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Collateral Sanctions

Summary and Keywords

Collateral sanctions are legal restrictions on the rights and privileges of people who have experienced contact with the criminal justice system, particularly contact resulting in conviction. Usually placed in civil and regulatory codes, collateral sanctions may limit a person’s ability to vote, live in public housing, own a firearm, qualify for an occupational license, serve in the military, receive public benefits, sit on a jury, or borrow money for college, among other activities. Yet, because they are usually defined as “indirect” consequences of a conviction, they may never surface in the criminal justice process, and they frequently extend far beyond the sentence.

Such restrictions can deeply compromise the civic status and life chances of Americans with conviction records. But they are far from uniform: some serious restrictions are triggered by criminal justice involvement well short of a conviction, while others mark only some classes of offenders or operate only in some states. Layered into the federal system, multiplying the complications of criminal law and regulatory law, and imposed by civil servants with wide leeway in their interpretation of rules, American collateral sanctions are varied and complex. Their reach and severity in the United States appear to be unique in the democratic world and mark an important respect in which the American carceral state extends beyond mass incarceration.

Keywords: collateral sanctions, collateral consequences, disenfranchisement, felony disenfranchisement, mass incarceration, carceral state

Collateral Sanctions, Citizenship, and Contemporary American Punishment

In the 1958 case Trop v. Dulles, Chief Justice Earl Warren wrote that in the United States, “[c]itizenship is not a right that expires upon misbehavior.”1 Warren had something like formal exile in mind, and it is true that a citizen is not stripped of a U.S. passport as punishment for crime. Yet while it may not be fully extinguished, American citizenship today is deeply compromised by the wide array of “collateral sanctions” that typically accompany a criminal conviction. Also called “collateral consequences,” collateral sanctions are legal restrictions on the rights, privileges, and opportunities of people who have experienced criminal justice contact.2 Varying in most cases from one state to another, and implemented by institutions outside the judicial and penal systems, these rules can limit some of a person’s most fundamental rights and essential activities, including voting, working, owning firearms, parenting, finding housing, and serving in the military.

U.S. courts have defined most such restrictions as civil and regulatory rather than criminal and penal. As one 19th-century commentator put it, “public protection and not individual punishment” is their aim. “[I]ndividuals are hurt” by civil penalties, this authority acknowledged, “but such hurting is only an incident to the purpose of the statute and is not, properly speaking, a punishment at all” (Chin, 2003).3 Acceptance of this incidental-pain framing means collateral sanctions have not been subject to conventional restrictions on penal laws. They can be imposed ex post facto, target huge classes of offenders whose crimes had no connection to the right or privilege in question, and accompany a person indefinitely even after every element of the person’s sentence has been discharged. Moreover, collateral sanctions are triggered throughout the criminal justice process: an arrest or charge can have serious civil consequences, even if no conviction ensues. Deepening the separation of people with criminal records from American society, collateral sanctions function as a major part of what some scholars call “the shadow carceral state” (Beckett & Murakawa, 2012).

Collateral restrictions have expanded considerably in the United States in the last thirty years and are now more extensive than they’ve ever been (Pinard, 2010; American Bar Association, Criminal Justice Standards Committee, 2004; National Conference of Commissioners on Uniform State Laws, 2010). Remarkably, a recent state-by-state compilation by the American Bar Association tallies more than 40,000 different statutes and regulations imposing collateral consequences in the American states.4 The number of people potentially subject to these restrictions is considerable: careful estimates say that about 65 million Americans have criminal records of some sort (Rodriguez & Emsellem, 2011), while about 20 million have been convicted of a felony (Shannon et al., 2017). The impact of these restrictions can easily exceed that of a direct sentence, particularly for people with low-level offenses: “[b]eing evicted from one’s home, losing one’s employment license, or being summarily deported are all objectively more severe than a lone day in jail,” writes one attorney (Buskey, 2013). Despite their nominally civil character, then, many authorities consider collateral sanctions to be “invisible punishments” (Mauer & Chesney-Lind, 2002).

As with other elements of the American criminal justice system, “the consequences of these policies have not been evenly felt,” as one important recent analysis of American punishment observes of collateral sanctions (Clear & Frost, 2014, p. 110). Of course, only those of limited means are affected by rules restricting access to public housing and public benefits; barriers to employment in licensed occupations, meanwhile, hit hardest where would-be workers have few options, as do private-employer rejections of applicants with records; limits on student-loan availability affect only those who rely on them. Obscure and shifting terminology, complicated rules regarding eligibility, and varied demands for documentation can make the system difficult to navigate even for those with time, resources, and good legal representation. Particularly for those in poverty, the combination of multiple collateral sanctions can become “a pile of hopelessly tangled problems” (Uggen & Stewart, 2015, p. 1871). Indeed, leading voices in the study of criminal justice in the United States have adopted the metaphor of “caste,” arguing that collateral sanctions have turned people with convictions into a permanent subordinate group, locked into a lifetime of stigma and discrimination (Alexander, 2010, p. 2; Forman, 2012, p. 110; Stevenson, 2014, p. 16).

Both academic attention and public interest in these policies have expanded dramatically in recent years, as part of increasing awareness of the scope and impact of the extraordinarily punitive American criminal justice system. Legal practitioners have access to a full-dress treatise on the law of collateral sanctions, now in its second edition (Love et al., 2016) as well as the American Bar Association’s online, sortable, and searchable database of restrictions;5 a weblog maintained by experts in the field reports on major legal decisions, new scholarship, and significant press coverage (Collateral Consequences Resource Center, 2017). Scores of law and social-science articles have scrutinized individual restrictions, criticized their doctrinal underpinnings, and called for reform. Some textbooks that train people for careers in corrections now feature detailed accounts of collateral consequences (Alarid, 2016).

As policymakers, academics, journalists, and advocates assess collateral sanctions rules, many conclude that some such restrictions have only a tenuous connection to the public interest. In 2011, then-Attorney General Eric Holder encouraged his state counterparts to consider elimination of those collateral consequences “that impose burdens on individuals convicted of crimes without increasing public safety.”6 Indeed, where they impede entry into the legal workforce, obstruct the development of healthy habits and prosocial relationships, and deepen community alienation, such penalties can actually be criminogenic. As the American Bar Association has said, “a regime of collateral consequences may frustrate the reentry and rehabilitation of this population, and encourage recidivism” (Love, 2003, p. 102). Numerous legislative, executive, and judicial actors have recently called for changes to collateral-sanctions rules or practices, sometimes voicing concern about these possible perverse effects. Significant reforms have taken place in many areas, with state legislatures revising voting and employment laws, judges casting a newly critical eye on the long-term utility of these exclusions, and practitioners ranging from defense counsel to probation officers integrating focused attention to collateral sanctions into their work.

Most such reforms have taken place at the state level because that’s where most collateral-sanctions law is. The collateral consequences of criminal justice involvement are far from uniform across the United States. The voting rights of people with records, for example, vary widely: many states restore the ballot to everyone leaving prison, whereas others deny them the ballot during probation and parole as well. Professional licensure is run almost entirely by states, and many states grant designated boards and regulatory staff wide discretionary power to award or deny occupational certification to people with histories of criminal justice involvement—in some cases, even conduct not resulting in a conviction. Federal law strips firearms rights from felons but allows states to restore those rights when and how they see fit. Other restrictions are hybrids of a different sort: federal law directs states to permanently remove welfare-benefit eligibility from people convicted of drug felonies, but states can opt out of that lifetime ban, and most have done so. And U.S. housing law does not bar everyone with a record from federally supported housing. Instead, in almost all cases, it allows local authorities to decide who stays and who goes. And while some city agencies are now working with reentry organizations and probation officers to find secure housing for people with convictions, others regularly evict and exclude on the basis of a low-level misdemeanor, or even an arrest or charge that does not lead to a conviction (Goodridge & Strom, 2016).

A powerful recent report on the impact of U.S. drug laws observes that thousands of Americans are convicted of drug-possession misdemeanors and felonies each day—and will find that “[t]heir criminal records lock them out of jobs, housing, education, welfare assistance, voting, and much more” (Human Rights Watch/American Civil Liberties Union, 2016, p. 2). That kind of sweeping description is not uncommon, particularly in the advocacy literature. To be sure, many collateral-sanctions laws impose burdens far out of proportion to the offenses that trigger them, and severely damage the life chances and civic status of those subject to them. Yet to the extent such accounts imply that all people with records are permanently barred from each of these activities, they risk mis-describing the American collateral-sanctions regime. Layered into the federal system, multiplying the complications of criminal law and regulatory law, and imposed by civil servants with wide leeway in their interpretation of rules, American collateral sanctions are varied and complex.

Terminology and Thresholds

Terms like “people with criminal justice backgrounds,” “justice-involved individuals,” and “people with criminal justice involvement” are increasingly common in discussions of American punishment, often replacing words like “ex-felon” and “convict.” This change joins a general advance of “person-first” language in American social discourse, as in the areas of addiction and disability, on the straightforward view that naming any person by his or her condition is dehumanizing (Szalavitz, 2016). Framing has enormous impact on how we understand political problems (Sunstein, 2004; Kahneman, 2011); “people with felony convictions,” then, improves on “felons” and is worth the extra words.

Yet, concerns about stigmatic and political dimensions of language are the secondary reason such terminology is preferable. The first reason is substantive accuracy, which requires eschewing reference—under any name—to a single threshold or event triggering collateral sanctions. The number of “returning citizens” coming back to U.S. communities after prison is very large—about 700,000 people a year—and the group with felony records approaches 20 million. But in the population of Americans subject to collateral sanctions, they are a distinct minority. “From the moment of arrest, criminal records create a cascade of noncriminal consequences,” as one scholar observes (Jain, 2016, p. 1206). Collateral consequences are imposed throughout the criminal justice process: even if no conviction ensues, an arrest or a charge can have significant civil consequences. A person or an entire family may be evicted from public housing following an arrest or other evidence of “suspected criminal activity” (Goodridge & Strom, 2016; Tran-Leung, 2015). Military recruiters have wide discretion to turn away applicants with any history of criminal justice involvement, even if it extends only to arrests for juvenile-offense dispositions. An employee may be suspended without pay upon arrest or charge, including in major fields such as health and education; they may undergo months of extreme economic hardship while awaiting a trial or other disposition.7 In most states, private employers are free to reject a candidate because of an arrest alone, even if that arrest did not lead to a conviction. (Neither employers nor anyone else using a criminal-records database is required to act on a presumption of innocence; one result is that a police officer has the “de facto power to saddle an individual with a lifelong employment disability” (Jacobs, 2015, p. 291).) Firearms rights may be lost upon issuance of a temporary order of protection, and under federal law, they are forfeited following a misdemeanor domestic-violence conviction.

