U.S. Commission on Civil Rights: Collateral Consequences - The Crossroads of Punishment, Redemption and The Effect on Communities, 2019

The Habeas Citebook Ineffective Counsel - Header

U.S. Commission on Civil Rights: Collateral Consequences - The Crossroads of Punishment, Redemption and The Effect on Communities, 2019

• June 13, 2019 • Locations: United States of America • Topics: Racial Discrimination, Statistics/Trends, Money/Property, housing

Download original document:
Brief thumbnail

Document text

This text is machine-read, and may contain errors. Check the original document to verify accuracy.

U . S .

C O M M I S S I O N

O N

C I V I L

R I G H T S

COLLATERAL CONSEQUENCES:
The Crossroads of Punishment, Redemption,
and the Effects on Communities

BR I E F I N G
R

U.S . CO M M IS S IO N O N CIVIL RIG HT S
Washington, DC 20425
Official Business
Penalty for Private Use $300
Visit us on the Web: www.usccr.gov

JUNE 2019

U.S. COM M I SS ION ON CIVI L R IG HTS

M E M B E RS OF TH E COM M I SS ION

The U.S. Commission on Civil Rights is an independent,
bipartisan agency established by Congress in 1957. It is
directed to:

Catherine E. Lhamon, Chairperson
Patricia Timmons-Goodson, Vice Chairperson
Debo P. Adegbile
Gail L. Heriot
Peter N. Kirsanow
David Kladney
Karen Narasaki
Michael Yaki

• Investigate complaints alleging that citizens are
being deprived of their right to vote by reason of their
race, color, religion, sex, age, disability, or national
origin, or by reason of fraudulent practices.
• Study and collect information relating to discrimination or a
denial of equal protection of the laws under the Constitution
because of race, color, religion, sex, age, disability, or
national origin, or in the administration of justice.
• Appraise federal laws and policies with respect to
discrimination or denial of equal protection of the laws
because of race, color, religion, sex, age, disability, or
national origin, or in the administration of justice.
• Serve as a national clearinghouse for information
in respect to discrimination or denial of equal
protection of the laws because of race, color,
religion, sex, age, disability, or national origin.
• Submit reports, findings, and recommendations
to the President and Congress.
• Issue public service announcements to discourage
discrimination or denial of equal protection of the laws.*

*42 U.S.C. §1975a.

Mauro Morales, Staff Director

U.S. Commission on Civil Rights
1331 Pennsylvania Avenue, NW
Washington, DC 20425
(202) 376-8128 voice
TTY Relay: 711
www.usccr.gov

Collateral Consequences:
The Crossroads of
Punishment, Redemption,
and the Effects on
Communities

Briefing Before
The United States Commission on Civil Rights
Held in Washington, DC
Briefing Report
June 2019

[This page intentionally left blank]

UNITED STATES COMMISSION ON CIVIL RIGHTS
1331 Pennsylvania Ave., NW  Suite 1150  Washington, DC 20425
www.usccr.gov

Letter of Transmittal
June 13, 2019
President Donald J. Trump
Vice President Mike Pence
Speaker of the House Nancy Pelosi
On behalf of the United States Commission on Civil Rights (“the Commission”), I am pleased to
transmit our briefing report, Collateral Consequences: The Crossroads of Punishment,
Redemption, and the Effects on Communities. The report is also available in full on the
Commission’s website at www.usccr.gov.
This report provides an overview of the relevant data and arguments for and against the
imposition of collateral consequences on people with criminal records. Each year, federal and
state prisons release more than 620,000 people to return to their communities. While these
individuals have often completely exited criminal supervision (for example, through a prison
sentence or probation), individuals with criminal records still face potentially thousands of
collateral consequences upon reentering society. These collateral consequences are sanctions,
restrictions, or disqualifications that attach to a person because of the person’s criminal history.
For example, individuals with criminal histories can face barriers to voting, jury service, holding
public office, securing employment, obtaining housing, receiving public assistance, owning a
firearm, getting a driver’s license, qualifying for financial aid and college admission, qualifying
for military service, and maintaining legal status as an immigrant. The reach of each collateral
consequence extends past people with criminal records to affect families and communities.
The Commission majority (six Commissioners in favor, one Commissioner in opposition)
approved key findings including the following: Collateral consequences exacerbate punishment
beyond the criminal conviction after an individual completes the court-imposed sentence. Valid
public safety bases support some collateral consequences, such as limitations on working with
children for people convicted of particular dangerous crimes. Many collateral consequences,
however, are unrelated either to the underlying crime for which a person has been convicted or to
a public safety purpose. When the collateral consequences are unrelated in this way, their
imposition generally negatively affects public safety and the public good.
Evidence shows harsh collateral consequences unrelated to public safety increase recidivism by
limiting or by completely barring formerly incarcerated persons’ access to personal and family
support. In addition, the general public, attorneys, and the courts often lack knowledge of what
the totality of the collateral consequences are in their jurisdiction, how long they last, and

whether they are discretionary or mandatory, or even if they are relevant to public safety or
merely an extended punishment beyond a criminal sentence. This absence of public and judicial
awareness of collateral consequences of conviction undermines any deterrent effect that might
flow from attaching such consequences, separate and apart from the punishment itself, to
criminal convictions. The processes people must undertake to restore rights, for example through
applications for pardon or for judicial record sealing, are often complicated, opaque, and difficult
to access.
The Commission majority voted for key recommendations, including the following: Collateral
consequences should be tailored to serve public safety. Policymakers should avoid punitive
mandatory consequences that do not serve public safety, bear no rational relationship to the
offense committed, and impede people convicted of crimes from safely reentering and becoming
contributing members of society. Jurisdictions that impose collateral consequences should
periodically review the consequences imposed by law or regulation to evaluate whether they are
necessary to protect public safety and if they are related to the underlying offenses.
The Commission majority specifically calls on Congress to limit discretion of public housing
providers to prevent them from categorically barring people with criminal convictions from
access to public housing; lift restrictions on access to student loans based on criminal
convictions, except for convictions related to financial fraud; eliminate restrictions on TANF and
SNAP benefits based on criminal convictions; and require federal courts to give comprehensive
notice of federal restrictions on individuals’ rights before guilty plea entry, upon conviction, and
upon release from incarceration.
We at the Commission are pleased to share our views, informed by careful research and
investigation as well as civil rights expertise, to help ensure that all Americans enjoy civil rights
protections to which we are entitled.
For the Commission,

Catherine E. Lhamon
Chair

TABLE OF CONTENTS

Table of Contents
Table of Contents............................................................................................................................................................i
ACKNOWLEDGEMENTS ......................................................................................................................................... iii
Executive Summary ....................................................................................................................................................... 1
Chapter 1: Introduction and Overview .......................................................................................................................... 9
Overview of Collateral Consequences ...................................................................................................................... 9
Demographics of the Corrections Population.......................................................................................................... 18
Federal Statutes that Impose Collateral Consequences ........................................................................................... 22
State and Local Statutes that Impose Collateral Consequences .............................................................................. 29
Restoration of Certain Rights .................................................................................................................................. 30
Notification of Collateral Consequences ................................................................................................................. 31
Chapter 2: Access to Self-Sufficiency and Meeting Basic Needs ............................................................................... 35
How a Criminal Record Can Affect Employment Opportunities ............................................................................ 35
Criminal Background Checks for Employment .................................................................................................. 41
Removing Barriers to Employment for People with Criminal Records .............................................................. 47
Occupational Licensing Barriers ......................................................................................................................... 49
Fair Chance Hiring Policies ................................................................................................................................ 54
How a Criminal Record Can Affect Housing Opportunities ................................................................................... 60
Barriers to Subsidized Housing for Individuals with Criminal Records ............................................................. 65
Barriers to Private Housing for Individuals with Criminal Records ................................................................... 72
How a Criminal Record Can Affect Access to Public Benefits .............................................................................. 76
The Disproportionate Impact of Lifetime Drug Bans for Public Benefits .......................................................... 80
Barriers to Financial Aid for Higher Education .................................................................................................. 84
Chapter 3: Access to Civic Participation ..................................................................................................................... 89
Voting...................................................................................................................................................................... 89
The Current Landscape of State Felony Disenfranchisement Laws ................................................................... 90
Arguments For and Against Felony Disenfranchisement ................................................................................... 97
The Racial Origins of Disenfranchisement Laws and Ongoing Disparities...................................................... 104
Legal Challenges............................................................................................................................................... 108
The Restoration of Voting Rights ..................................................................................................................... 113
Jury Service ........................................................................................................................................................... 124
The Impact of Jury Exclusion on People of Color ............................................................................................ 129
Chapter 4: Findings and Recommendations .............................................................................................................. 133
Findings ................................................................................................................................................................. 133
Recommendations ................................................................................................................................................. 135

TABLE OF CONTENTS
Commissioners’ Statements....................................................................................................................................... 139
Statement of Chair Catherine E. Lhamon.............................................................................................................. 139
Statement of Commissioner David Kladney ......................................................................................................... 141
Statement of Commissioner Peter N. Kirsanow .................................................................................................... 145
Joint Statement of Commissioners Gail Heriot and Peter N. Kirsanow ................................................................ 149
Commissioners’ Rebuttals ......................................................................................................................................... 161
Statement of Commissioner David Kladney ......................................................................................................... 161

ACKNOWLEDGEMENTS

ACKNOWLEDGEMENTS
The Commission’s Office of Civil Rights Evaluation (OCRE) produced this report under the
direction of Katherine Culliton-González, Esq, OCRE Director.
Social Scientist Sarale Sewell and Contractor Elizabeth Paukstis, Esq. performed the principal
research and writing.
OCRE Civil Rights Analysts LaShonda Brenson and Marik Xavier-Brier provided valuable
research assistance.
Commissioners’ Special Assistants Sheryl Cozart, Jason Lagria, Carissa Mulder, Amy Royce,
Rukku Singla, Alison Somin, and Irena Vidulovic assisted their Commissioners in reviewing the
report.
With the assistance of Contractor Julie Bush, Esq. and Law Clerk Lamayli Huguet (J.D.
Candidate 2020, American University), the Commission’s General Counsel Maureen Rudolph,
Esq., reviewed and approved the report for legal sufficiency.
Commission State Advisory Committees in Alabama, Arizona, Florida, Illinois, Kentucky,
Louisiana, Maine, Ohio, Tennessee, and West Virginia collected and provided testimony,
findings, and recommendations to the Commission on collateral consequences and related civil
rights issues within their jurisdictions.

iii

ACKNOWLEDGEMENTS

[This page intentionally left blank]

EXECUTIVE SUMMARY

Executive Summary
More than 620,000 people are released from federal and state prisons each year and return to their
communities. 1 This substantial number is nearly equivalent to the population of Boston annually.2
While these and other individuals have already served their prison or jail sentences, are currently
serving probation or parole, or have completely exited criminal supervision, they still face
numerous collateral consequences of their conviction or criminal history upon reentering society. 3
According to the National Institute of Justice, more than 44,000 collateral consequences exist
nationwide. 4 These include civil law sanctions, restrictions, or disqualifications that attach to a
person because of the person’s criminal history and can affect the person’s ability to function and
participate in society. 5 For example, individuals with criminal histories can face barriers to voting, 6
serving on a jury, 7 holding public office, 8 securing employment, 9 obtaining housing, 10 receiving
public assistance, 11 owning a firearm, 12 getting a driver’s license, 13 qualifying for financial aid and
0F

10F

12F

E. Ann Carson, Prisoners in 2016, U.S. Dep’t of Justice, Bureau of Justice Statistics, 2018, at 10,
https://www.bjs.gov/content/pub/pdf/p16.pdf; Kate Walz and Marie Claire Tran-Leung, The Sargent Shriver
National Center on Poverty Law, Written Statement for the Collateral Consequences: The Crossroads of
Punishment, Redemption, and the Effects on Communities Briefing before the U.S. Commission on Civil Rights,
May 19, 2017, at 2-3 [hereinafter Walz and Tran-Leung Statement].
2
U.S. Census Bureau, “Quick Facts: Boston city, Massachusetts,” July 1, 2017,
https://www.census.gov/quickfacts/bostoncitymassachusetts (estimating the mid-2017 population of Boston as
685,094 people).
3
Margaret Love, Written Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption,
and the Effects on Communities Briefing before the U.S. Commission on Civil Rights, May 19, 2017, at 4
[hereinafter Love Statement].
4
Council of State Governments, “The National Inventory of the Collateral Consequences of Conviction,”
https://niccc.csgjusticecenter.org/about/ (last accessed Nov. 24, 2018) [hereinafter CSG, “The National Inventory of
the Collateral Consequences of Conviction”].
5
Sarah B. Berson, National Institute of Justice, “Beyond the Sentence—Understanding Collateral Consequences,”
National Institute of Justice Journal, no. 272, at 25, https://www.ncjrs.gov/pdffiles1/nij/241924.pdf.
6
See Chapter 3, “Voting,” infra notes 625-889.
7
See Chapter 3, “Jury Service,” infra notes 890-955.
8
Michael Campagna, Cheyenne Foster, Stephanie Karas, Mary K. Stohr, Craig Hemmens, “Restrictions on the
Citizenship Rights of Felons: Barriers to Successful Reintegration,” Journal of Law and Criminal Justice, vol. 4, no.
1 (2016), 24, 25, http://jlcjnet.com/journals/jlcj/Vol_4_No_1_June_2016/2.pdf.
9
See Chapter 2, “How a Criminal Record Can Affect Employment Opportunities,” infra notes 222-409. See also
U.S. Commission on Civil Rights, Assessing the Impact of Criminal Background Checks and the Equal Employment
Opportunity Commission’s Conviction Records Policy, 2013 [hereinafter USCCR, 2013 Briefing Report],
http://www.eusccr.com/EEOC_final_2013.pdf.
10
See Chapter 2, “How a Criminal Record Can Affect Housing Opportunities,” infra notes 410-525.
11
See Chapter 2, “How a Criminal Record Can Affect Access to Public Benefits,” infra notes 526-624.
12
18 U.S.C. § 922(d)(1); see also U.S. Dep’t of Justice, Federal Statutes Imposing Collateral Consequences Upon
Conviction, 2000, at 15-20,
https://www.justice.gov/sites/default/files/pardon/legacy/2006/11/13/collateral_consequences.pdf.
13
See, e.g., 23 U.S.C. § 159 (withholding federal funding from any state that does not revoke or suspend the driver’s
licenses of individuals convicted of drug offenses); see also Grace Sankey-Berman, Written Statement for the
Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities Briefing
before the U.S. Commission on Civil Rights, April 24, 2017, at 1 (indicating that the “most critical of these barriers
is access to ID credentials, vital documents that are essential for the successful transition of individuals from prison

EXECUTIVE SUMMARY
college admission, 14 qualifying for military service, 15 and deportation (for noncitizens). 16 As one
scholar noted, “the United States has a uniquely extensive and debilitating web of collateral
consequences that continue to punish and stigmatize individuals with criminal records long after
the completion of their sentences.” 17
13F

14F

15F

16F

The United States has the largest incarcerated population in the world, with about 2.2 million
people confined to prisons and jails. 18 The country with the second-largest prison population is
China, which incarcerates about 1.7 million individuals. 19 The United States also has the highest
per capita rate of incarceration worldwide (670 per 100,000 people), followed by Rwanda (434
per 100,000), Russia (413 per 100,000), and Brazil (325 per 100,000). 20 These calculations do not
account for the number of adults under correctional supervision, which includes not only those
imprisoned but also on probation or parole; as of December 2016, about 6.6 million people in the
U.S. were under correctional supervision.21 Collectively, at least 70 to 100 million people
nationwide are currently or will be affected by the collateral consequences of incarceration, arrest,
17F

18F

19F

20F

to the community”) [hereinafter Sankey-Berman Statement]; Vikrant Reddy, Written Statement for the Collateral
Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities Briefing before the
U.S. Commission on Civil Rights, May 19, 2017, at 3-4 [hereinafter Reddy Statement]; Marc Levin, Written
Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on
Communities Briefing before the U.S. Commission on Civil Rights, May 19, 2017, at 1-6 [hereinafter Levin
Statement].
14
See Chapter 2, “Barriers to Financial Aid for Higher Education,” infra notes 587-624.
15
10 U.S.C. § 504(a) (prohibiting any person “who has been convicted of a felony” from enlisting in “any armed
force.”).
16
Michael Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry
Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623, 636 (2006).
17
Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85
N.Y.U. L. REV. 457, 524 (2010).
18
The Sentencing Project, Fact Sheet: Trends in U.S. Corrections, 2018, at 1, https://sentencingproject.org/wpcontent/uploads/2016/01/Trends-in-US-Corrections.pdf (citing Roy Walmsley, “Highest to Lowest—Prison
Population Total,” Institute for Criminal Policy Research, World Prison Brief, http://www.prisonstudies.org/worldprison-brief (last accessed Sept. 30, 2018)).
19
Roy Walmsley, “Highest to Lowest—Prison Population Total,” Institute for Criminal Policy Research, World
Prison Brief, http://www.prisonstudies.org/world-prison-brief (last accessed Sept. 30, 2018).
20
The Sentencing Project, Fact Sheet: Trends in U.S. Corrections, supra note 18 at 1; see also J.F. Atlanta, “Why
does America have such a big prison population?” The Economist (Aug. 15, 2013),
https://www.economist.com/blogs/economist-explains/2013/08/economist-explains-8 (noting that the U.S. has an
incarceration rate “nearly five times that of Britain, seven times that of France and 24 times that of India.”).
21
Danielle Kaeble & Mary Cowhig, Correctional Populations in the United States, 2016, U.S. Dep’t of Justice,
Bureau of Justice Statistics, 2018, at 1, https://www.bjs.gov/content/pub/pdf/cpus16.pdf. See also “Demographics of
the Corrections Population,” infra notes 96-130.

EXECUTIVE SUMMARY

or conviction. 22 Due to overrepresentation in the criminal justice system, people of color, 23 people
with disabilities, 24 and LGBT individuals 25 are disproportionately impacted by collateral
consequences. Because the female incarceration rate has accelerated, collateral consequences
increasingly impact women, many of whom are single mothers whose children will be affected.26
Immigrants who are not U.S. citizens (and those misidentified as noncitizens) often face the unique
collateral consequence of deportation, which can disrupt familial relationships. 27 The reach of each
collateral consequence extends past people with criminal records to affect families and
communities. 28
21F

23F

24F

25F

26F

27F

The Sentencing Project, Half in Ten, Community Legal Services, Americans with Criminal Records, 2015, at 1,
https://www.sentencingproject.org/wp-content/uploads/2015/11/Americans-with-Criminal-Records-Poverty-andOpportunity-Profile.pdf (estimating that “100 million Americans have a criminal record”); U.S. Dep’t of Justice,
Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2012, 2014, at 3,
https://www.ncjrs.gov/pdffiles1/bjs/grants/244563.pdf (finding more than “100.5 individuals offenders” in state
criminal history repositories); Gary Fields and John R. Emshwiller, “As Arrest Records Rise, Americans Find
Consequences Can Last a Lifetime,” Wall Street Journal, Aug. 18, 2014, https://www.wsj.com/articles/as-arrestrecords-rise-americans-find-consequences-can-last-a-lifetime-1408415402 (reporting that “the FBI currently has
77.7 million individuals on file in its master criminal database—or nearly one out of every three American adults.”).
23
See generally, Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New
York: The New Press, 2012); see also Chapter 1, “Demographics of the Corrections Population,” infra notes 96-130.
24
See Chapter 1, “Demographics of the Corrections Population,” infra notes 96-130.
25
See Chapter 1, “Demographics of the Corrections Population,” infra notes 96-130. “LGBT” is an acronym for
lesbian, gay, bisexual, and transgender.
26
E. Ann Carson, Prisoners in 2016, supra note 1 at 5 (finding that the number of women sentenced to more than a
year increased by 700 prisoners in 2016); see also The Sentencing Project, Fact Sheet: Trends in U.C. Corrections,
supra note 18 at 4 (stating that “[t]he number of women in prison has been increasing at twice the rate of growth for
men since 1980”); Annie E. Casey Foundation, A Shared Sentence: The Devastating Toll of Incarceration on Kids,
Families, and Communities, KIDS COUNT Policy Report, 2016, at 2, https://www.aecf.org/m/resourcedoc/aecfasharedsentence-2016.pdf (stating that roughly half of women ages 24 and younger in prisons are mothers);
Elizabeth Swavola, Kristine Riley, Ram Subramanian, Overlooked: Women and Jails in an Era of Reform, Vera
Institute of Justice, 2016, at 7, http://www.safetyandjusticechallenge.org/wp-content/uploads/2016/08/overlookedwomen-in-jails-report-web.pdf (reporting that nearly 80 percent of women in jails are mothers and, most likely,
single mothers). See also Chapter 2, “The Disproportionate Impact of Lifetime Drug Bans for Public Benefits,” infra
notes 563-94 (discussing the economic effects of criminal convictions on women and children).
27
Yolanda Vázquez, Perpetuating the Marginalization of Latinos: A Collateral Consequence of the Incorporation of
Immigration Law into the Criminal Justice System, 54 HOW. L.J. 639, 666-71 (2011); Michael Pinard & Anthony C.
Thompson, Offender Reentry and the Collateral Consequences of Criminal Convictions: An Introduction, 30 N.Y.U.
REV. L. & SOC. CHANGE 585 (2005); National Immigration Law Center, How ICE Uses Local Criminal Justice
Systems to Funnel People Into the Detention and Deportation System, 2014, at 1, https://www.nilc.org/wpcontent/uploads/2015/11/state-local-enforcement-and-ice-2014-03-25.pdf (reporting that “it is becoming more
common for citizens, too, to be swept into the detention-deportation system”). See also Rose Cahn, Written
Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on
Communities Briefing before the U.S. Commission on Civil Rights, June 19, 2017, at 1-9 [hereinafter ILRC
Statement]; Victoria Moreno, Written Statement for the Collateral Consequences: The Crossroads of Punishment,
Redemption, and the Effects on Communities Briefing before the U.S. Commission on Civil Rights, July 19, 2017, at
1-3 [hereinafter Moreno Statement].
28
See, e.g., Annie E. Casey Foundation, A Shared Sentence: The Devastating Toll of Incarceration on Kids,
Families, and Communities, supra note 26 at 2-3, https://www.aecf.org/m/resourcedoc/aecf-asharedsentence2016.pdf. The authors report that at least 5 million children have had a parent incarcerated at some point during their
childhood, and children of incarcerated parents are at higher risk of dropping out of school. Moreover, research has
shown that living in a neighborhood with a high incarceration rate “increases residents’ chances of suffering from

EXECUTIVE SUMMARY
Collateral consequences, and their disproportionate impact on people of color and other distinct
populations, implicate key civil rights issues. 29 Many advocates believe that an arrest or conviction
should not unduly hinder an individual’s ability to reintegrate into society and attain selfautonomy. 30 Ideas for reforming the scope of collateral consequences—with the goals of
28F

29F

depression and anxiety.” Ibid. at 4. See also Chapter 3’s discussion of how felony disenfranchisement may adversely
affect communities at notes 635-762, infra.
29
See this report’s discussion of how people impacted by collateral consequences face unequal access to
employment, housing, and public benefits, infra at notes 222-624, and face restrictions on the right to vote and serve
on a jury, infra at notes 625-955.
30
Katherine Katcher, Founder and Executive Director, Root and Rebound, Written Statement for the Collateral
Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities Briefing before the
U.S. Commission on Civil Rights, May 19, 2017, at 1-2 [hereinafter Katcher Statement]; Faiz Shakir and Vanita
Gupta, Joint Written Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption, and
the Effects on Communities Briefing before the U.S. Commission on Civil Rights, May 19, 2017, at 1-17
[hereinafter ACLU and LCCHR Joint Statement]; CLASP, Written Statement for the Collateral Consequences: The
Crossroads of Punishment, Redemption, and the Effects on Communities Briefing before the U.S. Commission on
Civil Rights, June 13, 2017, at 1-6 [hereinafter CLASP Statement]; Cynthia W. Roseberry, Executive Director,
Council for Court Excellence, Written Statement for the Collateral Consequences: The Crossroads of Punishment,
Redemption, and the Effects on Communities Briefing before the U.S. Commission on Civil Rights, July 19, 2017, at
1-8 [hereinafter Council for Court Excellence Statement]; Craig DeRoche, Senior Vice President of Advocacy and
Public Policy, Prison Fellowship, Written Statement for the Collateral Consequences: The Crossroads of
Punishment, Redemption, and the Effects on Communities Briefing before the U.S. Commission on Civil Rights,
July 19, 2017, at 1-6 [hereinafter Prison Fellowship Statement]; Gerald Unger, Freeborn Institute of Public Policy,
Written Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on
Communities Briefing before the U.S. Commission on Civil Rights, May 15, 2017, at 1-6 [hereinafter Unger
Statement]; Ryan Haygood, President and CEO, New Jersey Institute for Social Justice, Written Statement for the
Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities Briefing
before the U.S. Commission on Civil Rights, July 17, 2017, at 1 [hereinafter Haygood Statement]; Shon Hopwood,
Associate Professor, Georgetown University Law Center, Written Statement for the Collateral Consequences: The
Crossroads of Punishment, Redemption, and the Effects on Communities Briefing before the U.S. Commission on
Civil Rights, July 17, 2017, at 1-5 [hereinafter Hopwood Statement]; Human Rights Campaign (HRC), Written
Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on
Communities Briefing before the U.S. Commission on Civil Rights, June 19, 2017, at 1-8 [hereinafter HRC
Statement]; Roberta Meyers, Director of National H.I.R.E. Network, on behalf of the Legal Action Center (LAC),
Written Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on
Communities Briefing before the U.S. Commission on Civil Rights, July 17, 2017, at 1-14 [hereinafter LAC
Statement]; Brian Cladoosby, on behalf of the National Congress of American Indians (NCAI), Written Statement
for the Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities
Briefing before the U.S. Commission on Civil Rights, May 18, 2017, at 1-2 [hereinafter NCAI Statement]; ILRC
Statement at 1-9; Robin Chand, on behalf of U.S. Congressman Hank Johnson, Written Statement for the Collateral
Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities Briefing before the
U.S. Commission on Civil Rights, July 16, 2017, at 1-3 [hereinafter Congressman Hank Johnson Statement]; The
Reentry Working Group, Written Statement for the Collateral Consequences: The Crossroads of Punishment,
Redemption, and the Effects on Communities Briefing before the U.S. Commission on Civil Rights, July 19, 2017, at
1-9 [hereinafter Reentry Working Group Statement]; Marina Duane and Emily Reimal, on behalf of the Urban
Institute, Written Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption, and the
Effects on Communities Briefing before the U.S. Commission on Civil Rights, July 19, 2017, at 1-4 [hereinafter
Urban Institute Statement]; Pamela F. Rodriguez, on behalf of Treatment Alternatives for Safe Communities
(TASC), Written Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption, and the
Effects on Communities Briefing before the U.S. Commission on Civil Rights, May 17, 2017, at 1-4 [hereinafter
TASC statement]; Richard T. Cassidy, on behalf of Uniform Law Commission, Written Statement for the Collateral
Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities Briefing before the

EXECUTIVE SUMMARY
promoting public safety, allowing formerly incarcerated individuals to become self-sufficient,
keeping families together, and reducing stigma—have received bipartisan support. 31 In recent
years, advocates, academics, researchers, and government officials have proposed reforms to
improve transparency and mitigate or remove some of the consequences that formerly incarcerated
individuals face. 32 In 2012, the Equal Employment Opportunity Commission (EEOC) issued a
guidance about hiring some applicants with criminal backgrounds. 33 Corporations like Koch
Industries, Walmart, Target, and Bed Bath & Beyond have taken affirmative steps to expand
employment opportunities for individuals with criminal records. 34 States have also acted to lift
restrictions on the right to vote and restore the franchise to people with criminal convictions. 35
30F

31F

32F

34F

Alleviating the collateral consequences of conviction can help formerly incarcerated individuals
lead more productive lives, secure gainful employment, find housing, and obtain the resources
they need to become self-sufficient.36 Ultimately, these positive effects may benefit the economy
overall. According to the Center for Economic and Policy Research, the vastly diminished
employment opportunities for men with criminal records “cost the U.S. economy between $57 and
$65 billion in lost output” in 2008. 37 These data illustrate the potential economic value of lowering
hurdles to employment for people with criminal records. 38 Furthermore, allowing formerly
35F

36F

37F

U.S. Commission on Civil Rights, May 19, 2017, at 1-50 [hereinafter Uniform Law Commission Statement]; U.S.
Senator Benjamin L. Cardin, Written Statement for the Collateral Consequences: The Crossroads of Punishment,
Redemption, and the Effects on Communities Briefing before the U.S. Commission on Civil Rights, June 19, 2017,
at 1-11 [hereinafter Senator Cardin Statement]; Moreno Statement at 1-3; Southern Poverty Law Center, Written
Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on
Communities Briefing before the U.S. Commission on Civil Rights, June 19, 2017, at 1-11 [hereinafter SPLC
Statement].
31
See Ibid. See also John Malcolm, Vice President of the Institute for Constitutional Government and Director of
the Meese Center for Legal & Judicial Studies, The Heritage Foundation, Written Statement for the Collateral
Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities Briefing before the
U.S. Commission on Civil Rights, May 19, 2017, at 1-15 [hereinafter Malcolm Statement]; Levin Statement at 1-6;
Sankey-Berman Statement at 1.
32
See, e.g., supra notes 30-31.
33
U.S. Equal Employment Opportunity Commission, “Consideration of Arrest and Conviction Records in
Employment Decisions under Title VII of the Civil Rights Act of 1965,” Enforcement Guidance 915.002, Apr. 25,
2012, https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm [hereinafter EEOC, 2012 Guidance]; see also
infra notes 264-307 (discussing debate of the legality of this guidance).
34
Christine Owens & Wade Henderson, “Koch Brothers are right on fair chance hiring,” CNN, April 28, 2017,
http://www.cnn.com/2015/04/28/opinions/owens-henderson-koch-brothers-fair-chance-hiring/index.html.
35
See Chapter 3, “The Restoration of Voting Rights,” infra at notes 805-889.
36
The Leadership Conference, Fact Sheet: Fair Chance Hiring, 2017, http://civilrightsdocs.info/pdf/criminaljustice/Fair_Chance_Hiring.pdf; Marie Claire Tran-Leung, When Discretion Means Denial: A National Perspective
on Criminal Records Barriers to Federally Subsidized Housing, Sargent Shriver National Center on Poverty Law,
2015, http://www.povertylaw.org/files/docs/WDMD-final.pdf; Amy E. Hirsch et al., Every Door Closed: Barriers
Facing Parents with Criminal Records, Center for Law and Social Policy and Community Legal Services, 2002,
https://clsphila.org/sites/default/files/issues/every_door_closed.pdf.
37
John Schmitt & Kris Warner, Ex-offenders and the Labor Market, Center for Economic and Policy Research,
November 2010, at 2, http://cepr.net/documents/publications/ex-offenders-2010-11.pdf (also accounting for
recidivism to determine lifetime probability of impacts, at 14, Table 6).
38
Ibid. at 1.

