Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Destined to Fail: the Negative Effect of Collateral Consequence Laws

Incarceration is intended as a deterrent to crime. But at least one report indicates that the opposite may be true. Dr. Tracy WP Sohoni of the University of Maryland received a federal grant to study the formal restrictions placed on a person as a result of being arrested and/or convicted for breaking a law. What she found was enlightening and more than a little disturbing.

Dr. Sohoni’s 2014 dissertation is a scientific study premised on three hypotheses. States with the most and harshest collateral consequence laws will; 1) have higher recidivism rates for new crimes; 2) have higher rates of parole violations; and 3) the scope of those collateral consequence laws will be reflected in recidivism rates. That is to say, the broader the scope of a collateral consequence law on everyday life the greater the negative effect it will have on successful reentry rates.

Dr. Sohoni’s study shows that collateral consequences have a negative effect on a person’s voting rights, ability to obtain employment, housing opportunities, access to public assistance and obtaining certain driver’s licenses. Additionally, collateral consequences place a greater burden on the poor and minority groups who are already disproportionately incarcerated in higher numbers.

She also points out that, “Although women have lower rates of involvement with the criminal justice system than men, arguably the impact of incarceration and subsequent collateral consequences may be greater.” In many cases, even women who were never incarcerated are adversely affected by collateral consequences. For example, a mother who lives in public housing is forced to move when her spouse returns from prison or remain a single parent if she chooses not to move.

” Family relations become strained when released offenders are not allowed to live with their wives and children because of public housing restrictions; when they are denied access to federal assistance programs, and when they are reminded at every turn that…having served one’s time is not enough for full reentry into society...” says Sohoni.

According to the study, “collateral consequences make it more difficult for offenders to find steady employment.” The stigma of a criminal history, increased access to public records and restricted access to certain kinds of licenses all work against an affected person from finding a stable job. Coupled with the fact that most parolees are released into clusters of core counties, “this can negatively impact local labor markets in those counties.”

Undoing the negative effects of collateral consequence laws has proven to be difficult if not impossible. While collateral consequences are activated by criminal offenses their enforcement is ultimately civil in nature making it a nearly impossible for opponents to mount a successful legal challenge. Moreover, many states have enhanced the punitive nature of collateral consequence laws. For instance, some states make it legal to sue employers for the actions of its employees. The result is that many employers are reluctant to hire ex-offenders no matter how long that person has remained out of trouble.

The study also showed that people under stress more readily tend commit crime as are people who suffer the stigma of being labeled by society. A released prisoner’s inability to find a job, stable housing or pay child support can result in parole violations and possibly steer a person back to a life of crime. The need to re-incarcerate a parole violator exacts a high price on taxpayers and exacts a high cost on communities in terms of human capital.

Many collateral consequences of criminal convictions even at the state level have federal origins. For instance, in 1992 federal law threatened to cut states’ highway funding if they did not place restrictions on driver’s licenses of persons convicted of drug offenses. In 1996 federal law banned for life anyone convicted of a felony drug offense from receiving food stamps. In 1997 federal law prohibited people with certain convictions from providing foster care or adopting children. In 1998 federal law disqualified students with a drug conviction from receiving grants, loans or work assistance. A number of federal laws now restrict anyone involved in drug-related criminal activity from residing in public housing. Federal restrictions drastically decrease the chances that a person convicted of a drug offense will ever attend college.

Approximately 700,000 prisoners are released from state prisons each year. About two thirds of those released return to prison within three years. According to the Bureau of Justice statistics (BJS) roughly a third of those sent back to prison in 2009 were parole violators. In her report, Dr. Sohoni has identified a number of reasons why so many of those released are re-incarcerated. Each of those reasons can be traced directly back to collateral consequence laws.

Most criminologists agree that collateral consequences serve as a deterrent to some extent but Dr. Sohoni notes that most collateral consequences are not highly publicized. Therefore, “…they would not be expected to have a specific deterrent effect on re-entering offenders as many of the consequences are triggered by a first offense and do not increase with subsequent offending. Thus any deterrent effect would only be among people with no criminal record, and this potential effect on crime rates may not outweigh the effect of these laws on returning offenders.”

In spite of her numerous charts and extensive list of references Dr. Sohoni admits that little hard evidence exists to show how collateral consequences affect those released from prison. But one fact is without dispute. Of the roughly 2.3 million individuals incarcerated in the U.S. more than 95% will someday be released and 80% of those will be released on parole. Their successful reintegration is directly proportionate to how much we help or hinder their efforts and a “consequence”, by definition, is designed to hinder. Collateral consequences can only fray the fabric of our society. 

Marc Mauer of The Sentencing Project testified before the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security in June 2010 that efforts need to be made to “provide relief in the area of collateral consequences.”  The question is will anyone listen?

Source: The Effect of Collateral Consequence Laws on State Rates of Returns to Prison; by Tracy Sohoni; Document No.: 247569; Award No.: 2012-IJ-CX-0006

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login