Beyond Punishment?: A Normative Account Of The Collateral Legal Consequences Of Convictions
Author: Zachary Hoskins
Publisher: Oxford, UK; New York: Oxford University Press, 2019. 264p.
Reviewer: Ambrose Y.K. Lee | March 2020
“Compared with the enormous amount of attention moral and legal philosophers have for centuries devoted to the justification of legal punishment itself… and more recently to questions of justified criminalisation, the permissibility of collateral consequences has received relatively little consideration. I suggest it is time for this to change” (p. 222).
These last few sentences of this book summarise succinctly the aim, significance and force of the book. While significant work has been done in recent years by many sociologists, criminologists, activists, legal scholars and practitioners on the collateral consequences of criminal convictions (examples can be found in the footnotes on p. 6), much less work has been done on the more general philosophical question of whether the imposition of formal legal collateral consequences can be morally justifiable, and if so, under what conditions. As far as I know, this book is to date the most comprehensive and systematic attempt at tackling this philosophical question head on.
It is therefore an ambitious book, but not one that is overly so. The focus is on formal legal collateral consequences (referred to as ‘CLCs’ in the book) that are triggered by convictions or arrests, and not on the informal social ones. Although Hoskins does discuss in relative detail the different broad kinds of CLCs that are currently used in both the US and the UK (sec. 1.3); the aim is not to catalogue all of them and offer a comprehensive evaluation of all, or even some, of them. Rather, the aim is simply to explore and argue for certain values, principles and other moral considerations that bear on the moral justifiability of CLCs. Particular CLCs are then tactfully used as examples to help illustrate how these values, principles and moral considerations can be applied to evaluating CLCs and the extent to which they can be justifiable or unjustifiable in light of those considerations. Philosophically, it adopts what Husak refers to as ‘middle level’ inquiry (p. 17). This is an inquiry that does not approach the question from the ‘ground-up’ by first defending a comprehensive moral or political theory. Rather, it begins with certain values, principles or other moral considerations. It then seeks to show how they are relevant to the justification of CLCs and how they can have a broad appeal in a way that does not also involve defending a more foundational moral or political theory.
Although this book is aimed primarily at philosophers and at addressing a philosophical question, it nevertheless is written with a wider audience in mind. As mentioned before, significant work has been done in recent years by many non-philosophers on CLCs. It is therefore important for a book about the justifiability of CLCs to also speak to and engage with a wider audience who also have an interest in CLCs. Throughout the book, and especially in the first few chapters, Hoskins takes care not to simply assume the importance and relevance of the philosophical questions that he is trying to ask, and the approach that he takes to answer them. Rather, he takes the time and effort to explain them and set them against a wider set of concerns and approaches. Thus, for example, in the first chapter, Hoskins explains how, despite there being significant empirical and legal analyses of CLCs, they are not dispositive to the issue of whether they are justifiable (p.24). He also addresses various scepticisms about the value of the project from the perspective of race, the brute intuition that they must be unjustifiable and suspicions about the efficacy of moral argumentations more generally (pp. 25-29).
The same can also be said for chapter 2, which addresses the questions of what counts as punishment and when a CLC should count as punishment or as a civil measure. Here Hoskins again explains in detail and great clarity what is at stake with answering these conceptual and definitional questions, and why they are important and relevant to the overall project. He also does not simply draw from the standard philosophical literature when developing and defending his own answers to these questions (which I shall explain later on). He also critically discusses and contrasts his own views with those that are found in the wider literature, including those of other legal scholars and of the Court (sec. 2.2 & 2.6).
There is also much to take home here for a seasoned philosopher. One of the main issues that is tackled in the book is whether CLCs may be justifiable as punishments (chapters 3 and 4). One problem here is that there is already a rather well-established philosophical literature on the justification of punishment. This literature is vast and contains some rather intractable debates. One potential risk here is to be drawn into these debates, especially if they are about the justification of punishment more generally and not of CLCs in particular.
Not only does the book manage to avoid being embroiled in such debates, it is also not a mere (re)description and application of what is already said in the literature on the justification of punishment; an approach that is sometimes all too characteristic of the kind of projects that Hoskins is engaged in – i.e. whether this or that measure is justifiable as punishment. Some of the main arguments in the book are rather novel and interesting, and raise certain theoretical issues that I think merit further consideration, not least among philosophers working on the justification of punishment. I shall talk about some of these in the remainder of this review.
One issue tackled in chapter 2 is what counts as punishment. Here Hoskins defends the now rather standard and widely accepted view that punishment is something that is intended to be burdensome and to convey censure for what the wrongdoer has done (pp. 42-51; but see e.g. Wringe chapter 2). However, what is more interesting is how, according Hoskins, we should go about deciding when a legal measure is intended to be burdensome and to convey censure.
