The title and affiliation are for identification purposes. Members of The Heritage Foundation staff testify as individuals discussing their own independent research. The views expressed here are my own, and do not reflect an institutional position for The Heritage Foundation or its board of trustees, and do not reflect support or opposition for any specific legislation. The Heritage Foundation is a public policy, research, and educational organization recognized as exempt under section 501(c)(3) of the Internal Revenue Code. It is privately supported and receives no funds from any government at any level, nor does it perform any government or other contract work. The Heritage Foundation is the most broadly supported think tank in the United States. During 2013, it had nearly 600,000 individual, foundation, and corporate supporters representing every state in the U.S.Its 2013 income came from the following sources: 80% from individuals, 17% from foundations, and 3% from corporations. The top five corporate givers provided The Heritage Foundation with 2% of its 2013 income. The Heritage Foundation’s books are audited annually by the national accounting firm of McGladrey, LLP.
Weems v. United States, 217 U.S. 349, 366 (1910) (“His prison bars and chains are removed, it is true…but he goes from them to a perpetual limitation of his liberty…subject to tormenting regulations that, if not so tangible as iron bars and stone walls, oppress as much by their continuity, and deprive of essential liberty.”).
The term “ex-offender” as used in this testimony refers to a person with a prior criminal conviction.
See Weems, 217 U.S. at 366; Joe Palazzolo, 5 Things to Know About Collateral Consequences, Wall St. J. (May 17, 2015), http://blogs.wsj.com/briefly/2015/05/17/5-things-things-to-know-about-collateral-consequences/; Velmer S. Burton, Jr. et al., The Collateral Consequences of a Felony Conviction: A National Study of State Statutes, 51 Fed. Probation 52 (1987).The National Inventory of Collateral Consequences of Conviction lists 48,229 entries. Of these, 35,485 entries—roughly 74 percent—relate to employment, occupational or professional licensure, or business licenses. The Justice Center, Council of State Governments, https://niccc.csgjusticecenter.org/map/ (last accessed April 23, 2018) (hereinafter Inventory). Other estimates place employment-related collateral consequences at between 60 and 70 percent of the total. Joe Palazzolo, 5 Things to Know About Collateral Consequences, Wall St. J. (May 17, 2015), http://blogs.wsj.com/briefly/2015/05/17/5-things-things-to-know-about-collateral-consequences/ (last accessed April 23, 2018). According to the National Association of Criminal Defense Attorneys, “[t]here are approximately 48,000 laws and rules in U.S. jurisdictions that restrict opportunities and benefits based on criminal convictions.” Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae, p. 6, Packingham v. North Carolina, No. 15-1194, http://www.scotusblog.com/wp-content/uploads/2016/12/15-1194_amicus-petitioner-NACDL.pdf (last accessed April 23, 2018).
Amy P. Meek, Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level, 75 Ohio St. L.J. 1 (2014); Kathleen M. Olivares et al., The Collateral Consequences of a Felony Conviction: A National Study of State Legal Codes 10 Years Later, 60 Fed. Probation 11, 14–15 (1996) (“[An] analysis of state legal codes reveals an increase between 1986 and 1996 in the extent to which states restrict the rights of convicted felons…. [T]here was an increase in the number of states restricting six rights; voting, holding office, parenting, divorce, firearm ownership, and criminal registration increased.”); Jeremy Travis, Invisible Punishment, in The Collateral Consequences of Mass Imprisonment 18 (Marc Mauer & Meda Chesney-Lind eds., 2002).
See Gabriel J. Chin,The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Penn. L. Rev. 1790-91 (2012).
Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. Rev. 623, 628 (2006) (estimating that roughly 65,000 individuals are released from prison and 9 million individuals are released from local jails each year); Jo Craven McGinty, How Many Americans Have a Police Record? Probably More Than You Think, Wall St. J. (Aug. 7, 2015), http://on.wsj.com/1MSctje; Peter Wagner & Bernadette Rabuy, Mass Incarceration: The Whole Pie 2016, Prison Pol’y Initiative (Mar. 14, 2016), http://www.prisonpolicy.org/reports/pie2016.html.
