Invisible punishments

• In Event: Routledge Handbook on European Penology – II. European Penality – Developments in Penal Practices

Abstract

Criminal penalties seldom come alone. A criminal record can have severe collateral consequences. A variety of additional legal consequences may be imposed on convicts which can result in the (temporary or permanent) restriction or revocation of a wide range of civil and political rights. Historically, they can be rooted back to honour-related forms of punishment which were common in past centuries. With their expressive and stigmatizing nature, they had the purpose to outlaw deviant individuals and exclude them from (full) participation in society. Such sanctions are, in some form or another, still prevalent today. In recent years they even re-gained significance in the context of the growth of the preventative orientation of (criminal) law and (criminal) policy, now hidden in administrative dress or disguise.
In most European jurisdictions such measures are available. Notwithstanding their close connection to criminally relevant behaviour, they are rarely imposed by criminal courts. Instead, they have been 'exported' into other areas of law. Labelled as non-punitive in nature, they can have severe consequences for those affected. Such measures may include, for example, the restriction of voting rights, limited access to legal professions, employment bans in the public and a wide range of private business sectors, restrictions on commercial activities, leisure or voluntary activities, the loss of honorary positions, educational constraints, withdrawal of licenses, permits and ownerships, residency or movement restrictions, loss of pension and constraints on social aid, and last but not least, constraints related to immigration and asylum.
This paper aims at identifying and analyzing the various types of such sanctions and the rules of application which differ on a variety of parameters, including the type and legal character of measures, the conditions for imposition, their scope and impact, procedures, enforcement, and judicial control.

Author

• Michael Kilchling, Max Planck Institut (Freiburg)