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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. 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 canmeasure 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."
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. 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, their legislative life cycle often follows an unusual course. Unlike sentencing statutes, they are not typically considered by judiciary committees. 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. 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. 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.
II. THE CONTEXT AND CONSEQUENCES
OF INVISIBLE PUNISHMENT
The idea that convicted offenders should be denied certain rights and benefits of citizenship is certainly not new. In early Roman history, and among some Germanic tribes, the penalty of "outlawry" could be imposed on offenders. The outlaw's wife was deemed a widow, his children orphans; he lost his possessions and was deprived of all rights. In ancient Athens, the penalty of "infamy" could be imposed, meaning the offender was denied the right to attend public assemblies, hold office, make speeches, and serve in the army. Later in the Roman empire, offenders were barred from certain trades. In the medieval era, "civil death" was the consequence of a sentence of life imprisonment, meaning the offenders lost the right to inherit or bequeath property, enter into contracts, and vote.
American legislatures continued this tradition, denying convicted offenders the right to enter into contracts, automatically dissolving their marriages, and barring them from a wide variety of jobs and benefits. Indeed, the Fourteenth Amendment to the United States Constitution explicitly recognizes the power of the states to deny the right to vote to individuals guilty of "participation in rebellion or other crimes."
What is new at the beginning of the twenty-first century is the expansive reach of these forms of punishment. There are simply more of them: After a thirty-year period when these indirect forms of punishment were strongly criticized by legal reformers and restricted by state legislatures, they experienced a surge in popularity beginning in the mid-1980s. And, because of the significant increase in arrests and criminal convictions, they simply apply to more people. More than 47 million Americans (or a quarter of the adult population) have criminal records on file with federal or state criminal justice agencies. An estimated 13 million Americans are either currently serving a sentence for a felony conviction or have been convicted of a felony in the past. This translates into over 6 percent of the adult population having been convicted of a felony crime. The proportion of felony convictions among African-American adult males is even higher. Invisible punishments reach deep into American life.
The new wave of invisible punishments is qualitatively different as well. Taken together, the recent enactments, many of them passed by Congress, chip away at critical ingredients of the support systems of poor people in this country. Under these new laws, offenders can be denied public housing, welfare benefits, the mobility necessary to access jobs that require driving, child support, parental rights, the ability to obtain an education, and, in the case of deportation, access to the opportunities that brought immigrants to this country. For many offenders, the social safety net has been severely damaged.
Why have our policy makers embraced this category of punishment in addition to building more prisons and expanding the reach of criminal justice supervision? We could imagine that the steady buildup of prisons might, by itself, constitute the full articulation of a new punitive attitude of our policy makers and the public they represent. Yet, when we consider the expanded reach of the network of invisible punishment, we detect a social impulse distinct from the robust retributivism that has fueled harsher sentencing policies over the past twenty-five years. When sex offenders are subjected to lifetime parole supervision, drug offenders are denied student loans, families are removed from public housing, and legal immigrants with decades-old convictions are deported from this country, all without judicial review, even the harshest variants of just-deserts theories cannot accommodate these outcomes.
In this brave new world, punishment for the original offense is no longer enough; one's debt to society is never paid. Some commentators, seeing parallels with practices from another era when convicts were sent to faraway lands, refer to this form of punishment as "internal exile." Others liken this extreme labeling to "the mark of Cain," and the effects of these sanctions as relegating the offender to the status of "non-citizen, almost a pariah." The National Council on Crime and Delinquency summarized the effects this way: "Even when the sentence has been completely served, the fact that a man has been convicted of a felony pursues him like Nemesis."
I prefer to focus on the impact of these kinds of punishments on the social fabric. To borrow a phrase now in use by the Labor government in the United Kingdom, these punishments have become instruments of "social exclusion"; they create a permanent diminution in social status of convicted offenders, a distancing between "us" and "them." The principal new form of social exclusion has been to deny offenders the benefits of the welfare state. And the principal new player in this new drama has been the United States Congress. In an era of welfare reform, when Congress dismantled the six-decades-old entitlement to a safety net for the poor, the poor with criminal histories were thought less deserving than others. In an era when Congress has aggressively interjected itself into the criminal justice policy domains traditionally reserved to the states, there was little hesitation in using federal benefits to enhance punishments or federal funds to encourage new criminal sanctions by the states. In an era when the symbolic denunciation of criminals was politically rewarding, the opportunity to deny offenders the largess of the welfare state was just too tempting. In this kind of environment, the people who come through our crinainal justice system-mostly poor, urban, minority males, often denied the right to vote by virtue of their felony convictions-have few friends in high places.
