When most people think about the consequences of a criminal conviction, they imagine a court-ordered prison sentence or probation, which normally has a definite beginning and an end. Many probably think that when “prison bars and chains are removed,” punishment has come to an end, and reintegration into society as a law-abiding citizen can begin.[REF] But that is far from true. In fact, more than 46,000 local, state, and federal civil laws and regulations—known as “collateral consequences” of conviction, as opposed to the “direct consequences” of conviction—restrict the activities of ex-offenders[REF] and curtail their liberties after they are released from confinement or their period of probation ends.[REF]
Many people convicted of crimes are never sent to prison, and of those who are, more than 95 percent—tens of millions of people[REF]—will eventually be released and will return to our communities.[REF] They face long odds when trying to put their past behind them. In addition to having to endure the stigma associated with being a convicted criminal, many ex-offenders have substance abuse issues, a limited education, and even more limited job skills and experience. Regrettably, many of these ex-offenders will end up committing additional offenses after their release, thereby posing a continuing threat to public safety.[REF] Although many no doubt would have committed additional crimes regardless of any collateral consequences imposed upon them, a significant minority (if not a majority) would like to turn over a new leaf and become productive, self-reliant, law-abiding members of society, capable of supporting themselves and their families.
As the American Bar Association has pointed out, “If promulgated and administered indiscriminately, a regime of collateral consequences may frustrate the chance of successful re-entry into the community, and thereby encourage recidivism.”[REF] It is not in anyone’s best interests to consign ex-offenders to a permanent second-class status. Doing so will only lead to wasted lives, ruined families, and more crime. Like the criminal conviction itself, civil sanctions carry real consequences that can be as injurious as they are “demoralizing.”[REF] It is therefore time to rethink the collateral consequences that we impose on people with a criminal record when those consequences increase the likelihood that ex-offenders will fail in their efforts to reform.
Legislators have broad discretion to enact laws creating collateral consequences. Usually imposed under the guise of protecting public safety, these laws are considered remedial and not punitive. They can affect, among other things, an ex-offender’s ability to get a job or a professional license; to get a driver’s license;[REF] to obtain housing,[REF] student aid,[REF] or other public benefits;[REF] to vote, hold public office or serve on a jury;[REF] to do volunteer work;[REF] and to possess a firearm.
Public safety benefits significantly outweigh any burden that some collateral consequences place on an ex-offender’s ability to reintegrate into society. For example, prohibiting convicted sex offenders from running a day care center or residing or loitering near elementary schools is a prudent way to protect children.[REF] Prohibiting violent felons from purchasing or possessing firearms is another example.[REF] Similarly, forcing a public official who has been convicted of bribery or public corruption to resign from office[REF] or prohibiting someone convicted of defrauding a federal program from participating in a related industry for a period of time impose collateral consequences directly related to the substance of the offense.[REF] Others, such as restrictions on voting, may make sense for some period of time but perhaps not indefinitely.[REF]
Some collateral consequences, though, have a tenuous connection to public safety, appear to be more punitive in nature, and certainly make it more difficult for an ex-offender to reintegrate into society.[REF] State and federal legislators should periodically review existing collateral consequences to ensure that they are necessary to protect public safety, not punitive in nature, and reasonably related to the offense that was committed. Collateral consequences that do not fit these parameters should be amended or repealed[REF] so that ex-offenders who are earnestly working to lead lawful, prosperous lives are not needlessly thrown off-course.
