Tuesday, September 25, 2012

State by state database of collateral consequences

A reader informs me of a new national inventory of collateral consequences resulting from criminal convictions, from employment to government benefits to education to civic participation, with state-by state specifics. The website was created by the American Bar Association and the National Institute of Justice. Here's an interesting excerpt from the Project Description articulating why the project was undertaken:
Persons convicted of crime are subject to a wide variety of legal and regulatory sanctions and restrictions in addition to the sentence imposed by the court. These so-called “collateral consequences” of conviction have been promulgated with little coordination in disparate sections of state and federal codes, which makes it difficult for anyone to identify all of the penalties and disabilities that are triggered by conviction of a particular offense. While collateral consequences have been a familiar feature of the American justice system since colonial times, they have become more important and more problematic in the past 20 years for three reasons: they are more numerous and more severe, they affect more people, and they are harder to avoid or mitigate. As a result, millions of Americans are consigned to a kind of legal limbo because at one point in their past they committed a crime.

Some collateral consequences serve an important and legitimate public safety or regulatory function, such as keeping firearms out of the hands of violent offenders, protecting children or the elderly from persons with a history of abuse, or barring people convicted of fraud from positions of public trust. Others are directly related to the particular crime, such as registration requirements for sex offenders, driver’s license restrictions for those convicted of serious traffic offenses, or debarment of those convicted of procurement fraud. But many others apply across the board to people convicted of crimes, without regard to any relationship between crime and consequence, and frequently without consideration of how long ago the crime occurred or what the individual has managed to accomplish since. Many consist of nothing more than a direction to conduct a criminal background check, and an unspoken warning that it is safest to reject anyone with a record. When convicted persons are limited in their ability to support themselves and to participate in the political process, this has both economic and public safety implications. When society is discouraged from recognizing and rewarding genuine rehabilitation, this has moral and social implications as well. When particular restrictions have no apparent regulatory rationale, and cannot be avoided or mitigated, they function as additional punishment, though without due process protections.

Of particular relevance in the present context is the fact that collateral consequences are scattered throughout the codebooks and frequently unknown even to those responsible for their administration and enforcement. The Supreme Court has recognized that when a person considering a guilty plea is unaware of severe consequences that will inexorably follow, this raises questions of fairness and implicates the constitutional right to effective assistance of counsel. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010). When the obligations and restrictions imposed as a result of conviction are unknown to those individuals directly affected by them, it invites noncompliance with the law. When legislatures and executive officials are unaware of the full range of penalties and disabilities imposed by law on convicted individuals, it is unlikely that they will take the opportunity to reconsider them, in whole or in part.
As an example of how vast the number of collateral consequences are in practice, go to Texas and search on "Employment" and "Any Misdemeanor," and 116 different state and federal statutory and regulatory restrictions are listed.

12 comments:

Prison Doc said...

To me this is one of the biggests "betes noires" of the justice system, especially for those who have lighter felony sentences. Or even misdemeanors. I have harped for a long time about how a huge, unemployable underclass is developing through these "collateral consequences" and the easy availability of background checks. The obvious "sensible restrictions"mentioned--like no embezellers working in banks, no child molesters working in day care--but when you keep youthful drug offenders from working as cooks, 3rd DWI offenders from working as roughnecks--well, you are really lubricating the revolving door back into crime.

I advise felon job seekers to hide their past if at all possible, the usual advice to "Be honest and ask for help making a fresh start" fails almost 100% of the time.

I don't know what the answer is.

Tom Moran said...

The court of criminal appeals last Wednesday denied review of a Padilla type case in which I claimed ineffective assistance of counsel for failing to inform client of the possibility of violent sex offender civil commitment.
It looks like the Texas courts as usual are going to read Supreme Court caselaw as narrowly as possible if it helps defendants and as broadly as necessary if it helps the state.

Gray R. Proctor said...