Indeed, the misdemeanor records trailing tens of millions of Americans can lead to many serious collateral consequences. State occupational-licensure rules vary widely, but authorities screening applicants for many professions may deny a license because of a minor conviction. Some states exclude misdemeanants as well as people with felony convictions from jury-service rolls (Kalt, 2003). Eligibility for federal student loans will be suspended if a loan recipient is convicted of a misdemeanor drug offense. Under immigration law, a legal resident can be deported for misdemeanors evincing “moral turpitude,” as well as for any “aggravated felony”—and some offenses labeled misdemeanors in state court may later be defined as aggravated felonies by federal immigration officials.8 Adding to the range and complexity of this legal terrain, many local ordinances impose collateral sanctions, including for low-level offenses (Meek, 2014).

In fact, any taxonomy of collateral sanctions that focuses on precise criminal justice dispositions will understate their potential reach. This is because a civil restriction may be premised on a conviction or on the conduct that led to that conviction. The matter of whether a civil penalty responds to conduct or a conviction is an old problem, as 19th-century case law demonstrates.9 Yet, far from being a dusty historical oddity or abstract theoretical question, it appears in several policy areas, injecting deep uncertainty and practical complexity into contemporary collateral-sanctions practice.

For example, someone aware of the possible civil effects of a conviction might work with the defense attorney, a prosecutor, and a judge to enter one of a wide range of programs available in state courts: counseling, a deferred-adjudication program, or a plan to successfully serve a term of probation, after which an initial plea is withdrawn and a charge is dismissed, for example. But even completing such a program to the full satisfaction of criminal justice authorities would provide no protection against some civil sanctions. State licensure authorities, for example, may deny an occupational certification based on the conduct alleged in a charging instrument. (As Arizona’s application for the Certified Nurse’s Assistant license explains, full court records and an explanation of any offense must be provided—even those that were subsequently “pardoned, expunged, dismissed, deferred, reclassified or redesignated.”)

Similarly, immigration officials considering deporting a legal resident may look to an affidavit and arrest records to determine whether the person was initially charged with a crime of domestic violence, a felony, or an offense demonstrating “moral turpitude.” “[I]t is the nature of the act itself,” says a federal benchbook, “and not the statutory prohibition of it which renders a crime one of moral turpitude.”10

As a legal matter, the premise that a civil disqualification may not be fundamentally based on a specific criminal-court disposition is one reason civil sanctions skirt constitutional restrictions like the ban on ex post facto penalties. For example, imagine a college student who is among the millions receiving federal student loans each year. The student is convicted of drug possession, completes counseling, pays a fine, and serves a brief probationary sentence; the sentence is fully served, and the case is closed. A year later, a new law strips student-loan eligibility from anyone convicted of any drug crime. If that new law had instead called for, say, a new $10,000 fine on anyone convicted of any drug crime, requiring this student to pay it would constitute an unlawful, retroactive punishment: the new fine could only be imposed on people convicted after the law’s enactment. But if the restriction on student-loan eligibility is defined as a regulatory limitation rather than a criminal penalty, this student can lawfully be denied loan eligibility.11

Finally, in the ever-present, fast-expanding world of criminal-records databases, many databases include information not only from arrests that did not lead to convictions but also from traffic and even civil proceedings.12 Designed for experts, these databases can be peppered with abbreviations, notations, and Latin terms that baffle the casual user. A consumer of this information, such as an employer or landlord considering an applicant, may not know how to read such entries, and may well conclude that activity equals culpability.

Offense level does matter. Both formally and informally, a felony conviction will likely produce far more serious collateral consequences than lower-level criminal justice involvement (Uggen et al., 2014). Versed in the law of civil sanctions, practitioners of “holistic defense” (Pinard, 2004; Smyth, 2005) often work for alternative dispositions that will keep a felony charge off a client’s record precisely for this reason, sometimes with the cooperation of reform-minded prosecutors, judges, and probation officers. But anyone touched by the criminal justice process may be subject to collateral sanctions. As Supreme Court Justice Sonia Sotomayor wrote in her powerful dissent in the 2016 case Utah v. Strieff, anyone “with an arrest record” may “experience the ‘civil death’ of discrimination by employers, landlords, and whoever else conducts a background check.”13

Collateral Damage Beyond the Law

The focus here is on formal collateral sanctions: legally directed policies and practices that restrict access to rights, benefits, and privileges. But the “collateral” harms of mass punishment far exceed what statutes and state constitutions suggest. Some writers use the term “collateral consequences” to refer to the enormous damage the American carceral state does to children, families, and communities (Hagan & Dinovitzer, 1999; Comfort, 2008). Families are often broken by incarceration. More than half of state and federal prisoners are parents of young children (Travis, McBride, & Solomon, 2005), and kids whose parents have been incarcerated are much more likely to suffer from emotional and physical problems, struggle in school, and become homeless than their peers—even controlling for the multiple disadvantages such children often face (Wakefield & Wildeman, 2013). The financial impact of conviction can be huge, particularly given the dramatic expansion of legal financial obligations, or LFOs—fines and fees, often accompanied by extortionary interest charges (Harris, 2016). These burdens frequently extend to families, especially where the legal system implicitly or explicitly demands that families pay fines and fees and otherwise support their incarcerated child, sibling, lover, or parent (Katzenstein & Waller, 2015).

Another indirect but important effect of carceral contact may be to depress political participation by deepening feelings of alienation and damaging individuals’ sense of efficacy and trust (Weaver & Lerman, 2010; Lerman & Weaver, 2014). Such effects seem likely to extend to communities (Burch, 2013).14 And as criminologist Todd Clear and others have shown, the intense concentration of incarceration in predominantly poor and African American communities erodes neighborhood stability, social capital, and trust, which together can lead to further increases in crime (Clear, 2007).

Finally, mass punishment wreaks a different kind of collateral damage on a national scale by skewing some of the country’s most fundamental measurement tools. Voter turnout figures need adjustment because in some states so many members of the voting-age population are formally barred from participating because of felony disenfranchisement (McDonald & Popkin, 2001). The Census is distorted by its method of counting prisoners, which tallies them as residents of the town where their prison is located, rather than the place they’re from and will likely return to (Wagner, 2012). And mass incarceration distorts labor-force participation percentages because so many work-eligible men are removed from the labor pool (Western, 2006, p. 105; White House Council of Economic Advisers, 2016).15

“Drastic Measures”: Immigration Consequences and Sex-Offender Restrictions

Different individuals will find diverse collateral sanctions profoundly disabling. Someone who’s always worked as a nurse will have her professional life and finances upended by a licensure restriction; a firearms ban will be a crippling blow for a rural citizen who hunts to fill his family’s freezer; and a family for whom private-market rent is unaffordable will struggle after eviction from public housing. But two types of civil penalties are so severe that they must be considered a class apart. These are immigration consequences and restrictions affecting people convicted of sexually related offenses.

Under federal statutory law, criminal conviction has long been a basis for deportation. Until quite recently, deportation was squarely defined as a civil penalty. In its landmark 2010 Padilla decision, the U.S. Supreme Court changed the status of deportation in American law and in the process called into question the line between “direct” and “collateral” consequences of convictions. Born in Honduras, José Padilla had been a lawful permanent resident of the United States for more than 40 years. Padilla was passing through Kentucky when a search of the tractor-trailer truck he was driving yielded a large amount of marijuana; facing serious charges, Padilla agreed to a felony plea deal. Padilla’s lawyer had told him that the deal would not jeopardize his ability to live in the U.S., but that was wrong: as a non-citizen, he was subject to automatic deportation.

The Supreme Court held that the failure of José Padilla’s lawyer to advise him of the immigration consequences that would follow his plea constituted ineffective counsel, in violation of the Sixth Amendment. Because of deportation’s severity—a “drastic measure” with “harsh consequences”—and its nearly automatic character, the Court said deportation had a “close connection to the criminal process” and was indeed an “integral part” of the punishment facing noncitizens convicted of crime in the United States. In framing deportation this way and bringing notification of immigration consequences into Sixth Amendment jurisprudence, the Court appeared to undercut the distinction between direct criminal penalties and indirect civilly imposed penalties—a line that, as noted above, has long immunized collateral sanctions from most judicial challenges.

Advocates of deep reform to the law and practice of collateral consequences were quick to label the decision a “seismic” shift (Smyth, 2012). Here they agreed with the dissenting Justices in Padilla, who had mocked the majority’s contention that immigration consequences were “unique” among civil consequences. As Justice Samuel Alito argued, penalties like disenfranchisement, civil forfeiture, or the loss of firearms rights, as well as the reputational harms of a conviction, can also be very “serious.”

José Padilla’s lawyer’s error was clear; Padilla would have rejected that deal and gone to trial had he known he faced deportation. But federal immigration law pertaining to people involved in the criminal justice system is extremely complex, involving at least half a dozen federal agencies, numerous statutes, and case-law wrangling with abstruse terminological questions on which lives turn. Deportation is only one of the serious consequences that can follow a conviction: legal residents might be declared inadmissible (not subject to deportation, perhaps, but unable to reenter the country should they travel abroad); and unable to gain full citizenship because a conviction shows they lack “good moral character,” as naturalization law requires; or subject to detention. As in other areas of collateral-sanctions policy, here federal law and state law interact in murky, unpredictable ways. As noted earlier, a state misdemeanor can become an aggravated felony in an immigration proceeding. The federal determination rests on the length of the sentence rather than on how the crime was identified in state law—and regardless of what defense counsel, prosecutor, and judge may have told the defendant in state court.

At the most fundamental level, federal immigration law defines “conviction” itself differently than criminal courts do. A variety of non-conviction dispositions, including deferred adjudications, withdrawn pleas, expunged convictions, and even some youthful-offender adjudications, can be considered “convictions” for immigration purposes, depending on precisely what unfolds in the criminal-court proceeding.16 Lawyers serving legal noncitizen clients in criminal court must familiarize themselves with immigration law or risk inadvertently exposing their clients to the “drastic” penalties Padilla described. And while criminal defendants must be told of the possible immigration consequences of a conviction, there is no right to counsel for indigent noncitizens involved in civil immigration matters (Love et al., 2016).

