Two cultures of punishment.

• Author: Kleinfeld, Joshua
• Position: II. Immutable Criminality and Social Banishment A. Four Formulas of Modern Banishment 3. Analogues to Civil Death through III. Devaluation and Rights Forfeiture B. Prison Conditions, p. 965-1003

3. Analogues to civil death

   To deprive a wrongdoer of legal personality or civil rights is a type of banishment, an eviction from the community or polity. Punishments of this sort are extremely common historically: outlawry, infamy, exile, excommunication, attainder, and civil death form a chain of exclusionary punishments across the centuries. They are, to adapt a term of Hegel's, recognitional punishments: their nature is to deprive the offender of recognition in the social world. (134) They are so clearly about one's standing in the community as to make my core theoretical claim--that punishment is about membership, not just hard treatment or control--almost obvious. It only seems otherwise because the contemporary world focuses so much on incarceration.

   "Outlawry" among early Germanic tribes "implied the ousting of the offender from the community and the deprivation of all rights," such that he "lost all his possessions," "anybody could kill him with impunity," and his "children were considered as orphans, and his wife a widow." (135) Early Rome also used this device, (136) as did Iceland at its founding. (137) A later development of ancient Athens and the Roman republic was "infamy," entailing "the loss of all rights which enabled a citizen to influence public affairs," including "the right to attend assemblies, vote, make speeches," hold public offices, serve in the army, and appear in court. (138) Later still, in imperial Rome, "[e]xile, previously a means of escaping punishment, now became a penalty," sometimes carrying with it loss of Roman citizenship. (139) Early medieval Europe made use of these various devices in modified form, (140) and a new one appeared through the Church: excommunication. "Minor excommunication," as it was termed in canon law, denied the sacraments to the person excommunicated; he could not marry, confess his sins, receive the Eucharist, etc. (141) "Major excommunication entailed a complete separation from the Christian community. Those subject to major excommunication were shunned from their neighbors; no one was permitted to talk, eat, or do business with them." (142) Canon law influenced continental European civil law, which developed the sanction of "civil death": the convicted person lost his political rights, his family rights, his rights of succession (he could not give or receive inheritance), and some of his property rights (what he had was confiscated). (143) The common law form of civil death was "attainder"; Lord Coke called the "attainted" offender "civiliter mortuus" (144) (civilly dead) and Blackstone called him "dead in law." (145) Attainder had three principal incidents: forfeiture (the offender lost his property), "corruption of blood" (which meant among other things that the offender could not give or receive inheritance), and the extinction of most or all of the offender's civil rights (including rights incident to having a legally recognized identity, like the right to sue or serve as a witness). (146)

   These recognitional punishments are, like banishment itself, among the standard ways by which communities have responded to major crime. (All of the examples above were used within their respective legal cultures only for major crime, sometimes as collateral consequences for sentences of death.) And also like banishment, they seem more anachronistic than they really are. With the exception of excommunication, civil death and its analogues were formally eliminated from European law by the nineteenth century and in many ways formally eliminated from American law in the twentieth. (147) But the network of collateral consequences American law imposes on offenders is so extensive as to constitute a functional equivalent. (148) The collateral consequences taken together work a permanent loss of equal citizenship and social standing.

   There are, I submit, two kinds of collateral consequence. The first is directly state imposed: it takes place when the law eliminates or diminishes an offender's rights apart from and after the offender completes his prison sentence or pays his fine. Under contemporary American law, ex-convicts can lose the right to vote; the right to hold public office; the right to serve on a jury; the right to give testimony in court unimpeached (only a partial rights deprivation, to be sure, but one that has some significance because it goes to the ex-convict's status as a person who is presumptively truthful); the right to keep and bear arms; the right to keep custody of their children or adopt children; the right to certain kinds of state employment; the right to certain licenses, clearances, or permits given by the state; the right to a network of public benefits (including welfare, pension benefits, public housing, and social security); and, for child sex offenders, the right to live where they want, to physically be near places where children congregate, to work in professions involving children, and to steer clear of certain types of publicity and surveillance (due to sex offender registries and registration requirements). (149)

   The theme of all this is citizenship. Note that the first five entries on that long list are all but identical to the consequences of infamy in ancient Athens and republican Rome: the right to vote; the right to hold public office; the right to serve on juries (because juries were assemblies and the infamed lost the right to participate in assemblies); the right to give testimony in court; and the right to serve in the army (which runs close to the right to bear arms, especially if the right to bear arms is associated, as it would have been in Athens and Rome, less with personal self-defense than with military service). (150) In all three cases, societies with a republican form of government respond to major wrongdoing by taking away the political rights associated with democratic participation--with being a full citizen. Indeed, some of the extra deprivations imposed by American law (e.g., bars to public benefits) also have to do with citizenship. They just reflect the fact that the modern welfare state has more rights of citizenship to cut off than did Athens or Rome. (151) In addition, note that many of these consequences have no direct connection to the crime: denying a child sex offender the right to live near schools makes sense, but why deny felons social security? In part, the answer is just a surfeit of punitivity, but the denial also has a very specific logic of its own: social security is a privilege of membership. It makes sense to deny it to felons if felons are regarded as nonmembers, as having forfeited the privileges of membership. In other words, the set of collateral consequences imposed directly by the state collectively expresses the idea that the ex-convict is not a full citizen.

   The second kind of collateral consequence is imposed with state permission by the major institutions that comprise civil society--banks, employers, and the like. These institutions routinely ask ex-convicts about their criminal history and, on that basis, commonly deny them employment, credit, and entrance to professions (e.g., the legal profession). (152) Of these, the employment-related consequences are paramount; they are of both greater practical significance than the others and are more significant for the idea of banishment from social life. While public institutions like the jury are important symbols of our shared citizenship, the workplace is by far the most important site in which modern people join together in common cause, engage in collective action for shared purposes, and interface with people outside of their immediate social networks. Home and work define the two basic spheres of many or most modern adult lives, partitioning the modern life in an almost physical sense between the private and what is effectively the public sphere. To be faced with job application after job application inquiring into one's criminal history, and to be denied job after job after giving one, is to experience the social world as someone branded an outsider. Exclusion from the workplace also has more serious practical effects on how one's life unfolds than any other collateral consequence. Most of us can live without voting, let alone jury service. Exclusion from the workplace is the most important collateral consequence there is.

   Some legal traditionalists may object that this second set of collateral consequences--consequences imposed by nonstate institutions--cannot be seen as a form of punishment because they are "private," as if they were no different from the sort of purely social shunning that individuals impose by private decision. (153) This objection, in my view, not only misunderstands the public/private distinction but misunderstands it in ways lawyers and philosophers should have overcome decades ago. A rigid or reflexive approach to the public/private distinction is a kind of legal formalism; legal realists were attacking that sort of formalism--indeed, were specifically attacking the rigidity of the public/private distinction--as early as the 1930s. (154) It was in 1964 that the Civil Rights Act recognized that political equality requires a category of "public accommodations" between the purely public and purely private. It was in 1971 that John Rawls recentered political philosophy on the justice of the "basic structure," including not only "the political constitution" but generally a society's "principal economic and social arrangements," because he recognized that "[t]aken together," those institutional structures "define men's rights and duties and influence their life prospects, what they can expect to be and how well they can hope to do." (155) This recentering of the subject of justice has proved to be as influential as the substance of Rawls's theory. Why should it be any less true for criminal justice than for other forms of justice? Furthermore, these so-called "private" institutional...