Michelle A. Malone, University of New Haven
The legal restrictions imposed upon the accused and convicted create virtually indestructible barriers that prevent former offenders from successfully reentering society in a law-abiding, meaningful way. Such restrictions sanction offenders by virtue of their mere contact with the criminal justice system, and then these impediments remain with them throughout their prosecution, ultimate conviction, and eventual reentry endeavors. Consequently, these individuals are scarred permanently with the stigma of criminality, which greatly impedes opportunities for post-conviction success. Although rights restoration programs have been promulgated federally and by states to mitigate these legal restrictions, inconsistencies in policy interpretation and implementation and their general underutilization renders policies highly ineffective at assisting and protecting former offenders. This paper explores the collateral consequences of the legal restrictions that follow contact with the criminal justice system and recommends how best to improve and encourage participation in rights restoration programs.
Are Collateral Consequences a Problem Needing Attention?
Out of concerns for public safety, many collateral consequences attach to the direct punishments that follow a criminal conviction. Defined as policies that place additional legal restrictions on an offender’s rights and privileges, collateral consequences serve as impediments (quite often severe in nature) to an offender’s successful societal reintegration (Ewald, 2016). The purported purpose of collateral consequences descends from the need to reduce foreseeable harm to others that may be committed by the prior offender sometime in the future (Hoskins, 2018). By criminalizing certain types of conduct that would have otherwise been permissible if not for the commission of a prior offense, an offender’s interests are relegated purportedly for the benefit of the greater good of society (Hoskins, 2018). The exclusion from opportunity and the elimination of vital benefits cause individuals with criminal records to lose necessary legal rights and social statuses, which make it difficult for individuals with criminal records to reintegrate into society.
Collateral consequences always have permeated the criminal justice system in the United States. The concept is derived from the European notion of “civil death,” which imposed permanent losses of offenders’ voting rights, restricted their ability to engage in contract formation, and restricted their abilities to inherit or bequeath property (Pinard, 2010). Although collateral consequences are the separate and distinct civil ramifications of criminal behavior, many critics argue that they are a direct extension of criminal punishments (Hoskins, 2018).
Typically, either offenders fail to appreciate the stark realities of these consequences prior to conviction, or they are not forewarned of their existence (Pinard, 2010). Instead, these consequences serve as hidden penalties that are separate and distinct from criminal punishment. Nonetheless, they imprison offenders with de facto life sentences of severe and often permanently debilitating disenfranchisement.
Specifically, along with carrying the undesirable stigma associated with offending, felons lose certain official and legal privileges related to their right to vote, obtain employment, hold office, serve on a jury, carry a firearm, obtain professional licensing, receive public assistance, join the military, or even qualify for a loan (Ewald, 2016). Rights are lost that are arguably essential in order to restart and maintain a prosocial life-path, such as being afforded the opportunity to seek and secure gainful employment to legally meet financial obligations. Although collateral sanction policies vary widely across state and federal lines, their restrictions categorically affect an offender’s livelihood in such a way that strains families to the point that their impact may be more burdensome than a formal criminal penalty and sentencing. Because of this, it has been argued that collateral consequences exacerbate the wrongs of over-criminalization (Hoskins, 2018).
Occupations that typically restrict the employment of applicants with criminal records include “accountant, police officer, teacher, architect, barber, cosmetologist, roofer, chiropractor, plumber, interior designer, land surveyor, and farm labor contractor” (Hoskins, 2018, p. 627). Additionally, professional and recreational licensing restrictions generally disqualify individuals from public service employment, restrict abilities to hold certain types of driver’s licenses, ban holding notary credentials, and prohibit possessing a firearm (Goulette & Frank, 2018).