“At least 95% of all state prisoners will be released from prison at some point; nearly 80% will be released to parole supervision.” Timothy Hughes & Doris James Wilson, Bureau of Justice Statistics, U.S. Dep’t of Justice, Reentry Trends in the United States, https://www.bjs.gov/content/reentry/reentry.cfm (last visited Dec.19, 2016). “Virtually all offenders convicted of a federal crime are released from prison eventually and return to society or, in the case of illegal aliens, are deported to their country of origin.” Glenn R. Schmitt & Hyun J. Konfrst, U.S. Sentencing Comm., Life Sentences in the Federal System 1 (2015), http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/20150226_Life_Sentences.pdf (noting that in 2013, all offenders who received a life sentence without parole or who effectively received a life sentence due to their age and sentence duration made up only 0.4 percent of all federal criminal sentences); see also Pew Charitable Trusts, Prison Time Surges for Federal Inmates (Nov. 18, 2015), http://www.pewtrusts.org/~/media/assets/2015/11/prison_time_surges_for_federal_inmates.pdf (“With the exception of the comparatively small number of offenders who are sentenced to death or life behind bars or who die while incarcerated, all inmates in federal prisons will eventually be released.”).
Kim Steven Hunt & Robert Dumville, U.S. Sentencing Comm., Recidivism Among Federal Offenders: A Comprehensive Overview (Mar. 2016), http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/recidivism_overview.pdf (studying 25,431 federal offenders released from prison or commencing a term of probation in 2005; 49.3 percent were rearrested within eight years for a new crime or for one or more technical violations of the supervised release conditions, the median time to rearrest was 21 months, 31.7 percent were reconvicted, and 24.6 percent were reincarcerated). In 2014, 76.6 percent of offenders released from state prison were rearrested within five years, 55.4 percent were convicted, and 28.2 percent were reincarcerated. Matthew Durose et al., Bureau of Justice Statistics, Dep’t of Justice, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (2014), http://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf. A comparison of the two studies reveals that a quarter (25.7 percent) of released state inmates had a violent commitment offense compared to only 6.8 percent of inmates released from federal prison. State offenders were more likely to be under 40 years of age (68.5 percent) and male (89.3 percent) than the federal offenders (60.1 percent under age 40 and 85.9 percent male). The BJS study also included non-U.S. citizens, a category of offender excluded from the Sentencing Commission’s study.
See ABA, Standards for Criminal Justice, Collateral Sanction and Discretionary Disqualifications of Convicted Persons, 10 (3d ed. 2004) (referencing compilations of various states’ collateral consequences for comparison) (hereinafter ABA Standards).
Kenneth L. Karst, The Supreme Court 1976 Term, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 6–7 (1998).
23 U.S.C. § 159 (2000) (revocation or suspension of drivers’ licenses of individuals convicted of drug offenses); see also, e.g., Fla. Stat. § 322.055(2) (same).
Rebecca Beitsch, States Rethink Restrictions on Food Stamps, Welfare for Drug Felons, Pew Charitable Trusts (July 30, 2015), http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/07/30/states-rethink-restrictions-on-food-stamps-welfare-for-drug-felons.
See, e.g., 20 U.S.C. § 1091(r) (prohibiting students convicted of drug offenses while receiving student aid from receiving such aid for a period of years after conviction).
See, e.g., 13 C.F.R. § 123.101(i) (prohibiting someone who is “presently incarcerated, or on probation or parole following conviction for a serious criminal offense,” from receiving a federal home disaster loan); 13 C.F.R. § 124.108(a)(4)(ii) (prohibiting someone who is “currently incarcerated, or on parole or probation pursuant to a pre-trial diversion or following conviction for a felony or any crime involving business integrity,” from being eligible to participate in the U.S. Small Business Administration’s 8(a) Business Development Program); see also Beitsch, supra note 15.
See Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 Am. U. L. Rev. 65, 73–74 (2003); see also, e.g., Cal. Civ. Code § 203(a)(5) (prohibiting persons in California “who have been convicted of malfeasance in office or a felony” from serving on a jury unless their rights have been restored).
See, e.g., Am. Bar Assoc. Comm. on Effective Crim. Sanctions & Pub. Def. Serv. D.C., Internal Exile: Collateral Consequences of Conviction in Federal Laws and Regulations 18, 31 (2009), available at http://bit.ly/2iTXKJ (noting laws that bar certain offenders from volunteer work that involves the presence of a minor); Kim Ambrose, Wa. Defender Assoc., Beyond the Conviction, 12–13 (2013), http://bit.ly/2iFaANT (same); James Frank et al., Collateral Consequences of Criminal Conviction in Ohio 31 U. Cin. Ctr. Crim. Just. Research, report to the Ohio Office of Criminal Justice Services), available at http://ocjs.ohio.gov/CollateralConsequences.pdf (Ohio law provides that “[a]ny person who has been convicted of a disqualifying offense is incompetent to hold a public office, to be publicly employed, or even to be a volunteer in certain public positions, such as volunteer firefighter.”).