EXECUTIVE SUMMARY
incarcerated individuals to participate in civic society strengthens their connections with their
communities and can thereby foster meaningful rehabilitation. 39 Research strongly suggests that
relieving some formerly incarcerated individuals from the burdens of certain collateral
consequences cultivates successful reintegration into society, helps reduce recidivism, and
promotes public safety. 40
38F

39F

The main arguments against such reforms reflect concerns about the continuing risks that people
with criminal records may pose to society. The prospect of recidivism, and its attendant threat to
public safety, becomes an issue if individuals convicted of violent crimes 41 are permitted to interact
closely with the public, particularly with more vulnerable populations such as children. 42 Although
some opponents of reform insist that states should remain free to impose any collateral
consequences they deem reasonable, 43 others advocate for a more balanced approach, where the
exact consequences flow from the nature of the crime (i.e., prohibiting a person convicted of fraud
or theft from working in a bank). 44
40F

41F

42F

43F

Marc Mauer, Voting Behind Bars: An Argument for Voting by Prisoners, 54 HOW. L.J. 549, 562 (2011).
See Steven D. Bell, The Long Shadow: Decreasing Barriers to Employment, Housing, and Civic Participation for
People with Criminal Records Will Improve Public Safety and Strengthen the Economy, 42 W. ST. L. REV. 1, 10-11
(2014) (“Providing individuals the opportunity for stable employment actually lowers crime recidivism rates and
thus increases public safety.”) (quoting American Correctional Assoc., 135th Cong. of Correction, Presentation by
Art Lurigio (Loyola University), Safer Foundation Recidivism Study (Aug. 8, 2005)); see also Tanya N. Whittle,
“Felony Collateral Sanctions Effects on Recidivism: A Literature Review,” Criminal Justice Policy Review, vol. 29,
issue 5 (2016): 505-24, http://journals.sagepub.com/doi/pdf/10.1177/0887403415623328 (citing research suggesting
that collateral consequences restricting access to housing and public assistance may increase recidivism).
41
The Commission notes that the national violent crime rate has been declining for nearly 30 years, and the rate of
nonviolent property crimes is at least 6 times the rate of violent crime. See FBI, Uniform Crime Reports, “Estimated
crime in United States-Total,” https://www.ucrdatatool.gov/Search/Crime/State/RunCrimeStatebyState.cfm (last
accessed Nov. 18, 2018). Moreover, most felony convictions stem from nonviolent crimes, and the relatively small
percentage of people convicted of violent crimes tend to serve longer sentences in prison, where they cannot interact
with the general public. See U.S. Sentencing Commission, Overview of Federal Criminal Cases: Fiscal Year 2016,
2017, at 1-2, 4, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchpublications/2017/FY16_Overview_Federal_Criminal_Cases.pdf (finding that nonviolent drug, immigration, and
fraud offenses accounted for about 70 percent of federal cases and that length of imprisonment depended upon
seriousness of the crime, with people convicted of murder serving the longest sentences); U.S. Dep’t of Justice,
Bureau of Justice Statistics, Felony Sentences in State Courts, 2006—Statistical Tables, revised 2010, at 2-3,
https://www.bjs.gov/content/pub/pdf/fssc06st.pdf (reporting that about 72 percent of felony convictions in state
courts were for nonviolent drug or property offenses, and people convicted of violent felonies received the longest
prison sentences).
42
See, e.g., Malcolm Statement at 3 (noting that “it is perfectly reasonable to prohibit convicted sex offenders from
running a day care center” and “violent felons from purchasing or possessing firearms”).
43
See, e.g., U.S. Commission on Civil Rights, Briefing on Collateral Consequences: The Crossroads of Punishment,
Redemption, and the Effects on Communities, May 19, 2017 [hereinafter Briefing Transcript] at 82 (statement by
Hans von Spakovsky, Senior Legal Fellow with the Meese Center for Legal and Judicial Studies, The Heritage
Foundation) (arguing, for example, that “Congress does not have the constitutional authority to force states to
restore voting rights of convicted felons . . .”.) Note, however, von Spakovsky’s acknowledgement that certain
collateral consequences “don't make any sense, particularly for example, the loss of driver’s licenses for crimes that
have nothing to do with driving.” Ibid. at 85.
44
Malcolm Statement at 7 (contending that collateral consequences should be “reasonably related to the offense
committed”).
40

EXECUTIVE SUMMARY
This report provides an overview of the relevant data and arguments for and against the imposition
of collateral consequences on people with criminal records. Chapter 1 summarizes the diverse
range of collateral consequences, the demographics of the populations affected, and the numerous
federal and state laws imposing collateral consequences in various localities. This chapter also
analyzes under what circumstances collateral consequences can be removed through government
restoration of a person’s civil rights, and the reported lack of transparency about how a person is
notified of the potential collateral consequences of a criminal record. Chapter 2 summarizes the
collateral consequences that can impede a person’s access to basic needs like housing,
employment, and public benefits. Chapter 3 examines the collateral consequences that hinder an
individual’s access to civic participation through voting and jury service and explores the racial
origins and racial disparities of collateral consequences. Finally, the Commission sets forth
findings and recommendations. 45
4F

See Chapter 4, “Findings and Recommendations.”

EXECUTIVE SUMMARY

[This page intentionally left blank]

CHAPTER 1: INTRODUCTION AND OVERVIEW

Chapter 1: Introduction and Overview
Overview of Collateral Consequences
The U.S. Department of Justice estimates that between 70 and 100 million adults in the U.S. have
a criminal record, which could include a felony conviction, a misdemeanor, or an arrest without a
conviction. 46 The collateral consequences of criminal records can create an array of lifelong
barriers that hamper successful reentry into society—including barriers to voting and other civic
participation, education, employment, professional licensing, housing, and receipt of public
benefits. 47 These collateral consequences can profoundly affect individuals and families and their
economic security. 48
45F

46F

47F

Collateral consequences are sanctions, restrictions, or disqualifications that stem from a person’s
criminal history. 49 When a person is convicted of a crime, the court may deliver a sentence like
imprisonment, probation, 50 or payment of a fine. 51 In some cases, a parole board may grant parole
48F

49F

50F

U.S. Dep’t of Justice, Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2014,
2015, at 2-3, https://www.ncjrs.gov/pdffiles1/bjs/grants/249799.pdf. The Dep’t of Justice reports that 49 states, the
District of Columbia, and Puerto Rico have 105,569,200 persons in their criminal history files, of whom
100,024,400 are automated records. The DOJ notes that a person may have records in more than one state. See
National Employment Law Project (NELP), Research Supports Fair-Chance Policies, 2016, at 1 n.1,
http://www.nelp.org/content/uploads/Fair-Chance-Ban-the-Box-Research.pdf. By reducing by 30 percent the DOJ’s
reported number of persons to 70,417,410 persons, NELP conservatively estimated that approximately 70 million
individuals have criminal histories; this calculation accounts for the duplication of records. See also Jo Craven
McGinty, “How Many Americans Have a Police Record? Probably More Than You Think,” Wall Street Journal,
Aug. 7, 2015, https://www.wsj.com/articles/how-many-americans-have-a-police-record-probably-more-than-youthink-1438939802. The author indicates that there is no easy way to arrive at the number of people with criminal
histories, as a complete data set of arrests and prosecutions does not exist. Ibid.
47
Berson, “Beyond the Sentence—Understanding Collateral Consequences,” supra note 5 at 25-27; see also The
Sentencing Project, et al., Americans with Criminal Records, supra note 22 at 1.
48
See Joshua Kaiser, Revealing the Hidden Sentence: How to Add Transparency, Legitimacy, and Purpose to
“Collateral” Punishment Policy, 10 HARV. L. & POL’Y REV. 123, 132-33 (2016) (documenting thousands of laws
and regulations relating to collateral consequences that impact economic security, including ones involving
employment (23,715), occupational licensing and certification (15,623), government benefits (1,180), and
government loans and grants (293)). See also Chapter 2, “Access to Self-Sufficiency and Meeting Basic Needs,”
infra notes 222-624.
49
See. e.g., Berson, “Beyond the Sentence—Understanding Collateral Consequences,” supra note 5 at 25.
According to Berson, collateral consequences are “a host of sanctions and disqualifications that can place an
unanticipated burden on [criminally convicted] individuals trying to re-enter society and lead lives as productive
citizens.”
50
See Black’s Law Dictionary, Probation (10th ed. 2014) (defining “probation” as “[a] court-imposed criminal
sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the
criminal to jail or prison”). See also U.S. Dep’t of Justice, Bureau of Justice Statistics, “FAQ Detail: What is the
Difference Between Probation and Parole?,” https://www.bjs.gov/index.cfm?ty=qa&iid=324 (last accessed Oct. 8,
2018).
51
See Black’s Law Dictionary, Fine (10th ed. 2014) (defining “fine” as “[a] pecuniary criminal punishment or civil
penalty payable to the public treasury”).

CHAPTER 1: INTRODUCTION AND OVERVIEW

to an incarcerated individual, allowing the person’s release before full completion of the
sentence. 52 But unlike the direct sentence imposed by the court, a collateral consequence is
imposed by federal, state, or local laws and policies. 53 Some collateral consequences are
discretionary, but most are automatic upon conviction under federal, state, or local laws. 54
Collateral consequences can attach to felony and misdemeanor convictions, and can last a lifetime
or a finite period. 55
51F

52F

53F

54F

Collateral consequences are traditionally deemed civil sanctions, in that they curtail constitutional
civil rights (particularly under the 13th, 14th, 15th, and 19th Amendments); civil statutory
protections (such as under the Voting Rights Act); and eligibility for public benefits like food
stamps and subsidized housing. 56 Collateral consequences may serve public safety or regulatory
5F

See Black’s Law Dictionary, Parole (10th ed. 2014) (defining “parole” as “[t]he conditional release of a prisoner
from imprisonment before the full sentence has been served”); see also Pinard, An Integrated Perspective on the
Collateral Consequences of Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals,
supra note 16 at 634 (noting that direct consequences of a criminal conviction “include the duration of the jail or
prison sentence imposed upon the defendant as well as, in some jurisdictions, the defendant’s parole eligibility or
imposition of fines.”); Bureau of Justice Statistics, “FAQ Detail: What is the Difference Between Probation and
Parole?,” https://www.bjs.gov/index.cfm?ty=qa&iid=324.
53
Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues
Faced by Formerly Incarcerated Individuals, supra note 16 at 634.
54
Id. at 635 (describing discretionary collateral consequences as those “imposed at the discretion of agencies acting
independently of the criminal justice system,” and mandatory collateral consequences as those triggered “upon the
conviction by operation of law”); Sanchez v. United States, 572 F.2d 210, 211 (9th Cir. 1977) (deeming revocation
of parole a collateral consequence, but not one that occurs automatically by law because a parole board “may in its
discretion determine whether the remainder of [a convicted person’s] preexisting sentence will be consecutive to or
concurrent with the new sentence imposed by the trial judge.”). See also American Bar Association, ABA Standards
for Criminal Justice, Third Edition: Collateral Sanctions and Discretionary Disqualifications of Convicted Persons,
2004, at 1,
https://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/crimjust_standards_c
ollateralsanctionwithcommentary.authcheckdam.pdf (defining a “discretionary” collateral consequence as “a
penalty, disability or disadvantage, however denominated, that a civil court, administrative agency, or official is
authorized but not required to impose on a person convicted of an offense on grounds related to the conviction.”).
55
Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues
Faced by Formerly Incarcerated Individuals, supra note 16 at 648.
56
See, e.g., Black’s Law Dictionary, Civil Right (10th ed. 2014) (defining civil right as “[a]ny of the individual
rights of personal liberty guaranteed by the Bill of Rights and by the 13th, 14th, 15th, and 19th Amendments, as well
as by legislation such as the Voting Rights Act. Civil rights include [especially] the right to vote, the right of due
process, and the right of equal protection under the law.”). See also Nora V. Demleitner, Preventing Internal Exile:
The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL’Y REV. 153, 155 (1999)
(noting that a criminal conviction can restrict “the ability to work for the government,” and “lead to the loss of
public benefits…to adopt, be a foster parent, or maintain custody of [one’s] own children [and]…can lead to the loss
of civil rights…forfeiture of a pension, a requirement for registration or monitoring, or a prohibition on living in a
particular area.”); Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and
Reentry Issues Faced by Formerly Incarcerated Individuals, supra note 16 at 643-44 (asserting that “[Collateral]
consequences are considered to be the ‘indirect’ ramifications of criminal convictions, as they impose ‘civil’ rather
than ‘criminal’ penalties. . . . Moreover, these distinctions shield trial judges from having to inform defendants of
collateral consequences when accepting guilty pleas or pronouncing sentences.”). Note that because of the
“sustained social stigmatization” of collateral consequences, some scholars have questioned whether collateral
consequences should be characterized as criminal rather than civil penalties. See id. at 559-60 (stating that “some
scholars have challenged the legal distinctions between criminal and civil penalties. Specifically, scholars have

CHAPTER 1: INTRODUCTION AND OVERVIEW

purposes; examples include prohibiting convicted sex offenders from managing day care centers
or forcing public officials convicted of bribery to resign from office. 57 Some collateral
consequences directly relate to the specific crime, such as driver’s license suspensions for people
convicted of a serious traffic offense. 58 Other collateral consequences apply regardless of any
connection between the consequence and the nature or severity of the crime, how long ago the
crime was committed, or the individual’s post-conviction record. 59
56F

57F

58F

Collateral consequences can be characterized as “invisible” punishments, because they restrict
freedom and opportunity for people with criminal convictions but operate outside of the formal
sentencing framework and beyond the public view. 60 In the absence of clear tabulation of the range
of collateral consequences that may attach to particular convictions, judges, prosecutors, and even
defense counsel may lack an understanding or knowledge about which crimes trigger certain (or
how many) collateral consequences. 61 Moreover, because defense counsel, prosecutors, and judges
are not legally required to inform defendants of these collateral consequences (except for the
consequence of deportation for noncitizens), 62 many individuals accused of committing crimes are
not fully aware of the ramifications of a guilty plea or conviction. 63
59F

60F

61F

62F

Collateral consequences have been a feature of the American justice system since colonial times. 64
“Civil death” was historically the fate of many criminals dating back to Greek and Roman times,
but also existed in English colonial society, 65 as individuals were essentially stripped of their civil
63F

64F

critiqued appellate court classifications of certain consequences as indirect ‘civil’ penalties that do not constitute
‘criminal’ punishment.”).
57
See Love Statement at 3; Malcolm Statement at 4.
58
Love Statement at 3.
59
Ibid. For example, driver’s licenses are often restricted for “underlying crimes that have nothing to do with the
operation of motor vehicles. In the State of Virginia, for example, in the Year 2015, 39,000 people . . . had their
driver's licenses suspended . . . 99% of the underlying offenses had nothing to do with the operation of motor
vehicles.” Statement of Vikrant Reddy, Briefing Transcript at 20.
60
Berson, “Beyond the Sentence—Understanding Collateral Consequences,” supra note 5; Jeremy Travis, “Invisible
Punishment: An Instrument of Social Exclusion,” in Invisible Punishment: The Collateral Consequences of Mass
Imprisonment, ed. Marc Mauer and Meda Chesney-Lind, (The New Press: New York, 2002), at 16,
http://webarchive.urban.org/UploadedPDF/1000557_invisible_punishment.pdf.
61
Berson, “Beyond the Sentence—Understanding Collateral Consequences,” supra note 5; see also Pinard, An
Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Faced by
Formerly Incarcerated Individuals, supra note 16 at 639 (pointing out that “even institutional actors such as judges,
prosecutors, and defense attorneys are often unaware of the array of consequences that can attach to a criminal
conviction.”).
62
Padilla v. Kentucky, 559 U.S. 356, 374 (2010) (holding that counsel must inform a client whether a guilty plea
may result in deportation).
63
Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues
Faced by Formerly Incarcerated Individuals, supra note 16 at 673.
64
U.S. General Accountability Office, Nonviolent Drug Convictions: Stakeholders Views on Potential Actions to
Address Collateral Consequences, GAO-17-691, 2017, at 2, http://www.gao.gov/assets/690/687003.pdf.
65
Mark Hasse, Civil Death in Modern Times: Reconsidering Felony Disenfranchisement in Minnesota, 99 MINN. L.
REV. 1913, 1913-14 (2015), http://www.minnesotalawreview.org/wpcontent/uploads/2015/09/Haase_4fmt_PDF.pdf.

CHAPTER 1: INTRODUCTION AND OVERVIEW
rights and property and could face banishment from society—a status akin to death. 66 In the United
States, the disenfranchisement of criminally convicted people dates back to colonial times, and
since then, many states have written restrictive provisions into their constitutions, starting in the
late 18th century and continuing into the Jim Crow era. 67 For example, after the 15th Amendment
granted the right to vote to black men, several states enacted laws to disenfranchise individuals
with criminal convictions. 68
65F

67F

Throughout the years, collateral consequences proliferated in number and severity, affected more
and more people, and became more difficult to mitigate. 69 Several such laws impose permanent
disqualifications or limitations and provide no opportunities for individuals to avoid or escape their
effects. 70 In her statement to the U.S. Commission on Civil Rights (the Commission), Executive
Director of the Collateral Consequences Resource Center Margaret Love wrote:
68F

69F

Many [collateral consequences] consist of nothing more than a direction to an
official decision-maker to conduct a criminal background check, frequently
understood as an unspoken warning that it is safest to reject anyone with a criminal
record. Others are implied by a requirement that eligibility for a benefit or
opportunity depends upon a person having “good moral character,” a status
considered unattainable after criminal conviction. 71
70F

While most people agree that accountability matters for individuals who are convicted of crimes,
many also believe that society must allow formerly incarcerated individuals a chance to

Gabriel Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. PA. L. REV.
1789, 1793-94, n.24 (2012), https://www.pennlawreview.com/print/old/G%20Chin.pdf.
67
Angela Behrens, Christopher Uggen, Jeff Manza, “Ballot Manipulation and the “Menace of Negro Domination”:
Racial Threat and Felon Disenfranchisement in the United States, 1850-2002,” American Journal of Sociology, vol.
109, no. 3 (2003), at 563, https://users.cla.umn.edu/~uggen/Behrens_Uggen_Manza_ajs.pdf.
68
See Chapter 3, “The Racial Origins of Disenfranchisement Laws and Ongoing Disparities,” infra notes 730-62.
69
Love Statement at 2; Margaret Colgate Love, Jenny Roberts, and Cecelia Klingele, Collateral Consequences Of
Criminal Conviction: Law, Policy And Practice, at 1-35 (West/NACDL, 2d ed. 2016); Gabriel Chin, “Collateral
Consequences of Criminal Conviction,” Criminology, Criminal Justice, Law & Society, 2017, vol. 18, no. 3 (2017),
at 2, https://ccjls.scholasticahq.com/article/2721-collateral-consequences-of-criminal-conviction.
70
Love Statement at 3; see also The Collateral Consequences Resource Center (CCRC), Forgiving and Forgetting
in American Justice: A 50-State Guide to Expungement and Restoration of Rights, 2018, at 2,
http://ccresourcecenter.org/wp-content/uploads/2017/10/Forgiving-Forgetting-CCRC-Aug-2018.pdf (compiling and
analyzing information about relief from collateral consequences to “facilitate a national conversation about how
people who have been convicted of a crime may best regain their legal rights and social status.”). The CCRC report
reviews the state mechanisms available for obtaining relief from collateral consequences, including record-sealing to
expand job opportunities for people with criminal records, certificates of relief to lift occupational licensing
requirements, and executive pardons to restore voting rights. Ibid. at 2-3, 7-11, 15-17, 22-24. The report’s authors
note that many states are enacting reforms to alleviate the effects of collateral consequences, but acknowledge the
limits of such reforms and the often lengthy or cumbersome processes involved for people seeking relief from
collateral consequences. Ibid.at 2-3, 5-17, 22-24.
71
Love Statement at 3.

CHAPTER 1: INTRODUCTION AND OVERVIEW
successfully reintegrate into society. 72 Vikrant Reddy, Senior Research Fellow at the Charles
Koch Institute, explained in his testimony before the Commission in 2017:
71F

[A]t a certain point the accountability portion ends and you have to help people
reenter society. You have to do this for two reasons; the first is the obvious moral
reason, but the second reason is really a hard-nosed question of public safety. More
than 90% of the people who enter state prisons in this country will come out of
those prisons and they will live next door to you and me, and we all have an interest
in making sure that they are successfully reintegrated so they are not hurting people
again. 73
72F

Furthermore, some scholars believe that it is time to reexamine the collateral consequences that
hinder the reintegration of individuals with criminal records, whenever doing so does not
jeopardize public safety. 74 As John Malcolm, Vice President of the Institute for Constitutional
Government and Director of the Meese Center for Legal and Judicial Studies, wrote in his
statement to the Commission:
73F

It is not in anyone’s best interests to consign ex-offenders to a permanent secondclass status. Doing so will only lead to wasted lives, ruined families, and more
crime. . . . Other collateral consequences, though, have a tenuous connection to
public safety, appear to be more punitive in nature, and they certainly make it more
difficult for an ex-offender to reintegrate into society. State and federal legislators
should periodically review existing collateral consequences to ensure that they are
truly necessary to protect public safety, not punitive in nature, and are reasonably
related to the offense that was committed. Collateral consequences that do not fit
these parameters should be amended or repealed so that ex-offenders who are
earnestly working to lead lawful, prosperous lives and to provide for their families
are not needlessly thrown off-course. 75
74F

According to the National Inventory of Collateral Consequences of Conviction (NICCC) of the
Council of State Governments, over 44,000 separate collateral consequences have been established
through federal and state laws and regulations. 76 Additional collateral consequences may be
imposed at the local level among the country’s estimated 3,000 county governments and nearly
75F

Briefing Transcript at 16 (statement of Vikrant Reddy, Senior Research Fellow, Charles Koch Institute).
Ibid.
74
See, e.g., John G. Malcolm and John-Michael Seibler, Collateral Consequences: Protecting Public Safety or
Encouraging Recidivism?, The Heritage Foundation, 2017, at 2, http://www.heritage.org/sites/default/files/201703/LM-200.pdf.
75
Malcolm Statement at 3-4.
76
CSG, “The National Inventory of the Collateral Consequences of Conviction.”
73

CHAPTER 1: INTRODUCTION AND OVERVIEW

36,000 municipal, town, and township governments. 77 Notably, the NICCC database does not
track private entities that limit or deny opportunities to individuals with criminal records, including
nongovernment employers and private educational and vocational program administrators.78
Moreover, evaluations of candidates’ “character and fitness” for certain professions or job
positions may encompass review of their criminal records. 79 For example, state bar associations
use these evaluations to assess applicants’ suitability for practicing law, and federal agencies
incorporate these evaluations into their hiring decisions for federal contractors.80
76F

78F

79F

Figure 1 shows the categories of collateral consequences imposed by U.S. jurisdictions as specified
in the NICCC database. 81 Among all the states, the District of Columbia, and American Samoa,
Guam, Puerto Rico, and the Northern Mariana and Virgin Islands, employment (19,334) and
occupational licensing (13,791) are the most common collateral consequences. 82
80F

81F

U.S. Census Bureau, 2012 Census Of Governments: Organization Component
Preliminary Estimates, July 23, 2012,
http://www2.census.gov/govs/cog/2012/formatted_prelim_counts_23jul2012_2.pdf; Amy P. Meek, Street Vendors,
Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level,
75 OHIO ST. L.J. 1, 4-5 (2014), https://kb.osu.edu/bitstream/handle/1811/71617/OSLJ_V75N1_0001.pdf.
78
Joshua Kaiser, Revealing the Hidden Sentence: How to Add Transparency, Legitimacy, and Purpose to
“Collateral” Punishment Policy, 10 HARV. L. & POL’Y REV. 123, 132-33 (2016). See also Chapter 2, “Occupational
Licensing Barriers,” infra notes 318-70 (discussing the lawful discretion of private entities to deny occupational
licenses to people with criminal records).
79
See, e.g., Aaron M. Clemens, Facing the Klieg Lights: Understanding the “Good Moral Character” Examination
for Bar Applicants, 40 AKRON L. REV. 255, 278-80 (2007) (discussing how findings from character and fitness
assessments may prevent people from entering the legal profession); U.S. Office of Personnel Management, “Memo
for Chief Human Capital Officers,” May 15, 2013, at 1-4, https://chcoc.gov/sites/default/files/trans5585.pdf
(discussing authority of federal agencies to include assessments of character and fitness, which may involve review
of criminal records, as selection criteria for hiring federal contractors).
80
Clemens, Facing the Klieg Lights: Understanding the “Good Moral Character” Examination for Bar Applicants,
supra note 79; U.S. Office of Personnel Management, “Memo for Chief Human Capital Officers,” supra note 79.
See also National Conference of Bar Examiners, American Bar Association Section of Legal Education and
Admissions to the Bar, Comprehensive Guide to Bar Admission Requirements (2018), at 5-6,
http://www.ncbex.org/pubs/bar-admissions-guide/2018/mobile/index.html (revealing that in some jurisdictions, a
felony conviction automatically disqualifies a candidate who wishes to practice law). Note that some jurisdictions
will admit candidates with felony convictions after a specified waiting period or if they are pardoned, overcome a
rebuttable presumption of lack of good moral character, or meet other requirements. Ibid.
81
CSG, “The National Inventory of the Collateral Consequences of Conviction.” For a full explanation of each
category, see the CSG National Inventory website, https://niccc.csgjusticecenter.org/. Ibid.
82
Ibid.

CHAPTER 1: INTRODUCTION AND OVERVIEW

Figure 1: Collateral Consequences by Category
Immigration
Government loans and grants
Housing
Government benefits
Education
Judicial rights
Recreational licensure, including firearms
General relief provision
Family and domestic rights
Government contracting and program participation
Motor vehicle licensure
Civil fines, liability, forfeiture, and property rights
Registration, publication, and notification
Political and civic participation
Business licensure and participation
Occupational and professional licensure and certification
Employment

94
252
1,025
1,042
1,277
1,284
1,348
1,370
1,600
1,628
1,755
2,079
2,357
3,948
11,137
13,791
19,334
0

5,000

10,000

15,000

20,000

25,000

Collateral Consequences Imposed by U.S. States and Territories
Source: Compiled by U.S. Commission on Civil Rights from CSG, National Inventory of Collateral
Consequences of Conviction (NICCC), February 2019

Figure 2 shows the types of state and territorial collateral consequences in terms of whether they
are mandatory, discretionary, or invoked by an authorized or required background check. 83
Approximately 18,073 collateral consequences are imposed automatically or because of a statutory
mandate. 84 There are 13,567 collateral consequences that are discretionary (authorizing but not
requiring a decision-maker to impose the consequence), 85 and 1,202 that are mandatory but may
be waived by the appropriate decision-maker upon the affected individual’s request. 86
82F

83F

84F

85F

Ibid. “General Relief” refers to a collateral consequence that cannot be lifted without a pardon, order, or reprieve
from a government official. For example, the NICCC databases classifies Alabama’s statute authorizing the State
Board of Pardons and Paroles to restore voting rights to people convicted of certain felonies as “General Relief.” See
CSG, “The National Inventory of the Collateral Consequences of Conviction: Consequence Details, Restoration of
right to vote upon pardon (relief),” https://niccc.csgjusticecenter.org/database/entry/restoration-of-right-to-voteupon-pardon-relief/; see also Ala. Code § 15-22-36 (granting power to the State Board of Pardons and Paroles “to
grant pardons and paroles and to remit fines and forfeitures” after a person’s conviction), § 17-3-31 (stating that a
person who was disqualified from voting because of a conviction “and who has been pardoned, may be restored to
citizenship with the right to vote by the State Board of Pardons and Paroles when specifically expressed in the
pardon.”).
84
Ibid. (CSG).
85
American Bar Association, ABA Standards for Criminal Justice, Third Edition: Collateral Sanctions and
Discretionary Disqualifications of Convicted Persons, supra note 54 at 1 (a “discretionary” collateral consequence
is defined as “a penalty, disability or disadvantage, however denominated, that a civil court, administrative agency,
or official is authorized but not required to impose on a person convicted of an offense on grounds related to the
conviction.”)
86
CSG, “The National Inventory of the Collateral Consequences of Conviction.” For a full explanation of collateral
consequences that are discretionary by waiver, see Council of State Governments, “Discretion: Discretionary
(waiver),” https://niccc.csgjusticecenter.org/help/ (last accessed Nov. 19, 2018).

CHAPTER 1: INTRODUCTION AND OVERVIEW

Figure 2: Collateral Consequences by Type
Discretionary by waiver

1,202

Varies

1,555

Background check

4,463

Discretionary

13,567

Mandatory/automatic

18,073
0

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

18,000

20,000

Number of Collateral Consequences Imposed by U.S. States and Territories
Source: Compiled by U.S. Commission on Civil Rights from CSG, National Inventory of Collateral
Consequences of Conviction (NICCC), February 2019

The American Bar Association has provided guidance on when discretionary collateral
consequences should be imposed and advised:
The legislature should prohibit discretionary disqualification of a convicted person
from benefits or opportunities, including housing, employment, insurance, and
occupational and professional licenses, permits and certifications, on grounds
related to the conviction, unless engaging in the conduct underlying the conviction
would provide a substantial basis for disqualification even if the person had not
been convicted. 87
86F

For example:
[U]nder this Standard a public housing authority authorized by law to evict tenants
who engage in drug trafficking could properly consider an individual’s conviction
of drug trafficking as sufficient to establish the conduct warranting eviction. In this
case, it is the conduct (engaging in drug trafficking) that may trigger eviction;
anyone who engages in drug trafficking is subject to the penalty, not just those who
have been convicted of drug trafficking. On the other hand, the penalty is not
automatic but discretionary: the housing authority is authorized to evict, but is not
required to evict. Conviction for drug trafficking will generally establish that the
conduct took place, but eviction may or may not be imposed as a result. In other
words, a criminal conviction for drug trafficking is neither necessary nor sufficient
87

American Bar Association, ABA Standards for Criminal Justice, Third Edition: Collateral Sanctions and
Discretionary Disqualifications of Convicted Persons, supra note 54 at 41.

