D. Collateral Consequences as Unrestrained by the Constitution

Courts have imposed few limits on creation and implementation of collateral consequences. They are generally regarded as nonpunitive. Accordingly, they are not evaluated for overall proportionality, nor is there significant scrutiny for reasonableness. In addition, existing collateral consequences may be imposed without warning, and new ones may be created and imposed after a sentence has been fully served.

1. Individual Collateral Consequences as Regulatory Measures

The modern law of collateral consequences seems to have begun with Hawker v. New York. Hawker, a physician, was convicted of performing an abortion, a felony at the time. The New York legislature later passed a law prohibiting those convicted of a felony from being licensed to practice medicine. The Supreme Court upheld the prohibition by a vote of six to three, with Justice Harlan writing for the dissenting Justices.

The majority concluded that the disqualification was not truly based on the conviction; the conviction was mere evidence. The disability was instead based on violating the law, which made Hawker ineligible because he had a bad moral character. The law was not ex post facto, because the disability was based on the illegal conduct of which the conviction is mere evidence. Anyone proved to have performed abortions would be similarly ineligible.

Another leading (and problematic) decision, Kennedy v. Mendoza-Martinez, establishes a test for determining whether a law is criminal punishment or civil regulation. The test employs seven nonexclusive, unweighted factors, filtered through a rule that only the clearest proof will overcome a legislative claim that a measure is civil. Examination of the purposes of the legislature generally does not extend beyond the text of the law itself. Of course, the outcome of any seven-factor, nonexclusive test is indeterminate, and the key cases have been decided by very close votes. Mendoza-Martinez itself invalidated, by a five-to-four vote, automatic expatriation of those who avoided wartime military service by leaving the United States.

The result is that a State may subject convicted persons to harsh treatment. While it is unconstitutional if the State acts in such a fashion for punitive purposes, that treatment is entirely permissible if the underlying reason is to protect public safety or to promote some other aspect of the public interest. But virtually no examination of the actual motivation of the legislature is permitted by the judiciary. Obviously, a test putting so much weight on formal categorization will uphold many measures that are in fact motivated by a desire to punish.

United States v. Brown held that a law criminalizing service by a Communist in union offices was an unconstitutional bill of attainder, which necessarily required a finding that the law constituted punishment. The opinion offered a compelling argument that the quest for a sharp difference between punitive and regulatory measures is futile; punishment, including imprisonment and capital punishment itself, is often imposed for preventative purposes. One must, therefore, question the wisdom of a rule relying so much on a distinction between regulation and punishment, when the two are often not different in principle. More recently, Justice Stevens persuasively argued that the search for legislative intent behind sex offender registration laws was beside the point: In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person's liberty is punishment. Whatever the merits of these more searching tests for punishment, they are not the law today.

Even if they do not rise to the level of punishment, restrictions on people with convictions must nevertheless be rational under the Equal Protection Clause. However, rational basis review performed by courts in this context is far from exacting. For example, courts have found denials of public benefits to people with convictions to be rational because such restrictions save taxpayer money. In addition, courts do not require legislatures or agencies to classify people with convictions precisely.

The Supreme Court has found denial or burdening the exercise of civil rights to be unobjectionable in many circumstances, including deportation for noncitizens and deprivation of a citizen's right to vote, hold public office, serve on a jury, testify, and possess firearms. It has approved prohibitions on occupational licenses, and on private employment where there is a public interest. It has upheld denial of public benefits, and special restrictions, such as registration and incarceration of sex offenders.

At some point, the Constitution limits the power of legislatures. The Court has held that prisoners serving less than life sentences cannot be denied the right to marry; and so people with convictions who are not in prison, on probation, or on parole cannot be arbitrarily prohibited from marrying. Nor, probably, could a legislature require the sterilization of convicted people, at least without careful line-drawing and process. Nevertheless, an extremely broad range of restrictions is permissible, so long as the restrictions are regulatory and rational within the meaning of the law.

2. Innovative Collateral Consequences

Because collateral consequences are not, strictly speaking, punishment, existing limitations may be imposed retroactively on people not subject to them at the time of conviction. In addition, states are free to create new restrictions in previously unregulated areas. Thus, if rational basis review is taken seriously, then it appears that a truly unfortunate and spectacular range of potential discriminations may be visited long after the fact on those convicted of crime.

