Collateral consequences of criminal records from the other side of the pond: How exceptional is American penal exceptionalism?

Abstract

In this article, we highlight the existence and expansion of so-called ‘collateral consequences’ (CCs) of criminal records in Europe to challenge the prevalent view that these are features of the claimed ‘American exceptionalism’ within the penal field. First, we consider how CCs have been widely presented as a quintessential example of American penal exceptionalism within extant scholarship before problematising the adoption of such a framework from a European perspective. Second, we demystify the issue of CCs within Europe by highlighting the deleterious effects which CCs have on the lives of European people with a criminal record. Third, we consider precisely what can be regarded as ‘exceptional’ about CCs in the United States as compared to Europe by analysing key areas of possible differentiation. We conclude by cautioning against the view that European penality is necessarily – and always homogeneously and consistently – ‘progressive’ in relation to its treatment of criminal records and criminal record subjects. We also suggest that far greater attention and vigilance is required from criminologists and criminal justice scholars regarding the expansion and operation of CCs in Europe.

Collateral Consequences and Criminal Justice Reform: Successes and Challenges

“…This approximated the concept in European criminal codes by which "additional" or "ancillary" disqualifications associated with a conviction were explicitly incorporated into the criminal law (Corda 2016). The aim was to prevent the proliferation of collateral sanctions, restrictions, and disqualifications outside the criminal law by closely tying them to principles of proportionality and legality in punishment, this way extending constitutional guarantees to these penalties (Corda 2018b; but see Corda, Rovira, and Henley 2023). more custody time or a longer probation period than would otherwise be sought absent the collateral consequences" (Choi 2019, p. 4).…”

Criminal records and employment restrictions in Argentina: Between post-sentence discrimination and resistance strategies

“…Herzog-Evans, 2011). However, recent years have witnessed a tendency to partly moderate the adverse effects and indefinite disclosure of criminal records in the United States (Flake, 2018;Selbin et al, 2018), while, conversely, collateral consequences of criminal records have increased in number and impact in the European context (Corda et al, 2023). Due to the lack of research in other contexts, it has been assumed that this was a global phenomenon.…”

Privacy, promotionalism and the proliferation of state-performed criminal record screening in the Netherlands: How a restrictive legal framework can still result in a steep increase of criminal background checks

“…From a comparative perspective, it is fair to say that since 2004, the Netherlands has tightly embraced the logics of risk that have permeated administrative agencies responsible for crime prevention outside the criminal justice system (Boone, 2012b; Boone and Van Swaaningen, 2013; Maurutto and Hannah-Moffat, 2006). Justis, the administrative screening agency, acts as the main provider, manager and screener of the criminal history information for employment purposes − something unheard of in other European countries where more standard forms of disclosure apply by which employers can get (direct or indirect) access to formal criminal record information (Corda et al, This issue). The United States has also witnessed a resurgence of risk assessment tools from the late 1970s onwards, as part of ‘get tough’ crime prevention strategies, yet these are limited to formal criminal justice operations − from policing and bail to sentencing and parole decisions (Simon, 2005).…”

“…This information ‘activates’ over 40,000 collateral consequences at the federal, state and local levels (Corda and Kaspar, 2022; NICCC, 2023). In European countries, on the contrary, collateral consequences attached to having a criminal record are still considered to be limited in their scope, severity, frequency and discriminatory impact (but see Corda et al, This issue; Larrauri and Rovira, 2019).…”