Document Type

Article

Publication Date

2012

Abstract

A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. The phenomenon of civil consequences of conviction presents an overlap of civil and criminal law that poses difficult questions about how the theory behind this overlap translates to practical application.

Padilla v. Kentucky, heralded by some as a watershed and treated by others as an anomaly, is a first step in matching the law to the practical reality of the civil consequences of criminal convictions. This article examines Padilla and the context in which it was decided and suggests that, although the dissenters in Padilla may be correct that the opinion will be difficult to apply in a coherent way, the decision has taken the first step towards a new legal doctrine of civil consequences. The Supreme Court’s recent decision in Turner v. Rogers underscores that the Court’s approach in these two cases creates an opportunity to consider this overlap of civil and criminal law and to create a more realistic, consistent, and just doctrine of civil consequences of criminal convictions.

This article begins the process of defining this doctrine by suggesting that instead of inquiring into whether consequences are direct or collateral as courts have in the past, courts should inquire into whether these civil consequences are “significant entanglements” of civil and criminal law. First, courts should analyze whether the civil consequence is significant, in both an objective and subjective sense. Second, courts should examine whether the consequence is entangled with the criminal process. Where significant entanglements exist, corresponding protections should follow. The article goes on to suggest that the significant entanglement framework can be used to analyze whether Sixth Amendment protections should apply to a particular civil consequence at a particular stage of the criminal process. Further, the significant entanglement framework can be applied outside the Sixth Amendment context to understand the other constitutional protections that may be applied by courts as a result of civil consequences of criminal convictions. Thus, the significant entanglement framework is the next step in developing a new doctrine for the protections that apply to civil consequences of criminal convictions and for understanding this particular intersection of civil and criminal law.

Publication Citation

49 Am. Crim. L. Rev. 1387-1436 (2012)

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