Collateral Consequences and Civil Death
One of the first things people ask me when we’re talking about pending criminal charges is “what’s going to happen?” As I’ve written before, I don’t like that question because it implies that their destiny is outside of their hands. My job is to improve their outcome, despite being charged with a crime, and I do a pretty good job of that.
But there’s another issue with discussing the ramifications of a criminal conviction: the collateral consequences. These are the consequences that occur beyond the sentence, i.e. beyond jail time and fines. I spoke about one a while back: criminal inadmissibility of traveling to Canada. Today’s post discusses a few more.
A lot of people believe that a sentence is over when the person has “paid back their debt to society,” i.e. released from incarceration. Once that person is out of prison, it should be as if they were never there in the first place; a return to status ante. But readers of this blog, as well as people tuned into the social milieu, know that’s simply not the case.
A criminal conviction carries enormous and long-lasting consequences to the defendant, and I’ll be talking about some of those in a moment. These sorts of consequences have been prevalent throughout history.
The idea of “civil death” dates back many centuries. Under a civil death, the person wasn’t overtly killed but they lost all standing or protection under the law. For example, in medieval Europe, people convicted of felonies would lose all status. Not only could that person not own land or serve in public service, they could also be killed with impunity, since they were outside the protection of the law. This is where the word “outlaw” came from – referring to someone who lived and worked outside the protection of the law. In Ancient Rome, giving a person deemed an outlaw food or shelter was itself a crime, since that outlaw was outside the benefit of social services. Although, those harsh penalties are no longer used today, after incarceration individuals still face consequences.
Modern Collateral Consequences
In the modern US, besides growing compassion and sensibilities, we have the Eighth Amendment, which prohibits cruel and unusual punishment. Over the years the United States Supreme Court has held that it is cruel and unusual to banish someone from the United States, or to restrict a person access to food or water or medical care during incarceration. In other words, even if you’re convicted of a crime, you’re still a citizen of the United States, and you must have access to food and medical care (Ironically these precepts don’t conflict with administering the death penalty, but that’s a post for another time).
But, and this is a big but, while you can still live in the U.S. and will still be given food and health care, your status is diminished in other ways. Instead of civil death, we might call it civil maiming. For a felony conviction there are three common collateral consequences:
1) Jury Exclusion: A convicted felon generally has no right or capacity to serve on a jury. I would argue convicted felons are inherently suitable to serve on juries, since few people in our country know better the consequences of a guilty verdict, and would exercise extreme care in their vote.
2) Inability to Possess a Firearm: The relevance of this one depends on the person, but some people do wish to exercise their Second Amendment Rights. In Washington individuals that commit violent felonies, or serious drug crimes, or serious sexual crimes, however, lose this possession right. And this consequence comes with teeth: the penalty for violating the prohibition is bring charged with a Class B Felony, which carries a maximum sentence of 10 years in prison and a $20,000 fine.
3) Inability to Vote aka Disenfranchisement: In Washington state, your ability to vote is curtailed if you’ve been convicted of a felony and are either incarcerated or under community custody (probation). Once the complete term of the sentence is up, if (1) the individual is current on their fines and fees, (2) they haven’t been convicted of another felony, and (3) the felon re-registers to vote, their right to vote is reinstated. Since the definitions of crimes are controlled by the legislature, like serving on a jury I would argue felons are a class that also has a unique interest in the actions of their representatives. But the legislature, as the group that determines the rights of felons, has spoken.
There other consequences too, and not just for felons. For example, consider the Canadian issue I wrote about earlier. Some crimes, like DUIs and Reckless Driving, carry mandatory driver’s license suspensions. Some misdemeanors, like Reckless Endangerment, can affect professional licensing. For example, Washington law prevents anyone from being convicted of Reckless Endangerment to receive licensure that allows them to work with a vulnerable population. This can apply to caregivers and nurses, and can seriously affect someone’s career. But the fact is, any conviction can affect someone’s employment options.
Employment Collateral Consequences
On job applications, you’ve likely seen a place for a person to insert their criminal conviction history. People with a criminal conviction learn pretty quickly that employers are less interested in hiring people with convictions than without. It’s a serious problem.
The Stranger, one of the Seattle independent newspapers, covered the efforts of a local councilman to prohibit the investigation of criminal backgrounds until after an employee has been provisionally hired. This is an effort I support, for the same reason as the councilman.
It’s a simple reason really: we want people who were convicted once to refrain from committing crimes again. Recidivism is a serious problem across the country, and Washington is no exception. A recent study showed Washington reported a 30% increase in recidivism between 2007 and 2010. If reducing the re-occurrence of crime is a goal of society, and it has to be, then these results are disturbing.
So, back to collateral consequences. Our society is now set up to take convicted persons outside of opportunities for jobs and outside the opportunities for civil service. Are we surprised people who feel so cast off are ignoring societal rules in turn? Are we surprised that crime looks more attractive? It’s a neat trap and one that we pay the price for.
I’ve spoken to people over the years who think that a conviction is no big deal. They don’t want to expend the resources or efforts in getting a lawyer because they’ve only been charged with a “minor” crime. But there’s really no such thing as a minor crime. True, not all crimes carry the same consequences. You don’t lose your voting rights from a misdemeanor and a non-driving crime won’t cause anyone to get their license suspended.
But once you’re in the system with a conviction, any conviction, your opportunities shrink. A felony carries more consequences and more stigma of course. But as of now, the law permits employers to default to not hiring anyone with a criminal conviction, and many employers do exactly that.
If someone you know is charged with a crime, any crime at all, it behooves them to call a Seattle criminal defense lawyer as soon as possible. There are no guarantees in this realm but getting an experienced lawyer is a person’s absolute best chance in avoiding fines, jail time, and being one step closer to that “civil death.”