Years before Padilla called into question the line separating criminal and civil consequences, law professor Jenny Roberts showed that division to be “mythical” (Roberts, 2008). Roberts did so in analyzing a second area of American law that subjects people with criminal justice backgrounds to utterly life-altering penalties and does so under the banner of “civil” regulation: sex-offender restrictions. These include a range of sanctions, under a hybrid of state and federal laws. Civil commitment, or confinement, allows involuntary detention after completion of a criminal sentence, ostensibly for treatment; community registration requires people with records to register with police and other authorities in any community they move to; many states compel the use of electronic monitoring, sometimes after the sentence; and impose restrictions on where people with old records may live, often forcing them into thin, dangerous slices of geography. People convicted of sexually related offenses are also specifically barred from working in many licensed occupations, some of which have no connection to vulnerable populations.

Since the 1990s, successive federal statutes have pushed states to increase the reach and force of their offender databases. Every state now has some form of registration law, and there is also a federal registry. States can design their own systems, but they must list and track people convicted of sexual offenses, notify communities of such an offender’s arrival, maintain a publically accessible website, and share information with other states (King, 2013). Federal statutes are named after deceased children abducted by repeat offenders; while understandable from the vantage of grief-stricken parents, this approach makes any reasoned weighing of their costs and benefits all but impossible (Simon, 2000, p. 1136). Meanwhile, the category is notoriously overbroad, and some states impose a lifelong registration requirement on misdemeanants, juvenile offenders caught up in Internet file-sharing, and children who engaged in innocent play or consensual underage sexual activity (Stillman, 2016). Restrictions and obligations imposed on offenders can change not only as they cross state lines, but from county to county and city to city; municipal codes are often harsher than state laws (Meek, 2014).

In 1997, the U.S. Supreme Court rejected constitutional challenges to Kansas’s draconian civil commitment law, ruling that its ultimate objective was treatment rather than punishment (Kansas v. Hendricks, 1997). But in the last decade, American judges have become increasingly willing to subject such laws to serious scrutiny. Sometimes citing the Padilla decision, several have concluded that sex-offender registration and confinement policies are so serious that they must be treated as penal laws. State courts in at least three states have struck down residency restrictions since 2014 (Chammah, 2016). In an important 2015 decision, a federal judge called Minnesota’s civil commitment scheme “a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.” Since the program started in 1994, the state had confined hundreds against their will—and cleared none for full release. Given that history, the judge wrote, “no one has any realistic hope of ever getting out of this ‘civil’ detention.”17 In 2016, the Sixth Circuit Court of Appeals struck down a retroactive Michigan law, saying such laws have “much in common with banishment and public shaming.”18 Most recently, in a landmark July 2017 decision, Pennsylvania’s state supreme court flatly ruled that the state’s offender-registration provisions “constitute punishment” and declared them unconstitutional.19

In explaining the durability of felony disenfranchisement, historian Alexander Keyssar observed that felons have “negative political leverage”: endorsing their cause is more likely to hurt than help a politician (Keyssar, 2001). In today’s political climate, this appears doubly true for noncitizens convicted of crime and for sex offenders. Even as criminal justice reform moves across the United States, legislators supporting “smart on crime” changes like to prove their toughness bona fides by continuing to support any and all punishments imposed on people committed of sex-related crimes (Gottschalk, 2016). Padilla began to bring immigration consequences into the penal law, and a growing community of advocates is pushing to reframe and reform sex-offender law (Stillman, 2016; Chammah, 2016). Their undeniable severity, and the frankly punitive language with which policymakers promote them, have begun to prompt American judges to move immigration law and sex-offender restrictions out of the “collateral” category. They demonstrate the ways American civil sanctions combine inscrutable legal complexity and life-altering consequences.

Collateral Sanctions at Home: Housing, Benefits, and Parenting

Americans with criminal justice backgrounds may find their ability to engage in some of our most fundamental activities diminished by civil restrictions. Collateral consequences shaping access to housing, provision of public benefits, and parenting all blend federal and state law, and feature devilish details. Restrictions in all three areas exhibit the same combination of severity, variation, and legal complexity we see in almost every area of American collateral sanctions policy.

Finding safe and secure housing on the private rental market can be very difficult for people with criminal convictions. Most private landlords use background checks to screen potential tenants, and people with records report that rejection on the housing market is among the most serious obstacles they face (Thacher, 2008). Increasingly popular nuisance-property ordinances, which penalize landlords for their tenants’ misbehavior, provide landlords with an incentive to reject risky clients; government thus uses landlords to regulate disorder, an example of what scholars call “third-party policing” (Desmond & Valdez, 2012). Standard lease agreements enable landlords to evict a tenant for crime, but eviction is costly and time consuming. This gives landlords in high-demand markets further reason to reject applicants with criminal records.

The law governing access to public housing for people with histories of criminal justice involvement is complex. Federal law does not bar everyone with a conviction record from public housing. Permanent bans apply only to people convicted of running a meth lab on public property and to anyone required to be on a lifetime sex-offender registry. A person who has previously been evicted from public housing for drug-related criminal activity must also be excluded, but only temporarily: three years after the conviction, a local housing authority may admit them at their discretion.20

Indeed, local discretion dominates housing law. (State agencies, as well as licensed private project owners, can be instrumental in setting rules for receipt of Section 8 vouchers by people with records; in the interest of space, the focus here is on publicly operated housing.) A public housing agency may exclude or evict anyone who “may interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents.”21 As noted above, numerous collateral restrictions are triggered by criminal justice contact short of a felony conviction. A local housing authority may evict someone from public housing after the person has been arrested or charged with criminal activity, if the authority concludes that misconduct likely took place: no conviction is necessary. Indeed, in public housing, the bar is lower still: individuals and families can be evicted because of the actions of others, such as their relatives or guests—“whether or not the tenant knew, or should have known, about the activity,” as the U.S. Supreme Court said approvingly in 2002 (HUD v. Rucker, 535 U.S. 125 [2002]; emphasis added).22 In Rucker, the Court upheld HUD policy despite the fact that the case centered on a 63-year-old grandmother evicted after her daughter was arrested blocks away; Pearlie Rucker, the record showed, had tried to keep drugs out of her home. The facts that led to Rucker were not unusual, and major urban housing agencies still sometimes evict families because of the misdeeds of their children (Ungar-Sargon, 2015; Tran-Leung, 2015).

In the last five years of the Obama Administration, the federal Department of Housing and Urban Development (HUD) began steadily urging local housing authorities to open their apartments to people with records. In a 2011 letter, HUD Secretary Shaun Donovan told directors of public housing authorities to consider “second chances” and to use their discretion where possible to “help[] ex-offenders gain access to one of the most fundamental building blocks of a stable life—a place to live.”23 In 2015, HUD issued a guidance document reminding facilities that while they are permitted to exclude and evict on the basis of criminal activity, they are not required to do so—indeed, they may only do so when the authority determines that the specific offense involved threatens the well-being of other tenants. This document also instructed local authorities that “sufficient evidence of criminal activity” must exist prior to an eviction, and that an arrest alone does not constitute such evidence.24 In summer 2016, HUD published “It Starts with Housing,” a glossy illustrated report applauding the various ways “Public Housing Agencies Are Making Second Chances Real,” as the subtitle explains. The New York City Housing Authority’s (NYCHA’s) pilot family reunification program allows people coming out of prison to move back in with family in public housing; in Vermont, Burlington Housing Authority staff help find private-market rental housing for returning citizens; and in New Orleans, the housing authority altered its background screening process after consultation with reform advocates.25

Such reforms reflect considerable effort by private nonprofits and government officials. Other state and local agencies have changed housing laws and practices as well (Subramanian, Moreno, & Gebreselassie, 2014). Yet numerous housing authorities continue to employ “one-strike” policies, employ lengthy “lookback” periods providing for exclusion based on old offenses, and use broad categories in determining which offenses merit exclusion (Goodridge & Strom, 2016; Tran-Leung, 2015).

Like restrictions on access to public housing, limitations on the receipt of welfare benefits have unambiguously disparate effects: they affect only those with limited means. Bans on benefits through Temporary Assistance to Needy Families (TANF) and Supplemental Nutrition Assistance Program (SNAP—formerly food stamps) are also legal hybrids, but of a different type. In a 1996 statute signed into law by President Bill Clinton, Congress denied welfare benefits and food stamps to people convicted of a drug felony. There was no controversy over this sanction on the “undeserving poor:” debate in the U.S. Senate lasted two minutes, one for each party—after which the measure was adopted unanimously by voice vote (Rubinstein & Mukamal, 2002, p. 42). The federal law set a default policy of permanent exclusion from the two programs but allowed states to opt out. In the twenty years since the law’s enactment, many states have opted out, while others have limited or modified the ban. Notably, neither misdemeanants nor people convicted of nondrug felonies are excluded (except those convicted of fraud against the program).

A caveat is necessary before describing states’ respective responses to the federal TANF and SNAP laws. As the Congressional Research Service (CRS) dryly observed in a 2015 analysis,

Definitive information on state policies regarding the drug felon ban is not available… . TANF state plans or program reports do not require that states indicate whether they have retained the full ban, modified it, or lifted it entirely.

(McCarty et al., 2015, p. 9)

The CRS concluded that, as of 2015, eleven states and the District of Columbia had opted out of the TANF ban altogether; twenty-seven had modified it; and twelve maintained a full lifetime exclusion. (The ban applies only to the cash assistance portion of the TANF program; people with drug felony convictions may retain eligibility for other benefits under TANF, such as child care assistance and job subsidies.) As for SNAP, the CRS in 2013 tallied twelve states maintaining a lifetime exclusion, while half the remaining states employed some kind of modified ban and half had opted out altogether.26 Under both programs, states’ modifications vary widely. Some restrict eligibility only for a limited time; others require drug testing; and still others look to the criminal law, banning only those convicted of manufacturing or distribution and allowing people found guilty of possession to receive aid.

The Sentencing Project reached slightly different figures in its own 2015 assessment of the law (Mauer & McCalmont, 2015). Together with the CRS acknowledgment quoted above, this merits some attention. Here is a federal policy, banning subsistence-level benefits to a vast number of people and nominally aimed at achieving the extremely important goals of deterring crime and safeguarding public resources. For people who are living in poverty and are trying to raise children and build a life after prison, this law can impose great hardship (Mohan & Lower-Basch, 2014). Yet the best researchers in the country, in government and nonprofit policy analysis, cannot say definitively which states do what.

