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Should A Criminal Record Come With Collateral Consequences?

Maurice Alexander was 61 when he was convicted on a misdemeanor charge. He only served ten days in jail, but six years later it would cost him a chance at affordable housing and leave him homeless for nearly seven months.

Federal, state, and local laws impose a convoluted network of barriers on anyone with a criminal record, no matter how small. These collateral consequences of conviction vary depending on the type of crime committed, but can affect nearly every aspect of a person's life, including eligibility for social services, professional licenses, housing, student loans, parental rights, immigration status, and even volunteer opportunities.

Some collateral consequences are important for public safety, such as barring violent offenders from owning firearms, or are closely related to the crime, like keeping a person convicted of fraud from holding public office. But many apply automatically to anyone with a conviction, without taking into account the nature of the offense or how long ago the crime was committed. Most apply for life, without any method for relief, even if the person never again commits a crime.

In 2013, the Justice Department launched its Smart on Crime Initiative that included a call for federal agencies and state governments to review these laws and narrow those that can be amended without jeopardizing public safety. But collateral consequences have many sources: federal and state statutes, agency policies and regulations, and even obligations imposed on third parties (like government contractors who are required to screen out ex-convicts). This makes it very difficult to know when and where a collateral consequence will apply, and many are unknown even to those responsible for their enforcement. So the Justice Department funded a project, run by the American Bar Association, to collect these laws in an accessible database.

"What we learned as we started this is that almost nobody had any idea of how many collateral consequences there were," says George Washington University Law Professor Stephen Saltzburg, who chairs the project's advisory board at the ABA.

They found more than 44,000 consequences nationwide, and developed a website that cataloged the laws according to jurisdiction, the area of life affected, the type of offense, and whether the law applied automatically or left open the possibility for discretion.

In the short term, this means defendants will ostensibly now have that information available when deciding whether and how to plead in a criminal case. But having a list of what the statutes say may not be that helpful. Robin Steinberg, executive director of the Bronx Defenders, says that the penalties are "incredibly complicated" and "enmeshed in all sorts of ways you don't see." She argues that indigent defendants need access to subject-matter experts in areas like family law and immigration to know how the laws will play out in their individual circumstances, before coming to the plea-bargaining table and before the laws are imposed.

"Having a database is one thing," she says, "but having an advocate who really understands those consequences is what's really critical."

But, maintains Saltzburg, it's a start. In the long term, he says the goal is for legislatures to "take a look and see whether or not they can eliminate some of these collateral consequences that don't make sense, reduce the number of them, and perhaps...provide mechanisms for relief."

"It's not that they're all bad," adds Jonathan Gitlen, director of the ABA's Collateral Consequences Project, "It's that many of them are not in any way tailored, any crime will trigger them and they'll last indefinitely because there's no limitation."

Take, for example, what happened to Alexander, a resident of Washington D.C. As he describes the event that led to his arrest, "the police had a group of black guys, young men, sprawled out on the sidewalk...I became perturbed and I shook my finger at the police and said something to the effect of 'shame on you.'"

A jury found Alexander guilty of attempted threat to do bodily harm, a misdemeanor in D.C. He served ten days in jail, and the conviction is on his record permanently. Plugging Alexander's crime and state into the website, the collateral consequences report shows that he can be evicted from low-rent housing and is automatically barred from a host of jobs, including security officer and barber. The report lists many of the penalties as "discretionary," meaning that whether or not the consequence is imposed depends on the judgment of the individual reviewing his case.

In theory, discretionary consequences are better than automatic ones because government agents can review case-specific mitigating circumstances, such as how long ago the crime was committed, and how the offender has behaved since.

But in practice, says project director Gitlen, "discretionary just means that someone's not going to approve you. Yes they have the discretion, but they rarely exercise that discretion."

This is especially prevalent in areas like federally-subsidized housing. In response to Attorney General Eric Holder's request for agencies to review their regulations and policies, the Department of Housing and Urban Development (HUD) sent out guidance letters to public housing authorities. The most recent letter, circulated on March 4, 2012, encourages property owners and agents "to develop policies and procedures that allow ex-offenders to rejoin the community." When reviewing ex-offender applications, they should consider all relevant information, including evidence of rehabilitation and "probability of favorable future conduct." But, the letter concludes, "Discretion is, however, afforded to each owner."

If Alexander's case is any indication, owners may not be taking HUD's advice. Six years after his conviction, Alexander was looking for subsidized housing. The D.C. Housing Authority determined that he was eligible for three properties in his area, but as the ABA's collateral consequences report shows, each property owner had the discretion to turn him down. Despite HUD's guidance issued two years earlier, Alexander received three rejection letters, each specifically citing his criminal record as the reason he was denied.

As a result, his plans to move into subsidized housing were derailed, and he became homeless. Even with help from the Legal Aid Society of the District of Columbia, he wasn't able to find housing until November, nearly seven months later.

Amy Solomon was appointed by Attorney General Holder to oversee the twenty federal agencies charged with reviewing their regulations and policies for potential changes. She reports that hundreds of regulations were reviewed, but the vast majority were deemed "appropriately tailored for their purposes," including HUD's discretionary housing policies. So far, only three agencies have submitted changes.