A collateral consequence is a civil penalty that deprives a person of certain rights or privileges and is imposed as the result of a criminal proceeding. Because a collateral consequence is imposed separately from the criminal sentence, it is said to be collaterally rather than directly related to the conviction. The direct consequences of a conviction—the criminal sentence—may include imprisonment, probation, orders of restitution, and fines. The collateral consequences of a conviction may include bars to employment and professional licensure, voting disenfranchisement, and loss of public benefits and, therefore, may affect many areas of a person’s life. (The user may wish to visit Explanation of Common Terms for a more thorough explanation of terms used here and throughout C-CAT.)
As an example, consider the following hypothetical about Rachel:
Rachel is a thirty-three year old mother of two, Kevin (15) and Dahlia (11). Rachel rents a small house, which she shares with her children and her adult brother. She works part-time as a housekeeper at a local nursing home while going to nursing school, for which she receives financial aid. She relies on a housing subsidy from her local housing authority to help with the rent. One night, a police officer shows up at Rachel’s door looking for Kevin. The officer tells Rachel that her son may have been involved in a gang-related fight and asks if he may come in and “look around.” Rachel consents. The officer finds a small amount of marijuana split among several plastic bags, fifty dollars, and a small scale in the drawer of a table in a common room. Rachel tells the officer she does not know to whom the drugs belong, but he charges her with maintaining a dwelling for the purpose of selling marijuana. Rachel denies the marijuana is hers, but the prosecutor offers her a deal—probation and no jail time if she pleads guilty to a lesser offense. Rachel’s attorney knows that she is a single mother juggling school and work. Through research he discovers that, if convicted as charged, Rachel will lose her financial aid and so believes that the plea bargain will avoid that consequence; he fails, however, to discover that a conviction for any drug offense will cause her to lose her housing subsidy. Rachel is afraid of going to jail, so admits guilt. Two months later, her housing subsidy is cancelled.
Rachel’s sentence—probation—is a direct consequence of her conviction. The loss of her housing subsidy is a collateral consequence of her conviction.
C-CAT does not purport to provide specific legal advice in individual cases. Users should seek advice from a qualified attorney as necessary.
Purpose of C-CAT
Many people, including many attorneys, are unaware of the nature or number of collateral consequences authorized or required by North Carolina law. Many mistakenly believe that collateral consequences are only triggered by a handful of serious offenses, such as sexual offenses or serious drug offenses. In reality, most are triggered by broadly defined general classes of crimes rather than specific crimes. Examples of general classes of crimes found in North Carolina collateral consequences law include “felony,” “crime involving moral turpitude,” and “offense involving controlled substances.”
Collateral consequence law is complicated by the organization of the laws within the statutes. The North Carolina General Statutes contain hundreds of collateral consequences scattered throughout the code. Most are located within statutes that govern aspects of citizens’ lives rather than with the crimes that trigger them. Some consequences are discretionary. In other words, a state board or agency, a judge, or a hiring authority may choose to impose or not to impose the consequence. Many, however, are mandatory. Collateral consequences may last indefinitely, permanently, or for a set number of years.
Often, the nature of the triggering offense determines the scope of the consequence—that is, whether a consequence is discretionary or mandatory, whether it lasts five years or is permanent, etc. For example, “any felony” may lead to a discretionary revocation of a license, while “any crime of moral turpitude,” such as misdemeanor larceny, may lead to a mandatory revocation. Counterintuitive though it may seem, there may be instances in which it makes more sense, in light of the potential collateral consequences, for a criminal defendant to risk conviction of a more serious crime than to plead guilty to a less serious one.
C-CAT was created to help attorneys, policy makers, service providers, and affected individuals identify, assess, and compile collateral consequences that may be triggered by a criminal conviction. C-CAT allows users to compile, compare, and contrast the important characteristics of collateral consequences while simultaneously considering the relevant triggering offenses. It is our hope that C-CAT organizes the law of collateral consequences in a way that makes it more accessible to everyone.
What you will find and where you will find it
While collateral consequences affect many rights and privileges, people naturally tend to be concerned with the collateral consequences that affect the rights and privileges they most often exercise. Someone who hunts will be concerned with firearms and wildlife. Someone who teaches will be concerned with public employment. Rachel, from the example above, will be concerned about housing, financial aid, school attendance, and licensing. To make it easier to navigate to consequences of concern, C-CAT organizes North Carolina collateral consequences into three levels:
1. broad categories of activities, privileges, and rights—e.g., employment and professional licensure;
2. specific activities, privileges, and rights—e.g., electrical contracting; and
3. collateral consequences—e.g., revocation of an electrical contractor’s license.
