Download PDF Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction Studies in Penal Theory and Philosophy Zachary Hoskins 9780199389230 Books
Download As PDF : Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction Studies in Penal Theory and Philosophy Zachary Hoskins 9780199389230 Books
People convicted of crimes are subject to a criminal sentence, but they also face a host of other restrictive legal measures Some are denied access to jobs, housing, welfare, the vote, or other goods. Some may be deported, may be subjected to continued detention, or may have their criminal records made publicly accessible. These measures are often more burdensome than the formal sentence itself.
In Beyond Punishment?, Zachary Hoskins offers a philosophical examination of these burdensome legal measures, called collateral legal consequences. Drawing on resources in moral, legal, and political philosophy, Hoskins analyzes the various kinds of collateral consequences imposed in different legal systems and the important moral challenges they raise. Can collateral legal consequences ever be justified as forms of criminal punishment or as civil measures? Hoskins contends that, considered as forms of punishment, such restrictions should be constrained by considerations of proportionality and offender reform. He also argues that they may in a limited range of cases be permissible as risk-reductive civil measures. Whether considered as criminal punishment or civil measures, however, collateral legal consequences are justifiable in a far narrower range of cases than we find in current legal practice.
Considering just how pervasive collateral legal consequences have become and their dramatic effects on offenders' lives, Beyond Punishment? sheds valuable light on whether these restrictive measures are ever morally justified.
Download PDF Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction Studies in Penal Theory and Philosophy Zachary Hoskins 9780199389230 Books
"Hoskins Zachary (2019). Beyond punishment? A normative account of the collateral legal consequences of conviction. Oxford University Press.
This just-released (April 2019) book deals with what is the US are known as collateral consequences, limitations placed by legislatures or rule-making bodies upon those arrested or convicted of crimes or with other legal status such as mental illness or alienage. They are distinguished from direct consequences imposed by courts, and informal consequences or stigma imposed by others. Collateral consequences number in the US as many as 50,000, potentially affect huge numbers, and affect employment, housing, government benefits, and civil rights such as voting and gun ownership. Some are for limited periods, and others are permanent, typically with no remedy for removal.
The author’s concern is normative: whether collateral consequences can be morally justified. His position is mostly not, since he conceives that most, in spite of legislative assertions, are punitive in nature, and thus properly imposed only by courts with due process and for limited periods. Once convicts have “paid their debt,†they should be restored to full and equal rights in society. Under the US Constitution, and philosophically, punishment is reserved for courts with due process and proportionality, while civil regulations, with goals such as risk reduction, deterrence, or moral education, are reserved for legislatures and rule-making agencies. While many reformers consider all collateral consequences punitive (and thus wrong—some consider all punishment wrong, asserting that only treatment is valid), the author believes that some are justified. Many of those opposed to collateral consequences are also opposed to all punishment, including incapacitation (imprisonment, which they perceive as punishment, though it need not, as with quarantine, be so perceived).
The author’s distinction between punitive and regulatory is not new, having long been recognized by US Courts, which tend to defer to legislative statements of non-punitive or regulatory intention. Having said this, the author’s contribution to the discussion, from a legal, sociological, criminological, or philosophical, is therefore limited. His book is meant to add to the general and philosophical literature, but does not do so. Since he considers most collateral consequences to be punitive, much of his discussion relates to the nature, purposes, permissibility, and proportionality of punishment. Collateral consequences are very much about locus of power, about who makes decisions, whether courts or law-making bodies. The latter are very properly concerned with which persons are admitted to the full range of rights of citizens, and to make judgments about which persons are not so to be admitted. Legislatures decide that felons and aliens should have certain rights limited, including rights to vote, possess firearms, drive, engage in certain occupations, or be preferred for certain government benefits. Society decides by such rules that sex offenders should not teach or live near children, that felons and aliens are not to be trusted with firearms, and those who have committed certain offenses should not be placed in positions of trust, or opportunity/temptation again to do wrong. A modern assertion is that convicts who have “served their time†or “paid their debt†to society, that is, served the sentence imposed by the courts, should not have further limitations, but be fully restored to civil rights. We as a society have decided otherwise. The legislative and common-sense view is that such limitations are fully justified, because felons have shown themselves to lack the full good character required of citizens. The author and reformers argue otherwise, but with insufficient practical and philosophical respect for society’s reasons. The book lacks historical dimension.