Beyond general eligibility rules, the interaction of state criminal law and federal regulatory law creates further complexities in this policy area.27 Because of variation between states and within programs, the CRS observed in gentle bureaucratic language,

[S]imilarly situated persons may have different experiences based on where they live and what assistance they are seeking. This variation may be considered important, in that it reflects a stated policy goal of local discretion. However, the variation may also be considered problematic if it leads to confusion among eligible recipients as to what assistance they are eligible for or if the variation is seen as inequitable.28

In describing TANF and SNAP eligibility, the CRS authors capture a feature of many other collateral sanctions. The restriction is more varied than it is often described: the majority of Americans convicted of drug crimes live in states that either have no limit on eligibility for federal benefits or will restore eligibility eventually. But it is also more obscure, certain to lead to confusion and misinformation among recipients (and among program staff), and patently inequitable in the deep variation created by divergent state policies.

The mechanics of how the SNAP ban works in practice illustrate one more wrinkle. Federal law says that a parent’s ineligibility does not affect his or her child’s ability to receive SNAP benefits. Parents barred from SNAP may still apply for assistance for their children. An approved household’s benefit is reduced, calculated with the objective of preventing ineligible adults from partaking in their family’s aid.29 Parents then receive a benefits card (essentially a debit card) worth the amount of their family’s award. In effect, the state is simultaneously telling the excluded parent that he or she cannot be trusted with the public’s money—and trusting the parent to spend the award only on food for his or her children.

In addition to access to shelter and food, the legal ability to parent can itself be removed by civil sanctions in state and federal law. Of course, some kids benefit when an abusive parent is removed from the home, but research leaves no doubt that parental incarceration has detrimental effects on children (Uggen & Stewart, 2015, p. 1893). After prison, many people will lose their parental rights. Under the federal Adoption and Safe Families Act of 1997, parental rights must be terminated if a child has been in foster care for at least 15 out of the last 22 months—a very common effect of parental incarceration. (There are exceptions, including for children who have been cared for by a relative, or where the state determines that termination would not be in the child’s best interest.) Many states consider a conviction evidence of a biological parent’s unfitness to supervise or care for his or her children and may require judges to consider criminal history in their custody decisions (Olivares & Burton, 1996; King, 2013).

The legal structure of civil sanctions affecting parenting rights, like those shaping housing and benefits, is a particular kind of federal–state hybrid. Historically, states controlled family law; until quite recently, the federal government had nothing to do with it. That changed as federal funding in support of state child welfare systems expanded. Through this “spending power,” the federal government now has a powerful influence over state laws. This is particularly true in the area of volitional parenting: the ability of Americans with criminal records to become foster or adoptive parents is now closely restricted by federal law, which has gradually eliminated much of the variation that formerly existed between states.

The Social Security Act had previously banned provision of federal benefits to any home headed by a person whose conviction directly related to the welfare of children. Federal law imposed other restrictions as well, such as requiring fingerprint-based background checks for adoptive parents. Several states opted out of that requirement, but under a 2006 statute, they could no longer do so. The 2015 amendments to the Act went further, declaring that approval of a foster or adoptive home would not be granted if the prospective guardian was convicted of any drug-related offense within the last five years.30 That is, no Social Security child-welfare benefits may go to such a household: no federally funded foster care, guardianship, or special-needs adoption benefits. (Social Security programs range far wider than many Americans understand. Under this restriction, retirement-benefits eligibility is unaffected.)

States, meanwhile, vary in their own disqualifications of people with convictions wishing to serve as adoptive or foster parents. Thirty-two exclude a person convicted of any drug-related crime within five years; three disqualify those with drug offenses for ten years; and seven permanently disqualify anyone convicted of any drug-related crime. As in so many areas of collateral-sanctions policy, state volitional parenting law is shot through with discretion. The department “may deny” an applicant by reason of criminal background, a typical state regulation says; “All police and court records … shall be considered,” says another (Child Welfare Information Gateway, 2015). Case-by-case rulemaking may have particular merit in this area, given infinite variation in family situations and the acute need to care well for society’s most vulnerable children. At the end of the day, however, the result is that a person who has experienced carceral contact will find that her ability to parent rests on both the particular determinations of the criminal justice process and a complex, varied, and discretionary federal-state civil-law regime.

Collateral Sanctions at Work: Employment

In May 2015, U.S. federal judge John Gleeson issued a remarkable and important decision. Reviewing the record of a woman he’d sentenced thirteen years before, Judge Gleeson determined that her old conviction had rendered her virtually unemployable, despite her diligent, unceasing efforts to find a job. Concluding that “the public’s interest in Doe being an employed, contributing member of society … far outweighs its interest in her conviction being a matter of public record,” Judge Gleeson decided to expunge the conviction.31 After the government appealed, arguing that a federal district court judge lacks the legal ability to expunge a conviction, Judge Gleeson chose a different tack: in March 2016, he invented, designed, and awarded to Doe a “federal certificate of rehabilitation.”32

Judge Gleeson’s order was not the only landmark judicial opinion in 2016 to acknowledge the employment barriers posed by a criminal conviction. In May 2016, federal judge Frederic Block sentenced a woman convicted of serious drug-trafficking crimes only to probation, rather than the years in prison that the sentencing guidelines called for. As Judge Block explained, he took this extraordinary step “in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon.” In other words, Judge Block determined that collateral sanctions—including employment restrictions—must be understood as punishments in their own right.33 These rulings drew national attention, and suggest that American judges may be taking a more critical view of collateral consequences. In an insightful cautionary essay, Nora V. Demleitner argues that such judicial challenges to collateral sanctions will amount to mere “shadowboxing” if they continue to work within a normative framework that distinguishes between “worthy and unworthy” offenders—and where only a few qualify as “worthy” (Demleitner, 2016).

Outside the courts, the employment challenges facing people with criminal convictions have drawn considerable research and policy attention. One reason is the intuitive connection between lawful employment and successful community reentry. In his 2004 State of the Union Address, President George W. Bush lamented the plight of a released prisoner unable to find work, observing that he would be “much more likely to commit crime,” and indeed scholars have demonstrated that steady employment is one key predictor of desistance from crime (Uggen, 2000; Pager, 2003; Western, 2006). The landscape of collateral sanctions pertaining to employment is vast, and only some of its essential features can be sketched here.

Private employers’ avoidance of applicants with records often prove a substantial barrier (Lageson, Vuolo, & Uggen, 2015; Uggen et al., 2014; Uggen & Stewart, 2015). Many employers state openly that they will not hire people with records, or at least are reluctant to do so (Holzer, Raphael, & Stoll, 2007; SHRM, 2012). Pager’s audit study found that an employer’s chances of calling a white male applicant dropped by half when the applicant had a felony conviction; African American men saw their callback rates drop by two-thirds (Pager, 2003).

It would be a mistake to define such behavior as entirely “private,” since two key public practices make employers’ power possible. First, courts and correctional agencies across the United States feed vast amounts of data into criminal-records databases, both the publicly operated and the privately run varieties. The easy online availability of these records can “dramatically change the character of criminal justice contact for millions of Americans” (Lageson, 2016, p. 128). A patchwork of state laws governs such records, but many such restrictions are mild or even toothless; many states allow databases to include arrests that did not lead to convictions (Legal Action Center, 2004; Jacobs, 2015). There is no federal statutory prohibition on discrimination against people with convictions, which distinguishes the United States from countries such as Canada, Australia, and the United Kingdom (Lam & Harcourt, 2003; Meyers-Peeples, 2008). Nor does American privacy law offer any general protection, such as a way to clear old records. And despite the concerns of the judges discussed above, people with criminal justice backgrounds have not been granted “suspect class” status in American constitutional doctrine (Aukerman, 2005).

Yet private employers are not totally unrestricted. The federal Fair Credit Reporting Act (FCRA) requires background-check companies to ensure the accuracy of their records, and mandates that applicants rejected because of an adverse report have a chance to see and challenge that report. In 2012, the U.S. Equal Employment Opportunity Commission (EEOC) issued a legal guidance calling for the elimination of general bans on employment of people with conviction records and indicating that hiring practices that have disproportionate effects on African Americans and Latinos violate Title VII of the Civil Rights Act of 1964. Together with advocacy and litigation, the EEOC guidance has led some major American employers to discontinue blanket bans and to move toward individualized consideration of applicants (Jacobs, 2015; Lageson, Vuolo, & Uggen, 2015). Some state laws now go further: New York, for example, does include criminal backgrounds in its antidiscrimination statute, requiring employers to consider the passage of time since a conviction, evidence of rehabilitation, and whether there is a substantial connection between the offense and the job in question.

Barriers to professional licensure are a second major piece of the employment picture. Federal law governs a few professions, but almost all occupational licensure occurs at the state level. States control access to hundreds of professions, of which a few dozen are licensed in every state (Brinegar, 2005). Diverse state laws provide that people with convictions may be excluded from specified certified or licensed professions; some such bars are automatic, while others are discretionary (Love et al., 2016; White House Council of Economic Advisers, 2016). There is little research on licensure. Because these laws tend to be state-specific and can be quite complex, scholars have tended to take on relatively narrow or discrete questions: the “good character” requirements found in many state regulations, a nebulous standard that leads to variable results (May, 1995), or standards for readmission of lawyers, which appear to be highly discretionary for most offenders (Pinaire, Heumann, & Lerman, 2006), for example. Some states appear to apply licensure restrictions on former offenders in mystifyingly broad ways. A Texas study conducted by a libertarian organization, for example, found that despite state law allowing licensure denial only if the applicant’s conviction “directly relates to the occupation,” any drug conviction effectively prevented issuance of a water-well drilling license; licenses to work as a bingo operator, athletic trainer, dog trainer, or dietitian were also closed to wide swaths of the offender population (Levin, 2007).

A 2015 White House report expressed concerns about the harms to economic mobility posed by tight occupational-licensure standards generally, as well as licensure’s “disproportionate” effects on a few specified groups, including people with conviction records.34 Pointing to analyses of the ABA’s collateral-consequences database showing that states have almost 30,000 different limitations on licensure, meanwhile, the National Employment Law Project calls such restrictions opaque, unnecessary, and “a major barrier to participation in the labor market” (Rodriguez & Avery, 2016). At the same time, it is not the case that no one with a record can get a professional license: “depending on the state in which you want to become a barber, you still may be able to obtain a license” with a conviction record, says a website sponsored by barber schools.35 Another site says the following, about becoming a nurse’s aide:

If you want to become a certified nursing assistant, a background check could disqualify you if you have a prior felony conviction. However, there is some hope, as most states handle positive hits on a case by case basis.

