Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
Beyond Punishment for the Crime: Collateral Consequences of a Conviction
America’s current level of incarceration is unprecedented by both historical and international standards. We have 5 percent of the world’s population and 25 percent of its prisoners. While this startling fact is the topic of much discussion in the current era of mass-incarceration reform, little attention is given to what happens after incarcerated Americans return home – because over 95% of them do. After their sentences are served, returning citizens go home to find they finished one sentence only to begin another.
A criminal sentence is the punishment given to a person convicted of a crime. However, after their criminal sentence is complete and they have reentered society, individuals encounter additional legal and social penalties, barriers and disabilities that exist because of a conviction – its “collateral consequences.”
These additional punishments include barriers to employment, the loss of occupational licenses, and the loss of the right to vote. They impact custody, housing, public benefits, eligibility for school loans, and scholarships. Employers, landlords, legislators, school boards, and scholarship committees make policies that continue to penalize people based solely on their criminal record. People with a criminal record, who have been punished for their crimes, are punished in perpetuity by these collateral consequences.
Yearly, over 680,000 people are released from incarceration, and when they are, society expects them to be tax payers rather than tax burdens.i But the reality is that these individuals go home to find that their sentence, although served, is far from over.
Through Christ, we as Christians will not be punished for our sins, and we are saved by grace from perpetual punishment. We, therefore, should have much to say on this topic.
A Harsh Reality
The collateral consequences of a conviction are often more onerous than the sentence itself. Over 45,000 formal collateral consequences have been catalogued by the American Bar Association. These are not obscure consequences - they are real, and they impact nearly every square inch of daily life.
These consequences may have seemed prudent and logical when enacted – for instance, when an individual convicted of animal cruelty is restricted from working at an animal shelter-- but in effect make it all but impossible for people with a criminal record to leave their past behind. These are not common sense restrictions that limit a thief’s access to the till or an abuser’s access to a victim. The collateral consequences experienced by most people with a criminal record are unrelated to specific criminal acts, and are interminable and arbitrary.
In New York, individuals convicted of a misdemeanor or felony are barred from getting a license to rehabilitate wildlife for three years after their conviction - regardless of whether their conviction involved animal cruelty.ii Private landlords in Texas use arrest records to justify rejecting otherwise qualified tenants. A school district in Michigan has a blanket ban preventing anyone with a felony from volunteering in the school. This includes the mother of four children who is prohibited from serving lunch because of a 1998 domestic violence conviction for stabbing the finger of her abuser. Florida’s state lottery funds scholarships which are not available to anyone with a felony, and the Higher Education Act of 1998 makes students convicted of drug-related offenses ineligible for any grant, loan, or work assistance.
Formal and informal policies severely limit employment opportunities for people with a criminal record. In many jurisdictions, anyone with a criminal record is automatically excluded from being a notary public, security guard, firefighter, real estate broker, and alcohol retailer. A criminal record may result in a person being ineligible for a license to be an electrician, radiologist, milk dealer, or funeral director. A record can also prohibit employment as a fiduciary, junk dealer, bus driver, or sanitation worker. Informal policies driven by personal preconceptions add more barriers. Employers are reluctant to hire people with a criminal history. According to one study, two-thirds of employers simply will not hire felons. At all. The difficulty for people with a criminal record to get a job was recognized by former Attorney General Eric Holder who noted that “if having a job is central to successful reentry, then it is no wonder that half of all released prisoners will be re-incarcerated within three years.”
Many view the collateral consequences of a conviction as a permanent barrier to successful reentry. These barriers are (1) imposed on people who have already been punished for their crimes and (2) prevent people with a criminal record from reconciling with society. If Christians were not so uniquely free from such barriers, we may have nothing to say on the topic. However, our salvation – which by grace frees us from the punishment we deserve and which reconciles us to God - compels us to act.
