Revealing the Hidden Sentence: How to Add Transparency, Legitimacy, and Purpose to “Collateral” Punishment Policy

By Joshua Kaiser

Americans think we know an awful lot about our penal system. Yet policymakers, jurists, academics, offenders, and the public alike remain largely ignorant of more than 35,000 hidden sentence laws across the nation. “Hidden sentence” refers to any punishment imposed by law as a direct result of criminal status, but not as part of a formally recognized, judge-issued sentence. Thus, both restrictions on prisoners’ rights and “collateral consequences” laws are hidden sentences; so are penalties imposed during pre-trial detention or for having a criminal record. Part I of this article uses the National Inventory of the Collateral Consequences of Conviction alongside information on offenders’ rights litigation to outline a resource for understanding this vast body of law. Part II uses these data to discuss the reality of these laws (a) as holding primary importance for offenders’ lives and the penal system as a whole, (b) as purposively enacted through legislation, administrative rules, or decisional law, and (c) as punishments—deprivations or harms imposed in response to criminal acts. Then, in Part III, this article analyzes the unique part about these punishments—their hiddenness—and the characteristics of this body of law that serve to hide it in varying degrees from public and professional view. Part IV problematizes this hiddenness, arguing it threatens both any purpose of punishment they could serve and their legitimacy according to core American principles. The article concludes in Part V by discussing the most ready means to make hidden sentence law transparent.

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