By Margaret Colgate Love

The problem of collateral consequences calls to mind Supreme Court Justice Oliver Wendell Holmes Jr.’s famous line: “The life of the law has not been logic: it has been experience.” U.S. criminal law itself is not theoretically pure. In the area of civil law, in particular commercial law, dozens of uniform laws are on the books, drafted by experts, many of which, such as the Uniform Commercial Code, have been widely adopted. But in a country where we evaluate criminal justice policies based on a melange of principles - retributivist, utilitarian, economic, religious, pragmatic, intuitive, and emotional - there is and could be no Uniform Penal Code.1 Criminal law is inconsistent across states, and even within states, in its underlying justification or rationale, and the reasons that particular rules or practices exist. The Model Penal Code has been widely influential, but—as designed—states adopted only the pieces they liked and heavily modified them. Disagreement about how to treat someone who has been arrested or prosecuted after their criminal case is concluded is, if anything, even more intense. The collateral or indirect consequences of their experience may be divided into four main types: Loss of civil rights, limits on personal freedom (such as registration or deportation), dissemination of damaging information, and deprivation of opportunities and benefits, each of which may be justified and criticized for different reasons. Accordingly, criminal law practitioners and scholars disagree about the fundamental nature and purpose of collateral consequences. To the extent the public at large ever thinks about them, they also hold a range of views. There is no consensus about whether collateral consequences in general or particular ones should be understood as further punishment for crime or prophylactic civil regulation, as a reasonable effort to control risk or as an unconstitutional and immoral perpetuation of Jim Crow, or, perhaps, understood in some other way. Advocates, analysts, and lawmakers will never be in a position to argue persuasively “because collateral consequences rest on Principle X, it follows that they should apply in and only in Condition Y, and must be relieved under Circumstance Z.”  Yet, the practical problem of collateral consequences looms large. With their massive expansion in recent decades, those who experience collateral consequences firsthand know that they cannot become fully functioning members of the community without finding a way to overcome them. The economic dislocations caused by the COVID-19 pandemic underscore the practical implications of collateral consequences: With individuals desperate for money and opportunity, and businesses hungry for workers, the need for a sensible policy to minimize employer concerns about risk is clear. And while there remains no compelling necessity for all states to have the same penalties for armed robbery or cattle rustling, collateral consequences are a national economic problem affecting whole communities that might justify a federal, or at least a uniform, solution. Fortunately, agreement on underlying principles is not required to agree on particular policies.2 Most Americans agree that people arrested or convicted of a crime should not be relegated to a permanent subordinate status regardless of the passage of time, successful efforts at rehabilitation and restitution, and lack of current risk to fellow Americans. Finding ways to restore their legal and social status is a compelling necessity, given the array of collateral consequences adversely affecting tens of millions of Americans, their families and communities, the economy, and public safety itself. To adapt a line from Justice Anthony Kennedy’s 2003 speech on criminal justice to the ABA, too many people are subject to too many collateral consequences for too long. At the same time, substantial majority likely agree that public safety requires excluding those convicted of recent criminal conduct from situations where they present a clear and present danger of serious harm. Even if it is impossible to identify a s     

Arnold, MO: Collateral Consequences Resource Center (CCRC) , 2022. 129p.

By Magnus Lofstrom and Brandon Martin, with research support from Sean Cremin

Key Takeaways: Since a 2009 federal court order to reduce prison overcrowding, California has been at the forefront of reforms aimed at reducing incarceration. One critical reform, Proposition 47—passed by voters in 2014— continues to be at the center of policy discussions. Under Prop 47, prison and jail populations plummeted as did arrests for drug and property crimes after certain offenses were reclassified from felonies to misdemeanors. Furthermore, lower prison populations and expenditures have led to $800 million so far in savings that provided funding for treatment and diversion programs. But Prop 47 may not be the most important change to the criminal justice system in recent years; the pandemic brought challenges that have had lasting impacts on incarceration and enforcement. Driven by larcenies, property crime jumped after Prop 47 compared to the nation and comparison states; with no further deviations until 2021, partly driven by commercial burglaries. Violent crime also diverged over the last decade, with the sharpest deviation at the start of the pandemic. Two years after Prop 47, California’s clearance rate—or reported crimes that lead to an arrest and referral to prosecution—for property crime dropped 3 percent. It then dropped 7 percent in 2022, signaling that a person is half as likely to be apprehended for property crime today, compared to 2014. The clearance rate for violent crime has remained relatively stable for two decades. Jail and prison populations have dropped by a total of 30 percent, but the impact on crime has been modest and limited. With Prop 47, only a rise in auto thefts (3.9%) and car break-ins (3.7%) is tied to lower incarceration; with the pandemic, it was a rise in auto thefts (1.6%) and commercial burglaries (2.1%). After Prop 47, lower clearance rates for larceny (theft without force or threat of force) led to a modest rise in property crime, with more burglaries (2.9%), auto thefts (1.7%), and larcenies (1.1%). After the pandemic, lower larceny clearance rates led to a rise in car accessory thefts (7.3%) and car break-ins (3.9%); burglary clearance rates also dropped, raising commercial burglaries (3.2%). No evidence suggests that changes in drug arrests after Prop 47 or after the pandemic led to any increases in crime. Due to data limitations, we were not able to assess whether Prop 47 or the pandemic led to any changes in substance use and addiction. Focusing on retail theft, fewer cleared property crimes after both Prop 47 and the pandemic led to a rise in commercial burglaries; a drop in the jail population post-pandemic is also tied to a rise in commercial burglaries. Evidence is clearer that retail theft increased due to pandemic responses by the criminal justice system, and the increases were of greater magnitude than increases due to Prop 47. This report builds on our previous research and is the culmination of a year-long effort to examine the impact of Proposition 47 as the reform approaches its 10th anniversary, as well as the impact of the pandemic-related criminal justice responses; it is not an analysis of recently enacted or proposed legislation or upcoming ballot initiatives such as Proposition 36. Determining the factors that can reverse falling rates for cleared property crimes—and in turn raise the likelihood of being apprehended—should be a top priority for California’s policymakers. Legislators also should seek evidence-based alternatives to incarceration, which shows limited success with preventing crime. Understanding these factors and alternatives is vital to developing criminal justice policies, especially as research consistently finds that increasing the likelihood of being apprehended is a more effective strategy for preventing crime than harsher penalties or longer sentences.

San Francisco: Public Policy Institute of California, 2024. 35p.