The term "collateral consequences" refers to restrictions that follow the completion of a criminal sentence. Throughout European and early American history, these revocations of civil rights were viewed as the civil death of those who experienced them. Historically, this applied primarily to rights related to inheritance and property, and was utilized alongside capital punishment to settle the affairs of someone who committed a serious felony.1 Modern collateral consequences began to appear in 1898 with the case of Hawker v. New York, in which the Court upheld the state's exclusion of those with felonious records from the practice of medicine.2 Restrictions such as this, combined with the expansion of government welfare programs from the 1960s onward, led to an increasing number of benefits withheld from those who have committed crime. The Justice Center at the Council of State Governments has identified over 44,000 legal collateral consequences in existence today.3
Federal law prohibits those with a felony on their criminal record from some significant welfare programs and benefits. For example, the Department of Housing and Urban Development (HUD) automatically bans those with a record of certain sex or drug offenses from living in public housing.4 HUD also grants broad authority to local public housing authorities (PHAs) to deny housing to those with a criminal record. PHAs do not have to prove this criminal activity, and can rely solely on record of arrest to justify exclusion.5 HUD secretary Julian Castro has encouraged local PHAs to loosen such restrictions, and some major cities such as Chicago and New York City have developed pilot programs to allow those who have committed a felony to participate in public housing.6
A federal law, passed in 1996, also bars those who have committed certain drug offenses from receiving welfare funds including the Temporary Assistance to Needy Families (TANF) and Supplemental Nutritional Assistance Program (SNAP).7 However, states are permitted to opt out of this exclusion. By 2015, 14 states had chosen to opt out of the restriction on TANF recipients, while 23 states retained a partial ban, and 13 states retained the full restrictions of the federal law.8 More states have opted out the exclusion as it relates to SNAP, with 18 states lifting the restriction fully, and 25 states retaining only a partial ban on assistance to those with a criminal history.9
Even after paying their debt to society, the 70 million men and women with criminal records in America continue to face systematic and often life-long barriers to second chance opportunities. After someone has completed their traditional sentence, Prison Fellowship believes only restrictions to personal liberty that have a demonstrated and substantial link to protecting public safety should be permissible. Even in these limited cases, the restrictions should be anticipated at the time of sentencing as part of the defendant's proportional punishment and notification of all such consequences should be given to the defendant during the trial process.
Accordingly, Prison Fellowship has supported advocacy campaigns to lift bans that prevent people with criminal records from accessing student financial aid, nutrition assistance, housing access, occupational licensing and other employment opportunities. We played a leading role in passage and reauthorization of the Second Chance Act, which provides funding for reentry programs like mentoring and job training. Prison Fellowship also directly ministers to men and women returning from prison to the community through faithful church partners and volunteer mentors across the country.
We ought to celebrate redemption and allow people to give back to society at their highest potential. Since 2017, Prison Fellowship has spearheaded Second Chance Month each April. This nationwide effort seeks to raise awareness about the barriers faced by returning citizens and unlock second chances for people with a criminal record.
1 Rebecca Beitsch, States Rethink Restrictions on Food Stamps, Welfare for Drug Felons, PEW CHARITABLE TRUSTS, Jul.30, 2015, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/07/30/states-rethink-restrictions-on-food-stamps-welfare-for-drug-felons.
2 170 U.S. 189 (1898).
4 42 U.S.C. § 13663(a) (2000), 42 C.F.R. § 960.204(a)(3)-(4) (2005).
5 Dᴇᴘ'ᴛ OF Hᴏᴜ. & Uʀʙ. Dᴇᴠ., Public Housing Occupancy Guidebook, (June 2003).
6 Brentin Mock, Should People With Criminal Histories Be Banned From Public Housing?, CITYLAB, Sep. 18, 2015, https://www.citylab.com/crime/2015/09/should-people-with-criminal-histories-be-banned-from-public-housing/406015/.
7 Ben Geiger, The Case for Treating Ex-Offenders as a Suspect Class 94 CALIF.L.REV 78, at 1205 (2006).
8 Rebecca Beitsch, States Rethink Restrictions on Food Stamps, Welfare for Drug Felons, PEW CHARITABLE TRUSTS, Jul.30, 2015, https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/07/30/states-rethink-restrictions-on-food-stamps-welfare-for-drug-felons.
Second Chance Reauthorization Act legislative primer: Prison Fellowship believes each person impacted by crime and incarceration has intrinsic value and the capacity for change. Because a restorative approach is the key to building a better criminal justice system, we have defined a justice framework to guide our nation's efforts to reform our ineffective, expensive, and broken criminal justice system.
Locked Out: Voices from America’s Second Prison is a book of compiled testimonies of people who have experienced the impact of collateral consequences as a result of their criminal record
Written Testimony submitted by Prison Fellowship’s Jesse Wiese to the House Judiciary Over-Criminalization Task Force for June 2014 Hearing on Collateral Consequences
Ten Most Outrageous Restrictions on People with a Criminal Record: There are 44,000 legal restrictions on those with criminal records. Here's ten we find to be the most outrageous. Do you agree?