Modern Criminal Justice in America and Collateral Outcomes

While the total U.S. prison and jail population hovered around 2.1 million as of 2019,[17] tens of millions of additional formerly incarcerated or convicted Americans were subject to the punitive restrictions associated with collateral consequences.[18] But it is not just those who spend time incarcerated that suffer from the consequences of interaction with the criminal justice system. According to some estimates, anywhere from 70 to 100 million Americans have a criminal record,[19] 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.

According to most recent estimates, more than 600,000 people are released from federal and state prisons in the U.S. each year and another 9 million cycle through local jails.[20] 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 from incarceration find themselves rearrested and half are reincarcerated within three years.[21] This high recidivism is in large part due to the barriers imposed by the collateral consequences associated with a prior conviction.[22] There are three noteworthy categories in which collateral consequences have a significant impact when it comes to preventing the successful reintegration of the formerly incarcerated: employment, housing, and driver’s licensing. In adopting an informed approach to the issue posed by collateral consequences, prosecutors can remove or otherwise minimize many of the obstacles faced by individuals seeking a second chance.

EMPLOYMENT

Of the more than 44,000 collateral consequences that currently exist in the US, approximately 60%-70% are related to matters of employment.[23] These federal and state consequences are in addition to both the thousands of local ordinances and the barriers put in place by private and public employers that restrict the hiring of people with criminal convictions.[24] Employers and certification boards also have the ability to automatically deny certification in a variety of occupations, including in the medical field, barbering and beautician services, and independent contracting.[25] Not to mention the fact that many individuals, as the result of prison time and felony convictions, suffer from the erosion of job skills, the disruption of education, and the loss of professional networks and interpersonal skills. These are all factors that combine with the stigma attached to a criminal record to drastically reduce the employment prospects of an individual exiting the justice system.[26]

Overall, this vast web of consequences that are activated by an encounter with the criminal justice system ends up effectively locking 1 in 4 Americans out of the labor market, leading to a drastic loss in output and human capital.[27] The effects of this are felt by the broader economy, which experienced an estimated loss of between $78 and $87 billion in annual GDP in 2014 alone as the result of the nearly 2 million former prisoners and felons facing obstacles to employment.[28]

HOUSING

Beyond matters related to employment and personal financial stability, individuals with a criminal record can also encounter tremendous barriers in obtaining housing following their release from incarceration.[29] In fact, finding housing is among the most pressing challenges associated with the collateral consequences of conviction. It is estimated that there are over 1,300 housing-related barriers at the state, county, and city levels and 28 at the federal level.[30] These barriers mostly consist of background checks, denial of fair housing protections, eviction, and denial of rental or sale based on a criminal record.[31] Even though some policies and restrictions have been loosened by authorities in recent years, many individuals with a criminal record also find themselves excluded from public housing.[32] Formerly incarcerated people are thus 10 times more likely to become homeless compared to members of the general public.[33] What makes these conditions particularly damaging is the fact that it is near impossible for individuals to physically and mentally care for themselves, find a job, or do anything that will contribute to their long-term stability without a place to live.  

DRIVER’S LICENSE SUSPENSIONS

An often overlooked way in which collateral consequences can impact the lives of those with a criminal record is through driver’s license suspensions. These suspensions primarily occur due to the failure by a defendant to pay court fines and fees, to appear in court, or other various circumstances that usually have nothing to do with the underlying offense.[35] In cases of serious traffic violations, these consequences protect the community by revoking or suspending the license of the individual responsible. 

However, in other situations where someone has committed an offense unrelated to public safety concerns, it proves to be excessive and largely unhelpful to pursue these types of punishments. Suspending an individual’s license can deprive them of their main or only mode of transportation, which can have serious personal and financial ramifications, including taking away an individual’s only means to commute to work–a vicious cycle in and of itself, as this inhibits the individual from receiving the very income necessary to pay off the fines and fees that may have suspended their license in the first place. Furthermore, without a means to commute to work, a person may have no means to pay for their housing.

Prosecutors have the means to change these outcomes by intervening during the pendency of driver’s license suspension cases.