CHAPTER 1: INTRODUCTION AND OVERVIEW

to warrant eviction, and a convicted person whose conduct is established by the
judgment is no better off and no worse off than if the same conduct was shown
through civil or administrative proceedings or an admission. 88
87F

The remainder of collateral consequences are triggered by criminal background checks or by other
means such as disclosure requirements. 89 While criminal background checks are not necessarily
considered collateral consequences themselves, they operate as a mechanism by which many
collateral consequences are imposed, whether it be through an examination of government records
or self-disclosure. 90 Under certain circumstances, an applicant must demonstrate “good moral
character” or meet similar standards for a professional license, or a background check or disclosure
may be explicitly required to determine an applicant’s criminal history.91
8F

89F

90F

Figure 3 shows state and territorial collateral consequences by the duration of the consequence.92
About 77 percent (26,589) of all collateral consequences are permanent or last for an indefinite
period, 14 percent (4,684) are time-limited or set for a specific term, 8 percent (2,721) vary in
terms of duration, and 1 percent (429) are conditional upon circumstances enumerated in the
statute. 93
91F

92F

Figure 3: Collateral Consequences by Duration
Conditional

429

Varies

2,721

Time‐limited

4,684

Permanent/indefinite

26,589
0

5,000

10,000

15,000

20,000

25,000

30,000

Ibid. at 42.
CSG, “The National Inventory of the Collateral Consequences of Conviction.”
90
See Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts, 45
U.C. DAVIS L. REV. 277, 287-88 (2011) (pointing out that “[i]ncreased access to criminal records coincides with a
recent, and exponential, growth in the collateral consequences of criminal convictions” and “employers and
landlords can now quickly search criminal records, so that even when there is no legal barrier to housing or
employment for the individual, there is an effective bar.”).
91
See supra notes 79-80 (discussing character and fitness assessments).
92
CSG, “The National Inventory of the Collateral Consequences of Conviction.”
93
Ibid.
89

CHAPTER 1: INTRODUCTION AND OVERVIEW

Figure 4 shows state and territorial collateral consequences by the specific type of triggering
offense. 94 Among approximately 44,631 collateral consequences, nearly 40 percent (17,436) are
triggered by any felony conviction, and about 19 percent (8,294) are triggered by any
misdemeanor. 95
93F

94F

Figure 4: Collateral Consequences by Triggering Offense
Election‐related offenses
Recreactional licensing offenses
Child support offenses
Weapons offenses
Public corruption offenses
Motor vehicle offenses
Crimes of moral turpitude
Sex offenses
Controlled substances offenses
Crimes of violence, including "person offenses"
Any misdemeanor
Other
Crimes involving fraud, mispresentation, or money…
Any felony
0

340
911
913
1,677
2,454
3,111
4,226
5,013
6,312
6,389
8,294
8,824
11,001
17,436
2,000 4,000 6,000 8,000 10,00012,00014,00016,00018,00020,000

Demographics of the Corrections Population
As of December 2016, about 6.6 million people were under correctional supervision nationwide.96
Approximately 1.5 million of those individuals were housed in prisons, 0.7 million were housed
in jails, and about 4.5 million were under community supervision, on parole, or on probation. 97
Jails are operated and maintained by local jurisdictions (cities, counties, or municipalities) and
typically serve as short-term holding facilities for newly arrested individuals, people awaiting
sentencing, or people serving a shorter sentence (less than one year). 98 Prisons are institutional
facilities that fall under state or federal jurisdiction and confine individuals serving longer
95F

96F

97F

Ibid.
Ibid.
96
Kaeble & Cowhig, Correctional Populations in the United States, 2016, supra note 21 at 2.
97
Ibid.
98
Prison Fellowship, “FAQ: Jail vs. Prison,” https://www.prisonfellowship.org/resources/training-resources/inprison/faq-jail-prison/ (last accessed Oct. 8, 2018).
95

CHAPTER 1: INTRODUCTION AND OVERVIEW
sentences. 99 Typically, people convicted of a crime under state law will serve time in a state prison,
and people convicted of a federal crime will serve time in a federal prison. 100 In addition, people
may be placed under probation and parole, which are alternatives or extensions to incarceration. 101
Probation is a sentence where an individual is ultimately placed under supervision in the
community in lieu of incarceration, and parole is a conditional release from jail or prison to allow
an individual to serve the remainder of their sentence under community supervision. 102
98F

10F

People of color are more likely to be arrested, convicted, and sentenced more harshly than are
white people, which amplifies the impact of collateral consequences on this population. 103
Statistics illustrating the disproportionate overrepresentation of people of color in the criminal
legal system are summarized below:
102F



In 2017, black people represented 13.4 percent of the U.S. population but 27.2 percent of
all arrests by law enforcement, whereas white people represented about 76.6 percent of the
population and 68.9 percent of arrests. 104 For certain offenses, the disparities were
particularly striking: black people represented 31.8 percent of arrests for disorderly conduct
and 40.5 of arrests for curfew and loitering violations, whereas white people represented
62.9 percent and 56.0 percent of arrests for such offenses, respectively. 105
Despite accounting for 18.1 percent of the population, people identifying as Hispanic or
Latino represented 20.8 percent of arrests for curfew and loitering violations and 19.8
percent of drug abuse offenses. 106
103F

104F



105F

Ibid.
Ibid.
101
U.S. Dep’t of Justice, Bureau of Justice Statistics, “FAQ Detail: What is the Difference Between Probation and
Parole?,” supra note 50.
102
Ibid. See also definitions of “Probation” and “Parole” under Black’s Legal Dictionary, supra notes 50, 52.
103
The Sentencing Project, Report of The Sentencing Project to the United Nations Human Rights Committee
Regarding Racial Disparities in the United States Criminal Justice System, 2013, at 1, https://nicic.gov/reportsentencing-project-united-nations-human-rights-committee-regarding-racial-disparities-united; Darren Wheelock,
“Collateral Consequences and Racial Inequality: Felon Status Restrictions as a System of
Disadvantage,” Journal of Contemporary Criminal Justice, vol. 21, no. 1 (2005): 83,
https://www.researchgate.net/publication/238431800_Collateral_Consequences_and_Racial_Inequality_Felon_Statu
s_Restrictions_as_a_System_of_Disadvantage; American Civil Liberties Union, “Racial Disparities in Sentencing,”
Written Statement submitted to the Inter-American Commission on Human Rights, Oct. 27, 2014,
https://www.aclu.org/sites/default/files/assets/141027_iachr_racial_disparities_aclu_submission_0.pdf.
104
U.S. Census Bureau, “Quick Facts: Population Estimates,” July 1, 2017,
https://www.census.gov/quickfacts/fact/table/US/PST045217; FBI, Uniform Crime Reports, “Arrests by Race and
Ethnicity, 2017,” https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/topic-pages/tables/table-43.
105
FBI, Uniform Crime Reports, “Arrests by Race and Ethnicity, 2017,” https://ucr.fbi.gov/crime-in-theu.s/2017/crime-in-the-u.s.-2017/topic-pages/tables/table-43.
106
U.S. Census Bureau, “Quick Facts: Population Estimates,” July 1, 2017,
https://www.census.gov/quickfacts/fact/table/US/PST045217; FBI, Uniform Crime Reports, “Arrests by Race and
Ethnicity, 2017,” https://ucr.fbi.gov/crime-in-the-u.s/2017/crime-in-the-u.s.-2017/topic-pages/tables/table-43. Note
that this report follows the U.S. Census Bureau rule, which “defines ‘Hispanic or Latino’ as a person of Cuban,
Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.” See U.S.
100

CHAPTER 1: INTRODUCTION AND OVERVIEW


A study focused on California found that although adult arrests overall declined from 2008
to 2017, Latino people were the only racial/ethnic group to experience an increase in share
of arrests for both misdemeanors and felonies. 107 And a Denver Post analysis found that
Latino juveniles represent 41 percent of the city’s 15- to-17-year-old population but
account for 67 percent of the curfew violation arrests among that population. 108
Among male prisoners in 2016, 39.0 percent were white, 41.3 percent were black, 16.6
percent were Latino, 1.4 percent were Native American, 0.6 percent were Asian, and 0.2
percent were Native Hawaiian or Other Pacific Islander.109
Among female prisoners in 2016, 61.0 percent were white, 23.9 percent were black, 10.6
were Latina, 2.6 were Native American, 0.6 percent were Asian, and 0.4 percent were
Native Hawaiian or Other Pacific Islander. 110
In 2016, black people were nearly six times as likely and Latino people were approximately
three times as likely to be incarcerated as white people. 111 About 60.0 percent of male
prisoners were men of color. 112 In federal prisons, almost a third of inmates are Latino. 113
In 2016, black men between the ages of 18 and 19 were 11.8 times as likely to be
imprisoned as white men of the same age group. 114
Among adults on probation in 2016, 55 percent were white, 28 percent were black, and 14
percent were Latino. 115 The disparities were similar among adults on parole in 2016: 45
percent were white, 38 percent were black, and 15 percent were Latino. 116
106F

107F



108F



109F



10F



12F

13F



14F

15F

People with mental health disorders are also disproportionately incarcerated in the United States;
the Department of Justice estimates that at least half of incarcerated persons have a mental health
diagnosis. 117 Statistics detailing the entanglement of people with mental health disorders or other
disabilities with the criminal legal system are summarized below:
16F

Census Bureau, “Hispanic Origin,” https://www.census.gov/topics/population/hispanic-origin/about.html (last
accessed Dec. 12, 2018). This report uses the term “Latino,” unless the source instructs otherwise.
107
Sonja Diaz and Dora Armenta, Disrupting the Black-White Paradigm: Latino Arrests in California, Latinos
Policy & Politics Initiative, 2018, at 3, https://latino.ucla.edu/wp-content/uploads/2018/10/CJ-Report-10.8.1812.pdf.
108
Andrew Kennedy, “‘It’s a dragnet’: Denver police far more likely to cite Latino kids for violating curfew,”
Denver Post, Nov. 18, 2018, https://www.denverpost.com/2018/11/18/denver-police-latinos-curfew-violations/.
109
E. Ann Carson, Prisoners in 2016, supra note 1 at 7.
110
Ibid.
111
Ibid. at 5, 8.
112
Ibid. at 7.
113
U.S. Federal Bureau of Prisons, “Inmate Ethnicity,” Nov. 24, 2018,
https://www.bop.gov/about/statistics/statistics_inmate_ethnicity.jsp (last accessed Feb. 11, 2019).
114
E. Ann Carson, Prisoners in 2016, supra note 1 at 13.
115
Danielle Kaeble, Probation and Parole in the United States, 2016, U.S. Dep’t of Justice, Bureau of Justice
Statistics, 2018, at 17, https://www.bjs.gov/content/pub/pdf/ppus16.pdf.
116
Ibid. at 23.
117
Doris J. James and Lauren E. Glaze, Special Report: Mental Health Problems of Prison and Jail Inmates, Bureau
of Justice Statistics, 2006, at 1, https://www.bjs.gov/content/pub/pdf/mhppji.pdf.

CHAPTER 1: INTRODUCTION AND OVERVIEW


Approximately 56 percent of state prisoners, 45 percent of federal prisoners, and 64 percent
of jail inmates suffer from a mental health disorder. 118
Incarcerated individuals are three to five times more likely to meet criteria for serious
psychological distress than adults in the general population. 119 People who have been
arrested and those on probation or parole are also more likely to meet such criteria than
adults with no criminal justice involvement. 120
Incarcerated women experience mental health disorders at higher rates than incarcerated
men; 65.8 percent of female prisoners and 67.9 percent of female jail inmates report a
history of mental health problems, compared to 34.8 percent of male prisoners and 40.8
percent of male jail inmates. 121
Incarcerated people are twice as likely to have an intellectual disability, four to six times
more likely to have a cognitive disability, twice as likely to have a mobility disorder, three
to four times more likely to be blind or have a vision impairment, and two to three times
more likely to have a hearing impairment than the general population.122
53 percent of state prisoners and 45 percent of federal prisoners report having a substance
use disorder, and 70 percent of prisoners have a history of drug use. 123
17F



18F

19F



120F



12F



12F

The Department of Justice has also found that many incarcerated individuals who report at least
one disability are people of color. 124 Because people with disabilities have a more limited range of
123F

118

Ibid.
Jennifer Bronson & Marcus Berzofsky, Indicators of Mental Health Problems Reported by Prisoners and Jail
Inmates, 2011-12, U.S. Dep’t of Justice, Bureau of Justice Statistics, 2017, at 3,
https://www.bjs.gov/content/pub/pdf/imhprpji1112.pdf.
120
Ibid.
121
Ibid. at 4. See also Joint Statement of Disability Advocates (including the American Civil Liberties Union,
Amplifying Voices of Inmates with Disabilities (AVID) Prison Project of Disability Rights Washington, Center for
Public Representation, DC Jail & Prison Advocacy Project, University Legal Services, Disability Rights Education
& Defense Fund, Inc., Equal Rights Center, Helping Educate to Advance the Rights of Deaf communities, Judge
David L. Bazelon Center for Mental Health Law, National Alliance on Mental Illness, National Association of the
Deaf, National Disability Rights Network, National Federation of the Blind, Prison Law Office, Rooted in Rights,
Rosen Bien Galvan & Grunfeld LLP, The Arc, Who Speaks for Me?) to the U.S. Commission on Civil Rights,
Washington, D.C., May 19, 2017, at 1-2 [hereinafter Joint Statement, Disability Advocates].
122
Joint Statement, Disability Advocates, at 3-4; Jennifer Bronson & Marcus Berzofsky, Disabilities Among Prison
and Jail Inmates, 2011-2012, U.S. Dep’t of Justice, Bureau of Justice Statistics, 2015, at 3,
https://www.bjs.gov/content/pub/pdf/dpji1112.pdf; Leigh Ann Davis, People with Intellectual Disability in the
Criminal Justice System: Victims & Suspects, The Arc, 2009, http://www.thearc.org/page.aspx?pid=2458.
123
Joint Statement, Disability Advocates, at 3; Christopher J. Mumola & Jennifer C. Karberg, Drug Use and
Dependence, State and Federal Prisoners, 2004, Bureau of Justice Statistics, 2006, at 7,
https://www.bjs.gov/content/pub/pdf/dudsfp04.pdf.
124
Bronson & Berzofsky, Disabilities Among Prison and Jail Inmates, 2011-2012, supra note 122 at 5 (finding that
37 percent of white prisoners, 26 percent of black prisoners, and 42 percent of prisoners of two or more races
reported at least one disability; and that 40 percent of white jail inmates, 35 percent of black jail inmates, and 55
percent of jail inmates of two or more races reported at least one disability). Note that the Commission is also
investigating the issue of students of color with disabilities who are subjected to school discipline policies that may
lead to imprisonment. See U.S. Commission on Civil Rights, “U.S. Commission on Civil Rights to Hold Public
Briefing: The School-to-Prison Pipeline: The Intersections of Students of Color with Disabilities,” Dec. 6, 2017,
https://www.usccr.gov/press/2017/12-06-PR.pdf (announcing briefing for report forthcoming in 2019).
119

CHAPTER 1: INTRODUCTION AND OVERVIEW
employment opportunities available to them, these disabilities may exacerbate the difficulties
faced by people reentering society after criminal convictions. 125
124F

Researchers at the University of California Los Angeles School of Law have also reported that
the incarceration rate of lesbian, gay, and bisexual men and women is more than three times that
of the U.S. adult population. 126 Statistics reflecting the disproportionate involvement of LGBT
individuals with the criminal legal system are summarized below:
125F



Although 4.1 percent of American adults identify as LGBT, 127 9.3 percent of male
prisoners and 42.1 percent of female prisoners identified as LGBT or reported having
same-sex encounters before incarceration. 128
6.2 percent of men in jails and 35.7 percent of women in jails identified as LGBT or
reported having same-sex encounters before incarceration. 129
Twenty-one percent of transgender women and 10 percent of transgender men report that
they have spent time in jail or prison. 130
126F

127F



128F



129F

The demographic characteristics of the corrections population confirm that people of color,
individuals with disabilities, and LGBT individuals are disproportionately represented in the
criminal justice system and hindered by the impact of collateral consequences.
Federal Statutes that Impose Collateral Consequences
Numerous federal statutes impose collateral consequences upon conviction for federal or state
crimes, including felonies and other types of convictions. These laws can impact an individual’s
civic engagement and economic opportunity, including: 131
130F



The right to vote. While the 14th, 15th, 19th, and 26th Amendments of the U.S.
Constitution prohibit disenfranchisement on the basis of race, gender, and age, 132 and the
Voting Rights Act prohibits discrimination in voting on the bases of race, national origin,
13F

125

See Chapter 2, “How a Criminal Record Can Affect Employment Opportunities,” infra notes 222-409.
Ilan H. Meyer, Andrew R. Flores, Lara Stemple, Adam P. Romero, Bianca D. M. Wilson, Jody L. Herman,
“Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate Survey, 2011-2012,” Am.
Journal of Public Health, vol. 107, no. 2 (2017): 234-40.
127
Gary J. Gates, “In US, More Adults Identifying as LGBT,” Gallup, Jan. 11, 2017,
http://www.gallup.com/poll/201731/lgbt-identification-rises.aspx; Naomi Goldberg, Written Statement for the
Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities Briefing
before the U.S. Commission on Civil Rights, May 19, 2017, at 2 [hereinafter Goldberg Statement].
128
Meyer et al., “Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate Survey,
2011-2012,” supra note 126 at 236.
129
Ibid.
130
Jaime M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman, Mara Keisling, Injustice at Every
Turn: A Report of the National Transgender Discrimination Survey, National Center for Transgender Equality and
National Gay and Lesbian Task Force, 2011, at 163,
http://www.transequality.org/sites/default/files/docs/resources/NTDS_Report.pdf; Goldberg Statement at 2.
131
U.S. Dep’t of Justice, Federal Statutes Imposing Collateral Consequences Upon Conviction, supra note 12.
132
U.S. CONST. amend. XIV; U.S. CONST. amend. XV; U.S. CONST. amend. XIX; U.S. CONST. amend. XXVI.
126

CHAPTER 1: INTRODUCTION AND OVERVIEW
and disability status (among other characteristics), 133 the U.S. Constitution dictates that
states determine the qualifications for voting in federal elections. 134 Section 2 of the
Fourteenth Amendment grants power to the states to deny the right to vote “for
participation in rebellion, or other crime.” 135 According to the Supreme Court, this clause
permits states to curtail the voting rights of people with felony convictions. 136 Therefore,
the effect of a criminal conviction on an individual’s right to vote will vary from state to
state. For further discussion of state laws governing disenfranchisement of persons with
felony convictions, as well as related federal court decisions, see infra Chapter 3, “The
Current Landscape of State Felony Disenfranchisement Laws.” 137
The right to serve on a federal jury. Federal law prohibits individuals from serving on a
federal jury if they have been charged with or convicted of a crime punishable by
incarceration for more than one year in state or federal court and have not had their civil
rights restored. 138 Although some states automatically restore a person’s civil rights after
completion of the person’s sentence, this automatic restoration does not apply to federal
jury service. 139 The right to serve on a federal jury may be restored only through a pardon
or through some affirmative government action. 140
132F

13F

134F

135F

136F



137F

138F

139F

133

Voting Rights Act, 52 U.S.C. § 10301 (Section 2, prohibiting discriminatory denial or abridgement of the right to
vote).
134
U.S. CONST. art. I § 2, c. 1; U.S. CONST. art. I § 4; U.S. CONST. art. II § 1, c. 2; U.S. CONST. amend. XVII; U.S.
CONST. amend. XXIII (for District of Columbia).
135
U.S. CONST. amend. XIV, § 2.
136
Richardson v. Ramirez, 418 U.S. 24, 54-55 (1974).
137
See Discussion and Sources at infra notes 634-44, Table 1 (discussing state laws) and 757-804 (discussing related
federal cases). Note also that federal lawmakers have proposed federal legislation that would require more
uniformity among state laws governing felony disenfranchisement. See Chapter 3, “The Restoration of Voting
Rights,” infra notes 805-889.
138
28 U.S.C. § 1865(b)(5). See also Black’s Law Dictionary, Civil Right, supra note 56 (defining a civil right as
“[a]ny of the individual rights of personal liberty guaranteed by the Bill of Rights and by the 13th, 14th, 15th, and
19th Amendments, as well as by legislation such as the Voting Rights Act,” especially “the right to vote, the right of
due process, and the right of equal protection under the law.”). The exercise of certain civil rights such as voting,
serving on a jury, and “participating in or enjoying any benefit, service, privilege, program, facility or activity
provided or administered by any State or subdivision thereof” constitutes federally protected activity, the
interference with which is prohibited under federal law. See 18 U.S.C. § 245(b). However, the latter statute “does
not in terms confer substantive rights; it is solely a criminal statute permitting federal prosecution for interference”
with these rights, and it does not proscribe “the ordered functioning of state legal processes, whatever the
motivation.” People v. State of N. Y., 424 F.2d 697, 703-03 (2d Cir. 1970), cert. denied 90 S. Ct. 1839 (1970).
139
See generally U.S. Dep’t of Justice, Federal Statutes Imposing Collateral Consequences Upon Conviction, supra
note 12 at 1-2, 13. See also Chapter 3, “Restoration of Civil Rights,” infra notes 798-882.
140
United States v. Hefner, 842 F.2d 731, 732-33 (4th Cir. 1988) (concluding that “some affirmative act recognized
in law must first take place to restore one’s civil rights”). See also U.S. Dep’t of Justice, Federal Statutes Imposing
Collateral Consequences upon Conviction, supra note 12 at 13-14 (citing Hefner to assert that “the automatic
restoration of civil rights that occurs in many states upon completion of sentence will not operate to restore the right
to serve on a federal jury.”).

CHAPTER 1: INTRODUCTION AND OVERVIEW


The right to hold federal office or employment. While the U.S. Constitution does not
prohibit individuals with criminal convictions from holding federal office, many statutes
render individuals with certain types of convictions ineligible for federal office. 141
Service in the armed forces. Federal law prohibits individuals with felony convictions
from enlisting in any service of the armed forces unless they receive exceptions. 142
Furthermore, individuals convicted of certain offenses can be required to forfeit “accrued
or future gratuitous benefits” from military service. 143
Occupational restrictions. At sentencing, a federal court may impose certain occupational
restrictions as a condition of probation or supervised release when there is a “reasonably
direct relationship” between the occupation and the offense, in the interest of upholding
public safety. 144 Certain convictions, particularly for drug offenses, can result in
ineligibility for numerous federal occupational licenses. 145 While not all convictions will
result in the automatic loss of a federal license, federal agencies may consider a conviction
when reviewing a license application. 146
o Banking, commodities, and securities. Certain criminal convictions involving
dishonesty can disqualify individuals from working for or with a federally insured
depository institution. 147 In certain cases, this disqualification can be waived after a
period of 10 years. 148 The Commodities Futures Trading Commission and the
140F



14F

142F



143F

14F

145F

146F

147F

141

See, e.g., 18 U.S.C. § 2381 (ineligibility due to a conviction of treason); 18 U.S.C. § 201(b) (a federal court may
order a disqualification from federal office as a result of a conviction of bribing a public official or accepting a
bribe); 5 U.S.C. § 7313 (removal from federal or District of Columbia office and ineligibility for employment by
U.S. or District of Columbia for five years upon conviction from being involved in riots or civil disorder, or any
offense related to a riot or civil disorder); 18 U.S.C. § 1901 (based on a conviction of a collecting or disbursing
officer engaged in trading in public funds or property); 18 U.S.C. § 2071 (concealing, removing, falsifying, or
mutilating public documents); 18 U.S.C. §§ 2385, 2387 (ineligibility for federal employment for five years from a
conviction of overthrowing or conspiring to overthrow the federal government by force or violence, or interfering
with the U.S. armed forces); 25 U.S.C. § 2704 (b)(5)(A) (ineligibility from National Indian Gaming Commission
because of a felony conviction or gaming offense).
142
10 U.S.C. § 504.
143
These offenses include mutiny, treason, sabotage, or rendering assistance to an enemy of the U.S. or its allies. See
38 U.S.C. § 6104(a).
144
18 U.S.C. § 3563(b)(5).
145
7 U.S.C. § 85 (grain inspector license); 18 U.S.C. § 843(d) (license to import, manufacture, or deal in explosives
or permit the use of explosives); 19 U.S.C. § 1641(d)(1)(B) (customs broker license or permit); 22 U.S.C. §
2778(g)(4) (license to export defense articles and services); 46 U.S.C. § 7503 (merchant mariner’s document, license
or certificate of registry); 49 U.S.C. § 20135(b)(4) and 49 C.F.R. §§ 240.111, 240.115 (locomotive
engineer/operator license); 49 U.S.C. §§ 44709(b)(2) and 44710(b) (airman certificates); 14 C.F.R. § 61.15 (pilot,
flight instructor, or ground instructor certifications); see also U.S.S.G. §5F1.6 (describing statutes that deny federal
benefits, which in this context are defined as “any grant, contract, loan, professional license, or commercial license
provided by an agency of the United States or by appropriated funds of the United States,” to people convicted of
certain drug offenses under certain circumstances).
146
See, e.g., U.S. Dep’t of Justice, Federal Statutes Imposing Collateral Consequences Upon Conviction, supra note
12 at 5.
147
12 U.S.C. §§ 1818(e), 1818(g); 12 U.S.C. § 1829(a).
148
See, e.g., 12 U.S.C. § 1829(a).

CHAPTER 1: INTRODUCTION AND OVERVIEW
Securities and Exchange Commission may also impose licensing restrictions on
individuals with certain criminal offenses dating back within a 10-year period.149
o Labor organizations. Certain criminal convictions will disqualify individuals from
serving (in many capacities) in labor organizations or employee benefit plans for a
period of time, determined by the sentencing court. 150
o Participation in federal contracts or programs. Individuals with certain criminal
convictions are prohibited from working in certain capacities for a defense contractor
or subcontractor that is receiving federal contracts for a minimum of five years (with
an exception for interests of “national security”), and from participating in a federal
contract or program (both procurement and non-procurement programs). 151
Exclusions from participation in federal or state health care programs or in the drug
industry on a temporary or permanent basis also exist for certain types of
convictions. 152
Federal benefits. Individuals with certain criminal convictions may become ineligible to
receive certain federal benefits, particularly for drug-related offenses. 153
o Temporary Assistance for Needy Families (TANF) and Supplemental Nutrition
Assistance Program (SNAP) benefits. Under TANF, the federal government provides
grants to states to provide financial assistance to qualifying low-income families.154
Under SNAP, the federal government appropriates funding to states for qualifying
low-income households to purchase food. 155 Both TANF financial assistance and
SNAP family nutrition benefits are permanently restricted if an individual has a
conviction that involves the possession, use, or distribution of drugs, unless a state
elects to limit or revoke the restriction. 156 These restrictions particularly impact people
of color, not only because people of color are disproportionately convicted and
incarcerated, 157 but also because they are more likely to meet the poverty threshold
qualifying them for such public benefits. 158 Most TANF recipients are black or Latino:
in 2016, 29.1 percent of TANF recipients were black and 36.9 percent were Latino,
148F

149F

150F

15F



152F

153F

154F

15F

156F

157F

149

7 U.S.C. § 12a(2)-(3) (commodities dealer registration); 15 U.S.C. §§ 80b-3(e)-(f) (investment adviser
registration); 15 U.S.C. §§ 78o(b)(4)(B), (b)(6)(A) (registration of brokers and dealers).
150
29 U.S.C. § 504 (labor organizations); 29 U.S.C. § 1111 (employee benefit plans).
151
10 U.S.C. § 2408(a) (defense contractor roles).
152
42 U.S.C. § 1320a-7 (Medicare and state health care programs); 21 U.S.C. § 335a (debarment from submitting an
FDA “drug product” application).
153
21 U.S.C. §§ 862, 862a.
154
42 U.S.C. §§ 603, 604.
155
7 U.S.C. §§ 2012, 2013.
156
21 U.S.C. § 862a. See also Chapter 2, “How a Criminal Record Can Affect Access to Public Benefits,” infra
notes 526-624 for information about states that have limited or revoked the restriction on TANF and SNAP benefits.
157
See “Demographics of the Corrections Population,” supra notes 96-130.
158
See U.S. Dep’t of Health and Human Services, Office of Family Assistance, Characteristics and Financial
Circumstances of TANF Recipients: Fiscal Year 2016, 2017, at Table 10,
https://www.acf.hhs.gov/sites/default/files/ofa/fy16_characteristics.pdf; see also Chapter 2, “The Disproportionate
Impact of Lifetime Drug Bans for Public Benefits,” infra notes 563-94.

CHAPTER 1: INTRODUCTION AND OVERVIEW
whereas 27.6 percent of recipients were white. 159 Similarly, in 2015, 25.8 percent of
SNAP households were black and 11.4 percent were Latino, whereas 39.3 percent of
households were white. 160 Moreover, because people with criminal convictions face
barriers to employment, they are more likely to need financial assistance to survive
and avoid recidivism; in this way, the bans on TANF and SNAP may further impair
returning citizens’ successful reintegration into society. 161
o Financial aid. A person convicted of any federal or state law involving the possession
or sale of drugs “for conduct that occurred during a period of enrollment for which”
the person was receiving federal aid is ineligible to receive federal student grants,
loans, or work assistance for higher education. 162 The period of ineligibility varies
according to whether the person has committed a first, second, or third offense. 163 An
individual can regain eligibility by completing a drug rehabilitation program with
certain criteria and passing “two unannounced drug tests,” or if the conviction is set
aside or reversed. 164 The Department of Education advises every applicant to submit
the Free Application for Federal Student Aid (FAFSA) regardless of eligibility
“because most schools and states use FAFSA information to award nonfederal aid.” 165
Research from the National Poverty Center revealed that students of color were more
likely to need federal grants, but also more likely to be convicted of the disqualifying
drug offenses. 166 Moreover, according to a survey by the Center for Community
Alternatives, 66 percent of public and private colleges collect criminal justice
information on applicants, and most use this information in the admissions—rather
than financial aid—process. 167 Citing the disproportionate involvement of people of
color with the criminal justice system, the Department of Education released a report
advising postsecondary institutions to limit their consideration of applicants’ criminal
158F

159F

160F

16F

162F

163F

164F

165F

16F

159

U.S. Dep’t of Health and Human Services, Office of Family Assistance, Characteristics and Financial
Circumstances of TANF Recipients: Fiscal Year 2016, supra note 158.
160
U.S. Dep’t of Agriculture, Characteristics of Supplemental Nutrition Assistance Households: Fiscal Year 2015,
2016, at Table A.21, https://fns-prod.azureedge.net/sites/default/files/ops/Characteristics2015.pdf. Note that 12.5
percent of SNAP households were described as “race unknown.” Ibid. See also Chapter 2, “The Disproportionate
Impact of Lifetime Drug Bans for Public Benefits,” infra notes 563-94.
161
See Chapter 2, “How a Criminal Record Can Affect Employment Opportunities,” infra notes 222-409.
162
20 U.S.C. § 1091(r)(1).
163
Id.
164
20 U.S.C. § 1091(r)(2).
165
U.S. Dep’t of Education, Office of Federal Student Aid, “Students with criminal convictions have limited
eligibility for federal student aid,” https://studentaid.ed.gov/sa/eligibility/criminal-convictions (last accessed Nov.
20, 2018). See also Free Application for Federal Student Aid, “Question 23,”
https://fafsa.ed.gov/fotw1819/help/fotw12b.htm (indicating that the FAFSA form, which postsecondary schools use
to determine federal and nonfederal aid, asks all applicants about prior drug convictions) (last accessed Nov. 20,
2018).
166
Darren Wheelock and Christopher Uggen, Race, Poverty and Punishment: The Impact Of Criminal Sanctions On
Racial, Ethnic, and Socioeconomic Inequality, National Poverty Center, 2006, at 21,
http://www.npc.umich.edu/publications/workingpaper06/paper15/working_paper06-15.pdf.
167
Center for Community Alternatives, The Use of Criminal History Records in College Admissions Reconsidered,
2010, at 8, 9, http://communityalternatives.org/pdf/Reconsidered-criminal-hist-recs-in-college-admissions.pdf.

CHAPTER 1: INTRODUCTION AND OVERVIEW
backgrounds during the admissions process, in order to expand educational
opportunities for people of color and people with criminal records. 168 For more
discussion of how criminal records affect access to financial aid, see infra Chapter 2,
“Barriers to Financial Aid for Higher Education.” For discussion of financial aid
restrictions applicable to in-prison educational programs, see infra Chapter 2, “How a
Criminal Record Can Affect Employment Opportunities.”
o Low-income housing assistance. Individuals with convictions related to the
manufacturing or producing of methamphetamine on the premises of federally
subsidized housing are permanently restricted from occupying such housing and
receiving low-income housing assistance, as are individuals subject to a lifetime
registration requirement under a state sex offender registration program. 169 For more
discussion of housing-related barriers, see infra Chapter 2, “How a Criminal Record
Can Affect Housing Opportunities.”
o Social Security and/or Disability Insurance. Individuals with certain criminal
convictions are restricted from receiving federal benefits such as Social Security or
disability while incarcerated; certain individuals or their beneficiaries also may be
barred from receiving federal benefits if convicted of certain offenses related to
national security or from receiving workers compensation benefits if convicted of
fraud-related crimes. 170
o Access to a passport. Additionally, the passport of an individual with certain criminal
convictions may be revoked or denied during or after imprisonment, parole, or
supervised release, except if emergency circumstances or humanitarian reasons
exist. 171
Immigration. There are immigration consequences for noncitizens of the U.S. with certain
criminal convictions, 172 including deportation. 173 The Supreme Court describes
deportation as “a particularly severe ‘penalty,’” that is “uniquely difficult to classify as
either a direct or a collateral consequence.” 174 Deportation severely restricts reentry by
relocating the individual to an often unfamiliar country and severing ties with family and
community. 175 Immigrants may be deported upon conviction of various offenses,
167F

168F

169F

170F



17F

172F

173F

174F

168

U.S. Dep’t of Education, Beyond the Box: Increasing Access to Higher Education for Justice-Involved
Individuals, 2016, at 1, 4-5, 18, https://www2.ed.gov/documents/beyond-the-box/guidance.pdf.
169
42 U.S.C. § 1437n(f); 42 U.S.C. § 13663.
170
42 U.S.C. § 402(x) (limiting payments to prisoners, certain other inmates of publicly funded institutions,
fugitives, probationers, and parolees); 5 U.S.C. § 8312 (prohibiting payment of annuities or retired pay for certain
convictions); 42 U.S.C. § 402(u)(1) (limiting or eliminating old-age and survivors insurance benefit payments for
conviction of “subversive activities”); 5 U.S.C. § 8148 (disallowing workers’ compensation benefit payments for
incarcerated individuals convicted of certain fraud-related crimes).
171
22 U.S.C. § 2714 (denying passports to certain convicted drug traffickers).
172
8 U.S.C. §§ 1182(a)(2)(A), (B); 8 U.S.C. § 1227(a); 8 U.S.C. §§ 1101(f)(3), (5), (7), (8); 8 U.S.C. 1427(a).
173
Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017); 8 U.S.C. § 1227.
174
Padilla, 559 U.S. at 365.
175
Vázquez, Perpetuating the Marginalization of Latinos: A Collateral Consequence of the Incorporation of
Immigration Law into the Criminal Justice System, supra note 27 at 666-71.

CHAPTER 1: INTRODUCTION AND OVERVIEW
including crimes “involving moral turpitude,” which are defined broadly.176 Immigrants
may also be deported for drug possession and certain firearms offenses, and for the status
of being a “drug abuser or addict,” or becoming “a public charge from causes not
affirmatively shown to have arisen since entry.” 177
Registration and notification. Federal law sets minimum national standards for state sex
offender registration programs and dictates the types of offenses that trigger registration
requirements, the duration of the registration requirement, and the frequency by which an
individual would need to verify his or her place of residence with state law enforcement. 178
Possessing a firearm. Individuals with criminal convictions that resulted in imprisonment
for over a year are prohibited from possessing a firearm. 179 However, the right to possess
a firearm can be restored through a formal pardon, or if the individual “has had civil rights
restored.” 180
175F

176F



17F



178F

179F

176

8 U.S.C. § 1227(a); Sara Salem, Should They Stay or Should They Go: Rethinking the Use of Crimes Involving
Moral Turpitude in Immigration Law, 70 FLA. L. REV. 225, 227-28 (2018). See also U.S. Dep’t of Justice, Office of
the Att’y Gen., Matter of Silva-Trevino, 26 I. & N. Dec. 550, 552 (2015) (vacating a 2008 Attorney General opinion
on how immigration judges should identify convictions for crimes of moral turpitude because circuit courts
disagreed about the three-step process for determining such convictions). The Immigrant Legal Resource Center has
interpreted “crimes involving moral turpitude” as offenses committed with “bad intent,” citing as examples fraud,
theft (with intent to permanently deprive the owner of possession), assault or battery (if the statute requires intent to
cause “great physical injury”), and some offenses involving “lewd or reckless intent.” See Rose Cahn, Clean Slate
for Immigrants: Reducing Felonies to Misdemeanors: Penal Code § 18.5, Prop 47, Penal Code § 17(b)(3), and Prop
64, Immigrant Legal Resource Center, 2018, at 4,
https://www.ilrc.org/sites/default/files/resources/clean_slate_for_immigrants-rc-20180201.pdf. See also FloresMolina v. Sessions, 850 F.3d 1150, 1163 (10th Cir. 2017) (identifying “a broader pattern visible” in cases addressing
fraud or deception as crimes involving moral turpitude, defining such crimes as “explicitly” encompassing
“‘fraudulent intent’ (or some variation thereof)”).
177
8 U.S.C. § 1227(a).
178
See, e.g., 18 U.S.C. § 4042(c) (notification requirements for sex offenders); 18 U.S.C. §§ 3563(a)(8) (probation
registration requirements for sex offenders).
179
18 U.S.C. § 922(d)(1).
180
18 U.S.C. § 921(a)(20) (stating that any “conviction which has been expunged, or set aside or for which a person
has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter,
unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms.”). See also U.S. Dep’t of Justice, Federal Statutes Imposing Collateral
Consequences upon Conviction, supra note 12 at 15-20. This document explains that:
The phrase ‘has had civil rights restored’ is not monolithic but varies in practical effect from state
to state depending on the laws regarding loss and restoration of rights . . . because of the
considerable variation among the states concerning the loss and restoration of civil rights and
firearms privileges, the determination whether a person convicted of a state offense is subject to
the federal law prohibiting possession of firearms is complex and requires a painstaking
consideration of both state and federal law. While the Supreme Court has answered some of the
significant questions of interpretation concerning the federal statute, the variation among the lower
courts in addressing issues that have not been definitively settled further underscores the intricacy
of the interplay between federal and state law in this area.

