We Know It When We See It: The Tenuous Line between 'Direct Punishment' and 'Collateral Consequences'
32 Pages Posted: 7 Oct 2018
Date Written: 2016
Abstract
Despite their key role in the penal system, collateral consequences have been routinely relegated in importance by courts. This paper outlines the two areas of decisional law that serve to exempt collateral consequences from constitutional protection. Firstly, courts have ruled they are not “punishment,” according to double jeopardy, ex post facto, bills of attainder, and Eighth Amendment jurisprudence. Secondly, they have created the so-called “collateral-consequences rule”: that attorneys and judges need only inform defendants of the “direct” consequences of pleas and convictions, according to due process and Sixth Amendment jurisprudence. In outlining these doctrines, this article argues that both lines of decisions rest on shaky foundations and tautological assumptions, and that recent court opinions — especially the Supreme Court opinion, Padilla v. Kentucky — show that change is imminent. The paper then discusses what such doctrinal change might look like and how practitioners can adapt to the new realities of this field.
Keywords: constitutional criminal procedure, collateral consequences, punishment, assistance of counsel, due process, Padilla v. Kentucky
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