Abstract
It is well documented that the effects of legal punishment tend to drift to the family members, friends, and larger communities of convicted offenders. Instead of conceiving of punishment drift as incidental to legal punishment, or as merely foreseen but not intended by state authorities and thus permissible, I argue that efforts ought to be undertaken to limit or ameliorate it. Failure to confine punishment drift comes perilously close to punishment of the innocent and is at odds with other legal doctrines and broader penal practices that hold offenders, and offenders alone, responsible for their crimes. Numerous arguments urging tolerance of punishment drift, or more assertively defending it, are examined and found wanting.
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Notes
Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse (New York: Oxford University Press, 2007); Marc Mauer and Meda Chesney-Lind (eds.), Invisible Punishment: The Collateral Consequences of Mass Imprisonment (New York: The New Press, 2002); Megan Comfort, “Punishment Beyond the Legal Offender,” Annual Review of Law and Social Science 3 (2007): pp. 271–296; and Joseph Murray, “The Cycle of Punishment: Social Exclusion of Prisoners and Their Children,” Criminology and Criminal Justice 7 (1) (2007): pp. 55–81.
Jails and prisons are distinct kinds of institutions in the United States. Jails are owned and operated by municipalities and regional authorities and house both pre-trial detainees and individuals convicted of mostly minor offenses who will serve less than a year in custody. Prisons are owned and operated by states or the federal government and usually contain individuals sentenced to more than a year in prison. From here on, I will refrain from distinguishing the two and simply refer to those in custody as being in “prison”.
Clear, supra note 1, Chapter 5.
The ways in which the effects of legal punishment spread to non-offenders are sometimes referred to under the heading of “collateral consequences”. However, scholars also use that term to refer to various civil disabilities imposed by the state on offenders, ones that often attach to offenders after they have served their formal sentences. I want to distinguish the (arguably) unintended spread of legal punishment to innocent others from collateral consequences intentionally visited upon offenders or ex-offenders, thus I use the term “punishment drift”.
See Rita Manning, “Punishing the Innocent: Children of Detained and Incarcerated Parents,” Criminal Justice Ethics 30 (3) (2011): pp. 267–287; and William Bϋlow, “The Harms Beyond Imprisonment: Do We Have Special Obligations Towards the Families and Children of Prisoners?”, Ethical Theory and Moral Practice 17 (4) (2014): pp. 775–789.
See S. Randall Humm, “Criminalizing Poor Parenting Skills as a Means to Contain Violence by and against Children,” University of Pennsylvania Law Review 139 (4) (1991): pp. 1123–1161; and Gilbert Geis and Arnold Binder, “Sins of Their Children: Parental Responsibility for Juvenile Delinquency,” Notre Dame Journal of Law, Ethics, & Public Policy 5 (1991): pp. 303–322.
The fact of over-representation of minorities and poor people in the criminal justice system is largely beyond dispute. What is more controversial, however, is whether that over-representation is the result of their more often being involved in crime or their more often being the focus of attention by criminal justice officials, most notably the police. For discussion, see Alex R. Piquero and Robert W. Brame, “Assessing the Race-Crime and Ethnicity-Crime Relationship in a Sample of Serious Adolescent Delinquents,” Crime & Delinquency 54 (3) (2008): pp. 390–422.
See Alexandra Natapoff, “Misdemeanors,” Southern California Law Review 85 (2012): pp. 1313–1375.
See the documentation provided by the sources, supra note 1.
It is estimated that over 2 million children in the United States have a parent incarcerated. See Comfort, supra note 1, at 274.
See Sandra Bass, Margie K. Shields, and Richard E. Behrman, “Children, Families, and Foster Care: Analysis and Recommendations,” The Future of Children 14 (1) (2004): pp. 5–29.
See Joseph Murray, Carl-Gunnar Janson, and David P. Farrington, “Crime in Adult Offspring of Prisoners: A Cross-National Comparison of Two Longitudinal Samples,” Criminal Justice and Behavior 34 (1) (2007): pp. 133–149.