CHAPTER 1: INTRODUCTION AND OVERVIEW
State and Local Statutes that Impose Collateral Consequences
State and local laws may also impose added restrictions for individuals with criminal records. 181
Laws can differ drastically across different states, counties, and other local jurisdictions in terms
of the type of collateral consequence (i.e., voting, jury service, occupational licensing), how the
law is applied (i.e., mandatory versus discretionary), the length of time enforced (i.e., permanent,
temporary, conditional), and which types of crimes, criminal activity, or sentences trigger the
collateral consequence (i.e., arrests versus convictions; felonies versus misdemeanors;
incarceration, probation, or parole). 182 Currently, states and local jurisdictions impose thousands
of collateral consequences, which are “scattered throughout state and federal statutory and
regulatory codes and can be unknown even to those responsible for their administration and
enforcement,” making it difficult to identify all of the penalties. 183
180F

18F

182F

The NICCC, a project initially developed by the American Bar Association and funded by the U.S.
Department of Justice, has created a publicly searchable database of all collateral consequences in
every U.S. jurisdiction, to make it easier to identify these collateral consequences. 184 While this
website was created solely for educational and informational purposes, 185 it can potentially inform
judges, prosecutors, defense attorneys, and ultimately those who are facing conviction about the
collateral consequences attached to certain types of convictions.
183F

184F

Regarding voting rights, federal courts have held that under the U.S constitution, state law governs
voter eligibility, enabling states to restrict access to the ballot. 186 Twenty-two states prohibit people
convicted of a felony from voting until they complete their sentence, which includes parole or
probation. 187 Twelve states disenfranchise people with felony convictions indefinitely or until the
governor pardons them, or they enforce an extra waiting period (which may include parole or
probation) before restoring their voting rights. 188 For further discussion of state laws governing
185F

186F

187F

181

See, e.g., Chapter 2, “How a Criminal Record Can Affect Access to Public Benefits,” infra notes 524-624
(discussing state laws prohibiting or allowing people with felony drug convictions to receive certain public benefits
and financial aid); Chapter 3, “The Current Landscape of State Felony Disenfranchisement Laws,” infra notes 63574 (discussing state laws prohibiting or allowing people with felony convictions to vote). See also CSG, “The
National Inventory of the Collateral Consequences of Conviction” (containing searchable database of state laws
imposing collateral consequences).
182
Love Statement at 3. See also CSG, “The National Inventory of the Collateral Consequences of Conviction”
(containing searchable database of state laws imposing collateral consequences and categorizing by type of offense,
duration, and application (i.e., mandatory versus discretionary)).
183
CSG, “The National Inventory of the Collateral Consequences of Conviction.”
184
Ibid.
185
Ibid.
186
See Chapter 3, “Voting,” infra notes 625-889.
187
National Conference of State Legislatures, “Felon Voting Rights,” 2018, http://www.ncsl.org/research/electionsand-campaigns/felon-voting-rights.aspx (last accessed Dec. 5, 2018).
188
Ibid.

CHAPTER 1: INTRODUCTION AND OVERVIEW
felony disenfranchisement, see infra Chapter 3, “The Current Landscape of Felony
Disenfranchisement Laws.” 189
18F

The collateral consequences attached to a conviction, such as denial of voting rights, may be
removed or nullified under certain circumstances. Removal of the collateral consequence will
restore the right that the individual had lost by virtue of their conviction. Federal, state and local
rights may be restored. The mechanisms vary, but generally involve a pardon, amnesty,
expunction of the conviction, or another affirmative act specifying restoration. 190 The next
section discusses the restoration of rights in greater detail.
189F

Restoration of Certain Rights
Federal law allows for the undoing of some, but not all, collateral consequences under certain
conditions through statutory provisions that permit an individual’s rights to be restored. 191 There
is no federal statutory procedure for complete rights restoration or expungement of a criminal
record. 192 A rare presidential pardon or a judicial expungement is needed to fully restore an
individual’s rights following a federal criminal conviction. 193 However, eligibility for some federal
benefits or licenses, such as a firearms license, may be restored automatically after a period of time
or may be restored by administrative or judicial action. 194
190F

19F

192F

193F

189

See infra notes 635-74.
U.S. Dep’t of Justice, Federal Statutes Imposing Collateral Consequences upon Conviction, supra note 12 at 1-2,
13; see also Hefner, 842 F.2d at 732-33 (concluding that “some affirmative act recognized in law must first take
place to restore one’s civil rights”).
191
U.S. Dep’t of Justice, Federal Statutes Imposing Collateral Consequences upon Conviction, supra note 12 at 13.
192
Ibid.
193
See, e.g., 8 U.S.C. § 1227(a)(2)(A)(vi) (authorizing waivers of deportation for noncitizens with certain criminal
convictions who have received “full and unconditional” presidential or gubernatorial pardons); 42 U.S.C. §
402(u)(3) (waiving certain penalties imposed on recipients of old-age and survivors insurance benefits for
conviction of “subversive activities” where a presidential pardon has been issued); 38 U.S.C. § 6105(a) (restoring,
upon presidential pardon, rights to certain veterans’ benefits that would otherwise be forfeited upon conviction for
certain offenses). Some federal courts have held that, under their inherent equitable powers, they may expunge
criminal records, but such power is of “exceedingly narrow scope” and only appropriate when “unwarranted adverse
consequences” which are “extraordinary or extreme” outweigh the “public interest in maintaining criminal records.”
U.S. v. Buggs, No. 2:89-CR-180, 2010 WL 1956581 (S.D. Ohio May 13, 2010). See also 6 AM. L. REP. 6th 1
(2011), Judicial Expunction of Criminal Record of Convicted Adult in Absence of Authorizing Statute.
194
6 AM. L. REP. 6th 1 (2011), at 14; see, e.g., 29 U.S.C. §§ 504 (removing prohibitions on holding office in labor
organization upon reversal of conviction), 1111 (removing prohibitions on holding office in employee benefit plan
upon reversal of conviction); 8 U.S.C. 1227(a)(7) (authorizing Attorney General to waive deportation of noncitizens
convicted of domestic violence under certain circumstances, such as when convicted individual acted in selfdefense); 10 U.S.C. § 504 (authorizing exceptions to the ban on military service for certain criminally convicted
individuals); 12 U.S.C. § 1829(a)(1)-(2) (authorizing a court to grant exceptions to the ban on service in federally
insured depository institutions for certain criminally convicted individuals); 20 U.S.C. § 1091(r)(2) (permitting
resumption of eligibility for federal financial aid for students convicted of certain drug-related offenses to access
upon reversal of conviction or completion of certain rehabilitation programs); 21 U.S.C. § 335a(d) (authorizing the
termination of debarment for certain criminally convicted persons from submitting FDA drug approval applications
upon reversal of conviction or approval from the Secretary of Health and Human Services).
190

CHAPTER 1: INTRODUCTION AND OVERVIEW
A state government may restore a person’s rights and remove state-imposed collateral
consequences like disenfranchisement, 195 for instance by statute 196 or via a gubernatorial
pardon. 197 And if federal law allows the removal of a federally imposed collateral consequence
(such as a firearms ban), then state law permitting removal of collateral consequences may not
necessarily lead to the release from that federally imposed collateral consequence. 198
194F

195F

196F

197F

Notification of Collateral Consequences
Due to the substantial number of people with criminal records, collateral consequences affect a
sizable portion of the U.S. population. 199 Collateral consequences multiply as federal, state, and
local governments increase them—yet they remain often invisible and difficult to discover. 200 This
opacity results in part because they are “vast and wide-ranging,” as they can vary by type, nature,
severity, effect, and duration. 201 The lack of public awareness about collateral consequences calls
into question their effectiveness in deterring people from committing crimes. 202
198F

19F

20F

201F

195

See infra Chapter 3, notes 635-74, for discussion of states that permit or do not permit people with felony
convictions to vote if their civil rights have been restored.
196
See, e.g., WIS. STAT. ANN. § 304.078 (restoring a person’s civil rights, including the right to vote, upon
completion of his or her sentence).
197
See, e.g., VA. CONST. art. V, § 12 (empowering the governor to “remove political disabilities consequent upon
conviction for offenses committed”). Note that the Virginia Supreme Court has interpreted this clause as authority
for the governor to pardon people with felony convictions “on a case-by-case basis” and not to pardon all people
with felony convictions categorically. See Howell v. McAuliffe, 292 Va. 320, 349-50 (2016) (finding that where the
Virginia governor restored the voting rights of Virginia residents with felony convictions, “the Governor can use his
clemency powers to mitigate a general rule of law on a case-by-case basis. But that truism does not mean he can
effectively rewrite the general rule of law and replace it with a categorical exception.”). See Chapter 3, infra notes
798-882, for more discussion of voting rights restoration and the McAuliffe case.
198
See Beecham v. United States, 511 U.S. 368, 373 (1994) (recognizing that “[m]any jurisdictions have no
procedure for restoring civil rights” and so one state’s restoration of a convicted person’s civil rights does not
automatically remove a federally imposed ban on firearm possession for a person with a federal conviction. Because
only some states offer the procedures authorized by a federal statute—such as pardon, expungement set-aside, and
civil rights restoration—to lift a consequence, “people in some jurisdictions would have options open to them that
people in other jurisdictions may lack.”). See also Fisher v. Kealoha, 855 F.3d 1067, 1070 (9th Cir. 2017)
(recognizing that federal law “create[d] exceptions” to the federal ban on firearm possession for persons convicted
of misdemeanor domestic violence where the person’s civil rights had been restored); see also Fisher, 855 F.3d at
1070 (concluding that even if federal law allows the removal of a federally imposed collateral consequence when a
person’s civil rights have been restored, “the unavailability of a [state] procedure for… civil rights restoration” does
not remove that federally imposed collateral consequence.”).
199
Gabriel Jackson Chin, “Collateral Consequences,” Academy for Justice, A Report on Scholarship and Criminal
Justice Reform (Eric Luna ed., 2017, forthcoming), at 2, http://academyforjustice.org/wpcontent/uploads/2017/10/17_Criminal_Justice_Reform_Vol_4_Collateral-Consequences.pdf.
200
Ibid.
201
Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues
Faced by Formerly Incarcerated Individuals, supra note 16 at 634-35.
202
See Tracy Sohoni, The Effect of Collateral Consequence Laws on State Rates of Returns to Prison, 2014 (Ph.D.
dissertation), at 47, https://www.ncjrs.gov/pdffiles1/nij/grants/247569.pdf (reasoning that “considering that many
people are unaware of these consequences prior to conviction, and in fact, many are unaware until after their release
from custody, it is unlikely to serve as a general deterrent from crime since even if potential offenders were to
consider the effect of their criminal actions on their future chances for housing, employment or voting, many are
unaware that these consequences exist”) (internal citation omitted)).

CHAPTER 1: INTRODUCTION AND OVERVIEW
Increasingly, issues involving collateral consequences and reentry have been recognized by elected
officials, legal scholars, policymakers, and advocates as central to the criminal process and
criminal justice policy; still, they are not considered to be legally central or sometimes even
relevant to the criminal process because they fall under the separate realm of civil law. 203 In most
cases, there are no requirements for judges or defense counsel to notify individuals upon conviction
about the collateral consequences that will result from the conviction. 204 Because it is often so
difficult to identify when and how they will be triggered, individuals involved in the criminal
justice system are rarely properly informed about the collateral consequences of entering guilty
pleas. 205 Until recently, federal and state courts had ruled that a guilty plea was constitutionally
valid even if the individual was unaware of the collateral consequences of conviction, as long as
that individual was advised of the direct consequences (such as incarceration, probation, or
fines). 206
20F

203F

204F

205F

In 2010, the Supreme Court ruled in Padilla v. Kentucky that counsel must inform a client whether
a guilty plea may result in deportation. 207 This ruling was significant because the Court
acknowledged that, at least in the immigration context, an individual considering a guilty plea must
be advised by counsel about the plea’s collateral consequences to make an informed decision. 208
While the scope of this particular case was limited to advice regarding the risk of deportation,
some legal scholars argue that Padilla’s logic could be extended to argue cases involving other
types of collateral consequences. 209
206F

207F

208F

The National Conference of Commissioners on Uniform State Laws produced the Uniform
Collateral Consequences of Conviction Act in 2009, and amended it in response to the Padilla
decision in 2010. 210 The six provisions of this model legislation include:
209F

203

Pinard, An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues
Faced by Formerly Incarcerated Individuals, supra note 16 at 629-31.
204
Testimony of Mathias H. Heck, Jr. on behalf of the American Bar Association, Hearing on Collateral
Consequences of Criminal Conviction and the Problem of Over-Criminalization of Federal Law Before the H.
Comm. on the Judiciary Task Force on Over-Criminalization, June 26, 2014, at 3-4,
https://www.americanbar.org/content/dam/aba/uncategorized/GAO/2014jun26_collateralconsequences_t_final.authc
heckdam.pdf.
205
Jenny Roberts, Ignorance is Effectively Bliss: Collateral Consequences of Criminal Convictions, Silence and
Misinformation in the Guilty Plea Process, 95 IOWA L. REV. 119, 124 (2009).
206
Id.
207
559 U.S. 356, 374 (2010). The Supreme Court found that a defendant’s Sixth Amendment right to “effective
assistance of competent counsel” encompasses the right to be informed by counsel about whether a guilty plea
“carries a risk of deportation.” Id. at 364, 374. In this case, because Padilla’s counsel failed to inform him of that
risk, counsel was “constitutionally deficient.” Id. at 374.
208
Id. at 373-75.
209
Margaret Colgate Love, Collateral Consequences After Padilla v. Kentucky: From Punishment to Regulation, 31
ST. LOUIS U. PUB. L. REV. 87, 126-27 (2011).
210
National Conference of Commissioners on Uniform State Laws, Uniform Collateral Consequences of Conviction
Act (2010), https://www.uniformlaws.org/viewdocument/committee-archive-3?CommunityKey=74d9914f-f15e49aa-a5b0-f15f6e5f258a&tab=librarydocuments; see also 13 V.S.A. § 8001 et seq. (enacted in Vermont); S.F. 965,

CHAPTER 1: INTRODUCTION AND OVERVIEW


Simplified, published collection of collateral consequences. A designated government
agency or official would have to collect information about constitutional provisions, laws,
and rules that impose collateral consequences or disqualifications and publish it online in
a single document; this collection would also include federally imposed sanctions. 211
Required notification of collateral consequences. A government agency or official would
have to notify defendants of any potentially applicable collateral consequences at or before
the formal notification of charges, so that the defendant could make an informed decision
about how to proceed; notice of these sanctions (including any effects on voting eligibility)
would also be required at sentencing to account for the time elapsed between the charging
and sentencing stages. 212 The model legislation recommends that the state legislature
designate the agency or official responsible for notification and adds that “appropriate
actors” would include “the court or court clerk, pretrial services, jail authorities, or the
prosecution.” 213
Procedural limitations on authorization of collateral consequences. Blanket or automatic
collateral consequences could be imposed only by statute, ordinance, or formal
rulemaking; furthermore, if any ambiguity existed as to whether the collateral
consequence was mandatory or discretionary, the consequence would be construed as
discretionary. 214
Disqualifications based on criminal conviction would be discretionary. The model
legislation provides guidance and offers standards for decision-makers to impose
disqualifications on a discretionary basis, after conducting an individualized assessment
based on all the facts and circumstances of the offense, rather than the fact of the
conviction alone. 215 The decision-maker could consider the underlying conduct of the
person convicted, and the time elapsed since the misconduct occurred, when deciding if
the collateral consequence should apply. 216
Overturned and pardoned convictions, and relief granted by other jurisdictions. Collateral
consequences could not be imposed for convictions that were pardoned or overturned, or
for charges that were dismissed pursuant to deferred prosecution or diversion programs. 217
210F



21F



213F



214F

215F



216F

90th Leg. (Minn. 2017) (proposed in Minnesota); S.B. 328, 79th Leg. (Nev. 2017) (proposed in Nevada); S.B. 292,
2017 Reg. Sess. (N.M. 2017) (passed but not enacted in New Mexico due to pocket veto); S. 4911, New York
Assemb. (N.Y. 2017) (proposed in New York).
211
National Conference of Commissioners on Uniform State Laws, Uniform Collateral Consequences of Conviction
Act, 2010, at 10-12, https://www.uniformlaws.org/viewdocument/committee-archive-3?CommunityKey=74d9914ff15e-49aa-a5b0-f15f6e5f258a&tab=librarydocuments.
212
Id. at 13-19. Section 5 of the Act would require courts to ensure that defendants have received notification of any
applicable collateral consequences, have understood them, and have had the opportunity to discuss them with
defense counsel. Id.
213
Id. at 14.
214
Id. at 20.
215
Id. at 20-23.
216
Id. at 21-22.
217
Id. at 23-27.

CHAPTER 1: INTRODUCTION AND OVERVIEW
The model legislation also would confer flexibility on jurisdictions to allow relief granted
by other jurisdictions for rehabilitation or good behavior. 218
Procedures for granting relief from collateral consequences. Individuals with criminal
records could obtain relief from collateral consequences by Orders of Limited Relief
(available as early as sentencing) and Certificates of Restoration of Rights (available after
a period of law-abiding conduct). 219 Both measures could transform a mandatory collateral
consequence into a discretionary one, enabling decision-makers to perform individualized
assessments. 220
217F



218F

219F

The Uniform Act has been enacted in Vermont, and has been introduced previously, but at this
writing not enacted, in Minnesota, Nevada, New Mexico, New York, and Massachusetts. 221
20F

218

Id.
Id. at 27-37
220
Id.
221
Uniform Law Commission Statement at 3; see also National Conference of Commissioners on Uniform State
Laws, “Collateral Consequences of Conviction Act: Enactment Status Map,”
https://www.uniformlaws.org/committees/community-home?CommunityKey=74d9914f-f15e-49aa-a5b0f15f6e5f258a (last accessed Feb. 26, 2019).
219

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS

Chapter 2: Access to Self-Sufficiency and Meeting Basic Needs
A criminal conviction jeopardizes the ability of convicted individuals to meet basic needs, as
collateral consequences often impose barriers to employment, affordable housing, and public
assistance. These barriers can affect the well-being of not only convicted individuals but also their
families and communities, and they may have public safety implications. This chapter discusses
some of these specific collateral consequences related to access to self-sufficiency, namely barriers
to employment and housing and, to a lesser degree, public assistance.
How a Criminal Record Can Affect Employment Opportunities
Employment discrimination can be one of the most “serious and pervasive” collateral
consequences faced by people with criminal convictions. 222 A criminal record adversely impacts
employment prospects for millions of working-age people in the United States. 223 Of the over
44,000 state and federal collateral consequences, most (roughly 70%) relate to employment, and
thousands of additional local ordinances also restrict employment opportunities for people with
criminal convictions. 224 Many public and private employers also have barriers in place to block
the hiring of people with criminal convictions. 225 These barriers may stem from policies or
practices of private employers that do not favor applicants with criminal records, occupational
licensing laws that disqualify workers with criminal records, and statutory hiring restrictions
imposed by federal or state agencies. 226 This section explores each of those barriers in detail.
21F

23F

24F

25F

Due to the collateral consequences of criminal convictions, 1 in 4 Americans are locked out of the
labor market, leading to between $57 and $65 billion in lost output and a significant loss in human
capital. 227 An audit study that measured the negative impact of criminal records on employment
found that applicants with a criminal record are 50 percent less likely to receive a callback or job
offer than applicants without criminal records.228 The study’s findings were more pronounced for
26F

27F

222

Bell, The Long Shadow: Decreasing Barriers to Employment, Housing, and Civic Participation for People with
Criminal Records Will Improve Public Safety and Strengthen the Economy, supra note 40 at 10.
223
Schmitt & Warner, Ex-offenders and the Labor Market, supra note 37 at 1,
http://cepr.net/documents/publications/ex-offenders-2010-11.pdf.
224
Malcolm & Seibler, Collateral Consequences: Protecting Public Safety or Encouraging Recidivism?, supra note
74 at 1-3; CSG, “The National Inventory of the Collateral Consequences of Conviction.”
225
Leroy D. Clark, A Civil Rights Task: Removing Barriers to Employment of Ex-Convicts,” 38 U.S.F. L. REV. 193,
196 (2004).
226
Id. at 195-95.
227
Schmitt & Warner, Ex-offenders and the Labor Market, supra note 37 at 1.
228
Devah Pager, Bruce Western, Naomi Sugie, “Sequencing Disadvantage: Barriers to Employment Facing Young
Black and White Men with Criminal Records,” Ann Am Acad Pol Soc Sci., vol. 623 (2009): 199.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
black applicants; about 60 percent of all black applicants with criminal records did not receive
callbacks or job offers, compared to 30 percent of all white applicants with criminal records. 229
The ability to work is important to successful reintegration because it allows an individual to earn
a living and supports attaining self-sufficiency. 230 Working can also bolster a person’s sense of
purpose. 231 According to many researchers, employment contributes to strong, stable
communities, helps to build a strong economy, and helps to drastically reduce recidivism. 232
28F

29F

230F

231F

On the other hand, important public safety concerns may justify placing reasonable restrictions on
employment for people with certain types of convictions, and some argue that this can “outweigh
any burden it places on the ex-offender.” 233 For example, prohibiting a convicted sex offender
from running a day care center is a legitimate restriction that serves to protect the public safety of
children. 234 However, others argue that placing “irrational” restrictions on employment, when no
discernible link between the conviction and the job position exists, “undermines efforts to promote
public safety and a cost-effective criminal justice system.” 235
23F

23F

234F

Because of the significant stigma attached to a criminal conviction, an employer could view an
applicant with a criminal record as untrustworthy or lacking in “job readiness,” which is generally
perceived as a requisite qualification for both skilled and unskilled positions. 236 In addition to their
criminal records, some people with criminal convictions may suffer from disadvantages that can
235F

229

Ibid.
Maurice Emsellem, Talk Poverty: We Need Fair Chance Hiring of People with Criminal Records, National
Employment Law Project, 2014, http://www.nelp.org/commentary/talk-poverty-we-need-fair-chance-hiring-ofpeople-with-criminal-records/.
231
Ibid.
232
Ibid; Jeremy Travis, Amy L. Solomon, Michelle Waul, From Prison to Home: The Dimensions and
Consequences of Prisoner Reentry, Urban Institute, 2001, at 31,
https://www.urban.org/sites/default/files/publication/61571/410098-From-Prison-to-Home-The-Dimensions-andConsequences-of-Prisoner-Reentry.PDF; Briefing Transcript, at 146-47 (statement of Marc Levin); Reddy
Statement at 2-3; Maria Duane, Nancy La Vigne, Mathew Lynch, Emily Reimal, Criminal Background Checks:
Impact on Employment and Recidivism, Urban Institute, 2017, at 12-13,
https://www.urban.org/sites/default/files/publication/88621/criminal-background-checks-impact-on-employmentand-recidivism.pdf; Bell, The Long Shadow: Decreasing Barriers to Employment, Housing, and Civic Participation
for People with Criminal Records Will Improve Public Safety and Strengthen the Economy, supra note 40 at 10.
233
John G. Malcolm, “The Problem with the Proliferation of Collateral Consequences,” 19 Federalist Society
Review, Jan. 29, 2018, at 37, https://fedsoc-cmspublic.s3.amazonaws.com/update/pdf/HKcg8n9ZK2vcHFfRpWuncIyrB9yIC30iZb6dKubC.pdf.
234
Ibid.
235
Ibid. at 41. See also Levin Statement at 1-5; Malcolm Statement at 2-8.
236
Travis et al., From Prison to Home: The Dimensions and Consequences of Prisoner Reentry, supra note 232 at
31; Harry J. Holzer, Steven Raphael, Michael A. Stoll, Employment Barriers Facing Ex-Offenders, Urban Institute,
2003, at 7, https://www.urban.org/sites/default/files/publication/59416/410855-Employment-Barriers-Facing-ExOffenders.PDF; Harry J. Holzer and Michael A. Stoll, “Employers and Welfare Recipients: The Effects of Welfare
Reform in the Workplace,” Public Policy Institute of California, (San Francisco: 2001), at 41,
https://www.researchgate.net/publication/228628422_The_effect_of_an_applicant's_criminal_history_on_employer
_hiring_decisions_and_screening_practices_Evidence_from_Los_Angeles.
230

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
challenge their employability. 237 These disadvantages may include inadequate education, limited
work experience, substance abuse, or other physical or mental health conditions, all of which can
further deteriorate with time spent behind bars. 238 Incarceration can also cause formerly
incarcerated individuals to lose their social networks, rendering it more difficult to find gainful
employment. 239 Some research indicates that incarceration may also connect inmates with harmful
social networks that make them more likely to engage in criminal activity than to obtain gainful
employment post-release. 240
236F

237F

238F

239F

Figure 5 shows stark aggregate differences in educational attainment between individuals who are
incarcerated and individuals who are not. According to the most recent data available from the
Department of Justice, 18.4 percent of the general (nonincarcerated) population have not received
a high school diploma; among the incarcerated population, the rate is more than double that at 41.3
percent. 241 Nearly half of the general population has obtained postsecondary education, but only
about 13 percent of the incarcerated population have done so. 242
240F

241F

Figure 5: Educational Attainment for Correctional Populations
and General Population, 2003
Postsecondary

48.4%

12.7%

High school diploma
GED*

23.4%
18.4%

Some high school or less
0.0%

33.2%

22.6%

10.0%

20.0%

General Population

41.3%
30.0%

40.0%

50.0%

60.0%

Total Incarcerated Population

Source: U.S. Department of Justice, Bureau of Justice Statistics, Education and Correctional Populations, January 2003
*Information about GED attainment for the general population was not available in this data report.

More recent state-level studies reflect similar patterns. According to 2016 data from Georgia, more
than half of incoming state prisoners had not obtained a high school diploma or GED, and fewer

237

Holzer et al., Employment Barriers Facing Ex-Offenders, supra note 236 at 4-5.
Ibid. at 7; Schmitt & Warner, Ex-offenders and the Labor Market, supra note 37 at 8.
239
Schmitt & Warner, Ex-offenders and the Labor Market, supra note 37 at 8.
240
Ibid.
241
Caroline Wolf Harlow, Education and Correctional Populations, U.S. Dep’t of Justice, Bureau of Justice
Statistics, 2003, at 2, https://files.eric.ed.gov/fulltext/ED477377.pdf.
242
Ibid.
238

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
than 10 percent had attended college. 243 A 2018 study revealed that nearly three-quarters of
Minnesota’s prisoners had not graduated from high school, and only 18.5 percent had received any
postsecondary education. 244
24F

243F

Figure 6 shows the estimated effect that incarceration has on wages and annual earnings for men.
According to a 2010 report, by the age of 45, a man who has been incarcerated can expect to earn
on average $1.76 less per hour than a man who has not been incarcerated. 245 On an annual basis,
by the same age, a man who has been incarcerated will earn an estimated $15,600 less than a man
who has not been incarcerated. 246
24F

245F

Figure 6: Estimated Effect of Incarceration on Male
Wages and Annual Earnings, Predicted at Age 45
Wages
$16.50

Annual Earnings

$16.33

$16.00
$15.50
$15.00

$14.57

$14.50
$14.00
$13.50
If not Incarcerated

Post‐Incarceration

$45,000
$40,000
$35,000
$30,000
$25,000
$20,000
$15,000
$10,000
$5,000
$0

$39,100

$23,500

If not Incarcerated

Post‐Incarceration

Source: The Pew Charitable Trusts, Collateral Costs: Incarceration’s Effect on Economic Mobility, 2010

According to a Brookings Institution study in 2018, during their first full year after release, only
55 percent of formerly incarcerated people reported earnings. 247 Among the formerly incarcerated
who were employed, their median annual income was only $10,090, and only 20 percent of these
246F

243

Georgia Dep’t of Corrections, Inmate Statistical Profile, 2016, at 36,
http://www.dcor.state.ga.us/sites/all/themes/gdc/pdf/profile_inmate_admissions_fy2016.pdf.
244
Minnesota Dep’t of Corrections, Adult Prison Population Summary, 2018, at 2,
https://mn.gov/doc/assets/Minnesota%20Department%20of%20Corrections%20Adult%20Prison%20Population%2
0Summary%207-1-2018_tcm1089-347924.pdf.
245
The Pew Charitable Trusts, Collateral Costs: Incarceration’s Effect on Economic Mobility, 2010, at 11,
https://csgjusticecenter.org/wp-content/uploads/2010/09/2010-Pew.pdf. The Pew Charitable Trusts authored and
published this report based on research conducted by Bruce Western and Becky Pettit. Ibid. at cover page. Note that
although incarcerated men do not earn reportable income while incarcerated, the authors state that the expected lost
earnings “do not include earnings forfeited during incarceration; they reflect instead a sizable lifelong earnings gap
between former inmates and those never incarcerated.” Ibid. at 12.
246
Ibid.
247
Adam Looney & Nicholas Turner, Work and Opportunity Before and After Incarceration, Brookings Institution,
2018, at 1, https://www.brookings.edu/wp-content/uploads/2018/03/es_20180314_looneyincarceration_final.pdf.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
individuals earned more than $15,000 that year. 248 The Commission notes that most studies are
limited to men because 93 percent of the national prison population is male; 249 however, the rate
of incarceration of women is increasing. 250 Given that the average annual income of women is
about $10,169 less than that of men, incarceration may impede women’s access to a sustainable
income even more drastically than it does for men. 251
247F

248F

249F

250F

Research has shown that unemployment is a major cause of recidivism, and if formerly
incarcerated individuals can obtain a job with a living wage that meets their basic needs, the risk
of reoffending decreases. 252 Employment serves as a “linchpin to the successful rehabilitation of
ex-offenders and their full and productive participation in society.” 253
251F

25F

Reentry programs exist in each state, and may be privately operated (i.e., by a nonprofit
organization) or publicly operated (i.e., by a state government or division). 254 The Federal
Interagency Reentry Council also represents more than 20 federal agencies, including the
Department of Labor and the Department of Education, to coordinate and recommend best
253F

248

Ibid.
E. Ann Carson, Prisoners in 2016, supra note 1 at 3, 6.
250
Ibid. at 1, 3 (reporting that at year-end 2016, 7 percent of the national prison population was female, “an increase
of more than 100 prisoners since 2015,” and that the number of women sentenced to a year or more in state or
federal prison increased by 700 from 2015 to 2016). In September 2018, the Commission voted in favor of studying
female incarceration and producing a report. See U.S. Commission on Civil Rights, Business Meeting, Sept. 14,
2018, transcript, at 65-66 (on file); see also U.S. Commission on Civil Rights, “The U.S. Commission on Civil
Rights Will Examine the Confinement Conditions of Incarcerated Women Who Are under the Care of the Bureau of
Prisons,” Aug. 23, 2016, https://www.usccr.gov/press/2016/PR-08-23-16.pdf; U.S. Commission on Civil Rights,
“Women in Prison: Seeking Justice Behind Bars,” Feb. 22, 2019, https://www.usccr.gov/calendar/2019/02-08Meeting-Notice2.pdf (announcing details and agenda of public briefing focused on the civil rights of incarcerated
women).
251
National Partnership for Women and Families, America’s Women and the Wage Gap, September 2018, at 1,
http://www.nationalpartnership.org/research-library/workplace-fairness/fair-pay/americas-women-and-the-wagegap.pdf (citing U.S. Census Bureau, Current Population Survey, Annual Social and Economic (ASEC) Supplement:
Table PINC-05: Work Experience in 2017—People 15 Years Old and Over by Total Money Earnings in 2017, Age,
Race, Hispanic Origin, Sex, and Disability Status, https://www.census.gov/data/tables/time-series/demo/incomepoverty/cps-pinc/pinc-05.html). The National Partnership based this calculation on “the median annual pay for all
women and men who worked full time, year-round in 2018.” Ibid. at 5. See also U.S. Dep’t of Labor, Bureau of
Labor Statistics, The Economics Daily: Women’s and Men’s Earnings by Age in 2016, August 2017,
https://www.bls.gov/opub/ted/2017/womens-and-mens-earnings-by-age-in-2016.htm (finding that among full-time
wage and salary workers ages 16 and older, median weekly earnings were $749 for women and $915 for men).
252
Travis et al., From Prison to Home: The Dimensions and Consequences of Prisoner Reentry, supra note 232 at
31; Bell, The Long Shadow: Decreasing Barriers to Employment, Housing, and Civic Participation for People with
Criminal Records Will Improve Public Safety and Strengthen the Economy, supra note 40 at 10; Briefing Transcript
at 145-47 (statement of Marc Levin); Duane et al., Criminal Background Checks: Impact on Employment and
Recidivism, supra note 232 at 12-13.
253
Hirsch et al., Every Door Closed: Barriers Facing Parents With Criminal Records, supra note 36 at 14.
254
National Reentry Resource Center, “Reentry Services Directory,” https://csgjusticecenter.org/nrrc/reentryservices-directory/ (last accessed Sept. 27, 2018). The National Reentry Resource Center lists organizations and
programs in each state that provide various reentry services that focus on employment, health, housing, and
reunification of families. Ibid.
249

