During the past 20 years, get-tough-on-crime policies have swelled the number of incarcerated Americans to nearly 2.2 million—the world’s largest prison population. At the same time, federal and state legislators were busy piling up extra penalties for convicted criminal defendants that stayed with them beyond their time behind bars.
Those extra penalties are known as “collateral consequences.” Typically, they strip convicted criminal defendants of such marks of citizenship as voting and serving on juries, but often they also limit opportunities for employment, housing, educational assistance and welfare.
By and large, people with felony convictions are banned from enlisting in the U.S. military. Fifteen states bar convicted drug offenders from receiving welfare or food stamps. In various states, people with convictions are excluded from public housing, barred from receiving educational loans, and denied driver’s licenses and occupational licenses. In New York, for instance, a man who had learned to cut hair in prison was denied a barber’s license when he got out.
Even people with convictions for misdemeanors or other violations may face collateral consequences, says J. McGregor Smyth, project director and supervising attorney at the Civil Action Project of the Bronx Defenders, a nonprofit group that offers community-based legal and social services. In New York City, Smyth says, a person convicted of disorderly conduct—a noncriminal violation—may be banned from public housing for up to three years.
Sometimes just an arrest record can be a problem. Most states allow employers to discriminate against people who have been arrested but not convicted, according to the Legal Action Center, a New York City-based advocacy group. And this information is readily available to employers, landlords and others.
In recent years, more than 650,000 people have been released from state and federal prisons. An estimated 16 million people in the United States have been convicted of felonies, and roughly 70 million—nearly one in every four Americans—have some kind of arrest record. Collateral consequences can seriously undermine their attempts to rehabilitate themselves and lead productive, law-abiding lives, say proponents for easing those penalties.
Moreover, many communities are feeling a strain from the social costs of keeping people trapped in what some legal scholars have begun referring to as “internal exile.”
“We’ve become very efficient in processing people into the system,” says Margaret Colgate Love of Washington, D.C., consulting director of the ABA Commission on Effective Criminal Sanctions. “But we seem to have forgotten how to get them out.”
While most states have provisions to restore the rights of people convicted of crimes, none are particularly effective, says Love, the author of Relief from the Collateral Consequences of a Criminal Conviction: A State-by-State Resource Guide. Nondiscrimination laws often lack enforcement mechanisms.
Expungement, sealing of records and set-asides are usually reserved for first-time offenders. Pardons have become increasingly rare.
A PUSH FROM JUSTICE KENNEDY
At the 2003 ABA annual meeting, the policy-making House of Delegates adopted ABA Criminal Justice Standards addressing collateral sanctions and discretionary disqualifications of those who have been convicted. The primary sponsor was the Section of Criminal Justice. In essence, the standards seek to limit collateral sanctions, especially when they infringe on fundamental rights without justification or undermine a convicted person’s chances of re-entering society. The standards also call for defendants to be fully informed of collateral sanctions and for courts to take those sanctions into account when imposing sentences.
At the same annual meeting, U.S. Supreme Court Justice Anthony M. Kennedy gave an influential speech that questioned the effectiveness of sentencing policies and prisons in the United States. Soon afterward, then-ABA President Dennis W. Archer of Detroit formed the Justice Kennedy Commission to study issues relating to prisons and sentencing. In 2004, the House of Delegates approved a recommendation by the commission that called for procedures that would allow offenders who have served sentences to request restoration of their legal rights and relief from other collateral consequences.
The ABA Commission on Effective Criminal Sanctions, which was created in 2005 with the support of a grant from the Open Society Institute, a New York City-based foundation established by philanthropist George Soros, is preparing recommendations on collateral sanctions. The House of Delegates may consider them as early as February, when the ABA holds its midyear meeting in Miami.
In November, however, the commission was unable to reach a consensus on the issue of collateral consequences when it met with representatives of the National District Attorneys Association.
“We decided not to take it up,” says John P. Sarcone, the state’s attorney for Polk County, Iowa (which includes Des Moines), and a vice president of the association. “There was too much disagreement.”
Sarcone indicates that there is not universal support for easing collateral sanctions. “When I look at a case, I’m looking at what the defendant did, not the effect a conviction will have on his life,” he says.
On Oct. 13, the commission conducted a hearing in Brooklyn, N.Y., on collateral consequences. The hearing was co-sponsored by the National Conference of Commissioners on Uniform State Laws, the ABA Criminal Justice Section and the Association of the Bar of the City of New York.
The hearing focused largely on the New York state certification program, which was launched in the 1940s and expanded in the 1970s.
New York’s program offers people with criminal convictions two certificates of relief from collateral consequences. The certificate for relief from disabilities is available to first-time felony offenders and people convicted of misdemeanors. It may be issued by a judge anytime after sentencing, if no prison term is involved, or by a parole board after release from prison. The certificate of good conduct is available to multiple felony offenders one to five years after completing a prison sentence, depending on the crime. This certificate is issued by a parole board after an investigation in which the ex-offender proves that he or she has established a law-abiding, productive life. Both certificates exempt defendants from most of the legal disabilities arising from their convictions.
A LACK OF INFORMATION
While the approach taken by New York is considered promising, concerns about certificates also were described at the hearing. For one thing, very few people apply for them. Witnesses at the hearing argued that this was largely due to the fact that defendants don’t even know the certificates are available. Their lawyers aren’t telling them, and neither are judges, even though a state court rule says judges should inform defendants about the availability of the certificates. One reason may be that the criminal justice system is plea-driven. “If you get people to think about the collateral consequences, they might say, ‘Wait a minute! I’d rather roll the dice. I’ll go to trial,’ ” says Love. But, she notes, “the system depends on people pleading guilty.”
At the hearing, Stephen A. Saltzburg of Washington, D.C., who co-chairs the ABA commission with former Illinois Gov. James R. Thompson, called the failure of judges to inform defendants about their eligibility for certificates baffling.
“This is a system based on the rule of law, and yet the judiciary disregards its own rule,” said Saltzburg, who is chair-elect of the ABA Criminal Justice Section. He suggested that certificates of relief from disabilities be automatically granted at sentencing for most misdemeanors or first-time felonies unless the prosecutor objects.
Others, however, said doing that won’t help individuals with multiple felony records because they are ineligible to receive certificates of relief from disabilities and may have to wait years before they may apply for certificates of good conduct. The certificates also have limited usefulness if employers don’t understand what they mean.
“Unless we mount a public education program that tells the public just what these certificates mean, they’re not going to help the person walking in for a job,” said Stanley Richards, chief operating officer of the Fortune Society, a New York City-based advocacy group for former prisoners. He is an ex-offender who has earned a certificate of good conduct.
To Saltzburg, the take-away message of the hearing was “the relative agreement of almost everyone there that the process of restoring rights has got to be staged. That there ought to be a way for the judge to say even at the point of sentencing that we don’t have to take all these rights away. And that later, there should be a way, after some demonstration of good behavior, to have all but a few of the collateral consequences taken away.”