Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity

Michael Pinard

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Collateral consequences are the additional legal penalties that attach to criminal convictions. These consequences are often hidden during the criminal process because they are considered to be civil, rather than criminal penalties. In the United States, these penalties include ineligibilty for public benefits, public housing, student loans, and various forms of employment, as well as other forms of civic exclusion, such as ineligibility for jury service and felon disenfranchisement.

While collateral consequences have always accompanied criminal convictions in the United States, their impact expanded dramatically during the 1980s and 1990s as part of the War on Drugs. And while these consequences have long been considered an afterthought in the criminal justice system, they have recently garnered increased attention, in large part because of the record numbers of individuals—recently eclipsing 700,000 per year—now exiting U.S. correctional facilities and returing to communities across the country. As a result, reentry—or, more accurately, mass reentry—has reached a critical point in the United States. The numerous collateral consequences that attach to convictions frustrate reintegration for both individuals and whole communities. Because so many individuals are now being released each year, these consequences are affecting greater numbers of individuals and, by extension, many more families and communities. Studies show that a relatively small number of communities—specifically, neighborhoods in U.S. urban centers—disproportionately absorb the reentering population. As a result, these communities face particularly difficult challenges in reintegrating their neighbors and family members.

Collateral consequences are harsh. They attach to everyone convicted of a crime in the United States (and, in some instances even attach to individuals convicted of a violation, rather than a criminal offense) and often there is no connection between the underlying offense and the collateral penalty. For instance, in many jurisdictions, a conviction for any offense will result in public housing ineligibility. There are also many consequences that attach only to drug offenses. For instance, ineligibility for public benefits and student loans are unique to drug offenses. These consequences originated in the 1990s as part of the War on Drugs, a war that has been waged disporportionatately in communities of color, as African-Americans and Latinos have disproportionately been arrested and incarcerated for drug offenses. As a result, collateral consequences, particularly those tied to drug offenses, have particularly impacted individuals and communities of color.

The extent and impact of collateral consequences in the United States becomes clearer when examining the ways in which other countries impose collateral penalties. England, Canada, and South Africa all present interesting comparative perspectives. England has a uniquely close history with the United States and has been influenced by U.S. criminal justice policies. Canada and the United States have similar origins in British common law and similar political structures. Similarly to the United States, Canada has enacted more stringent sentencing policies over the past couple of decades. South Africa has also toughened its sentencing schemes over the past couple of decades.

England and South Africa, and to a lesser extent Canada, impose collateral consequences on individuals with criminal records. For instance, individuals with criminal convictions in England can face restrictions on public benefits, housing, and employment, but these restrictions are less severe than in the United States. They also lose their voting rights while incarcerated. Canada prohibits parolees and individuals subject to long-term supervsion from obtaining welfare benefits. Also, individuals with criminal records are subjected to significant employment restrictions. However, they are not barred from public housing, and they retain the right to vote during and after their incarceration. South Africa imposes extensive employment restrictions on individuals with criminal records. However, as with Canadaian prisoners, South African prisoners retain their right to vote.

The United States imposes broader, more pervasive collateral consequences than England, Canada, or South Africa. These consequences impact many aspects of formerly incarcerated individuals’ lives: housing, employment, the ability of individuals to sustain themselves and their families, and civic inclusion. For instance, many jurisdictions in the United States deny welfare benefits to individuals convicted of drug offenses and disenfranchise individuals post-incarceration. As a result, a criminal record in the United States inflicts a greater degree of legal stigma than does one in England, Canada, or South Africa, and individuals in the United States must confront significantly more post-incarceration legal obstacles.

The main reasons for  harsher collateral consequences in the United States than in these comparable countries are (1) differences in race-based criminal justice policies and (2) the narrower dignity interests afforded to incarcerated and formerly incarcerated individuals in the United States.

