Are Collateral Consequences Deserved?

Brian M. Murray*

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that exoffenders face upon release. Because collateral consequences involve the state’s infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, they align with utilitarian, public-safety-based rationales for criminal punishment, such as incapacitation. Interpreting the nature of collateral consequences, their legislative justifications, and judicial doctrine confirms that utilitarian terrain underlies the creation and reform of collateral consequences. At the same time, these philosophical premises stunt broad reform because public safety and risk-prevention rationales inspire only marginal tinkering and do not adequately respond to the general public’s understanding of desert as crucial to the administration of criminal justice. The result is extra punishment run amok and in desperate need of constraints.

This Article suggests a different approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints emphasize dignity and autonomy, blameworthiness, proportionality, and restoration, and impose obligations and duties on the state, suggesting many collateral consequences are overly punitive and disruptive of social order. This mode of analysis aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present-day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.

Continue reading in the print edition . . .

© 2020 Brian M. Murray. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Associate Professor of Law, Seton Hall University School of Law. I would like to thank the Honorable Stephanos Bibas, Youngjae Lee, Rick Garnett, John Kip Cornwell, Charlie Sullivan, Margaret Lewis, Dave Hoffman, Ed Hartnett, Thomas Healy, John Stinneford, Amanda Bergold, Rick Greenstein, and Joshua Kleinfeld. Thank you to participants at the Law and Society Annual Meeting in Washington, D.C., and the Junior Scholars Colloquium hosted by the Federalist Society in Annapolis, Maryland, for comments on this Article, and for feedback provided by participants at CrimFest 2019 at Brooklyn Law School on the larger project associated with this Article. I would also like to thank my wife, Katherine, for her continuous support, and my children, Elizabeth, Eleanor, George, and John, for their inspiring curiosity and endless questions, unyielding sense of wonder, and love for life.