Bipartisan efforts seek to reform sentencing and post-conviction policies
Six years later, the conviction would deny him a chance at affordable housing and leave him homeless for nearly seven months. The reason: laws that make former offenders ineligible for low-income housing, educational loans, certain jobs, voting, and other opportunities to reenter society and support themselves and their families.
There are more than 45,000 such state and federal "collateral consequences" laws nationwide. In my home state of South Carolina, almost 700 collateral consequences are on the books, and other states have many more. While some address valid security concerns, many have nothing to do with public safety and simply keep low-level, nonviolent ex-offenders from moving on with their lives after they have served their sentences.
At the American Bar Association's 2003 annual meeting, U.S. Supreme Court Justice Anthony Kennedy called on the ABA to address consequences of "tough on crime" policies. The ABA's subsequent Justice Kennedy Commission and the Commission on Effective Criminal Sanctions noted that the criminal justice system was convicting and incarcerating more and more people, many of whom would go on to commit additional offenses upon release because they were unable to find jobs and housing.
With support of the National Institute of Justice, the ABA Criminal Justice Section recently completed the online National Inventory of the Collateral Consequences of Conviction. This resource brings transparency to what was a complex and largely hidden part of criminal justice.
Judges and lawyers can readily consider collateral consequences in the disposition of criminal cases. Policy-makers can examine the collateral consequences on their books and eliminate or modify those that unnecessarily stand in the way of an individual being able to succeed as a contributing member of a community.
As the Kennedy Commission stated, "Once society has exacted its price from an individual, there is a strong case to be made that society should not only permit, but should encourage, that person to make a positive contribution to society."
The ABA's efforts to spotlight collateral consequences are the latest in our longtime commitment to criminal justice and sentencing reform. Increasingly, advocates across the political spectrum are recognizing that we must reform an approach in which the number of adults who are on probation, in jail or prison, and on parole has grown 275 percent since 1980. With 5 percent of the world's population, the United States incarcerates 25 percent of the world's prisoners, more than half of them nonviolent offenders. The disproportionate effect of harsh sentencing policies on minority communities is especially troubling.
More than a dozen states have reexamined their criminal justice policies and forged bipartisan consensus to pass major reforms. In 2010, for example, South Carolina Republicans and Democrats came together to reform the state's criminal justice laws after decades of sentencing practices that had led to a large increase in the incarceration rate for nonviolent offenders. The nonviolent incarceration rate is significantly lower now, as is the rate of recidivism, and the savings to taxpayers are substantial.
The ABA encourages drug treatment programs, drug courts, veterans' courts, and similar innovations that decrease the probability of recidivism and deal with problems like addiction that are associated with criminal behavior. We support judges and prosecutors who offer alternatives to incarceration, and re-entry programs because of their proven record of reducing crime.
As Justice Kennedy reminded us, "The energies and diverse talents of the entire bar are needed to address this matter." Let us all commit ourselves to making our sentencing policies more fair and just.
• Visit the National Inventory of the Collateral Consequences of Conviction at abacollateralconsequences.org.
• Learn more about ABA criminal justice reform efforts at americanbar.org/crimjust.
This article originally appeared in the June 2015 issue of the ABA Journal with this headline: “Rethinking Criminal Justice: Bipartisan efforts seek to reform sentencing and post-conviction policies.”
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