Hidden Sentences and the Production of Inequality by Joshua Kaiser
Howard Law Journal, 2016
Despite their key role in the penal system, collateral consequences have been routinely relegated... more Despite their key role in the penal system, collateral consequences have been routinely relegated in importance by courts. This paper outlines the two areas of decisional law that serve to exempt collateral consequences from constitutional protection. Firstly, courts have ruled they are not “punishment,” according to double jeopardy, ex post facto, bills of attainder, and Eighth Amendment jurisprudence. Secondly, they have created the so-called “collateral-consequences rule”: that attorneys and judges need only inform defendants of the “direct” consequences of pleas and convictions, according to due process and Sixth Amendment jurisprudence. In outlining these doctrines, this article argues that both lines of decisions rest on shaky foundations and tautological assumptions, and that recent court opinions—especially the Supreme Court opinion, Padilla v. Kentucky—show that change is imminent. The paper then discusses what such doctrinal change might look like and how practitioners can adapt to the new realities of this field.
Harvard Law & Policy Review, 2016
Americans think we know an awful lot about our penal system. Yet, policymakers, jurists, academi... more 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.
The Hidden Sentence and the Hierarchy of Knowledge in the Age of Mass Incarceration
Paper in progress. Draft available upon request.
"Scholarship on the imprisonment binge has engaged in a binge of its own, writing furiously on ma... more "Scholarship on the imprisonment binge has engaged in a binge of its own, writing furiously on mass incarceration to the detriment of overlooking less visible forms of punishment. Penology has thus become organized in a hierarchy of knowledge, leaving an assumption that epistemologically marginalized penal practices simply mirror the trends in imprisonment. Closer investigation of non-carceral punishments reveals inconsistencies in the dominant, mass incarceration discourse, especially when considering those penal forms that occupy the bottom of the hierarchy of knowledge: the hidden sentence.
The hidden sentence is all punishment imposed by law as a direct result of criminal status, but not as part of any “official,” judicially enunciated sentence. It consists of both “offenders’ rights” and the so-called “collateral consequences of criminal convictions,” making it the deepest, longest, and most prevalent form of punishment in the U.S. system. Most importantly, reconceptualizing both sets of practices as the hidden sentence problematizes their academic and political opacity. The hidden sentence is neither collateral nor merely consequential; it is primary, purposive punishment—but it is hidden.
Hiddenness is the feature for which the story of mass incarceration cannot account. The imprisonment binge is supposedly explained entirely as expressive retribution and fear-driven incapacitation—but thoughtlessly instituted punishments without any apparent purpose do not fit that depiction. This paper argues therefore that an in-depth, historical investigation of the hidden sentence is sorely needed, and it concludes by theoretically outlining a plausible, illegitimate function of the modern penal system: the reproduction of assumed difference."
Law & Social Inquiry, 2018
This article investigates the involvement of the penal state in the lives of criminalized people ... more This article investigates the involvement of the penal state in the lives of criminalized people as a controlling force that takes multiple forms. We offer the concept of modalities of penal control and identify three such modalities in addition to expressive punishment: interventionist penal control is accomplished in extralegal ways; covert penal control is hidden from public view; and negligent penal control is characterized by the absence of action by state actors. This article illustrates empirical cases of each modality, using data from three distinct projects based in Chicago, southern Wisconsin, and nationwide. The data include observations of post-prison groups and homes, interviews with criminalized people and nongovernmental organizational (NGO) staff, statutes, and regulations. This expanded understanding of penal state involvement extends beyond the understanding that characterizes discussions of mass incarceration and highlights the need for comprehensive reform.