Natapoff, supra note 8, at 1323–1327. See also Jenny Roberts, “Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts,” University of California-Davis Law Review 45 (2011): pp. 277–372.
Natapoff, supra note 8, at 1321.
For useful discussion, see Alison McIntyre, “Doctrine of Double Effect,” Stanford Encyclopedia of Philosophy, at http://plato.stanford.edu/entries/double-effect/ (accessed September 2, 2015).
A third condition is worth mentioning. It says that the intended act must not be wrongful in itself. In the punishment context, this would mean that it would have to be established that legal punishment, as a practice, can be justified. For the purposes of my discussion, I assume that this can be established, though there is considerable recent skepticism about it. See, for instance, Deidre Golash, The Case Against Punishment: Retribution, Crime Prevention, and the Law (New York: New York University Press, 2005); and David Boonin, The Problem of Punishment (New York: Cambridge University Press, 2008).
On the less-than-robust evidence supporting a link between longer sentences and marginal deterrence, see Anthony N. Doob and Cheryl M. Webster, “Sentence Severity and Crime: Accepting the Null Hypothesis,” Crime and Justice: A Review of Research 30 (2003): pp. 143–195; Daniel S. Nagin, “Deterrence and Incapacitation,” in The Handbook of Crime and Punishment, Michael Tonry (ed.), (New York: Oxford University Press, 1998): pp. 345–368. Nagin also discusses the limits to incapacitation as a crime reduction strategy. See also Franklin E. Zimring and Gordon Hawkins, Incapacitation: Penal Confinement and the Restraint of Crime (New York: Oxford University Press, 1995).
On the adverse psychological impact of imprisonment on inmates, see Craig Haney, Reforming Imprisonment: Psychological Limits to the Pains of Imprisonment (Washington, D.C.: American Psychological Association, 2006). On the impact of imprisonment on the abilities of ex-offenders to find decent and well-paying work, see Bruce Western, Punishment and Inequality in America (New York: Russell Sage, 2006).
There is room for debate about whether the prohibition on punishment of the innocent is an absolute moral side-constraint, or a presumptive one that can be outweighed in a suitably specified and presumably narrow set of cases. Even the latter option furnishes a stronger basis for concern about punishment drift than straightforward consequentialist reasoning.
For an excellent overview of tactics by police and prosecutors that produce adjudication errors, see Keith A. Findlay and Michael S. Scott, “The Multiple Dimensions of Tunnel Vision in Criminal Cases,” Wisconsin Law Review 2006 (2) (2006): pp. 291–397.
Adam J. Kolber, “Unintentional Punishment,” Legal Theory 18 (1) (2012): pp. 1–29, at 13.
The heightened legal liability is usually civil in character, in the form of strict liability provisions.
See Peter Arenella, “Convicting the Morally Blameless: Reassessing the Relationship Between Legal and Moral Accountability,” UCLA Law Review 39 (1992): pp. 1511–1622. Arenella’s succinct summary (at 1521) of who satisfies the threshold conditions for moral responsibility under the criminal law is “Everyone except for the very young, the very crazy, and the very severely mentally retarded”.
See David Garland, on the abandonment of “penal welfarism,” beginning in the 1970 s, in The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001): pp. 27–51.
See Haney, supra note 18, especially Chapter 6.
On the impact of imprisonment on the abilities of ex-offenders to find decent and well-paying work, see Western, supra note 18, especially Chapter 5.
Craig Haney, “Mental Health Issues in Long-Term Solitary and ‘Supermax’ Confinement,” Crime & Delinquency 49 (1) (2003): pp. 124–156.
See Richard L. Lippke, Rethinking Imprisonment (Oxford: Oxford University Press, 2007), Chapter 7.
See Josh Kovensky, “It’s Time to Pay Prisoners the Minimum Wage,” at https://newrepublic.com/article/119083/prison-labor-equal-rights-wages-incarcerated-help-economy (accessed March 10, 2016).
Lippke, supra note 28, Chapter 8.
