Overview: What Exactly are Collateral Consequences?
Collateral consequences consist of legal and regulatory limitations and are imposed on an individual as the result of a criminal conviction. As opposed to the time spent incarcerated in order to fulfill a sentence given by a court, collateral consequences are an indirect form of punishment imposed at the federal, state, and local levels, and pertain to the world that formerly incarcerated individuals face upon their reentry into society. Collateral consequences broadly apply to anyone with a criminal record, meaning that they can also affect those who never even end up spending any time incarcerated. In essence, they become attached to the lives of individuals with a criminal history, denying them the rights and privileges afforded to all other Americans on the basis of their status as ex-offenders. To varying degrees, collateral consequences can prohibit people convicted of a crime from accessing employment, business and occupational licensing, housing, the right to vote and to serve jury duty, education, and certain federal benefits–such as welfare, unemployment, and student loans, among other opportunities.
Some collateral consequences are designed to preserve public safety, such as those meant to strip violent offenders of weapons, remove those guilty of abuse or assault from certain situations, or other similar precautionary measures. Others, however, are often unrelated to the actual crime that was committed, causing one to possibly lose rights in a number of different dimensions of their lives following a conviction, even if their offense has no direct relationship to those rights that are lost. Nor does the effect of collateral consequences always have a relationship to the time that has passed since a conviction. In effect, this means that, in certain circumstances, an individual convicted of a crime can never fully regain their rights despite potential rehabilitory or restorative efforts they may pursue. In some cases, collateral consequences can be discretionary. But, most of the time, they are automatic and are activated as the result of either felony or misdemeanor convictions.
It is important to note that collateral consequences are an outflow of the central role that accountability plays in the criminal justice process. There are certain penalties tied to criminal convictions so that potential offenders remain wary of the consequences of breaking the law, even if these consequences sometimes extend beyond a sentence behind bars. Few would ask for a system in which this was not the case. That being said, it is nonetheless crucial to realize that prosecutors do not have to sacrifice their pursuit of accountability in order to adequately address the negative effects of collateral consequences. In fact, prosecutors in every part of the country can reinforce existing accountability mechanisms, reduce recidivism, and better target the root causes of crime by seeking to understand the pervasiveness of collateral consequences and utilizing their power to contain the extent to which they serve to undermine the primary objectives of criminal justice.
Modern Criminal Justice in America: Returning to Society
While the total U.S. prison and jail population hovered around 2.1 million as of 2019, tens of millions of additional formerly incarcerated or convicted Americans were subject to the punitive restrictions associated with collateral consequences. According to some estimates, anywhere from 70 to 100 million Americans have a criminal record, meaning that a significant portion–roughly a fourth–of the country’s population are currently or have been impacted by the indirect penalties of a conviction to at least some extent. This reflects the systemic and pervasive role of collateral consequences in American society. It also highlights just how crucial it is for any key player within the criminal justice system to adequately grasp the magnitude of the challenge posed by collateral consequences to those seeking to reenter society following a criminal conviction.
According to most recent estimates, more than 600,000 people are released from federal and state prisons in the U.S. each year. After what can sometimes be decades behind bars, these individuals are thrust back into society and asked to become productive members of their communities. Unfortunately, roughly two thirds of those released find themselves rearrested and half are reincarcerated within three years. This high recidivism is in large part due to the barriers imposed by the collateral consequences associated with a prior conviction. This is especially true with regard to the employment prospects of formerly incarcerated individuals or those with a criminal record seeking to establish personal and financial stability. With a litany of state and federal laws that make certain ex-offenders ineligible to obtain employment licenses, many researchers have affirmed the negative relationship between a criminal history and employability. With the reduced ability to land a job, individuals with a criminal record are put in an utterly difficult position, hoping to become reintegrated into society without arguably the most vital means of doing so: steady employment and income.
Beyond matters related to employment, however, ex-offenders also encounter tremendous obstacles in pursuing civic participation, higher education, and housing. According to the National Inventory of Collateral Consequences of Conviction (NICCC), a resource database developed by Criminal Justice Section of the American Bar Association (ABA) in 2012, there are approximately 4,000 collateral consequences related to the political and civic participation across the country that can apply to crimes ranging anywhere from controlled substance or sex offenses to a felony. When it comes to accessing education upon returning to society, the formerly incarcerated are ineligible for federal Pell Grants. Due to many additional restrictive barriers imposed in some states, many former inmates are also not eligible for any state-funded scholarships. This can have the broad effect of making higher education almost if not entirely inaccessible in most cases, denying individuals with a criminal record a key path to potential stability following their reentry.