Violence, Race, and Legal Cynicism in the Iraq War by Joshua Kaiser
" COIN, " the counter-terrorism doctrine the U.S. used during the Iraq War, was in criminological... more " COIN, " the counter-terrorism doctrine the U.S. used during the Iraq War, was in criminological terms overly reliant on militarized "incapacitationist " strategies. Based on a competing " societal reactions " or community-level labeling theory, we argue that COIN failed to anticipate but predictably produced state-based " legal cynicism " in Arab Sunni communities—increasing rather than decreasing politically defiant terrorist crimes. We test our hypotheses with nationally representative surveys and data on terrorist attacks collected before, during, and immediately after the 2007 Surge in U.S. troops. The Surge increased perceptions of unnecessary U.S.-led violence against Arab Sunni non-combatants, provoking cynical beliefs in Arab Sunni communities, creating local contexts in which terrorist attacks increased, and foreshadowing later advances by the Islamic State. Our findings show that oversimplified, incapacitation-oriented control tactics—in domestic policing, in COIN, or in the traditional warfare strategies that are replacing COIN—are likely to contribute to rather than reduce cycles of violence.
European Journal of Criminology, Sep 1, 2012
Economic conflict crimes are defined in this paper as violations of international human rights an... more Economic conflict crimes are defined in this paper as violations of international human rights and humanitarian law, as well as domestic law, associated with military and political conflict and producing significant monetary as well as other forms of suffering for civilians. Criminologists are well positioned by disciplinary emphasis to document and explain military and political violence resulting in economic conflict crimes. Criminal victimization associated with the US-led invasion of Iraq imposed an enormous toll on civilians. Yet there is little attention by criminologists or others to the profound economic costs to Iraqis, whether through lost property, life, or opportunities. We cautiously estimate that the economic losses for households in the city of Baghdad alone were almost US$100 billion, and more than three times this amount for the entire country, with Sunni groups experiencing significantly greater losses than others. So far as we know, our article presents the first estimates of civilian losses from economic conflict crimes that followed the US-led invasion of Iraq. These losses were widespread and systematic, the hallmarks of crimes against humanity.
International Security, Apr 1, 2013
Stephen Biddle, Jeffrey Friedman, and Jacob Shapiro caution that “[t]he decline of violence in Ir... more Stephen Biddle, Jeffrey Friedman, and Jacob Shapiro caution that “[t]he decline of violence in Iraq in 2007 does not mean that the war was necessarily a success.” Their implication, however, is that the war was not necessarily a failure either. Biddle et al. write that the 2007 drop in violence from 2006 was a “remarkable reversal.” They ask, “What caused this turnaround?” Their answer is that the United States devised a strategy that stopped the violence in Iraq with a “synergistic” combination of the U.S. troop surge and the U.S. subsidized Sunni Awakening that “stood up” the Sons of Iraq (SOI).
We argue first that the Biddle et al. synergy thesis and the evidence the authors present in its support overestimate the SOI role in violence reduction. Secondly, we argue that they underestimate the significance of the decision by Shiite leader Muqtada al-Sadr to limit the Mahdi Army's criminality by declaring a unilateral cease-fire. Furthermore, al-Sadr’s political calculations of the increasing costs to his Sadrist movement of the Mahdi Army’s spiraling violence in 2007 may have motivated this unanticipated cease-fire. Thus, our third argument is that the cease-fire played a major role alongside the surge in reducing the violence and increasing al-Sadr’s political influence in the governance of Iraq.
Sociological Forum, 2015
"We use two unique Iraq datasets to show how fear and uncertainty served to prefigure and motivat... more "We use two unique Iraq datasets to show how fear and uncertainty served to prefigure and motivate the self-fulfilling, neighborhood-specific forces that followed the US led invasion of Iraq. Sectarian criminal violence by armed Shia and Sunni organizations created a situation of ethnic/religious cleansing that reconfigured much of Baghdad. The paper focuses on the case of how one particularly violent group, the Mahdi Army, mobilized through the coercive entrepreneurship of Muqtada al-Sadr, used organized crime tactics of killing, torture, rape, kidnapping, harassment, threats, and forced displacement in a widespread and systematic attack against civilians that forced Sunni residents from their Baghdad neighborhoods. Ordinary Iraqis were victims of an amplified “self-fulfilling prophecy of fear” that created the momentum for massive sectarian displacement in the battle for Baghdad. We demonstrate that there is a neighborhood specific effect of early post-invasion neighborhood fear net of intervening violence on displacement three years later, following the Al Qaeda Samara Shrine attack, confirming an effect of a self-fulfilling prophecy of fear in the neighborhoods of Baghdad that compounded in a self-reinforcing way. The neighborhood measurement of this effect of fear in a dataset separate from the neighborhood measurement of displacement three years later is a demanding test of the self-fulfilling effect of neighborhood specific sectarian fear in Baghdad. The Mahdi Army changed the neighborhood demography of Baghdad and helped leverage al-Sadr and his movement into Iraq politics and governance, serving to extend a particular vision of Shia influence in the remaking of the Iraq state. The changed demography of Baghdad was effectively consolidated by the later Surge of U.S. forces that left in place the territorial gains made by the Shia led Mahdi Army at the expense of former Sunni residents. We conclude that this continues to matter because the resulting grievances have contributed to renewed violence and a resurgent Sunni insurgency in Iraq."
