Collateral Consequences of Criminal Conviction in the United States and Germany

The chapter focuses on so-called collateral consequences of criminal conviction. Especially in the US, these are usually defined as civil restrictions and disabilities flowing from a conviction burdening individuals during the re-entry process. However, we argue, the term should also encompass those penalties and measures that are additional or ancillary to the main punishment, and yet internal to the criminal law and imposed at the sentencing stage of the criminal process. The chapter maps the rise, development and current state of collateral consequences, focusing in particular on the United States and Germany. We begin with a systematic overview of the two legal traditions considered, outlining the history and reality of collateral consequences and analysing their nature and functions (both stated and latent). After discussing the classification and understanding of collateral sanctions in the Anglo-American and German contexts, we focus on what safeguards exist and are applied (or neglected) in the two legal orders to prevent such penalties from having a disproportionate and cumulative burdensome effect on ex-offenders. We conclude with a discussion of the theoretical rationales offered to justify collateral consequences, putting forward modest reform proposals for a new approach from a criminal justice perspective We argue that, regardless of formal punitive labels, onerous collateral consequences should be (if not abolished) at least integrated as much as possible within the sentencing process, making them transparent and enabling courts to ensure the overall proportionality of the ‘sanctioning package’ arising from a criminal conviction.