The policy goal, then, is to find ways to constrain this form of punishment, to establish limiting principles, and to reverse the movement toward social exclusion. I offer some thoughts on how to accomplish those objectives at the conclusion of the chapter.
III. THE NEW STRAIN OF INVISIBLE PUNISHMENT
A brief review of the ebb and flow of support for collateral sanctions puts our current posture in sharp relief. The high-water mark of the movement to restrain these punishments occurred, not coincidentally, in the middle decades of the twentieth century. During that period, the country witnessed an extraordinary burst of criminal justice reforms. A landmark presidential commission called for a "revolution in the way America thinks about crime." Congress passed the Bail Reform Act of 1968, which reduced pretrial detention for poor people. The Supreme Court issued a series of constitutional rulings granting new rights and protections to those accused of committing a crime. The Model Penal Code was adopted by the American Law Institute. Rehabilitation was understood to be the goal of corrections.
Not surprisingly, reformers in this era focused attention on the collateral consequences of criminal convictions. In its 1955 Standard Probation and Parole Act, the National Council on Crime and Delinquency (NCCD) proposed that an offender's civil rights should be restored upon completion of his criminal sentence. A year later, the National Conference on Parole concluded that "the present law on deprivation of civil rights of offenders is in most jurisdictions an archaic holdover from early times and is in contradiction to the principles of modern correctional treatment." The Act proposed by the NCCD included a provision to allow for the expungement of criminal records, meaning that an individual could be restored to his legal status prior to his conviction.
In 1967, the President's Crime Commission noted that "[t]here has been little effort to evaluate the whole system of disabilities and disqualifications that has grown up. Little consideration has been given to the need for particular deprivations in particular cases." In 1973, the National Advisory Commission on Corrections recommended fundamental changes in voter disqualification statutes, arguing that reintegration required no less: "Loss of citizenship rights ... inhibits reformative efforts. If corrections is to reintegrate an offender into free society, the offender must retain all attributes of citizenship. In addition, his respect for law and the legal system may well depend, in some measure, on his ability to participate in that system."
In 1981, the American Bar Association (ABA) promulgated the Standards on Civil Disabilities, a document that seems quaint from a contemporary perspective. Asserting that the automatic imposition of civil disabilities on persons convicted of a crime were inconsistent with the goal of reintegration of offenders, the ABA recommended that no such disability be automatically imposed, except those related directly to the offense (for example, revoking the driver's license of a repeated drunk driver); that disabilities be imposed on a case-by-case basis, upon a determination that it was "necessary to advance an important governmental or public interest"; and that they be imposed only for a limited time, and then with adequate avenues for early termination upon appropriate review.
The reform spirit touched state legislatures as well. In the 1960s and 1970s, the number of state laws imposing collateral sanctions declined.
Excerpted from INVISIBLE PUNISHMENT Copyright © 2002 by Marc Mauer and Meda Chesney-Lind
Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
|Pt. I||Beyond Doing Time: The Lifetime Consequences of Imprisonment||13|
|1||Invisible Punishment: An Instrument of Social Exclusion||15|
|2||Welfare and Housing - Denial of Benefits to Drug Offenders||37|
|3||Mass Imprisonment and the Disappearing Voters||50|
|Pt. II||Distorting Justice||59|
|4||Incarceration and the Imbalance of Power||61|
|5||Imprisoning Women: The Unintended Victims of Mass Imprisonment||79|
|6||Entrepreneurial Corrections: Incarceration As a Business Opportunity||95|
|Pt. III||Fractured Families||115|
|7||Families and Incarceration||117|
|8||The Social Impact of Mass Incarceration on Women||136|
|9||Children, Cops, and Citizenship: Why Conservatives Should Oppose Racial Profiling||150|
|Pt. IV||Communities in Crisis||163|
|10||Black Economic Progress in the Era of Mass Imprisonment||165|
|11||The Problem with "Addition by Subtraction": The Prison-Crime Relationship in Low-Income Communities||181|
|Pt. V||Incarceration As Socially Corrosive||195|
|12||Building a Prison Economy in Rural America||197|
|13||The Impact of Mass Incarceration on Immigration Policy||214|
|14||The House of the Dead: Tuberculosis and Incarceration||239|
|15||Media on Prisons: Censorship and Stereotypes||258|
|16||The International Impact of U.S. Policies||279|
|About the Authors||333|