See, e.g., Nat’l Conf. of State Legislatures, Enactments Concerning Sex Offenders Near Schools and Child-Care (Sept. 19, 2006), available at http://www.npr.org/programs/morning/features/2006/oct/prop83/ncsl_schools.pdf; N.H. Rev. Stat. Ann. § 170-E:29(III) (2013) (restricting activity of those convicted of “a violent or sexually-related crime against a child”); see also Ian Lovett, Public-Place Laws Tighten Rein on Sex Offenders, N.Y. Times (May 29, 2012), http://www.nytimes.com/2012/05/30/us/sex-offenders-face-growing-restrictions-on-public-places.html?_r=0; Roger Przybylski, Office of Justice Programs, Dep’t of Justice, Recidivism of Adult Sex Offenders (July 2015), available at https://www.smart.gov/pdfs/RecidivismofAdultSexualOffenders.pdf (discussing high recidivism rates for new sex crimes by adult sex offenders). Some have argued, however, that some restrictions and registration requirements for sex offenders may have gone too far and may end up doing more harm than good. See Jill Levinson & Andrew J. Harris,SORNA: Good Intentions, Flawed Policy, and Proposed Reforms, Fed. Soc., Engage, Vol. 13:3 (Oct. 2012), available at http://www.fed-soc.org/publications/detail/an-exchange-over-the-sex-offender-registration-and-notification-act-sorna.
See 18 U.S.C. § 922(g)(1); District of Columbia v. Heller, 554 U.S. 570, 626–627 (2008) (“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons….”). But see U.S. v. Barton, 633 F.3d 168, 173 (3d Cir. 2011) (“Heller’s statement regarding the presumptive validity of felon gun dispossession statutes…does not foreclose” parties with a criminal conviction from bringing an as-applied challenge.); Collateral Consequences Resource Center, Second Amendment Challenges to Felon-in-possession Laws (Dec. 13, 2014), http://ccresourcecenter.org/2014/12/13/second-amendment-challenges-felony-dispossession-laws/. Some have urged, however, that individuals convicted of nonviolent offenses should be able to petition to have their Second Amendment rights restored. See, e.g., Paul Bedard, House Votes to Let Nonviolent Ex-felons Restore Gun Rights, Wash. Examiner (June 5, 2015), http://www.washingtonexaminer.com/house-votes-to-let-nonviolent-ex-felons-restore-gun-rights/article/2565685; James King, This Ex-con is Trying to Get Guns in the Hands of Non-violent Felons, The Week (Mar. 2016), http://theweek.com/articles/614883/excon-trying-guns-hands-nonviolent-felons.
See, e.g., Nat’l Conf. of State Legislatures,Penalties for Violations of State Ethics and Public Corruption Laws (Feb. 2, 2015), http://www.ncsl.org/research/ethics/50-state-chart-criminal-penalties-for-public-corr.aspx.
See, e.g.,12 U.S.C. § 1829 (2000) (prohibiting persons convicted of crimes of dishonesty or breach of trust from owning, controlling, or otherwise participating in the affairs of a federally insured banking institution, subject to waiver by the FDIC; waiver may not be given for 10 years following conviction in the case of certain offenses involving the banking and financial industry); 10 U.S.C. § 2408 (2000) (persons convicted of fraud or felony arising out of defense contract prohibited from working in any capacity for a defense contractor or subcontractor for a period of at least five years); see also DiCola v. Food & Drug Admin., 77 F.3d 504, 507 (D.C. Cir. 1996) (upholding the Food and Drug Administration’s lifetime ban of a former drug company executive from “providing services in any capacity to the pharmaceutical industry” after conviction of adulterating a drug product and failing to keep adequate records; “The permanence of the debarment can be understood, without reference to punitive intent, as reflecting a congressional judgment that the integrity of the drug industry, and with it public confidence in that industry, will suffer if those who manufacture drugs use the services of someone who has committed a felony subversive of FDA regulation.”).