Beyond their impact on future licensor and employment opportunities, collateral consequences can potentially influence the daily lives of offenders by restricting where they reside. Federal regulations allow public housing agencies to deny residency to prospective tenants with criminal records and allow them to prohibit drug offenders from seeking welfare assistance (Hoskin, 2018). Moreover, many state and municipal laws prevent convicted sex offenders from residing near locations where children are routinely present (Hoskin, 2018). Even more troubling, contacts with the criminal justice system trigger automatic deportation proceedings for non-citizens (Goulette & Frank, 2018 and Hoskins, 2018). Assuming that an offender can overcome all of these formal hurdles, the lasting impact of the social stigma associated with an arrest or criminal conviction routinely manifests in an employer’s decision to reject a job applicant from gainful employment or a landlord’s denial of a lease applicant from suitable housing (Hoskins, 2018).
Why are the Impacts of Collateral Consequences so Significant?
The detrimental impact that collateral consequences present is significant, because the consequences are civil penalties that do not constitute criminal sanctions. The consequences are imbedded within various federal, state, and local rules and regulations, making them difficult for advocates, let alone offenders, to synthesize and adequately address (Pinard, 2010). Therefore, the consequences generally are not considered or tempered by the criminal justice system. As such, practitioners tend to avoid them (Pinard, 2010). In a Midwestern collateral consequences study surveying the opinions of judges, defense attorneys, probation and parole officers, and prosecutors, results indicated that although many respondents believed that criminal defendants should be notified about potential collateral consequences, it appeared that each group opposed individual responsibility for taking charge of those notifications (Goulette & Frank, 2018). The study also found that practitioners preferred to allow discretion to be exercised when determining the extent to which and when to apply collateral consequences to an offender (Goulette & Frank, 2018).
Due to the depth and pervasiveness of collateral consequences, virtually all offenders are impacted adversely by their mere existence. Simply put, collateral consequences present enormous challenges because they set up offenders for catastrophic failure. Implicit with the social and economic ramifications that attach to collateral consequence policies, a denigration of the fundamental protections and privileges of fairness occurs. Offenders often are treated as less deserving and, therefore, are afforded fewer opportunities.
For example, established research indicates that without steady employment and adequate living accommodations, offenders are more likely to recidivate (Sampson & Laub, 1993). This relationship between employment and reoffending was explored by Sampson and Laub’s seminal age-graded theory of informal social control. The theory is derived from Sampson and Laub’s (1993) examination of behaviors across the human life span (from childhood through adulthood) to understand the underlying processes that cause persistent offending or desistance from crime over time. As a result, they describe desistence as a dynamic that can be achieved over time, not necessarily a singular occurrence. However, according to Sampson and Laub (1993), it is difficult to predict whether an individual will continue to offend or desist. Although they recognize much of life can be fortuitous, variations of social control mechanisms can facilitate changes in patterns of offending into adulthood. Life instead can be described best as a series of interactions and reactions to situations. Therefore, the original age-graded theory suggested that, when studying pathways to crime and adult criminal behavior, it is not enough to study stability or continuity in offending; rather, an examination of how varying social bonds and contacts over time may change an individual’s life trajectory is more appropriate (Horney, Osgood, & Marshall, 1995).
Through their theory, Sampson and Laub (1993) demonstrated that the underlying nature of crime is affected by the quality of the social bonds experienced by an individual in childhood and adulthood. Research, however, has indicated that the existence and quality of those social bonds may not be consistent in caliber and strength as an adult. Skardhamar and Savolainen (2014) further assessed changes in criminality and the timing of transitions towards desistance, specifically as they related to the procurement of stable employment by certain offenders in Norway. The study, in part, questioned whether offenders needed to first abstain from offending in order to secure employment, or if it was possible to transition to gainful employment while still actively offending. The analysis revealed that entries into gainful employment were preceded by significant declines in criminal offending. Although there was some support that older offenders benefited more from employment than younger ones, results indicated that continued employment is not associated with reductions in offending. These findings are in opposition to the logic supporting Sampson and Laub’s (1993) age-graded theory. Skardhamar and Savolainen (2014) argued that their results were explained partially by the fact that not all jobs are good enough to change the trajectory of a life course and highlighted the fact that the quality and impact of adult social bonds vary amongst individuals.
