Are collateral consequences of criminal convictions essentially Bills of Attainder?

In My Humble Opinion
1

Specifically, I mean restrictions that carry on after total completion of the court ordered sentence, so I’m not talking about probation or parole restrictions. Some examples off the top of my head: permanent revocation of the right to vote or to keep and bear arms for convicted felons, restrictions on where convicted sex offenders can live and work, and the loss of eligibility for certain government aid programs.

Would such things fall under the category of Bills of Attainder? Or not so, since felons are already considered “tainted”?

2

Correct me if I’m wrong, but “bill of attainder” means a legislation that declares someone guilty of a crime and punishes them without a trial. In the cases you mentioned there was a trial and the punishment imposed was part of it.

3

The punishments imposed by the courts have a set time-frame, however. If a judge sentences someone to two years in prison and thereafter two years of probation, then in four years, the actual punishment is over (at least, that’s what I’ve always thought). Collateral consequences, however, don’t come from the judge, but from the legislature, and persist well after the completion of the sentence. They don’t apply in general, but only to specific groups of people. That’s why I was wondering whether they would be considered bills of attainder. I’ve read that bills of attainder don’t necessarily declare an individual “tainted,” but have been used on groups as well.

4

If a court can sentence someone to life in prison (which I think most agree they can do), then they can also sentence someone to a year in prison and life without voting, or whatever.

Now, where there might be a valid objection is in the ex post facto clause. If someone has already had their trial, and then the legislature passes a law removing voting rights from felons, that could be argued to be an ex post facto punishment (if it doesn’t grandfather in those whose felonies occurred before the law was passed).

5

But, from what I’ve read, the courts do not actually sentence someone to “a year in prison and life without voting,” they sentence them to, for example, “a year in prison,” full stop. The ban on voting (or other civil rights) is not an order handed down by the judge at a sentencing hearing, it’s automatic upon conviction. If a person were to be so sentenced by a judge, it wouldn’t be a bill of attainder, anyway, as bills of attainder are legislative acts, aren’t they?

Then there is the issue of ex-cons moving between states. For example, my own state of Maine allows felons to vote, even while still incarcerated. But if one of them moves to Florida after having completed the sentence in full, he or she won’t be allowed to vote.

6

The man is convicted and sentenced as a felon. Felony, in addition to the specific sentence, carries other restrictions. But the man is not just declared guilty of a felony and this restricted from voting by a law. He is convicted of a felony by a court, thus due process was followed, thus it is not a matter of “attainder”.

7

just a nit

8

I don’t think that’s correct.

“If you were convicted of a felony in another state and had your civil rights restored before you became a Florida resident, you do not need to apply for RCR [Restoration of Civil Rights] in Florida. … NOTE: Some states restore rights automatically, without any paperwork, and a few never take the rights away at all.”

9

And, while you cannot be tried more than once for the same crime IN THE SAME COURT, there is nothing that says you cannot be convicted in separate courts for the same crime. Your conviction in criminal court comes with jail time and possible parole or probation. Your conviction in civil court comes with monetary penalties. Your conviction in “legislative” court comes with temporary or permanent loss of some rights, or enrollment in some list or other. And your conviction in the court of public opinion comes with some loss of standing in your community.

mc

10

That is still not an accurate way of thinking about it.

A bill of attainder is a political process principally in the legislature to punish an individual. The burden of proof for the legislature to punish a specified individual is 50% plus one, plus the consent of the executive. Obviously, in such a process, a lot of defenses go out the window, like rules that evidence be lawfully collected, preventing the jury from hearing improper testimony, and of course conviction at a standard of beyond a reasonable doubt. Again, the potential for abuse here is high, because one can see that it may be tempting at times to punish political enemies for things that aren’t actual crimes.

The punishments that you are talking about are not subject to a political process, they are subject to due process. Evidence may be challenged. Prosecution on ex post facto grounds are prohibited. The punishments may continue after the prison sentence, but they apply to a drug dealer in the same way they apply to the politically connected like former Speaker Dennis Hastert.

I think there are good reasons to question whether these punishment, like stripping voting rights in many places, are wise policy. But that really has nothing to do with the outrageous practice of elected politicians arbitrarily deciding to punish people for reasons of spite or unpopularity.

11

Right, but I thought the whole idea of the prohibition of bills of attainder and ex post facto laws meant that a “legislative court” was not supposed to exist in the first place.

12

It was just an analogy. You are not actually being tried in a “legislative court.”
Certain rights and privileges come with qualifications, and by being a felon you no longer qualify. For example the DMV issues you a license to drive based on certain qualifications such as appropriate age and passing exams etc. once you are issued a license you have to maintain other qualities such as not driving under the influence of intoxicants. If you fail to maintain these qualifications you forfeit your diver’s license. these qualifications are known, or should be known, in advance. The govt is not coming along after the fact and piling on the punishment.

mc

13

Remember, it was the legislature who wrote down in the law that “Aggravated Mopery is a Class III Felony” and who wrote down in the law that “Class III Felonies are punishable with a mandatory minimum of 18 months and 1 day up to a maximum of 3 years in State Prison”. That does not make it be the legislature sentencing you, the Court is. Same with the disenfranchisement. The Court does not come up with the sentences out of thin air, they use the legislated code.

If in your state it has been enacted into law that ALL felons lose the vote for X time period, then every conviction for a felony implicitly includes in its sentence the loss of the franchise to begin with, it does not have to repeat the language in every article describing a specific conduct as a felony, and the prosecution, the Court and your lawyer all are aware that this is part of your possible punishment.