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
practices for reentry services. 255 Reentry programs may focus on preparing inmates to reenter the
community during their incarceration or may offer short- or longer-term services to individuals
post-incarceration. 256 The Second Chance Act, which was enacted in part to “break the cycle of
criminal recidivism” and “assist offenders reentering the community from incarceration to
establish a self-sustaining and law-abiding life,” provides federal grants to states for reentry
projects and programs. 257 The effectiveness of reentry programs varies, depending in part on the
resources and funding available to them. 258 Reentry programs that address job training and job
readiness can include pre-release vocational training, work release programs, or halfway houses,
and some may include substance abuse and mental health treatment. 259 Research has suggested
that the most successful programs begin while the individual is incarcerated and continue on an
intensive basis during his or her reintegration into the community (i.e., the non-correctional
setting). 260 Some scholars have pointed out that implementing in-prison programs can pose
challenges, as the prison system may prioritize certain goals (such as population management)
over others (such as reentry-focused work programs). 261 But research supports the post-release
value of in-prison programs for former inmates seeking employment; for example, a meta-analysis
of 18 studies found that inmates who participated in education programs (either academic or
vocational) had a 13 percent higher chance of finding employment after incarceration than those
254F

25F

256F

257F

258F

259F

260F

255
U.S. Dep’t of Justice, Federal Interagency Reentry Council, A Record of Progress and a Roadmap for the Future,
2016, at v-x, xiii, https://csgjusticecenter.org/wp-content/uploads/2016/08/FIRC-Reentry-Report.pdf.
256
Nathan James, Offender Reentry: Correctional Statistics, Reintegration into the Community, and Recidivism,
Congressional Research Service, 2015, at 1, https://fas.org/sgp/crs/misc/RL34287.pdf.
257
Pub. Law 110-199, 122 Stat. 657 (April 9, 2008); 34 U.S.C. § 60501; 34 U.S.C. § 10631. Under the Innovations
in Reentry Initiative, the Dep’t of Justice’s Bureau of Justice Assistance provides grants for states to assess the
“jurisdiction’s approach to contracting reentry services” and support “cognitive-behavioral programming;
educational, vocational, and job placement services; transitional employment; substance use treatment; supportive
housing; mental health and medical care; programs that promote family reunification; mentoring and peer support;
and civil legal aid.” See Council of State Governments Justice Center, “Second Chance Act Innovations in Reentry
Initiative,” https://csgjusticecenter.org/nrrc/second-chance-act-innovations-in-reentry-initiative/ (last accessed Nov.
24, 2018).
258
James, Offender Reentry: Correctional Statistics, Reintegration into the Community, and Recidivism, supra note
256 at 11 (noting that “[t]he policies affecting prisoners and the kinds of programs available to them both in and out
of prison depend on a variety of factors, including the availability of funding for social programs within states and
communities”).
259
Richard P. Seiter & Karen R. Kadela, Prisoner Reentry: What Works, What Does Not, and What is Promising,
CRIME & DELINQUENCY, vol. 49, no. 3, at 368 (2003),
http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.917.9453&rep=rep1&type=pdf; see also Briefing
Transcript at 57-58 (statement of John Malcolm) (discussing the value of pre-release programs for incarcerated
individuals).
260
See Shawn Bushway, Reentry and Prison Work Programs, Urban Institute Reentry Roundtable Paper, 2003, at 34, https://www.urban.org/sites/default/files/publication/59406/410853-Reentry-and-Prison-Work-Programs.PDF
(describing a vocational program as “one of the best conceived programs” because “it tried to organize the
incarceration experience from intake to release, including a community component, around the goal of obtaining
work upon release.”); see also James, Offender Reentry: Correctional Statistics, Reintegration into the Community,
and Recidivism, supra note 256 at 21 (stating that the “reportedly most successful programs focus on high-risk
offenders, are intensive in nature, begin during institutional placement, and take place mostly in the community.”).
261
Bushway, Reentry and Prison Work Programs, supra note 260 at 3.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
who did not participate. 262 Moreover, researchers argue that because financial aid can be crucial
to obtaining an education, lifting the federal ban on Pell Grants to fund in-prison college programs
would enable inmates to gain valuable job skills and significantly boost their employment rates
post-incarceration. 263
261F

26F

Criminal Background Checks for Employment
To help ensure safety in the workplace, criminal background checks can be a mechanism for
employers to screen out applicants with criminal records who may pose safety risks, particularly
in industries where employees interact with vulnerable populations, carry weapons, have access to
money, or drive vehicles. 264 Employers may also conduct criminal background checks to protect
their vulnerability to negligent hiring claims, under which employers could be liable for
employees’ wrongful actions if they knew, should have known, or could have discovered the risk
posed by an employee. 265
263F

264F

262

Lois M. Davis, et al., How Effective Is Correctional Education, and Where Do We Go From Here?, RAND
Corporation, 2014, at 15, 18, https://www.rand.org/pubs/research_reports/RR564.readonline.html. The authors
acknowledge that their findings were statistically significant with the caveat that among the 18 studies included in
the meta-analysis, only one study had a high-quality, robust research design. Ibid.
263
See Vera Institute of Justice, Investing in Futures: Economic and Fiscal Benefits of Postsecondary Education in
Prison, 2019, at 21, 23, https://storage.googleapis.com/vera-web-assets/downloads/Publications/investing-infutures-education-in-prison/legacy_downloads/investing-in-futures.pdf. The Vera Institute’s study estimated that
restoring Pell Grant funding for incarcerated individuals “would increase state employment rates of formerly
incarcerated workers who participated in a postsecondary program by 4.7 percentage points, or nearly 10 percent.”
Ibid. at 23. Although the federal ban on Pell Grants for people in prison remains, a limited number of prisoners are
able to access Pell Grants through the Second Chance Pell Experimental Sites Initiative, which provides need-based
Pell Grants to certain incarcerated people through partnerships with 65 colleges in 27 states. See Vera Institute of
Justice, Statement from Vera on U.S. Department of Education's Decision to Renew Second Chance Pell, February
14, 2019, https://www.vera.org/newsroom/press-releases/statement-from-vera-on-u-s-department-of-educationsdecision-to-renew-second-chance-pell. For more discussion of the obstacles facing criminally convicted people who
wish to obtain financial aid for education, see infra notes 595-624.
264
See, e,g., Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49, 51 (Tex. App. 2002) (stating that “[a]n employer
owes a duty to its other employees and to the general public to ascertain the qualifications and competence of the
employees it hires, especially when the employees are engaged in occupations that require skill or experience and
that could be hazardous to the safety of others” and concluding that an employer’s failure to conduct a criminal
background check was relevant to determining whether the employer had fulfilled that duty) (emphasis added)
(internal citations omitted); Duane et al., Criminal Background Checks: Impact on Employment and Recidivism,
supra note 236 at 13; Holzer et al., Employment Barriers Facing Ex-Offenders, supra note 232 at 8; Eric J. Ellman,
on behalf of the Consumer Data Industry Association, Written Statement for the Collateral Consequences: The
Crossroads of Punishment, Redemption, and the Effects on Communities Briefing before the U.S. Commission on
Civil Rights, June 15, 2017, at 2-3 [hereinafter Ellman Statement]. Ellman’s testimony pointed out that criminal
background checks are legally protected under the Fair Credit Reporting Act, and that “employers should be able to
hire the best people for the jobs available, and job applicants should not fear unlawful discrimination.” Ibid.
265
See, e,g., Munroe v. Universal Health Servs., Inc., 277 Ga. 861, 864 n.4, 865 (2004) (noting that “while there
may be no statutory requirement that employers in other businesses conduct background or criminal checks on
potential employees, we reject the position that employers who fail to conduct such searches can never be found
liable for negligent hiring because of this failure” and concluding that the employer’s performance of a criminal
background check protected the employer from liability); see also Morris, 78 S.W.3d at 49, 51 (asserting that “an
employer is liable for negligent hiring, retention, or supervision if it hires an incompetent or unfit employee whom it

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
But when employers use criminal background checks to indiscriminately disqualify all applicants
with criminal records, these employers severely curtail employment opportunities for formerly
incarcerated people. 266 Because black and Latino individuals are likelier to have criminal records
than white and Asian people, and men are likelier to have criminal records than women, black and
Latino males are disproportionately affected by criminal background checks. 267 Some critics of
criminal background checks also allege that they yield incomplete or inaccurate results.268 For
example, a background check may reveal an applicant’s arrest record without the case disposition
to show that no conviction ensued, or an applicant’s expunged records may be wrongfully revealed
to the employer. 269 The extent of these inaccuracies has been disputed. 270 In 2006, the Attorney
265F

26F

267F

268F

269F

knows, or by the exercise of reasonable care should have known, was incompetent or unfit” and concluding that the
employer could have discovered the risk posed by the employee had it performed a criminal background check).
Negligent hiring claims are state causes of action and must satisfy the elements of the state’s laws to be successful.
See Eniola O. Akinrinade, Caught Between A Rock, Negligence, Racism, and A Hard Place: Exploring the Balance
Between the EEOC’s Arrest and Conviction Investigation Guidelines and Society’s Best Interest, 2 TEX. A&M L.
REV. 135, 137-38 (2014) (discussing case law related to the role of criminal background checks in negligent hiring
claims); see also Clark, A Civil Rights Task: Removing Barriers to Employment of Ex-Convicts, supra note 225 at
196 (discussing the “strong incentive for private employers to avoid hiring persons with a criminal record is the fastgrowing tort of negligent hiring”). Because an employer can be liable for the harm that an employee inflicts on a
third party, employers may choose to perform criminal background checks when the employee’s job requires public
interaction (e.g., when a salesperson or technician visits a personal residence and interacts privately with the
resident). See, e.g., Read v. Scott Fetzer Co., 990 S.W.2d 732, 734-37 (Tex. 1998) (finding that the employer’s
failure to conduct a criminal background check on an in-home salesman was a substantial factor in holding the
employer liable for negligent hiring after the salesman raped a customer whose home he visited).
266
Duane et al., Criminal Background Checks: Impact on Employment and Recidivism, supra note 232 at 2;
National Employment Law Project, Faulty FBI Background Checks for Employment: Correcting FBI Records Is
Key to Criminal Justice Reform, 2015, http://www.nelp.org/content/uploads/NELP-Policy-Brief-Faulty-FBIBackground-Checks-for-Employment.pdf.
267
Duane et al., Criminal Background Checks: Impact on Employment and Recidivism, supra note 232 at 2, 10.
268
Ibid. at 2-9. Employers conduct background checks using information drawn from FBI data that uses fingerprints
for identity verification, or from commercial sources that typically use a person’s name, date of birth, and Social
Security number for identity verification, as well as government records regarding criminal sentences. Ibid. See also
National Employment Law Project, Faulty FBI Background Checks for Employment: Correcting FBI Records Is
Key to Criminal Justice Reform, supra note 269 at 1; Ellman Statement at 6-7. In his statement, Ellman disputed the
levels of inaccuracy of background checks, citing a 2014 audit of the four largest criminal background check
companies, which found a dispute rate of 0.3% and a 99.2% rate of accuracy of background checks performed by
LeasingDesk, a member of the Consumer Data Industry Association. The statement also asserted that these “high
rates of reliability are consistent with the findings of several federal courts.” Ibid. But in one case cited by the
statement, the federal court did not indicate whether these accuracy levels were acceptable; instead, the court
described an inaccuracy rate of 0.38 percent as “quite frankly, unflattering.” See Williams v. First Advantage LNS
Screening Sols., Inc., 238 F. Supp. 3d 1333, 1356 (N.D. Fla. 2017). Ellman’s statement noted that courts often redact
identifying information such as dates of birth, social security numbers, and addresses from public records, making
the conclusive matching of a criminal record to an individual “an increasingly complex undertaking that has
required criminal background check providers to innovate.” Ellman Statement at 6-7.
269
Ibid.
270
At the Commission’s 2013 briefing about the use of criminal background checks in hiring, Nick Fishman of
EmployeeScreenIQ testified that his company’s dispute rate was “just 0.15 percent.” See U.S. Commission on Civil
Rights, Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity
Commission’s Conviction Records Policy, 2013, at 79, http://www.eusccr.com/EEOC_final_2013.pdf (including the
statement of Nick Fishman, Co-Founder, Chief Marketing Officer, and Executive Vice President,
EmployeeScreenIQ, that “when disputes do occur we handle them quickly so in the unlikely event information

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
General estimated that approximately 50 percent of the FBI records are incomplete or
inaccurate. 271 A 2015 Government Accountability Office (GAO) report confirmed that while
improvements in data quality were cognizable, data inaccuracies are still prevalent in most states’
data, and the GAO recommended that actions be taken to further improve data quality. 272
270F

271F

In 2013, the Commission held a briefing on the use of criminal background checks in employment.
The briefing specifically focused on guidance 273 issued by the Equal Employment Opportunity
Commission (EEOC) in 2012 on criminal records and hiring practices (“2012 Guidance”). 274 The
Commission evaluated how the 2012 Guidance, which recommended that employers individually
assess applicants rather than implement blanket policies disqualifying applicants due to criminal
records, 275 had affected employers and workers. 276
27F

273F

274F

275F

The federal government may offer guidance to states and private employers on hiring practices
that implicate Title VII of the Civil Rights Act of 1964, as the 2012 Guidance did.277 The legality
of such EEOC guidance has been generally upheld but also sometimes challenged. Federal courts
have held that “the EEOC gets deference in accordance with the thoroughness of its research and
the persuasiveness of its reasoning.” 278 The 2012 Guidance sought to address the effects of racial
disparities, by cautioning employers that hiring practices that check criminal records could run
afoul of Title VII if they create disparate impact based on race and are “not job related and
consistent with business necessity.” 279 The EEOC followed case law holding that while protecting
276F

27F

278F

needs to be modified it can be done without penalizing the candidate or unnecessarily delaying the hire.”). However,
this only reflects the rate of disputes undertaken by impacted individuals and may not reflect all errors. Moreover,
even an accuracy rate of 99.9 percent will still negatively impact the lives of millions of people who are seeking
employment. See U.S. Census Bureau, Annual Estimates of the Resident Population for Selected Age Groups by Sex
for the United States, States, Counties and Puerto Rico Commonwealth and Municipios: April 1, 2010 to July 1,
2017, https://factfinder.census.gov/faces/nav/jsf/pages/index.xhtml (last accessed Dec. 10, 2018) (claiming that the
current U.S. adult population is approximately 201 million). If this estimate is correct, then an accuracy rate of 99.9
percent could yield errors for at least 1 million adults.
271
U.S. Dep’t of Justice, Office of the Attorney General, The Attorney General’s Report on Criminal Background
Checks, 2006, at 3, https://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf.
272
U.S. Government Accountability Office, Criminal History Records: Additional Actions Could Enhance the
Completeness of Records Used For Employment-Related Background Checks, Report 15-162, 2015,
https://www.gao.gov/assets/670/668505.pdf.
273
EEOC, 2012 Guidance.
274
See U.S. Commission on Civil Rights, Assessing the Impact of Criminal Background Checks and the Equal
Employment Opportunity Commission’s Conviction Records Policy, 2013 [hereinafter USCCR, 2013 Briefing
Report], http://www.eusccr.com/EEOC_final_2013.pdf.
275
EEOC, 2012 Guidance at 25.
276
USCCR, 2013 Briefing Report at 1.
277
See generally EEOC, 2012 Guidance.
278
El v. Se. Pennsylvania Transp. Auth. (SEPTA), 479 F.3d 232, 244 (3d Cir. 2007). See also Discussion and
Sources, infra notes 285-94 (discussing Texas’ litigation attempting to enjoin enforcement of the EEOC 2012
Guidance).
279
EEOC, 2012 Guidance at 24.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
safety is compelling, discriminatory practices are prohibited. 280 Citing the disproportionate
overrepresentation of black and Latino people in the criminal justice system, the 2012 Guidance
recommended that employers perform an individualized assessment of candidates with criminal
records and consider factors such as the nature and circumstances of the offense, the duration of
time since the offense, any evidence of rehabilitation, relevant job experience, and character
references (among other factors). 281
279F

280F

Some critics of the 2012 Guidance on hiring people with criminal records later characterized it as
overreach by the federal government. For instance, Texas sued the EEOC over the guidance,
alleging that Texas had “the sovereign right to impose categorical bans on the hiring of criminals,”
and that neither EEOC nor the Attorney General “has authority to say otherwise.” 282 Texas went
to court to prevent the federal government from enforcing the guidance in the state.283 In February
2018, a federal district court in Texas ruled that the 2012 Guidance qualified as a “substantive
rule” requiring public notice and the opportunity to comment under the Administrative Procedures
Act (APA). 284 The court found that because the EEOC had not complied with the APA’s noticeand-comment requirements, the federal government could not enforce the guidance against the
state of Texas as an employer. 285 Under this ruling, the EEOC could remedy the error the court
identified by submitting its proposal for new substantive rules as new federal regulations subject
to the APA’s public notice-and-comment procedures, rather than a mere guidance. 286 Still, the
court rejected Texas’s request for a declaratory judgment—which would have authorized the state
to broadly prohibit anyone with any felony conviction from working for the Texas government—
specifically stating:
281F

28F

283F

284F

285F

280
Id. at 10, 18. The EEOC cited cases where courts found that statistical evidence showing the disproportionate
overrepresentation of African Americans in the criminal justice system could establish a prima facie case of racial
discrimination. See Green v. Missouri Pac. R. Co., 523 F.2d 1290, 1295, 1298-99 (8th Cir. 1975) (finding, based on
statistical data, that the employer’s criminal record policy “disqualifies black applicants or potential black applicants
for employment at a substantially higher rate than whites” and thus the plaintiff “established a prima facie case of
discrimination,” and holding that a complete bar of all applicants with felony convictions for office job positions
presented potential civil rights violations); El v. Se. PA Transp. Auth., 418 F. Supp. 2d 659, 668-69 (E.D. Pa. 2005),
aff’d sub nom. El v. Se. Pennsylvania Transp. Auth. (SEPTA), 479 F.3d 232 (3d Cir. 2007) (concluding that the
employer’s criminal record policy “had a disparate impact on African Americans” after reviewing statistical data
and expert testimony).
281
EEOC, 2012 Guidance at 18; see also El, 479 F.3d 232 at 244-45 (explaining that Title VII “does not ask the
impossible” but “require[s] that the policy under review accurately distinguish between applicants that pose an
unacceptable level of risk and those that do not” and holding that person with a 40-year old murder conviction could
be denied a job in public transportation of persons with disabilities).
282
First Amended Complaint for Declaratory and Injunctive Relief at 1, Texas v. E.E.O.C., WL 1372008 (N.D. Tex.
2014) (No. 513-CV-255-C).
283
Id.
284
Order, Texas v. E.E.O.C., No. 513-CV-255-C, at *3 (N.D. Tex. Feb. 1, 2018),
http://www.naacpldf.org/files/about-us/Doc.%20117.pdf.
285
Id. at *4.
286
Id.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
The Court declines to declare that Texas has a right to maintain and enforce its laws
and policies that absolutely bar convicted felons (or certain categories of felons)
from serving in any job the State and its Legislature deems appropriate. There are
certainly many categories of employment for which specific prior criminal history
profiles of applicants would be a poor fit and pose far too great a risk to the interests
of the State of Texas and its citizens. However, there may well be instances in which
otherwise qualified job applicants with certain felony convictions in their criminal
histories pose no objectively reasonable risk to the interests of the State of Texas
and its citizens. To find otherwise would be illogical. Thus, a categorical denial of
employment opportunities for all job applicants convicted of a prior felony paints
with too broad a brush and denies meaningful opportunities of employment to many
who could benefit greatly from such employment in certain positions. 287
286F

Texas has appealed this decision, and as of this writing, the federal court of appeals has not yet
ruled on it. In its appeal, Texas has argued that the district court “did not go far enough.” instead,
Texas contends, the district court should have prohibited the 2012 Guidance under all
circumstances “because EEOC has no power to promulgate a substantive rule.” 288 In response, the
EEOC pointed out that the 2012 Guidance “imposes no legal obligations or consequences” on
employers 289 and only explained EEOC’s “views on how employers’ use of criminal history
records in employment decisions may implicate Title VII’s prohibitions against discrimination.” 290
But Texas disagrees and argues that the 2012 Guidance puts “pressure on [the] state” to hire people
with felony convictions, even if the guidance does not mandate this. 291
287F

28F

289F

290F

At the Commission’s 2013 briefing, some employers expressed another concern: that despite the
2012 Guidance’s recommendation that employers perform individualized assessments, it could
dilute discretion to assess a candidate’s suitability according to the employers’ own needs and
expertise in the field. 292 In 2013, Todd McCracken of the National Small Business Association
testified that safety is a significant issue when hiring for certain jobs, especially those that involve
caring for children and visiting people’s homes. 293 Both McCracken and Richard Mellor of the
291F

29F

287

Id. at *3.
Brief for Appellee/Cross-Appellant at 44-46, Texas v. E.E.O.C., 2018 WL 6380924, No. 18-10638 (5th Cir. Nov.
2, 2018).
289
Cross-Appellee Response/Reply Brief for Appellants Cross-Appellees at 1-5, Texas v. E.E.O.C., 2018 WL
6828468, No. 18-10638 (5th Cir. Dec. 20, 2018).
290
Id. at 2-3 (emphasis in original).
291
Cross-Appellant’s Reply Brief at 3, 19, Texas v. E.E.O.C., 2019 WL 359642, No. 18-10638 (5th Cir. Jan. 24,
2019).
292
USCCR, 2013 Briefing Report at 8.
293
Ibid. at 205 (statement of Todd McCracken, president of the National Small Business Association, who testified:
“It is…a fact of life that not everyone should be employed in certain types of jobs. We do not want rapists entering
people’s homes. We do not want child molesters working in day care centers. And we do not want embezzlers
handling large sums of cash.”).
288

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
National Retail Federation were worried about exposing employers to lawsuits alleging negligent
hiring or inventory theft and embezzlement. 294 At the Commission’s 2017 Commission briefing
on collateral consequences, employers discussed their fear of facing excessive insurance rates or
restrictions. 295 Expert witness Vikrant Reddy testified that even if employers wanted to hire
employees with criminal records, they may encounter barriers from the insurance industry. 296 But
as noted at the 2013 briefing by Harry Holzer, Georgetown University Professor of Public Policy
and Senior Fellow at the American Institute Research: “The very high costs of criminal histories
on employment are borne not only by the offenders themselves, but also by their families and their
children, their communities, and the U.S. economy broadly.” 297
293F

294F

295F

296F

Other experts, including Carol Miaskoff, then-Acting Associate Legal Counsel of the EEOC,
argued that because the 2012 Guidance did not mandate individualized assessments or prohibit
criminal background checks, employers maintained the authority to exercise discretion in their
hiring decisions. 298 According to Miaskoff, the EEOC intended to emphasize that an employer
should not automatically disqualify a candidate with a criminal record, but should instead inform
the candidate that his or her criminal record could disqualify the candidate and allow the candidate
the opportunity to explain or contextualize past conduct. 299 Holzer reasoned that this more nuanced
approach could better prevent the racial imbalances in the criminal justice system from infecting
the hiring process. 300
297F

298F

29F

At the 2017 briefing, Marc Levin, Policy Director at the Right on Crime Initiative of the Texas
Public Policy Foundation, stated: “Given the public interest in reducing recidivism, it does not
make sense to hold employers…liable simply for giving ex-offenders a second chance that will
contribute to greater prosperity and public safety.” 301 Levin recommended that states pass laws to
seal criminal records automatically after a set time period, such as five to seven years. 302 He also
suggested that states consider legislation to immunize employers from negligible hiring lawsuits
when the employee’s alleged offense is unrelated to the job. 303
30F

301F

302F

294

Ibid. at 8, 205 (statement of Todd McCracken), 211 (statement of Richard Mellor, Vice President, Loss
Prevention, National Retail Federation).
295
Briefing Transcript at 41 (statement of John Malcolm), 42 (statement of Margaret Love).
296
Ibid. at 44 (statement of Vikrant Reddy).
297
USCCR, 2013 Briefing Report at 21 (statement of Harry Holzer, Professor of Public Policy at Georgetown
University and Senior Fellow at the American Institute Research).
298
USCCR, 2013 Briefing Report at 15-17 (statement of Carol Miaskoff, Acting Associate Legal Counsel, Equal
Employment Opportunity Commission).
299
Ibid.
300
Ibid. at 19-22 (statement of Harry Holzer).
301
Levin Statement at 3.
302
Ibid. at 2-3. See also notes 396-409, infra, for more discussion of record-sealing and expungement policy
proposals.
303
Levin Statement at 3.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
Some states have experimented with the legislative mechanisms to which Levin alluded. For
instance, Texas enacted a statute immunizing employers from negligent hiring lawsuits if the
employee’s conviction was for an offense substantially unrelated to his job. 304 The immunity does
not apply if the employer “knew or should have known” of the conviction and the conviction was
for a certain violent, sexual, or theft offense. 305 Colorado also enacted a statute to address
employers’ apprehension about negligent hiring lawsuits. Under the statute, a plaintiff alleging
negligent hiring against an employer may not introduce the employee’s criminal history if “the
nature of the criminal history does not bear a direct relationship to the facts underlying the cause
of action;” if the criminal record had been sealed; if the employee received a pardon or deferred
judgment; or if the arrest record or charge did not lead to a conviction. 306
30F

304F

305F

The Texas and Colorado legislation illustrate how states can protect employers while boosting
employment rates among people with felony convictions, strengthening their local economies, and
improving public safety. 307
306F

Removing Barriers to Employment for People with Criminal Records
Some states permit correctional departments or courts to issue certificates of rehabilitation (or
qualification for employment) to eligible individuals with criminal records. 308 A court may decide
to issue such a certificate based on certain factors, including the nature of the offense, the
individual’s economic and social circumstances, the individual’s actions and conduct since the
conviction, and any evaluations of the individual’s character. 309 In 2012, Ohio enacted a law
allowing courts to issue Certificates of Qualification for Employment, if the petitioner can prove
“all of the following by a preponderance of the evidence:
307F

308F

304

TEX. CIV. PRAC. & REM. CODE ANN. § 142.002.
TEX. CIV. PRAC. & REM. CODE ANN. § 142.002(b)(1)-(2). Immunity also does not apply if the employer “knew or
should have known” of the employee’s conviction for an offense committed while performing duties “substantially
similar” to those performed in the course of employment. Id.
306
COLO. REV. STAT. ANN. § 8-2-201.
307
Shristi Devu, Trapped in the Shackles of America’s Criminal Justice System, 20 SCHOLAR: ST. MARY’S L. REV.
& SOC. JUST. 217 (2018), https://commons.stmarytx.edu/thescholar/vol20/iss2/3/ (reviewing policies designed to
mitigate the collateral consequences of felony convictions).
308
Peter Leasure and Tia Stevens Andersen, The Effectiveness of Certificates of Relief as Collateral Consequence
Relief Mechanisms: An Experimental Study, 35 YALE L. & POL’Y REV. INTER ALIA 11, 14-15 (2016),
http://ylpr.yale.edu/inter_alia/effectiveness-certificates-relief-collateral-consequence-relief-mechanismsexperimental. See also OHIO REV. CODE ANN. § 2953.25(B) (allowing some individuals with criminal convictions to
petition the state Dep’t of Rehabilitation and Correction’s parole division or the county court of common pleas for a
certificate of qualification for employment under certain circumstances).
309
See Doe v. United States, 168 F. Supp. 3d 427, 446 (E.D.N.Y. 2016) (issuing a federal certificate of rehabilitation
to the plaintiff based on, inter alia, the nonviolent nature of her crime, her “current economic and social
circumstances,” her lack of criminal activity post-release from prison, and her “tenacity in overcoming the obstacles
imposed on her by law due to her conviction.”). Upon finding that the plaintiff’s incarceration and supervision “had
its intended [deterrent] effect, the court concluded: “There is no longer a need to deprive Doe of her liberty interests
in the way collateral consequences imposed by the law have been doing. As her sentencing judge, I owe it not only
to Doe, but to her family and community, to do my part to lift any remaining hardship on her.” Id. at 441.
305

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS






Granting the petition will materially assist the individual in obtaining employment or
occupational licensing;
The individual has a substantial need for the relief requested in order to live a law-abiding
life;
Granting the petition would not pose an unreasonable risk to the safety of the public or any
individual; and
The submission of an incomplete petition by an individual shall not be grounds for the
designee or court to deny the petition.” 310
309F

An empirical study of Ohio’s program found that the state’s certificates of rehabilitation nearly
tripled the odds of formerly incarcerated individuals obtaining an interview or job offer, and that
they nearly equalized the rate at which certificate holders and individuals without criminal records
received interviews or job offers. 311
310F

Other states offer tax credits to employers who hire people with criminal records.312 In California,
the credit extends to 50 percent of the qualified wages for the first year of employment, and
gradually diminishes with each subsequent year of employment. 313 Illinois, Iowa, Louisiana,
Maryland, and Texas also have—or have experimented with—tax-credit programs for employers
who hire people with criminal records. 314 The criteria and conditions attached to the tax credits
vary. In Illinois, tax credits are available for employers who hire an employee within three years
after the employee has been released from an Illinois “adult correctional center.” 315 In Louisiana,
the tax credit applies only to “employment [of] an individual who has been convicted of a firsttime nonviolent offense.” 316 These policies may begin to proliferate as more states understand that
employing people with criminal records provides tax revenue, whereas incarceration represents a
significant tax expenditure. 317
31F

312F

31F

314F

315F

316F

310
OHIO REV. CODE ANN. § 2953.25(C)(3). Note that the law exempts certain collateral sanctions from relief via the
certificate of rehabilitation, including (under certain circumstances) sanctions applying to sex offenses, vehicular
homicide, felony drug offenses committed by medical professionals, among several others. See OHIO REV. CODE
ANN. § 2953.25(C)(5).
311
Leasure & Andersen, The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms:
An Experimental Study, supra note 308 at 17-20.
312
Devu, Trapped in the Shackles of America’s Criminal Justice System, supra note 307 at 253-55.
313
CAL. REV. & TAX. CODE § 17053.34.
314
National Hire Network, “State Tax Credits,” 2017, http://www.hirenetwork.org/content/state-tax-credits (last
accessed Nov. 25, 2018).
315
35 ILL. COMP. STAT. ANN. 5/216
316
LA. STAT. ANN. § 47:287.752.
317
Devu, Trapped in the Shackles of America’s Criminal Justice System, supra note 307 at 253-54.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
Occupational Licensing Barriers
In the United States, many professions require individuals to obtain licenses to practice in their
chosen field. 318 The criteria for obtaining an occupational license vary under federal and state laws
and may exclude people who have criminal convictions. 319 The EEOC has found that some
occupational licensing requirements for persons with felony convictions are permissible under
Title VII of the Civil Rights Act, 320 which prohibits race and national origin discrimination in
employment. 321 In 2012, “building on longstanding court decisions,” the EEOC found that due to
causing disparate impact 322 “use of an individual’s criminal history in making employment
decisions may, in some instances, violate the prohibition against employment discrimination under
Title VII.” 323 The EEOC’s 2012 Guidance, which is still in force, recommends that employers
“develop[] a targeted screen considering at least the nature of the crime, the time elapsed, and the
nature of the job,” followed by an individualized assessment of the applicant with a criminal
record. 324
317F