Programs that Promote and Support Desistence
Empirical explorations of Sampson and Laub’s (1993) theory accentuate the complexities in the measurement and the study of the timing and the influence of social bonds on the process of desistence. Irrespective, the primary goal of Sampson and Laub’s (1993) work was to inform and enhance the dialogue surrounding crime and crime policy. Towards that end, Sampson and Laub (1993) devoted a significant portion of their concluding remarks to their perspective on criminal policy. In their opinion, incarceration depletes future opportunities because imprisonment records negatively affect an offender’s ability to secure stable employment. Therefore, they argued that it was more appropriate to focus on crime prevention through the encouragement and support of strong institutions of informal social control. Positive impacts from institutions such as schooling, familial bonds, and employment opportunities will have more potential in promoting positive, prosocial futures.
In that light, early intervention programs serve as a popular mechanism to champion that endeavor. Although early intervention programs may very well aid in promoting life trajectories towards crime avoidance, the political trend towards sustaining tough on crime approaches and continued support of mass incarcerations necessitates working towards improving correctional interventions as a more practical way to motivate and enable offenders to live more prosocial lives upon release. One related endeavor would be to alleviate the burden of the stigma associated with criminal records. Rights Restorations programs are underutilized initiatives in that regard.
Pre-Existing Rights Restoration Policies
Steps have been taken to address collateral consequence in order to work to minimize their impact on offender reentry. Rights Restoration programs seek to mitigate the collateral consequences of conviction by aiding in the clawing back of rights lost. Such programs are promulgated by state and federal law (Wolitz, 2009) and perhaps operate in the spirit of Sampson and Laub’s (2014) structural turning points that set the stage for positive change during the adult life course.
Love, Gaines and Osborne (2018) organized rights restoration policies across the 50 states into the following six categories:
1) Executive Pardons: The extension of an official act of forgiveness, which relieves the impact of collateral consequences by lifting civil disabilities and certifies good character. Opportunities for pardons vary amongst the states, while the number of presidential pardons is relatively small compared to the amount of requests made for them (Love, Gaines, Osborne, 2018).
2) Judicial Record-Closing: The authorization of the expungement or sealing of criminal records; limiting public access to criminal records and allowing offenders to legally deny their offenses provides offenders with the veneer of a clean slate (Love, Gaines, & Osborne, 2018). Nonetheless, historic information regarding criminal offending tends to leave a digital imprint online, which is relatively easy to access and cheap to obtain through technological information brokers (Wolitz, 2009).
3) Deferred Adjudication: The delay of conviction, which may allow an offender to avoid collateral consequences. Generally, the offender receives the opportunity to enter a diversionary program while the criminal case pends without judgment. Upon completion of the program, charges are potentially dismissed or reduced, and the criminal record may be sealed or expunged (Love, Gaines, Osborne, 2018).
4) Judicial Certificates of Relief: They limit the impact of collateral consequences by converting mandatory collateral consequences into discretionary impairments. These certificates do not remove information from a person’s criminal history or limit public access to information, but they do help provide reassurance about an offender’s rehabilitation progress. By way of example, a specific rights restoration statute is New York, Consolidated Law Section 702, Certificates of Relief from Disabilities Issued by Courts. This New York statute constitutes the oldest certificate of relief policy, and when combined with New York’s progressive anti-discrimination laws, has the potential for far-reaching impact (Love, Gaines, Osborne, 2018).
The statute grants courts of law the discretionary power to offer a qualifying offender a certificate of relief to help elevate any bars to employment imposed upon the offender by law due to the conviction. In theory, the certificate of relief improves legal opportunities for the offender by allowing the offender to still apply for and obtain professional licenses or certificates notwithstanding their conviction (Ewald, 2016). Such opportunities would allow offenders to hinder the impact of prior offenses so that those offenses do not operate as a detrimental scar on the future outlook of the offender’s life course. However, during a 2016 study conducted by Ewald, interviews with 21 New York county judges and probation officials revealed their perceptions of sparse and inconsistent implementation of the New York Certificates of Relief law.
5) Fair Employment and Licensing Laws: Laws that regulate the consideration of an applicant’s criminal record in employment or licensing applications. The general standards amongst the states prohibit an employer’s consideration of an applicant’s criminal record unless there is some type connection between the type of expected job tasks and criminal behavior (Love, Gaines & Osborne, 2018).
