While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release. Because collateral consequences involve the state's infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, they align with utilitarian, public-safety-based rationales for criminal punishment, such as incapacitation. Interpreting the nature of collateral consequences, their legislative justifications, and judicial doctrine confirms that utilitarian terrain underlies the creation and reform of collateral consequences. At the same time, these philosophical premises stunt broad reform because public-safety and risk-prevention rationales inspire only marginal tinkering and do not adequately respond to the general public's understanding of desert as crucial to the administration of criminal justice. The result is extra punishment run amok and in desperate need of constraints.
This Article suggests a different approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints emphasize dignity and autonomy, blameworthiness, proportionality, and restoration, and impose obligations and duties on the state, suggesting many collateral consequences are overly punitive and disruptive of social order. This mode of analysis aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present-day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.
The government denies a job application. Local authorities take away a driver's license. A budding student cannot qualify for a student loan to attend community college. A Licensed Practicing Nurse (LPN) loses her license. For most defendants, collateral consequences like these are the harshest sanctions because they limit opportunity, can be timeless, and inhibit full reentry. (1) They feel like punishment because they are enforced or permitted by the state and restrict liberty and opportunity by virtue of contact with the criminal justice system. The fact that many are unknown to criminal defendants when they plea makes them feel particularly unjust. (2) Especially for low-level offenders, short-term liberty deprivations pale in comparison to the stigma, restrictions, and lost privileges that result from encountering the criminal justice system. (3)
If state-authorized collateral consequences are punishment, (4) a position taken by the Supreme Court for nearly a century (5) before a change of course, but possibly on the horizon again after Padilla v. Kentucky (6) and other federal and state cases, (7) do some purposes of punishment allow them to expand more than others? (8) And if so, what do we make of that situation in an era of mass criminalization where collateral consequences enmesh defendants? There has been no shortage of scholarship highlighting the destructive effect of collateral consequences on reentry. (9) At the same time, the very basis of punishment in a liberal, democratic order remains in flux and controversial, causing some to revisit the role of retributivism in justifying or limiting punishment. (10) And while the passage of federal comprehensive criminal justice reform, known as the First Step Act, (11) addresses proper punishment in the incarceration context, the next step for comprehensive reform is a full-blown assessment of the collateral consequences that will inevitably affect offenders after release.
This Article brings these strands of scholarship and reform efforts into dialogue by addressing the punishment theory basis of collateral consequences. It concludes that while their roots are fundamentally utilitarian and responsive to criminal behavior, they have been labeled otherwise in order to avoid legal constraints on punishment. Further, it suggests that current reform efforts exclusively focus on the wrong question: instead of concentrating on whether they are useful, contribute to public safety, (12) or properly guard against danger, (13) limiting collateral consequences may be easier if reformers first ask whether they are deserved.
This Article makes no claim as to whether certain collateral consequences, as components of a direct sentence, would be appropriately just punishment. (14) It is possible many would pass that test. What it does argue, however, is this: utilitarian purposes of punishment--think public-safety rationales--more easily allow collateral consequences to proliferate than retributive principles and, as a result, are less equipped to restrain them. (15) Their incapacitative- and deterrence-based rationales, and concerns for welfare maximization, allow for the convenient blurring of the criminal-civil line. (16) Designed to prevent future crime, many collateral consequences are blunt instruments that may actually inhibit full reentry, ultimately disrupting the social order aimed to be restored. (17) When the primary goals of punishment are safety, security, and minimizing future crime (or predicting dangerousness), the temptation to enact collateral consequences is harder to resist and more difficult to critique. They are perceived as low-cost interventions that can heighten public safety through minimizing risk, making them politically palatable, especially for the risk averse. (18) They isolate ex-offenders beyond what is just and necessary and counterproductively can incentivize more criminal behavior. And that is precisely today's predicament: a pervasive network of collateral consequences designed to control human beings and their relationships with others, all in the name of mitigating risk and deterring future criminal behavior. (19) Many are, in a phrase, undeserved extra punishment.
That conclusion may provoke a criminal law double-take: are collateral consequences not the logical outgrowth of the "tough on crime" era that allowed punitive measures to run amok? Are they not expressions of societal disapproval, recognizing past blameworthiness or, at the very least, outlets for vengeance unaccounted for by the direct sentence itself? Do they not exact just deserts for past behavior that connotes a lack of moral trustworthiness on the part of the offender? Are they not retributive because they express popular passions for desert, manifesting hatred, fear, or anger toward offenders? Some legislators understand them that way--using some strands of retributive thinking focused on shame and suffering as the starting point for a response to individual wrongdoing. (20) And there is an argument to be made that some legislators thought as much during the rise of collateral consequences after the 1970s, which occurred at the same time as significant increases in the severity of punishment overall. (21) After all, some have said of an ex-offender seeking employment or a college education: Does she really deserve it? (22)
But that story confuses potential justifications with distributive principles of punishment, shortchanging the value of retributivism to reform efforts and misrepresenting retributivism for revenge. Retributivism, whether understood as grounded in moral or political-legal desert, (23) seeks only to properly restore the social order disrupted by the will of the criminal, carefully calibrating for proportionality and blameworthiness. It rejects using the guilty, and especially the innocent, to intentionally further other objectives. (24) Many collateral consequences undercut retribution's inherently restorative nature by redisrupting what had been restored. (25) Retributivism has built in safeguards by accounting for degrees of blameworthiness, treading cautiously around using human beings as examples for others, limiting punishment due to proportionality concerns, leaving room for mercy and recognizing humility, and asserting positive duties--for the state and fellow citizens--to refrain from perpetually enforcing collateral consequences and uncalled-for stigma. A retributive focus could surprisingly result in less room for a harsh system of collateral consequences. (26)
This Article advances this critique in three parts. Part I explains the history, purpose, and scope of collateral consequences, paying particular attention to the theoretical confusion about their punishment-like roots. It notes that while collateral consequences are not currently labeled criminal punishment by modern legislatures or courts, they are fundamentally akin to punishment, and were even recognized as such by earlier courts. (27) Deference to modern labeling has laid the seeds for an expansive regime of extra punishment justified by the functional demands of the criminal justice system.
Part II interprets the collateral-consequences regime to demonstrate how their origin, history, and purpose align with concerns about safety and security, and the philosophical presuppositions upon which many are based resemble the inner workings of utilitarian theories. In particular, the aim of many is to incapacitate and to deter. That contributes to their classification by courts as civil restraints rather than punishment: as engines for controlling risk, they sometimes do not appear to be enacted in response to blameworthiness. (28) But legislatures create them...