(, 2017)

Facing indisputable evidence of the grave personal and social costs of barriers to employment, policymakers at every level have recently taken action to encourage employers to hire people with records (National Employment Law Project, 2013; Subramanian, Moreno, & Gebreselassie, 2014). In May 2016, President Obama issued an executive order directing federal agencies to implement federal licensing law with an eye to “rehabilitation and reintegration,” and “to provide that such licenses are not denied presumptively by reason of an applicant’s criminal record,” absent a specific determination that public safety would be threatened.36 More than sixty cities and at least thirteen states have adopted “ban the box” measures, which prohibit employers from asking about criminal records on their initial hiring questionnaire (Pinard, 2014; National Employment Law Project, 2013; Subramanian, Moreno, & Gebreselassie, 2014). And in a development that has not received sufficient attention, the National Institute of Corrections since 2001 has trained and certified thousands of local economic-development staff, probation officers, and others as “Offender Workforce Development Specialists.” This corps of professionals specializes in helping people with records surmount the unique challenges they face, building relationships with local employers and job-training programs (McDonough, Jack, & Burrell, 2008; Ex-Offender Task Force, U.S. Conference of Mayors, 2009).

A measure adopted by New York, Ohio, Illinois, North Carolina, Connecticut, and Vermont, among others, is the “certificate of relief of disabilities,” or “certificate of rehabilitation” (Hager, 2015). (Illinois’ law was proposed in 2003 by then-state senator Barack Obama.) These are documents awarded by correctional or judicial authorities, meant to restore eligibility for certain professional licenses and signal suitability to private employers. While their effects are uncertain (Garretson, 2016; Ewald, 2016), their individualized nature makes these certificates an attractive option—particularly given the current rarity of gubernatorial pardons (Love, 2003).

If pardons and certificates represent “forgiving,” another path offers the option of “forgetting”: the expungement, sealing, destruction, or removal of a conviction record. Initially used in the juvenile system, sealing and expungement are now available across the country. But these terms have no consistent meaning: “there is mind-boggling variation among the states,” concludes a recent authoritative study (Jacobs, 2015, p. 116; see also Heumann, Cui, & Kuchtyak, 2015). Some sealing and expungement procedures are open only to first-time offenders; others may require a waiting period or may exclude certain types of convictions; others leave the record open to various public agencies, while closing it to others; prosecutors may be able to object. The individualized nature of the process, with judges making discretionary decisions, injects an element of “extreme subjectivity” (Jacobs, 2015, p. 120). Critically, rules vary as to whether the recipient of an expungement or sealed record may lawfully answer “no” when asked if he or she has ever been convicted of a crime—a step that leads some critics to refer to expungement as a “license to lie.” Yet record clearance can bring both external and internal benefits, helping people get jobs and build a new identity (Adams, Chen, & Chapman, 2016).

Many employers find people with conviction backgrounds to be very good workers (Uggen et al., 2014; Bumiller, 2015). In a landmark study that may influence the debate over hiring people with records, a trio of scholars examined data from one of the country’s largest employers and found that felony-level offenders admitted to the Army with “conduct waivers” were no more likely to be dismissed for misconduct than other enlistees—and were promoted more quickly than their peers without conviction records (Lundquist, Pager, & Strader, 2017). (Federal law bars people with felonies from military service, and people with lower-level convictions can be turned away as well. But each branch has the ability to waive the felony bar, and each has its own standards and procedure for doing so.)

Two other collateral sanctions can have major effects on a person’s employment prospects: restrictions on driver’s licenses and barriers to higher education. Of course, states, not the federal government, license drivers. But under a 1992 federal law, states were required to suspend for at least six months the driver’s license of anyone convicted of any drug offense—including those not related to driving—or lose a portion of their federal highway funds. As with the TANF exclusion, states could opt out, and most have done so. Fourteen states, accounting for nearly half the U.S. population, now impose a driver’s license ban of at least six months, but there is movement away from this restriction: nine states have abandoned such license suspensions since 2008. Most recently, Massachusetts Governor Charlie Baker signed a bill doing away with his state’s restriction, noting that a license can be essential to a person’s ability to “find and keep a job” (Human Rights Watch/American Civil Liberties Union, 2016, p. 153).

Of course, a person with a college degree will have far greater professional opportunities and substantially higher earnings than a peer who does not go to college. Yet, despite the lack of evidence showing that criminal-history screening makes campuses safer (Center for Community Alternatives, 2015; Lantigua-Williams, 2016), the widely used “Common App” and most U.S. universities require applicants to supply criminal-history information. Decisions are then made case by case: one study found that the majority of schools collecting background information had no written policy setting out standards for consideration of applicants with records (Center for Community Alternatives, 2010).

A second higher-education barrier is the exclusion of prisoners from Pell Grant eligibility. The availability of Pell Grant funding enabled many colleges and universities to offer courses in correctional facilities: in 1993–1994, about 23,000 prisoners participated in the Pell Grant program. Though they received less than 1% of program funds, and despite clear evidence that postsecondary correctional education helped reduce recidivism and improved prison order, Congress stripped prisoners of Pell Grant eligibility in 1994. In Congress, lawmakers effectively ignored the imperative of public safety and instead enacted what Joshua Page has called a “legislative penal drama,” denouncing the provision of public money to undeserving incarcerated villains while law-abiding civilians went without (Page, 2004).

But reform may be coming to both admissions-office exclusions and Pell Grant ineligibility. The Obama White House invited colleges to add their name to an online list of institutions adopting a “Fair Chance Pledge,” under which they would reconsider the necessity of collecting criminal justice information on the initial application.37 The State University of New York (SUNY) system, one of the country’s largest systems, is removing the criminal-history question from its application (Rosenberg, 2016). Meanwhile, colleges and universities across the country have continued to offer credit-bearing programs in correctional facilities, albeit on a much smaller scale than had been possible when Pell Grants were available. According to a landmark 2013 study conducted by the RAND Corporation, prisoners participating in postsecondary classes recidivate at much lower levels than their peers, making such programs highly cost effective (Davis et al., 2013). In 2015, the Obama Administration launched the Second Chance Pilot Pell Program, enabling a small number of prisoners to receive Pell Grants (Mitchell & Palazzolo, 2015).

Citizenship: Voting Rights and Jury Service

The disenfranchisement of people with criminal convictions has become a flash point of litigation, advocacy, and legal reform in the United States. Litigation in the 1970s led the Supreme Court to affirm the constitutionality of the practice: the high court declared that because of an obscure phrase in the Fourteenth Amendment’s second section, the right to vote of people with records is not constitutionally protected in the way it is for other Americans (Richardson v. Ramirez, 1974). A decade later, the Court said that state disenfranchisement laws motivated by explicit racial hostility were unconstitutional, but restated that all others are permissible (Hunter v. Underwood, 1985). In the decades since, advocates have tried, so far unsuccessfully, to persuade federal courts that state criminal-disenfranchisement laws violate the Voting Rights Act because of the extraordinary impact they have on racial minorities (Shapiro, 1993; Haygood, 2011). Legislative changes, however, have moderated the law in states across the country since 2000; with significant exceptions, most changes have made the laws more inclusive (King, 2008; Ewald, 2009; Subramanian, Moreno, & Gebreselassie, 2014).

Three features of American disenfranchisement law stand out most clearly. The first is their severity: no other democracy disqualifies as many people, for as long, as the United States (Ispahani, 2006). Of course, one reason is that no other democracy convicts as many people as does the United States. Supporters of disenfranchisement maintain that it is an important element of the social contract, a way democracies safeguard civic virtue and demonstrate our reverence for the ballot (Manfredi, 1998, 2009; Clegg, 2001). But outside the United States, many people behind bars retain the ballot. Constitutional courts in South Africa, Australia, and Canada, as well as the European Court of Human Rights, have struck down laws disqualifying prisoners from the polls, usually finding that the state offers no practical, compelling objective necessitating such restrictions (Redman, Brown, & Mercurio, 2009; Muntingh & Sloth-Nielsen, 2009; Manfredi, 2009). In many European countries, voting while incarcerated has become routine (Demleitner, 2009; Storgaard, 2009; Behan, 2012). And across the globe, the debate over criminal disenfranchisement ends at the prison walls: it does not appear that any other country imposes a general disqualification on people living in the community, as do many U.S. states. Indeed, of the approximately six million Americans unable to vote because of a criminal conviction, more than half are not incarcerated (Uggen, Larson, & Shannon, 2016).

This brings us to a second major component of American disenfranchisement: state variation. Several U.S. states can boast the world’s most restrictive laws. In Florida, Iowa, Kentucky, and Virginia, all felons are indefinitely disqualified; in seven more states, at least some people remain disenfranchised even after their sentences are completed. In some states, the extreme sanction of post-sentence disqualification has enormous effects on the African American population in particular (Uggen, Larson, & Shannon, 2016). But in Maine and Vermont, voting rights are never lost or suspended, and prisoners can and do vote by absentee ballot. The rest of the states are arranged somewhere between these two poles. Forty-eight, plus the District of Columbia, disenfranchise incarcerated people; most disqualify parolees as well, and a majority also suspend the voting rights of people sentenced to probation rather than confinement. Again, such general disqualification of adult citizens living in the community is unknown across the rest of the democratic world, and these draconian laws have received a great deal of critical attention in the United States in the last fifteen years (Keyssar, 2001; Ewald, 2002; Manza & Uggen, 2006; Alexander, 2010).

Yet, state variation has another side. Across the country, the overwhelming majority of Americans with felony convictions are eligible to vote. Today, in eighteen states plus the District of Columbia, felony probationers can vote; this group includes some of the country’s largest states, such as California, Illinois, Michigan, New York, Ohio, and Pennsylvania. A handful of state laws may disqualify misdemeanants, but almost all people convicted only of low-level crimes never lose the franchise—meaning most people in jail should be permitted to register and cast their ballots. In New York City, staff and volunteers with the Bronx Defender and the Brennan Center for Justice at New York University regularly visit city jails to help people behind bars register, and the American Civil Liberties Union has published a “Voting While Incarcerated” toolkit (Ispahani & Forbes, 2005). The exceptionally restrictive aspects of American state disenfranchisement policies have drawn the lion’s share of public attention, and that has contributed to significant reform. But one cost may be that some people with criminal justice backgrounds wrongly believe they are ineligible to participate in politics—a misinformation problem scholars are just beginning to gauge (McCahon, 2015; National Association of Criminal Defense Lawyers, 2014, p. 34).38

Misinformation brings us to the third outstanding characteristic of American disenfranchisement policy: once again, this is legal and practical complexity, extending far beyond the fact of state variation. Disenfranchisement law shows how deeply entangled civil sanctions are with criminal law and correctional procedure. For example, disenfranchisement in Louisiana is triggered not by conduct or conviction, but only by a specific sentence. The Louisiana constitution disqualifies not all felons, but only a person “who is actually under an order of imprisonment for conviction of a felony.”39 That means local officials need to read court records carefully before striking someone convicted of crime from their voter rolls. Florida, meanwhile, is among the most severe post-sentence disqualification states and disenfranchises far more people living in the community than any other state. Yet under state criminal law, people who are under sentence can avoid a felony conviction if they successfully complete probation. Those able to take advantage of this “adjudication withheld” status—which could comprise almost half of Florida probationers—would then become eligible to vote (Uggen, Larson, & Shannon, 2016, p. 5).40 After California’s correctional realignment moved many people convicted of felonies into local jails, advocates pointed out that the state constitution disqualified only those “imprisoned or on parole for the conviction of a felony”; jail is not prison. Successful litigation led to legislation, and in 2016 California enacted a statute enabling people convicted of felonies and serving time in jail to vote. In our largest state, then, this disqualification is based not on conduct or conviction or sentence, but on what type of correctional institution one is confined to.

