Collateral Consequences Of A Criminal Conviction

Collateral Consequences of a Criminal Conviction

What are Collateral Consequences?

Collateral consequences are legal and regulatory restrictions that are triggered by a criminal conviction, regardless of the actual sentence imposed by the court. They are considered “collateral” because they are legally imposed penalties that occur separately from the direct consequences of a conviction, such as incarceration, fines, or probation.

Collateral consequences can include:

• Loss of voting rights
• Ineligibility for federal welfare benefits and food stamps
• Exclusion from public housing
• Loss of driver’s license
• Inability to possess a firearm
• Restrictions on employment and occupational licensing
• Limits on access to student loans and grants
• Deportation for non-citizen immigrants
• Sex offender registration
• Loss of custody rights

These penalties are mandated by federal, state, or local laws and regulations. They are imposed automatically without discretion following a conviction, even after an individual’s sentence is complete. A person may face hundreds or even thousands of collateral consequences that restrict their rights and opportunities for life.

Major Categories of Collateral Consequences

Collateral consequences stemming from a criminal conviction generally fall into several major categories:

Civic Participation

A conviction can lead to long-term or permanent loss of basic civic rights and privileges:

• Voting – Most states restrict voting rights for people convicted of felonies, with restrictions varying widely between states. Some states impose a lifetime voting ban while others automatically restore voting rights when a sentence is complete[1].
• Jury service – People with felony convictions are disqualified from serving on juries in nearly every state, with only Maine and Colorado placing no restrictions. Several states impose a lifetime ban[2].
• Holding office – At the federal level and in many states, people convicted of various offenses are prohibited from holding public office, ranging from appointment to Congress or elected county officials. These policies vary significantly between states[3].

Public Benefits

A wide range of public benefits and services can be limited or lost entirely following a criminal conviction:

• Federal welfare benefits – Those convicted of felony drug offenses face a lifetime ban on Temporary Assistance for Needy Families (TANF) and food stamps. States can opt out or modify the bans, but they remain in effect in some form in over 30 states[4].
• Public housing – Federal law requires public housing agencies to deny housing for certain offenses and allows agencies to deny housing at their discretion based on an applicant’s criminal record. Individuals can be evicted for criminal activity committed by themselves, their guests, or even unaffiliated people living nearby[5].
• Student loans & grants– Eligibility for federal and state education grants, loans, and work assistance can be suspended or terminated for drug convictions. The bans range from 1 year to indefinite[6].

Employment & Licensing

One of the most severe collateral consequences is reduced employment prospects and occupational licensing restrictions:

• Background checks – Criminal records are routinely examined in background checks during the hiring process. Applicants with criminal histories are 50% less likely to get an interview callback or job offer.
• Occupational licensing – Roughly 30% of all jobs in the U.S. require some form of occupational license or certification. State licensing rules include broad bans or discretionary restrictions for people with criminal records, often with little relation to the underlying offense.
• Financial industry bans – Federal law imposes mandatory licensing bans in the banking, insurance, securities, and other financial industries for certain criminal convictions, regardless of time elapsed or rehabilitation.
• Federal contracting rules – Regulations restrict people with certain types of convictions from working for federal contractors, which make up roughly 23% of U.S. jobs.

Family & Domestic Rights

Criminal convictions can destabilize family relationships and domestic rights:

• Child custody – Family courts can consider a parent’s criminal record as a factor when making child custody determinations. Specific offenses may also trigger automatic bans on custody or unsupervised visitation.
• Adoption & foster care – Most states allow child welfare agencies to use criminal records when evaluating potential adoptive or foster parents. Some offenses result in mandatory permanent bans.
• Eviction – Public housing residents can be evicted if a household member engages in criminal activity on or off the premises. Private landlords also commonly deny housing applications based on an applicant’s criminal record.
• Domestic abuse penalties – Those convicted of domestic violence offenses face a range of collateral penalties, including bans on firearm possession and adoption. Non-citizen immigrants convicted of domestic abuse are deportable.

