Punishment without Purpose? Explaining the History of America’s Hidden Penal Regime, 1930-2015

• In Event: Punishment Build-ups and Retreats

Abstract

Scholars have written extensively on the vast growth of America’s penal state since 1970s, describing it as politically driven by expressive retribution and fear-driven incapacitation. That story, however, revolves almost exclusively around imprisonment—overlooking less visible penal practices that I name “hidden sentences.” Hidden sentences are all punishments imposed by law as a direct result of criminalization, but not as part of a formal, judge-issued sentence. They consist of legal “collateral consequences” alongside restrictions on “offenders’ rights” (though both terms obscure empirical realities). As I show, there are more than 35,000 hidden sentence laws in the United States that directly impact approximately 1 in 3 American adults. If most of the modern penal system is hidden, explanations of the “punitive turn” are at best incomplete. U.S. hidden sentence laws began proliferating forty years before mass incarceration began—absent its expressive, fear-based logics. Comparative-historical evidence from three U.S. jurisdictions, supplemented by national-level statistics, shows that the hidden penal state is instead driven by simple, cultural aversion from the criminal “others” of the time, from East Asians and Communists to African Americans and homosexuals. Later mass incarceration simply followed that trajectory, creating a penal state that functions to perpetuate privilege and exclusion.

Author

• Joshua Kaiser, Northwestern University