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Hi, I’m Barry Lam, Associate Professor of Philosophy at Vassar College,
and the producer of Hi-Phi Nation,
a show about philosophy that turns stories into ideas.
In this video, we’ll be discussing how offenders
should be treated after serving their prison sentence.
Shortly after high school,
Omar found himself serving a five-year sentence for felony assault.
When released, he began taking classes,
with the goal of turning his life around and becoming a social worker.
Then the problems began.
To help his struggling mom with rent, Omar applied for jobs,
but none would hire him because of his record.
Dejected, Omar focused on schoolwork.
But when he later discovered he was disqualified from college financial aid,
the obstacles to a social work career seemed overwhelming, and he started giving up.
Millions of people with felony criminal records are denied benefits
-- benefits like public housing assistance, federal student loans,
and the licensing needed to become a barber, park ranger, or teacher.
For some crimes, offenders have their driving privileges suspended.
They might be prohibited from entering certain kinds of businesses, like bars,
or from living within three miles of parks or schools.
In many states, felony offenders are prevented from voting.
And then there are many informal ways people hold offenders’ records against them,
like not wanting to work with or live around them.
These are all called collateral consequences,
and for many they’re even worse than prison.
Are such consequences morally justifiable?
One reason to worry about these consequences is that they seem
to turn people with criminal records into second-class citizens.
Similar to what happens in a caste system,
they are forever branded with an inferior status within society.
A caste system is a societal arrangement according to which
not everyone is equal socially or politically in a society,
particular ethnic or racial groups aren’t treated the same way as others
-- like in apartheid.
We might reject the hierarchy created by the collateral consequences
of incarceration for the same reasons we reject apartheid.
But many argue that what’s objectionable about caste systems
is that they tie a person’s hierarchical position to traits outside their control,
like race and heritage, which are irrelevant to questions of moral worth.
By contrast, those who face collateral consequences
only do so because of their choice to commit crimes.
These people made themselves less morally worthy than others who made better choices,
so they are treated as second-class citizens because they’ve made themselves so.
Some philosophers claim that culpable wrongdoing makes you liable to harm,
meaning that others are justified in subjecting
you to harms that normally would be immoral.
This is a common justification for second-class
status in many places outside of criminal justice.
Many have the intuition that individuals who are culpable of wrongdoing
should be given lower priority for organ transplants than those who aren’t.
Or think about war, where many believe that if you were forced
to decide between two civilian targets,
it’s morally better to choose one populated by
culpable wrongdoers than the morally innocent.
When it comes to criminal justice, then,
many are comfortable with offenders being subjected to collateral
consequences because they see offenders as liable to such harms.
In fact, it’s often thought that wrongdoers deserve to be harmed for what they’ve done.
For retributivists, that’s the whole point of criminal punishment:
giving people the punishment they deserve.
Can Omar and others be liable
to collateral consequences as a matter of retributive justice?
Possibly.
A retributivist can argue that a prison sentence in many cases isn’t enough
-- they may argue that proportionate punishment for some crimes
include permanent moral second class status.
Many retributivists already think there are crimes that deserve permanent punishment
-- particularly crimes, like muder,
that have lifelong impacts on victims and societies.
So lifelong prison terms or even the death penalty are deserved.
But even if this argument can be used to justify permanent consequences for some,
it can’t justify why offenders like Omar
are currently relegated to this second class status.
It’s a tenet of retributivism that once someone is given a punishment
proportionate to their crime, they recover full moral standing,
making it unjust to punish them any further.
While some crimes have permanent effects on their victims, many do not.
After a temporary punishment, the debt to society is fully repaid,
and the offender should once again have the same rights
and responsibilities as every other citizen, both formally and informally.
But some who defend collateral consequences aren’t saying that released offenders,
like Omar, deserve permanent second class status.
Rather, they claim, Omar is liable to collateral consequences
the same way he’s liable to being given lower priority for an organ transplant:
his immoral action can be treated as a tie-breaking
reason for the system to favor others over him.
Consider how Omar’s efforts to find a job ended in rejection.
The employer was presented with two candidates who seemed equally capable
of doing the job well, but one had a felony record, and one didn’t.
In what way can we blame the employer for breaking the
tie in favor of the person who didn’t have the record?
The way she sees it, it wouldn't be fair to expect her to break the tie the other way,
and deny the job to a law-abiding citizen to risk helping someone with a record.
According to this perspective,
it’s unfortunate Omar was left with extra difficulties
as he tried to reintegrate,
but the burden had to fall somewhere, so shouldn’t it fall on him?
After all, he committed the crime, creating this dilemma.
This argument might be persuasive, but it’s important to recognize
that collateral consequences burdens society with significant costs.
They are barriers to successful reintegration
and a leading cause of social problems,
like homelessness, recidivism, and untreated mental health disorders
-- problems that affect not only the offenders themselves,
but also their families and communities.
Omar’s inability to get a job or aid meant he couldn’t help his
mom make ends meet or afford to pursue a social work degree.
His growing depression and despair led him to give up on his new path
and, ultimately, rely again on criminal activity to support himself.
As a result, his community may not only have done further harm to Omar
-- it may also have inadvertently created
conditions that direct even more harm on itself.
The need to create a more just society overall is in tension with the idea
that those who are culpable for wrongdoing
are liable to special harms and lower moral status.
What do you think?
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