Immigration Consequences

For non-citizens, especially undocumented immigrants, virtually any criminal conviction can trigger devastating immigration consequences:

• Deportation – Many categories of criminal convictions result in mandatory detention and deportation. Yearly deportations of legal permanent residents have increased sharply in recent years.
• Inadmissibility – Non-citizens convicted of certain offenses are deemed “inadmissible” and ineligible for visas or legal resident status. The inadmissibility can be permanent.
• Detention – Those in removal proceedings based on criminal convictions are subject to mandatory detention without bond. They can be detained indefinitely pending deportation.

Key Characteristics of Collateral Consequences

Beyond the many specific penalties imposed, collateral consequences share some key characteristics that demonstrate their extensive and often problematic nature:

Little Public Awareness

There is generally a lack of public knowledge or understanding about the full extent of collateral consequences stemming from a criminal conviction:

• The general public is often unaware of the thousands of legal and regulatory restrictions imposed. This undermines the supposed deterrent effect of collateral consequences.
• A 2013 survey found that over 80% of Americans are unaware that people with felony convictions face significant voting restrictions after release.
• Defense lawyers frequently fail to inform clients of the indirect civil penalties they will face. Many defendants plead guilty unaware of the consequences.

Discretionary vs. Mandatory

While some collateral consequences are imposed at the discretion of courts or agencies, many are mandated automatically by statute for certain offenses:

• Discretionary consequences allow for individualized decision-making based on the facts of the case, time elapsed, and rehabilitation evidence.
• Mandatory consequences are imposed uniformly, often for life, regardless of mitigating factors. They allow little room for redemption.
• Roughly 80% of collateral consequences are mandatory rather than discretionary.

Relationship to Public Safety

Some collateral consequences are clearly justified by legitimate public safety concerns. However, many lack any rational connection to preventing future criminality or protecting the public:

• Consequences like firearm bans for violent offenses have a reasonable public safety basis.
• But other consequences like blanket student aid bans or public housing eviction are often unrelated to any likely risk.
• Only an estimated 10-30% of collateral consequences serve identifiable public safety goals.

Effects on Recidivism

Harsh collateral consequences are counterproductive from a public safety standpoint:

• Barriers to housing, employment, education, and family relationships all increase the risk of reoffending.
• One study found that the more collateral consequences a state imposed, the higher its recidivism rates.
• Conversely, programs that provide relief from collateral consequences have been found to reduce recidivism.

Racial Disparities

The effects of collateral consequences fall disproportionately on communities of color:

• African Americans face incarceration at 5 times the rate of whites. The disparity widens for Hispanics, Native Americans, and other groups.
• The poverty rate of formerly incarcerated people is nearly 40% higher for Black people than for whites.
• In 12 states, more than 15% of the Black population is disenfranchised due to felony convictions.

Reform Efforts and Best Practices

In recent years, there has been a growing reform movement to curtail excessive collateral consequences and mitigate their impact:

Disenfranchisement Reform

• Between 1997 and 2020, 24 states enacted laws to expand or restore voting rights for people with felony convictions. Just 2 states further restricted rights.
• In 2018, Florida voters approved a constitutional amendment to automatically restore voting rights to 1.5 million people with past felony convictions once their sentence is complete.

Occupational Licensing Reforms

• In 2016, the National Conference of State Legislatures recommended that states limit blanket occupational licensing bans based on criminal records.
• As of 2020, 35 states had enacted laws to remove automatic licensing barriers for people with criminal records.

Relief Mechanisms

• Many states now allow people to apply for relief from specific collateral consequences through pardons or certificates of rehabilitation.
• These mechanisms allow individuals to present evidence of rehabilitation but are underutilized due to limited public awareness.

Best Practices

Experts recommend several best practices for reform:

• Tailor consequences narrowly to serve legitimate public safety goals.
• Avoid mandatory blanket restrictions unrelated to the conviction.
• Provide discretionary relief mechanisms.
• Limit consequences to a reasonable duration.
• Inform defendants of consequences before plea deals.

Conclusion

The web of collateral consequences that entangle people with criminal convictions in the United States is vast, serious, and counterproductive. While reform efforts have gained momentum, millions of Americans still face severe barriers to reentry and participation in society long after they have paid their debt to justice. To build stronger and more just communities, society must continue finding ways to temper punitive policies, offer paths to redemption, and recognize the humanity in all people, regardless of their past mistakes.