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July 01, 2014

Collateral consequences constitute public safety issue

ABA Criminal Justice Section Chair Mathias H. Heck Jr. emphasized in testimony last month that collateral consequences of conviction often are at odds with public safety when they work to prevent ex-offenders from finding employment and becoming productive citizens.

Heck, testifying during a June 26 hearing before the House Judiciary Task Force on Over-Criminalization, explained that collateral consequences, labeled the “hidden world of punishment” by Supreme Court Justice Anthony M. Kennedy, encompass a wide range of restrictions on ex-prisoners that include disenfranchisement, deportation, loss of professional licenses, felon registration, and ineligibility for certain public welfare benefits. At Kennedy’s urging, the ABA undertook a comprehensive national examination of federal and state criminal justice policies in 2003 that led to numerous recommendations and creation of the ABA Commission on Effective Criminal Sanctions.

In his testimony, Heck acknowledged that some collateral consequences serve important and legitimate public purposes, such as keeping firearms out of the hands of persons convicted of crimes of violence or barring persons recently convicted of fraud from positions of public trust. He explained, however, that other restrictions, particularly those applied automatically across the board to whole categories of convicted persons, are more difficult to justify.

“The indiscriminate imposition of collateral penalties has serious implications, not only in terms of fairness to the individuals involved, but also in terms of the resulting burdens on the community,” he testified. The association’s Collateral Consequences of Conviction Project, a six-year effort funded by the National Institute of Justice, recently completed a state-by-state database listing more than 45,000 collateral consequences that exist in every jurisdiction’s code of laws and regulations.

According to Heck, the vast majority of collateral consequences identified by the project are employment-related, and he highlighted the fact that state correctional systems spend millions of dollars on job training programs in prisons, only then to bar re-entering individuals from obtaining licenses that would allow them to work in the fields for which they were trained.

The free database developed by the project may be accessed by everyone, including the public, attorneys, prosecutors and defense attorneys, judges and policymakers. “The hope is that this project will provide everyone with a readily accessible resource and tool,” Heck said, and that stakeholders in the criminal justice system and the general public “can propose and deliver on appropriate reforms of unfair and unjust collateral consequences.”

The ABA also has adopted a comprehensive set of standards to encourage awareness of the full legal consequences of a criminal conviction and to focus on the impact of collateral consequences on convicted individuals as they reenter the free community.

Also testifying during the hearing was Rick Jones, executive director of the Neighborhood Defender Services of Harlem. Jones, who was representing the National Association of Criminal Defense Lawyers, echoed the ABA’s concerns. The problem of collateral consequences calls for “a fundamental shift in the national mindset,” Jones said, and he called on Congress to reauthorize the Second Chance Act, a law also backed by the ABA that supports reentry programs to ensure that persons released from prison are given a second chance to become contributing members of society.

Later that day, House Judiciary Committee Ranking Member John Conyers Jr. (D-Mich.) and task force Ranking Member Rep. Robert C. “Bobby” Scott (D-Va.) hosted a forum giving those suffering the adverse effects of collateral consequences an opportunity to tell their stories.

Those appearing were former New York City Police Commissioner Bernard Kerik; Piper Kerman, author of the memoir Orange is the New Black: My Year in a Women’s Prison; internationally known spoken-word artist Lamont Carey; and poet Anthony Pleasant.

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