Law as Punishment / Law as Regulation

Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey, Austin Sarat, Lawrence Douglas, Martha Merrill Umphrey

• Publisher: Stanford Law Books
• Year: 2011
• ISBN:
  9780804782111
• Edition: 1
• Topic: Diritto
• Subtopic: Giurisprudenza

Law depends on various modes of classification. How an act or a person is classified may be crucial in determining the rights obtained, the procedures employed, and what understandings get attached to the act or person. Critiques of law often reveal how arbitrary its classificatory acts are, but no one doubts their power and consequence.

This crucial new book considers the problem of law's physical control of persons and the ways in which this control illuminates competing visions of the law: as both a tool of regulation and an instrument of coercion or punishment. It examines various instances of punishment and regulation to illustrate points of overlap and difference between them, and captures the lived experience of the state's enterprise of subjecting human conduct to the governance of rules. Ultimately, the essays call into question the adequacy of a view of punishment and/or regulation that neglects the perspectives of those who are at the receiving end of these exercises of state power.

Collateral Consequences and the Perils of Categorical Ambiguity

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ALEC C. EWALD

The United States is about a generation into an unprecedented experiment in mass incarceration. The pace of change has been remarkable: the U.S. now imprisons its citizens at five times the rate it did as recently as 1970, and at a far higher rate than most democracies. Our dramatically expanded penal system shapes American racial and class inequality, as incarceration percentages for blacks are eight times higher than those for whites, and the typical prisoner has not completed high school. On a human scale, the prison boom has effected “a historically significant transformation of the character of adult life” for millions of Americans.¹ More than 600,000 ex-offenders are released from prisons and jails in a typical year²—a figure approaching that of the entire population of the smallest U.S. states.

Policy-makers and academics are only now coming to grips with the distortions wrought upon some of our most fundamental social and political measurements by what Marie Gottschalk calls the new “carceral state.”³ For example, the census counts inmates as residents of the prison town, a practice that appears to skew apportionment and policy-making at the county and state level.⁴ Voter turnout figures need adjustment because the voting-age population on which those figures were historically based now includes so many people who are actually ineligible to vote under state law because of a criminal conviction.⁵ And unemployment rates in the U.S. and Europe cannot be directly compared, because incarceration removes so many people from the American labor pool.⁶ All told, our carceral institution now exerts “a salience and reach that are wholly unprecedented in American history as well as unparalleled in any other society.”⁷

Much of that reach today comes from a set of penalties rarely formally defined as punishments: “collateral” sanctions, restrictions called “indirect” consequences of a criminal conviction and that “attach to, but are legally separate from, the criminal sentence.”⁸ As many as 16 million Americans have been convicted of a felony,⁹ and thus may have their ability to work, serve on a jury, vote, own a firearm, join the military, seek federal student loans, receive food stamps, and live in public housing curtailed or eliminated altogether. Scattered throughout state and federal law, rarely contained in criminal codes, and flowing from “complicated intersections of state, quasi-state, and private associations,”¹⁰ collateral sanctions expand the penal institution in both place and time—beyond the prison walls (and probation offices) and beyond the sentence as well. Indeed, these restrictions sometimes place heavier, longer-lasting burdens on an offender than does the formal sentence.¹¹ Some collateral consequences are quite old, but state restrictions increased in number between 1986 and 1996; both the American Bar Association (ABA) and the National Conference of Commissioners on Uniform State Laws (NCCUSL) conclude that federal and state collateral sanctions have expanded in “variety and severity” in the last twenty years.¹²

Yet despite their wide impact and recent growth, collateral consequences remain in a cloudy legal gray area, exerting severe and long-standing punitive effects but not legally defined as punishment and absent from even excellent new texts on sentencing law.¹³ A fundamental ambiguity persists within American collateral-consequences policy: whether such sanctions are punitive, regulatory, or some combination of the two. Most restrictions are enforced not by the criminal-justice system proper, but by executive-branch administrative agencies, state and local bureaucracies, or professional boards, often years and sometimes decades after sentencing. Thus, many jurists and some commentators conclude that collateral sanctions are fundamentally regulatory: meant to ration scarce resources or ensure that only certain citizens are eligible for a given profession, for example. In the words of one nineteenth-century commentator, “[P]ublic protection and not individual punishment” is their aim.¹⁴

