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  • CR01CH09-Kirk ARI 11 December 2017 17:0

    Annual Review of Criminology

    Collateral Consequences of Punishment: A Critical Review and Path Forward David S. Kirk1 and Sara Wakefield2 1Department of Sociology and Nuffield College, University of Oxford, Oxford OX1 1NF, United Kingdom; email: david.kirk@sociology.ox.ac.uk 2School of Criminal Justice, Rutgers University, Newark, New Jersey 07102, USA

    Annu. Rev. Criminol. 2018. 1:171–94

    First published as a Review in Advance on October 4, 2017

    The Annual Review of Criminology is online at criminol.annualreviews.org

    https://doi.org/10.1146/annurev-criminol- 032317-092045

    Copyright c© 2018 by Annual Reviews. All rights reserved

    Keywords

    incarceration, conviction, crime, punishment, crimmigration

    Abstract

    The unprecedented growth of the penal system in the United States has motivated an expansive volume of research on the collateral consequences of punishment. In this review, we take stock of what is known about these collateral consequences, particularly in the domains of health, employment, housing, debt, civic involvement, families, and communities. Yet the full reckoning of the formal and informal consequences of mass incarceration and the tough-on-crime era is hindered by a set of thorny challenges that are both methodological and theoretical in nature. We examine these en- during challenges, which include (a) the importance of minimizing selection bias, (b) consideration of treatment heterogeneity, and (c) identification of causal mechanisms underlying collateral consequences. We conclude the re- view with a focused discussion on promising directions for future research, including insights into data infrastructure, opportunities for policy tests, and suggestions for expanding the field of inquiry.

    171

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    ANNUAL REVIEWS Further

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    https://doi.org/10.1146/annurev-criminol-032317-092045 https://doi.org/10.1146/annurev-criminol-032317-092045 http://annualreviews.org/doi/full/10.1146/annurev-criminol-032317-092045

  • CR01CH09-Kirk ARI 11 December 2017 17:0

    INTRODUCTION

    The unprecedented growth of the penal system in the United States, largely unanticipated by many twentieth-century criminologists and social scientists, led to a wave of research on the con- sequences of contact with the criminal justice system. Research directed at these so-called collateral consequences (a debated term) has focused primarily on incarceration, although studies also ad- dress other forms of contact such as arrest, misdemeanor conviction, and community supervision. Annual Reviews collectively published several pieces on this fast-growing literature that examine the effects of contact with the criminal justice system on social life, health, families, communities, and inequality (Comfort 2007, Massoglia & Pridemore 2015, Morenoff & Harding 2014, Phelps 2016, Rios et al. 2017, Wakefield & Uggen 2010, Wildeman & Muller 2012). Similarly, a recent landmark report from the National Research Council (NRC) (2014) and several other review articles and books provide considerable insight into the consequences of mass incarceration and criminal conviction in the United States.

    In this review, we take stock of what is known about the collateral consequences of contact with the criminal justice system; however, recognizing the existence of other authoritative reviews, we elect to review this voluminous literature somewhat more briefly. Instead, our commentary sacrifices detail in terms of extant research to highlight points of departure, uncertainty, and debate that, in our view, present significant challenges to providing a full accounting of collateral consequences. We first review the social facts about correctional populations and the convicted in the United States, noting areas of fruitful future investigation. We then briefly describe what is known about the average effect of contact with the criminal justice system. With these findings in mind, we next detail enduring challenges to the collateral consequences literature, including (a) the importance of minimizing selection bias in studies of the effects of conviction and incarceration, (b) consideration of treatment heterogeneity in collateral consequences, and (c) the importance of identifying causal mechanisms, particularly given the dearth of contemporary research about the inner workings of prisons. We conclude the review with a focused discussion on promising directions for future research, including the necessity of better data infrastructure, opportunities for policy tests, and suggestions for expanding the field of inquiry, using the collateral consequences of punitive anti-immigration practices as a salient example.1

    Before proceeding, it is important to briefly touch on definitional issues. The American Bar As- sociation (ABA) defines “collateral consequences of conviction” as “legal and regulatory sanctions and restrictions that limit or prohibit people with criminal records from accessing employment, occupational licensing, housing, voting, education, and other opportunities” (Am. Bar Assoc. 2013, p. 1). Such consequences are distinguished from prison terms, probation, fines, and fees imposed directly by the court. However, we find the ABA’s definition of collateral consequences too narrow, in that the consequences of punishment extend well beyond the convicted individual to families and communities. Hence, in our view, the range of consequences that we should consider collateral include not only (a) the (formal) legal and regulatory sanctions that the convicted bear beyond the sentence imposed by a criminal court but also (b) the (informal) impacts of criminal justice contact on families, communities, and democracy.

    We have a further definitional concern with the metaphor of collateral consequences, specifi- cally with the notion of collateral. The Oxford English Dictionary defines the adjective collateral as “additional but subordinate; secondary” while also noting that collateral is a euphemism for

    1It is beyond the scope of our article to review work on the root causes of mass incarceration and the tough-on-crime era that led to the explosion of collateral consequences, yet the causes are examined extensively in many other works (Alexander 2010, Garland 2001a, Gottschalk 2015, NRC 2014, Pfaff 2017, Phelps 2017, Simon 2007, Wacquant 2009).

    172 Kirk ·Wakefield

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  • CR01CH09-Kirk ARI 11 December 2017 17:0

    an inadvertent act. Quite arguably, the types of consequences discussed in the collateral conse- quences literature in criminology are often not subordinate or secondary in their effects. Take, for instance, the collateral consequences of an arrest or conviction for an undocumented immigrant. As the Supreme Court opined in Padilla v. Kentucky (2010, p. 6), “deportation is an integral part—indeed, sometimes the most important part—of the penalty that may be imposed on non- citizen defendants who plead guilty to specified crimes.” Moreover, the tough-on-crime rhetoric of yesteryear and its post-Obama renewal would seem to make so-called collateral punishments far from inadvertent. In this article, we use the word collateral because it has become accepted phras- ing (or at least understood phrasing) among criminologists, scholars of punishment, and reform advocates. However, we do not think many of the consequences described here are subordinate or secondary, and we certainly think it is a worthy debate to consider the intentionality of the policies and practices that have led to these consequences.

    DESCRIBING CRIMINAL JUSTICE SYSTEM(S)

    The growth of the US criminal justice system and attendant collateral consequences of contact are most often appreciated with respect to the size of the imprisoned population. The imprisonment rate in the United States ballooned from a relatively stable 105 prisoners per 100,000 from 1925 to 1976 to a peak of 506 per 100,000 in 2007 (Univ. Albany 2017). Such high rates of imprisonment are exceptional in both historical and comparative senses (Garland 2001b); the United States incarcerates a much larger share of its population than almost every other country worldwide and far more than other Western societies (Walmsley 2016).2

    At the present time, approximately 1 in every 37 US adults—almost 7 million individuals—is in prison, jail, or under some form of community supervision by a probation or parole officer (Kaebel & Gl