Neue Kriminologische Schriftenreihe, Jan 1, 2015
In response to the 2006 peak in violence following the U.S. invasion and occupation of Iraq, Amer... more In response to the 2006 peak in violence following the U.S. invasion and occupation of Iraq, American politicians debated whether to Surge additional troops or partition the nation into sectarian enclaves. There is little social scientific work that locates the Iraq conflict and the results of these debates in relation to broader theoretical frameworks or nationally representative data that can illuminate how Iraqis experienced the violence that swept through their communities. The Surge and partition strategies drew from an ethnic war theory that postulated deeply entrenched and unchanging sectarian divisions, while we propose that an endogenous conflict theory better explains how the troop Surge that was ultimately implemented helped consolidate and perpetuate an unequal and unstable “separate peace” that preceded a renewal of violence. We analyze multi-level, nationally representative survey data collected in Iraq from the peak in violence in 2007 through the transitory peace of 2009. Sunni communities reported more unnecessary attacks on civilians by U.S./Coalition troops during the Surge, while Shia communities reported lower levels of war violence and higher levels of perceived security. In striking contrast with ethnic war theory expectations, the few Sunni living in predominately Shia communities in 2008-9 perceived greater security than the far more numerous Sunni living in predominately Sunni communities. Iraqi Prime Minister Maliki gained support through 2009 from the few Sunni as well as growing numbers of Shia living in the increasing number of predominately Shia communities. It was the Shia who gained the most and felt most secure during and after the Surge of U.S. forces, while the Sunni who lived overwhelmingly in predominately Sunni communities benefited less and felt less secure. This unequal and unstable “separate peace” was the context in which violence returned to Iraq in 2013.
American Sociological Review, Oct 23, 2016
We elaborate a cultural framing theory of legal cynicism—previously used to account for neighborh... more We elaborate a cultural framing theory of legal cynicism—previously used to account for neighborhood variation in Chicago homicides—to explain Arab Sunni victimization and insurgent attacks during the U.S. post-invasion occupation of Iraq. Legal cynicism theory has an unrecognized power to explain collective and interpersonal violence in international as well as U.S. settings. We expand on how “double and linked” roles of state and non-state actors can be used to analyze violence against Arab Sunni civilians. Arab Sunnis responded to reports of unnecessary violent attacks by U.S./Coalition soldiers with a legally cynical framing of the U.S./Coalition-led invasion and occupation, the new Shia-dominated Iraqi state, and its military and police. A post-invasion frame amplification of beliefs about statebased illegitimacy, unresponsiveness, and insecurity made it not only possible but predictable that Arab Sunni insurgent attacks would continue against U.S./Coalition forces and transfer to Shia-dominated Iraqi government forces. Violence in Iraq persisted despite U.S. surge efforts to end the Arab Sunni insurgency.
