The Privilege of Punishing: America's Hidden Regime of Collateral Consequences and Offenders' Rights

• In Event: Contemporary Issues in Prisoner Reentry

Abstract

Scholarship on imprisonment has engaged in its own binge, writing furiously on mass incarceration and “expressive” punishment while overlooking less visible penal practices. Penology has thus become organized in a hierarchy of knowledge, leaving the assumption that marginalized forms of punishment simply mirror the trends in imprisonment. Closer investigation of these hidden punitive practices reveals inconsistencies in the dominant discourse. “Hidden sentences”—punishments imposed by law as a direct result of criminal status, but not as part of any “official,” judge-issued sentence—are pervasive in the contemporary penal system. They consist of restrictions on current offenders’ rights alongside legal “collateral consequences” (though both terms obscure their punitive reality), affecting almost 1 in 3 American adults and impacting them far longer than do visible sentences. Most importantly, these widespread punishments take effect through haphazard and obscure laws, without political attention, and without public notice. Mass imprisonment is often explained as expressive retribution and fear-driven incapacitation, but the vast majority of the penal system is hidden from the public, political, and legal eye. An historical investigation of the rise of hidden sentences shows that the penal system serves a more subtle, foundational purpose: the creation and reification of privilege.

Author

• Joshua Kaiser, Northwestern University