Skip to main content

Advertisement

SpringerLink
Log in

Collateral Legal Consequences of Criminal Convictions in a Society of Equals

  • Original Paper
  • Published:
Criminal Law and Philosophy Aims and scope Submit manuscript

Abstract

This paper concerns what if any obligations a “society of equals” has to criminal offenders after legal punishment ends. In the United States, when people leave prisons, they are confronted with a wide range of federal, state, and local laws that burden their ability to secure welfare benefits, public housing, employment opportunities, and student loans. Since the 1980s, these legal consequences of criminal convictions have steadily increased in their number, severity, and scope. The central question I want to ask is whether the infliction of these burdensome legal consequences for those who have already been punished by the state is consistent with the ideal of equality. I argue that these collateral legal consequences violate relational egalitarian principles of justice and are thus objectionable. I conclude by examining possible objections to my argument.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. https://www.sentencingproject.org/wp-content/uploads/2015/11/Americans-with-Criminal-Records-Poverty-and-Opportunity-Profile.pdf.

  2. See Pinard (2006).

  3. I'm following Hoskins (2019) here. For an excellent overview of legal, philosophical, and criminological issues, see Hoskins, Chapter 1.

  4. https://www.nij.gov/Topics/Courts/Pages/Collateral-Consequences-Inventory.aspx. (accessed June 8, 2019).

  5. See the National Inventory of Collateral Consequences found at https://niccc.csgjusticecenter.org/map/ (accessed July 15, 2018).

  6. ProCon.org, “State Felon Voting Laws,” available online at http://felonvoting.procon.org/view.resource.php?resourceID=000286 (accessed June 8, 2019). Voting limitations are a bit more complicated. In some states, offenders are subject to voting bans while in prison or serving their sentence. Some states apply voting restrictions to ex-offenders after punishment ends. These ex-offenders are subject to permanent voting restrictions or voting restrictions for a certain period. When talking about voting restrictions in this paper, I will be focusing on post-punishment voting restrictions. I want to thank the anonymous referee for pushing me to clarify this point.

  7. See National Inventory of the Collateral Consequences of Criminal Convictions, online at https://niccc.csgjusticecenter.org/ (accessed June 7, 2019); See Also, Hoskins (2019: Chapter 1).

  8. 21U.S.C. Section 862a(a).

  9. See Travis (2002); Karlan (2004).

  10. Philosophers have given various arguments for what justifies punishment, such as it deters crime, it incapacitates dangerous people, it gives offenders their just deserts, it educates those who have violated moral standards, it removes unfair advantage, or it rightly expresses deserved condemnation. For a general overview of legal punishment, see Boonin (2008).

  11. Boonin explains the problem of punishment in the following way: “Legal punishment involves treating those who break the law in ways that it would be wrong to treat those who do not. … How can the line between those who break such laws and those who do not be morally relevant in the way that the practice of punishment requires it to be?” Boonin (2008: 8).

  12. For an overview of this debate, see Hoskins (2019: Chapter 2); see also Lippke (2016, pp. 217–219).

  13. See Smith v. Doe, 538 U.S., 84, 105–106 (2003). In Smith, the Court held that Alaska’s sexual offender registration requirement was not criminal punishment. See also, Turner v. Glickman, 207 F. 3rd 419, 428–431 (7th Cir. 2000). In Turner, the 7th Circuit held that a federal law banning individuals convicted of drug-related felonies from receiving welfare benefits was not legal punishment.

  14. See Travis (2002); Lippke (2016).

  15. See T.M. Scanlon (2018).

  16. Egalitarian arguments in the non-intrinsic sense may not always be concerned with inequality per se. Sometimes, people are objecting to the fact that the person who has less does not have enough. See Frankfurt (1987).

  17. Objections to inequality can, of course, depend on both kinds of reasons.

  18. There is an extensive legal and philosophical literature on this topic. See, e.g., Logan (2009), Thompson (2009) and Petersilia and Home (2003). For philosophical analysis, see Bulow (2014).

