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 American Bar Association 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 The U.S. House Judiciary Committee called attention to the vast number and impact of collateral consequences during a hearing devoted to the topic in January 2014.10
Even after paying their debt to society, the 65 million men and women with criminal records in America continue to face the "second prison," 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 on access to nutrition assistance and housing access. We played a leading role in passage of the Second Chance Act, which provides funding for reentry programs like mentoring and job training, and we continue to advocate for its reauthorization. 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. That's why Prison Fellowship started The Second Prison Project campaign to raise awareness about the barriers people face after leaving prison and to fight the culture stigma that comes with a criminal record. The campaign also exists to engage those with criminal records and who have served time to pour their experience back into those who are returning now. In this way, we following the tradition of many addiction recovery groups who have mentors who are clean and sober helping newcomers get clean and sober. We have seen time and again how sharing what God did to change a person can be used to attract more people to the same solution we share in Christ.
1 Rebecca Beitsch, States Rethink Restrictions on Food Stamps, Welfare for Drug Felons, PEW CHARITABLE TRUSTS, Jul.30, 2015, http://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, http://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, http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/07/30/states-rethink-restrictions-on-food-stamps-welfare-for-drug-felons.
10 Collateral Consequences: Hearing Before the Over-criminalization Task Force of the H. Comm. on the Judiciary, 113th Cong. (2014), https://judiciary.house.gov/wp-content/uploads/2016/02/113-100_88438.pdf.
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 48,000 legal restrictions on those with criminal records. Here's ten we find to be the most outrageous. Do you agree?