A recent report issued by the National Association of Criminal Defense Lawyers (NACDL) has called for a “broad national initiative” to reverse what they termed “America’s infatuation with collateral consequences has produced unprecedented and unnecessary collateral damage to society and the justice system.” NACDL’s initiative would “construct a ... clear path to equal opportunity...to have their legal and social status fully restored.”

Criminal justice experts all agree that with one in four Americans having a criminal record and facing “specific legal restrictions, generalized discrimination and social stigma,” it is more important than ever to eliminate roadblocks to equal opportunity. The report calls for “individuals who pay their debt are entitled to have their legal and social status fully restored.”

Too often, NACDL says, the convicted are relegated to second-class status and stigmatized by their criminal record, which can adversely affect, “employment ... licensing, housing, education, public benefits, credit and loans, immigration stats, parental rights, interstate travel, and even volunteer opportunities.” Unfortunately, the same group says, that the widespread usage of background checking has further limited convicted individuals’ reentry alternatives.

The report says that all three branches of government should broaden their focus not only on enforcing law and carrying out punishment, but should “undertake a comprehensive effort to promote restoration of rights and status after conviction,” thereby reducing unforeseen collateral consequences that can lead to recidivism. It suggests a “National Restoration of Rights Day,” drawing attention to the plight of the convicted.

Criminal defense attorneys also have a part to play, NACDL says, to, “propose and support efforts to repeal collateral consequence and to enact effective ways to relieve any remaining collateral consequence.” One of the recommendations is to limit the use of terms like ”felon,” criminal,”, and ex-con,” which tend to demonize the convicted and perpetuate harmful stereotypes. Criminal defense lawyers were also encouraged to not neglect possible opportunities to eliminate provisions in sentencing documents that will unnecessarily restrict employment opportunities after completion of a sentence. Individualized determinations of the necessity of restrictions that might be unduly restrictive of employment and housing opportunities for ex-offenders should also be encouraged, the group said.

Additionally, the NACDL further advocated that ex-offenders be given an opportunity to restore their rights after they have completed their sentence, “either from that executive or from a court, by demonstrating rehabilitation and good character.  This relief process should be transparent, accountable and accessible to all regardless of means.”

Finally, courts “should limit access to and use of criminal records for non-law enforcement purposes and should ensure that records are complete and accurate.”  Recent studies have shown that arrest and conviction records are not always accurate, and employers and other decision makers should be encouraged to made individualized judgments on the suitability of individuals for either employment or some other benefit or activity, unless access to the records can be justified on supportable grounds of public safety.

Source: “Collateral Damage: National Association of Criminal Defense Lawyers,” www.nacdl.org, May, 2014.

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