The line between criminal punishment and civil regulation has never been sharp or easily drawn. But in the last few decades, “[T]he distinction between criminal and civil law seems to be collapsing across a broad front,” as Mary M. Cheh wrote in 1991.¹⁵ Drawing the line has “become impossible,” wrote Susan R. Klein in 1999. Governments collect “civil” forfeitures and confiscations freely, and numerous “punitive civil sanctions” imposed in noncriminal proceedings blur the line between civil remedy and public punishment.¹⁶ What Katherine Beckett and Steve Herbert call “architectural modes of exclusion” spreading through U.S. cities, such as new uses of trespass authority and off-limits orders, also “rest upon a complex mixture of civil, administrative, and criminal legal authority.”¹⁷

Of the many policy arenas now merging punishment and regulation, post-sentence collateral sanctions are among the most consequential. This is not to gainsay the human, social, and philosophical importance of other civil/criminal policies: new forms of “socio-spatial exclusion” represent a troubling modernist recapitulation of banishment,¹⁸ while civil forfeiture and civil confinement (particularly the confinement of sex offenders) impose enormous costs on those affected and raise grave ethical questions. Similarly, the law and practice of deportation (now imposed on nearly 2 million people a year in the U.S.) also blends punitive and regulatory features. But in the number of people it affects, the range of activities it covers, and its complex, fascinating legal structure, the expanding collateral sanctions regime represents a major development in American political life. The late political philosopher Judith Shklar concluded that at the core of American citizenship are the ability to work and the right to vote.¹⁹ Millions of Americans now lack the ability to participate in those activities, and many others live in a darkened status Nora V. Demleitner calls “internal exile.”²⁰ No longer incarcerated, they walk through society free of any formal criminal supervision but deprived by piecemeal state and federal rules of core capacities of citizenship.

This chapter explores collateral sanctions’ awkward straddle of punitive and regulatory aims. In showing that these restrictions do not fit clearly into either category, I hope to demonstrate what I believe are the real dangers of that ambiguity. The harmful consequences of our massive, murky, ill-defined collateral-sanctions regime extend well beyond those directly affected, rendering citizens unable to judge the efficacy of such restrictions and undermining core commitments of the American political order. While I do conclude that many such restrictions seem quite unlikely to fulfill their purported objectives, my core claim is not that collateral sanctions are necessarily bad policy—but instead that our confusion over their character and purpose actually keeps us from knowing how to judge them in the first place.

To begin, I offer the detailed account of current U.S. collateral-consequence policies necessary to enable close inquiry into the themes most interesting to us here: how collateral sanctions combine punitive and regulatory aspects, feature both centralized and dispersed characteristics, and alter the content of American citizenship. The second section explains the ambiguity surrounding collateral consequences’ blend of regulatory and punitive elements. While U.S. courts have defined almost all such restrictions as civil and regulatory, commentators are virtually unanimous in emphasizing their punitive effects. Yet collateral sanctions do not fit comfortably into any of the frameworks by which we understand criminal justice or regulatory policies. Several core concerns of the criminological literature, such as the contemporary desire to denigrate and stigmatize offenders, the move toward “actuarial justice,” and the pervasive desire to reduce costs, do capture important elements of American collateral sanctions policy. Similarly, the “new regulatory” account, in particular its emphasis on “de-centered” policy in post-welfare state industrial societies, links up well to some elements of collateral consequences today, but runs afoul of others.

I close the chapter by arguing that collateral consequences represent a damaging new manifestation of a virulent exclusionary tradition in American citizenship law. Denying millions of people full civic standing and autonomy is not new in American political life. What is novel is that collateral sanctions withdraw indefinitely core attributes of citizenship, and do so in a formal but shadowy way through the cumulative effects of scores of scattered, quasi-penal policies whose ambiguous legal status has in effect insulated them from necessary public, legislative, and judicial examination.

The American Collateral Sanctions Regime

We need to look closely at contemporary American collateral consequences in order to appreciate these restrictions’ quantity and reach, their diverse, complex legal structures, and their varying mechanisms of implementation.²¹ The outline that follows moves from center to periphery, as it were, beginning with those consequences automatically imposed on all offenders by federal law and moving out through greater layers of delegation, discretion, and local authority. Though this tally may appear lengthy, in fact a truly comprehensive assessment would consume this entire volume: a compilation published in 2009 by the American Bar Association lists over one hundred different federal statutes.²²

First, a few terminological clarifications. Some authors employ the...