Abstract
Convicted offenders face a host of so-called “collateral” consequences: formal measures such as legal restrictions on voting, employment, housing, or public assistance, as well as informal consequences such as stigma, family tensions, and financial insecurity. These consequences extend well beyond an offender’s criminal sentence itself and are frequently more burdensome than the sentence. This essay considers two respects in which collateral consequences may be relevant to the question of what the state should, or may, criminalize. First, they may be relevant according to specific accounts of criminalization, including plausible versions of the harm principle and legal moralism. Second, they may be relevant to the legitimacy of state criminalization more generally. Thus for legal theorists concerned with the issue of legitimate criminalization, normative questions raised by collateral consequences are of central importance.
Highlights
Varieties of Collateral ConsequencesA criminal conviction typically subjects one to prison or jail time, probation, a fine, or some other formal sentence
Convicted offenders face a host of so-called ‘‘collateral’’ consequences: formal measures such as legal restrictions on voting, employment, housing, or public assistance, as well as informal consequences such as stigma, family tensions, and financial insecurity
Keywords Criminalization Á Collateral consequences Á Punishment Á Harm principle Á Legal moralism Á Political legitimacy. In his seminal book Overcriminalization, Douglas Husak contends that the central objection to too much criminal law is that it leads to too much punishment.[1]
Summary
A criminal conviction typically subjects one to prison or jail time, probation, a fine, or some other formal sentence. I argue elsewhere that many legal restrictions—e.g., lifetime voting bans on broad classes of offenders—are unjustifiable in their current forms, and that others—restrictions on welfare assistance or student loans, for example—are unjustifiable in any form, whether as punishment or as civil measures.[45] Scholars have raised general concerns about collateral consequences due to their racially disparate impacts.[46] Whatever our answer to the question of which (if any) collateral consequences constitute wrongful harms, the point here is just that this answer will be relevant to criminalization decisions grounded in a plausible formulation of the harm principle, one which takes into account the wrongful harms to be prevented by criminalization and the wrongful harms to which criminalization would foreseeably contribute. Duff, ‘‘Towards a Modest Legal Moralism,’’ op cit., p. 230
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