Collateral Consequences and the Perils of Categorical Ambiguity

Abstract

This chapter explores collateral sanctions’ awkward straddle of punitive and regulatory aims. In showing that these restrictions do not fit clearly into either category, I demonstrate what I believe are the real dangers of that ambiguity. The harmful consequences of our massive, murky, ill-defined collateral-sanctions regime extend well beyond those directly affected, rendering citizens unable to judge the efficacy of such restrictions and undermining core commitments of the American political order. While I conclude that many such restrictions seem unlikely to fulfill their purported objectives, my core claim is not that collateral sanctions are necessarily bad policy – but instead that our confusion over their character and purpose actually keeps us from knowing how to judge them in the first place.I begin with a detailed account of current U.S. collateral-consequence policies. The second section explains the ambiguity surrounding collateral consequences’ blend of regulatory and punitive elements, and shows that collateral sanctions do not fit comfortably into any of the frameworks by which we understand criminal justice or regulatory policies. I close the chapter by arguing that collateral consequences represent a new manifestation of a virulent exclusionary tradition in American citizenship law.