Criminalization and the Collateral Consequences of Conviction (original) (raw)
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Howard Law Journal, 2016
Despite their key role in the penal system, collateral consequences have been routinely relegated in importance by courts. This paper outlines the two areas of decisional law that serve to exempt collateral consequences from constitutional protection. Firstly, courts have ruled they are not “punishment,” according to double jeopardy, ex post facto, bills of attainder, and Eighth Amendment jurisprudence. Secondly, they have created the so-called “collateral-consequences rule”: that attorneys and judges need only inform defendants of the “direct” consequences of pleas and convictions, according to due process and Sixth Amendment jurisprudence. In outlining these doctrines, this article argues that both lines of decisions rest on shaky foundations and tautological assumptions, and that recent court opinions—especially the Supreme Court opinion, Padilla v. Kentucky—show that change is imminent. The paper then discusses what such doctrinal change might look like and how practitioners can adapt to the new realities of this field.
Harvard Law & Policy Review, 2016
Americans think we know an awful lot about our penal system. Yet, policymakers, jurists, academics, offenders, and the public alike remain largely ignorant of more than 35,000 hidden sentence laws across the nation. “Hidden sentence” refers to any punishment imposed by law as a direct result of criminal status, but not as part of a formally recognized, judge-issued sentence. Thus, both restrictions on prisoners’ rights and “collateral consequences” laws are hidden sentences; so are penalties imposed during pre-trial detention or for having a criminal record. Part I of this article uses the National Inventory of the Collateral Consequences of Conviction alongside information on offenders’ rights litigation to outline a resource for understanding this vast body of law. Part II uses these data to discuss the reality of these laws (a) as holding primary importance for offenders’ lives and the penal system as a whole, (b) as purposively enacted through legislation, administrative rules, or decisional law, and (c) as punishments—deprivations or harms imposed in response to criminal acts. Then, in Part III, this article analyzes the unique part about these punishments—their hiddenness—and the characteristics of this body of law that serve to hide it in varying degrees from public and professional view. Part IV problematizes this hiddenness, arguing it threatens both any purpose of punishment they could serve and their legitimacy according to core American principles. The article concludes in Part V by discussing the most ready means to make hidden sentence law transparent.
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In this essay I develop and defend a theory of state punishment within a wider conception of political legitimacy. While many moral theories of punishment focus on what is deserved by criminals, I theorize punishment within the specific context of the state's relationship to its citizens. Central to my account is Rawls's “liberal principle of legitimacy,” which requires that all state coercion be justifiable to all citizens. I extend this idea to the justification of political coercion to criminals qua citizens. I argue that the liberal principle of legitimacy implicitly requires states to respect the basic political rights of those who are guilty of committing crimes, thus prohibiting capital punishment.
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Why Punish the Guilty? Towards a Philosophical Analysis of the State's Justification of Punishment 1
There is general acceptance that those who break the law must be punished; however, not all agree as to why this is necessary. Some argue punishment is necessary to reform criminals, others to deter criminals, and others because you deserve it, whether punishment reforms or deters. Stripped of metaphors, this paper argues that punishment is retribution, but that a distinction must be made between the definition of punishment as retribution and its justification, if a case is to be made for its moral justification. Thus the most important question the paper raises relates to the justification of punishment as retribution. ________________________________________________________________________
The Collateral Consequences of Wrongful Conviction
International Journal of Arts Humanities and Social Sciences Studies, 2021
A collateral consequence are formal and informal disabilities that are imposed by the law as a result of any criminal conviction regardless of the sentence. Collateral consequences are not a form of invisible punishment that just impacts the formerly incarcerated. Wrongful convictions are an occurrence that is not only a reality but a commonality. The collateral consequences of a wrongful conviction hold a heavier impact as an individual who was wrongfully convicted are not only trying to regain their life and dignity back, but they are also attempting to navigate their new realities. Collateral consequences imposed onto the wrongfully convicted are not only a testament to our system, but an unwarranted form of limitations placed upon a victim. This article details the collateral consequences of wrongful convictions. By providing additional insight onto the harmful nature of wrongful convictions, this article examines and critiques the collateral consequences of wrongful conviction.
Criminal Law and the Internal Logic of Punishment
We argue that (1) at the conceptual level punishment has an essentially retributive core which (2) carries at the justificatory level its own retributive type of logic or reasons. In particular, we show that punishment is something that we understand as in principle always being assessable in terms of desert and that desert is ultimately to be understood in terms of moral culpability and nothing else. These features make up what we call the internal logic of punishment. The practice of punishment, however, can also be assessed with a logic that is external to it. What this consists in is first and foremost determined by the aims and constraints of the punishing agent. For the modern liberal state these are typically understood in terms of deterrence, incapacitation, rehabilitation, and, arguably, the expression of condemnation. The idea that punishment has its own internal logic has a number of consequences with regard to criminalization, to the extent, that is, that the latter involves punishment. For one, purely instrumentalist justificatory accounts of punishment will not work as they fail properly to consider the retributive core of punishment. Next, we consider what follows from the fact that by inflicting punishment, the state takes it upon itself to mix these two logics together. In particular, we bring forward some tensions that arise when the state mixes the internal logic of punishment with certain modern, liberal aims and constraints that are external to punishment.