It would seem that virtually all denials of public benefits or services are rational because such benefits direct scarce resources to the most deserving. The federal government could, apparently, deny applications for Social Security, Medicare, and Medicaid from some or all people with felony convictions --because conservation of funds constitutes a rational basis on which to deny assistance to convicted felons and sex offenders. In the absence of some positive federal law to the contrary, states apparently could deny people with convictions access to public hospitals, higher education, and state benefit programs for the same reason.

Courts could find virtually all employment and licensing restrictions rational, as long as the job or occupation is one for which honesty, integrity, and moral character are relevant, for [i] t is not open to doubt that the commission of crime--the violation of the penal laws of a state--has some relation to the question of character. It is hard to imagine a job so insignificant and inconsequential that it could be done as well by a person of bad character as by someone who was hard working and honest. Because public employment is both a public benefit and a public trust, perhaps all restrictions in that area are rational.

Registration requirements, which originated outside the sex offender context, are now returning to their roots, with more jurisdictions requiring the registration of people with records involving non-sex crimes. Although Lambert v. California held that a particular person with a conviction could not be held liable for nonregistration based on the facts of that case, the Court did not hint that criminal registration might be unconstitutional in general.

One novel restriction is the limitation on the residence and movement of people convicted of sex offenses. The North Carolina Supreme Court held that people with criminal records can be denied access to public parks. Although some residential restrictions have been struck down on state law grounds, including under state ex post facto clauses, many courts considering the question have held that these restrictions are not ex post facto punishments, but instead reasonable regulations --even if they mean that for practical purposes a person cannot legally live anywhere in a particular city.

Bare majorities of the Sixth Circuit and the North Carolina Supreme Court upheld a satellite-based monitoring (SBM) program. The Massachusetts Supreme Judicial Court invalidated one by an equally close margin. The North Carolina Court described the program as remarkably burdensome and intrusive. Participants are required to


wear a transmitter, which is a bracelet held in place by a strap worn around one ankle. . . . Second, participants wear a miniature tracking device (MTD) around the shoulder or at the waistline on a belt. The MTD may not be hidden under clothing. The device contains the Global Positioning System (GPS) receiver and is tethered to the ankle bracelet by a radio-frequency (RF) signal. . . . The MTD includes an electronic screen that displays text messages communicating possible violations or information to the participant. Third, a base unit is required for charging the MTD's battery . . . . The MTD requires at least six hours of charging per twenty-four hour period.

In another case, a North Carolina court upheld the SBM program against an ex post facto challenge even though the program rules imposed a curfew, required a daily schedule, and necessitated six hours at home to charge the tracking device.

Regulation of this kind is costly, which ordinarily might deter states from creating and expanding such programs. However, statutes often require the people being monitored to pay the costs; these requirements have been upheld.

If residence and movement restrictions and monitoring requirements are rational and not punishment as applied to sx offenders, then there is a strong argument that they are also rational and not punishment for those convicted of other crimes. If children and others should be protected from sex offenders, then surely it is rational that they be protected from drug offenders, those who committed violent offenses or offenses with high possibilities of violence such as burglary, or, for that matter, from serial quality-of-life misdemeanants.

3. No Right to Notice at Plea or Sentence

Because collateral consequences have traditionally been understood as civil and nonpunitive, a defendant has not been constitutionally entitled to notice of existing restrictions from the Court before pleading guilty or to advice about the restrictions from defense counsel when considering how to proceed in the case. Deportation is, at the moment, the important exception. In March 2010 in Padilla v. Kentucky, seven Justices voted that the Sixth Amendment required defense counsel to advise clients about the possibility that a guilty plea would lead to deportation. Some lower courts have applied the advice requirement of Padilla to other collateral consequences, but the Supreme Court itself has not yet indicated how broadly Padilla will apply. As a general matter, people plead guilty to relatively minor offenses with relatively small punishments having no idea of what could happen to them, other than the possibility of deportation. Or, they plead guilty because they do know what will happen and they can live with it, but years later, the legislature adds additional collateral consequences (possibly including, of course, deportation) to an old conviction.

In sum, particularly in cases where the traditional forms of punishment are relatively light, collateral consequences will be one of the major effects of the criminal judgment. Yet, under the law as it now exists, it is not clear that the defendant has a right to be advised of the most important legal effects of the decision to enter a plea agreement.

. Professor of Law, University of California, Davis, School of Law.