Some have argued that it is perfectly reasonable to deny the right to vote to convicted felons. See Hans A. von Spakovsky & Roger Clegg, Felon Voting and Unconstitutional Congressional Overreach, Heritage Foundation Legal Memorandum No. 145 (Feb. 11, 2015), available at
http://www.heritage.org/research/reports/2015/02/felon-voting-and-unconstitutional-congressional-overreach(“Those who are not willing to follow the law cannot claim a right to make the law for everyone else. And when an individual votes, he or she is indeed either making the law—either directly in a ballot initiative or referendum or indirectly by choosing lawmakers—or deciding who will enforce the law by choosing local prosecutors, sheriffs, and judges.”). Others, such as the NAACP, have argued that convicted felons should not lose their right to vote. See NAACP: Felon Disenfranchisement Is About Race, The Root (Oct. 2, 2012), http://www.theroot.com/articles/politics/2012/10/felon_disenfranchisement_naacp_launches_campaign/; see also Developments in the Law—One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939 (2002) (criticizing felony disenfranchisement laws). State laws vary considerably on this issue, with 48 states and the District of Columbia imposing at least some restrictions on felon voting. See Nat’l Conf. of State Legislatures, Felon Voting Rights (2016), available at http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx/. In Richardson v. Ramirez, 418 U.S. 24 (1974), the Supreme Court upheld the constitutionality of California’s felony disenfranchisement law. The essential issue appears to remain, as Associate Supreme Court Justice Clarence Thomas put it: Is the ex-offender “worthy of participating in civic life”? Caron v. United States, 524 U.S. 308, 318 (1998) (Thomas, J., dissenting).
See Tracy Sohoni, The Effects of Collateral Consequence Laws on State Rates of Returns to Prison (July 2015) (unpublished PhD dissertation, University of Maryland, on file with NCJRS) (showing correlation between various collateral consequences, employment rates, and recidivism); Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest: Evidence from a Community Sample, 36 Colum. Hum. Rts. L. Rev. 193 (2004) (same); Richard P. Seiter & Karen R. Kadela, Prisoner Reentry: What Works, What Does Not, and What Is Promising, 49 Crime and Delinquency 360 (2003) (same).
Some organizations, such as the National Association of Criminal Defense Lawyers, have suggested an even more aggressive approach to addressing the problems created by overweening collateral consequences. See Nat’l Assoc. Crim. Defense Lawyers, Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime 33 (2014), http://bit.ly/1pqvFvA (hereinafter NACDL).
See, e.g., Hawker, 170 U.S. at 196–200; United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000) (arguing that a collateral consequence, no matter how severe, is “not the sentence of the court which accept[s] the plea but of another agency over which the trial judge has no control and for which he has no responsibility.”), abrogated by Padilla v. Kentucky, 559 U.S. 356 (2010); United States v. George, 869 F.2d 333, 337 (7th Cir. 1989) (A collateral consequence “may result from a criminal prosecution, but is not a part of or enmeshed in the criminal proceeding.”).
In Padilla v. Kentucky, 559 U.S. 356 (2010), a longtime U.S. resident and Vietnam veteran was arrested and pled guilty to transporting marijuana after defense counsel assured him that deportation would not follow a guilty plea. The federal government did institute deportation proceedings. Padilla argued he had inadequate notice of the consequences of his plea. The Supreme Court held that defense counsel must advise noncitizen defendants of potential immigration consequences of a conviction. See Gabriel J. Chin, Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea, 54 How. L.J. 675 (2011); Case Comment, United States v. Muhammad: Tenth Circuit Holds that Defendant Need Not Be Informed of Collateral Consequences Before Pleading No Contest, 128 Harv. L. Rev. 1860 (2015) (arguing that “defendants have a constitutional right to knowledge of the direct—but not collateral—consequences of their plea.”).
See ABA Standards, supra note 12, at 21, 22. While some states apply collateral sanctions only to convictions rendered in that state, others apply sanctions based on convictions rendered in other jurisdictions as well, so ex-offenders must often scour the codes of multiple states if they wish to know the full scope of disabilities that might apply to them.
Margaret Colgate Love, Paying Their Debt to Society: Forgiveness, Redemption, and the Uniform Collateral Consequences of Conviction Act, 54 How. L.J. 753, 784 (2011); see also ABA Standards, supra note 12; Oh. Just. & Pol’y Ctr., Civil Impacts of Criminal Convictions Under Ohio Law, http://civiccohio.org/ (state database of collateral consequences, a keyword search of “mandatory” on Dec. 29, 2016, resulted in 596 entries).
