ABA: It's time to reform collateral consequences

By Denise M. Champagne
The Daily Record Newswire
ROCHESTER, NY — It is one thing to do the time for a crime committed, but collateral consequences that have been accumulating in state and federal codes the last several years are making it difficult, if not impossible, for those convicted of crimes to successfully re-enter society.

Collateral consequences include losing voting rights, deportation, loss of a professional license, loss of a driver’s license, ineligibility for certain public welfare benefits and impediments to finding employment and housing, Mathias H. Heck Jr., an Ohio prosecutor, told a federal task force last month.

He said many have no relationship to public safety and prevent a former offender from doing productive work to support a family and contribute to society.
“The reality is ex-offenders who cannot find jobs that provide sufficient income to support themselves and their families are more likely to commit more criminal acts and find themselves back in prison,” Heck said.

Speaking on behalf of the American Bar Association, at the request of its president, James R. Silkenat, Heck said the ABA has adopted a comprehensive set of principles regarding collateral consequences. The two goals are to encourage awareness of all those involved in the criminal justice system of the full legal consequences of conviction so that when someone is convicted, they know what will happen to that person and to focus on the impact on the process of which a convicted person can re-enter and become a productive member of society.

The ABA principles, adopted by its House of Delegates in August 2003, call for significant reforms such as identifying collateral sanctions so if there are any, everyone knows what they are; that sanctions be considered at the time of sentencing; establishing a process by which a convicted person can seek effective relief of collateral sanctions; and barring the imposition of certain sanctions, including the right to vote, sit on a jury, participate in government programs and receive governmental benefits relevant to successful re-entry.

Heck was one of two witnesses testifying before the Over-Criminalization Task Force, authorized by House Judiciary Committee in May 2013 to assess federal criminal statutes and make recommendations for improvements.

Rick Jones, executive director of Neighborhood Defender Services of Harlem, said there are 68 million people living in the United States with a criminal record, or one in four adults; 20 million with felony convictions. He said there are 14 million new arrests every year with 2.2 million people living in jail or prison, more than anywhere else in the world.

Jones, who has traveled to every region of the country, hearing testimony on the issue, said in Northern California, the chief of police was dealing with significant crime problems, a rising murder rate and widespread community distrust.

He said the chief realized he was policing from a place of fear and not serving or protecting the community, but was at war with the community; the police officers did not know citizens and distrust and fear were the order of the day. He said trust and understanding improved and the crime rate began to drop when police took the time to get to know the people.

“Sixty-eight million people with convictions — more than the entire population of France,” Jones said. “We are in danger of becoming a nation of criminals because we are policing from a place of fear.”

Testifying on behalf of the National Association of Criminal Defense Lawyers, he noted there are 45,000 identified collateral consequences that are roadblocks to the restoration of rights and status.

“The time has come for a change in our national mindset,” Jones said. “We must move from penalty, prosecution and endless punishment to forgiveness, redemption and restoration.”

His association recommends that Congress repeal or limit existing collateral consequences; provide meaningful opportunities to regain rights and status; expand non-conviction dispositions for federal crimes and encourage prosecutors to offer them; expand efforts to provide employers, landlords and other decision makers incentives to offer opportunities to those with criminal records; and limit access and use of criminal records for non-law enforcement purposes.

The hearing, the eighth in a series, was opened by task force chairman, Rep. Jim Sensenbrenner, R-Wisc., who said the ABA knows there are some collateral consequences that serve an important public safety purpose such as keeping firearms out of the hands of violent offenders or protecting children or elderly from known abusers.

He mentioned Padilla v. Kentucky, 559 U.S. 356, a 2010 decision that requires defendants facing deportation be advised of the risks before entering a guilty plea, which has led to a slew of cases on whether attorneys are required to advise their clients of other consequences of conviction, beside their prison sentence. Sensenbrenner said he is concerned about some initiatives being considered such as ban the box, a movement to remove the box on employment applications that has to be checked by jobseekers with a criminal conviction.

He questioned whether Congress should force private employers to ignore criminal history when making hiring decisions, saying he does not believe violent offenders should be able to complain about the consequences of their actions.

Ranking Member Rep. Bobby Scott, D-Va. said there is no reliable scientific data showing any of the collateral consequences actually improve public safety, reduce recidivism or save money, but that lifelong civil penalties prevent offenders from re-entering society successfully, marginalizing them and allowing them to be treated like second-class citizens.

He said just as the Children’s Defense Fund, a child advocacy group, recognizes secure housing, employment, education and other social services are the best crime prevention resources to redirect children from what it calls the cradle-to-prison pipeline to a cradle-to-college or career pipeline, the same must apply to those re-entering society.

“When there is no hope for a decent job because employers refuse to hire those with a prior conviction, we cannot be surprised that some choose to return to the very paths that led them to prison in the first place,” Scott said.

He asked the witnesses if banning the box on job applications prohibits employers from considering an applicant’s criminal record.

Jones said it does not, but that it provides an opportunity to get a foot in the door to determine the relevancy of the conviction to the job duties and prove an
ability to perform the job. He also said there needs to be clear guidelines across the board so employers, landlords and other decision makers can know what is relevant and what is not — something he called a “presumption of irrelevance.” Rep. Karen Bass, D-Calif., said society used to have a belief that if criminals paid their debt to society, they could be re-integrated, but that no longer seems to be the belief.

She said people who spend time in prison can spend the rest of their lives with a stigma and not be able to appropriately integrate.

Turning to Jones, she asked about the presumption of irrelevance, using an example of a 30-year-old conviction from when an applicant was in college and not being able to get a foot in the door for a prospective job if they have to check the box asking about criminal convictions or face immediate termination if they do not and their conviction is later discovered.

“There are studies that suggest that after a number of years, a person is no more likely and sometimes less likely to re-offend than anybody else,” Jones said, adding decision makers need to look at the offense and how it could affect the job being applied for, the passage of time since the crime and evidence of rehabilitation.

Heck mentioned an example in Ohio where collateral consequences were not relevant to the situation. He said offenders in his state not paying child support face suspension of their driver’s license.

“It’s ridiculous,” he said. “We’re asking the person to pay child support and then saying you can’t have a job to pay it.”

Heck agrees some collateral consequences are appropriate and said judges, in the unique position to see both sides of a situation, would probably be the best to determine which, if any, to apply.

Rep. Hank Johnson, D-Ga., asked how collateral consequences impact communities of color and the poor.

“The answer is profoundly,” said Jones. “There are studies that show African-American men who have never had any trouble with the law at all are less likely to get a job than similarly situation white men with a felony conviction.”