The Enduring Collateral Consequences of a Criminal Conviction

“The United States is not a nation of criminals, and most collateral consequences do not advance public safety.” Most of them, the paragraph goes on to say, undermine it.

That’s from the conclusion of a report by the National Association of Criminal Defense Lawyers regarding the so-called “collateral consequences” of convictions, which are the kinds of things that continue to punish people who were supposed to have paid their debt to society and which perpetuate a kind of social alienation that destroys lives. They make it so you can’t vote, get a job, find housing, get a license, obtain credit, qualify for benefits, or even, apparently, call bingo in the state of New York.

The report was released last week to some fanfare, including Sunday from the New York Times, which concluded its editorial in these words:

“The point is not to excuse or forget the crime; in the Internet era that wouldn’t be possible anyway. Rather, it is to recognize that in America’s vast criminal justice system, where 14 million people are arrested a year and 2.2 million are put behind bars (virtually all of whom will one day be released), second chances are imperative. It is in no one’s interest to keep a large segment of the population on the margins of society.”

It’s true. More than 65 million people in the United States, or more than one in four adults, have some form of criminal record. Maybe we arrest too many people in the first place.

The report was the work of a task force that heard testimony from over 150 witnesses and combed through statutes and scholarship for the better part of three years. The witnesses came not just from all sides of the justice system—including legislators, law enforcement, prosecutors, defenders, judges, and probation departments—but also from the broader community of businesses, employers, data firms, scientists, academics, nonprofits, churches, other community ministries, and of course, the population of people who have completed a sentence but continued to live with collateral consequences. They include sad tales of people who can’t live down even misdemeanor convictions from many years ago.

The net result is that we permanently consign a significant percentage of the public to a form of second-class citizenship. In the words of one researcher, “It sends people down a route that limits their life chances and sets up conditions that can lead them to commit additional crime. It makes it hard for people to have stability in their life. It’s not good crime policy and it doesn’t help to promote public safety.”

In the main, the NACDL report is comprised of ten core recommendations, which appear as follows from the general to the specific:

1. The United States should embark on a national effort to end the second-class status and stigmatization of persons who have fulfilled the terms of a criminal sentence.
2. We should disfavor all mandatory collateral consequences and not impose them unless substantially justified by the specific offense conduct.
3. We should impose discretionary collateral consequences only when the offense conduct is recent and directly related to a particular benefit or opportunity.
4. We should fully restore the rights and status of people who’ve served their sentence.
5. Following federal convictions, Congress and the federal agencies should provide people with meaningful opportunities to regain their rights and status, and for state convictions, they should provide people with mechanisms to avoid collateral consequences under federal law.
6. We should encourage the use of plea-bargaining tools that prosecutors already have and use, like diversion and deferred adjudication, to avoid some convictions altogether, as well as to reduce some felony convictions to misdemeanors during or after supervision, consistent with an overall graduated approach to our application of the criminal laws.
7. We should encourage employers, landlords, and others to keep an open mind when evaluating criminal history, and we should prohibit arbitrary or capricious discrimination based on a criminal record.
8. We should limit access to and the use of records for non-law-enforcement purposes, and we should maintain records that are complete and accurate.
9. Defense lawyers should consider avoiding, mitigating, and relieving collateral consequences to be an integral part of their representation of a client.
10. NACDL will launch education programs and advocacy aimed at curtailing collateral consequences and eliminating the social stigma that accompanies conviction.