6) Restoration of Voting Rights: Policies that promote the reinstatement of voting rights and the potential opportunity to vote even while incarcerated. Only four states permanently prohibit a felony offender’s right to vote absent executive action. The remaining states have varying procedures for reinstating voting rights (Love, Gaines, & Osborne, 2018).
Unfortunately, the presence of rights restoration laws do not necessarily equate with information dissemination about their existence (Ewald, 2016). In fact, few offenders know about such opportunities or are able to navigate the legal system in order to afford themselves the right to receive such benefits. Thus, not surprisingly, there is little research on the use or effectives of such programs.
Policy Revisions or Initiative Options
Arguably, offenders need more exposure to and assistance with obtaining available relief from the automatic exclusions of vital opportunities that attach to criminal convictions, because advances in technology have allowed information regarding convictions to be damagingly accessible. Although the resurgence of policies that emphasize reentry and rehabilitation programs have directed a focus towards the formalized efforts to assist offenders in regaining access to legal opportunities and benefits, more can be done to promote these programs. The following options are proposed to better support offender reentry:
First, consideration should be given to heavily reforming, or completely eliminating, collateral consequences. It can be argued that the harm that the impact of collateral consequences inflicts upon offenders far outweighs societal benefits. In fact, the impact of the harm to offenders may even exacerbate the harms to society because, when suffering from the disenfranchising effect of collateral consequences, offenders are left with little recourse beyond recidivating. Reoffending is often the only option when vital legal rights are taken away. By removing the formal impediments to reentry, offenders may be able to increase their opportunities, in order to reemerge positively back into society.
A second option to help mitigate the impact of collateral consequences would be to promulgate mandatory continuing legal education programs that focus on training practitioners, specifically the judges, prosecutors, defense attorneys, and probation and parole officers on the existence of collateral consequences and the implementation of rights restoration programs. This option would empower practitioners to be more forward thinking in order to become better advocates or to demonstrate greater mindfulness towards the global impact that a conviction may have on an offender’s future.
A third possibility for addressing the harmful effects of collateral consequences would be to build reentry partnerships amongst practitioners and offenders that focus on the promotion of rights restoration endeavors. The partnerships would support opportunities for second chances by offering formalized reentry programs that not only connect offenders to services that include substance abuse treatment, educational resources, family services, healthcare, job readiness, and training, but specifically seek to promote the restoration of rights. By assisting offenders in eliminating the obstacles that prevent them from availing themselves to opportunities for advancement and betterment, offenders will be more likely to experience successes following their contacts with the criminal justice system.
Advantages and Disadvantages of the Potential Policy Options
The options discussed above, standing alone, are imperfect solutions to the challenges that collateral consequences present. The problem, of course, with eliminating all collateral consequences is that there are certain categories of offenders who necessitate certain harsh penalties in order to forewarn members of society of the imbedded risks associated with interacting with those that have an increased propensity to reoffend. The problem with attempting to mandatorily “educate” practitioners as to the existence of collateral consequences and rights restoration policies is that there is no guarantee they will utilize, implement, or expose offenders to their availability, due to personal aversions or biases that may prevent them from supporting opportunities for rights restoration.
Recommended Course of Action
Summarily, all of the above options are potentially viable and collectively important. Politicians may need to reform or eliminate certain harsh consequences that stem from having contact with the criminal justice system and they may also need to promulgate clearer policy guidelines aimed at notifying criminal defendants of the potential civil consequences that may indirectly flow from their criminal conduct. Beyond overall criminal justice reform, an amalgamation of the second and third options described above is recommended. Specifically, a twofold initiative that would first educate practitioners and offenders about the various opportunities available for legally permissible rights restoration, followed by efforts to implore members of the legislative and judicial branches to formulate partnerships that invite practitioners and offenders to work collaboratively to support the pursuit of post offense rights restorations. The more awareness that is spread concerning the valuable opportunities that offenders may have, and the more collaborative approaches to support that they receive, the more likely offenders will be to clear their pathways towards law abiding behaviors, and the more likely they will be able to sustain such behavior.
