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Analysis

Collateral Consequences and the Enduring Nature of Punishment

For some people, punishment can continue years after the sentence ends, even decades.

View the entire Punitive Excess series

This essay is part of the Bren­nan Center’s series examin­ing the punit­ive excess that has come to define Amer­ica’s crim­inal legal system.

Less than two years ago, while combat­ing the worst wild­fires in its history, Cali­for­nia enlis­ted the help of nearly 2,000 imprisoned people to serve as fire­fight­ers. Profes­sion­ally trained and serving in the same way as other seasonal fire­fight­ers, many of them worked long hours on the front lines, clear­ing tinder brush and trees with chain­saws and hand tools to halt the flames.

But until a recent change in a long-stand­ing law, this fire­fight­ing exper­i­ence would have had precisely zero util­ity for most of these people after their release from prison. As crim­inal offend­ers, they would have been barred for life from becom­ing licensed emer­gency respon­ders. And the people of Cali­for­nia would have been deprived of their exper­i­ence, their skill, and their bravery.

Yes, the law was finally changed — but that made only the tini­est dent in the forbid­ding edifice of more than 45,000 state and local laws and regu­la­tions that have profound rami­fic­a­tions for Amer­ican soci­ety: the social exclu­sion that arises from the “collat­eral consequences” of mass incar­cer­a­tion. Roughly 600,000 people leave pris­ons every year hoping that their punish­ment has ended, only to encounter a combin­a­tion of laws, rules, and biases form­ing barri­ers that block them from jobs, hous­ing, and funda­mental parti­cip­a­tion in our polit­ical, economic, and cultural life.

These “collat­eral consequences” power­fully illus­trate the excess­ively retributive nature of Amer­ican crim­inal justice. From the inab­il­ity to acquire a driver’s license (and thus, the inab­il­ity to drive to work) to limits on access to college or even milit­ary service, they serve to remind people with crim­inal records of their perman­ent status as “other.”

Truly ending mass incar­cer­a­tion will require elim­in­at­ing these consequences as well, ensur­ing that we welcome people with a crim­inal record back into soci­ety and, ulti­mately, shift­ing our crim­inal justice paradigm away from retri­bu­tion and towards restor­a­tion. As Jeremy Travis notes, in the modern, developed welfare state of the 20th century, the collat­eral consequences faced by formerly imprisoned Amer­ic­ans amount to a vari­ant of the anachron­istic tradi­tion of “civil death,” in which return­ing citizens are “defined as unworthy of the bene­fits of soci­ety, and [are] excluded from the social compact.”

Limits on employ­ment oppor­tun­it­ies

As of 2018, 80 percent of employ­ers conduc­ted back­ground screen­ing on candid­ates for full-time posi­tions. While in some cases there is a compel­ling rationale for these checks, in others they screen people out of the work­force unne­ces­sar­ily, turn­ing a convic­tion record into a scar­let letter. In her seminal study, “The Mark of a Crim­inal Record,” the late Devah Pager found that a crim­inal convic­tion reduced the like­li­hood of a job applic­ant receiv­ing a call­back by 50 percent for white applic­ants and by nearly two-thirds for Black applic­ants.

But beyond private actions, the role of govern­ment in limit­ing oppor­tun­it­ies for the formerly incar­cer­ated is mani­fest. Start­ing in the mid-1980s, state legis­latures accel­er­ated the number and breadth of occu­pa­tional restric­tions for people with prior convic­tions. In the 1970s, roughly 1,950 separ­ate laws limited job oppor­tun­it­ies for people with a crim­inal record. Today, more than 27,000 rules bar formerly justice-involved people from hold­ing profes­sional licenses. (This includes a New York State law that bars anyone with a crim­inal convic­tion from obtain­ing a bingo oper­at­or’s license!)

These limit­a­tions and the corres­pond­ing lack of job oppor­tun­it­ies can trap people in poverty for decades after incar­cer­a­tion. As of 2019, nearly one-fourth of those serving time in pris­ons fell between the ages of 20 and 29. Most of them will be released at some point — many will enter the job market, and some will find success. But even then, they are likely to begin their work­ing lives earn­ing roughly $7,100 less per year than indi­vidu­als of similar socioeco­nomic status without a crim­inal record and end them trail­ing these peers by more than $20,000 annu­ally. As recent Bren­nan Center research suggests, a prior crim­inal convic­tion is devast­at­ing to an indi­vidu­al’s earn­ing prospects, but a prison record all but ensures a life­time strad­dling the poverty threshold.

Social exclu­sion helps explain this poverty trap. When work is secured after a stint in prison, it is often tempor­ary, part-time, and low paying, thus lack­ing in prospects for upward mobil­ity. Even those who find decent jobs are limited by back­ground screen­ing and licens­ing rules that make progress in one’s career that much more diffi­cult at every step, as people with a record may be less likely to be considered for the promo­tions and raises that drive wage growth. Simil­arly, licens­ing restric­tions and crim­inal back­ground inquir­ies make people who have spent time in prison unlikely to see the same return on invest­ment from profes­sional creden­tial­ing or train­ing as their peers.

