Incorporating Collateral Consequences into Criminal Procedure

62 Pages Posted: 7 May 2019

See all articles by Paul T. Crane

Paul T. Crane

University of Richmond School of Law

Date Written: April 19, 2019

Abstract

A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, are typically treated as irrelevant when determining whether a defendant is entitled to a particular procedural protection.

This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure. Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines. After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial.

Keywords: collateral consequences, right to counsel, right to a jury trial, Sixth Amendment, Supreme Court, criminal procedure

Suggested Citation

Crane, Paul T., Incorporating Collateral Consequences into Criminal Procedure (April 19, 2019). Wake Forest Law Review, Vol. 54, No. 1, 2019. Available at SSRN: https://ssrn.com/abstract=3375149

Paul T. Crane (Contact Author)

University of Richmond School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States

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