Reflections and perspectives on reentry and collateral consequences

Journal of Criminal Law and Criminology

Volumn 100, Issue 3, 2010, Pages 1213-1224

  Pinard, Michael ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79251634466     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (84)

1. Jeremy Travis, U.S. DEP'T OF JUSTICE, But They: Rethinking Prisoner Reentry, 7 SENT'G & CORRS. 1, 1 (2000), available at http://www.ncjrs.gov/pdffiles1/nij/181413.pdf.
2. WILLIAM J. SABOL ET AL., U.S. DEP'T OF JUSTICE, PRISONERS IN 2008, at 4 (2009), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf. Additionally, approximately nine million individuals are released annually from local jails.
3. Allen J. Beck, Chief, Corr. Statistics Program, U.S. Dep't of Justice, The Importance of Successful Reentry to Jail Population Growth (June 27, 2006), available at http://www.urban.org/projects/reentry-roundtable/upload/beck.ppt (noting that jail admissions/releases statistics of 12 million correlate to 9 million unique individuals each year).
4. According to the Pew Center, state spending on corrections eclipsed $49 billion in 2008. THE PEW CENTER ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 11 (2008), available at http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf. These costs are estimated to increase $25 billion by 2011.
5. See, e.g., David Crary, States' Budget Crises Prompting Urgent Prison Policy Reforms, HUFFINGTON POST, Jan. 10, 2009, http://www.huffingtonpost.com/2009/01/10/states-budget-crises-prom_n_156890.html (describing several state reform measures);
6. see also Jeffrey Rosen, Prisoners of Parole: Could Keeping Convicts from Violating Probation or Their Terms of Release Be the Answer to Prison Overcrowding?, N.Y. TIMES MAG., Jan. 10, 2010, at 38 ("[T]he U.S. prison population is increasingly seen as unsustainable for both budgetary and moral reasons").
7. E.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS 59 (2010) ("Convictions for drug offenses are the single most important cause of the explosion in incarceration rates in the United States.").
8. See MARK MOTIVANS, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, FEDERAL CRIMINAL JUSTICE TRENDS, 2003, at 33 tbl.25 (2006), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/fcjt03.pdf.
9. In some instances, these consequences can attach even to non-criminal offenses. E.g., McGregor Smyth, Holistic Is Not a Bad Word: A Criminal Defense Attorney's Guide to Using Invisible Punishments as an Advocacy Strategy, 36 U. TOL. L. REV. 479, 482 (2005) (explaining that a conviction for disorderly conduct, a non-criminal violation, "makes a person presumptively ineligible for New York City public housing for two years").
10. For a detailed overview of collateral consequences, see MARGARET COLGATE LOVE, RELIEF FROM THE COLLATERAL CONSEQUENCES OF CRIMINAL CONVICTIONS: A STATE-BY-STATE RESOURCE GUIDE (2006).
11. "Civil death" has been defined as "the condition in which a convicted offender loses all political, civil, and legal rights
12. Alec C. Ewald, "Civil Death": The Ideological Paradox of Criminal Disenfranchisement Law in the United States, 2002 WIS. L. REV. 1045, 1049 n.13 (2002).
13. Id. at 1061 ("English colonists in North America transplanted much of [England's] common law regarding the civil disabilities of convicts, and supplemented it with statutes regarding suffrage.").
14. See JOAN PETERSILIA, WHEN PRISONERS COME HOME 136 (2003) (noting that collateral consequences "are growing in number and kind, being applied to a larger percentage of the U.S. population and for longer periods of time than at any point in U.S. history");
15. J. McGregor Smyth, Jr., From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings, 24 CRIM. JUST. 42, 42 (2009) ("The collateral consequences of criminal proceedings inflict damage on a breadth and scale too shocking for most lawyers and policy makers to accept.").
16. E.g., Robert M.A. Johnson, Collateral Consequences, 16 CRIM. JUST. 32, 32 (2001) ("On a societal level, a problem arises when the degree of these collateral consequences reduces the possibility that [individuals] can return to be productive members of our society.").
17. Jeremy Travis & Joan Petersilia, Reentry Reconsidered: A New Look at an Old Question, 47 CRIME & DELINQ. 291, 299-301 (2001).
18. Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 16 (Marc Mauer & Meda Chesney-Lind eds., 2002) (explaining that these laws constitute "invisible punishment," because they "operate largely beyond public view, yet have very serious, adverse consequences for the individuals affected").
19. Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 CORNELL L. REV. 697, 699 (2002) (explaining that most state and federal circuit courts have held that attorneys are not required to inform defendants about collateral consequences).
20. The one exception exists in the immigration context, as the United States Supreme Court has recently held that defendants in criminal proceedings must be informed of the possible deportation-related consequences of a guilty plea.
21. Padilla v. Kentucky, 130 S. Ct. 1473, 1486-87 (2010).
22. E.g., JEREMY TRAVIS, BUT THEY ALL COME BACK: FACING THE CHALLENGES OF PRISONER REENTRY 252 (2005) ("Legislators of the American colonies passed laws denying convicted offenders the right to enter into contracts, automatically dissolving their marriages, and barring them from a wide variety of jobs and benefits.") (citation omitted).
23. JEREMY TRAVIS, supra note 14, at 17.
24. Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL'Y REV. 153, 154 (1999).
25. Id. at 154-55.
26. E.g., Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. REV. 457, 478 n.98 (2010)
27. Albert W. Alschuler, The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts About the Next, 70 U. CHI. L. REV. 1, 6 (2003).
28. Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 FORDHAM URB. L.J. 1705, 1708 (2003).
29. During this time, a felony conviction potentially led to several collateral consequences, including ineligibility for military service and public office, disenfranchisement, and the "den[ial] of access to such professions as law and medicine."
30. Note, The Need for Coram Nobis in the Federal Courts, 59 YALE L.J. 786, 786-87 (1950).
31. For a detailed discussion of these proposals, see Margaret Colgate Love, supra note 21, at 1708-12.
32. Id. at 1710-11.
33. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 61 (2001);
34. see FRANCIS A. ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE 10 (1981) ("[T]he rehabilitative ideal has declined in the United States; the decline has been substantial, and it has been precipitous.");
35. Alschuler, supra note 20, at 9 (noting that from 1970 to 1985, "rehabilitation had gone from the top of most scholars' and reformers' lists of the purposes of punishment to the bottom").
36. Alschuler, supra note 20, at 9-14.
37. E.g., Demleitner, supra note 18, at 155.
38. E.g., JOHN IRWIN ET AL., JUSTICE POLICY INST., AMERICA'S ONE MILLION NONVIOLENT PRISONERS 2 (1999), available at http://www.justicepolicy.org/images/upload/99-03_REP_OneMillionNonviolentPrisoners_AC.pdf ("Justice Department data released on March 15, 1999 show that the number of prisoners in America. more than tripled over the last two decades from 500,000 to 1.8 million.").
39. DON STEMEN, VERA INST. OF JUSTICE, RECONSIDERING INCARCERATION: NEW DIRECTIONS FOR REDUCING CRIME 8 (2007), available at http://www.vera.org/ download?file=407/veraincarc_vFW2.pdf.
40. MICHELLE ALEXANDER, supra note 5, at 140;
41. Introduction to INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 6 (Marc Mauer & Meda Chesney-Lind eds., 2003) ("The drug war's influence on political decision making and conceptions of civil liberties has been profound, as legislators have increasingly adopted ever more punitive measures against those who have been convicted of a drug offense.").
42. As a result, housing-related collateral consequences attach to both felonies and misdemeanors. Some jurisdictions apply these consequences to non-criminal violations.
43. Gwen Rubinstein & Debbie Mukamal, Welfare and Housing-Denial of Benefits to Drug Offenders, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT, supra note 17, at 37, 43-49.
44. At the end of 2008, approximately 1 out of 198 individuals in the United States was incarcerated in a state or federal prison.
45. SABOL ET AL., supra note 2, at 1.
46. The total incarcerated population-federal prisons, state prisons, and local jails-at this time was 2,304,115.
47. Id. at 27 tbl. 8.
48. E.g., NANCY G. LA VIGNE ET AL., OFFICE OF CMTY. ORIENTED POLICING SERVS., U.S. DEP'T OF JUSTICE, PRISONER REENTRY AND COMMUNITY POLICING: STRATEGIES FOR ENHANCING PUBLIC SAFETY 3 (2006), available at http://www.urban.org/uploadedpdf/411061_COPS_reentry_monograph.pdf (noting the "historic volumes" of prisoners reentering society).