  19. Western et al. (2002: 166).

  20. Kirk and Wakefield (2018).

  21. See Bennett (2017) and Hoskins (2014, 2019).

  22. Hoskins (2014, 2019).

  23. Hoskins makes a similar point in his most recent book (2019). He states that CLCs are "at least presumptively unjustified in principle. This is because they deny to offenders the equal consideration to which they are entitled" (128, emphasis added).

  24. See Hoskins (2019: Chapters 1 and 5); Travis et al. (2001) and Metraux and Culhane (2004).

  25. Hoskins (2019: 137–143). Hoskins' argument is a bit more complicated than I can fairly describe here. His reasoning for debt payment is part of a more considerable discussion about whether punishment meets a criterion for a Samaritan account of political legitimacy. I set aside the broader details of Hoskins’ argument and focus on his idea of debt repayment for two reasons. First, while his point about political legitimacy is not an egalitarian argument against CLCs, his premise about punishment as debt repayment is egalitarian for reasons I will explain. Second, a Samaritan argument for political legitimacy is controversial, and I don't believe the truth of such an argument is necessary for Hoskins’ point about CLCs violating the political value of equality. See Simmons (2005: 93–196).

  26. Debt repayment does not mean that the offender’s relationship with the victim will be restored. Hoskins does not think that repaying one's debt to the political community implies anything about whether the offender also repairs relationships with the victim or the victim’s family. Hoskins’ point is that punishment as debt payment is significant because its function is to restore the offender's relationship to the state (2019: 141).

  27. Hoskins (2019: 130).

  28. Consider Rawls on the distinction between “equal as it is invoked in connection with the distribution of certain goods, some of which will almost certainly give higher status or prestige to those who are more favored, and equality as it applies to the respect which is owed to persons irrespective of their social position” (Rawls 1999: 447).

  29. See Waldron (2017).

  30. Bennett (2017). My discussion draws on Bennett’s arguments found on pp. 491–496.

  31. Bennett (2017: 494).

  32. Bennett (2017: 494).

  33. See Altman (2005); Sigler (2014); Bulow (2016). Bennett is aware of these sorts of arguments. He discusses whether penal disenfranchisement could be justified as protecting the democratic process from people who have shown themselves to be untrustworthy. See "Penal Disenfranchisement" Criminal Law and Philosophy (2015, 10: 411–425). Bennett, however, thinks if penal disenfranchisement is justified, it is because it is a kind of deserved punishment. I am asking whether these sorts of arguments could be used to defend CLCs, as a kind of civic disqualification.

  34. Bulow (2016: 763).

  35. Sigler (2014: 1737)

  36. Sigler (2014: 1738).

  37. In what follows, I will use “relational” and “social” equality interchangeably.

  38. For recent work on social and relational equality, see Miller (1997); Wolff (1998, 2019); Anderson (1999, 2010, 2012); Scheffler (2003, 2015) and Schemmel (2011).

  39. Consider, for example, G.A. Cohen’s distributive understanding of equality: “I take for granted that there is something which justice requires people to have equal amounts of, not no matter what, but to whatever extent is allowed by values which compete with distributive equality” (1989: 906).

  40. See Anderson (1999); for a similar but slightly broader view, see Scheffler (2015).

  41. While most relational egalitarians argue that equality is part of justice, some relational egalitarians argue it is a social ideal distinct from justice. See Schemmel (2015: 146–166). I will, however, be focusing on relational equality as an ideal of justice.

  42. Anderson (1999). Anderson also argues that relational egalitarians have a positive aim, but I am only focusing on the negative aim in this paper.

  43. Anderson (1999: 312–313).

  44. Social salient traits are discussed in debates about wrongful discrimination. For an overview, see Lippert-Rasmussen (2014). In using this term, I am following Sophia Moreau’s account (2019).

  45. See Scanlon (2018: Chapter 3); Wolff (2019).

  46. Anderson (1999: 313).

  47. See Anderson (1999: 289, 306–307).

  48. By “causation,” I mean that causal relationships are relationships of difference-making. Or the idea that if one event makes a difference for the occurrence of another event, the first event is the cause of the second.

  49. See Lippert-Rasmussen (2018: Chapter 2).

  50. I cannot completely address this concern as a complete theory of relational equality is beyond the scope of this paper.

