In Zachary Hoskins’ “Criminalisation and the Collateral Consequences of Conviction”, Hoskin explains one possible version of John Stuart Mill’s “harm principle” (“the only purpose for which power can rightfully be exercised over any member of a civilised community against his will is to prevent harm to others” (376)) in criminal justice systems as the “harmful prevention principle (HHP)”: “we have good reason[s] to criminalise a…conduct…only if…doing so will efficiently prevent harm[s] to others” (629).
However, HHP does not consider “foreseeable unintended harms”, or “collateral consequences”, that the criminalisation of many conducts give rise to their convicted criminals (Hoskins 631): legal or civil restrictions or prohibitions on voting, employment of certain jobs, fostering and adopting children, accessibility to driver’s licenses, housing, loans, public welfare and firearms (in the U.S.) and serving in the military as well as in formal burdens from social stigma, assaults, humiliations and harassments as a result of it, tension and estrangement from family and intimate ones (Hoskins 625-627).
If the sum of the harms caused by legal punishments (e.g. fines or incarceration) and their collateral consequences outweigh the utility brought by criminalising these conducts, their criminalisation is not justified, since the point of criminalisation is to bring more good to society than harm, not vice versa. Therefore, HPP is modified to incorporate collateral consequences: “we have good reason[s] to criminalise a…conduct…only if doing so will contribute to a [net reduction in foreseeable harms to others] (emphasis mine) (HPP2)” (Hoskins 631). Still, it should be admitted that some of collateral consequences are justifiable. Only those collateral consequences are that are unjustifiable, or “wrongful”, should be taken into the equation (Hoskins 631). Therefore, HPP2 is modified to incorporate “wrongfulness”: “we have good reason[s] to criminalise a…conduct…only if doing so will contribute to a net reduction in foreseeable [wrongful] harm[s] to others (emphasis mine) (WHPP2)” (Hoskin 631).
In order to evaluate the justness of collateral consequences by existing philosophical theories of legal punishments, it must be decided whether collateral consequences belong to legal punishments. Courts usually reject that they are, because they themselves do not introduce them. However, collateral consequences share the same purposes of legal punishments, that is to punish criminals and/or to protect civilians. Also, collateral consequences, like legal punishments, are forced harms to criminals imposed by society. Therefore, a score of scholars (Hoskin 628) and I think that collateral consequences indeed belong to legal punishments.
In this essay, I adopt the retributivist theory of legal punishment to evaluate the justness of collateral consequences. The theory suggests that each person exercises his/her self-restraint to obeys a set of rules that makes “a sphere for each person, which is immune from interference by others”, possibile (Morris 548). If one breaks the rules, s/he renounces his/her burdens of obeying the rules on his/her own rational will, by which s/he gains an advantage over all those who still obey them (Morris 548). Thus, legal punishments are justified, because they cancel out this unfair advantage by forcibly assigning burdens in the form of legal punishments to the disobedients (Morris 549). Metaphorically, when criminals serve their punishments, they are said to “pay back the debts” owed to other members of the society.
If legal punishments are understood as balancing out the benefits and burdens of each person or “clearing debts” to other members of society, it is reasonable to induce that all legal punishments should have endpoints that indicate when or under what conditions the balance is restored or “debts cleared”. Otherwise as insane as the idea of “unclearable debts”, the balance can never be restored, because it is always possible that criminals continue to accumulate burdens from collateral consequences, even after the point at which the balance is supposed to have been restored. In this way, the original purpose of balancing benefits and burdens is failed, thus legal punishments without end points are unjustified according to the retributivist theory.
While Hoskins distinguishes rightful and wrongful harms in his WHPP2, and provide several pilot criteria to determine wrongful harms (631-632), I argue that since most collateral consequences without endpoints are by all means unjustified or wrongful punishments according to the retributivist theory. Notably, my criticism of collateral consequences does not look into informal burdens, because there is likely no way of effacing discrimination against criminals, insofar as its expression does not cross the line of criminality. However, the legal or civil restrictions and prohibitions can in theory be stipulated with endpoints.