318F

319F

320F

321F

32F

About 30 percent of U.S. workers now need licenses, which is a five-fold increase since the
1950s. 325 Occupational licenses can be important to ensure the delivery of quality goods and
services to protect consumer health and safety. 326 Examples of when a license may be necessary
to serve the public interest can be found in the medical profession. 327
324F

325F

326F

318

National Employment Law Project, The Consideration of Criminal Records in Occupational Licensing, National
Reentry Resource Center, Council of State Governments Justice Center, 2015, at 1, https://csgjusticecenter.org/wpcontent/uploads/2015/12/TheConsiderationofCriminalRecordsinOccupationalLicensing.pdf.
319
Ibid. See also EEOC, 2012 Guidance at 21-23.
320
EEOC, 2012 Guidance at 21-23. See also Title VII of the Civil Rights Act of 1964 (codified as amended at 42
U.S.C. § 2000e et seq.).
321
Title VII of the Civil Rights Act of 1964 (codified as amended at 42 U.S.C. § 2000e et seq.).
322
42 U.S.C. § 2000e-2(k)(1)(A)(i); see also Lewis v. City of Chicago, 560 U.S. 205, 208, 211 (2010) (asserting that
“Title VII of the Civil Rights Act of 1964 prohibits employers from using employment practices that cause a
disparate impact on the basis of race (among other bases)” and reaffirming disparate impact analysis from Griggs v.
Duke Power Co., 401 U.S. 424, 431 (1971), interpreting Title VII to “proscrib[e] not only overt discrimination but
also practices that are fair in form, but discriminatory in operation.”).
323
EEOC, 2012 Guidance at 1.
324
Id. at 2; see also National Employment Law Project, The Consideration of Criminal Records in Occupational
Licensing, supra note 318 at 1.
325
Brad Hershbein, David Boddy, Melissa S. Kearney, Nearly 30 Percent of Workers in the U.S. Need a License to
Perform Their Job: It Is Time to Examine Occupational Licensing Practices, Brookings Institution, 2015,
https://www.brookings.edu/blog/up-front/2015/01/27/nearly-30-percent-of-workers-in-the-u-s-need-a-license-toperform-their-job-it-is-time-to-examine-occupational-licensing-practices/ (last accessed Aug. 31, 2018). See also
The White House, Occupational Licensing: A Framework for Policymakers, 2015, at 3,
https://obamawhitehouse.archives.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf [hereinafter
White House, Occupational Licensing].
326
White House, Occupational Licensing at 3-5.
327
Reddy Statement at 1.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
But licensing policies can also restrict access to jobs where no discernible nexus between the job
and the license exists. 328 Many scholars and advocates believe that occupational licensing bans
should be limited to circumstances where the nature of the conviction bears on the ability of the
individual to perform the job duties. 329 Others have raised another salient point: licensing policies
can limit workers’ ability to practice across state lines. 330
327F

328F

329F

Licensing requirements vary drastically from state to state. More than 1,100 different occupations
are licensed in at least one state, but fewer than 60 occupations are regulated in all states.331 This
variability can restrict workers’ ability to move from state to state and can frustrate business’s
needs to transfer workers when necessary. 332 When these policies adversely affect employees and
businesses, they hurt the overall economy as well; one study estimated that occupational licensing
laws cost the U.S. economy “between $34.8 and $41.7 billion per year.” 333 The brunt of these costs
is eventually borne by American consumers, without necessarily enhancing the quality of any
products or services. 334
30F

31F

32F

As licensing policies can limit job choices for unlicensed workers, they can also diminish their
earning potential. For instance, unlicensed workers earn an estimated 10 to 15 percent less than
licensed workers with the same training, education, and experience. 335 Even the path toward
obtaining a license can be cumbersome and costly; one speaker informed the Commission that
“2,000 hours [are] required to become a cosmetologist in Utah.” 336
34F

35F

States commonly require individuals to pass a criminal background check before obtaining a
license. Currently, there are more than 13,000 documented state licensing restrictions for
individuals with a criminal record. 337 Among these, about 8,000 restrictions apply to people
36F

328

White House, Occupational Licensing at 3 (pointing out that “often the requirements for obtaining a license are
not in sync with the skills needed for the job”).
329
Michelle Natividad Rodriguez and Beth Avery, Unlicensed and Untapped: Removing Barriers to State
Occupational Licenses for People with Criminal Records, National Employment Law Project, 2017, at 4,
http://www.nelp.org/publication/unlicensed-untapped-removing-barriers-state-occupational-licenses/. See also
Stephen Slivinski, Turning Shackles Into Bootstraps: Why Occupational Licensing Reform Is the Missing Piece of
Criminal Justice Reform, Center for the Study of Economic Liberty at Arizona State University, 2016, at 1-2,
https://research.wpcarey.asu.edu/economic-liberty/wp-content/uploads/2016/11/CSEL-Policy-Report-2016-01Turning-Shackles-into-Bootstraps.pdf; Malcolm & Seibler, Collateral Consequences: Protecting Public Safety or
Encouraging Recidivism?, supra note 74 at 4.
330
White House, Occupational Licensing at 3.
331
Ibid.
332
Ibid.
333
Levin Statement at 3 (citing Daniel S. Hamermesh, Labor Demand (Princeton: Princeton University Press, 1996),
Chapter 2).
334
Reddy Statement at 2.
335
White House, Occupational Licensing at 4.
336
Reddy Statement at 2.
337
CSG, “The National Inventory of the Collateral Consequences of Conviction.” Visitors to CSG’s National
Collateral Consequence Inventory site may search by offense type, consequence type, duration, jurisdiction, and
application (mandatory versus discretionary). The numbers cited in this section were produced by searching for state

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
convicted of any felony conviction and over 4,000 apply to people convicted of any
misdemeanor. 338 Moreover, at least 9,000 state licensing disqualifications apply for an indefinite
period and could last a lifetime, and more than 4,000 are mandatory disqualifications, for which
licensing agencies have no choice but to deny a license. 339
37F

38F

Additional hurdles can compound the obstructive impact of licensing laws. For instance, formerly
incarcerated individuals often lack the education and training to qualify for many skilled labor
jobs; this disadvantage likely disqualifies them from licensed jobs that may require a greater degree
of education or training. 340 Further, many states use “good moral character” as a standard for
granting occupational licenses.341 A uniform definition of “good moral character” appears
nonexistent as of yet. 342 States’ criteria for lack of good moral character can range from convictions
for “deadly weapons or firearms offenses” to convictions for “petty offenses indicating an
irresponsible attitude toward the law.” 343 Given the subjectivity and vagueness of phrases such as
“irresponsibility toward the law,” critics have argued that moral character should not serve as a
standard for granting occupational licenses, at least unless it is more precisely defined. 344 Since
there is often no uniform set of standards for licensing boards when making determinations under
a “good moral character” standard, individual prejudices of licensing officials may contribute to
the decision-making process. 345 One idea is that licensing boards could consider consulting the
legal and medical professions for guidance on defining the contours of “good moral character,”
given that these professions have historically included this standard when licensing physicians and
attorneys. 346
39F

340F

341F

342F

34F

345F

Moreover, a recent study found that states with heavy occupational licensing burdens suffered
increased rates of recidivism, 347 while states with no “character” provisions and lower licensing
burdens saw their recidivism rates drop. 348 Given that the recidivism rate for people who are
346F

347F

“occupational & professional licensure & certification” consequences, and then narrowing by offense type (felony or
misdemeanor), duration (indefinite or temporary), and application (mandatory or discretionary). Ibid.
338
Ibid.
339
Ibid.
340
Slivinski, Turning Shackles Into Bootstraps: Why Occupational Licensing Reform Is the Missing Piece of
Criminal Justice Reform, supra note 329 at 1.
341
Larry Craddock, “‘Good Moral Character’ as a Licensing Standard,” Journal of the Nat’l Ass’n of Admin. Law
Judiciary, vol. 28, no. 2 (2008): 450-51,
http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1117&context=naalj; Reddy Statement at 2.
342
Craddock, “’Good Moral Character’ as a Licensing Standard,” supra note 341 at 451.
343
Id.
344
Id. at 451-52.
345
Id. at 451, 456.
346
Id.
347
Slivinski, Turning Shackles Into Bootstraps: Why Occupational Licensing Reform Is the Missing Piece of
Criminal Justice Reform, supra note 329 at 5-6; Reddy Statement at 2.
348
Slivinski, Turning Shackles Into Bootstraps: Why Occupational Licensing Reform Is the Missing Piece of
Criminal Justice Reform, supra note 329 at 2.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
unemployed post-incarceration is nearly twice that of those who find employment, 349 correctional
facilities could be wise to offer job training programs that can equip inmates to earn occupational
licenses. But even when facilities do offer training, the statutory bans on granting licenses to people
with criminal convictions impede the formerly incarcerated from using their skills to earn a
living. 350 For instance, some individuals receive training to become barbers while incarcerated,
but then are blocked from obtaining a license to practice “in the one field in which they now have
a marketable skill” once they are released. 351
348F

349F

350F

Inmates who fight fires in California offer another compelling example of how licensing
restrictions can impact formerly incarcerated people and public safety overall. The California
Department of Corrections and Rehabilitation partners with the Los Angeles Fire Department to
train incarcerated people to fight deadly wildfires. 352 The New York Times reported that, for their
labor in 2017, the inmates only earned about $1 per hour. 353 They may have also learned valuable
work skills, but could be stymied in their efforts to apply them post-release due to licensing
restrictions for individuals with criminal records. 354 Axios reported that in August 2018, an
estimated 2,000 incarcerated people fought fires in California,355 earning approximately $3 per
day for their work. 356 But most fire departments require prospective firefighters to obtain an EMT
license, and EMT certifying boards routinely deny licenses to applicants who have criminal
records. 357 Thus, while the state may accrue value from the service of these individuals during
their incarceration, and incarcerated people may learn marketable skills that could ease their
reentry and protect public safety, post-release licensing restrictions can then nullify the potentially
positive effects of this arrangement. 358 Speaking to this point, one advocate questioned why the
state should bother releasing prisoners, “[if] there’s still an invisible prison around them.” 359
351F

352F

35F

354F

35F

356F

357F

358F

349

Ibid.
Malcolm & Seibler, Collateral Consequences: Protecting Public Safety or Encouraging Recidivism?, supra note
74 at 4.
351
Ibid.
352
Jaime Lowe, “The Incarcerated Women Who Fight California’s Wildfires,” New York Times, Aug. 31, 2017,
https://www.nytimes.com/2017/08/31/magazine/the-incarcerated-women-who-fight-californias-wildfires.html.
353
Ibid.
354
Ibid.
355
Clark Mindock, “California wildfire: Should inmates be fighting the state’s worst ever blaze?,” The Independent,
Aug. 8, 2018, https://www.independent.co.uk/news/world/americas/california-wildfires-latest-inmate-firefightersprisoners-mendocino-complex-carr-fire-a8483571.html.
356
Ibid.
357
Stef W. Kight, “How inmates who fight wildfires are later denied firefighting jobs,” Axios, Aug. 9, 2018,
https://www.axios.com/how-inmates-who-fight-wildfires-are-later-denied-firefighting-jobs-1513306736-c63805ddc2fb-4c04-a81e-1f9a7058ef34.html.
358
See, e.g., CAL. CODE REGS. tit. 22, § 100079(a)-(b) (requiring individuals to complete “the criminal background
check requirement” and to disclose pending or current criminal investigations, pending criminal charges, and prior
convictions to qualify for initial certification as an EMT).
359
Kight, “How inmates who fight wildfires are later denied firefighting jobs,” supra note 357.
350

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
Several advocates testified to the Commission’s West Virginia State Advisory Committee about
formerly incarcerated individuals who had paid for training and education in a particular field,
only to find out that they were barred from practicing due to their criminal records. For instance,
one young woman went to college with the intention of working as a drug counselor, after she had
served time for a drug offense and a related burglary offense (after stealing family jewelry to serve
her drug addiction). It was only after paying for and completing 2.5 years of her academic program
that she found out she would not be able to be certified as a counselor with her record. 360
359F

Moreover, in his testimony before the Commission in 2017, Vikrant Reddy pointed out that
licensing barriers “come down much harder on minority communities, disadvantaged communities
because those communities are disproportionately represented in the criminal justice system,” and
while these policies are well-intentioned, they can “have a counterproductive effect, and have a
counterproductive effect on the most vulnerable communities also.” 361
360F

Some advocates believe that the process of obtaining a license is often confusing to the applicant,
and denial of licensure lacks transparency. 362 Therefore, many advocates believe that taking the
following steps would reduce barriers to certain professions that individuals with criminal records
face: making the licensing application review process more transparent; clarifying the application
questions regarding criminal history; standardizing the application process across all professions;
restricting licensing boards from considering arrests and certain older convictions; considering
rehabilitation; and creating a pre-licensing petition process for people with criminal records. 363
361F

362F

Other advocates believe that certain licensing restrictions for certain jobs are necessary to maintain
public safety, and can boost both practitioner wages and respect for the profession. 364 Yet others
disagree with a standard approach to licensing across all professions, as a more nuanced approach
may be more sensible to determine commonsense restrictions. 365 At the Commission’s 2017
briefing, John Malcolm theorized that broad occupational licensing restrictions can be used to
diminish market competition. 366 He noted that:
36F

364F

365F

[P]eople who are ex-offenders, they’re the low-hanging fruit in terms of keeping
out competition. Just come up with a blanket rule and you're eliminating a whole
slew of competitors. So one thing I think that has to happen is that state legislators
360

West Virginia State Advisory Committee to the United States Commission on Civil Rights, Public Meeting,
Felony Records: Collateral Consequences for West Virginians, July 19, 2018, Meeting Transcript at 237-39.
361
Reddy Statement at 21-22.
362
Council for Court Excellence Statement at 2; Rodriguez & Avery, Unlicensed and Untapped: Removing Barriers
to State Occupational Licenses for People with Criminal Records, supra note 329.
363
Ibid.
364
Rodriguez & Avery, Unlicensed and Untapped: Removing Barriers to State Occupational Licenses for People
with Criminal Records, supra note 329.
365
Briefing Transcript at 47 (statement of John Malcolm).
366
Ibid. at 47-48.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
ought to be paying more attention to avoiding rent-seeking with professional
licensing boards . . . it would plumb the depths of my imagination to come up with
a legitimate public safety reason why an ex-offender could not be an interior
decorator, particularly in the days of Yelp in which people can post bad reviews if
an ex-offender is a bad interior decorator. And so I think that they need to be far
more scrutinizing in terms of looking at categories and coming up with scalpel-like
approaches to eliminating people from professional licenses and jobs than the meat
cleaver that is usually employed by people who have a vested interest in keeping
out competition. 367
36F

In his testimony before the Commission, Reddy further noted that:
I think that some of these licensing boards probably just need to be eliminated
altogether, they don’t really make a lot of sense, and the criminal justice benefits
would be incidental, but you’d have these really broad economic benefits, more
competition, lower prices, more innovation. 368
367F

Finally, during his testimony before the Commission, Marc Levin from Right on Crime discussed
model legislation in Texas that would allow individuals with criminal records to obtain provisional
or probationary occupational licenses if they meet certain criteria. 369 If these individuals comply
with all of the rules of the occupation and do not commit new criminal offenses, the probationary
license would become permanent after a period of time, such as six months. 370
368F

369F

Fair Chance Hiring Policies
As of September 2018, the District of Columbia, more than 30 states, and over 150 cities and
counties have adopted what advocates characterize as fair chance hiring practices. 371 According to
advocates, these practices enable formerly incarcerated individuals to obtain gainful employment
despite the stigma attached to their criminal history. 372 As mentioned, several private corporations
have adopted policies along these lines, and some higher education institutions have released
370F

371F

367

Ibid.
Briefing Transcript at 48 (statement of Vikrant Reddy).
369
Briefing Transcript at 151 (statement of Marc Levin).
370
Ibid.
371
Beth Avery & Phil Hernandez, Ban the Box: U.S. Cities, Counties, and States Adopt Fair Chance Policies,
National Employment Law Project, 2018, https://www.nelp.org/publication/ban-the-box-fair-chance-hiring-stateand-local-guide/ (last accessed Nov. 26, 2018). See also The Leadership Conference, Fact Sheet: Fair Chance
Hiring, 2017, http://civilrightsdocs.info/pdf/criminal-justice/Fair_Chance_Hiring.pdf. See generally Michelle
Natividad Rodriguez and Anastasia Christman, The Fair Chance/Ban the Box Toolkit, National Employment Law
Project, 2015, http://www.nelp.org/publication/the-fair-chance-ban-the-box-toolkit/ (last accessed Nov. 26, 2018).
372
The Leadership Conference, Fact Sheet: Fair Chance Hiring, 2017, http://civilrightsdocs.info/pdf/criminaljustice/Fair_Chance_Hiring.pdf.
368

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
guidance on fair chance hiring as well. 373 The following sections discuss the Ban the Box and
Clean Slate initiatives addressing hiring practices as applicable to people with criminal
convictions. 374
372F

37F

“Ban the Box” laws and policies prohibit employers from inquiring about criminal history on a job
application, deferring the consideration of criminal history to a later point in the hiring process. 375
In addition to the numerous states and localities that have already adopted Ban the Box or other
fair chance hiring policies, many private employers have voluntarily chosen to implement such
policies, and President Obama called on Congress to implement Ban the Box policies in hiring for
federal employment. 376 The Obama administration then issued a final rule to prohibit federal
374F

375F

373
See, e.g., Owens & Henderson, “Koch Brothers are right on fair chance hiring,” supra note 34; Calif. Community
Colleges, Office of the Chancellor, (Revised) California Community Colleges Fair Chance Hiring Best Practices,
2019, at 3,
http://extranet.cccco.edu/Portals/1/AA/PrisonEd/2019/Revised_Policy_Guidance_California_Community_Colleges
_Fair_Chance_Hiring_Best_Practices.pdf (outlining best practices for California’s community colleges to hire
individuals with criminal records as “advanced by federal and state Equal Employment Opportunity (EEO) law and
policies, and in the criminal history background check process in California’s new Fair Chance Act.”).
374
For further discussion of policy proposals to expand employment opportunities for people with criminal records,
see supra notes 266-72 (discussion of improving the reliability of criminal background checks), notes 273-291
(discussion of implementing EEOC guidelines for hiring people with arrest and conviction records), notes 292-307
(discussion of legal liability protections for employers who hire people with criminal convictions), notes 308-11
(discussion of certificates of rehabilitation or qualification for employment), and notes 312-17 (discussion of tax
credits and incentives for employers who hire people with criminal records). See also Legal Action Center, “Beyond
‘Ban the Box”: Four Steps to Build on Fair Chance Hiring,” https://lac.org/beyond-ban-the-box-four-steps-to-buildon-fair-chance-hiring/ (last accessed Nov. 27, 2018); Rebecca Beitsch, “‘Ban the Box’ Laws May Be Harming
Young Black Men Seeking Jobs,” Pew Charitable Trusts, Aug. 22, 2017, http://www.pewtrusts.org/en/research-andanalysis/blogs/stateline/2017/08/22/ban-the-box-laws-may-be-harming-young-black-men-seeking-jobs (last
accessed Nov. 27, 2018) (discussing alternatives to Ban the Box policies).
375
National Employment Law Project, ‘Ban the Box’ is a Fair Chance for Workers with Records, 2017,
http://www.nelp.org/content/uploads/Ban-the-Box-Fair-Chance-Fact-Sheet.pdf. In 2004, a national civil rights
movement of formerly incarcerated individuals launched the Ban the Box campaign to challenge “the stereotypes of
people with conviction histories by asking employers to choose their best candidates based on job skills and
qualifications, not past convictions.” See Ban the Box Campaign, “About: The Ban the Box Campaign,”
http://bantheboxcampaign.org/about (emphasis in original) (last accessed Nov. 26, 2018); Lori Walker, testimony on
behalf of Women Against Registry for the U.S. Commission on Civil Rights, May 19, 2017, at 1. Walker noted that
Ban the Box is essential to ensure equal treatment of people with felony convictions and stated that “if the
government would encourage companies to hire felons they would benefit at the federal and state levels by receiving
tax dollars in return from these convicted felons.” Ibid.
376
Avery & Hernandez, Ban the Box: U.S. Cities, Counties, and States Adopt Fair Chance Policies to Advance
Employment Opportunities for People with Past Convictions, supra note 371; Marianne Levine, “Koch Industries to
Stop Asking About Job Candidates’ Criminal History,” Politico, April 27, 2015,
http://www.politico.com/story/2015/04/koch-industries-brothers-criminal-history-job-applicants-ban-the-box117382; The White House, Office of the Press Secretary, Fact Sheet: President Obama Announces New Actions to
Promote Rehabilitation and Reintegration for the Formerly Incarcerated, 2015,
https://obamawhitehouse.archives.gov/the-press-office/2015/11/02/fact-sheet-president-obama-announces-newactions-promote-rehabilitation.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
agencies from asking about an applicant’s criminal background until the agency makes a
conditional job offer. 377
376F

While there has been momentum from the Ban the Box movement, some believe that Ban the Box
is not necessarily the best way to help individuals with criminal records secure employment. 378
First, some critics view Ban the Box policies as expanded government regulation that forces
employers to spend money on “administrative red tape” and detracts from their freedom to design
their own hiring procedures. 379 Others have pointed out that Ban the Box policies delay the hiring
process, which can be expensive and inefficient for employers. 380 These delays may also hurt
applicants, who could still face discrimination but must wait longer for the employer’s final
decision. 381 Employers may still perform criminal background checks, albeit later in the process,
and some employers may never intend to hire an applicant with a criminal record. 382
37F

378F

379F

380F

381F

Another major criticism of Ban the Box policies stems from research suggesting that they may
exacerbate racial disparities in the hiring process instead of eliminating them. 383 The findings of a
few recent studies support the claim that Ban the Box policies encourage what researchers have
termed “statistical discrimination,” where employers assume that black people have a criminal
record and that white people do not. 384
382F

38F

377
5 C.F.R. § 731.103(d)(1) (“A hiring agency may not make specific inquiries concerning an applicant’s criminal
or credit background of the sort asked on the OF-306 or other forms used to conduct suitability investigations for
Federal employment (i.e., inquiries into an applicant’s criminal or adverse credit history) unless the hiring agency
has made a conditional offer of employment to the applicant.”); see also Eric Katz, “Obama Makes More Changes
to Federal Hiring Through Regulatory Process,” Government Executive, Dec. 1, 2016,
https://www.govexec.com/management/2016/12/obama-makes-more-changes-federal-hiring-through-regulatoryprocess/133561/.
378
Gail Heriot, “The Unintended Consequences of ‘Ban the Box’: Statistical Discrimination and Employment
Outcomes When Criminal Histories are Hidden,” Reason, Oct. 10, 2018, https://reason.com/volokh/2018/10/10/theunintended-consequences-of-ban-the-b; Derek M. Cohen, “You Don’t Love ‘Fair Chance Hiring’, You Love the
Idea of ‘Fair Chance Hiring’,” Texas Public Policy Foundation, April 4, 2016,
https://www.texaspolicy.com/blog/detail/you-dont-love-fair-chance-hiring-you-love-the-idea-of-fair-chance-hiring.
379
Greg Glod, “An Alternative to ‘Ban the Box’,” Real Clear Policy, Aug. 5, 2015,
http://www.realclearpolicy.com/blog/2015/08/05/ban_the_box_alternative_1387.html; Reddy Statement at 5.
380
Nina Kucharczyk, Thinking Outside the Box: Reforming Employment Discrimination Doctrine to Combat the
Negative Consequences of Ban-the-Box Legislation, 85 FORDHAM L. REV. 2803, 2812 (2017).
381
Id.
382
Cohen, “You Don’t Love ‘Fair Chance Hiring,’ You Love the Idea of ‘Fair Chance Hiring,’” supra note 378; see
also Glod, “An Alternative to ‘Ban the Box,’” supra note 379.
383
See, e.g., Heriot, “The Unintended Consequences of ‘Ban the Box’: Statistical Discrimination and Employment
Outcomes When Criminal Histories are Hidden,” supra note 378; Cohen, “You Don’t Love ‘Fair Chance Hiring,’
You Love the Idea of ‘Fair Chance Hiring’,” supra note 378.
384
Lucy Gubernick, Erasing the Mark of Cain: An Empirical Analysis of the Effect of Ban-the-Box Legislation on
the Employment Outcomes of People of Color with Criminal Records, 44 FORDHAM URB. L.J. 1153, 1190-91
(2017); see also Amanda Agan and Sonja Starr, Ban the Box, Criminal Records, and Statistical Discrimination: A
Field Experiment, Univ. of Michigan Law and Economics Research Paper No. 16-012 (2016),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2795795; Jennifer L. Doleac and Benjamin Hansen, Does “Ban
the Box” Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment Outcomes When Criminal
Histories are Hidden, Working Paper No. 22469, National Bureau of Economic Research (2016),

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
One study compared the experiences of white and black male applicants before and after Ban the
Box legislation was enacted in New York and New Jersey. 385 It revealed that before the Ban the
Box policy took effect and employers could ask about criminal records, the callback rate for
applicants with criminal records was nearly the same for both races: 11.1 percent for white
applicants and 10.9 percent for black applicants. 386 The study also found that overall, white
applicants were 7 percent more likely than black applicants to receive a callback;387 but after the
Ban the Box policy was implemented, white applicants were 45 percent more likely than black
applicants to receive a callback. 388 The researchers attributed the results to two possible
explanations: statistical discrimination leading employers to believe that all black men likely have
criminal backgrounds, and the employers’ belief that white men are much less likely to have
criminal backgrounds. 389 Additional research has yielded similar findings. 390 Researchers have
hypothesized that when criminal records are unavailable, “employers use race as a proxy for
criminal records.” 391 The findings suggest that Ban the Box policies expose the pervasiveness of
racial discrimination in hiring, while also possibly excluding more black people from the job
market.
384F

385F

386F

387F

38F

389F

390F

Some advocacy groups and institutions have responded to this research by pointing out that Ban
the Box policies were never intended as “the silver bullet to a racially biased criminal justice
system.” 392 They argue that “entrenched racism in the hiring process,” not Ban the Box policies,
391F

http://jenniferdoleac.com/wp-content/uploads/2015/03/Doleac_Hansen_BanTheBox.pdf; Osbourne Jackson and Bo
Zhao, The Effect of Changing Employers’ Access to Criminal Histories on Ex-Offenders’ Labor Market Outcomes:
Evidence from the 2010-2012 Massachusetts CORI Reform,” Federal Reserve Bank of Boston, Working Paper 1630 (2016), https://www.bostonfed.org/publications/research-department-working-paper/2016/the-effect-ofchanging-employers-access-to-criminal-histories-on-ex-offenders-labor-market-outcomes.aspx.
385
Agan & Starr, Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment, supra note
384; see also Nina Kucharczyk, Thinking Outside the Box: Reforming Employment Discrimination Doctrine to
Combat the Negative Consequences of Ban-the-Box Legislation, supra note 380 at 2812-13 (discussing the Agan &
Starr study).
386
Agan & Starr, Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment, supra note
384 at 17.
387
Id. at 33.
388
Id.
389
Id. at 34-35.
390
Gubernick, Erasing the Mark of Cain: An Empirical Analysis of the Effect of Ban-the-Box Legislation on the
Employment Outcomes of People of Color with Criminal Records, supra note 384 at 1190-91 (citing Harry J. Holzer
et. al., Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers, 49 J.L.
& ECON. 451 (2006)); Kucharczyk, Thinking Outside the Box: Reforming Employment Discrimination Doctrine to
Combat the Negative Consequences of Ban-the-Box Legislation, supra note 380 at 2813-14 (citing Doleac &
Hansen, Does “Ban the Box” Help or Hurt Low-Skilled Workers? Statistical Discrimination and Employment
Outcomes When Criminal Histories are Hidden, supra note 384).
391
Kucharczyk, Thinking Outside the Box: Reforming Employment Discrimination Doctrine to Combat the Negative
Consequences of Ban-the-Box Legislation, supra note 380 at 2813.
392
Maurice Emsellem & Beth Avery, Racial Profiling in Hiring: A Critique of New “Ban the Box” Studies,
National Employment Law Project, 2016, at 1, http://www.nelp.org/content/uploads/Policy-Brief-Racial-Profilingin-Hiring-Critique-New-Ban-the-Box-Studies.pdf. See also Christina Stacy and Mychal Cohen, Ban the Box and
Racial Discrimination: A Review of the Evidence and Policy Recommendations, Urban Institute, 2017, at 14,
https://www.urban.org/research/publication/ban-box-and-racial-discrimination/view/full_report (suggesting that

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
ultimately facilitates racial profiling. 393 Scholars have also maintained that Ban the Box has been
more valuable than harmful and have urged closer examination of the research, which shows that
people of color with criminal records received callbacks and obtained employment at higher rates
after Ban the Box policies took effect. 394 Many proponents of reform endorse a stronger and more
comprehensive approach to expand employment opportunities for individuals with criminal
records, and to tackle the deep-seated racism within the hiring process. 395
392F

39F

394F

Policies other than Ban the Box have been proposed to increase employment opportunities for
individuals with criminal records. 396 One viable alternative to Ban the Box is expungement or
record sealing, through which people with criminal records for certain offenses can petition a court
to seal or “shield” their records from public inquiry, enabling them to refrain from disclosing a
criminal record to an employer without violating the law. 397 Various state laws allow for the
expungement of certain criminal records, although jurisdictions generally take a conservative
approach when determining which offenses are eligible for expungement. 398 In his testimony
395F

396F

397F

other policy interventions, in addition to Ban the Box, are needed “to achieve the desired outcome for people with
criminal records and reduce (or at least not increase) discrimination based on race”) (emphasis in original).
393
Emsellem & Avery, Racial Profiling in Hiring: A Critique of New “Ban the Box” Studies, supra note 392 at 1.
See also Terry-Ann Craigie, “Employment After Incarceration: Ban the Box and Racial Discrimination,” Brennan
Center for Justice, Oct. 13, 2017, https://www.brennancenter.org/blog/employment-after-incarceration-ban-box-andracial-discrimination (contending that “Ban the Box is being used a scapegoat for discriminatory hiring practices
that have been going on for decades”).
394
Ibid. at 5; see also Office of the D.C. Auditor, The Impact of “Ban the Box” in the District of Columbia, 2016,
http://dcauditor.org/report/the-impact-of-ban-the-box-in-the-district-of-columbia/; Southern Coalition for Social
Justice, The Benefits of Ban the Box: A Case Study of Durham, NC, 2014, http://www.southerncoalition.org/wpcontent/uploads/2014/10/BantheBox_WhitePaper-2.pdf; Ellie Anzilotti, “How “Ban the Box” has helped (and hurt)
the job prospects of people with criminal records,” Fast Company, Nov. 15, 2018,
https://www.fastcompany.com/90267016/how-the-ban-the-box-movement-has-helped-and-hurt-the-job-prospectsof-people-with-criminal-records (arguing that Ban the Box policies “create an overall positive affect on employment
for people with criminal records,” and, as a whole, “increase the odds of public employment for people with
criminal records by 30%.”).
395
See. e.g., Emsellem & Avery, Racial Profiling in Hiring: A Critique of New “Ban the Box” Studies, supra note
392 at 1; Stacy & Cohen, Ban the Box and Racial Discrimination: A Review of the Evidence and Policy
Recommendations, supra note 392 at 15 (supporting stronger and better enforced antidiscrimination laws and
regulations in combination with Ban the Box); Craigie, “Employment After Incarceration: Ban the Box and Racial
Discrimination,” supra note 393 (stating that Ban the Box is “only a starting point” and recommending “hold[ing]
employers accountable for their discriminatory practices.”).
396
Legal Action Center, “Beyond ‘Ban the Box”: Four Steps to Build on Fair Chance Hiring,”
https://lac.org/beyond-ban-the-box-four-steps-to-build-on-fair-chance-hiring/ (last accessed Nov. 27, 2018); Glod,
“An Alternative to ‘Ban the Box’,” supra note 379.
397
See, e.g., MD. CODE ANN., CRIM. PROC. §§ 10-303, 10-306 (statutory provisions in Maryland allowing recordsealing petitions and explaining the legal effects of nondisclosure of sealed records); Brian M. Murray, A New Era
for Expungement Law Reform? Recent Developments at the State and Federal Levels, 10 HARV. L. & POL’Y REV.
361, 369-70 (2016); Michael Haugen, “The Truth About ‘Ban the Box,’” Right on Crime, April 13, 2016,
http://rightoncrime.com/2016/04/the-truth-about-ban-the-box/; Glod, “An Alternative to ‘Ban the Box,’” supra note
379; see also Council of State Governments, Justice Center, “About the Clean State Clearinghouse,”
https://cleanslateclearinghouse.org/about/ (last accessed Oct. 11, 2017); Levin Statement at 2.
398
Stacy & Cohen, Ban the Box and Racial Discrimination: A Review of the Evidence and Policy Recommendations,
supra note 392 at 18; Murray, A New Era for Expungement Law Reform? Recent Developments at the State and