The problem here is that if it is only a matter of having the requisite intentions, then there are difficulties with applying this view to legal institutions since they involve many actors who can all have different intentions from each other (see also p. 52). Rather than focusing on mental states of individual actors, Hoskins argues we should instead focus on the functions of or the rationales behind the measures in question. If their burdensomeness is relevant to their fulfilling their functions, then this is a reason to see them as intentionally burdensome; while if the rationales for them are dependent on the blameworthiness of those subjected to them, then this is a reason to see them as intended to convey censure (pp. 53-58). I think these are intriguing suggestions and merit further consideration, not least because they can help to resolve the above-mentioned difficulty. Limited space precludes me from exploring them further; but one problem here is that, as Hoskins admits in footnote 60, the proposed criterion for censure here seems to be in tension with there being punishments for strict liability offences.
Armed with the distinction between punishments and civil measures, Hoskins goes on to address the question of whether CLCs are justifiable, first as punishments in the second part of the book and then as civil measures in the third part. In relation to the former, Hoskins argues that both the traditional rationales for punishment and the principles of cardinal and ordinal proportionality (alone or combined) provide only limited guidance on when a CLC is permissible as a kind of punishment (chapter 3). He then argues for what he refers to as ‘contemptuous punishment’ – punishment that fails to take seriously the prospect of the offender’s reform – and how certain CLCs are unjustifiable as punishments because they are ‘contemptuous’ in that sense (chapter 4). As for the latter, Hoskins argues that civil CLCs are presumptively unjustifiable. This is because punishment should be understood as a debt that offenders owe to their political community, and that their status should therefore be restored once they have undergone their punishments and paid their debt (chapter 5). He then goes on to consider whether various non-instrumental and instrumental considerations can override this presumption, concluding that they are justifiable as civil measures only in an extremely limited range of cases (chapters 6 and 7). Both the discussion here and on the traditional rationales and constraints for punishment is very comprehensive and covers a wide range of views.
I find the idea of ‘contemptuous punishment’ rather novel and appealing. It would be interesting to see what other implications there are if we take seriously this idea and understand punishment as a debt. One issue that I want to highlight here is Hoskin’s argument for why the principles of proportionality can only provide limited guidance. According to him, what an offender, all things considered, deserves includes not just her earned desert that is based on her previous behaviour, but also her unearned desert that is based on her status as a moral person; yet principles of proportionality are solely concerned with the former (sec. 3.5). I agree with Hoskins about the relevance of unearned desert in an all things considered justification for punishment. However, what he refers to as ‘unearned desert’ seems to be more accurately described as a kind of entitlement or inalienable right (see e.g. Miller pp. 133-138). The language used by Hoskins therefore undersells the significance and the real nature of the value conflict that is implied by his position.
The final issue that I want to highlight is in relation to the last chapter of the book, where Hoskins discusses how the forgoing discussion about the justifiability of CLCs is relevant to the more general question about what should or may be criminalised. One interesting implication of Hoskins’ arguments here (which he never states explicitly) is that CLCs are not categorically ruled out just because they are neither permissible as punishments nor as civil measures. This is because according to the two principles of criminalisation that he argues for in section 9.1, we have good reason to criminalise a given conduct, and subject people to impermissible CLCs, if doing so will bring about a greater reduction in foreseeable wrongs or wrongful harms to others than those that it causes (including but not limited to those that result from imposing impermissible CLCs). I suspect that not everyone will be comfortable with allowing such trade-offs; and even for those who are, more needs to be said about when such trade-offs are justifiable. For example, does it only need to bring about a net reduction in foreseeable wrongs or wrongful harms to others, or (more demandingly) does this net reduction need to be greater (maybe even by a significant margin) than the reduction that can be brought about without the use of impermissible CLCs?
Going back to the quote that I began with; true to his own suggestion, I think Hoskin’s book has done an exemplary job at taking a first step to bring in resources from moral, legal and political philosophy to tackle the question of CLC’s justifiability in a systematic and comprehensive way. It is clearly written and well-thought-out. Hoskins advances some rather thoughtful arguments and is also very reflective about his own views and arguments. Furthermore, as I have tried to illustrate in the above, the ideas and arguments advanced in the book have implications and relevance that go beyond the justifiability of CLCs. I therefore recommend this book not only to those who are interested in CLCs and their justifiability (which we in any case should be as the book argues), but also to those who are interested in the other measures that states take in response to crimes and their justifiability more generally.
Bill Wringe, An Expressive Function of Punishment (Palgrave Macmillan 2016). David Miller, Principles of Social Justice (Harvard University Press 1999).
Ambrose Y. K. Lee Lecturer in Legal Theory, School of Law, University of Surrey