Fundamental Rights and Legal Consequences of Criminal Conviction

Sonja Meijer, Harry Annison, Ailbhe O'Loughlin

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509920983
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

The legal position of convicted offenders is complex, as are the social consequences that can result from a criminal conviction. After they have served their sentences, custodial or not, convicted offenders often continue to be subject to numerous restrictions, in many cases indefinitely, due to their criminal conviction. In short, criminal convictions can have adverse legal consequences that may affect convicted offenders in several aspects of their lives. In turn, these legal consequences can have broader social consequences. Legal consequences are often not formally part of the criminal law, but are regulated by different areas of law, such as administrative law, constitutional law, labour law, civil law, and immigration law. For this reason, they are often obscured from judges as well as from defendants and their legal representatives in the courtroom. The breadth, severity and longevity and often hidden nature of these restrictions raises the question of whether offenders' fundamental rights are sufficiently protected. This book explores the nature and extent of the legal consequences of criminal convictions in Europe, Australia and the USA. It addresses the following questions: What legal consequences can a criminal conviction have? How do these consequences affect convicted offenders? And how can and should these consequences be limited by law?

1

Introduction

SONJA MEIJER, HARRY ANNISON AND AILBHE O’LOUGHLIN

I.BACKGROUND AND AIMS

The legal position of convicted offenders is complex,¹ as are the resulting social consequences (Van Zyl Smit and Snacken 2010). Convicted offenders, after they have served their sentences, custodial or not, often continue to be subject to numerous restrictions, in many cases indefinitely, due to their criminal conviction. In short, criminal convictions can have adverse legal consequences that may affect convicted offenders in several aspects of their lives. These legal consequences often are not formally part of the criminal law but are regulated by different areas of law, such as administrative law, constitutional law, labour law, civil law and immigration law. In turn, they have, and interact with, broader social consequences of conviction. For this reason, they can be obscured from judges, as well as from defendants and their legal representatives. The breadth, severity and longevity, and often hidden nature of these restrictions, raise the question of whether offenders’ fundamental rights are sufficiently protected.

It is often assumed that the criminal law brings with it better procedural safeguards than, for example, civil law, but this view seems to be out-dated on the point that consequences regulated outside of criminal law can be even more far-reaching than criminal punishment itself. This is especially the case for the consequences a criminal conviction can have for immigration (Kirk and Wakefield 2018). Such consequences cause the lines between the criminal law and other areas of law to become blurred. Some scholars have expressed their concern that we might even be creating a form of second-class citizen, unable to come back from a period of punishment to lead a normal life (Thomas 2007: 189).

We can distinguish eight different domains in which offenders can experience legal consequences because of a criminal conviction: employment, education, freedom of movement, enterprise, housing, family, privacy, and immigration. Examples are the exclusion of offenders from certain jobs and/or positions (the right to work); disenfranchisement (the loss of the right to vote or the right to run for elections); the registration of fingerprints or cellular samples from ex-offenders, or registration as sex offenders (constraining the right to privacy); the refusal of a housing permit (excluding ex-offenders from living in certain areas; the right to housing); the refusal or withdrawal of professional licences, grants or contracts (the right to work and/or privacy); and measures of intensive supervision and preventive detention that restrict (ex-)offenders in their freedom of movement after they have served their (punitive) prison sentence. These consequences can be imposed automatically (by statute), by a court or by an administrative authority.

Given these adverse consequences, it is surprising that very little international comparative and empirical research has been undertaken in Europe on this subject. In the United States (US), a large body of research on the so-called ‘collateral consequences of criminal convictions’ exists (eg Damaska 1968a and 1968b; Demleitner 1999; Colgate Love 2001; Mauer and Chesney Lind 2003; Pinard 2006; Uggen, Manza and Thompson 2006; Uggen and Steward 2015).² In comparison, in Europe, only a few scholars have engaged in research on this topic (see Von Hirsch and Wasik 1997 on civil disqualifications attending conviction). Recently, European scholars have begun to point out the existence and importance of legal consequences of criminal convictions for different domains (Boone and Kurtovic 2015; Fitzgerald O’Reilly 2018).

