March 04, 2015

ABA criminal justice summit sheds light on collateral consequences

“If you are convicted of a felony you lose the right to vote, you can’t have a gun, you can’t hold public office, you can’t serve on a jury …but there are so many [additional] consequences out there that we don’t know about. Consequences that can affect your job, your ability to get a license, your ability to find a place to live, your public benefits, potentially your parental rights,” said James Felman, criminal defense lawyer and co-chair of the ABA Criminal Justice Section at the First Summit on Collateral Consequences, held  Feb. 27 in Washington, D.C. 

ABA President William C. Hubbard addresses the ABA Criminal Justice Section's First Summit on Collateral Consequences. See video of President Hubbard's remarks here.

According to Felman, 65 million people in the United States with a criminal record of some kind are prevented from becoming productive, law-abiding citizens even after having completed their debt to society. Collateral consequences laws restrict employment, housing, education benefits and other opportunities for people with convictions.

“You can’t be a haircutter in some places, even after they have taught you to cut hair in a prison, even if your crime had nothing to do with Sweeney Todd,” said Felman. “It’s a problem, and it’s a problem because we don’t even know what they [the consequences] are.”

With a grant from the National Institute of Justice, the ABA developed the National Inventory of the Collateral Consequences of Conviction ––an online database of more than 45,000 collateral consequences––to help attorneys provide more informed counsel to clients and provide lawmakers, advocacy groups and the public with accurate information about the scope of collateral consequences.“This enormous undertaking could create a sea change in the way legislatures, judges, lawyers and the public think about the kind of dispositions of criminal cases that promote public safety. At the same time, it can improve the chances of offenders to become contributing public members once they complete their sentences,” said ABA President William C. Hubbard, during the summit’s opening remarks.

Hubbard recognized the difficulties of successful re-entry into society posed by the blanket application of collateral consequences.

“The truth is that in most jurisdictions, collateral consequences may be imposed automatically upon conviction. Often, there is no mechanism by which to obtain relief from them. The result is that these collateral consequences become a life sentence harsher than whatever sentence a court actually imposed upon conviction,” Hubbard said.

Hubbard called for removing barriers that keep ex-inmates from successful societal re-entry, and highlighted the ABA’s efforts to address the problem.

“The National Inventory brings transparency to what was a complex and largely hidden part of criminal justice,” Hubbard said. “Now, for the first time, there is reason to believe that conscientious judges and lawyers will pay attention to collateral consequences as they dispose of criminal cases. Before defendants plead guilty to an offense, they can see the full effect of what that plea may cost them.”

Hubbard commented on the role of lawmakers and the need for legislative criminal justice reform to eliminate obstacles without compromising public safety.

“There is reason to hope that conscientious legislators and agency officials will examine the collateral consequences and eliminate or modify those that unnecessarily stand in the way of an individual being able to reclaim his or her place as a lawful, contributing member of a community.”

Hubbard, who has emphasized the association’s advocacy on criminal justice and sentencing reform during his presidency, said that collateral consequences should be considered a matter of national concern, and not one restricted to the legal community.

“This is important to the ABA because it is a matter of justice. It is important to America because it is a matter of fairness. And it is important to every person in the United States because it is a matter of morality,” he said.

Amy Solomon, senior advisor to the U.S. Department of Justice’s assistant attorney general, said that more than 20 agencies are working together as part of the Federal Interagency Reentry Council to reduce the broad set of collateral consequences and expressed her department’s view on this issue as a matter of public safety.

“At the Justice Department, we believe there are substantial opportunities to simultaneously hold people accountable, improve public safety and to help motivated individuals — who have served their time and paid their debts — to compete for a job, attain stable housing, support their children and be productive, contributing members of our communities,” Solomon said. “Not only are these things not mutually exclusive – they actually go hand-in-hand. By helping justice-involved individuals succeed, we improve public safety.”

Solomon outlined four government initiatives to eliminate or tailor barriers without compromising public safety.

  1. The Equal Employment Opportunity Commission, the Department of Labor and the Office of Personnel Management took actions to amplify and clarify good hiring policy for those with arrest or conviction histories. More recently, the Small Business Administration proposed to amend their eligibility rules for a micro loan, so that people on probation and parole are not automatically excluded.

  2. The Department of Health and Human Services is looking at the barriers faced by individuals with a criminal record who are trying to enter the health care workforce.

  3. The DOJ’s Second Chance grants and DOL’s Reintegration of Ex-Offender grants now allow for the use of federal funds to pay for legal assistance to expunge criminal records, secure driver’s licenses, modify child support orders and litigate inappropriate denials of housing or employment and violations of the FAIR Credit Reporting Act.

  4. The DOJ’s Office of Juvenile Justice and Delinquency Prevention provided the Department of Housing and Urban Development with funding to implement a Juvenile Reentry Legal Assistance Program with public housing authorities in partnership with legal assistance organizations. The program will primarily focus on the expungement and sealing of juvenile records, as well as provide other civil legal services. 

Finally, Solomon said DOJ looks forward to working with the ABA to create practical tools that build on the National Inventory. Solomon referenced working closely with the ABA to develop a bench book to assist judges in explaining to the accused the existence of collateral consequences prior to the entry of a plea.

“We seek to help judges, prosecutors, defense attorneys and the accused understand the full spectrum of sanctions that a conviction entails,” Solomon said.