Invisible Punishment is Wrong – But Why? The Normative Basis of Criticism of Collateral Consequences of Criminal Conviction
| Published date | 01 December 2017 |
| Date | 01 December 2017 |
| Author | CHRISTOPHER BENNETT |
| DOI | http://doi.org/10.1111/hojo.12230 |
The Howard Journal Vol56 No 4. December 2017 DOI: 10.1111/hojo.12230
ISSN 2059-1098, pp. 480–499
Invisible Punishment is Wrong – But
Why? The Normative Basis of
Criticism of Collateral Consequences
of Criminal Conviction
CHRISTOPHER BENNETT
Reader in Philosophy, University of Sheffield
Abstract: This article is concerned with the way in which criminal justice systems cause
harms that go well beyond the ‘headline’ punishment announced at sentencing. This is
the phenomenon of ‘collateral consequences of criminal conviction’. This phenomenon
has been widely criticised in recent criminological literature. However, the critics do not
normally explore or defend the normative basis of their claims – as they need to if their
arguments are to strike home against sceptics. I argue that the normative basis of the critics’
position should be seen as involving important normative claims about the responsibilities
that societies have towards those who break the law. Some important strands of criticism,
I claim, rest on the view that we have associative duties towards offenders (and their
dependants and communities) as fellow participants in a collective democratic enterprise,
duties that are violated when states impose, or allow, harms that go significantly beyond
the sentence.
Keywords: associative obligations; collateral consequences; democracy; human
rights; invisible punishment
This article is concerned with the way in which criminal justice systems
cause harms that go well beyond the ‘headline’ punishment announced at
sentencing. This is the phenomenon of ‘collateral consequences of crimi-
nal conviction’, for which Jeremy Travis (2002) has coined the apt term,
‘invisible punishment’. In order to introduce the questions with which we
will be dealing, it will be helpful to start with an analogy.
Say I am asked to examine a PhD thesis. The decision that I make
will have significant repercussions for the candidate’s future, and for the
meaning of the past four or five years that the person has spent working on
the thesis. Is the candidate going to proceed into the future with the stamp
of approval resulting from a successful doctorate; or will they rather have
to live with the public judgment that the time they spent on the thesis was, if
not time wasted, then at least radically unsuccessful? I might be very much
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C
2017 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol56 No 4. December 2017
ISSN 2059-1098, pp. 480–499
aware of these facts about how unfortunate it would be for the candidate to
fail the thesis; but I might also make a deliberate effort not to allow those
facts to cloud my mind as I attempt to weigh up the merits of the thesis.
Furthermore, I may think, as I come to make my decision on whether
or not to pass the thesis, that my duties in the situation are limited to
ensuring the integrity of the decision – that it is made on academic merit –
and that the likelihood of bad consequences for the candidate should not
count as a decisive reason not to fail the thesis if its academic content merits
a fail. Here it seems at least sometimes unobjectionable to exclude many
of the wider consequences of the decision from my deliberations, and to
make a decision even though I foresee that it will have bad consequences.
This example shows that we do not always have a responsibility to avoid
causing foreseeable harms. Sometimes the importance of fulfilling our
other responsibilities permits us to allow harms as a side effect. Of course,
if I failed the thesis precisely in order to make the candidate suffer in that
way I would be doing something seriously wrong. However, sometimes
one can be in the situation of knowing that someone will be harmed by
one’s action and yet be compelled to do it anyway. We could avoid causing
these harms, but only at the cost of not fulfilling our other responsibilities
properly.
How is this relevant to an article about the collateral consequences
of conviction? Collateral consequences can be understood as the further
repercussions of a criminal conviction on an offender’s life, as well as those
of their dependants and their communities. The initial purpose of this
opening example is to point out that it is not enough for critics of collat-
eral consequences of conviction to show simply that punishment regimes
foreseeably cause these wider repercussions. This might be true, but it might,
aswiththecaseoftheexaminer,simplybeacostthathastobeborne
in order to carry out the task of punishing (whatever the justification for
undertaking that task is).
However, the other purpose of the example is to motivate us to explain
why criminal justice policy should not be founded on the same attitude to
collateral consequences as that taken by the examiner. Critics of ‘invisible
punishment’ urge that matters cannot be so simple as in my depiction
of the examiner case – and I agree. Indeed, even in the examiner case,
one might think that the sensitive examiner may feel bound to take some
steps to alleviate the costs of her decision for the candidate. In the case of
criminal justice, the critics of invisible punishment argue that those who
design and implement sentencing policy should give much more thought
to the foreseeable effects of their decisions: decisions such as, for instance,
the war on drugs; the removal of judicial discretion and the introduction
of mandatory sentencing grids; the expansion of supplementary punish-
ments; the cutting of social security and welfare for ex-offenders. Even
where these decisions aim at an end that might be considered reasonable,
more thought should be given to the kinds of collateral damage to which
the chosen ways of achieving that goal are likely to lead.
The argument of this article is that, in pressing their case, critics of such
‘invisible punishments’ are committed to some important normative claims
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2017 The Howard League and John Wiley & Sons Ltd
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