Collateral consequences

Major Emma K. Fowler, A "Civil Death" of the Military Accused: The Vast Impacts of Collateral Consequences of Court-Martial Convictions and the Need to Reform Military Sentencing Practice. 232 Mil. L.Rev. 29 (2025).

In conclusion she argues

Court-martial convictions can have lifelong, life-altering consequences, and none of them can be openly considered by the sentencing authority. In fact, military judges instruct panel members not to consider those consequences in reaching a sentence. This prevents the sentencing authority from discharging its duty: to produce a just punishment. This is especially true in cases where it is all but certain that the accused will become another starving, homeless Veteran because they cannot find a job or qualify for government financial assistance, or where they face restrictions on where they can live, leaving them with nowhere to go. The sentencing authority is allowed to consider some evidence in mitigation about the accused’s past and present, but is prohibited from considering how their past and present will alter their future once they reenter civilian society. They are prevented from considering the civil death sentence that so many accused will face because of their offenses.

Some may believe that these collateral consequences are warranted and have little sympathy for an accused. The point of this article is not to argue that collateral consequences need to go away; the point is to demonstrate that if the military justice system is truly in the pursuit of justice and good order and discipline, then the system has failed, and will continue to fail until these consequences are brought into the discussion. Commanders should be discussing these consequences with their legal advisor, OSTC should discuss more than Lautenberg or sex offender consequences with their leaders, defense attorneys should be discussing these consequences with their clients, and the defense attorney and accused should be discussing these consequences with the sentencing authority. Only once everyone can consider the whole picture will the command, accused, and sentencing authority truly be able to come to a knowing and just outcome for this nation’s Service members. Only then can military justice truly be achieved.

Major Fowler refers us to the National Registry of Collateral Consequences of Conviction.

There are 420 adverse consequences of a felony conviction under federal law and 243 for a misdemeanor conviction. In Virginia, the number is 890 and 410. (I have not checked for duplication.) Keep in mind that a conviction at Special Court-Martial may be a felony, and a conviction at General Court-Martial may not be under either state or federal law. Keep in mind that many of the consequences may not be relevant to a GI Joe headed out to the civilian community. Until, perhaps, you have a client seeking an SEC licence, a student loan, or admission to Uni (at least in Virginia).

Many of these consequences may adversely affect a person's ability to rehabilitate and have "a useful and constructive place in society," or, as Major Fowler alludes, become one of thousands of homeless "vets."

As we know, unless the accused is retirement-eligible or very close to retirement, the collateral consequences of losing retirement pay are irrelevant — and inconsistent with the irrelevance of collateral consequences. Similarly, unless the accused has been on SOR post-conviction, pending appeal, and then is facing a retrial, SOR/Talkington challenges become irrelevant (even though a state court may have found certain aspects punitive or applied in violation of the ex post facto doctrine).

See also, Olivia Johnnene, Collateral Consequences of Conviction: The Current Inequality in Courts’ Consideration of the“Side Effects” of Federal Sentencing. 29 Suffolk J. Tr. and App. Advocacy 229 (2024); COLLATERAL CONSEQUENCES: The Crossroads of Punishment, Redemption, and the Effects on Communities. U.S. Commission on Civil Rights, Briefing Report (2019); ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons. (3rd ed., 2004).