Research in Europe has tended to focus on criminal records (Thomas 2007). Before the introduction of the European Criminal Records Information System (ECRIS) in 2012,³ (comparative) research addressed the question of whether the European Union (EU) was in need of a European Criminal Record database (Stefanou and Xanthaki 2008; Vermeulen et al 2002). More recently, it has mainly focused on restrictions on one of the aforementioned domains, namely, convicted offenders’ access to employment (see the Special Issue of the European Journal of Probation 2011 with contributions from France (Herzog-Evans 2011), Germany (Morgenstern 2011), England (Padfield 2011), Spain (Larrauri 2011; see also Larrauri and Jacobs 2013; Jacobs and Larrauri 2016) and the Netherlands (Boone 2011). There has also been research on Sweden (Backman 2012). Comparative research on the employment of people with criminal records in the EU has been published by Louks, Lyner and Sullivan (1998), and more recently by Buysse, Meijer and Szytniewski (2018). Less attention has been given to disenfranchisement (with the exception of Tripkovic 2016), the consequences of a criminal conviction for immigration (with the exception of Blitsa, Gouldin, Jacobs and Larrauri 2016) and the right to housing (with the exception of Van Tongeren and Vols 2017). In short, this is a significant and under-researched area of law and criminology.

The aim of this book is to begin to explore the nature and extent of legal consequences of criminal convictions in Europe. What legal consequences can a criminal conviction have? How do these consequences affect convicted offenders? And how can and should these consequences be limited? ‘Legal consequences’ is intended here as a broad term. On the one hand, legal consequences may result directly from a criminal conviction. An example of this is that a criminal conviction may result in long periods of preventive detention, or long periods of supervision on the grounds of prevention. On the other hand, consequences may result from the exercise of legal powers. For example, the exercise of the power of national authorities to issue criminal record extracts or criminal record check certificates may result in individuals being denied employment on the grounds of a criminal conviction.

The latter consequences are also referred to in the literature as ‘collateral consequences’ (eg Demleitner 1999; Love, Roberts, and Klingele 2013), ‘adverse (legal) consequences’ (eg Damaska 1968a and 1968b) or ‘civil disqualifications’ (Von Hirsch and Wasik 1997). These terms are often not clearly defined, but from the description given by Von Hirsch and Wasik it follows that these disqualifications may (i) take effect automatically on conviction, (ii) be imposed by the sentencing judge, or (iii) be imposed by a regulatory agency. Although the starting point of this collection is the criminal conviction, an important finding is that some of the consequences described flow not only from a criminal conviction, but also, in some countries, from criminal record information that falls short of a conviction, such as data on charges or cautions held by the police.

It should be noted that not all of the rights as described in this book are equally protected in European countries. The European Convention on Human Rights (ECHR) protects basic (civil and political) human rights (Cliquennois and Suremain 2017). The principle of human dignity underpinning Article 3 ECHR may be drawn upon to restrict grossly disproportionate punishment (see Vinter and others v the United Kingdom and discussion in Annison and O’Loughlin, chapter 9 of this volume). Restrictions on liberty may be challenged under Article 5 ECHR, and preventive measures imposed after conviction may be construed as penalties in violation of Article 7 ECHR (see Annison and O’Loughlin, Dessecker, chapters 9 and 10 of this volume). Restrictions on the right to vote have been successfully challenged under Article 3 of Additional Protocol No 1 to the ECHR (see Hirst v United Kingdom 2005; Scoppola v Italy 2011). However, as Herzog-Evans shows, the protection offered by the interpretation of the European Court of Human Rights (ECtHR) is still rather minimal.

