Retributivist Reform of Collateral Consequences
54 Pages Posted: 26 Jul 2019 Last revised: 6 Nov 2020
Date Written: 2019
This Article applies retributivist principles to discussions about collateral consequences reform. Retributivist ideas relating to agency and responsibility, proportionality, personal and communal restoration, and the obligations and duties of the state, as well as the broader community, suggest suspicion of an expansive collateral consequences regime. A retributivist assessment, cognizant of realities within the criminal system, reveals that many are overly punitive and disruptive of social order. Legislatures that prioritize retribution as a justification for and constraint on punishment should think clearly about whether existing collateral consequences result in disproportionate suffering and, if so, reconsider them. This includes the outsourcing of punishment to private actors. Committed retributivist decision-makers within the system, such as line prosecutors, should consider how to approach the imposition of collateral consequences when acting during various phases of a prosecution. Finally, retributivist constraints can inform whether the maintenance of criminal records by the state is justified, and for how long, as well as the scope of second-chance remedies like expungement. These limitations could allow for robust procedural protections for petitioners for relief, shifting the burden of persuasion to the state. In short, retributive principles can be a useful tool for reform, helping to restore to ex-offenders what they deserve.
Keywords: collateral consequences, retribution, sentencing, proportionality, criminal justice reform, criminal law, deterrence, expungement
JEL Classification: K14
Suggested Citation: Suggested Citation