History and Nature of Collateral Consequences
Just as we can thank the ancient Greeks for democracy, we can also thank them for the ancient doctrine of “infamy,” which revoked the rights of individuals convicted of a criminal offense to vote, hold public office, and otherwise participate in democracy.[REF] Those restrictions were designed not to punish offenders, but to insulate state affairs from people who had demonstrated a criminal temperament.[REF] Collateral consequences for those convicted of a crime increased both in number and in severity through the Middle Ages and the Enlightenment, by which time convicted criminals commonly were exiled.[REF]
At early common law, so many collateral consequences were piled upon offenders that the “infamy” of old earned a new name: “civil death.”[REF] This referred to the status of having all of an individual’s civil rights, including those related to contract and property, extinguished upon conviction of a capital crime.[REF] Regarding a convicted felon “as dead in law”[REF] provided “a practical way of settling [his] earthly affairs” between the time of his conviction and his execution.[REF]
America inherited this legal and social history that treated a criminal conviction as conferring “a status upon a person which not only makes him vulnerable” to existing and new collateral consequences, “but which also seriously affects his reputation and economic opportunities.”[REF] The colonies retained many aspects of “civil death.” Over time, however, lawmakers either discarded or codified collateral consequences of criminal convictions in state statutes,[REF] and some aspects persist to this day in a few states.[REF] But as capital punishment for felonies decreased and concern for proportional criminal sentences increased, many of the most severe repercussions, including those related to contract, property, marriage, and the right to sue, were repealed throughout the 20th century.[REF] In 1984, a House committee report proclaimed a “consensus that arbitrary restrictions on the rights of former offenders should be eliminated.”[REF] Since the 1980s, however, collateral consequences have returned with a vengeance, steadily increasing in scope and number at the local, state, and federal levels.[REF]
As is the case with criminal laws generally, the Constitution authorizes legislatures, not courts or prosecutors, “to weigh the propriety of” reasonable policy alternatives and choose among them in enacting laws.[REF] While it appears that the Supreme Court of the United States has rejected virtually every constitutional challenge to collateral consequences,36 there remains a general expectation by the public that legislators will not pass laws imposing collateral consequences that are arbitrary, unreasonable, and unduly onerous, and such criticisms of collateral consequences are appropriately directed at legislatures.[REF]
Collateral Consequences Today
Collateral consequences are civil in nature and thus distinct from criminal laws and penalties, so courts, prosecutors, and defense attorneys have generally treated them as falling outside the scope of their control and immediate concern.[REF] Few are aware of the full scope of these “post-sentence civil penalties, disqualifications, or disabilities” that follow a conviction,[REF] including criminal defendants and defense counsel.[REF] They should be.
At least two things distinguish the current morass of collateral consequences from those enforced in ancient Greece.
First, the number of collateral consequences and the number of people to whom they apply are far greater than the Athenians would likely have imagined.[REF] Researchers for the American Bar Association counted as many as 46,000 collateral consequences scattered throughout state and federal codes, with thousands more at the local level.[REF] Texas, for example, has over 200 collateral consequences in 22 different sections of the state code.[REF] Many other states have also enacted unknown numbers of collateral consequences that are “scattered—one might say hidden—in disparate areas of their codes and regulations.”[REF]
And, of course, the number of people convicted of a crime has risen dramatically since the 1970s and, with that, the number of people living with the collateral consequences of their crimes, many of which make it harder for ex-offenders to reintegrate into society as law-abiding citizens.
Second, not all collateral consequences appear to be reasonably related to the offense(s) committed. For example, Ohio law provides for the suspension or revocation of an offender’s driver’s license upon conviction of some crimes that are entirely unrelated to driving.[REF] Why restrict an ex-offender’s ability to get or drive to a job or to pick up his or her children from school if that individual poses no greater risk to people on the road than any other driver?
Similar problems can arise with respect to another category of collateral consequences: those that revoke receipt of or eligibility for certain government benefits.
- A criminal conviction may cost a military veteran his or her pension, insurance, and right to medical treatment,[REF] which is particularly troubling because studies indicate that veterans who are suffering from post-traumatic stress disorder and therefore in serious need of medical treatment may be more likely to commit crimes.[REF]
- In the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress barred individuals convicted of state or federal drug offenses from receiving, in addition to student aid, federal cash assistance under the Temporary Assistance for Needy Families (TANF) program and food stamps under the Supplemental Nutrition Assistance Program (SNAP).[REF]
- States may also categorically bar certain types of offenders, such as all drug[REF] and sex offenders,[REF] from government housing for any period of time and can suspend or revoke a driver’s license on the basis of a conviction, to name only a few such restrictions.[REF]
While these restrictions may make sense for some ex-offenders, depriving broad swathes of ex-offenders of the ability to get assistance for themselves and their families, to live in affordable housing in a stable environment, or to obtain educational assistance to enhance their skills is hardly conducive to helping them become productive citizens.