  51. Feinberg (1965).

  52. Primoratz (1989), Duff (2001).

  53. See Lacey (1988). Philosophers and legal theorists do not necessarily endorse all forms of shaming. For example, some authors who support shaming distinguish between shaming that allows for reintegration and shaming that is merely stigmatizing. See Braithwaite (1989).

  54. See Wolff and De-Shalit (2007).

  55. Lippke (2016: 217).

  56. Duff (2001: 5).

  57. See Fontaine (2013), Meredith et al. (2007), Benda et al. (2005) and Uggen (2000).

  58. Hoskins (2019: 110–115).

  59. Hoskins is drawing on the work of Mason (2003).

  60. Hoskins (2019: 114).

  61. See Travis (2002); Kirk and Wakefield (2018).

  62. See Alexander and Crow (2012).

  63. For more on criminalization and the concept of outlawry, see Anderson (2014), Pinard (2010).

  64. See Edward (2002).

  65. I want to thank the anonymous referee for raising this critical objection.

  66. I do this for a few reasons. “I do not have space in this paper to defend a theory of punishment. Second, it is not needed for me to prove my argument”. If my thesis is correct, there may be several independent arguments that could justify punishment in a way that comports with the relational ideal of social equality.

  67. I want to thank the anonymous referee for raising this objection and pushing me on this point.

  68. These objections are also discussed in Hoskins (2019). What matters for my argument is whether these arguments justify any potential hierarchy of standing or esteem within a political community. For a critical analysis of many more arguments supporting CLCs than I can discuss here, see Hoskins (2019: Chapters 6 & 7).

  69. See Scanlon (2018: Chapter 8).

  70. Feinberg (1970).

  71. Scanlon (2018: 120).

  72. Hoskins (2019: 153).

  73. Scanlon (2018: 120–122).

  74. Scanlon (2018: note 46 at pp. 120).

  75. See Scanlon (2018: Chapter 8).

  76. See Hoskins (2019): Chapter 7 for systemic analysis and rejection of most public safety arguments for CLCs.

  77. Quoted in Lovett, Ian. “Sex Offenders Face Growing Restrictions on Public Places.” The New York Times, 29 May 2012, http://www.nytimes.com/2012/05/30/us/sex-offenders-face-growing-restrictions-on-public-places.html. (Accessed June 7, 2019).

  78. 20 U.S.C. Sec. 1091(r).

  79. 23 U.S.C. Sec. 159 (2000).

  80. Ala. Admin. Code R. 290-3-2-.34.

  81. 16 TAC Sec. 60.41.

  82. I want to thank the anonymous referee for pushing me to consider this concern.

  83. A similar point could be made about quarantining someone because of a dangerous infectious disease.

  84. I thus agree with Hoskins’ argument against the justification of the vast majority of CLCs as public safety measures. Hoskins (2019: Chapter 7).

References

  • Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New York, New Press, 2012).

    Google Scholar 

  • Andrew Altman, “Democratic Self-Determination and the Disenfranchisement of Felons” Journal of Applied Philosophy, 22(3) (2005): 263–273.

    Google Scholar 

  • Elizabeth Anderson, “Outlaws” The Good Society, Vo. 23, No. 1 (2014), pp. 103–113.

    Google Scholar 

  • Elizabeth Anderson, “Equality,” David Estlund (ed) The Oxford Handbook of Political Philosophy (Oxford: Oxford University Press, 2012): 40–57.

  • Elizabeth Anderson, The Imperative of Integration (Princeton: Princeton University Press, 2010).

    Google Scholar 

  • Elizabeth Anderson, “What is the Point of Equality?” Ethics 109 (1999): 287–337.

    Google Scholar 

  • Brent B. Benda, Nancy J. Harm, and Nancy J. Toombs, “Survival Analysis of Recidivism of Male and Female Boot Camp Graduates Using Life-Course Theory,” Journal of Offender Rehabilitation 40 (2005): 87–113.

    Google Scholar 

  • Christopher Bennett, “Invisible Punishment is Wrong—But Why? The Normative Basis of Criticism of Collateral Consequences of Criminal Convictions” Howard Journal of Crime and Justice 56 No. 4. (2017): 480–499.