Manning, supra note 4, at 270. At present, only five U.S. states permit conjugal visitation. See Rachel Wyatt, “Male Rape in U.S. Prisons: Are Conjugal Visits the Answer?,” Case Western Reserve Journal of International Law 37 (2/3) (2006): pp. 579–614, at 600.
See the essays on Germany and Sweden in Dirk van Zyl Smit and Frieder Dϋnkel (eds.), Imprisonment Today and Tomorrow: International Perspectives on Prisoners’ Rights and Prison Conditions, 2nd Edition (The Hague: Kluwer Law International, 2001).
See John Pratt, “Scandinavian Exceptionalism in an Era of Penal Excess: Part I: The Nature and Roots of Scandinavian Exceptionalism,” British Journal of Criminology 48 (2) (2008): pp. 119-47, at 122–124.
Kolber argues that the myriad deprivations imposed by prisons must be justified on the basis of what he terms the “justification symmetry principle.” According to that principle, harms caused by state actors must be justified in ways symmetrical to the ones that would be required to justify the actions of non-state actors. See Kolber, supra note 21, at 14–16. By contrast, I have argued that prison conditions must be justified by reference to penal aims and moral constraints entailed by those aims. See Lippke, supra note 28, especially Chapter 5.
For discussion, see Mark A. Franklin and Diane Johnsen, “Expunging Criminal Records: Concealment and Dishonesty in an Open Society,” Hofstra Law Review 9 (2) (1981): pp. 733–774; James B. Jacobs, “Mass Incarceration and the Proliferation of Criminal Records,” University of St. Thomas Law Review 3 (3) (2006): pp. 387–420; and Jennifer Leavitt, “Walking A Tightrope: Balancing Competing Public Interests in the Employment of Criminal Offenders,” Connecticut Law Review 34 (2002): pp. 1281–1315.
See Jessica S. Henry and James B. Jacobs, “Ban the Box to Promote Ex-Offender Employment,” Criminology & Public Policy 6 (4) (2007): pp. 755–762.
For discussion, see Shadd Maruna, “Judicial Rehabilitation and the ‘Clean Bill of Health’ in Criminal Justice,” European Journal of Probation 3 (1) (2011): pp. 97–117.
See Ben Geiger, “The Case for Treating Ex-Offenders as a Suspect Class,” California Law Review 94 (2006): pp. 1191–1242.
See the essays in Mauer and Chesney-Lind, supra note 1. See also Gabriel J. Chin, “The New Civil Death: Rethinking Punishment in the Era of Mass Incarceration,” University of Pennsylvania Law Review 160 (2012): pp. 1789–1833.
The notion of “collective responsibility” is a philosophically fraught one. For a useful overview of the issues, see Marion Smiley, “Collective Responsibility,” The Stanford Encyclopedia of Philosophy, at http://plato.stanford.edu/entries/collective-responsibility/ (accessed September 4, 2015).
Manning, supra note 4, at 276 raises this argument, though she criticizes it.
See Alan Goldman, “The Paradox of Punishment,” Philosophy & Public Affairs 9 (1) (1979): pp. 42–58, at 55.
On the ways in which youthfulness inhibits moral responsibility, see Barry C. Feld, “A Slower Form of Death: Implications of Roper v. Simmons for Juveniles Sentenced to Life without Parole,” Notre Dame Journal of Law, Ethics, & Public Policy 22 (1) (2008): pp. 9–65, at 34–43.
Josh Bowers notes that, in 2002, in the largest 75 counties in the U.S., “seventy-six percent of state-court felony defendants had at least one prior arrest, fifty percent had five arrests or more, fifty-nine percent had at least one prior conviction, and twenty-four percent had five or more convictions.” See Bowers, “Punishing the Innocent,” University of Pennsylvania Law Review 156 (2008): pp. 1117–1179, at 1125.
Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America (New York: Oxford University Press, 1995).
See the discussions in the references, supra note 1.
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Lippke, R.L. Punishment Drift: The Spread of Penal Harm and What We Should Do About It. Criminal Law, Philosophy 11, 645–659 (2017). https://doi.org/10.1007/s11572-016-9392-7
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DOI: https://doi.org/10.1007/s11572-016-9392-7