Good character is a legal requirement for naturalization. It is also a requirement for certain occupations, such as lawyers and doctors. Collateral consequences allow good character to be a requirement also in other areas, such as teaching and positions of trust. We properly consider felons to lack such character and therefore not to be fully eligible: this is not a punishment, but a judgment. In Chapters 6 and 7, “Noninstrumental†and “Instrumental†justifications, the author considers reasons for collateral consequences other than those related to punishment, and rejects them. In rejecting them, he does not do justice to them, including and especially in not considering the history of collateral consequences and why courts and legislatures have approved them and continue to do so. When an author entirely differs from society (the US and Great Britain), he has an extra burden of both explaining the existence of what he criticizes, and justifying his own criticisms. Instead, the author asserts, as assumption only, that collateral consequence s are mostly unjustified, unjustifiable as punishments, and require compelling reasons in the few cases he allows. Historically, the Anglo-American legal system and citizens have considered their reasons sufficiently compelling and justified, and it is not an argument against them to label them prejudiced.
In the Anglo-American legal system, as Oliver Wendell Holmes Jr. taught, the life of the law has been experience, not logic. Collateral consequences have a history, and have developed now through centuries, expressing the accumulated judgment of courts, legislators, citizens, and scholars that such limitations are proper and justified. It is a recent assertion that felons who have “served their time†have fully “paid their debt†and should have no other limitations, when traditionally they have been viewed as having shown themselves unfit for many of the rights of citizenship, of lacking the character fully to participate in society. They have forfeited the assumption of trust. Society is justified is taking extra precautions to protect itself and its members from those who have shown themselves incapable or unwilling to honor its rules, lacking good character or sufficient respect for the rule of law and the social contract. Reformers have called for removal of collateral consequences, but so far governments have declined this wholesale invitation, while making piecemeal reforms.
It may be that there are too many rules, and lack of opportunity for convicts to show they have reformed and might be re-admitted to certain rights. These are matters of practical wisdom for legislators, not for philosophical formulas."
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Tags : Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction (Studies in Penal Theory and Philosophy) [Zachary Hoskins] on . People convicted of crimes are subject to a criminal sentence, but they also face a host of other restrictive legal measures Some are denied access to jobs,Zachary Hoskins,Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction (Studies in Penal Theory and Philosophy),Oxford University Press,0199389233,Ex-convicts - Legal status, laws, etc,Political rights, Loss of,Punishment - Philosophy,LAW / Criminal Law / Sentencing,LAW / Criminal Procedure,LAW / Jurisprudence,Law,Law | Criminology and Criminal Justice,Law/Criminal Law - Sentencing,Law/Criminal Procedure,Law/Jurisprudence,Non-Fiction,SOCIAL SCIENCE / Penology,UNIVERSITY PRESS,United States
Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction Studies in Penal Theory and Philosophy Zachary Hoskins 9780199389230 Books Reviews :
Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction Studies in Penal Theory and Philosophy Zachary Hoskins 9780199389230 Books Reviews
- Hoskins Zachary (2019). Beyond punishment? A normative account of the collateral legal consequences of conviction. Oxford University Press.
This just-released (April 2019) book deals with what is the US are known as collateral consequences, limitations placed by legislatures or rule-making bodies upon those arrested or convicted of crimes or with other legal status such as mental illness or alienage. They are distinguished from direct consequences imposed by courts, and informal consequences or stigma imposed by others. Collateral consequences number in the US as many as 50,000, potentially affect huge numbers, and affect employment, housing, government benefits, and civil rights such as voting and gun ownership. Some are for limited periods, and others are permanent, typically with no remedy for removal.
