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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.

prison
Saowanee Burarak/EyeEm
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.