Iraq and the Crimes of Aggressive War: The Legal Cynicism of Criminal Militarism
Cambridge University Press, 2015
From the torture of detainees at Abu Ghraib to unnecessary military attacks on civilians, this bo... more From the torture of detainees at Abu Ghraib to unnecessary military attacks on civilians, this book is an account of the violations of international criminal law committed during the United States invasion of Iraq. Taking stock of the entire war, it uniquely documents the overestimation of the successes and underestimation of the failings of the Surge and Awakening policies. The authors show how an initial cynical framing of the American war led to the creation of a new Shia-dominated Iraq state, which in turn provoked powerful feelings of legal cynicism among Iraqis, especially the Sunni. The predictable result was a resilient Sunni insurgency that re-emerged in the violent aftermath of the 2011 withdrawal. Examining more than a decade of evidence, this book makes a powerful case that the American war in Iraq constituted a criminal war of aggression.
Genocide as Intersectional, Social Destruction by Joshua Kaiser
Law & Society Review, Mar 1, 2015
Accounts of mass atrocities habitually focus on one kind of violence and its archetypal victim, i... more Accounts of mass atrocities habitually focus on one kind of violence and its archetypal victim, inviting uncritical, ungendered misconceptions: e.g., rape only impacts women; genocide is only about dead, battle-aged men. We approach collective violence as multiple, intersecting forms of victimization, targeted and experienced through differential social identities, and translated throughout communities. Through mixed-method analyses of Darfuri refugees' testimonies, we show (a) gendered causes and collective effects of selective killing, sexual violence, and anti-livelihood crimes, (b) how they cause displacement, (c) that they can be genocidal and empirically distinct from non-genocidal forms, (d) how the process of genocidal social destruction can work, and (e) how it does work in Darfur. Darfuris are victimized through gender roles, yielding a gendered meaning-making process that communicates socially destructive messages through crimes that selectively target other genders. The collective result is displacement and destruction of Darfuris' ways of life: genocide.
British Journal of Sociology, Jan 1, 2011
The millions of survivors who fled from attacks to Sudanese-controlled displacement camps and the... more The millions of survivors who fled from attacks to Sudanese-controlled displacement camps and the refugee camps in Chad are the living ghosts of the Darfur genocide. The 1948 Genocide Convention incorporates extermination by mass killing and elimination through forced migration as two distinct elements of genocide. Genocide scholars and public discourse emphasize extermination by killing, but they give far less explanatory attention to the elimination processes that the Genocide Convention describes as 'deliberately inflicting on the group conditions of life calculated to bring about its physical destruction'. (Article II United Nations 1948.) In Darfur, understanding the latter processes requires theoretical attention to the history of food, water, and famine and detailed methodological attention to temporal processes of displacement. We demonstrate how intentional state-led attacks on food and water massively dislodged Black Africans in Darfur from February 2003 to August 2004. The political leadership of the Sudanese state dehumanized and forcibly displaced Black Africans from their homes in Darfur to camps where they largely remain, not only through mass killings and rapes, but also by destroying life-sustaining access to food and water, leading to the genocidal elimination of group life in this region.
British Journal of Sociology, Jan 1, 2011
The focus of the 1948 Genocide Convention on the destruction of groups, in part, encourages consi... more The focus of the 1948 Genocide Convention on the destruction of groups, in part, encourages consideration of extermination through mass killing and elimination through forced migration and displacement.Yet genocide scholars and the public have given much more attention to extermination than elimination.We seek to remedy this imbalance by giving further attention to the intentional Sudanese state-led attacks on food and water that massively dislodged Black Africans with racially targeted assaults on their homes and villages in Darfur from February 2003 to August 2004. This forced displacement is an important aspect of continuing genocide in Darfur. Much of the response to our paper is concerned with the definition of genocide and with the wisdom of applying this definition of Genocide in Darfur.
