“Divergent moral vision” — Collateral consequences in Europe and the U.S.

A new article in the Stanford Law Review discusses the radically different forms of punishment in the United States and Europe, which its author attributes at least in part to differing moral visions of wrongdoing and wrongdoers.  In Two Cultures of Punishment, Joshua Kleinfeld argues that while Americans tend to regard serious offenders as “morally deformed people rather than ordinary people who have committed crimes,” European cultures “affirm even the worst offenders’ claims to social membership and rights.”

Kleinfeld illustrates this “divergent moral vision” by the very different approach European countries take to collateral consequences. (The other two areas discussed in the article are lengthy prison terms and capital punishment).  Whereas in this country people convicted of crime are subject to a lifetime of legal restrictions and social stigma analogous to older forms of civil death, and are effectively consigned to a kind of “internal exile,” in Europe people who have committed a crime benefit from numerous measures to encourage their reintegration.

. . . . Superficially, there is not much to say: European countries simply do not impose collateral consequences at all in the vast majority of cases and never impose them on anything like the American scale. But at a deeper level, the issue is not just whether Europe imposes some analogue to civil death, but how Europe handles the terms of prisoner reentry. And when that is the question, the answer turns out to be that Europe engages in various measures that amount to the opposite of civil death—measures designed affirmatively to restore offenders to full social membership.

The article illustrates this with specific examples from German, Italian and French law.

Germany is a good example. The German Code of Punishment Practice has a statutory requirement of Angleichungsgrundsatz—“the principle of approximation”—which “holds that prison life must resemble as closely as possible life in the outside world.” . . . . . After release, German criminals have a network of rights meant to promote their integration with and membership in ordinary German society. Perhaps most astonishing from an American perspective is the right to have their criminal file destroyed, fingerprints and all. They also have substantial rights not to have their crimes publicized. . . . . In Germany, there are no sexual offender registries, to say the least.

These practices are echoed in other European jurisdictions. The Italian criminal system aims to give prisoners some modicum of normalcy, with, for example, leaves for up to five days if a family member or spouse is near death and leaves of up to forty-five days per year for good behavior once a sufficient portion of the sentence has been served. Giving prisoners jobs is also seen as a rehabilitative tool in Italy, and prisoners must be paid at least two-thirds of the wages paid to workers outside of the prison.

France, like Germany, has programs designed to encourage offenders to vote. The French penal code provides for “[r]ehabilitation . . . as of right” when an offender sentenced to ten years imprisonment or less does not commit any new offense for a sufficient period of time; the effect of this right is to “erase[] any incapacity or forfeiture resulting from a sentence.”

Twenty-eight European countries allow either all or all but a handful of prisoners to vote. And in terms of prison conditions, where many of America’s prisons are essentially cages rife with gang violence and prison rape—a place to house those whom we hate or do not care about—European jurisdictions generally insist that their prisons be humane, and some actively aim to make prison personally enriching in a way designed to bring out the best in the prisoners.

The article contrasts the “norms of full forgiveness on the European side and what might be called ‘residual criminality’ on the American.”

The released criminal in America is a permanent suspect; that is what it means to have a “record.” The conceptual difference between forgiveness and residual criminality reflects two ways of looking at the imprisoned and then released offender. The criminal pictured in European practices is not a them, but one of us. Such people landed in prison, the thought goes, not because they have a deformed nature but because they did a poor job of managing ordinary life, and the solution is to have them live ordinary life under extra supervision. The criminal is not mismade but just poorly socialized. The criminal pictured in American practices is a person whose crime exposes the truth about his character: he is a criminal, and efforts to change that fact are so likely to fail that they are not worth bothering about in the first place.

I see this conceptual distinction most vividly in my own law practice, where my clients are frequently decades away from a single minor criminal offense but continue to pay a heavy price in social ostracism and second class legal status.  A dated criminal record continues to dog them, barring them from certain professions, from obtaining loans and insurance, from entering into contracts, and even from coaching college sports.  Seen through the lens of reentry, collateral consequences may be justified based on some real or imagined public safety risk.  But there can be no such comforting excuse where the excluded person was sentenced decades ago and may never have spent a day in prison, and who in the intervening years, against all odds, has been a law-abiding and productive citizen.

It is time America reconsidered the dysfunctional and unforgiving moral vision that turns a criminal record into a permanent Mark of Cain.  In some states legislators and governors are taking steps to help people overcome the malign effect of a criminal record, but in many others (including the federal system) there is no evident recognition of the issue beyond a superficial concern with avoiding further crime.  I remain ever hopeful that President Obama, who has commendably drawn the public’s attention to the moral issue of too-long prison sentences, will in his final months also speak to the moral issue of how we treat people who have fully paid their debt to society.

Margaret Love

Former U.S. Pardon Attorney Margaret Love represents applicants for executive clemency in her private practice in Washington, D.C.. An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created and maintains the NACDL Restoration of Rights Resource and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

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