Wrongful Collateral Consequences

Abigail E. Horn, 87 George Washington University Law Review 2

(March 2019)
Wrongful Collateral Consequences cover image

According to the article's author, collateral consequences of criminal convictions perpetuate racial hierarchy, disadvantage individuals and families, undermine communities, and harm the public by hindering reentry efforts. The author contends that this article is the first to systematically expose another overlooked characteristic of collateral consequences— the extent to which they are imposed wrongfully. Wrongful collateral conse- quences are those that attach erroneously and in clear violation of the law. The causes are structural. Imposing collateral consequences requires a two-step matching process.

First, an administrator must match a person to his or her criminal-records data. Second, an administrator must match the criminal records data to the law enacting the collateral consequence—to determine whether the consequence should lawfully attach. These steps, the author says, are simple to state, but difficult to implement. Errors occur at both steps. Wrongful collat- eral consequences arise because criminal-records data is notoriously incom- plete and inaccurate. They also arise because the laws enacting collateral consequences are structurally complex—legislators employ catchall clauses to enumerate the triggering offenses and complex duration clauses to prescribe the length of the consequences.

The author contends that reforms are possible, including two that would get at the root causes: improving criminal-records data and simplifying collateral consequence laws. Other reforms would leave in place the existing structure but should be implemented immediately: improvements in procedural due pro- cess, creative plea bargaining by criminal-defense counsel, and quality con- trols by administrators who do the two-step matching. These reforms would prevent wrongful collateral consequences at the margins, but not eradicate the problem. Wrongful collateral consequences ultimately present yet another rea- son why collateral consequences, and the caste system they create, are mis- guided and unjust.