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

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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) Collateral sanction vs. discretionary disqualification

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

U.S. Const., Art. III, § 3, cl. 2 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.

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

Changes in America’s Custodial Population: Bureau of Justice Statistics data

Types of Collateral Consequences oCivil and Political Rights oCommunity and Military Service oEmployment and Occupational Licensure oHousing oPublic Benefits oDebarment from Federal Program Participation oFamily-related rights oFirearms oSex offender consequences oImmigration oInternational Travel Restrictions

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

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

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

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

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