In this ongoing project, I critically analyze the history behind an underrecognized part of the U.S. penal state—“hidden sentences”—to reveal previously unanalyzed ways in which penal policy operates in the U.S. social order. “Hidden sentences” comprise nearly 50,000 laws that constitute punishments (they impose adverse restrictions as a direct result of some criminalizing label) and yet are commonly seen as non-punitive. Examples include restrictions on employment, voting, privacy, or welfare access. Because the criminalizing labels in these policies can target former prisoners or probationers, current ones, or even those arrested but never charged or convicted, they directly apply to about 1 in 3 American adults. Yet scholars, policymakers, criminalized people, and others tend to overlook or think of these policies as “mere” regulations, civil disabilities, or “collateral” consequences” of “real” punishments. I take an alternative approach, treating those framings and assumptions as what makes these penal practices unique: they are state-imposed punishments, but they are hidden. And it is that hiddenness that lets them construct inequality without notice or question.
Drawing on four years of archival research, an analysis of constitutional law, and unique figures on two centuries of punishment and inequality trends, this book argues that hidden sentences have long existed beneath the surface of penal politics and play a key role in how Americans of all stripes think about and experience criminality and law-abidingness. When hidden sentences were first created, they were seemingly benign, standardized ways of measuring bureaucratic qualifications, of classifying good and bad character. They were, however, always steeped in stereotypes of race, class, and nationalism, targeting groups from Communists to African Americans to Muslims. As policymakers began using them routinely at the beginnings of the Civil Rights Movement, hidden sentence laws began segregating based on criminality, creating divisions among citizens based on criminal records in ways that often are not fully recognized—and that predate the rise of mass incarceration. By today, while the dominant discourse focuses on prisons, the hidden penal system now underlies millions of everyday interactions in which ordinary citizens enact and feel the privilege, the belonging of being a “law-abiding citizen” and the sheer alienation of being labeled a “criminal other.”
Related Publications
Beyond Punishment: The Penal State’s Interventionist, Covert, and Negligent Modalities of Control (with Nicole Kaufman and Cesraéa Rumpf)
Joshua Kaiser 