Note that Grits's search for "all misdemeanors" only tells you the CC's that may potential be triggered by ANY misdemeanor, depending usually on how "related to employment" or similar is interpreted. Those that can be triggered only by, e.g., misdemeanor crimes of violence are not included in that count.

Anonymous said...

I'm a hiring manager. I have two applicants equal in all regards. One has a clean record, the other got popped 5 years ago with some coke, plead guilty, completed deferred adjudication. I go with the guy without the record. The guy with the record, in today's employer's market is essentially unemployable. Don't plead unless you work for yourself or are planning to...

Gritsforbreakfast said...

Gray, I'm pretty sure you're wrong. "misdemeanor crimes of violence" sounds to me like a subset of "any misdemeanor," not a separate category.

10:42, I understand why you'd make that choice, but it's short-sighted. Over time, it deprives employers of valuable human capital. Five years after a drug charge that datapoint isn't really useful information.

According to an analysis on the topic by the National Institute of Justice: "The probability of new arrests for first offenders declines with time from first arrest and eventually becomes lower than that of the general population. For those in the general population who were first arrested in 1980, the probability of being re-arrested decreased steadily the longer they stayed clean of further involvement with the criminal justice system. They can be compared to the general population, which mostly includes people never before arrested, as well as to those recently released from prison, who have a high risk of re-arrest. The probability of re-arrest of the 1980 arrestees who stayed clean eventually dropped below that of other people of the same age. For those first arrested for burglary at age 18 years, in 1980, the crossover occurred 3.8 years later at age 21.8. If their first arrest was for aggravated assault, crossover occurred 4.3 years later at age 22.3, and if the arrest was for robbery, it was 7.7 years later at age 25.7. The probability of re-arrest at each of these crossover points was slightly less than 10 percent." See the useful graphic at the link above.

Prison Doc said...

Hiring Manger proves my point--doesn't matter if it is relevant; if you have a record, you're screwed.

That's why I tell people not to divulge their record. If you say you have a record, you won't get hired. If you say you are clean and get caught, you may get fired for "lying on your application" but you are no worse off. The end result is the same--no job.

Anonymous said...

Most every company today completes a background check and there is no hiding! You play, you pay...but peddy crimes, particularly drug related shouldn't prevent employment long term for qualified applicants.It robs everyone.

Anonymous said...

In a booming economy things would be different. There is not much chance of hiding even a deferred adjudication, in spite of what defense attorneys tell you. Forget about this Christian forgiveness, it only applies on Sunday morning. In the real world, people have not changed much, love to burn a witch. Due to over criminalization, the witch population is growing. You plead, you bleed, GREEN!

Anonymous said...

I'm curious what some of think is the answer to all this. As an employer who went out of my way to hire such types, and they were often great employees until faced with stressful situations at home or work, it limited who I could do business with too.

And as far as the studies suggesting evidence that repeat offenders are less likely to commit another crime, I suggest that such people may well have just learned how to game the system better. As the other fellow said, all else being equal, it is a lot easier to hire someone with a clean record, ask any insuring company for example.

Anonymous said...

Grits, what is the percentage of people under 25 with drug charges on their record?
It's a vicious and expensive cycle. So, a qualified applicant doesn't get hired, what happens next? It's short sighted to think we don't all pay for this and the expense is growing every day! The law needs adjustment.

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Gray R. Proctor said...

Grits - sorry if this is too late, I should have checked earlier. Trust me - that's how it works. (Full disclosure - I am a consultant on the project). The "all felonies" and "all misdemeanors" categories return consequences that may be potentially triggered by ANY felony or ANY misdemeanor only. Consequences that are only triggered by a subset of crimes are coded according to the subject matter category for the crimes listed. So, if you've got a felony sex crime conviction, you have to search both "all felonies" (to get those crimes for which any felony can be a trigger) and "sex offenses" (for those triggered only by felony AND misdemeanor sex offenses, or by felony and misdemeanor sex offenses and certain other categories (e.g., violence).