Reflections and perspectives on reentry and collateral consequences.

• Author: Pinard, Michael
• Position: Centennial Symposium: A Century of Criminal Justice

1. INTRODUCTION

   The United States is in the midst of a prisoner reentry crisis. In 1980, fewer than 170,000 people were released from federal and state prisons in the United States. (1) By 2008, the number of individuals released skyrocketed to 735,454. (2) As a result, more individuals, families, and communities are impacted by reentry than at any point in history. This crisis will become more heightened in the immediate future, as the number of individuals completing their prison sentences will continue to climb and as states that can no longer afford to incarcerate at massive levels--and at staggering expense (3)--will be forced to release individuals early from their sentences or create other strategies to reduce criminal justice spending. (4)

   The reentry crisis follows three decades of exploding incarceration rates. "Tough on crime" measures that were implemented in the 1980s, most notably the War on Drugs, led to record numbers of incarcerated individuals (5) spending longer periods of time behind bars. (6) All individuals convicted of criminal offenses, regardless of their sentences, are forced to confront the various collateral consequences--additional legal penalties--that result from their convictions. These consequences, most of which attach to both felony and misdemeanor convictions, (7) can include ineligibility for federal welfare benefits, government-assisted housing, and jury service; various types of employment and employment-related licenses, and military service; as well as sex offender registration and voting disenfranchisement. (8)

   Collateral consequences are nothing new. They are remnants of the "civil death" (9) that was imported from England and imposed on lawbreakers during the colonial period. (10) However, what is relatively new is the scope of collateral consequences that burden individuals long past the expiration of their sentences and which, individually and collectively, frustrate their ability to move past their criminal records. At no point in United States history have collateral consequences been as expansive and entrenched as they are today. (11) Indeed, the War on Drugs and other law and order policies have not only fostered an instinctive reliance on incarceration but also an intricate web of federal, state, and local post-sentence legal penalties that can burden individuals for the rest of their lives.

   Collateral consequences impact not only those individuals upon whom they fall but also their families and communities. (12) For example, these consequences make it extraordinarily difficult and, in many instances impossible, for individuals with criminal records to find employment. As a result, they are unable to contribute financially to their family households. Moreover, just as mass incarceration has disproportionately impacted individuals and communities of color in urban centers in the United States, mass reentry is now doing the same. (13) Thus, these individuals are returning in large numbers to the relatively few communities where they lived prior to incarceration and are paralyzed by their criminal records for various reasons, including the collection of collateral consequences that confront them during the reentry process and beyond.

   Jeremy Travis has appropriately described these collateral consequences as "invisible punishment." (14) They are "invisible" because, despite their impact on individuals who cycle through the criminal justice system, they are not considered to be part of this system. They are civil, not criminal, penalties. As such, collateral consequences for the most part are ignored throughout the criminal process. Defense attorneys, prosecutors, and judges do not incorporate collateral consequences into their advocacy and sentence practices. As a result, defendants are generally not informed of--or warned about--collateral consequences as part of the plea bargaining or sentencing processes. (15)

   This Article first provides a brief history of collateral consequences and reentry. It then describes the expansion of these consequences, particularly over the past few decades, and their impact on reentry. It concludes by highlighting some current efforts to better understand the scope of these consequences.

2. REFLECTIONS

   Collateral consequences have always attached to criminal convictions in the United States. (16) They descend from the concept of "civil death," which continental European systems imposed upon individuals who committed criminal acts. (17) As Professor Nora Demleitner explains, "'[c]ivil death' entailed, among other things, the permanent loss of the right to vote, to enter into contracts, and to inherit or bequeath property." (18) While the United States never fully embraced "civil death," it did, until the 1960s, impose collateral consequences that dissolved marriages automatically, disqualified individuals from various employment-related licenses, and barred individuals from entering contracts or engaging in civil litigation. (19)

   For much of the twentieth century, rehabilitation was a central punishment goal in the United States. (20) The rehabilitative model sought to reform the offender, so that he or she would overcome his or her criminal record as well as the reasons that led to his or her involvement with the criminal justice system and eventually lead a productive, law-abiding life.

   The rehabilitative ideal carried over to collateral consequences. In 1956, the National Conference on Parole (NCP), understanding that criminal records imposed significant legal burdens on individuals attempting to reintegrate, recommended that the "laws depriving convicted persons of civil and political rights" be abolished. (21) In addition, the NCP, in the 1950s, and the American Law Institute, in the early 1960s, proposed various reform measures to ease the stigma and legal burdens that fell on individuals with criminal records. (22) Among the proposals were expungement laws and laws granting courts discretionary authority to relieve individuals of the additional legal penalties that attached to criminal convictions. (23)

   The Rehabilitation Era essentially ended in the 1970s. (24) During the next couple of decades, the federal government and many state governments turned to retributive and incapacitative models of punishment that were less forgiving of individuals engaged in criminal activity. (25) The demise of the Rehabilitative Era set the stage for the tough on crime movement of the 1980s and 1990s. As Professor Nora V. Demleitner explains, the "trend" to decrease "the number and restrictiveness of statutes imposing collateral consequences on offenders ... during the 1960s and the early 1970s ... was halted, if not reversed, in the late 1980s and the 1990S." (26)

   The tough-on-crime movement led to an unprecedented increase in incarceration rates and length of prison sentences. (27) Between 1980 and 2005, the number of individuals incarcerated in U.S. prisons and jails for drug possession offenses increased more than 1,000%. (28) These movements also led to a significant expansion of collateral consequences in the 1980s...