A. Civil Death and Its Decline Before 1980

At common law, there was an English and American institution of civil death as a punishment associated with conviction (or attainder) for treason or felony. As the New York Court of Appeals explained in 1888, under the English common law, a person sentenced for felony was

placed in a state of attainder. There were three principal incidents consequent upon an attainder for treason or felony,--forfeiture, corruption of blood, and an extinction of civil rights, more or less complete, which was denominated civil death. Forfeiture was a part of the punishment of the crime . . . by which the goods and chattels, lands and tenements of the attainted felon were forfeited to the king . . . . The blood of the attainted person was deemed to be corrupt, so that neither could he transmit his estate to his heirs, nor could they take by descent from the ancestor . . . . The incident of civil death attended every attainder of treason or felony, whereby, in the language of Lord Coke, the attainted person is disabled to bring any action, for he is extra legem positus, and is accounted in law civiliter mortuus, or, as stated by Chitty, he is disqualified from being a witness, can bring no action, nor perform any legal function; he is in short regarded as dead in law.

Loss of status as a form of punishment also existed in other ancient legal regimes.

The consequences of attainder were on the minds of our Constitution's drafters. The Constitution provides, The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. The delegates declined to adopt forfeiture and corruption of blood beyond a person's lifetime. Civil death, though punishment, was not categorically prohibited.

In England, civil death was a common law punishment, but in the United States, it existed only if authorized by statute. It was far from universal; only eighteen states employed it as of 1937, although states without a formal system of civil death restricted particular civil rights of convicted persons.

By the turn of the nineteenth century, civil death faced increasingly withering criticism. In 1897, a unanimous Supreme Court held that a court of equity could not disregard an answer and enter default judgment against a defendant who was in contempt on another issue. As Justice White explained for the Court, [I] f such power obtained, then the ancient common law doctrine of outlawry, and that of the continental systems as to civil death, would be a part of the chancery law, a theory which could not be admitted without violating the rudimentary conceptions of the fundamental rights of the citizen. The Illinois Supreme Court in 1907 quoted approvingly a scholar's conclusion that it raises a feeling of repulsion, whether the incapacity is presented singly or as a consequent of another punishment. It is a barbarism condemned by justice, by reason and by morality. A German commentator wrote in 1916:

The recognition of the legal rights of the individual follows naturally upon the conception of the free personality. Hence it comes that the penalty of so-called civil death pronounced upon a living man is not consonant with our conception of justice. Therefore this punishment has been done away with nearly everywhere and is not likely to recur.

Perhaps the decline of civil death can be traced to the new reality that conviction of a felony no longer necessarily implied a capital sentence. When all felonies were punishable by death--and such sentences were regularly and speedily carried out--it made some sense to begin to settle the convicted person's affairs as soon as the sentence became final. Civil death in its original application was thus a transitional status in the period between a capital sentence and its execution, not a condition applicable potentially for decades. Blackstone reported, for example, that a benefit of clergy, which prevented execution for a capital felony, also restored [the convicted person] to all capacities and credits, and the possession of his lands, as if he had never been convicted.

The developing principle of sentencing proportionality reduced the number of executions, which raised doubts about the wisdom and utility of civil death. As a Harvard Law Review Note argued in 1937, It is the volume of parole and pardon figures that gives the vestigial doctrine of civil death a new significance, warranting an examination of the conflicts and inconsistencies into which it has led courts and legislatures. Civil death contradicted the idea that offenders could pay their debt to society and the reality that the prison experience, for many, would be a temporary if significant interruption to their lives.

As Margaret Colgate Love has written, mainstream legal opinion began to recognize the problem of excessive collateral consequences in the 1950s. The 1956 National Conference on Parole, a joint effort of the U.S. Attorney General, the U.S. Board of Parole, and the National Council on Crime and Delinquency, called loss of civil rights an archaic holdover from early times meriting abolition. In 1983, the American Bar Association confidently predicted that collateral sanctions were on their way to extinction: As the number of disabilities diminishes and their imposition becomes more rationally based and restricted in coverage, the need for expungement and nullification statutes decreases. By 1984, a House committee had claimed the existence of a consensus that arbitrary restrictions on the rights of former offenders should be eliminated. In the mid-twentieth century, many civil death statutes were repealed or wholly or partially voided. However, civil death never fully disappeared. New York, the Virgin Islands, and Rhode Island retain forms of it for persons sentenced to life imprisonment, and Idaho retains a version of it for all prisoners, but textually and by court decision, these statutes leave convicted persons in possession of some rights.