First, the role of race has long attached to collateral consequences. Felon disenfranchisement has historically been rooted in race, and contemporary polices follow the long historical pattern of racial exclusion. Moreover, legislators dramatically expanded collateral consequences in the 1980s and 1990s, as part of the War on Drugs, which has disproportionately impacted racial minorities. However, despite vast racial disparities in all phases of the U.S. criminal jusitice system, little has been done to ameriliorate its disparate impact on individuals and communities of color. Conversely, Canada and South Africa have taken affirmative steps to lessen disparities in incarcaretion. Canadian criminal justice policies have long impacted Aboriginies disproportionately. Seeking to lessen its overall reliance on incarceration, in 1996 Canada enacted a statute that requires judges to consider “all available sanctions other than imprisonment,” when imposing sentences.[1.Canadian Criminal Code, R.S.C., ch. C-46, § 718.2(e) (2009), available at http://laws.justice.gc.ca/PDF/Statute/C/C-46.pdf.] Moreover, the statute requires judges to pay “particular attention to the circumstances of aboriginal offenders.”1 Similarly, South African courts, in post-Apartheid cases, have in several contexts explicitly considered South Africa’s history of racial subjugation as not only relevant but central to determining particular legal claims and interpreting its constitution.

Second, the United States employs a narrower vision of the dignity interests of incarcerated and formerly incarerated individuals particularly in comparison to Canada and South Africa. Canadian and South African courts, in striking laws that disenfranchised prisoners, employed robust notions of dignity. In contrast, the United States stands virtually alone among democracies in disenfranchsing individuals even after they have been released from prison.

To respond to these various issues and in an effort to ease the legal barriers confronting individuals with criminal records in the United States, I propose the following:

First, the United States should implement measures that enhance the dignity interests of individuals with criminal records. The United States should follow the lead of Canada and South Africa and recast its post-sentence penalties to enhance the dignity of individuals with criminal records, which will provide them with the tools to live productive post-incarceration lives. This first step requires the United States to remove unnecessary legal impediments to reentry. As much as is possible, a dignity-based approach would seek to respect these individuals as potential contributors to their families and communities. For example, Canada and South Africa have legal mechanisms that more readily allow individuals with criminal records to participate in the political process. By contrast, the United States still disenfranchises millions of individuals with criminal records, imposes broad employment-related legal restrictions, and prohibits many individuals with criminal records from accessing public housing and other benefits. These consequences—by restricting the ability of individuals with criminal records to obtain employment and housing, by silencing their civic voices, and by isolating them from their families and communities—compromise core dignity interests.

Second, collateral consequences should be tailored to the underlying offense. Consequences should be imposed only when they directly relate to the underlying criminal conduct and are therefore necessary to minimize the risk of future harm. Under this approach, the post-sentence penalties would be proportionate to the criminal conduct, rather than imposed broadly on classes of offenders regardless of their specific conduct.

Third, the United States should implement mechanisms to alleviate the legal penalties accompanying a criminal record so that individuals will truly be able to move past their records. Organizations in the United States have long recognized that expungement or sealing provisions would facilitate reentry by reducing, if not altogether eliminating, collateral consequences. The American Bar Association (ABA) offers mechanisms that would allow courts or “specified administrative bod[ies]” to relieve individuals of these consequences.2 The ABA approach strikes a balance that allows individuals to move past collateral consequences without compromising the broader veracity of public criminal records and public safety concerns articulated by opponents of expungement.

Last, the United States should analyze the racially disproportionate impact of collateral consequences. In doing so, the United States should draw on lessons from Canada, which took steps in 1996 to ease its disproportionate incarceration of Aborigines. Iowa, Connectecticut, and Wisconsin have recently taken affirmative steps to address the disproportionate impact of criminal justice policies on people of color. These new criminal justice policies should be evaluated to determine their impact on people of color, and studies should be conducted to analyze the extent to which people of color are disproportionately impacted by collateral consequences throughout the rest of the United States. The analyses set forth in the studies would provide legislators with the information necessary to fully weigh the benefits and costs of any proposed change. Moreover, statements that recognize and examine any proposed expansion’s racial and ethnic impact, similar to those that are now required in these three states, should accompany any proposed expansion of federal or state collateral consequences.

Acknowledgments:

Copyright © 2010 NYU Law Review.

Michael Pinard is a Professor at the University of Maryland Law School.

  1. Id.
  2. STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS, § 19-2.5(a) (2004), available at http://www.abanet.org/crimjust/standards/collateralsanctionwithcommentary.pdf.

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