The European Social Charter (ESC) protects economic, social and cultural rights, such as the right to work (Article 15(1) ESC). The problem with this instrument, however, is that states do not have to sign up to all the provisions of this treaty. Furthermore, individuals cannot invoke the rights protected by the ESC, and the conclusions of the European Committee of Social Rights – the body monitoring the implementation of the ESC – are legally non-binding. For these reasons, the focus of the book is on human rights protected by the ECHR. While the ECHR does not contain, for instance, a right to work, some protection may be found in the Article 8 right to respect for private and family life, where the disclosure of private information such as criminal convictions is involved (see Padfield 2011). However, in some countries, such as the Netherlands, pre-employment screening does not involve direct disclosure of criminal record information to employers (see Meijer and van ’t Zand-Kurtovic, chapters 5 and 14 of this volume).

Furthermore, the Charter of Fundamental Rights of the European Union contains some socio-economic rights, such as the right to engage in work (Article 15(1)) and entitlements to social security and assistance (Article 34). However, these rights apply only where Member States are implementing EU law.

This book is the result of a workshop held at the Oñati International Institute for the Sociology of Law, which brought together for the first time a number of leading legal, socio-legal and criminological scholars from different parts of the world to discuss the topic of the legal consequences of a criminal conviction. The papers that were presented at the workshop have been extensively revised and form the substantive chapters of this book. In addition, Nicola Carr and Christine Morgenstern have contributed chapters to the book, for which we are very grateful. Because of our broad approach to the term ‘legal consequences’, not all chapters take the same approach: some chapters deal with the wide range of legal consequences a criminal conviction can have in a certain country, while other chapters deal with a specific consequence in more detail. The normative aspects of the legal consequences of criminal conviction are dealt with by various chapters. The advantage of this approach is that authors were able to focus on the most current and relevant developments in their respective countries. The corollary of the approach, however, is that close comparisons between the different countries are difficult to make. Nevertheless, the chapters allow for the identification of broad trends, highlight a variety of significant cultural, legal and empirical similarities and differences between countries, and point the way towards principles and methods for limiting the often extensive breadth of restrictions imposed as a consequence of criminal conviction.

We have organised the papers into four parts: I. Criminological Perspectives on Legal Consequences of Criminal Conviction; II. Legal Limits on the Legal Consequences of Criminal Conviction; III. Dangerous Offenders and Legal Consequences of Criminal Conviction; and IV. Juvenile Offenders and Legal Consequences of Criminal Conviction.

In this introduction, we set out some normative debates with regard to the consequences a criminal conviction might have (section II). Furthermore, we highlight the discussions presented in the various contributions, and point out how these chapters build on previous research (section III).

II.NORMATIVE DEBATES

While there is copious scholarly work on the rationales of and justifications for state punishment, surprisingly, the principles governing legal consequences of criminal conviction have attracted little doctrinal or conceptual analysis. As the contributions to this volume demonstrate, the (more or less clearly elucidated) justifications for legal consequences of conviction often echo the purposes of sentencing, which include retributive punishment or crime prevention (whether through deterrence, incapacitation, reform or rehabilitation).

However, due to their ‘hidden’ nature, judges may not be aware of these consequences when passing sentence. Thus, they are often not taken into account in calculations of proportionality. Furthermore, legal consequences are often determined by administrative authorities and governed by different areas of law. Therefore, they often escape the traditional safeguards of the criminal law. In addition to these considerations, criminal convictions are often also taken as an indication of a person’s status or character. Consequently, those with a criminal conviction may find their rights and opportunities restricted because they are regarded as untrustworthy or undesirable, particularly in the employment context (see Morgenstern, chapter 4 of this volume). Similarly, those who have criminal convictions may be deprived of civil and political rights, such as the right to vote, not necessarily because of what they may do in the future, but because their past offending is taken as an indication that they are not deserving of the full rights and duties of citizenship. Given their potential to negatively impact upon offenders’ rights, the question of what limits should be placed on legal consequences is an important one. For this reason, the proportionality or appropriateness of legal consequences to their purpose is a theme that runs throughout this volume.