When it comes to crime, it is possible to redirect an offender away from criminal activity. Change can happen. Interactions with key institutions of informal social control have the potential to alter an individual’s life course at any age during any moment in time. If practitioners and offenders collaborate to assist in promoting the opportunities afforded by rights restoration initiatives, offenders can help themselves clear their paths to desistence from crime regardless of the nature of their prior offenses.
Ewald, A.C. (2016). Rights restoration and the entanglement of US criminal and civil law: A study of New York’s “Certificates of Relief.” Law & Social Inquiry. 41(1) 5-36.
A historic, legal and procedural examination of New York’s Certificates of Relief from Civil Disabilities statute including an analysis of results from interviews with forty-four New York state judges and probation offers taking place between 2012 and 2013. Results indicated that the complexity of the statute coupled with how practitioners interrupt and utilize the law might explain the variations that occur within the state when rendering awards.
Goulette, N. & Frank, J. (2018). Examining criminal justice practitioners’ views on collateral consequences policy. American Journal of Criminal Justice.
An article exploring the perceptions of criminal justice practitioners about the collateral consequences of convictions. Findings indicate that although the practitioners find them to be troubling, the degree and extend to which they should potentially be modified varied.
Horney, J.D., Osgood, W., & Marshall, I. H. (1995). Criminal careers in the short-term: Intra-individual variability in crime and its relation to local life circumstances. American Sociological Review, 60, 655-673.
A study utilizing a retrospective survey amongst 600 offenders in an effort to collect a month-by-month account of their daily life circumstances and criminal conduct. The aim of the study was to measure offending over short periods of time to provide a different perspective on the examination of changes or transitions away from offending. Results indicated that adult social events are related to crime and shifts in social circumstances can indicate short-term changes in criminality.
Hoskins, Z. (2017). Criminalization and the Collateral Consequences of Conviction. Criminal Law & Philosophy. 12:625-639.
An exploration of the differing types of collateral consequences and the potential harms that they may inflict and whether they constitute a form of over-criminalization that requires rectification.
Love, M., Gaines, J. & Osborne, J. (2018). Forgiving & forgetting in American justice: A 50-State guide to expungement and restoration of rights. Federal Sentencing Reporter, 30, Nos. 4-5, 348-360.
A summary and analysis of United States rights restoration laws organized in the following categories: executive pardon, judicial record-closing, deferred adjudication, certificates of relief, fair employment and licensing law, and restoration of voting rights.
Pinard, M. (2010). Reflections and perspectives on reentry and collateral consequences. The Journal of Criminal Law & Criminology. 100:3. 1213-1224.
A discussion of steps taken to understand, address, and mitigate the impact of collateral consequences given the current prisoner reentry crisis. The paper suggests that a criminal conviction no longer represents the conclusion of the criminal process and explains that a goal of the criminal justice system should be to assist offenders with moving beyond their offenses.
Sampson, R. J., & Laub, J.H. (1993). Crime in the making. Pathways and turning points through life. Cambridge, Massachusetts: Harvard University Press.
A study examining behaviors across the human life span from childhood through adulthood in an effort to understand the underlying processes that cause persistent offending or desistance from crime over time. The study restored a prior data set to test the strength of the authors’ newly promulgated age-graded theory of informal social control.
Skardhamar, T., & Savolainen, J. (2014). Changes in criminal offending around the time of job entry: A study of employment and desistance. Criminology, 52, 263-291.
A Norwegian study assessing desistance specifically as it related to the procurement of stable employment. The study, in part, questioned whether offenders needed to first abstain from offending in order to secure employment or if it was possible to transition to gainful employment while still actively offending. The analysis revealed that entries into gainful employment were preceded by significant declines in criminal offending but that not all jobs may be good enough to sustain desistence.
Wolitz, D. (2009). The stigma of conviction: Coram nobis, civil disabilities, and the right to clear one’s name. Brigham Young University Law Review. 1277-1340.
An article arguing that civil disabilities imposed post-conviction perpetuate the suffering of ongoing legal harm.
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