In the following, I use two examples to show that collateral consequences without endpoints could be devastating to criminals so much so that they sometimes facilitate the reserve effect of legal punishments, i.e. the making of recurrent criminals, because they submit criminals to situations in which the means of subsistence and the status of human dignity are significantly harder to acquire than otherwise.
Hoskins offers a list of jobs that are denied for criminals in the U.S.: police officer, teacher, architect, cosmetologist etc (Hoskins 627). At first sight, the denial of these jobs seems to be just, because it stops “bad influence” of criminals from penetrating “jobs of uprightness”. However, the majority of listed jobs are skilled jobs that require at least some years of studying, training and professional experiences. If someone commits a crime that has nothing to do with his/her career but nevertheless bars him/her from continuing to work in his/her familiar fields for life, years of studying, training and professional experiences will suddenly be in vain. Therefore, this criminal is likely to opt for a job that requires little expertise, and all the while pays way less than the one which s/he has devoted time and energy (and possibly enthusiasm) for.
Hoskins also finds that “[U.S.] [f]ederal law [permanently] bars those with drug-related felony convictions from receiving welfare assistance (emphasis mine)” (627). Presumably, “drug-related felony convictions” refer to trafficking or wholesaling drugs in large quantities (rather than possessing or recreational uses that are relatively minor crimes). If so, this collateral consequence is in a sense self-contradictory: most drug dealers sell drugs out of poverty (especially from black communities in the U.S.), the ban of welfare assistance further alienates them from better-off lives, which makes them more likely to continue their drug business.
If these collateral consequences are set with endpoints, it will not only passes the justice evaluation in the retributivist theory and serve the purpose of collateral consequences (whatever it may be), but also offer criminals a hint of hope by the idea that their collateral consequences are but temporary, thus motivating them to work towards the conditions that result in endpoints of collateral consequences (similar motivational mechanism is already in place in prisons).
One may object by claiming that some collateral consequences without endpoints are justifiable when imposed to certain severe criminals. I agree that criminals that have some rational senses ought to be treated differently from criminals that cannot reasonably control their behaviours without exterior assistance. However, in practice, criminals so severe as to deserve collateral consequences without endpoints are usually already adjudicated with at least life sentences. Therefore, collateral consequences are out of the question for them. This makes the injustice of collateral consequences without endpoints even more apparent, because criminals of less severity are in some sense treated similarly to criminals that deserve at least life sentences.
Hoskins arrives at WHPP2 after applying Mill’s “harm principle” to criminal justice system incorporating “unintended foreseeable harms” and “wrongfulness”: “we have good reason[s] to criminalise a…conduct…only if doing so will contribute to a net reduction in foreseeable wrongful harm[s] to others” (Hoskins 631). Albeit courts’ denial, “unintended foreseeable harms”, or “collateral consequences”, can be reasonably considered as a part of legal punishments, given their shared purposes and harmfulness to criminals, enabling me to criticise the unjustness of collateral consequences without endpoints in light of the retributivist theory and with two examples, namely occupational bans and the bans to access welfare assistance for drug dealers. Finally, The objection that some collateral consequences without endpoints imposed to severe criminals are arguably justifiable does not hold, because several criminals are almost always given at least life sentences.
Work Cited
Hoskins, Zachary. “Criminalisation and the Collateral Consequences of Conviction”. Criminal Law and Philosophy, Volume 12, Issue 4, December, 2018, pp. 625–639, https://link.springer.com/content/pdf/10.1007%2Fs11572-017-9449-2.pdf.
Morris, Herbert. “Persons and Punishment” (Inside “Chapter 22: Retributivism Two: Fair Play”, “Part Five: Punishment”). Classic Readings and Cases in the Philosophy of Law, Edited by Susan Dimock, Published by Routledge, 2016, pp. 548-558, https://www.taylorfrancis.com/books/e/9781315509655.