The question in the title of this post is the title of this notable new paper authored by Brian Murray now available via SSRN. Here is its abstract:
While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release. Because collateral consequences involve the state infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, their roots stem from utilitarian justifications for criminal punishment, such as incapacitation. Legislative justifications relating to creating and reforming collateral consequences and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system. Unfortunately, these philosophical roots inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility. The result is extra punishment run amok and in desperate need of constraints.
This Article pivots to a novel, but perhaps counterintuitive, approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints, emphasizing dignity and autonomy, blameworthiness, proportionality, a concern for restoration, and the obligations and duties of the authority tasked with inflicting punishment, suggest many collateral consequences are overly punitive and disruptive of social order. Viewing collateral disabilities in this fashion aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.
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