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States Adopt Limited Collateral Consequence Reforms; More Needed for Meaningful Impact

by Mark Wilson

Between 2009 and 2014, forty-one states and the District of Columbia enacted 155 laws - 93 in 2013 and 2014, alone - to ease the impact of some “collateral consequences of criminal convictions,” according to a recent report of the Vera Institute of Justice, Center on Sentencing and Corrections. Yet, those reforms do not go far enough to have any meaningful impact, the report found.

During the “tough-on-crime” era of the last 40 years, federal, state and local policymakers sought to extend the punitive reach of the criminal justice system beyond formal criminal sanctions. This resulted in “the expansion, both in number and scope, of a vast network of post-punishment penalties and restrictions (or ‘collateral consequences’) aimed at excluding individuals with criminal histories from many aspects of mainstream life,” the report found. Those collateral consequences were designed to “continue to stigmatize and marginalize individuals - with a criminal record well beyond their sentences. What has resulted is a system to delineate a person’s status as either a law-abiding member of the community at large or as one of those who must forever sit outside it.”

Today, approximately 45,000 laws and rules impose post-sentence civil penalties, disqualifications and disabilities, often for life, on the basis of a criminal conviction, according to the report. Worse yet, those who are impacted receive no warning of, or means of ever obtaining relief from, those “collateral consequences.”

These laws impact nearly every aspect of life and include: temporary or permanent loss of civil rights (e.g., the right to vote, serve on a jury, hold public office, etc.); temporary or permanent ineligibility for social benefits (e.g., public housing, food stamps, pensions, disability, veteran’s benefits, federally-funded student aid, etc.); employment or occupational licensing restrictions; restrictions on certain aspects of family life (e.g., adoption, child custody, etc.); and deportation of non-citizens.

“A criminal record – even a mere arrest record - can cast a long shadow on individuals and their families and still serve as a de facto basis for job, credit, or housing denial even absent formal disqualification,” researchers found.

The full impact of these collateral consequences is stunning given that in 2012, 70.3 million Americans had a criminal record. Nearly 7 million people were under correctional supervision, with 2.2 million of those people confined in jail or prison, according to the report.

In 2012 alone, 637,000 people were released from state and federal prisons, 11 million were released from jails and 2.6 million were released from community supervision. Collateral consequences negatively impacted all 14.2 million of those people - and their families - dramatically increasing their recidivism risk.

Politicians are finally beginning to understand and admit “that certain collateral consequences (particularly those impacting employment, housing and health) prevent people with criminal records from appropriately addressing proven risk factors for reoffending,” the report found.

Between 2009 and 2014, 41 states and the District of Columbia enacted 155 legislative reforms, in seven broad categories, to mitigate the burden of collateral consequences for certain criminal convictions, according to the report. Those categories include: creating or expanding expungement and sealing remedies; issuing certificates of recovery; allowing for offense downgrades; building relief into the criminal justice process; ameliorating employment-related collateral consequences; improving access to information; and mitigating specific collateral consequences.

While these reforms are an encouraging step in the right direction, the report concluded that they do not go far enough to provide meaningful relief. That is because: the reforms are narrow in scope; relief mechanisms are not easily accessible; the relief eligibility waiting period is far too long; and rules restricting third-party use of criminal history information are virtually unenforceable.

The Vera Institute recommends more meaningful reforms, including: allowing full restoration of rights and status as close as possible to sentence completion; making sealing and expungement remedies more broadly available; making remedies easier to access; establishing clear standards for use of criminal histories and offering incentives to third-party decision makers; restricting access to, and use of, criminal history information; expanding the use of front-end relief mechanisms, like deferred adjudication or diversion programs; and involving prosecutors and judges in reform efforts.

See: Relief in Sight? States Rethink the Collateral Consequences of Criminal Conviction, 2009-2014 (December 2014), by Ram Subramanian, Rebecka Moreno, and Sophia Gebreselassie. Copies of the report are available at: Vera Institute of Justice, 233 Broadway, 12th Floor, New York, NY 10279, collateral-consequences.