Monday, January 26, 2015
Earlier this month, my colleague Lucien E. Dervan highlighted the issue of collateral consequences as one of the criminal justice hot topics of the year ("Collateral Consequences in 2015, " Jan. 7,2015). Prof. Dervan mentioned the work of both the ABA and the NACDL, specifically the NACDL report "Collateral Damage: America's Failure to Forgive or Forget in the War on Crime." I was a member of the NACDL task force which held hearings in six cities and wrote the report.
Collateral consequences of a criminal conviction, or even an arrest, often dwarf the actual punishment meted out by the judge presiding over the case. Such consequences include, but are far from limited to, serious immigation consequences, denial of fair consideration for employment, inability to secure professional and other licenses, ineligibility for government housing and education aid, denial of the right to vote, serve as a juror, or hold office, and the inability to possess weapons.
Broadly speaking, there are two types of collateral consequences - mandatory and discretionary. The NACDL report recommends that mandatory collateral consequences be disfavored and only occur when substantially justified for public safety reasons by the specific underlying criminal conduct. Discretionary collateral consequences should be imposed only when the offense conduct is directly related to the benefit or opportunity sought. "Benefits and opportunities should never be denied based upon a criminal record that did not result in a conviction."
The indefinite suspension of Baltimore Ravens halfback Ray Rice by NFL commissioner Roger Goodell for punching and knocking down his then girl friend (now wife) went against the grain of these salutory recommendations. Rice's actions, however deplorable, did not affect his ability to carry a football. Rice posed no more or less a threat to his fellow players, or anyone else, after his arrest than before. Additionally, Rice was never convicted of any crime; his case was diverted and eventually dismissed. (Here, the criminal justice system perhaps treated him too gently; organized football treated him too harshly). And his suspension by the commissioner was justifiably overturned by an impartial arbitrator, former federal judge Barbara Jones, although not (at least explicitly) for the reasons discussed above.
To be sure, Rice's employer, the Ravens' owner, who cut him shortly after the revelation of the incident, might have, arguably reasonably, made a determination that his presence on the team would have led to decreased attendance (although the football fans I know would likely not have been been deterred) or revenues or bad public relations. Even so, some other owner should have had the opportunity to hire Rice to bolster his team's backfield and give him an opportunity to earn a living. When Michael Vick, after a felony conviction and prison sentence for animal abuse, returned to the Philadelphia Eagles, he made the team better - and his rehiring was praised by President Obama.
Collateral consequences should not be imposed unless the acts for which an individual has been convicted make it at least more likely than otherwise that he would pose a safety risk to those for whom he works or others with whom he is in contact. That salutary policy should cover all crimes -- including murder, sex crimes, animal abuse - and domestic violence.