  • Christopher Bennett. “Penal Disenfranchisement” Criminal Law and Philosophy (2015) 10: 411–425.

    Google Scholar 

  • David Boonin, The Problem of Punishment (New York: Cambridge University Press, 2008).

    Google Scholar 

  • John Braithwaite, Crime, Shame, and Reintegration (Cambridge: Cambridge University Press, 1989).

    Google Scholar 

  • William Bulow, “Felon Disenfranchisement and the Argument from Democratic Self-Determination” Philosophia 44 (2016): 744–759.

    Google Scholar 

  • William Bulow, “The Harms Beyond Imprisonment: Do We Have Special Moral Obligations Towards Families and Children of Prisoners?” Ethical Theory and Moral Practice 17:4 (2014).

    Google Scholar 

  • G.A. Cohen, “On the Currency of Egalitarian Justice” Ethics 99(4) (1989): 906–944.

    Google Scholar 

  • R.A. Duff, Punishment, Communication, and Community (Oxford: Oxford University Press 2001).

    Google Scholar 

  • Alec Edward, “Civil Death:” The Ideological Paradox of Criminal Disenfranchisement Laws in the United States,” Wisconsin Law Review (2002): 1045–1137.

  • Joel Feinberg, “The Expressive Function of Punishment” The Monist 49 (1965): 397–423.

    Google Scholar 

  • Joel Feinberg, “Justice in Personal Desert” in Doing and Deserving: Essays in the Theory of Responsibility (Princeton, NJ: Princeton University Press 1970).

    Google Scholar 

  • Jocelyn Fontaine, “The Role of Supportive Housing in Successful Reentry Outcomes for Disabled Prisoners,” Cityscape 15:3 (2013): 53–75.

    Google Scholar 

  • Harry Frankfurt, “Equality as a Moral Ideal” Ethics 98, no. 1 (1987): 21–43.

    Google Scholar 

  • Zachary Hoskins, Beyond Punishment: A Normative Account of the Collateral Legal Consequences of Conviction (Oxford: Oxford University Press 2019).

    Google Scholar 

  • Zachary Hoskins, “Ex-offender Restrictions,” Journal of Applied Philosophy, Vo. 31 No. 1 (2014): 33–48.

    Google Scholar 

  • Pamela S. Karlan, “Conviction and Doubts; Retribution, Representation, and the Debate over Felon Disenfranchisement,” Stanford Law Review 56 (2004): 1147–1170.

    Google Scholar 

  • David Kirk and Sara Wakefield, “Collateral Consequences of Punishment: A Critical Review and Path Forward, Annual Review of Criminology Vol 1. (2018):171–94.

    Google Scholar 

  • Nicola Lacey, State Punishment: Political Principles and Community Values (London: Routledge 1988).

    Google Scholar 

  • Kasper Lipper-Rasmussen, Born Free and Equal? (New York, NY: Oxford University Press 2014).

    Google Scholar 

  • Kasper Lippert-Rasmussen, Relational Egalitarianism: Living as Equals (Cambridge: Cambridge University Press 2018).

    Google Scholar 

  • Richard Lippke, Taming the Presumption of Innocence (New York: Oxford University Press, 2016).

    Google Scholar 

  • Wayne Logan, Knowledge as Power: Criminal Registration and Community Notification Laws in America (Sandford: Stanford Univ. Press, 2009).

    Google Scholar 

  • Michelle Mason, “Contempt as a Moral Attitude,” Ethics 113:2 (2003): 234–272.

    Google Scholar 

  • T. Meredith, J. Speir, and S. Johnson, “Developing and implementing automated risk assessments in parole,” Justice Research and Policy 9 (2007): 1–21.

    Google Scholar 

  • Stephen Metraux and Dennis P. Culhane, “Homeless Shelter Use and Reincarceration Following Prison Release: Assessing the Risk,” Criminology & Public Policy 3:2 (2004): 201–222.

    Google Scholar 

  • David Miller, “Equality and Justice,” Ratio 10, no. 3 (1997): 222–237.

    Google Scholar 

  • Sophia Moreau, “Discrimination and Subordination” Oxford Studies in Political Philosophy Vol. 5 (New York, NY: Oxford University Press, 2019).

