Collateral Legal Consequences and the Power to Punish

Abstract

Collateral legal consequences attached to criminal convictions (CLCs) are often criticised because they expose criminal offenders to various forms of harmful and/or wrongful treatment. In this article, we argue that CLCs are problematic because they undermine the power to punish, a distinct normative power that allows the relevant powerholders to directly change the offender's normative situation. The article identifies important features of the power to punish construed as the normative ability that judges should hold in liberal polities. In particular, we examine how CLCs undermine two of the features – viz., robustness and attributability – that are central to the non-deficient functioning of the normative power to punish. Acknowledging the implausibility of a forthcoming demise of CLCs, we conclude with an outline of non-ideal proposals that would marginally mitigate the unwarranted effects that CLCs have on the exercise of the normative power to punish.