C. Mass Conviction, Not (Just) Mass Incarceration

The new civil death is of great practical importance because of the rise of mass conviction. Many distinguished scholars have used a different term to describe this phenomenon: mass incarceration. They observe that since 1970, and even more profoundly since 1980, there has been an increase in both the rate of imprisonment and the absolute number of people in prison. That increase has been called unprecedented in the history of liberal democracy. In 1980, more than 500,000 Americans were confined to prisons and jails; today there are nearly two million.

Yet, focusing exclusively on mass incarceration obscures the reality that most convicted persons are not sentenced to prison. There are approximately 1.1 million new state felony convictions in a typical year, and some multiple of that in misdemeanor convictions. In addition, there are approximately 80,000 federal convictions each year, most of which are felonies. Most defendants convicted of felonies are not sentenced to state prison--about sixty percent receive probation only or probation with local jail time. Even more defendants convicted of misdemeanors avoid incarceration altogether. While many are sentenced to prison, and even though sentence length has increased in recent decades, the average term is now less than five years. Accordingly, it is likely that the vast majority even of those sentenced to prison will spend most of their lives in free society.

Those convicted but not incarcerated are typically sentenced to probation. Six-and-a-half million people were on probation at some point during 2009, three times the number in prison or jail. At the broadest level of generality, approximately sixty-five million adults have a criminal record of some kind, although some of those involve arrests not leading to conviction. Accordingly, the size of the offender population is not just the two million in custody; it also includes the more than six million in the control of the criminal justice system who are not in custody plus the tens of millions who have a record but are not in prison or jail or on probation or parole.

The incarceration part of mass incarceration implies that actual confinement is the most important feature of the system. However, as legally and socially significant as a term in prison is, for most people convicted of crimes, collateral consequences will generate the most significant effects. Merely escaping incarceration hardly means that a person with a conviction is not subject to other legal consequences as a result of her conviction. Criminal records are increasingly available to all branches of the government and all segments of the public through computer databases, thus making collateral consequences more susceptible to ready enforcement.

Loss of legal status is more important, ironically, for relatively less serious crimes. If a person is sentenced to twenty-five years imprisonment at hard labor, it likely matters little that she will be ineligible to get a license as a chiropractor when she is released. But to a person sentenced to unsupervised probation and a $250 fine for a minor offense, losing her city job or being unable to teach, care for the elderly, live in public housing, or be a foster parent to a relative can be disastrous. [I] n many cases the most important part of the conviction, in terms of both social policy and the legal effect, lies in the collateral consequences.