The New Civil Death: Rethinking Punishment in the Era of Mass Conviction
Borrowing from its English forebears, the United States once had a form of punishment called civil death. Civil death extinguished most civil rights of a person convicted of a crime and largely put that person outside the law’s protection. Civil death as an institution faded away in the middle of the twentieth century. Policymakers recognized that almost all convicted persons eventually rejoin society, and therefore, it was wise and fair to allow them to participate in society with some measure of equality.
This Article proposes that civil death has surreptitiously reemerged. It no longer exists under that name, but effectually a new civil death is meted out to persons convicted of crimes in the form of a substantial and permanent change in legal status, operationalized by a network of collateral consequences. A person convicted of a crime, whether misdemeanor or felony, may be subject to disenfranchisement (or deportation if a noncitizen ), criminal registration and community notification requirements, and the ineligibility to live, work, or be present in a particular location. Some are not allowed to live outside of civil confinement at all. In addition, the person may be subject to occupational debarment or ineligibility to establish or maintain family relations. While the entire array of collateral consequences may not apply to any given person, the State is always able to add new disabilities or to extend existing limitations. As a practical matter, every criminal sentence contains the following unwritten term:
The law regards you as having a “shattered character.” Therefore, in addition to any incarceration or fine, you are subject to legal restrictions and limitations on your civil rights, conduct, employment, residence, and relationships. For the rest of your life, the United States and any State or locality where you travel or reside may impose, at any time, additional restrictions and limitations they deem warranted. Their power to do so is limited only by their reasonable discretion. They may also require you to pay the expense of these restrictions and limitations.
For many people convicted of crimes, the most severe and long- lasting effect of conviction is not imprisonment or fine. Rather, it is being subjected to collateral consequences involving the actual or potential loss of civil rights, parental rights, public benefits, and employment opportunities.
The magnitude of the problem is greater than ever. The commonly used term “mass incarceration” implies that the most typical tool of the criminal justice system is imprisonment. Indeed, there are two million people in American prisons and jails, a huge number, but one which is dwarfed by the six-and-a-half million or so on probation or parole and the tens of millions in free society with criminal records. The vast majority of people who have been convicted of crimes are not currently in prison. However, because of their criminal records, they remain subject to governmental regulation of various aspects of their lives and concomitant imposition of benefits and burdens. People convicted of crimes are not subject to just one collateral consequence, or even a handful. Instead, hundreds and sometimes thousands of such consequences apply under federal and state constitutional provisions, statutes, administrative regulations, and ordinances. As one Ohio court recognized in 1848, “[D]isabilities . . . imposed upon the convict” are “part of the punishment, and in many cases the most important part.”
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Richard A. Bierschbach