Perhaps the most ubiquitous and pernicious collateral consequences imposed on ex-offenders are restrictions on their ability to earn a livelihood.[REF] Some restrictions, of course, make sense. For example, federal law bars individuals with a prior criminal conviction from holding elected office and, depending on the nature of the conviction, from working for the military[REF] or in law enforcement,[REF] private security,[REF] and jobs that require a security clearance.[REF] It is less clear whether the same ban should apply for professions that require a federal license, including grain inspector, locomotive engineer, and merchant mariner.[REF]
State laws restricting employment opportunities for ex-offenders can be even more severe. For example:
- Virginia has enacted over 140 mandatory collateral consequences that affect employment, from disqualification to hold any state “office of honor, profit, or trust” to ineligibility to hold a commission as a notary public,[REF] and
- Ohio imposes more than 500 mandatory collateral consequences that restrict employment opportunities including employment as a contractor or truck driver.[REF]
Of the 46,000 collateral consequences identified by the American Bar Association, 60 percent to 70 percent were employment-related.[REF] Experts estimate that there are thousands of similar restrictions in local ordinances.[REF] These can bar ex-offenders from pursuing various occupations such as street peddling, cab driving, and construction.[REF] And the federal, state, and local governments are free to pile on “at any time” whatever “additional restrictions and limitations they deem warranted.”[REF]
A multitude of other occupational licensing laws compounds the effect of collateral consequences insofar as they “may either explicitly exclude individuals convicted of certain criminal convictions or implicitly exclude them through a requirement that applicants be of ‘good moral character.’”[REF] These include operating a dance hall, bar, pool hall, bowling alley, or movie theatre[REF] and working as a midwife, an interior designer, or a barber. The list goes on,[REF] each law magnifying the effect of the one before it.[REF] Even creative politicians would be hard-pressed to come up with a legitimate public safety rationale for prohibiting an ex-offender from serving as a midwife, an interior designer, or a barber. This is particularly absurd when one considers that many ex-offenders receive training to become barbers while incarcerated,[REF] only to discover that they cannot get a license to practice in the one field in which they now have a marketable skill.[REF] Research shows that states with heavy occupational licensing burdens and restrictions for ex-offenders have seen higher average levels of recidivism for new criminal offenses than have states with fewer occupational licensing burdens and restrictions.[REF]
Studies have also shown a positive correlation between collateral consequences and lower employment rates as well as higher recidivism rates.[REF] Although more research is needed, existing research strongly suggests that imposing irrational restrictions on economic opportunities for ex-offenders undermines efforts to promote public safety and a cost-effective criminal justice system.[REF]
What State and Federal Legislators Can Do
Under certain circumstances, Presidents and governors can issue pardons and restore an individual’s civil rights, and courts can expunge criminal records or issue certificates of rehabilitation,[REF] thereby providing some deserving ex-offenders with some relief from the burdens otherwise imposed by collateral consequences. Employers may also help to improve ex-offenders’ employment prospects by voluntarily delaying their inquiry into a job applicant’s prior criminal record until later in the hiring process—a practice commonly referred to as a “ban the box” policy.[REF] There also are several things that state and federal legislators can do to address unduly onerous collateral consequences.
- Legislators should review and consolidate all existing collateral consequences in a single location in order to make them more accessible so that the public is aware of the full consequences of criminal conviction.[REF]
- Legislators should reassess the collateral consequences enacted within their jurisdictions to ensure that they are necessary to protect the public, reasonably related to the offense committed, and not capable of being enforced indiscriminately or arbitrarily. Any restriction that does not satisfy these parameters should be amended or repealed.[REF]
- Legislators might also consider establishing more robust procedures for ex-offenders to petition for relief or waivers from certain collateral consequences, which could be granted in meritorious cases.
In light of growing evidence that a number of collateral consequences may frustrate reintegration into the community and encourage recidivism, some states have already begun to reassess what collateral consequences should attach to which convictions, as well as why and for how long.[REF] While some collateral consequences are justifiable as a way to protect public safety, many are not. Unjustifiable collateral consequences appear to be punitive in nature, designed to continue punishing ex-offenders once they complete their sentences for the crimes they committed. The public’s desire to continue to stigmatize an ex-offender may be understandable, but it comes at a high cost.
Since most ex-offenders—millions of them—at some point will be released from custody and return to our communities, it is important that we do everything we can to encourage them to become productive, law-abiding members of society and that we not put too many impediments, in the form of excessive collateral consequences, in their way that will hinder their efforts. More attention must be paid to this issue to avoid these dangerous and counterproductive results.
—John G. Malcolm is Director of and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies, of the Institute for Constitutional Government, at The Heritage Foundation. John-Michael Seibler is a Legal Fellow in the Meese Center.