Chapter 15Collateral 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

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

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 exercise most political rights

The main justifications for collateral consequence statutes are: Practical reason, such as divorce and historical

civil death statutes Financial punishments (employment restrictions,

denial of welfare, pension, financial aid) Maintain perception of confidence in government

(public office, voting, juror restrictions) Public safety and to protect the public/children

from harm (firearms restriction, sex offender registration, loss of parental rights)

States differ in the way civil rights are removed or restricted

Some rights can be lost through judicial or administrative decision

The most commonly restricted rights are: Loss of right to vote Loss of right to serve on a jury Loss of credibility as a witness

The most commonly restricted rights (cont.) Limitations of employment related rights

Public employment Private employment Right to an occupational license Loss of capacity to be bonded Loss of good moral character

Loss of the right to own and possess a firearm

Denial of welfare rights Loss of parental rights

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

Other effects of conviction include: Sex offender registration laws

A requirement in all 50 states and the District of Columbia

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

Social stigmatization of ex-offenders

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

In the U.S. Constitution, the power to pardon was given to 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

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

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 sentence

Restoring good moral character is virtually impossible due to the lack of a generally accepted standard

Expungement statutes allow the record of a crime to be erased as if it never happened As of 2004, 21 states with expungement

procedures for felony convictions

Sealing of records allows no examination of a person’s criminal record except by order of the court or by designated officials Unlike expungement, in which the record is

erased, with sealing it is only closed