Serious problems appear to be caused by rights-restoration rules and requirements. Just as every state has its own disqualification rules, so too does each state set out different policies and practices for regaining the ballot after disenfranchisement. In most states, suffrage rights are automatically restored at the conclusion of any legally imposed period of disability. But as the nonpartisan, research-focused National Conference of State Legislatures (NCSL) explains in a 2016 policy briefing, elsewhere restoration “often involves lengthy paperwork, burdensome documentation, and the involvement and coordination of several state agencies.” And even in automatic-restoration states, “the process of re-registering to vote often is difficult. One reason is the complexity of the laws and processes surrounding disenfranchisement.”41

Critics have described onerous, sometimes obscure, restoration procedures as “documentary disenfranchisement” (Allen, 2012). Automatic restoration, by contrast, leads to measurable increases in turnout among people with records, particularly when combined with a simple notification of regained eligibility (Meredith & Morse, 2015). The NCSL has concluded that even where officials may know the details of their own state policies, state and local agencies sometimes do not communicate effectively about the law. A predictable result is misinformation among people with conviction records, many of whom “go through life believing they cannot vote when, in fact, they can.”

A felony conviction is also all but certain to affect a second fundamental attribute of citizenship: the ability to serve on a jury. Twenty-eight states permanently exclude anyone with a felony conviction from jury eligibility; thirteen more bar service during a sentence, including all forms of community supervision; eight employ more complicated types of temporary exclusion; and two expose anyone with a felony conviction to lifetime for-cause challenges in the selection process, meaning they can be evicted from the pool without individualized consideration (Binnall, 2014, p. 4).

Despite the ubiquity of the phrase “jury of your peers,” there is no such right in the U.S. Constitution; however, American courts have adopted the view that juries ought to represent a “fair cross-section” of the community (Jonakait, 2006, p. 117). Of course, people with felony convictions now represent a substantial percentage of the adult population in some communities, and the racial contours of the war on drugs mean that black men in particular are far more likely than other citizens to be absent from the jury box because of a criminal conviction (Kalt, 2003, p. 65). Yet American courts have consistently rejected both “fair cross-section” claims and equal-protection challenges to felony jury exclusion (Binnall, 2014).

People with conviction records, such general bars presume, have an inherent bias—indeed, a “universal, unidirectional bias” (Kalt, 2003, p. 106) against the prosecution. That premise may seem reasonable to some, but there is virtually no systematic evidence supporting it. The only major empirical study to date of felons’ attitudes found that about two-thirds had a pro-defense bias—a bias very similar to that of law students (Binnall, 2014). That result strongly suggests that the felony exclusion is overbroad. More research in this area is sorely needed. Symbolically, the jury exclusion suggests that all people convicted of serious crimes lack the ability to reason impartially, and that society’s determinations of justice must be protected from their corrupting influence. Substantively, it removes the ideas and experiences of millions of Americans from the jury trial—“a practice in which matters of community membership, truth, and law are inextricably intertwined” (Constable, 1994, p. 1).


On February 9, 2016, U.S. Supreme Court Justice Clarence Thomas spoke during oral argument for the first time in ten years. Justice Thomas had sat quietly through hundreds of cases—about affirmative action, executive authority, federalism, religious liberty, gender discrimination, and reproductive rights. On that February morning, the Court’s consideration of the Voisine case roused Justice Thomas to pose this question: “Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a state law?”42

The right in question was the right to bear arms, and Justice Thomas’s target was a federal law under which a misdemeanor domestic violence conviction brings down a lifetime gun-possession ban. Under federal statute, firearms rights are lost upon conviction of any felony. But as Thomas’s question suggests, the firearms rights of people convicted of crime bring together state and federal law in unpredictable ways.

Firearms restrictions have received much less academic and reform-community scrutiny than have other collateral consequences. A public-safety rationale here may seem intuitive to many Americans. But laws suspending a convicted person’s ability to own a gun are important aspects of the diminished civil status of former offenders. After all, this restriction affects an activity with fundamental-right status, albeit a newly minted and contested one.43 Meanwhile, given the devout belief in the virtues of gun ownership across the United States—among millions of rural hunters, members of the rapidly expanding concealed-carry movement (Carlson, 2015), and others—many people with criminal convictions will likely feel the loss of firearms rights to be the most serious collateral sanction of all.

The gun rights of people convicted of crime are a unique federal–state hybrid. While federal statute withdraws gun rights upon conviction, state law restores them. This blended revocation–restoration legal system is reflected in federal statutes and recent U.S. Supreme Court decisions.44 (Most states also mirror the federal felony prohibition in their own laws, partly to enable them to prosecute violators in state court [Legal Community Against Violence, 2008, p. 71], and may exclude misdemeanants and juvenile offenders as well.) Federal bureaucrats implementing background-check law evaluate rights-restoration rules and procedures offered by each state; if a person “has had civil rights restored” in accordance with state law, their federal firearms rights are restored as well.45 State restoration rules are “all over the map,” said one authority (National Association of Criminal Defense Lawyers, 2014, p. 35): some restore gun rights automatically; others require discretionary approval; and others virtually never restore them except in cases of a full pardon.46 And as with other civil sanctions, all three levels of American government are involved here. Many states explicitly grant local governments the authority to restrict and license firearms ownership, though some have sought to preempt local handgun rules that state lawmakers saw as overly restrictive (Blocher, 2013). Both the Heller and McDonald Supreme Court cases involved municipal restrictions.

Justice Thomas’s question could be a harbinger of greater scrutiny to come for this collateral consequence. As public opinion, state laws, and conservative jurisprudence come together in support of a robust and expanded individual right to bear arms, courts may ask whether the firearms ban is overbroad, and whether varied and obscure rights-restoration procedures align with constitutional values.

Conclusion: Collateral Sanctions in the Fragmented American Political Order

In her book American Citizenship: The Quest for Inclusion, the late political philosopher Judith Shklar identified two essential building blocks of American civic membership: voting and working (Shklar, 1998). Without the ability to cast a ballot and earn a living, Shklar shows, no person is fully a citizen. Today, criminal justice involvement can severely limit a person’s ability to engage in both activities, and these restrictions exacerbate deep racial and socioeconomic inequities in the United States. Shklar’s book is an eloquent appeal for political equality, and it is natural to employ her argument in critique of collateral sanctions today.

Yet Shklar may also help expose one reason such restrictions are so widespread in the United States. On her second page, Shklar writes that citizens of a democracy “are entitled to respect unless they forfeit it by their own unacceptable actions” (Shklar, 1998, p. 2; emphasis added). She repeats the metaphor in the book’s penultimate paragraph, writing that “the right to earn can be forfeited” (Shklar, 1998, p. 101). No full history of collateral consequences in the United States has been written. But together with the powerful force of race in shaping conceptions of criminality (Muhammad, 2011) and Americans’ exclusionary moral zeal (Morone, 2003), the enduring appeal of the idea that people who break the rules forfeit their claim to rights and respect surely helps explain the durability of collateral sanctions in the United States.

These fundamental ideological premises have shaped American collateral-consequences law, but they have done so only through the fragmented, federalized American legal system. “The radical localism that is the result of American institutional structures,” wrote Carol Steiker in her analysis of the death penalty, “means that no big, top-down theory is going to map perfectly onto the micro level” (Steiker, 2012, p. 776). In his classic study of urban misdemeanor justice, Malcolm Feeley concluded that in criminal courts “decisions are made as a consequence of an uncharted, complex, and interdependent set of relationships” (Feeley, 1979, p. xvi). Steiker and Feeley were writing about criminal procedure, but their descriptions capture the complexity of American collateral-consequences policy, as well. Thanks to more than a decade of research, advocacy, and litigation, the web of state laws imposing civil penalties on court-involved people is no longer “uncharted.” But the collateral-sanctions landscape that has emerged is one of interdependent criminal and civil law, whose imposition can rest on complicated legal and personal relationships. And while certainly such restrictions push millions with conviction records into a state of degraded civic status, many others will find that state and local laws and practices allow them to restore and regain the rights and privileges that were suspended.

Because of the fragmented nature of American legal systems and the complexity of collateral sanctions policy, how much a person is collaterally punished can depend on an almost endless list of factors. Those factors can include whether a person’s defense counsel has the training, time, and resources to bring collateral sanctions into the conversation, in the practice of “holistic defense” (Pinard, 2004; Smyth, 2005); whether a prosecutor is willing to define justice in terms of civil restrictions, not just criminal penalties (Kohler-Hausmann, 2013, p. 373); whether a probation officer knows which local employers and landlords will consider people with records; whether a local nonprofit organization or legal clinic is available to help with records clearance; the discretionary approval of a military recruiter or licensure board evaluating an applicant’s character—and all of these influences are layered on top of deeply varied state and municipal laws. Looming over this landscape are vast, capricious records databases, built with public records, preventing millions of Americans from getting a true second chance.

Understanding the complexity of collateral sanctions policy in practice will be a key part of evaluating what kinds of effects these restrictions have, as well as identifying where reform is possible. These penalties may not be as universal and automatic as they are sometimes depicted—but may be more onerous, if they are unpredictable and harder to identify and understand. The class of affected individuals may be less definite and discrete, if many people with felony records retain essential rights and privileges—but it’s also far broader, because an arrest, summons, or charge can have serious consequences even if no conviction follows. And if their boundaries are porous rather than permanent, they may be more subject to unfair administration, creating a system in which those with the fiscal, social, and cognitive resources to make their way among abstruse rules fare better than those without. “Discretionary justice,” wrote the late William J. Stuntz, “too often amounts to discriminatory justice” (Stuntz, 2011, p. 4).

Collateral sanctions have become an essential element of the American carceral state. As the United States tries to navigate the “fiscal and moral crossroads” to which our punitive regime has brought the country (Hinton, 2016, p. 11), Americans are now engaged in critical evaluation of the costs and consequences of these policies.