Race and Jury Selection by Joshua Kaiser
Howard Law Journal, 2016
A “backstrike” is a peremptory challenge used to strike a prospective juror after the juror has b... more A “backstrike” is a peremptory challenge used to strike a prospective juror after the juror has been accepted onto the jury panel but before the panel has been sworn. Thus, backstrikes permit an attorney to tentatively accept a juror by declining to exercise a peremptory challenge, but then revisit that decision after additional potential jurors are questioned. The data we analyze for this article provide the first systematic evidence on the role played by backstrikes. Our results show that use of backstrikes is common in Caddo Parrish, Louisiana, occurring in 40 percent of the 332 cases we studied. Moreover, controlling for other characteristics, prosecutors had overall between three and five times the odds of using a backstrike on a black prospective juror as on a non-black prospective juror. Depending on the type of case and the race of the defendant, the odds of prosecutorial backstrikes against black prospective jurors could be as high as almost nine times that of non-black ones. Prosecutors were also more likely than defense attorneys to exercise backstrikes. This analysis reveals the nefarious implications of backstrikes for race-neutral jury selection.
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Hidden Sentences and the Production of Inequality by Joshua Kaiser
The hidden sentence is all punishment imposed by law as a direct result of criminal status, but not as part of any “official,” judicially enunciated sentence. It consists of both “offenders’ rights” and the so-called “collateral consequences of criminal convictions,” making it the deepest, longest, and most prevalent form of punishment in the U.S. system. Most importantly, reconceptualizing both sets of practices as the hidden sentence problematizes their academic and political opacity. The hidden sentence is neither collateral nor merely consequential; it is primary, purposive punishment—but it is hidden.
Hiddenness is the feature for which the story of mass incarceration cannot account. The imprisonment binge is supposedly explained entirely as expressive retribution and fear-driven incapacitation—but thoughtlessly instituted punishments without any apparent purpose do not fit that depiction. This paper argues therefore that an in-depth, historical investigation of the hidden sentence is sorely needed, and it concludes by theoretically outlining a plausible, illegitimate function of the modern penal system: the reproduction of assumed difference."
Violence, Race, and Legal Cynicism in the Iraq War by Joshua Kaiser
We argue first that the Biddle et al. synergy thesis and the evidence the authors present in its support overestimate the SOI role in violence reduction. Secondly, we argue that they underestimate the significance of the decision by Shiite leader Muqtada al-Sadr to limit the Mahdi Army's criminality by declaring a unilateral cease-fire. Furthermore, al-Sadr’s political calculations of the increasing costs to his Sadrist movement of the Mahdi Army’s spiraling violence in 2007 may have motivated this unanticipated cease-fire. Thus, our third argument is that the cease-fire played a major role alongside the surge in reducing the violence and increasing al-Sadr’s political influence in the governance of Iraq.
Genocide as Intersectional, Social Destruction by Joshua Kaiser
Race and Jury Selection by Joshua Kaiser
The hidden sentence is all punishment imposed by law as a direct result of criminal status, but not as part of any “official,” judicially enunciated sentence. It consists of both “offenders’ rights” and the so-called “collateral consequences of criminal convictions,” making it the deepest, longest, and most prevalent form of punishment in the U.S. system. Most importantly, reconceptualizing both sets of practices as the hidden sentence problematizes their academic and political opacity. The hidden sentence is neither collateral nor merely consequential; it is primary, purposive punishment—but it is hidden.
Hiddenness is the feature for which the story of mass incarceration cannot account. The imprisonment binge is supposedly explained entirely as expressive retribution and fear-driven incapacitation—but thoughtlessly instituted punishments without any apparent purpose do not fit that depiction. This paper argues therefore that an in-depth, historical investigation of the hidden sentence is sorely needed, and it concludes by theoretically outlining a plausible, illegitimate function of the modern penal system: the reproduction of assumed difference."
We argue first that the Biddle et al. synergy thesis and the evidence the authors present in its support overestimate the SOI role in violence reduction. Secondly, we argue that they underestimate the significance of the decision by Shiite leader Muqtada al-Sadr to limit the Mahdi Army's criminality by declaring a unilateral cease-fire. Furthermore, al-Sadr’s political calculations of the increasing costs to his Sadrist movement of the Mahdi Army’s spiraling violence in 2007 may have motivated this unanticipated cease-fire. Thus, our third argument is that the cease-fire played a major role alongside the surge in reducing the violence and increasing al-Sadr’s political influence in the governance of Iraq.