Are Collateral Sanctions Premised on Conduct or Conviction?: The Case of Abortion Doctors

INTRODUCTION Persons subject to collateral sanctions--disabilities that occur automatically upon conviction--often claim that those sections constitute unfair punishment. The standard response is that collateral sanctions are not punishment at all; rather, they are civil regulatory measures designed to prevent undue risk by proven lawbreakers. (1) The categorical classification of these disabilities is critical to their constitutionality. If a court classifies a sanction as a criminal penalty rather than a regulatory measure, constitutional provisions applicable to criminal prosecution are triggered. (2) This will not necessarily be a problem if the sanction exists at the time of conviction and is made known to the defendant at the time of plea and sentence. (3) If the sanction, however, is deemed a criminal penalty, then the Ex Post Facto Clause may apply, meaning that new sanctions cannot be imposed retroactively on those convicted before the law was passed. (4) In addition, because guilty pleas must be made knowingly, voluntarily, and intelligently, (5) guilty pleas may be held invalid if the sanctions are deemed criminal penalties but the defendant was not advised of them at the time of pleading. (6) In principle, collateral sanctions can serve legitimate civil purposes. Few parents would want those convicted of serious violence against a child to be able to obtain employment giving them access to small children; similarly, it makes perfect sense to keep firearms out of the hands of those who engage in unlawful, violent activities. (7) In neither case is the motive punishment, but rather the protection of public safety. (8) Yet, it is not always clear that the primary legislative motivation for a collateral sanction is civil rather than punitive, nor is it always a simple matter to discern the primary motivation. This is particularly true because traditional punishments such as imprisonment and execution are designed in part for the non-punitive purpose of protecting the public, similar to civil regulations. Some consequences traditionally regarded as "civil," such as loss of benefits following conviction of a crime, can be imposed for the purpose of punishment. (9) This Article proposes that the single most important piece of evidence in the determination of whether a sanction is criminal or civil is whether the sanction is imposed based on conviction or conduct. (10) Assume, for example, a statute prohibits those who have performed an unlawful medical procedure from holding a license as a physician. If the disability is imposed on all who engage in the conduct, whether or not a criminal conviction, civil judgment, administrative finding, or admission by the suspect proves it, there is strong evidence that the punishment has a civil, regulatory purpose. Despite arguments as to the statute's substance, a person denied an opportunity on the basis of conduct (independent of how that conduct is proven) cannot claim that the denial of the license constitutes further punishment. If, however, the statute allows those who have engaged in the conduct, but not been convicted to hold a license, it becomes more probable that the legislature did not regard the underlying conduct as sufficient to warrant disqualification. Instead, conviction is the determinative factor. In such cases, it is difficult to regard the disability as anything other than part of the criminal justice process. This Article explores the problem by examining the 1898 United States Supreme Court case of Hawker v. New York. (11) Hawker was the first major case dealing with the distinction between disadvantage based on conduct of conviction, and it remains the most important doctrinal support for the broad authority of states to impose disabilities based on conviction that are not imposed on those who engage in the underlying conduct. (12) This Article also examines whether there are civil, regulatory justifications for imposing collateral sanctions exclusively on those convicted of crimes, rather than those who are found to have engaged in the conduct. …