Collateral Consequences and the Preventive State

Sandra G. Mayson*

Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs)—legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence—have relegated that group to permanent second-class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs as “punishment,” the consensus holds, such that constitutional constraints on punishment will apply.

This Article argues for a different approach. The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis for limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people’s liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs—for both theoretical and tactical reasons—is to recognize them as predictive risk regulation and seek to develop appropriate constraints.

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© 2015 Sandra G. Mayson. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Research Fellow, Quattrone Center for the Fair Administration of Justice, University of Pennsylvania Law School. I am deeply indebted to Hadar Aviram, Rachel Barkow, Stephanos Bibas, Barry Friedman, Stephen Galoob, Douglas Husak, Jim Jacobs, David Kamin, Joanna Langille, Ana Munoz, Erin Murphy, Daphna Renan, David Rudovsky, Stephen Schulhofer, Jocelyn Simonson, Eric Singer, Scott Skinner-Thompson, Justin Steil, and Jeremy Waldron for their comments on the work in progress; to Miriam Baer, Adam Cox, Richard Epstein, David Garland, Robert Howse, Adam Kolber, Seth Kreimer, and Liam Murphy for comments in conversation; to the participants of the Lawyering Scholarship Colloquium and the Furman Seminar at NYU School of Law for extremely helpful feedback; to the excellent editors of the Notre Dame Law Review; and to my wonderful wife Maron Deering, who has endured the collateral consequences of my work on this project. All errors are mine.