Collateral Consequences and Criminalization

This chapter examines the implications of the existence of collateral legal consequences (CLCs) for decisions about what types of conduct the state should, or may, criminalize. It might seem that criminalization decisions should not be concerned with CLCs: it is one question what sort of conduct the state should declare to be criminal behavior, and a separate question what consequences should follow for those who violate criminal laws. But this chapter contends that the existence of CLCs is relevant according to specific accounts of criminalization, namely versions of the harm principle and legal moralism. It is also relevant to the legitimacy of the state more generally. Thus the existence of CLCs is relevant both to officials who make criminalization decisions and to scholars assessing competing theories of criminalization.

The Other Consequences of Conviction

This chapter sets out the numerous different types of collateral legal consequences (CLCs) facing people with criminal records, including restrictions on employment, housing, welfare, and the vote. It distinguishes CLCs from the myriad informal collateral consequences experienced by offenders. Then it discusses various dimensions along which particular CLCs may be distinguished, such as their content, scope, and duration. It makes the case that CLCs raise serious moral challenges, which require greater attention from moral, legal, and political philosophers than they have received to date. The chapter concludes with an overview of the remainder of the book.

Instrumental Justifications

This chapter examines the instrumental case for collateral legal consequences (CLCs). CLCs are commonly defended as risk-reductive measures. The chapter proposes several considerations relevant to determining whether and when particular measures are justified on risk-reduction grounds: Restrictions should effectively serve a morally compelling interest, they should not generate offsetting negative consequences, and they should represent the least burdensome alternative. The chapter contends that some CLCs may be permissible according to these criteria, but only in a very limited range of cases. Also, the state will be obliged to make provisions to mitigate the effects of such measures on offenders’ abilities to build legitimate lives for themselves.

Contemptuous Punishment

This chapter defends a constraint on punishment that is grounded in considerations of offender reform. It contends that punishment is unjustifiably contemptuous, and thus fails to treat offenders with respect as moral persons, if it tends to undermine the prospects of their reform. Restrictions on offenders’ access to basic goods such as housing, welfare, and in some cases employment tend to undermine offenders’ prospects for reform: first, such restrictions can undermine offenders’ motivation to engage in moral reflection and reassessment of their behavior; second, the bans tend to hinder their opportunities to make changes in their lives, to take the necessary steps to avoid repeating the bad choices they made in the past. Such restrictions reflect, and convey, contempt for offenders, and thus are inappropriate as modes of punishment.

Prosecutors, Guilty Pleas, and Collateral Legal Consequences

This chapter examines a practical problem arising from the proliferation of collateral legal consequences (CLCs). Courts have recently suggested that defendants considering guilty pleas have a right to be notified not only about the range of formal sentences they are likely to face, but also about additional legal consequences that are likely to follow from a guilty plea. This chapter examines who should bear the central responsibility for ensuring that defendants are properly informed about the range of CLCs they may face. Most assume that this responsibility falls to defense counsel. This chapter argues, instead, that the central responsibility for providing defendants access to relevant information about CLCs should fall to prosecutors. Shifting this burden from defense counsel to prosecutors is justifiable in principle and would have desirable implications in practice.

Noninstrumental Justifications

This chapter assesses several noninstrumental arguments in defense of collateral legal consequences (CLCs). Noninstrumental justifications hold that CLCs are justified for their own sake, as intrinsically appropriate responses to criminal wrongdoing. The chapter examines several noninstrumental accounts, grounded in appeals to rights forfeiture, distributive justice, retributive justice, incompetence, democratic self-determination, and civic trust. The chapter contends that none of these justifications is successful, and ultimately for similar reasons. Such accounts attempt to justify CLCs as appropriate responses in virtue either of what offenders have done or of who they are. But neither of these bases turns out to be adequate, outside the context of punishment, for treating offenders differently from everyone else.

The Case against Collateral Legal Consequences as Civil Measures

This chapter offers a general case against burdensome civil measures on offenders. It contends that we should take seriously the idea of punishment as the institution by which offenders pay their debts to society, and that it follows from this that imposing additional burdensome measures beyond the scope and duration of punishment is presumptively unjustified. Those who complete punishment should be regarded as having regained full, equal standing as citizens, with the same rights as everyone else. Also, those still serving their sentences should not be subject to additional measures. Policies that target offenders during and after their terms of punishment, that are not part of their formal sentences, and that restrict their access to important goods to which the rest of us have access, are presumptively unjustified.

Traditional Rationales and Constraints

This chapter critically examines various commonly cited rationales and constraints on sentencing to see what guidance they may provide regarding the permissibility of collateral legal consequences (CLCs) as punishment. First, it considers the implications of prominent rationales, including deterrence, moral education, and retribution. Then, the chapter examines the most commonly cited constraints on sentencing: that punishment should be proportionate relative to the seriousness of the offense and proportionate relative to other sentences in the sentencing scheme. These desert-based proportionality principles can offer some, albeit limited guidance in assessing criminal sentences in general, and CLCs as candidate sentences in particular. Thus the chapter concludes that we have good reason to appeal to other sentencing principles in evaluating CLCs as forms of punishment.

Civil Measures or Punishment?

This chapter examines whether collateral legal consequences (CLCs) constitute civil measures or forms of criminal punishment. Traditional legal practice has treated all CLCs as civil measures, but in recent years critics have contended that they are in fact additional forms of punishment. This chapter defends a more nuanced account, according to which the answer depends on whether CLCs are intentionally burdensome and intentionally express societal condemnation of the offender’s wrongdoing. Those that meet these conditions are best regarded as punishment, and those that do not are best regarded as civil measures. One implication of this analysis is that some CLCs, in some contexts, may be best regarded as punishment, whereas other restrictions, in other contexts, may be best regarded as civil measures. Thus a normative analysis of CLCs should examine both possibilities.