NACDL, supra note 26, at 33 (statement of Gary Mohr, Director, Ohio Department of Rehabilitation and Correction); see also Frank et al., supra note 19, at 4–5. West Virginia appears to have some laws that fit into this category too. For example, anyone who has been convicted of a felony within the previous five years cannot obtain a license certificate to engage in any kind of business involving an automobile or to be a veterinarian. See W.Va. Code § 17A-6B-5; W.Va. Code § 17A-6C-6; W.Va. Code § 17A-6D-8; W.Va. Code § 30-10-8(7). Anyone who fails to pay overdue child support payments can be only receive a restricted driver’s license. W.Va. Code § 17B-2-10. An individual cannot get a license to be a physical therapist assistant if he was convicted of any felony during the preceding ten years. W.Va. Code § 30-20-10(7). An individual can be denied a license to serve as a wildlife guide if he has been convicted of any crime including a misdemeanor. W.Va. Code § 20-2-26. And an individual can be denied a license to be a barber or cosmetologist if he has been convicted of any felony or other crime involving moral turpitude. W.Va. Code § 30-27-20(g)(2).
Dep’t of Justice, Federal Statutes Imposing Collateral Consequences Upon Conviction, 3–4 (2000), http://bit.ly/2eUGdiS (hereinafter DOJ Report).
See, e.g.,Matthew Wolfe, From PTSD to Prison: Why Veterans Become Criminals, Daily Beast (July 28, 2013), http://www.thedailybeast.com/articles/2013/07/28/from-ptsd-to-prison-why-veterans-become-criminals.html; David Wood, Combat Veterans with PTSD, Anger Issues More Likely to Commit Crimes: New Report, World Post (Oct. 10, 2012), http://www.huffingtonpost.com/2012/10/09/veterans-ptsd-crime-report_n_1951338.html.
See Marc Mauer & Virginia McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits, Sentencing Project (Updated Sept. 2015), available at http://sentencingproject.org/wp-content/uploads/2015/12/A-Lifetime-of-Punishment.pdf. In 2015, 37 states enforced the TANF ban; 34 states enforced the SNAP ban; 25 states conditioned receipt of welfare on the nature of conviction(s) (e.g., individuals convicted of drug possession but not manufacturing or distribution may receive benefits); some looked to completion of drug treatment programs or a post-conviction waiting period. Id.at 2. See also ABA Standards, supra note 12, at 39 (arguing that prisoners themselves do not need and should not receive welfare assistance while in prison).
See NACDL, supra note 26, at 33 (providing, e.g., that California bans “every person on the [sex-offender] registry” from public housing, so “those convicted of public urination in California are barred for life from public housing while those convicted of more serious violent offenses are not.”).
See, e.g.,Judge Harold Baer, Jr., Collateral Consequences of Conviction: A Reminder of Some Possible Civil Penalties, at 8 (2011), available at http://bit.ly/2jpieN0; Randy T. Leavitt, Collateral Consequences of Criminal Convictions 6–7 (2009), available at http://randyleavitt.com/11_Leavitt.pdf.
See generally ABA Standards, supra note 12; Devah Prager, The Mark of a Criminal Record, 108 Am. J. Soc. 937, 960 (2003) (discussing employment barriers based on prior criminal conviction); Joe Palazzolo, For Americans Who Served Time, Landing a Job Proves Tricky, Wall St. J. (May 17, 2015), http://on.wsj.com/1HcwLfY (same).
DOJ Report, supra note 33, at 3; 10 U.S.C. § 504(a) (2006).
See U.S. Equal Emp’t Opportunity Comm’n, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Apr. 25, 2012) (§§ III.A & VI.A), https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm; Chin, supra note 7, at 1800; see also Vera, supra note 28, at 20 (noting state bill to loosen state restrictions on ex-offenders from private security employment).
See Chin, supra note 7, at 1800.
DOJ Report, supra note 33, at 4–5.
See Va. Code § 18.2-471; § 47.1-4; Inventory, supra note 5 (a search for mandatory employment-related restrictions under Virginia law generated 188 search results as of Jan. 16, 2017).
See Oh. Just. & Pol’y Ctr., supra note 31; Inventory, supra note 5 (a search for mandatory employment-related restrictions under Ohio law generated 666 search results as of Jan.16, 2017).
See Palazzolo, supra note 5.
See id.; Meek, supra note 6.
See Meek, supra note 6, at 17.
