Collateral consequences and the preventive state.

Author:Mayson, Sandra G.
Position:II. Punishment Versus Preventive Restraint C. The Distinction in U.S. Law 3. Why Classify through Conclusion, with footnotes, p. 332-362
  1. Why Classify

    By one view, the conceptual distinction between punishment and prevention is now so far removed from reality that we are better off forsaking it altogether. (168) Courts and scholars, on this view, should give up the endless game of trying to diagnose state-imposed burdens on liberty as one or the other, and build a new conceptual and legal vocabulary that speaks in the broader terms of state coercion.

    That is a dangerous path. As discussed above, culpability- and risk-based deprivations demand different procedures and constraints. State-imposed burdens must be classified as one or the other to be channeled into an appropriate regime. The Constitution's enumerated constraints on "punishment," meanwhile, require courts to decide which deprivations are the sort of thing they were designed to constrain. Some boundary line must be drawn. Given that fact, the culpability/risk line is the division that best comports with constitutional and criminal law. To abandon the culpability conception of punishment, on the other hand, is arguably to forsake any cogent definition of "punishment" at all. That would render the Constitution's special limits on punishment deeply incoherent, as well as the special institutions of the criminal law. Most fundamentally, the culpability conception of punishment reflects the unique value of human choice. If we hope for the law to serve that function, we need the doctrinal structures to sustain it. Notwithstanding the expanding preventive state, then, the law has good reason to distinguish between deprivations imposed in virtue of culpability and deprivations imposed in virtue of risk.


    Given that the preventive state tends to invoke both culpability and risk as authorization for deprivations of liberty, the challenge is how to classify such deprivations in a coherent way. The specific challenge, for present purposes, is how to classify CCs. This Part proposes that we conceive of them along a punishment-prevention spectrum. It suggests that courts should ultimately classify CCs, and other deprivations, according to whether they claim primary authorization from a judgment of culpability or a judgment of risk.

    1. The Punishment-Prevention Spectrum

      Contemporary practices of punishment and prevention do not fall into a neat conceptual dichotomy, but it is possible to plot them along a spectrum. At one end is "pure" punishment: the class of deprivations that claim authority from a judgment of culpability, with little or no regard to a person's future risk (for instance, a modest fine for shoplifting by a contrite teen). At the other end is "pure" prevention: deprivations that claim authority from a judgment of risk, with no regard to a person's culpability (like quarantine).

      Note that even the two extremes of the spectrum are not absolute. "Pure" punishment is itself a form of prevention. Even if the person punished poses no future risk, her punishment may have the purpose or effect of deterring future crimes by others. At the other extreme, "pure" preventive deprivations tend to impose stigma whether or not it is intended. This is especially true of incapacitative restraints. The exclusion of HIV-positive people at national borders, the quarantine of possible Ebola carriers--these restraints mark their subjects as dangerous, contaminated. They entail no formal judgment of culpability, and yet they foster suspicions that the person restrained is somehow at fault for her condition. Aside from the implication of culpability, even pure preventive restraints can be profoundly oppressive. They are "punitive" in the experiential sense of the word.

      Other deprivations, which invoke more mixed judgments, fall at various points along the spectrum. One step away from "pure" punishment, we might locate sentencing determinations that consider a person's future risk in determining, within the bounds of desert, the quantum and conditions of punishment. Farther along the spectrum--perhaps at the center--are deprivations imposed solely for preventive purposes that nonetheless claim primary authorization from a judgment of culpability. Probation and parole conditions motivated by risk concerns might belong here. This is also where we would place efforts to restrain people who culpably intend to commit some future harm. (169) Finally, on the preventive restraint side of the spectrum but not at the extreme, are practices of risk management that look to past culpability as evidence of future risk, like the preventive detention of "sexually violent predators" and risk assessment based on criminal history.

      The following diagram illustrates the spectrum. (170)

    2. CCs on the Spectrum

      Where do CCs fall along the punishment-prevention spectrum? It depends whether they invoke a judgment of culpability or a judgment of future risk as the authorizing ground of the deprivation. By that measure, CCs are distributed along the spectrum, mostly on the preventive side.