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
before the Commission in 2017, Marc Levin discussed record sealing, expungement, and
nondisclosure. 399 Levin described record sealing as distinct from record expungement, indicating:
398F

[I]f your record is sealed or nondisclosed, the prosecutor or law enforcement,
judges, they can still see it, it can still be used to enhance under repeat offender
statutes, so it’s not a physical destruction of the record.
Now, of course, for people that are exonerated, we absolutely should physically
destroy the record and there may be some role for that, I think even for people,
especially after 20 years, if somebody had a low-level drug possession, maybe we
should expunge it. 400
39F

He further explained that laws in Texas, Indiana, and a few other states follow this model, and
described how these laws benefit both the individual and law enforcement by giving individuals
the chance to successfully reintegrate while maintaining commonsense exceptions for public safety
purposes. 401
40F

The “Clean Slate” campaign endorses automatic record-sealing policies that do not require an
individual to petition a decision-maker. 402 In 2017, the Pennsylvania State Senate passed a Clean
Slate bill, which allows certain criminal records to be automatically sealed by the state, without
petition. 403 Clean Slate would rely on the computerized criminal record databases to automatically
identify cases eligible for sealing, which could reduce caseloads for courts. 404 Supporters of the
legislation point out that automatic record sealing would save individuals from hiring an attorney
and incurring court costs, which often limits people who are not “savvy and wealthy enough to
navigate the legal process.” 405 This model legislation could be tailored for other states that have
electronic records to match with the data in other states’ electronic criminal records databases. 406
401F

402F

403F

40F

405F

Federal Levels, supra note 397 at 367; see also, e.g., TEX. GOV’T CODE ANN. §§411.081(d), 411.071-077; ARK.
CODE ANN. § 16-93-1207(b)(1); ARK. CODE ANN. § 16-90-901-05; 18 PA. STAT. AND CONS. STAT. ANN. § 9122.
399
Briefing Transcript at 147-49 (statement of Marc Levin).
400
Ibid. at 147.
401
Ibid. at 147-48. Levin specifically discussed statutory exceptions “for certain licensing boards that could still see
some sealed records from some occupations that are, you know, involve potential danger to public safety and so
forth.” Ibid.
402
Community Legal Services and Center for American Progress, Clean Slate Advocacy Toolkit, 2017, at 1,
https://clsphila.org/sites/default/files/issues/Clean%20Slate%20Toolkit%20-%2010-2017.pdf.
403
S.B. 529, 2017-2018 Gen. Assemb., Reg. Sess. (Pa. 2017),
https://www.legis.state.pa.us/CFDOCS/Legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2017&sessInd=0&bil
lBody=S&billTyp=B&billNbr=0529&pn=0854. Note that the bill would generally limit automatic record-sealing to
certain misdemeanor convictions and charges not leading to a conviction. Id.
404
Community Legal Services and Center for American Progress, Clean Slate Advocacy Toolkit, supra note 402 at 1.
405
Levin Statement at 3.
406
Community Legal Services and Center for American Progress, Clean Slate Advocacy Toolkit, supra note 402 at 1.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
A Clean Slate bill was also recently introduced on the federal level. In August 2018,
Congresswoman Lisa Blunt Rochester (D-Del.) and Congressman Rod Blum (R-Iowa) introduced
a federal Clean Slate bill (H.R. 6677) in the House of Representatives. 407 This proposed legislation,
which has garnered bipartisan support, follows the Pennsylvania model to allow automatic record
sealing for certain criminal records—for individuals who are not violent offenders or sex
offenders—and a streamlined petition process for other types of federal criminal records to allow
for successful reentry. 408 Backers of the measure have described it as a commonsense approach to
reinforce the efforts of people with criminal convictions to successfully reintegrate into society. 409
406F

407F

408F

How a Criminal Record Can Affect Housing Opportunities
Individuals with criminal convictions face barriers to both public and private housing. Federal laws
prohibit individuals with certain types of criminal records from living in public or subsidized
housing and/or living in certain geographical areas, and private housing providers may implement
policies that restrict individuals with arrests or criminal convictions. 410 Many formerly
incarcerated people return to low-income communities, and the National Low Income Housing
Coalition estimates that only 35 affordable rental units exist for every 100 “extremely low-income”
households. 411 Coupled with the collateral consequences that formerly incarcerated individuals
face when trying to earn a living, formerly incarcerated individuals face a high risk of housing
409F

410F

407

Clean Slate Act of 2018, H.R. 6677, 115th Cong. (2nd Sess. 2018), https://www.congress.gov/bill/115thcongress/house-bill/6677/text; see also Adam Brandon, “Support the Clean Slate Act, H.R. 6677,” FreedomWorks,
Aug. 30, 2018, https://www.freedomworks.org/content/support-clean-slate-act-hr-6677.
408
Adam Brandon, “Support the Clean Slate Act, H.R. 6677,” FreedomWorks, Aug. 30, 2018,
https://www.freedomworks.org/content/support-clean-slate-act-hr-6677; Office of Congresswoman Lisa Blunt
Rochester, “Blunt Rochester, Blum Introduce Bipartisan, First-in-the-Nation Federal Second Chance Legislation,”
Aug. 30, 2018, https://bluntrochester.house.gov/news/documentsingle.aspx?DocumentID=162.
409
Ibid.
410
42 U.S.C. § 1437n(f) (permanently prohibiting from public housing people convicted of manufacturing
methamphetamine on the premises); 42 U.S.C. § 13663 (prohibiting from public housing certain individuals
registered as state sex offenders); 42 U.S.C. § 13661(a) (prohibiting from public housing a tenant evicted for “drugrelated criminal activity” for three years post-eviction unless the evicted tenant completes a rehabilitation program
or obtains a waiver); 42 U.S.C. § 13661(b) (requiring public housing agencies and owners to set standards
prohibiting from admission any household with a member determined to be “illegally using a controlled substance”);
42 U.S.C. § 13661(c) (allowing public housing agencies and owners to deny admission to an individual or any
member of the individual’s household suspected of engaging “in any drug-related or violent criminal activity or
other criminal activity” under certain circumstances). See generally Tran-Leung, When Discretion Means Denial: A
National Perspective on Criminal Records Barriers to Federally Subsidized Housing, supra note 36 at 7-8; Walz
and Tran-Leung Statement at 7 (discussing barriers in the private rental market).
411
Elayne Weiss, Housing Access for People with Criminal Records, National Low Income Housing Coalition,
2017, at 1, http://nlihc.org/sites/default/files/AG-2017/2017AG_Ch06-S06_Housing-Access-Criminal-Records.pdf;
National Low Income Housing Coalition, The Gap: A Shortage of Affordable Homes, 2017, at 2,
https://nlihc.org/sites/default/files/Gap-Report_2017.pdf (The National Low Income Housing Coalition defines
“extremely low-income” as having an income at or below the federal poverty guideline or 30 percent of the area
median income, whichever is higher.).

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
insecurity and homelessness. 412 While landlords have an understandable interest in safety,413
barring formerly incarcerated persons—regardless of the basis for conviction—from tenancy does
not categorically serve that interest. In addition, high barriers to housing have severe implications.
This section reviews overarching civil rights issues related to housing barriers for persons with
felony convictions, and the subsequent sections discuss particular barriers for public and private
housing.
41F

412F

Without a stable residence, it is difficult for formerly incarcerated individuals to reconnect with
society. 414 In turn, this difficulty can lead to increased rates of recidivism.415 Kate Walz, Director
of Housing Justice and Director of Litigation at the Sargent Shriver National Center on Poverty
Law, offered a snapshot of the challenges confronting formerly incarcerated individuals who seek
adequate housing:
413F

41F

For many, a common question emerges on the first night: “Where will I sleep?” But
often, securing safe, decent and affordable housing will present a significant
challenge for people long after they have left the criminal justice system… Housing
barriers for justice-involved individuals can also severely restrain their ability to
reintegrate back into their communities by exacerbating other collateral
consequences. 416
415F

These housing challenges persist beyond the immediate reentry period because initial housing
arrangements are often temporary, and securing permanent housing is a more difficult feat. 417
416F

412

Stephen Metraux, Caterina G. Roman, Richard S. Cho, Incarceration and Homelessness, National Symposium
on Homelessness Research, 2007, https://www.huduser.gov/publications/pdf/p9.pdf; Claire W. Herbert, Jeffrey D.
Morenoff, David J. Harding, Homelessness and Housing Insecurity among Former Prisoners, U.S. Dep’t of Health
and Human Services, 2015, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4762459/pdf/nihms-729845.pdf.
413
See, e.g., Kline v. 1500 Massachusetts Avenue Apt. Corp., 439 F.2d 477, 479-81 (D.D.C. 1970) (recognizing that
“[t]he landlord is no insurer of his tenants safety, but he certainly is no bystander” and imposing “upon the landlord
a duty to take those steps which are within his power to minimize the predictable risk to his tenants” when the
landlord has notice of foreseeable acts of harm by third parties “in the portion of the premises exclusively within his
control.”).
414
Katherine Cortes & Shawn Rogers, Reentry Housing Options: The Policymakers’ Guide, Council of State
Governments Justice Center, 2010, at vii, http://csgjusticecenter.org/wpcontent/uploads/2012/12/Reentry_Housing_Options-1.pdf.
415
Faith E. Lutze, Jeffrey W. Rosky, Zachary K. Hamilton, “Homelessness and Reentry: A Multisite Outcome
Evaluation of Washington State’s Reentry Housing Program for High Risk Offenders,” Criminal Justice and
Behavior, vol. 41, no. 4 (2014) at 481, https://s3.wp.wsu.edu/uploads/sites/436/2014/11/Criminal-Justice-andBehavior-2014-Lutze-471-91.pdf; Saneta deVuono-powell, Chris Schweidler, Alicia Walters, Azadeh Zohrabi, Who
Pays? The True Cost Of Incarceration On Families, Ella Baker Center for Human Rights, Forward Together, and
Research Action Design, 2015, at 26,
http://whopaysreport.org/who-pays-full-report/.
416
Walz and Tran-Leung Statement at 2-3.
417
Jocelyn Fontaine, Jennifer Biess, Housing as a Platform for Formerly Incarcerated Persons,” Urban Institute,
2012, at 3, https://www.urban.org/sites/default/files/publication/25321/412552-Housing-as-a-Platform-forFormerly-Incarcerated-Persons.PDF.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
Some individuals are able to stay with family members or friends temporarily or for a lengthy
period. 418 Some individuals may qualify for supportive housing programs (transitional or
permanent, and depending on various eligibility requirements based on sex or any federal
restrictions on eligibility), often serving individuals with mental health needs (and as noted before,
over half of the incarcerated population in the U.S. reportedly has a mental health condition 419) or
physical disabilities (also as noted previously, the incarcerated population is twice as likely to have
a mobility disorder, three to four times likelier to be blind or have a vision impairment, and two to
three times likelier to be deaf or hard of hearing than the general U.S. population 420), substance
abuse disorders, chronic homelessness, or residential instability. 421 Other individuals must rely on
other subsidized housing programs (for low-income individuals) or private housing.422 One study
found that nearly 8 in 10 formerly incarcerated individuals reported ineligibility or denial of
housing because of their or a loved one’s conviction history. 423 According to another study, men
who had been incarcerated were twice as likely to become homeless as men without a history of
incarceration. 424
417F

418F

419F

420F

421F

42F

423F

Research confirms a clear connection between incarceration and homelessness: prior incarceration
has been identified as a risk factor for homelessness, and individuals experiencing homelessness
are vulnerable to incarceration. 425 Many scholars argue that securing housing upon reentry is the
most “pressing and immediate short-term need” for formerly incarcerated individuals. 426 Formerly
incarcerated individuals are especially likely to experience homelessness within the first 30 days
42F

425F

418

Ibid. at 3.
Joint Statement, Disability Advocates at 2; James & Glaze, Special Report: Mental Health Problems of Prison
and Jail Inmates, supra note 117 at 1.
420
Joint Statement, Disability Advocates at 3-4; Davis, People with Intellectual Disability in the Criminal Justice
System: Victims & Suspects, supra note 122; Bronson & Berzofsky, Disabilities Among Prison and Jail Inmates,
2011-2012, supra note 122 at 3.
421
Fontaine & Biess, Housing as a Platform for Formerly Incarcerated Persons, supra note 417 at 5.
422
Ibid. at 5.
423
deVuono-powell et al., Who Pays? The True Cost Of Incarceration On Families, supra note 415 at 26,
http://whopaysreport.org/who-pays-full-report/; Walz and Tran-Leung, Written Statement, at 2-3.
424
Amanda Geller and Mariah A Curtis, A Sort of Homecoming: Incarceration and the Housing Security of Urban
Men, Soc Sci Res. vol. 40, no. 4 (2011): 1196-1213.
425
Herbert et al., Homelessness and Housing Insecurity Among Former Prisoners, supra note 412 at 2; Metraux et
al., Incarceration and Homelessness, supra note 412 at 9-11, 9-23 to 9-24. Metraux et al. suggested multiple reasons
why individuals experiencing homelessness are vulnerable to incarceration, including “the public nature of a
homeless existence” and the criminalization of their attempts to survive (manifested by bans on begging and
sleeping in public). Ibid. at 9-11. See also National Law Center on Homelessness and Poverty, No Safe Place: The
Criminalization of Homelessness in U.S. Cities, 2014, at 7-8, https://www.nlchp.org/documents/No_Safe_Place.
426
Herbert et al., Homelessness and Housing Insecurity Among Former Prisoners, supra note 412 at 2; Faith E.
Lutze, Jeffrey W. Rosky, Zachary K. Hamilton, “Homelessness and Reentry: A Multisite
Outcome Evaluation of Washington State’s Reentry Housing Program for High Risk Offenders,”
Criminal Justice and Behavior, vol. 41, no. 4 (2014) at 472,
https://s3.wp.wsu.edu/uploads/sites/436/2014/11/Criminal-Justice-and-Behavior-2014-Lutze-471-91.pdf; Stephen
Metraux & Dennis P. Culhane, “Homeless Shelter Use and Reincarceration Following Prison Release,” Criminology
and Public Policy, vol. 3, issue 2 (2004) at 139, 141,
https://repository.upenn.edu/cgi/viewcontent.cgi?article=1118&context=spp_papers.
419

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
after leaving prison. 427 Furthermore, more than half of homeless individuals have reported being
incarcerated at some point in their lives, 428 and individuals who lack housing are more frequently
arrested and rearrested than individuals with stable housing. 429 Some research has shown that
homeless people of color are more likely to have an incarceration history than white homeless
individuals, 430 which can be explained in part by the disproportionately high rates of incarceration
among people of color, particularly black men. 431 Incarcerated persons with mental health
diagnoses are also at a higher than average risk of becoming homeless upon reentry into society. 432
426F

427F

428F

429F

430F

431F

Throughout the U.S., many municipal laws prohibit certain public behaviors, such as sleeping or
camping in public, begging, loitering, sleeping in vehicles, or sharing food with the homeless. 433
These laws criminalize the actions of homeless people who are trying to survive, and increase the
chances that a homeless person will be arrested and then burdened with a criminal record. 434 In
turn, people exiting prison or jail are at risk of homelessness because of barriers that deny housing
to people with criminal records. 435 In certain localities, municipal officials, law enforcement, and
policymakers have justified the laws governing public behavior as necessary to promote public
safety, maintain the sanitation of public spaces, and reduce the visibility of homelessness so as not
to deter customers from businesses.436 However, advocates argue that such policies are “unduly
432F

43F

435F

427

Metraux & Culhane, “Recent Incarceration History Among a Sheltered Homeless Population,” supra note 426 at
10.
428
Urban Institute, Homelessness: Programs and the People They Serve: Findings of the National Survey of
Homeless Assistance Providers and Clients, 1999, at 50,
https://www.urban.org/sites/default/files/publication/66286/310291-Homelessness-Programs-and-the-People-TheyServe-Findings-of-the-National-Survey-of-Homeless-Assistance-Providers-and-Clients.PDF.
429
HCH Clinicians’ Network, “Keeping Homeless People Out of the Justice System,” Healing Hands, vol. 8, no. 6
(2004) at 1-2, https://www.nhchc.org/wp-content/uploads/2012/02/HealingHands12_17_04.pdf.
430
Marian Moser Jones, “Does Race Matter in Addressing Homelessness? A Review of the Literature,” World Med
Health Policy, vol. 8, no. 2 (2016): 139-56,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5863922/pdf/nihms924492.pdf.
431
See Chapter 1, “Demographics of the Corrections Populations,” supra notes 96-130.
432
Patricia McKernan, “Homelessness and Prisoner Reentry: Examining Barriers to Housing Stability and EvidenceBased Strategies That Promote Improved Outcomes,” Journal of Community Corrections, 2017, at 7,
https://www.voa.org/pdf_files/homelessness-and-prisoner-reentry-examining-barriers-to-housing-stability-andevidence-based-strategies-that-promote-improved-outcomes.
433
National Law Center on Homelessness and Poverty, No Safe Place: The Criminalization of Homelessness in U.S.
Cities, supra note 425 at 7-8. See also Metraux et al., Incarceration and Homelessness, supra note 412 at 9-11.
434
Metraux et al., Incarceration and Homelessness, supra note 412 at 9-11.
435
See supra note 410 (citing 42 U.S.C. § 1437n(f); 42 U.S.C. § 13663; 42 U.S.C. § 13661(a); 42 U.S.C. §
13661(b); 42 U.S.C. § 13661(c)); Tran-Leung, When Discretion Means Denial: A National Perspective on Criminal
Records Barriers to Federally Subsidized Housing, supra note 36 at 7-8; Walz and Tran-Leung Statement at 7. See
also the next two sections of this chapter for more discussion of legal barriers to housing and HUD guidance for
people with criminal records.
436
Allard K. Lowenstein International Human Rights Clinic, ‘Forced into Breaking the Law’ The Criminalization of
Homelessness in Connecticut, Yale Law School, 2016, at 35,
https://law.yale.edu/system/files/area/center/schell/criminalization_of_homelessness_report_for_web_full_report.pdf.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
punitive,” and they can set up or perpetuate a vicious cycle. 437 People who violate these laws
typically receive citations that are generally punishable by a fine, unless the individual is unable
to pay or plead to a citation, in which case an arrest warrant could be issued that could also lead to
jail time. 438 Individuals who cannot secure adequate housing post-incarceration are twice as likely
to recidivate. 439
436F

437F

438F

Relatedly, because younger LGBT people often encounter rejection from their families or
discriminatory school discipline policies that push them out of home or school, they may struggle
to meet basic housing needs. 440 Many LGBT people are at high risk of becoming homeless and/or
relying on underground “survival” economies (which may include selling or trading sex, selling
drugs, or theft), thus leading to more encounters with law enforcement. 441 Discriminatory
enforcement of laws and harmful policing tactics can also cause LGBT individuals to experience
more encounters with law enforcement. 442
439F

40F

41F

After leaving jail or prison, LGBT individuals frequently face steeper challenges post-reentry. 443
Because they often lack access to culturally competent reentry, parole, and probation programs,
LGBT people may not receive relevant advice on how to handle discrimination (based on their
sexual orientation or gender identity) while searching for employment or housing, or how to get
adequate physical or mental health care (especially for HIV). 444 Transgender people also face
unique challenges, such as not being able to obtain official documents that accurately reflect their
gender identity, which can be problematic when searching for jobs or housing. 445
42F

43F

437

Rebecca Vallas & Sharon Dietrich, One Strike and You’re Out: How We Can Eliminate Barriers to Economic
Security and Mobility for People with Criminal Records, Center for American Progress, 2014, at 7,
https://cdn.americanprogress.org/wp-content/uploads/2014/12/VallasCriminalRecordsReport.pdf.
438
Allard K. Lowenstein International Human Rights Clinic, ‘Forced into Breaking the Law’ The Criminalization of
Homelessness in Connecticut, supra note 436 at 12. See also U.S. Commission on Civil Rights, Targeted Fines and
Fees Against Low-Income Communities of Color: Civil Rights and Constitutional Implications, 2017,
https://www.usccr.gov/pubs/2017/Statutory_Enforcement_Report2017.pdf.
439
Tran-Leung, When Discretion Means Denial: A National Perspective on Criminal Records Barriers to Federally
Subsidized Housing, supra note 36 at 2.
440
Center for American Progress & Movement Advancement Project, Unjust: How the Broken Criminal Justice
System Fails LGBT People, 2016, at 21-25, http://www.lgbtmap.org/file/lgbt-criminal-justice.pdf; Goldberg
Statement at 4. See also LGBTQ Task Force Statement at 5.
441
Center for American Progress & Movement Advancement Project, Unjust: How the Broken Criminal Justice
System Fails LGBT People, supra note 440 at 33; LGBTQ Task Force Statement at 5.
442
Center for American Progress & Movement Advancement Project, Unjust: How the Broken Criminal Justice
System Fails LGBT People, supra note 440 at 45-64, http://www.lgbtmap.org/file/lgbt-criminal-justice.pdf; Goldberg
Statement at 4-5.
443
Meyer et al., “Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate Survey,
2011-2012,” supra note 126; Center for American Progress and Movement Advancement Project, Unjust: How the
Broken Criminal Justice System Fails LGBT People, supra note 440; LGBTQ Task Force Statement at 2; HRC
Statement at 2.
444
Center for American Progress & Movement Advancement Project, Unjust: How the Broken Criminal Justice
System Fails LGBT People, supra note 440 at 45-64; Goldberg Statement at 5-6.
445
Center for American Progress & Movement Advancement Project, Unjust: How the Broken Criminal Justice
System Fails LGBT People, supra note 440 at 31-33; Goldberg Statement at 5.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
Barriers to Subsidized Housing for Individuals with Criminal Records
Federal law places several mandatory and discretionary restrictions on individuals with certain
types of criminal records who wish to live in subsidized housing. 446 For example, applicants who
have been convicted of manufacturing methamphetamine on federally assisted property face a
mandatory lifetime ban on obtaining subsidized housing, as do applicants who are registered sex
offenders. 447 Under federal law, public housing is also unavailable to anyone determined to be
“illegally using a controlled substance” and to anyone evicted from federally subsidized housing
for drug-related criminal activity for three years post-eviction. 448 Public Housing Authorities
(PHAs) have the discretion to admit an applicant if the applicant completes an approved
rehabilitation program. 449 Additionally, if applicants have engaged in any drug-related criminal
activity, violent criminal activity, or other criminal activity that would affect the health, safety, or
peaceful enjoyment of the property, PHAs may deny the applicant if a “reasonable time” (as
defined by the PHA) has not passed since the offense or conviction.450
45F

46F

47F

48F

49F

In 1996, the U.S. Department of Housing and Urban Development (HUD) issued guidance entitled
“One Strike and You’re Out”: Screening and Eviction Guidelines for Public Housing
Authorities. 451 The guidance was designed to help PHAs “develop and enforce stricter screening
and eviction as a part of their anti-drug, anti-crime initiatives.” 452 The guidance urged PHAs to
integrate “one-strike” rules into their screening procedures, emphasizing that any “criminal
activity” by the applicant or a household member of the applicant may justify denial of housing. 453
HUD also encouraged PHAs to spell out these rules in each tenant’s lease, specifying that the ban
on criminal activity applies to any guest of the tenant and clarifying that an arrest alone may trigger
eviction. 454
450F

451F

452F

453F

While the HUD guidance called for individualized reviews of applicants that assess a person’s
criminal history and evidence of rehabilitation on a case-by-case basis, research has shown that
these individualized reviews do not always occur. 455 Critics believe PHAs vary in their
45F

446

See supra note 410 (citing 42 U.S.C. § 1437n(f); 42 U.S.C. § 13663; 42 U.S.C. § 13661(a); 42 U.S.C. §
13661(b); 42 U.S.C. § 13661(c)); Tran-Leung, When Discretion Means Denial: A National Perspective on Criminal
Records Barriers to Federally Subsidized Housing, supra note 36 at 7-8.
447
42 U.S.C. § 1437n(f); 42 U.S.C. § 13663.
448
42 U.S.C. § 13661(a)-(b); 24 C.F.R. 960.204(a).
449
42 U.S.C. § 13661(a); 24 C.F.R. 960.204(a).
450
42 U.S.C. § 13661(c); 24 C.F.R. 982.553(a); 24 C.F.R. § 5.100.
451
U.S. Dep’t of Housing and Urban Development, “One Strike and You’re Out”: Screening & Eviction Guidelines
for Public Housing Authorities (HAs), HUD Notice PIH 96-16 (1996), https://www.hud.gov/sites/documents/9616pihn.doc.
452
Id. at i.
453
Id. at 5-6.
454
Id. at 7-8.
455
Tran-Leung, When Discretion Means Denial: A National Perspective on Criminal Records Barriers to Federally
Subsidized Housing, supra note 36 at 10; U.S. Dep’t of Housing and Urban Development, “One Strike and You’re
Out”: Screening & Eviction Guidelines for Public Housing Authorities (HAs), supra note 455 at 6. See also
Simmons v. T.M. Assocs. Mgmt., Inc., 287 F. Supp. 3d 600, 602, 604-05 (W.D. Va. 2018) (citing HUD’s guidance

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
interpretations of HUD guidance regarding the consideration of an applicant’s criminal history,
and many PHAs may be overly restrictive when screening applicants who have any sort of drugrelated or violent offense, no matter how far in the past the offense occurred. 456
45F

According to a report presented to the U.S. Department of Health and Human Services and HUD,
the restrictions on federally subsidized housing may limit family supports and other potential
supportive housing options available to formerly incarcerated individuals:
These restrictions also limit the family support available to these persons if their
families are living in subsidized housing, as their presence would put all household
members at risk for eviction. Current policies pertaining to federal funding for
specialized housing have provided little opportunity for housing to be developed to
compensate for such restrictions. Ironically, even persons who were homeless prior
to incarceration will have increased difficulty in accessing homeless services upon
release. This is because persons released from incarceration, even if homeless prior
to their incarceration, will not meet the standard criteria for being “homeless” and
will have greater difficulty being eligible for programs targeting the homeless
population. 457
456F

In February 2015, the Sargent Shriver National Center on Poverty and Law issued a report on
criminal records screening in federally subsidized housing that brings light to four issues that
create undue burdens on individuals with criminal records seeking housing, including: 458
457F



Unreasonable lookback periods. With the exception of two outlined categories of criminal
conduct, federal guidance suggests that any inquiries about criminal activity should focus
on activity that occurred within a “reasonable time.” 459 While HUD has suggested that a
five-year lookback period is reasonable, some housing providers have implemented
screening policies with long lookback periods (exceeding 5 years) or open-ended screening
policies that look back indefinitely at a criminal history. 460
458F

459F

requiring housing providers to perform “an individualized assessment” of an applicant with a criminal record,
finding that the housing provider had not conducted an individualized inquiry, and rejecting the housing provider’s
argument that the plaintiff’s “conviction insulates it from any housing discrimination claim as a matter of law.”).
456
Tran-Leung, When Discretion Means Denial: A National Perspective on Criminal Records Barriers to Federally
Subsidized Housing, supra note 36 at 10; Gwen Rubinstein and Debbie Mukamal, “Welfare and Housing: Denial of
Benefits to Drug Offenders,” in Invisible Punishment: The Collateral Consequences of Mass Imprisonment, ed.
Marc Mauer and Meda Chesney-Lind (New York: New Press, 2002), at 37-49.
457
Metraux et al., Incarceration and Homelessness, supra note 412 at 9.
458
Tran-Leung, When Discretion Means Denial: A National Perspective on Criminal Records Barriers to Federally
Subsidized Housing, supra note 36 at 11-34.
459
Ibid. at 11-15.
460
Ibid. at 12-15; Screening and Eviction for Drug Abuse and Other Criminal Activity, 66 Fed. Reg. 28,776, at
28,779 (May 24, 2001), http://www.gpo.gov/fdsys/pkg/FR-2001-05-24/pdf/01-12840.pdf.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS


Unfair Use of Arrests to Prove Criminal Activity. Some housing providers consider arrest
records when screening applicants, which essentially equates arrests with criminal activity
or construes arrests as evidence of criminal activity. 461 The use of arrest records in
screening may disproportionately exclude applicants of color, due to their high rate of
arrests compared to white applicants. 462
Overbroad Categories of Criminal Activity. Many housing providers implement blanket
bans on felony convictions, or create policies that have vague, broad categories of
prohibited criminal activity. 463 These broad categories leave narrow leeway for a
successful applicant, can confuse and possibly deter applicants from pursuing subsidized
housing options, and can have disparate impact implications. 464
Underuse of Mitigating Circumstances. Many applicants are not aware that they are able
to present evidence of “mitigating circumstances” or appeal a denial of their application. 465
Additionally, some PHAs refuse to consider this evidence in making their determinations,
contrary to HUD guidance. 466
460F

461F



462F

463F



46F

465F

In June 2015, the Supreme Court affirmed that disparate-impact claims are cognizable under the
Fair Housing Act, meaning that a plaintiff does not have to show discriminatory intent when
challenging a policy that disproportionately harms people of color. 467 However, among other
limitations, the Court clarified that plaintiffs must show that public housing authorities could have
46F

461

Tran-Leung, When Discretion Means Denial: A National Perspective on Criminal Records Barriers to Federally
Subsidized Housing, supra note 36 at 18-19.
462
Merf Ehman, Fair Housing Disparate Impact Claims Based on the Use of Criminal and Eviction Records in
Tenant Screening Policies, 2011, at 12, http://nhlp.org/files/PRRAC%20Disparate%20Impact%201-2011.pdf
(defining criminal records as arrest records, criminal court records, and corrections and state criminal repository
records, and citing multiple sources to conclude that “blanket policies denying housing to individuals with criminal
records have a disparate impact on” people of color). The author asserted that “[t]he disparate impact of criminal
records based [sic] tenant screening on certain protected classes is almost incontrovertible.” Ibid. Additionally, as
the Ninth Circuit confirmed, “[federal] circuits have held that it is unlawful for housing intermediaries to ‘screen’
prospective housing applicants on the basis of race, even if the preferences arise with landlords.” Fair Hous. Council
of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1167 n. 21 (9th Cir. 2008). Applicants and tenants
have successfully challenged the use of arrest records by subsidized housing providers. See Landers v. Chicago
Hous. Auth., 404 Ill. App. 3d 568, 577 (2010) (finding that an applicant’s record of multiple arrests did not evince a
history of criminal activity that would justify the public housing provider’s rejection of the application); Nashua
Hous. Auth. v. Wilson, 162 N.H. 358, 362 (2011) (holding that a tenant’s arrest for drug-related offenses did not
prove that she engaged in drug-related criminal activity that would justify her eviction from public housing).
463
Tran-Leung, When Discretion Means Denial: A National Perspective on Criminal Records Barriers to Federally
Subsidized Housing, supra note 36 at 24.
464
Ibid. at 22-27.
465
Ibid. at 29.
466
Ibid. at 29; 24 C.F.R. § 982.553(a)(2)(ii)(C)(1); Screening and Eviction for Drug Abuse and Other Activity, HUD
Notice H.
467
Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2513, 2525
(2015). See also 42 U.S.C. §§ 3601-3619, 3631.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
undertaken a less restrictive alternative policy to accomplish any valid government interests at
play. 468
467F

Some advocates argue that the implications of this ruling could be significant for criminal records
screening practices that disproportionately affect people of color. 469 The Court pointed out that
plaintiffs who allege disparate impact may uncover “unconscious prejudices and disguised animus
that escape easy classification as disparate treatment.” 470 Imposing disparate-impact liability on
housing providers could, the Court asserted, “prevent segregated housing patterns that might
otherwise result from covert and illicit stereotyping.” 471
468F

469F

470F

After the Supreme Court decision, HUD issued updated guidance that appeared to depart from the
1996 “one-strike” guidance. 472 In the new guidance, HUD stressed that it did not require PHAs to
“adopt or enforce so-called ‘one-strike’ rules that deny admission to anyone with a criminal record
or that require automatic eviction anytime a household member engages in criminal activity in
violation of their lease.” 473 Moreover, HUD cautioned that a mere arrest does not constitute
“criminal activity” and that PHAs may not deny admission, terminate assistance, or evict a tenant
based on an arrest record. 474 HUD recommended that PHAs read the Shriver Center’s report for
examples of best practices in screening and eviction policies. 475
471F

472F

473F

47F

Across the country, some PHAs have taken steps to allow individuals with criminal records to
more easily access public housing programs. 476 For example, the Housing Authority of New
475F

468

Inclusive Communities Project, Inc., 135 S. Ct. at 2511 (least restrictive alternative requirement); id. at 2523
(“governmental entities…must not be prevented from achieving legitimate objectives, such as ensuring compliance
with health and safety codes”); id. at 2533 (“[D]isparate-impact liability has always been properly limited in key
respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability
were imposed based solely on a showing of a statistical disparity. Disparate-impact liability mandates the ‘removal
of artificial, arbitrary, and unnecessary barriers, not the displacement of valid governmental policies. Griggs, supra
note 322, at 431, 91 S.Ct. 849. (FHA is not an instrument to force housing authorities to reorder their priorities.
Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating discriminatory
effects or perpetuating segregation.”).
469
See Rebecca J. Walter, Jill Viglione, Marie Skubak Tillyer, “One Strike to Second Chances: Using Criminal
Backgrounds in Admission Decisions for Assisted Housing,” Housing Policy Debate, vol. 27, no. 5 (2017) at 5,
https://nlihc.org/sites/default/files/One-Strike-to-Second-Chances.pdf (arguing that the Supreme Court decision
“changed the landscape for housing providers” because “[a]lthough returning citizens are not a protected class,
blanket bans on individuals with criminal records are discriminatory since African Americans and Hispanics are
disproportionately arrested, convicted, and imprisoned[.]”).
470
Inclusive Communities Project, Inc., 135 S. Ct. at 2522.
471
Id.
472
U.S. Dep’t of Housing and Urban Development, Office of Public and Indian Housing, Guidance for Public
Housing Agencies (PHAs) and Owners of Federally-Assisted Housing on Excluding the Use of Arrest Records in
Housing Decisions, HUD Notice PIH 2015-19 (2015), https://www.hud.gov/sites/documents/PIH2015-19.PDF.
473
Id. at 2.
474
Id. at 3-4.
475
Id. at 5.
476
Walz and Tran-Leung Statement at 15.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
Orleans revised its screening protocol so that criminal history is no longer an automatic disqualifier
for prospective applicants. 477 In 2013, the Vera Institute of Justice partnered with the New York
City Housing Authority (NYCHA), the Corporation of Supportive Housing, the New York City
Department of Homeless Services, the New York State Department of Corrections and Community
Supervision, the New York City Department of Correction, and 13 reentry service providers to
launch the Family Reentry Pilot Program (FRPP). 478 The FRPP aimed to reunite 150 formerly
incarcerated individuals with their families in NYCHA housing, with the goals of providing stable
and safe housing to improve the individuals’ quality of life, decrease their risk of recidivism, and
improve public safety. 479 The program’s participants received tailored case management and
supportive services from reentry service providers to address their critical needs (employment,
education, public benefits, substance-abuse counseling). 480 As of May 2017, 108 remained in the
program, and all but a few had avoided additional criminal convictions; nearly half had found or
maintained employment, and the remainder had attended employment workshops or were
receiving training for certifications, attending school, or enrolling in substance-use treatment
programs. 481 The success of the FRPP inspired other PHAs in New York (including the
Schenectady Housing Authority, the Syracuse Housing Authority, and the White Plains Housing
Authority) and across the country (including the Chicago Housing Authority and the Housing
Authority of the City of Los Angeles) to launch similar pilot programs to help reunite families in
public housing. 482 PHAs adopting these types of programs have touted their benefits, which
include decreased administrative duties and costs that accompany a shifted focus on providing
housing for individuals rather than excluding people with criminal records and spending time at
administrative hearings for applicants who were denied housing. 483 PHAs have also reported that
the programs did not increase crime at their properties, and some PHAs report that the programs
helped to reduce recidivism in their communities. 484 A description of a participant’s participation
in the Justice Bridge Housing Program, a similar reentry program in Union County, Pennsylvania,
summarizes the benefits of such programs:
476F

47F

478F

479F

480F

481F

482F

483F

477

Lionel Smith, John Bae, Margaret diZerega, Ryan Shanahan, Jacob Kang-Brown, Ram Subramanian, An
Evaluation of the New York City Housing Authority’s Family Reentry Pilot Program: Final Report to the U.S.
Department of Housing and Urban Development, Vera Institute of Justice, 2017, at 11,
https://www.huduser.gov/portal/sites/default/files/pdf/NYCHAevaluation-Sept-2017-updated.pdf.
478
Ibid.
479
Ibid. at 11-12.
480
Ibid. at 12.
481
Ibid. at 12, 30.
482
Walz and Tran-Leung Statement at 16-17.
483
Ibid.
484
Ibid; see also Diana T. Myers & Assocs., Inc., Justice Bridge Housing Program: A Successful Reentry Program
of the Housing Authority of Union County, Pennsylvania: Replication Toolkit, 2016, at 9,
http://www.unioncountyhousingauthority.org/Documents/JBHP%20Toolkit%20FINAL-PRINT.pdf (reporting that
four years after implementing changes, the housing program’s recidivism rate “was 22%, far below both the county
recidivism rate of 53% and the state recidivism rate of 60%”) [hereinafter Diana T. Myers & Assocs., Inc., Justice
Bridge Housing Program].