    Google Scholar 

  • Michael Pinard, “Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity” NYU Law Review 85 (2010): 459–534.

    Google Scholar 

  • Michael Pinard. “An Integrated Perspective on the Collateral Consequences of Criminal Conviction and Reentry Issues Faced by Formerly Incarcerated Individuals,” 86 B.U. L. Rev. (2006): 623–689.

  • Joan Petersilia, When Prisoners Come Home: Parole and Prisoner Reentry (Oxford: Oxford University Press, 2003).

    Google Scholar 

  • Igor Primoratz, Justifying Legal Punishment (Oxford: Oxford University Press 1989).

    Google Scholar 

  • John Rawls, A Theory of Justice, Revised Edition (Harvard: Harvard University Press, 1999).

    Google Scholar 

  • T.M. Scanlon, Why Does Inequality Matter? (Oxford: Oxford University Press, 2018).

    Google Scholar 

  • Samuel Scheffler, “The Practice of Equality” in Carina Fourie, et al. (eds.) Social Equality: On What it Means to Be Equal (Oxford: Oxford University Press, 2015): 21–44.

  • Samuel Scheffler, “What is Egalitarianism?” Philosophy & Public Affairs 31, no 1 (2003): 5–39.

    Google Scholar 

  • Christian Schemmel, “Distributive and Relational Equality,” Politics, Philosophy & Economics 11(2) (2011): 123–148.

    Google Scholar 

  • Mary Sigler, “Defensible Disenfranchisement” Iowa Law Review, 99 (4) (2014): 1725–1744.

    Google Scholar 

  • A. John Simmons, “The Duty to Obey and our Natural Moral Duties,” in Is There a Duty to Obey the Law (New York, NY: Cambridge University Press, 2005): 93–196.

  • Anthony C. Thompson, Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics (New York: New York University Press, 2009).

    Google Scholar 

  • Jeremy Travis “Invisible Punishment: An Instrument of Social Exclusion,” in M. Mauer and M. Chesney-Lind (Eds.), Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: New Press, 2002).

  • Jeremy Travis, Amy L. Solomon, and Michelle Waul, From Prison to Home: The Dimensions and Consequences of Prisoner Reentry (Washington, DC: The Urban Institute, 2001).

    Google Scholar 

  • Christopher Uggen, “Working as a turning point in the life course of criminals: A duration model of age, employment, and recidivism,” American Sociological Review 65 (2000): 529–46.

    Google Scholar 

  • Jeremy Waldron, One Another’s Equals: The Basis of Human Equality (Cambridge, Mass: The Belknap Press of Harvard University Press, 2017).

    Google Scholar 

  • Bruce Western, Becky Pettit, and Josh Guetzkow, “Black Economic Progress in the Era of Mass Imprisonment” in M. Mauer and M. Chesney-Lind (Eds.), Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: New Press, 2002).

  • Jonathan Wolff, “Fairness, Respect, and the Egalitarian Ethos,” Philosophy & Public Affairs 27, No. 2 (1998): 97–122.

    Google Scholar 

  • Jonathan Wolff, “Equality and Hierarchy” Proceedings of the Aristotelian Society, Vol. 119, No. 1 (2019): 1–23.

    Google Scholar 

  • Jonathan Wolff and Avner De-Shalit, Disadvantage (Oxford: Oxford University Press, 2007).

    Google Scholar 

Download references

Acknowledgements

I want to thank the two anonymous referees for their helpful feedback, and the editors of Criminal Law and Philosophy. A very special thanks to Zach Hoskins for his generous input on previous versions of this manuscript.

Author information

Authors and Affiliations

  1. Department of Philosophy, University of Northern Colorado, McKee 301, Campus Box 126, Greeley, CO, 80639, USA

    Jeffrey M. Brown

Authors
  1. Jeffrey M. Brown
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Jeffrey M. Brown.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and permissions

About this article

Check for updates. Verify currency and authenticity via CrossMark

Cite this article

Brown, J.M. Collateral Legal Consequences of Criminal Convictions in a Society of Equals. Criminal Law, Philosophy 15, 181–205 (2021). https://doi.org/10.1007/s11572-020-09544-7

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s11572-020-09544-7

Search

Navigation