      States consistently defend the great majority of CCs on the basis of future risk. This is reflected in court decisions addressing them. The Supreme Court's cases are illustrative. In Hawker v. New York, (171) the Court found that New York, by disqualifying convicted felons from the practice of medicine, sought "to protect its citizens from physicians of bad character." (172) The law took conviction to demonstrate that a person was "a man of such bad character as to render it unsafe to trust the lives and health of citizens to his care." (173) In De Veau v. Braisted, (174) the Court found that a statute barring convicted felons from employment on the waterfront was a regulatory effort to combat corruption. While expressing some misgivings, the Court concluded that conviction was an acceptable measure of risk in the circumstances at hand. (175) And in Smith v. Doe, the Supreme Court noted that Alaska's sex offender registration law was designed to "allow the public to assess the risk on the basis of ... the registrants' convictions," and that it applied categorically because of the "dangerousness" of "sex offenders as a class." (176)

      States invoke similar judgments of dangerousness to defend most classes of CCs. Sex offender registration and commitment regimes are the clearest example. The stated purpose of conviction-based employment bars is generally to protect a business or profession and its clients from future misconduct. (177) Disqualification from public housing purportedly protects the residents of housing communities from violence and criminal activity. (178) Conviction-based criteria for foster and adoptive parents are intended to protect children from bad acts by would-be parents. (179) Bars to gun ownership are meant to prevent gun crimes. All implicitly invoke the judgment that people with past convictions are likely to commit future harm.

      At the other end of the spectrum, there are a few measures that have sometimes been deemed "collateral" to conviction, but are openly intended as retributive and deterrent sanctions for culpable conduct. The Denial of Federal Benefits Program, for example, authorizes federal and state courts, as a sentencing option and alternative "to more traditional and often more expensive forms of punishment," to deny federal benefits to people convicted of drug offenses. (180) Such measures clearly invoke a judgment of culpability.

      The remainder of CCs fall somewhere in the middle. This group includes immigration consequences, other barriers to government benefits, and felon disenfranchisement laws. Governments offer various rationales for these laws, but they are relatively consistent across fields. The first is a forfeiture rationale, the notion that the convicted person has forfeited a given right or privilege. (181) The second is the state's desire to allocate limited government resources to the most deserving. (182) The third is the goal of deterring harmful conduct. (183) And the last is the goal of preventing future bad acts by convicted persons: to protect the public from "dangerous criminal aliens," (184) to protect federal benefits programs from fraud and abuse, (185) to protect school campuses from criminal conduct, (186) and to protect the franchise from irresponsible voting by felons. (187)

      These proffered rationales entail claims to authority (explicit or implied) that fall at different points along the spectrum. A judgment of rights forfeiture is, at base, a judgment of culpability. Only by blameworthy conduct can a person forfeit rights. CCs that claim authorization on this basis therefore belong close to the punishment end of the spectrum. The same is true of explanations that invoke the state's power to allocate benefits to the most deserving; they rely on a judgment of desert. The claim of authority from deterrence is more difficult. States do have regulatory authority to threaten penalties in order to deter harmful conduct, and not all such penalties require or reflect a judgment of blame. But when a penalty is attached to conviction, it necessarily reflects the judgment of culpability that conviction entails. Therefore, to the extent that deterrence is the primary rationale for a given CC, that CC also belongs on the punishment side. The last rationale--the need to prevent dangerous people from committing future harm--entails a judgment of relative future risk, and CCs that invoke it belong at the prevention end of the spectrum.

      As a whole, then, CCs are weighted toward the preventive end of the punishment-prevention spectrum. Only a very few explicitly invoke a judgment of culpability as the ground of the deprivation. States sometimes defend a handful of others on the basis of desert. But in general, states defending CCs claim the authority to restrict individual liberty on the basis of a predictive judgment of risk.

      A skeptical reader may object at this point that the state's purported rationale for any given CC (and the claim of authority it entails)...

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