Review of the Literature and Primary Sources

The current wave of research, advocacy, and reform is not the first the United States has seen. In the 1970s and 1980s, some literature assayed collateral sanctions in the United States and elsewhere. Among other early work, see Mirjan Damaska’s two-part study, published in 1968 in the Journal of Criminal Law, Criminology and Police Science.47 The Vanderbilt Law Review published a comprehensive tally of U.S. laws in its “Special Project, The Collateral Consequences of a Criminal Conviction” (1970).48 An excellent succinct account of reform advocacy in the 1970s in the United States is in Love, “Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code,” Fordham Urban Law Journal (2003).49

The literature on collateral sanctions has expanded dramatically in the last fifteen years. There are several main streams of research: some seeking simply to describe policies, in areas where the law is either obscure or inadequate to capture practices, because of local variation and discretion (such as housing or employment policies); some working on theoretical problems raised by civil disqualifications; some criticizing these policies from the perspective of legal doctrine, focusing on the possibility of reform in the courts; some research published by reform organizations; and a growing pile of articles that seek to use surveys, interviews, participant observation, or audit studies to assess how these policies function.

This brief sketch highlights a few particularly valuable materials on contemporary policy. Love, Roberts, and Klingele’s Collateral Consequences of Criminal Convictions: Law Policy and Practice, now in a second edition (2016),50 is an incomparable single-volume source for detailed summary of the law in virtually every area, together with voluminous citations to statutes, case law, and legal research. Narrative text draws together hundreds of citations to cases and articles, and an enormous section of appendices lists laws in different jurisdictions in many areas.

An essential early book on collateral consequences is Mauer and Chesney-Lind, eds., Invisible Punishment: The Collateral Consequences of Mass Imprisonment (2002). Jacobs, The Eternal Criminal Record (2015) covers a very wide range of legal and policy questions connected to criminal records. On reentry generally, see Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (2005), and Thompson, Releasing Prisoners, Redeeming Communities (2008).51

Several organizations publish extremely useful materials online. The Collateral Consequences Resource Center’s weblog of recent judicial decisions, scholarship, and prominent press accounts and commentary is here The American Bar Association’s extraordinary online database, the National Inventory of the Collateral Consequences of Conviction,” is here The National Association of Criminal Defense Lawyers (NACDL) convened a series of meetings across the country in 2013 and 2014, and published its findings in “Collateral Damage: America’s Failure to Forgive or Forget in the War on Crime,” (2014). It is here

The Sentencing Project conducts research and advocacy; its descriptions of the law are routinely treated as authoritative by major media. See

The Marshall Project, a new media organization focused on criminal justice issues, maintains an archive of coverage linked to collateral consequences. The archive contains both original Marshall Project stories and journalism produced by others. It is an excellent resource for those looking for more recent coverage, and can be found here

The Council on State Governments’ Justice Center has published a set of “Reentry MythBuster” fact sheets, often focused on collateral consequences. Separate documents describe policy in employment, housing, health care, education, juvenile records, federal benefits, and parental rights, among other topics. These can be found here

The Legal Action Center’s “Roadblocks to Reentry” report (initially published in 2004, and updated in 2009) remains an outstanding overview, from a critical advocacy perspective. It can be found here For a survey of recent legislative reform activity, the Vera Institute’s 2014 “Relief in Sight?” report is very valuable:

On employment, accounts of recent employment-related activity from the reform-oriented National Employment Law Project (NELP) can be found here In scholarship, an excellent starting place for research on employment is Bushway et al.’s edited collection, Barriers to Reentry? The Labor Market for Released Prisoners in Post-Industrial America (2007).52

Further Reading

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    Beckett, K., & Herbert, S. (2011). Banished: The New Social Control in Urban America. New York: Oxford University Press.Find this resource:

      Harris, A. (2016). A Pound of Flesh: Monetary Sanctions as Punishment for the Poor. New York: Russell Sage Foundation.Find this resource:

        Holloway, P. (2014). Living in Infamy: Felon Disfranchisement and the History of American Citizenship. New York: Oxford University Press.Find this resource:

          Keyssar, A. (2001). The Right to Vote: The Contested History of Democracy in the United States. New York: Basic Books.Find this resource:

            Manza, J., & Uggen, C. (2006). Locked Out: Felon Disenfranchisement and American Democracy. New York: Oxford University Press.Find this resource:

              Re, C., & Re, R. (2012). Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments. Yale Law Journal, 121, 1584–1670.Find this resource:


                Adams, E. B., Chen, E. Y., & Chapman, R. (2016). Erasing the mark of a criminal past: Ex-offenders’ expectations and experiences with record clearance. Punishment and Society, 19(1), 23–52.Find this resource:

                  Alarid, L. F. (2016). Community based corrections (11th ed.). Independence, KY: Cengage Learning.Find this resource:

                    Alexander, M. (2010). The new Jim Crow: Mass incarceration in the age of colorblindness. New York: New Press.Find this resource:

                      Allen, J. (2012). Documentary disenfranchisement. Tulane Law Review, 86, 389–464.Find this resource:

                        American Bar Association, Criminal Justice Standards Committee. (2004). ABA standards for criminal justice (3d ed.): Collateral sanctions and discretionary disqualification of convicted persons. Washington, DC: American Bar Association.Find this resource:

                          Aukerman, M. (2005). The somewhat suspect class: Toward a constitutional framework for evaluating occupational restrictions affecting people with criminal records. Journal of Law in Society, 7, 18–87.Find this resource:

                            Beckett, K., & Murakawa, N. (2012). Mapping the shadow carceral state: Toward an institutionally capacious approach to punishment. Theoretical Criminology, 16(2), 221–244.Find this resource:

                              Behan, C. (2012). “Still entitled to our say”: Prisoners’ perspectives on politics. Howard Journal of Criminal Justice, 51(1), 16–36.Find this resource:

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                                        Burch, T. (2013). Trading democracy for justice: Criminal convictions and the decline of neighborhood political participation. Chicago: University of Chicago Press.Find this resource:

                                          Buskey, B. (2013). Extending the right to counsel to criminal defendants. Gideon at fifty: Liman Newsletter (Fall 2013).Find this resource:

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                                                                          Demleitner, N. V. (2016). Judicial challenges to the collateral impact of criminal convictions: Is true change in the offing? New York University Law Review Online, 91, 150–170.Find this resource:

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                                                                                                  Hager, E. (2015, March). Forgiving vs. forgetting: For offenders seeking a new life, a new redemption tool. The Marshall Project. Available online.Find this resource:

                                                                                                    Harris, A. (2016). A pound of flesh: Monetary sanctions as punishment for the poor. New York: Russell Sage Foundation.Find this resource:

                                                                                                      Haygood, R. (2011). Disregarding the results: Examining the Ninth Circuit’s heightened Section 2 “Intentional Discrimination” standard in Farrakhan v. Gregoire. Columbia Law Review Sidebar, 111, 51–65.Find this resource:

                                                                                                        Heumann, M., Cui, G., & Kuchtyak, M. (2015). Expunge-worthy: Exploring second chances for criminal defendants. Criminal Law Bulletin, 51(3), 588–614.Find this resource:

                                                                                                          Hinton, E. (2016). From the War on Poverty to the War on Crime: The making of mass incarceration in America (1st ed.). Cambridge, MA: Harvard University Press.Find this resource:

                                                                                                            Holzer, H. J., Raphael, S., & Stoll, M. A. (2007). The effect of an applicant’s criminal history on employer hiring decisions and screening practices: Evidence from Los Angeles. In S. Bushway, M. A. Stoll, & D. F. Weiman (Eds.), Barriers to reentry? The labor market for released prisoners in post-industrial America (pp. 117–150). New York: Russell Sage Foundation.Find this resource:

                                                                                                              Human Rights Watch/American Civil Liberties Union. (2016). Every 25 seconds: The human toll of criminalizing drug use in the United States. Washington, DC: Human Rights Watch and the American Civil Liberties Union. Available online.Find this resource:

                                                                                                                Ispahani, L. (2006). Out of step with the world: An analysis of felony disenfranchisement in the U.S. and other democracies. Washington, DC: American Civil Liberties Union. Available online.Find this resource:

                                                                                                                  Ispahani, L., & Forbes, T. (2005). Voting while incarcerated. Washington, DC: American Civil Liberties Union. Available online.Find this resource:

                                                                                                                    Jacobs, J. B. (2015). The eternal criminal record. Cambridge, MA: Harvard University Press.Find this resource:

                                                                                                                      Jain, E. (2016). Prosecuting collateral consequences. Georgetown Law Journal, 104, 1197–1244.Find this resource:

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                                                                                                                                                      Love, M. C., Roberts, J., & Klingele, C. M. (2016). Collateral consequences of criminal convictions: Law, policy and practice. Washington, DC: Thomson West.Find this resource:

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                                                                                                                                                                                                                                                                                          (1.) Trop v. Dulles, 356 U.S. 86, 92 (1958).

                                                                                                                                                                                                                                                                                          (2.) The American Bar Association has urged the adoption of terms drawing a distinction between automatic civil penalties accompanying a conviction, which it defines as “collateral sanctions,” and restrictions that are authorized but not required, which the ABA calls “discretionary disqualifications” (American Bar Association, Criminal Justice Standards Committee, 2004). Though analytically and descriptively valuable, this distinction has not yet come into wide usage. The phrase “collateral sanctions” is used here to refer to civil penalties of different types, clarifying their specific nature and origin wherever possible.

                                                                                                                                                                                                                                                                                          (3.) Professor Chin quotes from Morris Putnam Stevens, “State Police Power vs. Federal Constitution: The Distinction Between a Legitimate Moral Test Imposed upon Physicians to Protect the Public and Ex Post Facto Punishment,” 3 University Law Review (1897), p. 229.

                                                                                                                                                                                                                                                                                          (4.) The National Inventory of Collateral Consequences of Criminal Convictions database is publicly available and searchable, and can be found at

                                                                                                                                                                                                                                                                                          (5.) American Bar Association, “National Inventory of the Collateral Consequences of Conviction,” available online.

                                                                                                                                                                                                                                                                                          (6.) “Dear Attorney General” letter, U.S. Attorney General Eric Holder. Office of the United States Attorney General, April 18, 2011. Copy on file with the author.

                                                                                                                                                                                                                                                                                          (7.) Nnebe v. Daus, U.S.C.A. 2nd Cir. (2011).

                                                                                                                                                                                                                                                                                          (8.) See the American Immigration Council, “Fact Sheet: Aggravated Felonies: An Overview,” available online.

