualifications or deprivations that are civil in nature. LO: 1

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 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 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 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 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 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 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 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 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 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. 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 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 (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. 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