Collateral Convictions and Comparative Constitutional Law

A new article about the collateral consequences of criminal convictions, with a comparative element looking at constitutional-style constraints on these consequences in several countries:

This article explores the racial dimensions of the various collateral consequences that attach to criminal convictions in the United States. The consequences include ineligibility for public and government-assisted housing, public benefits and various forms of employment, as well as civic exclusions such as ineligibility for jury service and felon disenfranchisement. To test its hypothesis that these penalties, both historically and contemporarily, are rooted in race, the article looks to England and Wales, Canada and South Africa. These countries have criminal justice systems similar to the United States’, have been influenced significantly by United States’ criminal justice practices in recent years, have turned to increasingly punitive punishment schemes and have histories of disproportionately incarcerating people of color. This article is the first that offers a detailed comparative examination of collateral consequences. The examination finds that the consequences in the United States are harsher and more pervasive than those in these other countries. It also shows that Canada and South Africa have articulated broad dignity protections for incarcerated and formerly incarcerated individuals that are influenced by human rights notions of rights and privileges. Canada, in particular, has employed mechanisms to ease racial disparities in incarceration. Drawing lessons from these countries, the article offers steps to ease the legal burdens placed on individuals with criminal records in the United States, as well as to lessen the disproportionate impact these post-sentence consequences have on individuals and communities of color.