Collateral consequences of criminal records from the other side of the pond: How exceptional is American penal exceptionalism?
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/17488958231161437 |
| Author | Alessandro Corda,Marti Rovira,Andrew Henley |
| Date | 01 September 2023 |
https://doi.org/10.1177/17488958231161437
Criminology & Criminal Justice
2023, Vol. 23(4) 528 –548
© The Author(s) 2023
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DOI: 10.1177/17488958231161437
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Collateral consequences of
criminal records from the
other side of the pond: How
exceptional is American penal
exceptionalism?
Alessandro Corda
Queen’s University Belfast, UK
Marti Rovira
Universitat Pompeu Fabra, Spain
Andrew Henley
University of Nottingham, UK
Abstract
In this article, we highlight the existence and expansion of so-called ‘collateral consequences’
(CCs) of criminal records in Europe to challenge the prevalent view that these are features of the
claimed ‘American exceptionalism’ within the penal field. First, we consider how CCs have been
widely presented as a quintessential example of American penal exceptionalism within extant
scholarship before problematising the adoption of such a framework from a European perspective.
Second, we demystify the issue of CCs within Europe by highlighting the deleterious effects which
CCs have on the lives of European people with a criminal record. Third, we consider precisely
what can be regarded as ‘exceptional’ about CCs in the United States as compared to Europe by
analysing key areas of possible differentiation. We conclude by cautioning against the view that
European penality is necessarily – and always homogeneously and consistently – ‘progressive’ in
relation to its treatment of criminal records and criminal record subjects. We also suggest that
far greater attention and vigilance is required from criminologists and criminal justice scholars
regarding the expansion and operation of CCs in Europe.
Corresponding author:
Alessandro Corda, School of Law, Queen’s University Belfast, Main Site Tower, University Square, Belfast
BT7 1NN, UK.
Email: A.Corda@qub.ac.uk
1161437CRJ0010.1177/17488958231161437Criminology & Criminal JusticeCorda et al.
research-article2023
Special Issue: Collateral Consequences of Criminal Records
Corda et al. 529
Keywords
American penal exceptionalism, collateral consequences, comparative criminology, criminal
records, European criminal justice policy, penal cultures
Introduction
Criminal records can have adverse effects whose reach goes well beyond the limits of the
formal ramifications of the criminal legal system. These effects have been conceptual-
ised as ‘collateral consequences’ (hereinafter CCs) (e.g. Demleitner, 1999). They include
de jure civil and administrative regulations which may restrict access to employment,
housing, voting, legal immigration status, welfare benefits and other rights and opportu-
nities for individuals with a criminal history. A criminal record may also facilitate de
facto exclusionary and discriminatory practices, for instance by employers or landlords
who choose to treat individuals with a lived experience of the criminal justice system less
favourably (e.g. Jacobs, 2015; Larrauri, 2014a). These adverse effects are characterised
as ‘collateral’ because, although not formally conceived as part of the punishment estab-
lished by sentences handed down by criminal courts, they result from having a record of
a previous conviction. However, CCs are far from being minor or secondary side-effects
since their impact is frequently disproportionate to the seriousness of the offence of con-
viction (Corda, 2016) and may lead to major obstacles in the process of desisting from
crime and re-entering society (Maruna, 2011). Burdensome CCs stemming from any
recorded criminal justice contact other than a conviction – most notably, a caution or an
arrest – appear, if possible, even more vexatious for the individual and contentious from
a criminological, policy, and rights perspective.
The prevalence and endurance of CCs of criminal records in the United States has
been depicted as yet another example of ‘American penal exceptionalism’ (Demleitner,
2018; Garland, 2020). This thesis states that CCs in the United States are imposed on a
completely different scale than in any other Western country, particularly European ones.
Indirectly, this literature, combined with the scant attention the topic has received in
Europe until recently, has led to a general consensus about a ‘progressive’ approach
towards criminal records and their ramifications across European jurisdictions, assuming
that in this region CCs are few in number and, insofar as they do exist, they are propor-
tionate and time-limited. The long-term consolidation of this narrative is concerning,
since it is too reassuring for European jurisdictions at both the scholarly and policy level
to conceive of European CCs as moderate or proportionate without proper evidence. It is
also problematic since it may falsely set the legal framework for CCs in Europe as an
example to follow for countries in other regions of the world when, in fact, different
models co-exist (Van ’t Zand-Kurtovic and Boone, This issue).
This article seeks to complicate the mainstream dichotomy between US punitive
exceptionalism and European progressivism in the area of CCs of criminal records.
Challenging this narrative, in this article, we first problematise the adoption of the
American penal exceptionalism thesis with regard to CCs. Second, we demystify the
issue of CCs within European countries by highlighting the deleterious effects which
they may have on the lives of European people with a criminal record. Third, we analyse
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