Possibilities for Evaluation and Reform: Suggested Uses of the National Inventory of Collateral Consequences of Conviction Database

Criminal Law Practitioner Volume 2 Issue 2 Article 6 2015 Possibilities for Evaluation and Reform: Suggested Uses of the National Inventory of Collateral Consequences of Conviction Database Jonathan Gitlen American Bar Association Eric Martin National Institute Justice Follow this and additional works at: https://digitalcommons.wcl.american.edu/clp Part of the Criminal Law Commons Recommended Citation Gitlen, Jonathan and Martin, Eric (2015) "Possibilities for Evaluation and Reform: Suggested Uses of the National Inventory of Collateral Consequences of Conviction Database," Criminal Law Practitioner: Vol. 2 : Iss. 2 , Article 6. Available at: https://digitalcommons.wcl.american.edu/clp/vol2/iss2/6 This Article is brought to you for free and open access by Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Criminal Law Practitioner by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact . Gitlen and Martin: Possibilities for Evaluation and Reform: Suggested Uses of Practitioner the Na Law Criminal POSSIBILITIES FOR EVALUATION AND REFORM: SUGGESTED USES OF THE NATIONAL INVENTORY OF COLLATERAL CONSEQUENCES OF CONVICTION DATABASE By JonathanGitlen, American BarAssociation, andEricMartin, NationalInstitute Justice' years, we still know little about their impact on the offender or their effectiveness in preventing future crime. What we do know, however, is that collateral consequences have the potential Author's Note: Findingsand conclusions to touch on nearly every aspect of civil and reported in this article are those of the social life, including key drivers of desistance from crime, such as gainful employment and authors and do not necessarily represent pro-social relationships4 . We also know that the officialpositionorpolicies of the US. not all applicable collateral consequences DepartmentofJustice. are readily apparent to the criminal justice system, the accused, and the public at the time of plea hearings and sentencing.5 Given Introduction current levels of incarceration and recidivism, we need to be strategic about the sanctions we Collateral consequences prohibit and restrict impose to promote justice and public safety, the rights, benefits, and opportunities of meet the needs of the offender post-release, people with prior criminal convictions. Unlike and encourage desistance from future crime. the sanctions delivered in criminal court and collateral that some acknowledge implemented by the correctional system, We collateral consequences are civil in nature consequences are necessary for public safety. and outside the traditional purview of the There is an obvious need to bar potentially criminal justice system. While the number dangerous, predatory, and violent individuals of convictions and laws imposing collateral from using their job or residence to engage consequences has risen dramatically in recent in further criminal activity. Some types of restrictions may be theory-driven or just 1 The authors would like to thank Angela Moore, common sense. Using the terminology of the Division Director, Justice Systems Research Division; Ted popular Routine Activities Theory (RAT), states Robinson, NIJ Office of Communications; Jerome Galang, and localities were preventing situations and NICCC Fellow, American Bar Association; and Gary Shaw, environments where susceptible victims and NICCC Fellow, American Bar Association. & Jeremy Travis, Invisible Punishment: An Instrument 2 of Social Exclusion, in Invisible Punishment: The Collateral Consequences of Mass Incarceration 1, 15 (Marc Mauer Meda Chesney-Lind eds., 2002); Tracy Sohoni, The Effect of CollateralConsequence Laws on State Rates ofReturns to Prison 21-23 (2013) (unpublished Ph.D. dissertation, University of Maryland) (on file with DRUM, Univ. of MD) available at http://hdl.handle.net/1903/14915. Unif. Collateral Consequences of Conviction Act 3 Prefatory Note (amended 2010) (hereinafter UCCCA). See Sohoni, supra note 1, at 40-47; David Kirk, A 4 Natural Experiment on Residential Change and Recidivism: Lessons from HurricaneKatrina, 74 Am. Soc. Rev. 484, 486 (2009). Travis, supra note 1, at 17. 5 Published by Digital Commons @ American University Washington College of Law, 20142015 Summer Washington College of Law 45 1 J Criminal Law Practitioner, Vol. 2 [2014], Iss. 2, Art. 6 Criminal Law Practitioner ~4 ~ :4 ,flr~EA r~ U n.~ras? d ~ .,,nr , trw ~eut1i I~ -~ .AhI.. ,.*.U, V 0m-wr E~n~ :,~x rrrz¶. ,~ ~ .z ~ C ~ L~it~au motivated offenders may come in contact.6 Yet the effectiveness of such restrictions is suspect, given the increasing number of consequences enacted through various processes (legislative statute, regulations, and policies). Currently, many judges, prosecutors, and defense counselors do not know what collateral consequences are triggered by a conviction for the offense, let alone how long the restriction applies and how it can be removed.7 Applying a myriad of unknown restrictions to a broad classification of individuals, regardless of their violent or predatory nature, is in and of itself suspect. Therefore, the effectiveness of these policies must be questioned as well. Similar correctional practices that applied policies to whole classes of offenders have been abandoned in favor of a more individualized approach.' Yet there is no data collected on how these consequences are applied-let alone any systematic way of knowing when a consequence is triggered by an offense. 6 Lawrence E. Cohen & Marcus Felson, Social Change and Crime Rate Trends: A Routine Activity Approach, 44 Am. Soc. Rev. 588, 589 (1979). 7 UCCCA § 4 cmt. 8 See Edward J. Latessa et al., Beyond Correctional Quackery-Professionalismand the Possibilityof Effective Treatment, 66(2) Fed. Probation, 43 (2002). https://digitalcommons.wcl.american.edu/clp/vol2/iss2/6 46 Washington College of Law Summer 201 .~. Furthermore, it becomes very difficult to impose the appropriate consequence to those who pose a danger to the public while providing relief from the consequence for those who are reentering society following a conviction, but are not a likely threat to the general public. The public should be wary of imposing restrictions on a class of people when scant evidence exists to help guide these decisions; especially since so many of the restrictions impact key opportunities necessary to successful societal reentry. Since these consequences are enacted separately and not as an integrated system to address public safety concerns, the combination of distinct consequences create a class of disadvantaged individuals based solely on a prior felony (or in some cases a misdemeanor) conviction9 Nevertheless, these individuals are expected to integrate successfully back into society post conviction. Through research and program evaluations, the criminal justice system has tak (...truncated)