Conviction: Civil Disabilities

A significant legal question that permeates all of these disabilities is whether they are punishment, or civil sanctions. If they are considered punishment, then a number of protections, both procedural and substantive, would surround their imposition. For example, under the Eighth Amendment no punishment may be cruel and unusual; there is no explicit parallel provision for civil sanctions. Similarly, punishments cannot be imposed unless the state proves the predicate beyond a reasonable doubt, but civil sanctions may be imposed on the basis of far lesser standards of proof.

Almost uniformly, however, the courts have held that whether a specific loss or disability is punishment depends on the intent of the legislature, and courts have been eager to find non-punitive motives for such statutes. Thus, for example, forfeiture of one's goods may be imposed civilly because there courts have found a remedial purpose in the sanction. Similarly, preventive detention, which could be characterized as pre-conviction civil disability, has been upheld on the basis that it serves the regulatory purpose of crime prevention. Most recently, courts have wrestled with whether requiring convicted sex offenders to register with police upon their release from prison is punitive, thus activating the rights mentioned above. Universally, the courts have found that the legislature's purpose was not punitive, but preventive, even though many states require such registration for the offender's entire life. Indeed, public notification of the offender's history, current address, and employment has been upheld as nonpunitive on the same basic theory.

That some states impose civil disabilities in a wide-ranging manner, while others forego or limit such disabilities, suggests that the nonpunitive purposes espoused by proponents are at least suspect. But even if that conclusion is debatable, these examples suggest either the need for reevaluation of the notion of punishment, or a more nuanced exploration of the disability being imposed. Thus, one might suggest a sliding scale in which the standard of proof, or procedural rigor, might be increased as the intensity and duration of these civil disabilities increased. The Supreme Court has adopted such an approach in analogous areas, for example in civil commitment where the Court held that the standard of proof should be by clear and convincing evidence, rather than by a mere preponderance. Similarly, one might impose rules of evidence, or appointed counsel, in some instances where the disabilities are both intrusive and long-lasting.