Invisible Punishment Is Wrong, But Why? The Normative Basis of Criticism of Collateral Consequences of Criminal Conviction

This paper is concerned with the way in which criminal justice systems cause harms that go well beyond the ‘headline’ punishment announced at sentencing. This is the phenomenon of ‘collateral consequences of criminal conviction.’ This phenomenon has been widely criticised in recent criminological literature. However, the critics do not normally explore or defend the normative basis of their claims – as they need to if their arguments are to strike home against sceptics. I argue that the normative basis of the critics’ position should be seen as involving important normative claims about the responsibilities that societies have towards those who break the law. Some important strands of criticism, I claim, rest on the view that we have associative duties towards offenders (and their dependents and communities) as fellow participants in a collective democratic enterprise, duties that are violated when states impose or allow harms that go significantly beyond the sentence.