See, e.g., W.Va. Code § 30-22-10(a)(1).
See, e.g, W.Va. Code § 30-26-5(2).
See, e.g., W.Va. Code § 30-36-10(a).
This does not even scratch the surface. See Paul J. Larkin, Jr., Public Choice Theory and Occupational Licensing, 38 Harv. J. L. & Pub. Pol’y 209 (2015).
Eugene L. Meyer,Prisoners Learning Barber Trade in Jail, Wash. Post (Oct. 3, 2001), available at http://articles.latimes.com/2001/oct/03/news/cl-52695; Suzanne Le Mignot, Barber School Gives Jail Inmates Second Chance, CBS Chi. (Oct. 5, 2012),available at http://chicago.cbslocal.com/2012/10/05/barber-school-gives-jail-inmates-second-chance/; James Miller, Marion Correctional Institution’s Barber Program Gives Inmates Get [sic] a Clean-cut Benefit, Marion Star (April 29, 2014), http://www.marionstar.com/story/news/2014/04/29/barber-program-gives-inmates-get-a-clear-cut-benefit-/8482799/; Larry Yellen, Stateville’s First-ever Class of Barbers Graduate, Fox 32 (Nov. 18, 2015), http://www.fox32chicago.com/news/local/51335959-story.
See, e.g., Mike Cronin,Texas Aids Convicted Felon in Training as Barber but Denies License, Tex. Watchdog (June 7, 2012), http://www.texaswatchdog.org/2012/06/texas-aids-convicted-felon-in-training-as-barber-but-denies/1339021201.column; Michael Schulte, Felony Conviction, Barrier to Obtaining Professional License, Ga. Ctr. for Opportunity (Nov. 2014), http://georgiaopportunity.org/access-professional-licenses-benefit-returning-citizens/ (listing some of the “80 professions that are off-limits to those with a felony conviction, including barber, cosmetologist, electrical contractor, plumber, conditioned air contractor, auctioneer, utility contractor, registered trade sanitarian, and scrap metal processor”); Sondra Wolfer & Helen Peterson, Ex-Con Barber’s Cut Some Slack, N.Y. Daily News (Feb. 21, 2003), http://www.nydailynews.com/archives/news/ex-con-barber-cut-slack-article-1.676409; Bryant Jackson-Green, How Occupational Licensing Blocks Path to Success for Ex-Offenders, Ill. Pol’y (Apr. 7, 2015), https://www.illinoispolicy.org/how-occupational-licensing-blocks-path-to-success-for-ex-offenders/ (listing licenses that can be denied due to a felony record in Illinois, including barber, nail technician, pet shop operator, referee, livestock dealer, and dance hall operator).
Joe Palazzolo, Criminal Records Haunt Hiring Initiative, Wall St. J. (July, 2015), https://www.wsj.com/articles/criminal-records-haunt-hiring-initiative-1436736255?mobile=y.
Stephen Slivinski, Turning Shackles into Bootstraps, Why Occupational Licensing Reform Is the Missing Piece of Criminal Justice Reform (Center for the Study of Economic Liberty at Arizona State University Policy Report No. 2016-01, Nov. 7, 2016) (estimating “that between 1997 and 2007 the states with the heaviest occupational licensing burdens saw an average increase in the three-year, new-crime recidivism rate of over 9%. Conversely, the states that had the lowest burdens and no [‘good-character’] provisions saw an average decline in that recidivism rate of nearly 2.5%.”).