The tattered social safety net

English soci­olo­gist T.H. Marshall observed in 1950 that, as West­ern soci­et­ies evolved, so too did the notion of citizen­ship. Where citizen­ship in the 18th and 19th centur­ies was defined by civil and polit­ical rights, he concluded that citizen­ship in an advanced 20th century soci­ety meant social rights. He called these “a compound of mater­ial means and imma­ter­ial ends . . . located between the poles of wealth and happi­ness” — in other words, what we know as welfare. Yet more than 70 years later, many Amer­ican states continue to exclude people with crim­inal convic­tions from welfare bene­fits, lead­ing to mater­ial depriva­tion that compounds their social isol­a­tion.

Job and hous­ing insec­ur­ity make it more likely that someone with a crim­inal record might need to rely tempor­ar­ily on govern­ment programs designed to provide relief from poverty. But since 1996, people convicted of certain drug crimes have been ineligible for govern­ment assist­ance through the Tempor­ary Assist­ance for Needy Famil­ies (TANF) program and Supple­mental Nutri­tion Assist­ance Program (SNAP). Congress permit­ted states to opt partially or wholly out of this frame­work and, thank­fully, many states have in fact chosen to relax those rules. But even modi­fied bans in nearly half the states continue to compound disad­vant­age and set up a self-perpetu­at­ing cycle of poverty and recidiv­ism. Given how many people involved with the justice system also stand on the edge of poverty (in one study, more than half of formerly imprisoned people surveyed report annual earn­ings less than $500 just before their incar­cer­a­tion), these restric­tions are espe­cially damaging.

Moreover, formerly incar­cer­ated people face a signi­fic­antly elev­ated risk of home­less­ness, in part because another crit­ical part of the social safety net, public hous­ing, is often unavail­able to many of the tens of millions of Amer­ic­ans with an arrest or convic­tion record. Begin­ning in the 1980s, Congress passed and public hous­ing author­it­ies imple­men­ted “one strike and you’re out” rules provid­ing for the evic­tion of people who became involved in crim­inal activ­ity. Those policies have slowly been tempered, but they still perman­ently exclude people convicted of certain crimes. Home­less­ness and hous­ing insec­ur­ity make it that much harder for people to stay connec­ted to family, employ­ment, and the basic neces­sit­ies of life — almost the very defin­i­tion of social exclu­sion.

Things are begin­ning to change. After complet­ing a pilot program launched in 2013, the New York City Hous­ing Author­ity began allow­ing select people with crim­inal records back into public hous­ing on a provi­sional basis, help­ing reunite famil­ies in the process. Further reforms are forth­com­ing. And a few years ago, the public hous­ing author­ity in New Orleans elim­in­ated its blanket ban on hous­ing assist­ance for people with a crim­inal record. But in many states, the exclu­sions remain in place.

Voting rights

The prac­tice of felony disen­fran­chise­ment traces its roots back to ancient times, but found new life in the Jim Crow era. After formerly enslaved Black people were freed, states quickly imple­men­ted so-called Black Codes, which encour­aged and stream­lined the base­less arrest and convic­tion of Black citizens. Build­ing on this struc­ture, many states adop­ted laws to strip voting rights from people with a crim­inal record. Some states, like Virginia, expan­ded preex­ist­ing laws to encom­pass offenses like petty theft, as white politi­cians believed many Black people could be easily convicted of such crimes.

Unfor­tu­nately, this racist legacy endures. Currently, 30 states disen­fran­chise at least some people based on past convic­tions. The work to change these laws has proceeded in fits and starts, though with increased momentum in recent years, as the governors of Iowa and Kentucky, among others, issued exec­ut­ive orders restor­ing voting rights to people with prior convic­tions. Also, in 2018, a super­ma­jor­ity of Flor­idi­ans voted to restore voting rights to as many as 1.4 million people with felony convic­tions. Shortly after the refer­en­dum, though, Flor­ida legis­lat­ors passed a law that made voting rights condi­tional upon people paying all fees, fines, and resti­tu­tion owed due to their convic­tion, which the “over­whelm­ing major­ity” of Flor­idi­ans with convic­tions cannot afford to pay.

Collat­eral consequences of crim­inal convic­tion or incar­cer­a­tion are not unique to the United States. But they are unique here for their depth, sever­ity, and pervas­ive­ness. Brit­ish citizens, for example, are only deemed ineligible for welfare bene­fits if convicted of a welfare fraud offense. And their ineligib­il­ity is tempor­ary: it lasts just four weeks. In 2002, Canada’s Supreme Court found “denial of the right to vote on the basis of attrib­uted moral unwor­thi­ness” incom­pat­ible with Cana­dian demo­cratic values.

But in the United States, after finish­ing a prison sentence, citizens face contin­ued de facto punish­ment, as their crim­inal record increases the like­li­hood that they suffer home­less­ness, restricts their access to the social safety net, and strips them of their right to vote, further damaging their sense of civic inclu­sion. This fixa­tion on contin­ued punish­ment is not inev­it­able: it is a policy choice, and it is one that can be changed.