A.Prevention

Restrictions on convicted offenders’ rights are often justified by national authorities as a means of preventing reoffending through incapacitation or deterrence. Malsch’s chapter in this volume (chapter 3) highlights the tendency of measures of incapacitation towards net-widening and self-perpetuation, as measures of prevention or incapacitation often seem to lead to further measures.

An important contribution of this volume to the literature on the consequences of criminal conviction is that several chapters emphasise the severity of the legal consequences that can flow from criminal conviction for a serious offence. Justifications for that severity blur the line between retribution and prevention by conceiving of serious offenders as ‘dangerous’ individuals. In this sense, there is often an assumption that a person with a history of serious offending is more likely to reoffend seriously in the future than someone without a criminal record. As Morgenstern argues (in chapter 4 of this volume), empirical studies of reconviction rates amongst convicted offenders demonstrate that the assumption that past convictions are a reliable predictor of reoffending is often misplaced. This is particularly the case for sex offenders, who are often regarded by the public as particularly liable to reoffend but who actually have a very low rate of reconviction. Thus, in relation to dangerous offenders, the line between punishment and prevention is often blurred, and retributive justifications for lengthy periods of detention and supervision are intertwined with preventive justifications (see Annison and O’Loughlin, chapter 9 of this volume). Conversely, even minor offences can have far-reaching consequences that seem out of step with the preventive function they ostensibly seek to fulfil. In particular, chapter 8 by Blitsa and Kivrakidou on Greece highlights the sometimes arbitrary nature of restrictions that result from a criminal conviction.

Furthermore, as chapter 4 by Christine Morgenstern and chapter 5 by Sonja Meijer highlight, a previous conviction has legal consequences within the criminal justice system, as it is viewed as an aggravating factor in sentencing. In the German context, this is often justified by reference to the fact that the individual has reoffended despite the ‘warning’ effect of the previous conviction, or that reoffending is in itself evidence of a higher risk of recidivism (see Morgenstern, chapter 4).

B.Punishment

While the primary purpose of many restrictions on offenders’ rights is the prevention of crime, punitive sentiments and the notion that offenders are less deserving of the rights and privileges accorded to (supposedly) law-abiding citizens are often not far below the surface. Indeed, restrictions on the right to vote are frequently conceived of as a punishment, and are defended on the grounds that offenders have broken the social contract and therefore no longer deserve to participate in civil life (see Hirst v United Kingdom; Herzog-Evans (chapter 11 of this volume); Lukács and Vig (chapter 6 of this volume)).

As several of the contributions to this volume demonstrate, restrictions that are primarily intended to prevent reoffending may also be experienced as punitive or stigmatising in their effects, or are applied so widely and indiscriminately that they impose hardships out of all proportion to their preventive aims (see Blitsa and Kivrakidou (chapter 8); Herzog-Evans (chapter 11); Lukács and Vig (chapter 6); Meijer (chapter 5); Annison and O’Loughlin (chapter 9); Keyzer and O’Donovan (chapter 12)). Kirkwood and McNeill (2015: 514) note that ‘even under a retributivist a...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Table of Contents
• List of Contributors
• 1. Introduction
• PART I: CRIMINOLOGICAL PERSPECTIVES ON LEGAL CONSEQUENCES OF CRIMINAL CONVICTION
• PART II: LEGAL LIMITS ON THE LEGAL CONSEQUENCES OF CRIMINAL CONVICTION
• PART III: DANGEROUS OFFENDERS AND LEGAL CONSEQUENCES OF CRIMINAL CONVICTION
• PART IV: JUVENILE OFFENDERS AND LEGAL CONSEQUENCES OF CRIMINAL CONVICTION
• Index
• Copyright Page