From Invisible Punishment: The Collateral Consequences of Mass Imprisonment.
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I. BRINGING INVISIBLE PUNISHMENT INTO VIEW
Prisons have this virtue: They are visible embodiments of society's decision to punish criminals. As we punish more people, the number of prisons increases. We can count how many people are in prison, measure the length of the sentences they serve, determine what we spend to keep them there, and conduct empirically grounded analysis of the costs and benefits of incarceration. Because prisons make punishment visible, we can more easily quantify the policy debates over the wisdom of this application of the criminal sanction.
Not all criminal sanctions are as visible as prisons: We punish people in other, less tangible ways. Community corrections is one example. While the number of prisoners has quadrupled over the past two decades, the number of adults under criminal justice supervision through parole and probation agencies has more than tripled.2 This form of punishment is not as obvious to the public: Probationers and parolees can easily become invisible. Yet, the quantum of punishment meted out through community-based sentences still has discernable bounds. We know the number of people under community supervision. We can measure the length of their sentences. Similarly,we can quantify, and thereby make "visible," the imposition of criminal fines, the collection of restitution, and the forfeiture of assets, three other criminal sanctions that have expanded over recent years.
This chapter focuses on a criminal sanction that is nearly invisible: namely, the punishment that is accomplished through the diminution of the rights and privileges of citizenship and legal residency in the United States. Over the same period of time that prisons and criminal justice supervision have increased significantly, the laws and regulations that serve to diminish the rights and privileges of those convicted of crimes have also expanded. Yet we cannot adequately measure the reach of these expressions of the social inclination to punish. Consequently, we cannot evaluate their effectiveness, impact, or even "implementation" through the myriad private and public entities that are expected to enforce these new rules. Because these laws operate largely beyond public view, yet have very serious, adverse consequences for the individuals affected, I refer to them, collectively, as "invisible punishment."3
They are invisible in a second sense as well. Because these punishments typically take effect outside of the traditional sentencing framework —in other words, are imposed by operation of law rather than by decision of the sentencing judge—they are not considered part of the practice or jurisprudence of sentencing. Through judicial interpretation, legislative fiat, and legal classification, these forms of punishment have been defined as "civil" rather than criminal in nature, as "disabilities" rather than punishments, as the "collateral consequences" of criminal convictions rather than the direct results.4 Because they have been defined as something other than criminal punishment, scholars, legislators, criminal justice officials, and legal analysts have failed to incorporate them into the debates over sentencing policy that have realigned our criminal justice system over the past quarter century.
Finally, there is a third dimension of invisibility. Although these criminal punishments look like typical legislative enactments, wending their way through the committee process, passage by majority vote, and approval by the executive,5 their legislative life cycle often follows an unusual course. Unlike sentencing statutes, they are not typically considered by judiciary committees.6 They are often added as riders to other, major pieces of legislation, and therefore are given scant attention in the public debate over the main event.7 They are typically not codified with other criminal sanctions. Some exist in the netherworld of the host legislation to which they were attached. Some exist under a separate heading of civil disabilities. Some defy traditional notions of federalism by importing federal penal policy into state sentencing statutes so that a conviction for a state law violation triggers federal consequences. Some apply the restrictions of one state on an offender convicted in another state who chooses to relocate. Little wonder, then, that defense lawyers cannot easily advise their clients of all of the penalties that will flow from a plea of guilty.8 These punishments are invisible ingredients in the legislative menu of criminal sanctions.
This chapter argues that these punishments should be brought into open view. They should be made visible as critical elements of the sentencing statutes of the state and federal governments. They should be recognized as visible players in the sentencing drama played out in
courtrooms every day, with judges informing defendants that these consequences flow from a finding of guilt or plea of guilty. Finally, they should be openly included in our debates over punishment policy, incorporated in our sentencing jurisprudence, and subjected to rigorous research and evaluation.
Note: This report is available in its entirety in the Portable Document Format (PDF).
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