Constitution-free punishments : a call for a fundamental rethinking of collateral consequences

More than 77 million Americans are subject to collateral consequences that limit, if not strip, a staggering range of political, civil, and social rights. There are 44,788 collateral consequences codified into law in the United States today. Twenty-nine percent of these laws are indefinite collateral sanctions that are automatically enforced without any durational limit. A federal judge recently found that today’s collateral consequences “amount to a form of civil death and send the unequivocal message that ‘they’ [ex- offenders] are no longer part of ‘us.’” These laws disproportionately devastate minority communities, perpetuating inequality by relegating millions of Americans to second class status. Collateral consequences have become one of the most widespread exertions of government power the judicial branch has turned a blind eye to. None of the constitutional limits that are supposed to protect citizens from government deprivations of liberty apply to collateral consequences because they are not considered punishment under the law. Described by Justice Marshall as a “toothless standard [that] applies irrespective of the excessiveness of the restraint or the nature of the right infringed,” the current test for what constitutes a punishment has left collateral consequences entirely unchecked. So long as the restraint has any plausibly rational basis, federal, state, municipal, and agency law makers are free to punish people as much as they please. While constitutional solutions to this problem have become near impossible, there are statutory solutions that would alleviate this harm. The Supreme Court should resolve the current debate between federal courts of appeals by affirming that collateral consequences must be one of the factors considered by a federal judge when determining a “just sentence” under Section 3553(a) of the U.S. Sentencing Code. If federal courts acknowledge the reality of collateral consequences and factor them into a “just sentence,” states will be more likely to do the same. And maybe for the first time in 50 years, there will be a judicial constraint on collateral consequences.