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Civil rights commission calls to end 'invisible' punishments for those with criminal convictions

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The U.S. Commission on Civil Rights has called on lawmakers to eliminate “invisible” punishments in the thousands of laws and regulations that can prevent people with criminal convictions from reintegrating into society and becoming productive citizens.

More than more 620,000 people are returning to their communities from state and federal prisons each year, facing significant barriers to housing, employment and other necessities such as driver’s licenses and food assistance, according to a report released by the commission Thursday. With bipartisan criminal justice reform measures that promise to reduce the prison population, there will be even more people seeking to start their lives over.

In its report, “Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities” the commission noted that these consequences disproportionately impact people of color who are more likely to be arrested, convicted and sentenced more harshly than white people.

According to the National Inventory of Collateral Consequences of Conviction of the Council of State Governments (which began as a project of the ABA Criminal Justice Section in 2014), there are more than 44,000 state and federal laws and regulations that can stand in the way of the person getting back on their feet, and the commission is seeking ways to curb those barriers.

According to its report, most of those consequences relate to employment. “While there may be some important public safety concerns that justify placing reasonable restrictions on some employment, many restrictions have no discernible link between the basis for an individual’s conviction and the job position,” Catherine E. Lhamon, chair of the commission, said at a news briefing. “These consequences result in one in four Americans being locked out of the labor market.”

The report shows that people with criminal records face many other restrictions that can prevent them from voting, serving on a jury, holding public office, qualifying for financial aid, college admission or serving in the military.

“I think any conversation about criminal justice has to include a conversation about collateral consequences,” said Lucian Dervan, chair of the ABA Criminal Justice Section and an associate professor of law and director of criminal justice studies at Belmont University College of Law. “Giving people resources for successful reentry is the best way to reduce recidivism.”

Among the commission’s recommendations:

• Collateral consequences should be tailored to serve public safety and avoid punitive consequences that bear no rational relationship to the offense committed.

• Jurisdictions that impose collateral consequences should periodically review the consequences imposed by law or regulation to evaluate whether they are necessary to protect public safety and if they are related to the underlying offenses.

• Congress should pass legislation creating a process to petition for sealing federal conviction records for certain offenses, such as nonviolent crimes, after a reasonable time.

• Congress should eliminate restrictions on Temporary Assistance for Needy Families and Supplemental Nutrition Assistance Program benefits based on criminal convictions, which do not serve the public safety but impose harsh burdens, particularly on formerly incarcerated women.

• Congress should limit discretion of public housing providers to prevent them from categorically barring people with criminal convictions from access to public housing.

• Congress should lift restrictions on access to student loans based on criminal convictions, except for convictions related to financial fraud.

• Congress should require federal courts to give comprehensive notice of federal restrictions on individuals’ rights before guilty plea entry, upon conviction, and on release from incarceration.

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Read other stories from the ABA Journal’s Marked for Life series.

Dervan agreed all courts should give such notice. “It’s important that a defendant be informed of all consequences,” he says. “They are vitally important because they will last their entire lives. It might not change their minds, but they have the right to know.”

The ABA Criminal Justice Section’s plea-bargaining task force was scheduled to meet in Washington, D.C., this weekend and plans to take up this very issue. “As part of our conversation, we will be looking at collateral consequences,” Dervan says.

Gail Heriot and Peter N. Kirsanow, members of the U.S. Commission on Civil Rights, did not back the commission’s final report, issuing a critical statement saying the report “suffers from some significant flaws, which is why we are unable to support its publication in its present form.”

They took issue with the report’s observation that the stigma of a criminal conviction could prompt employers to view applicants with criminal records as “untrustworthy or lacking in job readiness,” for example.

“The problem is that employers view applicants with criminal records this way not merely because of some artificial stigma attached to criminal conviction, but because people with criminal records really are, on average, more likely than people without such records to engage in misconduct,” Heriot and Kirsanow wrote.

While offering some empathy, the commissioners continued: “While it is certainly true that formerly incarcerated individuals sometimes struggle as a result of an unfair collateral consequence, sometimes the struggle is the result of the characteristics that drove them to commit crimes in the first place. Any serious effort to assess the benefits and costs of collateral consequences cannot ignore that.”

They also questioned whether college financial aid should be awarded to those with criminal records. “Is it fair that ex-offenders should get a share, if that means that there will be fewer funds available for other prospective applicants who have been more law-abiding?”

Commissioner David Kladney answered by saying his colleagues “strike out” in their statements and “fail to acknowledge the overwhelming evidence that reducing collateral consequences reduces recidivism and keeps the public safe.”

Randy Kearse, who served 13½ years in federal prison, is the founder of Reentry Strategies, a Mount Vernon, New York-based company that creates teaching programs to help prisoners successfully build productive lives after prison.

While many of those he’s worked with face barriers to employment, getting professional licenses, housing and more, they are not necessarily insurmountable. “Just because there are collateral consequences doesn’t mean you’ll be locked out of everything forever,” Kearse said. “Yes, we need to advocate for having the consequences removed, but until then, we have to navigate around them.”

Even those seeking professional licenses in various trades can find loopholes, apprentice programs, record expungement or other ways. Kearse has found that those who are committed to change can often find a way, and his program works to build people’s social and emotional skills.

“You have to help change that narrative and show you’re willing to change. If you get a second chance, what are you willing to do with it?” said Kearse, also author of Changin’ Your Game Plan! How to use incarceration as a stepping stone to SUCCESS. “Are you prepared to make the sacrifices you need to make to be successful when you get out? Are you in it for the long haul?”