Broad categories of activities, privileges, and rights. In our in-depth review of state law we discerned that certain broad categories of privileges and rights were frequently affected by collateral consequences. Based on this review, we developed C-CAT’s broad categories of activities, privileges, and rights. Below are the categories and a brief explanation of what each includes.
Civic rights are those that assure a person’s right to participate in the civic and political processes of the state. This category includes the right to vote and to hold elective office. C-CAT does not include the right to hold federal office since bars to federal office are found in federal, not state, law.
Domestic rights includes those rights affecting the family. Here, users will find consequences affecting marital and parental rights such as adoption, child custody, and visitation.
Education rights includes consequences that affect a person’s right to a public education, including admission and attendance, as well as state educational benefits such as scholarships and grants.
Employment and professional licensure includes the bars to public employment and government-regulated private employment that are specifically authorized or required by North Carolina law. Government-regulated private employment includes certified and licensed professional fields and employment that does not require certification or licensure but is subject to regulation. C-CAT does not exhaust all possible consequences that an entity may impose. Private employers may choose to take adverse action against an applicant or employee based on a criminal conviction, whether or not North Carolina law specifically authorizes the adverse action.
Firearm rights includes civil sanctions that affect the rights and privileges associated with firearms. This section includes restrictions on owning or possessing a firearm, concealed weapons permits, and firearm registration.
Housing includes both state and federal consequences affecting a person’s eligibility for residency in public housing and subsidized housing assistance. This category does not include residency restrictions triggered by conviction for sex offenses, for which the person is required to register as a sex offender.
Judicial rights includes collateral consequences that affect a citizen’s right to participate in the legal system. This category includes the right to serve as a juror or to serve as an executor or administrator of an estate or other court-appointed position of trust.
Property rights includes rights of ownership, succession, and inheritance. Users can find pension and retirement benefits, life insurance proceeds, and proprietary interests subject to forfeiture. (Please note that some proprietary rights, including professional licenses, firearms, and hunting and fishing licenses have their own category.)
Public benefits includes consequences imposed by North Carolina law that affect a person’s eligibility to receive public assistance. This category includes services such as Temporary Aid to Needy Families benefits, Supplemental Nutrition Assistance Program benefits, and unemployment benefits.
Wildlife includes permits, privileges, and licenses issued by the Wildlife Resources Commission. Users will find hunting, fishing, device, and trapping licenses in this category.
Specific activities, privileges, or rights. C-CAT clusters specific activities, privileges, or rights within broader categories of the same nature. This intermediate layer was created to accommodate the large volume of collateral consequences and make it easier for the user to sort the records contained in C-CAT. The employment and professional licensure category contains over seven hundred collateral consequences. A simple search would produce an unmanageable result list. To make the result list more manageable we created an intermediate layer of information—as illustrated in the above diagram—for specific activities, privileges and rights. For example, C-CAT assigns physicians, nurses, dentists, etc., within the more specific category of all medical professions, which is, in turn, assigned to the broader employment and professional licensure category.
Collateral consequences. Individual collateral consequences are assigned to the specific categories of activities, privileges, and rights affected. For example, all consequences affecting an architect’s license are assigned to architect, which is, in turn, assigned to employment and professional licensure. Similarly, all consequences affecting a fishing license are assigned to fishing license, which is, in turn, assigned to wildlife. Some activities, privileges, and rights do not fit neatly within one specific activity, privilege, or right and are assigned to multiple specific activities, privileges, or rights. An example is law licenses. You must have a license to work as an attorney, as a district attorney, or as a judge. Therefore, consequences affecting a person’s right to hold a law license are assigned to attorney, district attorney, and judge.
Each collateral consequence contained within C-CAT is displayed as an “index card.” The index card distills the important attributes of a collateral consequence, including characteristics of the consequence and of the crime or crimes that trigger the consequence.
The following discussion briefly explains the different aspects of this “index card.”
Characteristics of consequence:
Action taken: The action taken is the type of deprivation a person faces as the result of a collateral consequence. Examples of actions are “deny,” “refuse,” “reprimand,” “revoke,” “expel,” or “fine.”
Implementation: Implementation refers to whether the initial decision maker is authorized or required to impose a collateral consequence.
Discretionary: When a consequence is discretionary, the decision maker is authorized, but not required, to impose it.
Mandatory: When a consequence is mandatory, the initial decision maker is required to impose it.
Restoration procedure: Some collateral consequence statutes provide a mechanism to restore the lost activity, privilege, or right. C-CAT uses a broad definition of restoration procedure to include anything from an appeal of the deprivation decision to reapplication following a specified period of time. Users are encouraged to consult relevant statutes whenever a restoration procedure is specified.
Initial decision maker: The entity—agency, board, judge, hiring authority, etc.—responsible for imposing a collateral consequence is referred to as the initial decision maker.
