Remarks on Collateral Consequences of Mass Incarceration

Criminal Law Practitioner Volume 2 Issue 2 Article 3 2015 Remarks on Collateral Consequences of Mass Incarceration William C. Hubbard Nelson Mullins Riley & Scarborough Follow this and additional works at: https://digitalcommons.wcl.american.edu/clp Part of the Criminal Law Commons, and the Law Enforcement and Corrections Commons Recommended Citation Hubbard, William C. (2015) "Remarks on Collateral Consequences of Mass Incarceration," Criminal Law Practitioner: Vol. 2 : Iss. 2 , Article 3. Available at: https://digitalcommons.wcl.american.edu/clp/vol2/iss2/3 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 . Hubbard: Remarks on Collateral Consequences of Mass Incarceration REMARKS ON COLLATERAL CONSEQUENCES OF MASS INCARCERATION by ABA PresidentWilliam Hubbard According to the Sentencing Project, there are approximately seven million Americans under some form of correctional control, including more than 2.2 Million incarcerated in federal or state prisons and local jails.' One in every io 8 Americans is behind bars-the highest proportion in the world. This disproportionately affects communities of color, which represent more than 6o% of the incarcerated population.' The ballooning incarceration rate in this country is without question a serious problem that has vexed judicial scholars and policymakers alike. The high rate of incarceration burdens American taxpayers, who must shoulder the more than $8o billion spent annually on federal, state, and local corrections programs." And it burdens the American family, with more than half of adult inmates being parents of minor children.' What happens, in practice, to the more than 600,000 6 Americans who are released from federal and state prisons each year? Having even a minor criminal record can trigger a quagmire of lifelong barriers to reentry for ex-offenders in all areas of life, including access to housing, employment, public assistance, education, and the ballot box, among other things.7 Some restrictions on ex-offenders serve meaningful public safety goals, but many do not increase public safety in any appreciable way. This has caught the attention of both the American Bar Association and the current Administration. In 2013, the Justice Department launched the Attorney General's Smart on Report of The Sentencing Project to the United 1 Crime Initiative, which included as part of Nations Human Rights Committee Regarding Racial Disparitiesin the UnitedStates CriminalJustice System at 1, its goals an effort "[t]o bolster prevention The Sentencing Project (Aug. 2013), http://sentencingproject. and reentry efforts to deter crime and reduce org/doc/publications/rd ICCPR%2ORace%20and%20 recidivism."' The DOJ supported9 the ABA's Justice%20Shadow%20Report.pdf. Lauren E. Glaze & Erinn J. Herberman, Correctional efforts to create an online catalog-the National 2 Inventory of the Collateral Consequences of Populationsin the United States, 2012 at 3, U.S. Dep't of Justice Bureau of Justice Statistics (Dec. 2013), http://www. bjs.gov/content/pub/pdf/cpusl2.pdf [No citation for the second point of sentence, comparing global citation.] Facts About Prisons and People in Prison, The 3 Sentencing Project (Jan. 2014), http://sentencingproject.org/ doc/publications/inc_Facts%20About%20Prisons.pdf. Rebecca Vallas & Sharon Dietrich, One Strike 4 and You're Out: How We Can EliminateBarriersto Economic Security and Mobility for People with Criminal Records at 2, Ctr. for Am. Progress (Dec. 2014), https:// cdn.americanprogress.org/wp-content/uploads/ 2 014/12/ VallasCriminalRecordsReport.pdf [hereinafter One Strike and You're Out]. Id. at 6. 5 Id. at 7. 6 See generally Michael Pinard & Anthony C. 7 Thompson, Offender Reentry and the CollateralConsequences of Criminal Convictions: An Introduction, 30 N.Y.U. Rev. L. & Soc. Change Rev. L. & Soc. Change 585 (2006) [hereinafter Pinard & Thompson, Offender Reentry]. Smart on Crime: Reforming the CriminalJustice 8 System for the 21st Century at 1, U.S. Dep't of Justice, U.S. Dep't of Justice (Aug. 2013), http://www.justice.gov/sites/ default/files/ag/legacy/2013/08/12/smart-on-crime.pdf. Id at 5. 9 Published by Digital Commons @ American University Washington College of Law, 2014 1o Washington College of Law Summer 2015 1 Criminal Law Practitioner, Vol. 2 [2014], Iss. 2, Art. 3 Criminal Law Practitioner Conviction-of over 45,ooo federal and state statutes and regulations that impose collateral consequences on persons convicted of crimes.o The searchable database categorizes collateralconsequence laws by jurisdiction, the area of life affected, the type of offense, and whether the law applies automatically or at the discretion of a government agent." This should serve to expose and render searchable the complex web of federal, state, and local laws that impose collateral consequences on ex-offenders. But there is more work to be done, as recent and unfortunate social and economic data from the Center for American Progress suggest. Consider barriers to employment: 7% of employers conduct background checks, and recent surveys indicate that most employers are unwilling to hire applicants who have served time in prison.I2 8 Many states per se bar ex-offenders from public employment." No wonder, then, that approximately 6o% of formerly incarcerated individuals remain unemployed one year after their release.'4 We want released inmates to earn sufficient income to support themselves and to assist their families. If they do not get work, their likelihood of recidivism increases. 4 Research estimated that the loss in GDP due to employment barriers for people with criminal records was as much as $65 billion annually"higher than the GDPs of more than half the world's nations7 -and employers are losing qualified and motivated workers as a result of the stigma associated with prior incarceration. What about housing? For many exoffenders, collateral-consequence laws put public housing outofreach. Federallawincludes a mandatory ban on access to public housing for people with certain types of convictions and grants discretion to local housing authorities to deny housing based on any criminal activity. Entire households may be evicted based on the arrest or pending criminal charge of one household member.'9 This one-strike provision has a profound impact on family structure. Many families residing in public housing have to sign agreements that ex-offender family members cannot live with or even visit them at their public housing unit.20 Private housing is not easy to come by either. Most landlords use background and credit checks to screen out prospective tenants with criminal records. It is no wonder, then, that nearly on (...truncated)