A Personal Perspective
Here, I’d like to provide some insight here from my personal and professional experience. I understand that crime is a communal harm with real effects that cascade through our communities. As a former federal prosecutor, I prosecuted federal narcotics cases for the first part of my litigation career. I believe in order, accountability, and paying one’s debt to society. I am also a former defense attorney. For the second part of my litigation career, I defended people accused of committing crimes. I believe in the Constitution, the right to counsel, and in justice. I am an academic, a community member, and a child of God. These experiences give me the ability to see that the perpetual punishment imposed by collateral consequences (1) far exceeds the punishment required by law, (2) panders to our biases, and (3) deprives people of second chances.
As Christians, we are called to build social networks, to eat and drink together, to develop bonds that allow for a healthy participation in civil society. For everyone. For the nearly 65 million Americans with a criminal history, this means being included in society – from school, to church, to work, to play. We are called to begin the work of reconciliation, and in the area of collateral consequences, we can start in the board room, on the school board, and in the voting booth.
A Restorative Response
As citizens, we are decision makers in various capacities - employers, bankers, regulators, neighbors, landlords, educators, and voters. When we make decisions about collateral consequences, do we recognize the people who will be impacted by our decisions? Do we see those whom we refuse to hire, license, rent to, or educate, only as felons? We have a choice. Do we choose second chances?
Failure to provide second chances is costly. For society, it is paid for in lost opportunity, lack of personal responsibility, a suppressed citizenry, and additional incarceration – which costs taxpayers approximately $70 billion a year.iii Responsible consideration of someone with a criminal record for employment, housing, benefits, or other opportunities can be done by adhering to common sense considerations such as taking into account (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and/or completion of a sentence; and (3) the nature of the opportunity sought.iv Additionally, consideration must be given to the circumstances underlying the conviction - which includes acknowledgment of the racial disparity in the criminal justice system.v
For Christians, failure to provide a second chance is far more expensive. Our failure to create second chances for others ignores the second chance we are given in Christ.vi Our second chance is a gift. “For by grace you have been saved through faith; and that not of yourselves, it is the gift of God; not as result of works, so that no one may boast.” Ephesians 2:8-9. Our own disobedience is not met with abandonment or perpetual punishment; because of nothing we have done, our debt has been paid. We are free and forgiven.
By challenging the policies and perspectives that support collateral consequences, we can provide freedom and forgiveness to people who have paid the debt for their crimes. In our personal and professional lives, we can actively seek the peace and prosperity of our communities by embracing opportunities to demonstrate the freedom we’ve been given. In our roles as employers, neighbors, decision makers, and community members, let us choose second chances for returning citizens.
Questions for Reflection:
- What assumptions did you have about felons before this commentary and how might those assumptions have been impacted by this information?
- What is the role of redemption and reconciliation in policy relating to people with a criminal history?
- How can individual Christians make decisions about collateral consequences in a way that recognizes the grace they are given?
Heather Garretson is an experienced litigator and former law professor who researches and consults on the collateral consequences of a conviction. She speaks nationally on criminal justice issues and has a passion for engaging Christians in creating solutions to the current system of perpetual punishment.
i This number does not include people who cycle through local jails, which is estimated to be in nearly 12 million people each year. Id.
ii See N.Y. Comp. Codes R. & Regs. tit. 6, § 184.3(a)(2) (2015).
iii The U.S. Bureau of Justice Statistics estimates that in 2006, the federal, state, and local governments combined spent over $68 billion on corrections; in 1982, that figure was $9 billion.
iv These are the considerations outlined by the federal courts in considering any job applicant for employment and endorsed by the EEOC.
v Nationwide, African Americans are incarcerated in state prison at 6 times the rate for Whites and in local jails at almost 5 times the rate for Whites, Hispanics at over 1.5 times the rate for Whites, Native Americans at over 2 times the rate for Whites. http://www.nccdglobal.org/sites/default/files/publication_pdf/created-equal.pdf. If current prison trends continue, the lifetime likelihood of imprisonment for a black man is 1 in 3, for Hispanic men, 1 in 6 and for White men, 1 in 17. http://www.sentencingproject.org/template/page.cfm?id=122
vi Albert M. Wolters, Creation Regained, p 70
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”