Duration: Duration is the length of time the consequence is imposed. Some statutes provide that a consequence will last a definite amount of time, such as five years, two years, or permanently. Many are silent on the matter of duration. C-CAT classifies statutes that are silent on the matter of duration as “indefinite.”
Duration start: Duration start refers to the time when the collateral consequence begins. Many statutes are silent on the matter of duration start date, but others provide for duration start dates such as the date of conviction; the date when the criminal sentence is satisfied (e.g., completion of probation or release from prison); or the date the initial decision maker imposes the consequence (e.g., the date the commission or board revokes or suspends a license, imposes probation, etc.).
Specific duration: When a statute provides that a consequence will last a definite amount of time, the length is provided in the specific duration field.
Characteristics of crime:
Criminal class: The criminal class is the classification of the crime or crimes that trigger the collateral consequence.
Characteristics: This section refers to legal characteristics of the crime or crimes that trigger the collateral consequence. It includes offenses involving controlled substances, domestic violence, fraud or misrepresentation, and moral turpitude. It also includes offenses where firearms were used or that occurred on educational property.
Disposition: The disposition is the final outcome of the criminal case or, in some instances, another point in the criminal process that triggers the implementation of the collateral consequence. Many statutes refer to “conviction” as the disposition necessary to trigger a consequence. Other statutes allow the imposition of a collateral consequence after arrest, charge, or indictment. Many statutes, especially in the employment and professional licensure area, authorize implementation after a finding by a board or commission that the respondent committed a particular criminal act. Some are silent on the matter of disposition. When a statute is silent, C-CAT classifies the required disposition as conviction. (Please see Explanation of Common Terms in C-CAT for further discussion of the term conviction and how it is used in C-CAT.)
Additional preconditions: This section refers to factual, not legal, characteristics of the crime or crimes that must be present for it to trigger a collateral consequence. Examples of additional preconditions include commission at a certain location or after a certain date or specific facts that either the sentencing judge or initial decision maker must find.
Notes: You will find notes attached to some collateral consequence records. We created notes whenever a collateral consequence statute contained important information that would not fit neatly into one of the above categories. A note will appear as either a scope note or as a footnote to a piece of information contained on the index card.
Caveats
When we began work on C-CAT we had the goal of creating a tool that contained all of the collateral consequences of a criminal conviction in North Carolina. We were forced to scale back our vision as the difficulty of reaching it became clear. C-CAT does not include all the areas of collateral consequences law. Thus, for the most part, C-CAT does not include consequences required by federal law as a result of a North Carolina conviction. We have limited our exclusions of state law consequences to areas of law where resources already exist; where the collateral consequences are easily located because they can be found with or near the criminal offenses that trigger them; or where the level of analysis needed to determine whether an act will trigger the consequence does not lend itself to digital media.
The areas of collateral consequences law that are excluded from C-CAT are as follows:
Federal collateral consequences of a criminal conviction. Other than collateral consequences that affect eligibility and residency restrictions for federal subsidized housing, C-CAT does not include the federal collateral consequences of a criminal conviction. Federal housing consequences are included because the majority of housing assistance and residency consequences affecting people in North Carolina are authorized or required by federal rather than state law.
Immigration consequences. C-CAT does not include collateral consequences affecting immigration status. If you are concerned about immigration consequences, see Sejal Zota and John Rubin, Immigration Consequences of a Criminal Conviction in North Carolina (UNC School of Government 2017).
Motor vehicle licensing. C-CAT does not include traffic consequences that flow from traffic violations but does include traffic consequences when they are triggered by criminal offenses other than traffic violations. For example, C-CAT includes the loss of a driver’s license due to a conviction for fraudulent use of an identification card but does not include loss due to conviction for driving while impaired.
Residency, monitoring, and registration requirements related to conviction for certain sex offenses. C-CAT does not include residency, monitoring, or registration requirements stemming from a conviction for sex offenses. C-CAT does include other collateral consequences, such as employment restrictions, that are triggered by conviction for sex offenses. Thus, as a general rule, C-CAT only includes employment and professional licensure and civic rights consequences that stem from conviction for sex offenses when the consequences are unrelated to the monitoring and registration program in Chapter 14 of the General Statutes or when they are triggered because the conviction fits within a general classification of crime such as “any felony.”
Laws of local governments and other states. C-CAT does not contain the collateral consequences of a criminal conviction imposed by local governments within North Carolina, such as counties and cities, or of states other than North Carolina.
Polices of private employers. C-CAT contains the collateral consequences of a criminal conviction required or authorized by North Carolina law. Private employers may have their own policies that limit or prohibit employment of individuals with a criminal conviction.