See the works of Sohoni; Uggen & Manza; Seiter & Kadela, supra note 25; see also See Mike Vuolo, Sarah Lageson, and Christopher Uggan, Criminal Record Questions in the Era of “Ban-the Box,” 16 Criminology & Pub. Pol’y 139 (2017) (collecting research); Tripodi, S. J., Kim, J. S., & Bender, K., Is Employment Associated With Reduced Recidivism?: The Complex Relationship Between Employment and Crime, International Journal of Offender Therapy and Comparative Criminology, 54 (5), 706-720 (2010) (individuals that obtained employment when released lowered their recidivism risk by 68.5% and averaged 31.4 months before being re-incarcerated, with a range of 9 to 60 months. Individuals that did not obtain employment averaged 17.3 months before being re-incarcerated with a range of 4 to 47 months, showing that employed ex-prisoners remain crime-free for a longer period of time than those that are unemployed.); Indianapolis-Marion County City-County Council Re-Entry Policy Study Commission Report (July 2013) (“According to research conducted by Dr. John Nally and Dr. Susan Lockwood of the Indiana Department of Correction, employment of ex-offenders is the #1 predictor of recidivism. Unemployed offenders are more than two times likely to recidivate than those who have a job.”), available at
http://www.indy.gov/eGov/Council/Committees/Documents/RE-ENTRY/Re-entry%20Policy%20Report.pdf; Nally, J.M., Lockwood, S, Ho, T., Knutson, K, The Post-Release Employment and Recidivism Among Different Types of Offenders With A Different Level of Education: A 5-Year Follow-Up Study in Indiana, Justice Policy Journal, Vol. 9, No. 1 (Spring 2012), available at http://www.cjcj.org/uploads/cjcj/documents/the_post-release.pdf; Deschenes, E.P., Owen, B., Crow, J., Recidivism among Female Prisoners: Secondary Analysis of the 1994 BJS Recidivism Data Set,available athttps://www.ncjrs.gov/pdffiles1/nij/grants/216950.pdf; Matheson, F., Doherty, S., Grant, B., Community-Based Aftercare and Return to Custody in a National Sample of Substance-Abusing Women Offenders, 101 American Journal of Public Health 1126-32 (June 2011), available at https://www.researchgate.net/publication/51052068_Community-Based_Aftercare_and_Return_to_Custody_in_a_National_Sample_of_Substance-Abusing_Women_Offenders.
See id.; see also Amy L. Solomon, In Search of a Job: Criminal Records as Barriers to Employment, 270 Nat’l Inst. Just. J. 42 (2012), available at http://www.nij.gov/journals/270/pages/criminal-records.aspx(citing related materials from the Justice Department); Michelle Natividad Rodriguez & Maurice Emsellem, 65 Million “Need Not Apply,” Nat’l Employment L. Project 3 n. 6 (2011) (arguing that “the opportunity for stable employment actually lowers crime recidivism rates and thus increases public safety.”), available at http://www.nelp.org/content/uploads/2015/03/65_Million_Need_Not_Apply.pdf. Collateral consequences likely account for significant losses in potential economic growth. At least one study has connected collateral consequences to a 1.5 percent to 1.7 percent reduction in the employment rate for men and estimates that “[i]n GDP terms, these reductions in employment cost the U.S. economy between $57 [billion] and $65 billion in lost output” in 2008 alone. John Schmitt & Kris Warner, Ex-offenders and the Labor Market, Ctr. for Econ. & Pol’y Res., at 14 (Nov. 2010). “Survey results suggest that between 60 [percent] and 75 percent of ex-offenders are jobless up to a year after release.” Research on Reentry and Employment, Nat’l Inst. of Just., Dep’t of Justice,http://bit.ly/1h8W6kx(last visited Jan. 9, 2017).
See Ex parte Garland, 71 U.S. 333 (1866) (discussing the consequences of a pardon); NACDL, supra note 26, at 20 (discussing expungement); Collateral Consequences Resource Center, State-Specific Resources, http://ccresourcecenter.org/resources-2/state-specific-resources/ (last accessed Oct. 25, 2016) (discussing various state and federal processes for restoration of rights); Joe Palazzolo, Brooklyn Judge Issues First Federal “Certificate of Rehabilitation”, Wall St. J. (Mar 8, 2016), http://blogs.wsj.com/law/2016/03/08/brooklyn-judge-issues-first-federal-certificate-of-rehabilitation/.
John G. Malcolm & John-Michael Seibler, Mandatory “Ban the Box” Requirements May Do More Harm Than Good, Heritage Foundation Legal Memorandum No. 198 (Jan. 30, 2017), available at http://www.heritage.org/research/reports/2017/02/mandatory-ban-the-box-requirements-may-do-more-harm-than-good.
See ABA Standards, supra note 12, standard 19-2.1; see also Margaret Colgate Love, Collateral Consequences After Padilla v. Kentucky: From Punishment to Regulation, 31 St. Louis U. Pub. L. Rev. 87, 118–21 (2012) (arguing that counsel should inform defendants of potential collateral consequences).
See generally ABA Standards,supra note 12; see also Dep’t of Justice, Smart on Crime—Reforming the Criminal Justice System for the 21st Century 5 (Aug. 2013), https://www.justice.gov/sites/default/files/ag/legacy/2013/08/12/smart-on-crime.pdf.
See Vera, supra note 28 (on state reform efforts between 2009-2014).