Chapter 15

1. Chapter 15 Collateral Consequences of Conviction, Pardon, and Restoration of Rights

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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