The author’s concern is normative whether collateral consequences can be morally justified. His position is mostly not, since he conceives that most, in spite of legislative assertions, are punitive in nature, and thus properly imposed only by courts with due process and for limited periods. Once convicts have “paid their debt,†they should be restored to full and equal rights in society. Under the US Constitution, and philosophically, punishment is reserved for courts with due process and proportionality, while civil regulations, with goals such as risk reduction, deterrence, or moral education, are reserved for legislatures and rule-making agencies. While many reformers consider all collateral consequences punitive (and thus wrong—some consider all punishment wrong, asserting that only treatment is valid), the author believes that some are justified. Many of those opposed to collateral consequences are also opposed to all punishment, including incapacitation (imprisonment, which they perceive as punishment, though it need not, as with quarantine, be so perceived).
The author’s distinction between punitive and regulatory is not new, having long been recognized by US Courts, which tend to defer to legislative statements of non-punitive or regulatory intention. Having said this, the author’s contribution to the discussion, from a legal, sociological, criminological, or philosophical, is therefore limited. His book is meant to add to the general and philosophical literature, but does not do so. Since he considers most collateral consequences to be punitive, much of his discussion relates to the nature, purposes, permissibility, and proportionality of punishment. Collateral consequences are very much about locus of power, about who makes decisions, whether courts or law-making bodies. The latter are very properly concerned with which persons are admitted to the full range of rights of citizens, and to make judgments about which persons are not so to be admitted. Legislatures decide that felons and aliens should have certain rights limited, including rights to vote, possess firearms, drive, engage in certain occupations, or be preferred for certain government benefits. Society decides by such rules that sex offenders should not teach or live near children, that felons and aliens are not to be trusted with firearms, and those who have committed certain offenses should not be placed in positions of trust, or opportunity/temptation again to do wrong. A modern assertion is that convicts who have “served their time†or “paid their debt†to society, that is, served the sentence imposed by the courts, should not have further limitations, but be fully restored to civil rights. We as a society have decided otherwise. The legislative and common-sense view is that such limitations are fully justified, because felons have shown themselves to lack the full good character required of citizens. The author and reformers argue otherwise, but with insufficient practical and philosophical respect for society’s reasons. The book lacks historical dimension.
Good character is a legal requirement for naturalization. It is also a requirement for certain occupations, such as lawyers and doctors. Collateral consequences allow good character to be a requirement also in other areas, such as teaching and positions of trust. We properly consider felons to lack such character and therefore not to be fully eligible this is not a punishment, but a judgment. In Chapters 6 and 7, “Noninstrumental†and “Instrumental†justifications, the author considers reasons for collateral consequences other than those related to punishment, and rejects them. In rejecting them, he does not do justice to them, including and especially in not considering the history of collateral consequences and why courts and legislatures have approved them and continue to do so. When an author entirely differs from society (the US and Great Britain), he has an extra burden of both explaining the existence of what he criticizes, and justifying his own criticisms. Instead, the author asserts, as assumption only, that collateral consequence s are mostly unjustified, unjustifiable as punishments, and require compelling reasons in the few cases he allows. Historically, the Anglo-American legal system and citizens have considered their reasons sufficiently compelling and justified, and it is not an argument against them to label them prejudiced.
In the Anglo-American legal system, as Oliver Wendell Holmes Jr. taught, the life of the law has been experience, not logic. Collateral consequences have a history, and have developed now through centuries, expressing the accumulated judgment of courts, legislators, citizens, and scholars that such limitations are proper and justified. It is a recent assertion that felons who have “served their time†have fully “paid their debt†and should have no other limitations, when traditionally they have been viewed as having shown themselves unfit for many of the rights of citizenship, of lacking the character fully to participate in society. They have forfeited the assumption of trust. Society is justified is taking extra precautions to protect itself and its members from those who have shown themselves incapable or unwilling to honor its rules, lacking good character or sufficient respect for the rule of law and the social contract. Reformers have called for removal of collateral consequences, but so far governments have declined this wholesale invitation, while making piecemeal reforms.
It may be that there are too many rules, and lack of opportunity for convicts to show they have reformed and might be re-admitted to certain rights. These are matters of practical wisdom for legislators, not for philosophical formulas.