49. E.g., MADELINE NEIGHLY & MARGARET (PEGGY) STEVENSON, NAT'L EMPLOYMENT LAW PROJECT, CRIMINAL RECORDS AND EMPLOYMENT: DATA ON THE DISPROPORTIONATE IMPACT ON COMMUNITIES OF COLOR (2009), available at http://www.nelp.org/page/-/SCLP/CriminalRecordsImpactCommunitiesofColor.pdf?nocdn=1.
50. See generally Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (codified at 42 USC § 17501 et seq. (2006)).
51. E.g., Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86. B.U. L. REV. 623, 651-52 (2006) (offering examples of various reentry programs).
52. The number of reentry courts will likely expand in the near future, as the Second Chance Act authorizes the Attorney General to award grants to agencies and municipalities to establish reentry courts. Second Chance Act of 2008, 42 U.S.C. § 3797(w)(2) (Supp. 2010).
53. ANTHONY C. THOMPSON, RELEASING PRISONERS, REDEEMING COMMUNITIES: REENTRY, RACE AND POLITICS 163 (2008).
54. Id. at 165.
55. For a discussion of reentry courts, including some of their shortcomings, see Id. at 164-65.
56. See also Eric J. Miller, The Therapeutic Effects of Managerial Reentry Courts, 20 FED. SENT'G REP. 127 (2007).
57. E.g., Pinard, supra note 35, at 641-48 (citing appellate court rulings declaring that collateral consequences are civil rather than criminal penalties and therefore that defendants need not be informed of these consequences as part of the guilty plea or sentencing process).
58. E.g., Gabriel J. Chin, Race, the War on Drugs, and the Collateral Consequences of Criminal Convictions, 6 J. GENDER, RACE & JUST. 253, 254 (2002) (explaining that collateral consequences are "unstructured" and "[n]o one knows, really, what they are").
59. Court Security Improvement Act of 2007, Pub. L. No. 110-177, 121 Stat. 2534.
60. Id. at § 510(a).
61. Id. at § 510(b).
62. Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (codified at 42 USC § 17501 et seq. (2006)).
63. Id. at § 101(d), (e)(4).
64. In addition, the Judiciary Committee of the House of Representatives recently held a hearing to, in part, gather more information about collateral consequences Hearing on Collateral Consequences of Criminal Convictions: Barriers to Reentry of the for the Formerly Incarcerated Before the S. Comm on Crime, Terrorism, and Homeland Sec., 111th Cong. (2010), webcast available at http://judiciary.house.gov/hearings/hear_100609.html.
65. Hannah Geyer, ABA JUVENILE JUSTICE COLLATERAL CONSEQUENCES PROJ., An Open Letter to Legal Aid Attorneys & Juvenile Defenders, http://njjn.org/media/resources/public/resource_1418.pdf (last visited Aug. 31, 2010).
66. Frank D. Eaman, Public Defense in Michigan: From the Top to the Bottom, 87 MICH. BUS. L.J. 40, 42 (2008).
67. N.Y. STATE BAR ASS'N, "RE-ENTRY AND REINTEGRATION: THE ROAD TO PUBLIC SAFETY": REPORT AND RECOMMENDATIONS OF THE SPECIAL COMMITTEE ON COLLATERAL CONSEQUENCES OF CRIMINAL PROCEEDINGS (2006), available at http://www.nysba.org/AM/Template.cfm?Section=Substantive_Reports&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=11415.
68. Id. at 391.
69. Id. at 392.
70. Id. at 389.
71. ABA STANDARDS FOR CRIMINAL JUSTICE: COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS (3d ed. 2004).
72. Id. at 19-2.2.
73. Id. at 19-2.3.
74. Id. at 19-2.4(a).
75. Id. at std. 19-2.5(a).
76. UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT (2009), available at http://www.law.upenn.edu/bll/archives/ulc/ucsada/2009_final.pdf.
77. Id. at 10.
78. The purpose of this compilation is to "make the law accessible to judges, lawyers, legislators and defendants who need to make decisions based on it."
79. Id. at 5.
80. The Act authorizes each state, in compiling these consequences, to rely upon the "collateral sanctions, disqualifications, and relief provisions prepared by the National Institute of Justice described in Section 510 of the Court Security Improvement Act of 2007, Pub. L. 110-177."
81. Id. at 10.
82. Id. at 13.
83. Id. at 17.
84. See Beck, supra note 2 (documenting the number of individuals released from prison in 2008).