The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One's Name

I. ABSTRACT In the 1954 case of United States v. Morgan, the Supreme Court revived the ancient writ of coram nobis by making it the sole mechanism for post-incarceration judicial review of federal convictions. It appeared that coram nobis was well on its way to taking its place as a vital part of the American system of collateral review. Where the writ of habeas corpus provided unlawfully convicted prisoners with a way to challenge their conviction, coram nobis offered a similar avenue of relief for those who were no longer in federal custody. But the promise of modern coram nobis has been held in check by a restrictive doctrine known as the civil disabilities test. In most federal circuits today, a coram nobis petitioner must show that he or she is suffering a distinct and ongoing legal harm-a "civil disability"-before a court will review the underlying conviction. The Seventh Circuit, Judge Easterbrook in particular, led the way in creating the now-prevalent civil disabilities test by arguing that such a test is necessary to promote the values of finality and judicial economy. But the test means that many people who were unlawfully and erroneously convicted never have a chance to challenge their convictions in court. This Article argues that the civil disabilities test is inconsistent with the essential nature and important function of post-Morgan coram nobis relief. The test does very little to promote the values of finality and judicial economy, and its application leads to grave departures from the fundamental norm of accuracy. Moreover, the test disregards the devastating reputational, professional, and social consequences of conviction. Those who are stigmatized by an unlawful conviction should be able to obtain collateral relief. And coram nobis, a form of relief which the Court recently re-affirmed in United States v. Denedo, should not be weighed down by the overly restrictive civil disabilities test. I. ABSTRACT 1277 II. INTRODUCTION 1278 III. A BRIEF HISTORY OF FEDERAL CORAM NOBIS 1283 A. The Writ at Common Law 1283 B. United States v. Morgan: The Refashioning of Coram Nobis 1284 C. Vost-Morgan Coram Nobis and Federal Collateral Review 1289 D. The Emergence of the Civil Disabilities Test 1292 E. Hirabayashi and the Ninth Circuit's Minority Position 1299 IV. THE CIVIL DISABILITIES TEST AS A MISREADING OF MORGAN AND A MISINTERPRETATION OF THE FEDERAL HABEAS STATUTE 1303 A. Misreading Morgan 1304 B. Misinterpreting § 2255 1306 V. THE REPUTATIONAL CONSEQUENCES OF CONVICTION ...... 1309 A. Non-legal Collateral Consequences of Conviction ...... 1311 B. Information Technology and the Spread of Stigma ..... 1315 C. The Law's Role in Righting Reputational Wrongs ...... 1317 VI. FINALITY, JUDICIAL ECONOMY, AND THE CIVIL DISABILITIES TEST 1323 A. The Cost to Accuracy 1324 B. Assessing the Finality Argument 1327 C. Assessing the Judicial Economy Argument 1330 D. Assessing Abuse-of-the-Writ Worries 1335 VII. CONCLUSION 1338 II. INTRODUCTION In 1942, the United States prosecuted Gordon Hirabayashi and Fred Korematsu for failing to follow orders aimed at removing all people of Japanese ancestry from the West Coast of the United States. …