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November 18, 2019

Follow-up items from our class today on crime, alternatives and collateral consequences

Here are additional materials/links to follow up some matter discussed in class on Monday.  First, here are links to unpublished materials from our casebook for those really eager to dig deep into alternatives:

  • Electronic Chapter 8: Non-Prison Punishments (see pp. 119-139 for coverage of the SCOTUS case Padilla and related discussions of collateral consequences)

  • Electronic Chapter 10: Alternatives to Criminal Sentences (see pp. 31-62 for coverage of asset forfeiture, a topic that SCOTUS addressed in its recent Timbs ruling)

Second, here is  a link to the full huge new report from the US Commission on Civil Rights has today released in June titled "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities."   The report runs over 150 pages and provide a comprehensive modern accounting of collateral consequences along with reform recommendations. and here is part of the introductory letter from the Commission Chair:

This report provides an overview of the relevant data and arguments for and against the imposition of collateral consequences on people with criminal records.  Each year, federal and state prisons release more than 620,000 people to return to their communities.  While these individuals have often completely exited criminal supervision (for example, through a prison sentence or probation), individuals with criminal records still face potentially thousands of collateral consequences upon reentering society.  These collateral consequences are sanctions, restrictions, or disqualifications that attach to a person because of the person’s criminal history.  For example, individuals with criminal histories can face barriers to voting, jury service, holding public office, securing employment, obtaining housing, receiving public assistance, owning a firearm, getting a driver’s license, qualifying for financial aid and college admission, qualifying for military service, and maintaining legal status as an immigrant.  The reach of each collateral consequence extends past people with criminal records to affect families and communities.

Third, here is a recent report from the National Center for Missing and Exploited Children about the problem of child sexual abuse images (aka child porn). It starts with this accounting of its data:

At the National Center for Missing & Exploited Children® (NCMEC), our CyberTipline® has received more than 50 million reports of suspected child sexual exploitation from its launch in 1998 through June 2019 – 18.4 million in 2018 alone. The vast majority of these reports contain child sexual abuse images – a stunning indictment of the insatiable demand for this abusive imagery on the internet. In the last decade, there’s been enormous progress made to disrupt the distribution of these images and prosecute those who share the experience of victimizing children with other offenders. In large part, this progress is due to technological advances to find these images online, leading to an increase in the number of reports to NCMEC’s CyberTipline.

November 18, 2019 in Class activities | Permalink


I agree that the Sentencing Guidelines should be concerned with collateral consequences after an individual serves in prison. The primary purpose of our justice system should be rehabilitation and eventual reintegration into society. However, individuals face many collateral consequences that may prevent them from reintegration. Finding a job, housing, and stigma are all consequences that plague an individual upon release from prison. If an individual cannot find a job or housing, it makes sense that they would likely commit another crime. Our society should be committed to helping individuals reintegrate into society, which would likely lower crime rates. Past prisoners should not face collateral consequences for the rest of their lives.

Posted by: Sara Sams | Nov 19, 2019 4:45:17 PM

The US Commission on Civil Rights referred to Florida's Amendment 4 throughout its report on collateral consequences. The Amendment sought to restore voting rights to felons who were not convicted of felony murder or sex offenses (it is worth discussing separately whether this Amendment is narrowly tailored to the offense as the Commission calls for since the collateral consequence of not being eligible to vote does not address the elements of murder or sex offenses). It passed overwhelmingly. However, the story did not end there. The whole process highlights something we consistently have talked about in class: who are the players?

The ballot initiative received immense support from Floridians for a Fair Democracy, which spent over $20 million in support of the initiative. The ACLU and prominent Democratic politicians also backed the initiative while several Republican leaders opposed it. Roughly two-thirds of Florida voters ultimately approved the initiative.

After the passage of Amendment 4, the Republican-controlled legislature as well as the newly-elected Governor, Ron DeSantis (R), delayed implementation of the Amendment until the legislature could address the issue. Originally, the legislature passed HB 7066, which required felons to complete "all terms of sentence," including paying all associated court costs and fines, before felons could regain voting rights. This law was challenged in federal court, where the US District Judge ultimately concluded that it was the constitutional right of the specific plaintiff-felons to vote if the state's only reason to deny voting is that the felons have not paid costs that they cannot afford. Interestingly, Gov. DeSantis also asked the Florida Supreme Court for an advisory opinion on the law (the Court has yet to issue its opinion).

However, while these cases have been working their way through the system, there have also been a plethora of cases working their way through county courts as part of "rocket dockets." State Attorneys in various counties throughout Florida have worked with county courts to expedite the ability of felons to seek relief and restoration of voting rights. No doubt, this situation is quite confusing, but it also highlights the mechanisms that various actors can use to influence sentencing and collateral consequences.

For more info, you can check out: https://www.nytimes.com/2019/11/09/us/florida-felon-voting-rocket-docket.html; https://ballotpedia.org/Florida_Amendment_4,_Voting_Rights_Restoration_for_Felons_Initiative_(2018)

Posted by: TJ Beavers | Nov 20, 2019 1:11:51 PM

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