Alessandro Corda has a new article that compares the treatment of regulatory collateral consequences in the United States and in European legal systems. He argues that the primary difference is that in Europe proportionality is central to punishment schemes, and that sentencing courts must consider the impact of all combined sanctions on the defendant, including collateral consequences, in deciding whether a sentence is proportional to the crime. “Collateral restrictions in the United States, instead, are not taken into account in determining the overall proportionality of the sentence to the seriousness of the offense since they are not considered as punishment.” Criminal courts in the United States rarely consider collateral consequences in imposing a sentence, and for the most part have not regarded them as any of their business.
Corda points out that “Europe never moved completely away from a rehabilitative model of punishment,” and that “the ultimate goal of European penal systems widely remains the reintegration of ex-offenders.” In contrast, “the approach toward collateral restrictions in the United States tends to mirror prevailing criminal justice attitudes oriented primarily toward harsh and prolonged measures of penal control.” Even during a period of “penal climate-change,” when sentencing and corrections policies are being rethought in this country, collateral consequences have been largely left out of the reform picture. He argues that “no reform aimed at moving away from mass incarceration and overreliance on penal control can ultimately succeed if indirect ramifications of ‘being a criminal’ are ignored.”