It is in accessing housing, though, where individuals with a history of involvement with the criminal justice system face some of the most pressing challenges associated with collateral consequences. It is estimated that there are over 1,300 barriers to housing at the state, county, and city levels–along with 28 at the federal level–that await an individual convicted of a crime. These barriers mostly consist of background checks, denial of fair housing protections, eviction, and denial of rental or sale based on a criminal record. With the reduced ability to secure employment, education, or residency, members of the population with a criminal history can have very few places to turn. Nor can they in some cases vote, meaning that they are stripped of their right to have a say in who represents them when it comes to important policy decisions that likely will impact their lives. These conditions largely seem to be incongruous with the primary purpose of the American criminal justice system, which is to reform criminals to be better and more productive citizens in the future.
However, policy makers and prosecutors have more than just individual experiences to justify a new approach to collateral consequences. The corollary effects of criminal convictions are felt broadly by the entire economy and society, including those who have never been involved with the criminal justice system. It is estimated by the Center for Economic and Policy Research that in 2008 alone, the various barriers to employment for ex-offenders cost the U.S. economy anywhere from $57 and $65 billion in overall lost output. For context, this amount of lost economic output is greater than the GDPs of more than half of the world’s nations. Further, collateral consequences also hinder society in the way that they detract from efforts to reform ex-offenders into contributing members of their communities. In fact, they often have the opposite effect, leaving ex-offenders with little choice but to return to the types of activities that got them into prison in the first place. A growing body of research shows that those places which have greater occupational licensing burdens or restrictions for former criminals have a higher average rate of recidivism.
If there seems to be a link between certain collateral consequences and higher rates of recidivism, why is there some resistance to new approaches to the penalties of conviction? Many understandably associate collateral consequences with the concepts of accountability and deterrence in the justice process. It is a primary duty of a prosecutor to ensure that justice is adequately administered to those who are guilty of a crime. Prosecutors also have the ability to deter future criminals by consistently holding those who break the law accountable for their actions. In accordance with this view, collateral consequences seem to fit the mold for another effective method to achieve the principal goals of criminal justice. So what’s the big deal?
While accountability and deterrence are integral to justice, the perspective mentioned above fails to account for the possibility that, if sought after by prosecutors in an ineffective manner, these aims could have an adverse impact on the very ends they seek. Given the outsized role that collateral consequences have in the American justice system, special consideration should be paid to the notion that excessive or misplaced penalties of conviction might do much more harm than good when it comes to criminal justice outcomes. A blind pursuit of accountability that ends up making it more difficult for ex-offenders to successfully reintegrate has, as the data drawn upon here shows, devastating spillover effects, such as undermining public safety and overburdening the broader criminal justice system by making recidivism more likely. The strengthening of accountability for offenders does not have to come at the expense of smarter and more just prosecutorial efforts. Rather, these aims are meant to be pursued together as central tenets of an equitable criminal justice system that dispenses justice while providing offenders a restorative pathway to a better future.
The Disproportionate Impact of Collateral Consequences
Further complicating the issue of collateral consequences is their disproportionate effect across racial lines. In this sense, collateral consequences are very much like other elements of the criminal justice system, including encounters with law enforcement and overall incarceration: they interact at a disproportionately higher rate with America’s historically marginalized communities. It is thus crucial for prosecutors to develop and maintain a deep understanding of collateral consequences not only as a general concept, but also as a nuanced issue that can have complicated implications for those who become involved with the criminal justice system. With the decision to charge and sentence offenders comes tremendous responsibility, especially considering the ramifications of a conviction can end up running well beyond the length of any one sentence and remain attached to an offender for the rest of their lives.
The racially disproportionate impact of collateral consequences primarily stems from the overrepresentation of people of color in the criminal justice system. Of the over 2 million individuals incarcerated in the U.S., more than 70 percent are non-white. Remarkably, while the typical American has only a one in 20 chance of ever becoming imprisoned, African American men have approximately a one in three chance and Latino men have a one in six chance. It is perhaps no surprise, therefore, that when it comes to collateral consequences, Americans of color are much more likely to face the imposition of the burden associated with a prior criminal conviction.
Several notable statistics elucidate this fact. It has recently been estimated that more than 7% of the adult Black population is disenfranchised in the U.S. In certain states such as Florida, Kentucky, Tennessee, and Virginia, that same figure is over 20%. This data translates into a broader country-wide circumstance in which one in 16 Africans Americans of voting age are disenfranchised. This means that Black voters are banned from voting at a rate that is an astounding four times higher than that of all other races combined.
The right to vote, however, is not the only dimension in which collateral consequences strip ex-offenders of color of their rights at a disproportionate rate relative to their white counterparts. Some research has shown that when it comes to employment, white applicants with a criminal background receive preferential treatment 47% of the time over a black applicant with the very same background. In other words, the already burdensome employment restrictions associated with collateral consequences are made even worse for people of color with a criminal record due to historical and existing racial bias.
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