                                                                                                                                                                                                                                                                                          (9.) See Hawker v. New York, 170 U.S. 189 (1898); Chin, “Are Collateral Sanctions Premised on Conduct or Conviction? The Case of Abortion Doctors.”

                                                                                                                                                                                                                                                                                          (10.) See I. J. Benchbook, “212 Crimes Involving Moral Turpitude,” available online.

                                                                                                                                                                                                                                                                                          (11.) See Students for Sensible Drug Policy Foundation v. Spellings, 523 F. 3d 896 (8th Cir., 2008). This case differed in some respects from the scenario sketched here, and the students involved made double jeopardy claims instead of ex post facto clause arguments. Notably, the law has changed since this case: only those already receiving loans at the time of their conviction are barred from eligibility, for periods of time varying based on the conviction.

                                                                                                                                                                                                                                                                                          (12.) See, for example, Maryland’s Judiciary Case Search database, which includes civil as well as traffic matters, here:

                                                                                                                                                                                                                                                                                          (13.) Utah v. Strieff, 579 U.S. ___ (2016), Sotomayor, dissenting, p. 11.

                                                                                                                                                                                                                                                                                          (14.) There is intriguing evidence that communities damaged by heavy policing and punishment may be more likely to engage in political activity (Miller, 2008), perhaps as a result of “a sense of injustice at being a member of a group targeted by policy” (Walker, 2014, p. 811).

                                                                                                                                                                                                                                                                                          (15.) In a June 2016 report, the White House Council of Economic Advisers observed that criminal convictions distort labor-force participation rates, and said bluntly that people coming out of prison face formal restrictions and labor-market discrimination. See “The Long-Term Decline in Prime-Age Male Labor Force Participation,” White House Council of Economic Advisers, June 20, 2016, p. 35. Available online.

                                                                                                                                                                                                                                                                                          (16.) Under federal law, the key threshold questions are whether the person “admitted sufficient facts to warrant a finding of guilt,” and “the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” 8 U.S.C.A §1101(a)(48)(A)(i)(2001).

                                                                                                                                                                                                                                                                                          (17.) Karsjens et al. v. Jesson et al., USDC Minn., June 17, 2015.

                                                                                                                                                                                                                                                                                          (18.) John Does #1-5 v. Snyder, USCA Sixth Circuit, August 2016.

                                                                                                                                                                                                                                                                                          (19.) See Commonwealth v. Muniz (Pa., July 19, 2017) (47 MAP 2016).

                                                                                                                                                                                                                                                                                          (20.) People convicted of drug-related crimes in public housing facilities may be readmitted in less than three years if they can show that they’ve completed rehabilitation (Tran-Leung, 2015, p. 7).

                                                                                                                                                                                                                                                                                          (21.) 42 USC § 13661.

                                                                                                                                                                                                                                                                                          (22.) Notably, the Supreme Court decision in Rucker overturned a Ninth Circuit decision that had strongly criticized the law and HUD policies. In a powerful and provocative construction, the Ninth Circuit noted that many Americans in public housing are threatened by drugs and crime, and then said that public housing tenants “should add another fear to their list: becoming homeless if a household member or guest engages in criminal drug activity on or off the tenant’s property, even if the tenant did not know of or have any reason to know of such activity” (Rucker v. Davis, 237 F. 3d 1113 [2001]).

                                                                                                                                                                                                                                                                                          (23.) Shaun Donovan, Letter of June 17, 2011. Copy on file with the author.

                                                                                                                                                                                                                                                                                          (24.) Notice PIH 2015–19, November 2, 2015, Department of Housing and Urban Development. Available online.

                                                                                                                                                                                                                                                                                          (25.) See “It Starts with Housing,” U.S. Department of Housing and Urban Development. Available online.

                                                                                                                                                                                                                                                                                          (26.) See also the Federal Interagency Re-entry Task Force, “Re-entry Mythbusters: Fact Sheet on SNAP,” at

                                                                                                                                                                                                                                                                                          (27.) To its credit, the U.S. Department of Agriculture, which runs the SNAP program, features an FAQ page specific to these restrictions. Here is the USDA’s answer to an important question: “How should States handle drug convictions for minors where the record is cleared when they reach 18 or 21?” “A. We will either address this in regulations or allow State flexibility in this area.”

                                                                                                                                                                                                                                                                                          Meanwhile, under a separate section of federal law, a person convicted of the specific crime of trading a controlled substance for benefits can be barred from benefits for two years. See Food Stamp Act, Title 7, Ch. 51, Section 2015, 6(b)(1)(B)(ii)(II). Would this count as a permanently disqualifying offense, under the separate, more general ban on benefits for people with drug felonies? As the USDA explains, the answer depends, first, on whether the initial conviction was at the felony level: if not, the person would resume eligibility. If it was a felony conviction, then the question would become whether or not the state had opted out of the SNAP ban law. Formally, then, state law would determine the extent and application of federal law for people in this situation.


                                                                                                                                                                                                                                                                                          (28.) Mc Carty et al. (2015, November 8), “Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance,” Congressional Research Service, Washington, DC, p. 1.

                                                                                                                                                                                                                                                                                          (29.) 21 USC 862a(b); see also Mohan and Lower-Basch (2014, pp. 1–2).

                                                                                                                                                                                                                                                                                          (30.) See 42 U.S.C. 671(a)(20)(2015). The statute explains that “in any case involving a child on whose behalf such payments are to be so made,” if a record check reveals that a “drug-related offense” was “committed within the past 5 years, such final approval shall not be granted” (emphasis added). See also Child Welfare Information Gateway (2015, p. 3).

                                                                                                                                                                                                                                                                                          (31.) Doe v. U.S., U.S.D.C. EDNY, May 21, 2015, p. 2. Judge Gleeson’s opinion went far beyond the step of ordering expungement. Describing the “patchwork quilt of collateral consequences” as leading to “random and senseless” outcomes, including for “ancient and minor offenses,” Judge Gleeson highlighted “the need to take a fresh look at policies that shut people out from the social, economic, and educational opportunities they desperately need in order to reenter society successfully” (p. 14).

                                                                                                                                                                                                                                                                                          (32.) Doe v. U.S., U.S.D.C. E.D.N.Y, March 7, 2016.

                                                                                                                                                                                                                                                                                          (33.) U.S. v. Nesbeth, U.S.D.C. E.D.N.Y., May 25, 2016.

                                                                                                                                                                                                                                                                                          (34.) See “Occupational Licensing: A Framework for Policymakers.” Report prepared by the Department of the Treasury, Council of Economic Advisors, and the Department of Labor, 2015. Available online.

                                                                                                                                                                                                                                                                                          (35.) See “Can you get a barber license with a felony conviction?” available online.

                                                                                                                                                                                                                                                                                          (36.) See Barack Obama (2016, April 29), “Presidential Memorandum—Promoting Rehabilitation and Reintegration of Formerly Incarcerated Individuals.” Available online.

                                                                                                                                                                                                                                                                                          (37.) See “Take the Fair Chance Higher Education Pledge,” available online.

                                                                                                                                                                                                                                                                                          (38.) As the National Association of Criminal Defense Attorneys said in 2014, people who are eligible are “frequently unaware of [their automatic restoration] and continue to believe they are disenfranchised” (National Association of Criminal Defense Lawyers, 2014, p. 34).

                                                                                                                                                                                                                                                                                          (39.) Louisiana Constitution of 1974, Art. I, §10(B)(2). Emphasis added.

                                                                                                                                                                                                                                                                                          (40.) Note that even with a substantial adjustment to allow for this group, Florida still likely disqualifies three times more people than any other state. Uggen et al. (2016, Table 3, p. 15).

                                                                                                                                                                                                                                                                                          (41.) See National Conference of State Legislatures, “Felon Voting Rights,” posted September 29, 2016. Available online.

                                                                                                                                                                                                                                                                                          (42.) See oral argument in Voisine v. United States, February 9, 2016. Available online.

                                                                                                                                                                                                                                                                                          (43.) See District of Columbia v. Heller, 2008; McDonald v. Chicago, 2010.

                                                                                                                                                                                                                                                                                          (44.) 18 U.S.C. §921(a)(20) states, in relevant part, that a “conviction that has been expunged” or for which a person “has had civil rights restored shall not be considered a conviction, for purposes of this chapter.” See U.S. v. Caron, 524 U.S. 308 (1998); Logan v. U.S., 552 U.S. 23 (2008).

                                                                                                                                                                                                                                                                                          (45.) For detailed listing of each state’s rights-restoration law related to firearms rights, see Klingele, Roberts, and Love, Collateral Consequences of Criminal Convictions (2013), App. 1, Chart #2, pp. App. A-16-28. As the text cautions, however, the law is so complex that even this detailed listing “is intended to offer only a starting point.” Klingele, Roberts, and Love, p. 96. See also the discussion and detailed listing of state rights-restoration laws in National Association of Criminal Defense Lawyers and Families Against Mandatory Minimums, Brief in Support of Petitioner, Logan v. U.S. (2008).

                                                                                                                                                                                                                                                                                          (46.) Ignorance about this legal arrangement has been widespread; at least until recently, it extended all the way to the top of the federal judiciary. During oral argument in the 1998 U.S. v. Caron case, Justice Breyer acknowledged that he hadn’t understood that states restored firearms rights to people who’d lost them under the federal ban, prior to considering this case. See transcript, oral argument, U.S. v. Caron.

                                                                                                                                                                                                                                                                                          (47.) M. Damaska (1968), Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study, Journal of Criminal Law, Criminology and Police Science, 59(3), 347–360; and M. Damaska (1968), Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study (Part 2), Journal of Criminal Law, Criminology and Police Science, 59(4), 542–568.

                                                                                                                                                                                                                                                                                          (48.) Special Project, The Collateral Consequences of a Criminal Conviction, Vanderbilt Law Review (1970).

                                                                                                                                                                                                                                                                                          (49.) Love, Starting over with a clean slate.

                                                                                                                                                                                                                                                                                          (50.) Love, Roberts, & Klingele, Collateral Consequences of Criminal Convictions.

                                                                                                                                                                                                                                                                                          (51.) Mauer and Chesney-Lind (Eds.), Invisible Punishment: The Collateral Consequences of Mass Imprisonment; Jacobs, The Eternal Criminal Record; Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (2005); and Anthony Thompson, Releasing Prisoners, Redeeming Communities (2008).

                                                                                                                                                                                                                                                                                          (52.) S. Bushway, M. A. Stoll, & D. F. Weiman (Eds.). (2007). Barriers to Reentry? The Labor Market for Released Prisoners in Post-Industrial America.