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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.