The adage that a convict must pay his debt to society before he is entitled to rejoin the community is a truism of correctional policy as old as prison itself. But over the past three decades, the cost of recompense has become so steep that balancing the proverbial ledger is now exceedingly difficult, if not outright impossible, for many offenders.
Thanks to an expansive list of mandatory post-release sanctions, inmates regularly walk out of prison or complete parole only to face what Jeremy Travis, the president of the John Jay College of Criminal Justice and a former director of the National Institute of Justice (NIJ), has called a secondary “invisible punishment” that is frequently more severe than the one levied by any judge or jury.
The American Bar Association (with funding from the NIJ) recently tallied 45,000 provisions nationwide that affect every aspect of an inmate’s post-release life. These include statutory restrictions on civic participation — such as prohibitions on jury service and voting — as well as laws governing where former offenders can live, what kinds of jobs they can hold and even whether they get to keep their kids. In some states, even a decades-old conviction for marijuana possession can lock a person out of construction trades or prevent them from lawfully owning a firearm.
Few of these restrictions find any justification in a legitimate concern for public safety, and there is no evidence they deter recidivism. In fact, according to the ABA, ex-offenders who are jobless after re-entry are three times more likely to return to prison than those who find employment.
At the end of June, the House Judiciary Committee’s task force on overcriminalization convened a special hearing to investigate the impact and scope of collateral consequences of criminal conviction. Since its establishment last year, the bipartisan commission has addressed a number of issues related to the unchecked expansion of the federal criminal code — which contains so many offenses that the Congressional Research Service can’t even count them all. By one tally, there are an average of 60 new offenses added each year, many of them established through regulatory fiat, without the approval of Congress.
In his opening statement, Rep. Bobby Scott, D-Va., who co-chairs the task force with James Sensenbrenner, R-Wis., critiqued post-release restrictions as “one size fits all, another example of tough-on-crime sweeping far too broadly and far too harshly.”
It acknowledged that as the U.S. comes to grips with the implications of its four-decade legacy of mass incarceration, tackling these mostly senseless barriers to successful prisoner re-entry must be a key component of reform.
An unjust legacy
Collateral sanctions for criminal offenses go back to the earliest days of jurisprudence. But since the 1980s — when Congress pushed through a series of tough-on-crime measures — post-release restrictions in the U.S. have grown exponentially in both number and severity.
The severest of them are largely an outgrowth of the ill-fated war on drugs. Many of them were installed in the late 1990s, when Congress passed and President Bill Clinton signed a slew of new statutory post-release sanctions directly targeting drug offenders.
Laws such as the Housing Opportunity Program Extension Act of 1996 and the Quality Housing and Work Responsibility Act of 1998 restrict public housing options for drug felons, and an amendment to the Higher Education Act authorized in 1998 includes an aid elimination penalty that bars certain students who have been convicted of state or federal drug crimes from receiving federal grants, loans or work assistance. The provision was scaled back slightly in 2006, but it still creates unreasonable barriers that divert at-risk students away from higher education. To date, more than 200,000 students have been affected by the restriction, according to the group Students for Sensible Drug Policy.
Blanket restrictions on life and livelihood turn the very concept of corrections on its head and announce to returning offenders that they are no longer worthy of the same opportunities as the rest of us.
Then there’s Clinton’s signature welfare reform measure, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which made it legal for states to deny cash assistance and food stamps to those convicted of drug felonies. According to a 2013 report (PDF) from the Sentencing Project, 34 states continue to impose a full or partial ban on food stamps for convicted drug offenders, to the detriment of hundreds of thousands of low-income Americans.
This restriction on public benefits disproportionately affects minorities and women. The latter accounted for 85.9 percent of cash assistance benefits in 2009 and are twice as likely as men to receive food stamps.
Much the same could be said of voter disenfranchisement. Eleven states continue to deny voting rights to felons even after they have served their sentences. Nearly 6 million Americans were barred from voting in the past presidential election because of a prior felony conviction, a third of them African-American men.
Other sanctions impede an ex-offender’s ability to get a job by either prohibiting employment generally in a field or imposing licensing restrictions that prevent trained professionals from getting certified or accredited. They include people like Brenda Aldana, a Florida woman who was trained as a dental assistant (on the taxpayers’ dime) while serving more than a decade for drug offenses but has been unable to pursue a career in her field because of licensing restrictions that exclude felons. Millions of inmates re-entering society are similarly shut out of gainful employment each year.
In tackling the issue of collateral consequences of incarceration, the task force on overcriminalization is following in the footsteps of the ABA, which has been lobbying for more than a decade for the elimination of some of the more onerous post-conviction sanctions.
There are signs that change is around the corner. In February, Attorney General Eric Holder called felony disenfranchisement “unnecessary and unjust” and said it conflicts with America’s democratic values. Separate bills introduced recently by Sens. Rand Paul, R-Ky., and Ben Cardin, D-Md., would partially remedy this by restoring voting rights to millions of felons in federal elections.
And in testimony before the task force, Mathias H. Heck Jr., prosecuting attorney for Montgomery County, Ohio, and chair of the ABA’s criminal justice section, explained why job restrictions are a problem not only for returning inmates but for their communities as well.
“The reality is that ex-offenders who cannot find jobs, as well as those who cannot find jobs that provide sufficient income to support families … are more likely to commit criminal acts,” he said.
The good news is that the right and left appear aligned in a mission to decrease the number of nonviolent offenders in U.S. jails and prisons. But that effort won’t get very far unless we begin opening pathways to success for the ex-offenders re-entering our communities. Blanket restrictions on life and livelihood are not simply unjust and unnecessary; they turn the very concept of corrections on its head and announce to returning offenders that they are no longer worthy of the same opportunities as the rest of us.
If we consider crime anti-social behavior, then mitigating recidivism requires effectively resocializing returning inmates into the community. Locking an entire class of citizen out of some of the most basic opportunities for prosperity and security long after their debt to society has been paid in full is a recipe for failure.