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
AMY: “GRATEFUL FOR [THIS] OPPORTUNITY”
Amy’s children were aged 2½ and 1½ when she was accepted into the Justice
Bridge Housing Program (JBHP) in Union County, Pennsylvania, her home county.
Amy had been discharged from prison to a relative’s home, where she and her son
and daughter lived with six other adults and three other children—a situation she
described as “chaos.” The JBHP enabled Amy to move to her own suitable and
affordable rental housing, which brought many benefits to Amy, chiefly a measure
of financial security along with “routine, calmness, and peace.”
Amy obtained employment and saved money for college tuition. She continues her
employment while attending school, majoring in Human Services, where she is
gaining the knowledge and skills to work with abused or addicted women. 485
48F

HUD’s current regulations recognize disparate-impact claims consistent with Inclusive
Communities, wherein a housing policy that does not intentionally discriminate but still
disproportionately harms people of color may be permissible if the policy has a “legally sufficient
justification.” 486 HUD’s standards specify that a plaintiff challenging the policy must show that
the legally sufficient justification could be advanced by another policy with “less discriminatory
effect.” 487 In June 2018, HUD announced its decision to reconsider these standards “to determine
what changes, if any, may be necessary in light of the Inclusive Communities decision.” 488 In its
notice, HUD claimed that it had received “numerous comments” contending that its “burdenshifting framework for analyzing claims of disparate impact under the Fair Housing Act”
conflicted with Inclusive Communities and “created uncertainty for commercial decision-making,
as well as public policymaking.” 489 HUD acknowledged that it had also received comments
supportive of the disparate-impact standards, but said it acted pursuant to a Treasury Department
report recommending reconsideration of the standards, and to executive orders to reform
“outdated, ineffective, or excessively burdensome” regulations. 490 HUD invited public comment
on several questions, including: whether the burdens of proof were clear, appropriate, and
sufficient to ensure that only “artificial, arbitrary, and unnecessary barriers result in disparate
impact liability;” whether the standards “strike the proper balance in encouraging legal action for
legitimate disparate impact cases” with avoiding meritless actions; if the standards should “clarify
485F

486F

487F

48F

489F

485

Diana T. Myers & Assocs., Inc., Justice Bridge Housing Program at 3.
24 C.F.R. § 100.500.
487
Id.
488
Reconsideration of HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard, 83 Fed. Reg.
28,560-01 (proposed June 20, 2018) (to be codified at 24 C.F.R. pt. 100).
489
Id.
490
Id. (citing U.S. Dep’t of Treasury, A Financial System That Creates Economic Opportunities, Asset Management
and Insurance, 2017, https://www.treasury.gov/press-center/press-releases/Documents/A-Financial-System-ThatCreates-Economic-Opportunities-Asset_Management-Insurance.pdf).
486

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
the causality standard for stating a prima facie” disparate-impact claim; if the standards should
include “defenses or safe harbors” to disparate-impact claims; and if HUD should revise the
standards to “add to the clarity, reduce uncertainty, decrease regulatory burden, or otherwise assist
the regulated entities” and public in determining the legality of policies. 491
490F

In response, HUD received more than 500 comments, 492 including from the Attorneys General of
California, the District of Columbia, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota,
New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia,
and Washington—who submitted a joint letter strongly opposing revision of the standards, arguing
that any revision “would reduce clarity and add uncertainty, especially because any revision would
likely fail to rely on the half century of disparate impact case law.”493 The Attorneys General
asserted that HUD’s standards already comply with Inclusive Communities, and pointed out that
enforcement actions “based on disparate impact theories are a critical component of states’ efforts
to combat discrimination and ensure greater equality of opportunity.” 494 The National Fair
Housing Alliance submitted a letter on behalf of over 100 advocacy groups and local agencies
urging HUD not to revise the standards, maintaining that the standards promote “significant
administrative efficiency by creating national uniformity and regulatory certainty for the rental,
real estate, lending, and insurance industries.” 495 By contrast, supporters of revising the standards
included Roger Clegg of the Center for Equal Opportunity, who argued that the current standards
are “misguided as a matter of policy and inherently inconsistent with the constitutional
presumption against race-based decision-making.” 496 As of this writing, HUD has submitted an
Advance Notice of Proposed Rulemaking to the Office of Information and Regulatory Affairs
491F

492F

493F

49F

495F

491

Id. (As examples of defenses or safe harbors, HUD suggested “when another federal statute substantially limits a
defendant’s discretion or another federal statute requires adherence to state statutes.”).
492
See Regulations.gov, “FR-6111-A-01 Reconsideration of HUD’s Implementation of the Fair Housing Act’s
Disparate Impact Standard,”
https://www.regulations.gov/docketBrowser?rpp=50&so=ASC&sb=postedDate&po=0&dct=PS&D=HUD-20180047 (last accessed Nov. 29, 2018).
493
The Attorneys General of North Carolina, California, District of Columbia, Illinois, Iowa, Maine, Maryland,
Massachusetts, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and
Washington, “Comment Regarding the Reconsideration of HUD’s Implementation of the Fair Housing Act’s
Disparate Impact Standard (Docket No. FR-6111-A-01),” Aug. 20, 2018, at 10,
https://cdn.theatlantic.com/assets/media/files/fha_ag_comment_final.pdf.
494
Ibid. at 1.
495
The National Fair Housing Alliance et al., “Re: Reconsideration of HUD’s Implementation of the Fair Housing
Act’s Disparate Impact Standard, Docket No. FR-6111-A-01,” Aug. 20, 2018, at 10,
https://cdn.theatlantic.com/assets/media/files/2018-08-20_nfha_signon_letter_re_hud_disparate_impact_anpr_comment_(final).pdf.
496
Roger Clegg, Center for Equal Opportunity, “Comment on the Department of Housing and Urban Development
(HUD) Proposed Rule: FR-6111-A-01 Reconsideration of HUD’s Implementation of the Fair Housing Act’s
Disparate Impact Standard,” June 20, 2018, https://www.regulations.gov/document?D=HUD-2018-0047-0003.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
regarding HUD’s implementation of the Fair Housing Act’s disparate impact standard, and the
content of the proposed rulemaking was issued on February 1, 2019. 497
496F

Barriers to Private Housing for Individuals with Criminal Records
Formerly incarcerated individuals face financial challenges due to employment-related or public
assistance barriers, or other financial burdens (supervision fees, child support, restitution), and thus
need to find housing that is affordable. 498 Living with family members can provide stability for
formerly incarcerated people with few resources. 499 Approximately two-thirds of formerly
incarcerated individuals rely on family members for housing, but sharing their homes with
formerly incarcerated family can threaten that family’s housing due to restrictions on residents
who have criminal records. 500 For individuals who are legally blocked from living with family or
who lack family support, the private market is often the only alternative.
497F

498F

49F

The private housing market poses its own set of barriers and challenges for formerly incarcerated
individuals. First, private housing can be more expensive than public housing, especially for
people who reenter society without jobs or appreciable income. 501 There is a widespread lack of
affordable housing all across the U.S., and many housing markets—particularly in urban areas—
are increasingly tight, which spurs additional competition. 502 Formerly incarcerated individuals
often lack sufficient funds to cover move-in costs, and face landlords who are unwilling to rent to
individuals with criminal records. 503 Applicants with criminal records compete against applicants
50F

501F

502F

497

On February 1, 2019, HUD released an Advance Notice of Proposed Rulemaking; given the timing of that
announcement, the contents of the proposed rulemaking are not discussed in this report. See Proposed Rule, HUD’s
Implementation of the Fair Housing Act’s Disparate Impact Standard (FR-6111-P-01), Feb. 1, 2019,
https://www.reginfo.gov/public/do/eoDetails?rrid=128817 (last accessed May 6, 2019).
498
Metraux et al., Incarceration and Homelessness, supra note 412 at 9; Christy Visher, Nancy LaVigne, Jeremy
Travis, Returning Home: Understanding the Challenges of Prisoner Reentry, Maryland Pilot Study: Findings from
Baltimore, Urban Institute, 2004, at 54-55, https://www.urban.org/sites/default/files/publication/42841/410974Returning-Home-Understanding-the-Challenges-of-Prisoner-Reentry.PDF. For more discussion of barriers to public
assistance for people with criminal convictions, see “How a Criminal Record Can Affect Access to Public Benefits”
supra notes 222-409.
499
Walz and Tran-Leung Statement at 4; Claire Herbert, Jeffrey Morenoff, David Harding, Liam Purvis, Residential
Instability among The Formerly Incarcerated, National Poverty Center, 2016, at 2-3,
http://www.npc.umich.edu/publications/policy_briefs/brief42/policybrief42.pdf.
500
Walz and Tran-Leung Statement at 3-4; deVuono-powell et al., Who Pays? The True Cost of Incarceration on
Families, supra note 417.
501
Metraux et al., Incarceration and Homelessness, supra note 412 at 9-9; National Low Income Housing Coalition,
The Gap: A Shortage of Affordable Homes, supra note 411 at 2-4.
502
Ibid.
503
Katherine Cortes & Shawn Rogers, Reentry Housing Options: The Policymakers’ Guide, Council of State
Governments Justice Center, 2010, at vii, http://csgjusticecenter.org/wpcontent/uploads/2012/12/Reentry_Housing_Options-1.pdf.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
without criminal records, often to their disadvantage. 504 An estimated 4 out of 5 private landlords
utilize background checks to screen out applicants with criminal records. 505
503F

504F

Private landlords frequently ask for both background and credit checks. Beverly Sharp, Reentry
Initiatives Coordinator for the West Virginia Council of Churches, testified to the Commission’s
West Virginia State Advisory Committee that these checks almost certainly create barriers for
formerly incarcerated individuals, who may not have “been able to establish a credit history while
incarcerated or their credit history was poor prior to their felony conviction and they have not had
time to rebuild it. 506
50F

The stigma of a criminal record also impairs applicants’ ability to obtain housing on the private
market. 507 Studies in various cities including Austin, Baltimore, Dallas, Cleveland, and New York
show that few providers would approve applicants with felony convictions (although landlords
may be more willing to overlook a misdemeanor conviction). 508 Many housing providers
implement blanket policies that restrict access to individuals with criminal records or even arrest
records, which can disproportionately limit options for people of color because they are
overrepresented in the criminal justice system. 509 Additionally, many housing providers are
inconsistent in the enforcement of their policies, and may use a criminal record as a proxy for
race. 510 A recent study conducted by the Equal Rights Center examined the practices of private
District of Columbia-area housing providers when considering both white and black applicants
with similar criminal backgrounds, and found that the potential white tenants experienced
preferential treatment 47 percent of the time; white applicants more often received sympathetic
reactions when disclosing their criminal record and were more often encouraged to apply, despite
their criminal record, than black applicants. 511 Moreover, property agents imposed tougher
506F

507F

508F

509F

510F

504

Metraux et al., Incarceration and Homelessness, supra note 412 at 9-9.
Vallas & Dietrich, One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and
Mobility for People with Criminal Records, supra note 437 at 19.
506
West Virginia State Advisory Committee to the United States Commission on Civil Rights, Public Meeting,
Felony Records: Collateral Consequences for West Virginians, July 19, 2018, Meeting Transcript at 15-16.
507
Walz and Tran-Leung Statement at 7.
508
Ibid; Austin/Travis County Reentry Roundtable, Locked Out: Criminal History Barriers to Affordable Rental
Housing in Austin & Travis County, Texas, 2016, at 4, http://www.reentryroundtable.net/wpcontent/uploads/2013/10/Criminal-Background-White-Paper.final_.pdf; Phillip Garboden & Eva Rosen, “When
Landlords Discriminate,” Talk Poverty, May 17, 2016,
https://talkpoverty.org/2016/05/17/when-landlords-discriminate/.
509
Walz and Tran-Leung Statement at 7; Austin/ Travis County Reentry Roundtable, Locked Out: Criminal History
Barriers to Affordable Rental Housing in Austin & Travis County, Texas, supra note 508 at 4; Garboden & Rosen,
“When Landlords Discriminate,” supra note 508. See also Chapter 1, “Demographics of the Corrections
Population,” supra notes 96-130.
510
Walz and Tran-Leung Statement at 7; Austin/Travis County Reentry Roundtable, Locked Out: Criminal History
Barriers to Affordable Rental Housing in Austin & Travis County, Texas, supra note 508 at 4; Garboden & Rosen,
“When Landlords Discriminate,” supra note 508.
511
Equal Rights Center, Unlocking Discrimination: A DC Area Testing Investigation about Racial Discrimination
and Criminal Records Screening Policies in Housing, 2016, at 20-26, https://equalrightscenter.org/wpcontent/uploads/unlocking-discrimination-web.pdf.
505

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
criminal records screening criteria and sometimes higher fees on black applicants than white
applicants. 512 Furthermore, this study documented that policies like blanket bans on felony
convictions rendered over 4,600 housing units in the Washington, D.C. area essentially unavailable
to individuals with criminal histories, disproportionately limiting housing opportunities for black
applicants. 513
51F

512F

In April 2016, HUD issued guidance for all housing providers when considering applicants with
criminal records. 514 As noted previously, the Fair Housing Act prohibits housing discrimination,
and if a facially neutral business policy has a disparate impact upon a protected class, it may violate
the Act if there is not a “legally sufficient justification” for the policy.515 This guidance explains:
513F

514F

. . . where a policy or practice that restricts access to housing on the basis of criminal
history has a disparate impact on individuals of a particular race, national origin, or
other protected class, such policy or practice is unlawful under the Fair Housing
Act if it is not necessary to serve a substantial, legitimate, nondiscriminatory
interest of the housing provider, or if such interest could be served by another
practice that has a less discriminatory effect. 516
51F

HUD recognized that the substantial, nondiscriminatory interests of the housing provider include
safety interests:
Although the specific interest(s) that underlie a criminal history policy or practice
will no doubt vary from case to case, some landlords and property managers have
asserted the protection of other residents and their property as the reason for such
policies or practices. Ensuring resident safety and protecting property are often
considered to be among the fundamental responsibilities of a housing provider, and
courts may consider such interests to be both substantial and legitimate, assuming
they are the actual reasons for the policy or practice. A housing provider must,
however, be able to prove through reliable evidence that its policy or practice of
making housing decisions based on criminal history actually assists in protecting
resident safety and/or property. Bald assertions based on generalizations or
512

Ibid. at 21-23.
Ibid.
514
U.S Dep’t of Housing and Urban Development, Office of General Counsel Guidance on Application of Fair
Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related
Transactions, 2016, https://www.hud.gov/sites/documents/HUD_OGCGUIDAPPFHASTANDCR.PDF.
515
Ibid. at 2 (citing Inclusive Communities Project, Inc., 135 S. Ct. at 2523, 2525 (holding that “disparate-impact
claims are cognizable under the Fair Housing Act” but “housing authorities and private developers [must] be
allowed to maintain a policy if they can prove it is necessary to achieve a valid interest.”)); see also 42 U.S. § 3601.
516
U.S Dep’t of Housing and Urban Development, Office of General Counsel Guidance on Application of Fair
Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related
Transactions, supra note 514 at 2; 24 C.F.R. § 100.500.
513

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
stereotypes that any individual with an arrest or conviction record poses a greater
risk than any individual without such a record are not sufficient to satisfy this
burden. 517
516F

Therefore, the HUD guidance clarified that among other policy choices, denying applicants
housing based on arrest records that did not result in conviction is not a sufficient justification, as
there is insufficient proof that the denial will help protect the safety of other residents or the
property. 518 Furthermore, HUD warned that a housing provider who imposes a blanket ban on
individuals with criminal records has not met the burden of showing that the policy is “necessary
to achieve a substantial, legitimate, nondiscriminatory interest.” 519 Research suggests that because
this guidance is relatively new, housing providers are still in the process of updating their policies
and procedures, and the effects (if any) of the updated guidance on providers’ practices are not yet
known. 520
517F

518F

519F

In 2017, Seattle’s City Council formally recognized that “racial inequities in the criminal justice
system are compounded by racial bias in the rental application process” and that “there is no
sociological research establishing a relationship between a criminal record and an unsuccessful
tenancy.” 521 Accordingly, the City Council enacted the Fair Chance Housing Ordinance, which
prohibits landlords from: advertising or implementing policies that categorically reject applicants
with an arrest or conviction record; asking about applicants’ criminal history; and denying tenancy
based on a criminal record or background check, unless a “legitimate business reason” exists.522
A legitimate business reason exists when the policy is necessary to advance a “substantial,
legitimate, nondiscriminatory interest,” and a nexus between the policy and the safety of residents
520F

521F

517

U.S Dep’t of Housing and Urban Development, Office of General Counsel Guidance on Application of Fair
Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related
Transactions, supra note 514 at 4-5 (citing Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729, 742 (8th
Cir. 2005) (noting that “in the abstract, a reduction in the concentration of low income housing is a legitimate goal
that has been recognized by Congress” but finding that “the Housing Authority had not shown a need for
deconcentration in this instance, and in fact, had falsely represented the density [of low-income housing] at the
location in question in an attempt to do so.”)).
518
Ibid. at 5 (citing United States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009) (holding that “a bare arrest record—
without more—does not justify an assumption that a defendant has committed other crimes and it therefore can not
support increasing his/her sentence in the absence of adequate proof of criminal activity.”); United States v. ZapeteGarcia, 447 F.3d 57, 60 (1st Cir. 2006) (concluding that “a mere arrest, especially a lone arrest, is not evidence that
the person arrested actually committed any criminal conduct.”)).
519
Ibid. at 6; see also Green v. Missouri Pacific R.R., 523 F.2d 1290, 1298 (8th Cir. 1975) (upholding the finding
that a blanket ban was a violation of Title VII and stating that the court “cannot conceive of any business necessity
that would automatically place every individual convicted of any offense, except a minor traffic offense, in the
permanent ranks of the unemployed.”).
520
Walter et al., One Strike to Second Chances: Using Criminal Backgrounds in Admission Decisions for Assisted
Housing, supra note 469 at 6.
521
Seattle, Wash., Ordinance 119015 (Aug. 23, 2017), at 2,
http://seattle.legistar.com/View.ashx?M=F&ID=5387389&GUID=6AA5DDAE-8BAE-4444-8C1762C2B3533CA3; see also SEATTLE, WASH., MUN. CODE §§ 14.09.005-14.09.120.
522
Id. at § 14.09.025.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
is evident based on several factors, including the nature, severity, and number of convictions, the
time elapsed since the conviction, and other relevant circumstances. 523
52F

In order to mitigate the barriers presented in both public and private housing for formerly
incarcerated individuals, several advocates testified to the Commission’s West Virginia State
Advisory Committee about the specific value of transitional housing, sometimes referred to as
“work release centers,” “community release centers” or “halfway houses.” 524 One advocate
testified that such residences “allow individuals to transition slowly into the community, not
immediately walk out of an institution and have to find housing immediately,” giving them an
opportunity to work with community organizations who can assist with placement. 525
523F

524F

How a Criminal Record Can Affect Access to Public Benefits
Individuals reentering society from incarceration often lack the support needed to attain selfsufficiency. 526 With barriers to finding gainful employment and housing, formerly incarcerated
individuals often need temporary assistance until they can secure jobs to meet their basic needs of
paying for rent, food, clothing, and other necessities. 527
52F

526F

People of color with criminal records are disproportionately denied public assistance due to the
racially biased enforcement of drug policies, which disproportionately penalizes people of color
compared to white people. 528 As a group, Native Americans are particularly deprived of resources
necessary for rehabilitation, such as substance abuse and mental health counseling, job training,
and other services needed to reintegrate into their tribal communities. 529 Lack of economic
resources and infrastructure on Native American lands often makes many of these services difficult
to access. 530 Additionally, people of color—particularly black people—are at higher risk of having
their families separated, as about 1 in 9 black children has a parent in prison or jail, compared to 1
in 28 children overall with an incarcerated parent. 531
527F

528F

529F

530F

523

Id. at § 14.09.010.
West Virginia State Advisory Committee to the United States Commission on Civil Rights, Public Meeting,
Felony Records: Collateral Consequences for West Virginians, July 19, 2018, Meeting Transcript at 17-34, 170,
182.
525
Ibid. at 33
526
Hirsch et al., Every Door Closed: Barriers Facing Parents With Criminal Records, supra note 36 at 27.
527
Ibid.
528
Burch Statement at 4-5; Pager et al., “Sequencing Disadvantage: Barriers to Employment Facing Young Black and
White Men with Criminal Records,” supra note 231; Hirsch et al., Every Door Closed: Barriers Facing Parents With
Criminal Records, supra note 36 at 1-91. See also Chapter 1, “Demographics of the Corrections Population,” supra
notes 96-130.
529
NCAI Statement at 2. See generally U.S. Commission on Civil Rights, Broken Promises: Continuing Federal
Funding Shortfall for Native Americans, 2018, https://www.usccr.gov/pubs/2018/12-20-Broken-Promises.pdf.
530
NCAI Statement at 2.
531
Bruce Western & Becky Pettit, Collateral Costs: Incarceration’s Effect on Economic Mobility, Pew Charitable
Trusts, 2010, at 18, http://www.pewtrusts.org/~/media/legacy/uploadedfiles/pcs_assets/2010/collateralcosts1pdf.pdf.
524

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
Many formerly incarcerated individuals have disabilities that prevent them from working, and
thus require supplementary income to survive. 532 Prisons often exclude or fail to accommodate
people with physical and mental disabilities from reentry programming, which then blocks
people with disabilities from locating information and services for disability-related benefits,
educational/vocational programs, employment resources, supportive and/or accessible housing,
health care, mental health services, drug treatment programs, or other supportive services. 533
Furthermore, the intersectionality among disability and race/ethnicity, sex, sexual orientation,
gender identity, and class affect “many incarcerated and formerly incarcerated individuals [who]
experience overlapping or intersecting social identities—and related systems of oppression and
discrimination.” 534 Taking into account the disability of a formerly incarcerated individual and
barriers to public benefits and other fundamental needs that accompany a criminal conviction can
create seemingly “insurmountable obstacles” to rebuilding a person’s life. 535
531F

532F

53F

534F

At present, certain laws prohibit states from providing public assistance to individuals with certain
types of felony convictions. 536 The federal Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 (PRWORA) prohibits states from providing TANF financial assistance
and SNAP nutrition benefits to “fleeing” felons avoiding retribution from committing a felony or
violating the terms of their probation or parole, and to individuals who have committed welfare
fraud by applying for benefits in multiple states. 537 The law also bans individuals convicted of
felonies for possession, use, or distribution of illegal drugs before August 22, 1996 (for which
some states impose drug testing to determine eligibility) from receiving TANF or SNAP benefits,
although states may opt out of the ban or modify the time period for which the ban remains in
place. 538 States must affirmatively enact legislation to opt out of the bans on TANF and SNAP
benefits, and some states have chosen to keep TANF bans intact despite lifting restrictions on
SNAP bans. 539
53F

536F

537F

538F

532

Hirsch et al., Every Door Closed: Barriers Facing Parents With Criminal Records, supra note 36 at 2, 27.
Joint Statement, Disability Advocates at 7-14.
534
Ibid. at 5.
535
Elliot Oberholtzer, “Police, Courts, Jails, and Prisons All Fail Disabled People,” Prison Policy Initiative, August
23, 2017, https://www.prisonpolicy.org/blog/2017/08/23/disability/.
536
Maggie McCarty, Gene Falk, Randy Alison Aussenberg, David H. Carpenter, Drug Testing and Crime-Related
Restrictions in TANF, SNAP, and Housing Assistance, Congressional Research Service, 2016, at 8,
https://fas.org/sgp/crs/misc/R42394.pdf.
537
Ibid. at 10; see also 42 U.S.C. § 608 (detailing prohibitions in the TANF program); 7 U.S.C. § 2015 (detailing
prohibitions in SNAP); Hirsch et al., Every Door Closed: Barriers Facing Parents With Criminal Records, supra
note 36 at 29.
538
21 U.S.C. § 862a; see also McCarty et al., Drug Testing and Crime-Related Restrictions in TANF, SNAP, and
Housing Assistance, supra note 536 at 8.
539
21 U.S.C. § 862a.
533

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
As of 2016, 13 states and the District of Columbia had eliminated all disqualifications to TANF
financial assistance benefits based on drug felony convictions, 27 states modified their
disqualification standards, and 10 states maintained a lifetime ban. 540
539F

As of 2017, 23 states and the District of Columbia eliminated all disqualifications to SNAP food
assistance based on drug felony convictions, 23 states enforced modified disqualification bans,
and 4 states maintained a lifetime ban. 541 In 2018, Indiana amended its statute to elect out of the
lifetime ban on SNAP benefits for people with felony drug convictions; effective 2020, the state
will allow SNAP benefits for individuals with drug felony convictions if they have complied with
probation, parole, or another court-ordered “postconviction monitoring program.” 542 In February
2019, the West Virginia legislature passed and sent to the Governor a bill amending its statute to
exempt West Virginians from the lifetime ban on SNAP benefits for felony drug convictions
“unless the offense of conviction has as an element thereof misuse of supplemental nutrition
assistance program benefits, loss of life, or the causing of physical injury.” 543 Lida Shepherd of
the American Friends Service Committee’s West Virginia Economic Justice Project testified to
the Commission’s West Virginia State Advisory Committee that the percentage of people who rely
on SNAP benefits in West Virginia is higher than the general population; one in five West
Virginians rely on SNAP. 544 As of this writing, the remaining states with lifetime SNAP bans for
people with felony drug convictions are Mississippi and South Carolina. 545
540F

541F

542F

543F

54F

The rationale for disqualifying people with felony drug convictions stems from judgments and
concerns by policymakers about whether such recipients are “worthy” of public assistance. 546 This
rationale judges individuals’ worthiness based not only on their economic need, but also on their
moral character. 547 At the height of the “War on Drugs” in the 1980s, policymakers struggled with
54F

546F

540

McCarty et al., Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance, supra
note 536 at 9. As of this writing, the states that enforced lifetime TANF bans were: Arizona, Delaware, Georgia,
Mississippi, Missouri, Nebraska, South Carolina, South Dakota, Texas, Virginia.
541
U.S. Dep’t of Agriculture, State Options Report: Supplemental Nutrition Assistance Program, 2018, at 21,
https://fns-prod.azureedge.net/sites/default/files/snap/14-State-Options.pdf.
542
Indiana Pub. L. 209 (2018); H.B. 1317, 120th Gen. Assemb. (Ind. 2018),
https://legiscan.com/IN/text/HB1317/id/1760045/Indiana-2018-HB1317-Enrolled.pdf.
543
West Virginia H.B. 2459,
http://www.wvlegislature.gov/Bill_Status/bills_history.cfm?year=2019&sessiontype=RS&input=2459.
544
WV SAC briefing transcript 203
545
U.S. Dep’t of Agriculture, State Options Report: Supplemental Nutrition Assistance Program, supra note 539 at
21; see also Center on Budget and Policy Priorities, How SNAP Can Better Serve the Formerly Incarcerated, 2018,
at 12, https://www.cbpp.org/sites/default/files/atoms/files/3-6-18fa.pdf; Molly Born, “In Some States, Drug Felons
Still Face Lifetime Ban On SNAP Benefits,” NPR, June 20, 2018,
https://www.npr.org/sections/thesalt/2018/06/20/621391895/in-some-states-drug-felons-still-face-lifetime-ban-onsnap-benefits.
546
McCarty et al., Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance, supra
note 536 at 1.
547
Ibid. at 1-2. In the 1930s, many states historically adopted “suitable home” rules that gave administrators
discretion to deny benefits to individuals or households that did not exhibit what they considered proof of good
“moral character.” Ibid. In King v. Smith, the Supreme Court recounted how opponents of “suitable home” rules

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
how to deal with crime and drug use, and focused on punishing drug use as a crime rather than
treating it as a public health problem. 548 In the late 1980s, specific drug-related sanctions were
added to certain federal assistance programs, and supporters of these policies believed that the
provisions would deter drug use. 549 The PRWORA’s lifetime bans on SNAP and TANF benefits
for individuals with drug convictions were intended to send a “tough on crime” message to the
public. 550 Senator Phil Gramm (R-TX), the sponsor of the amendment implementing the bans,
argued, “if we are serious about our drug laws, we ought not to give people welfare benefits who
are violating the Nation’s drug laws.” 551
547F

548F

549F

50F

There are additional collateral consequences attached to Social Security, Supplemental Security
Income (SSI) benefits, Social Security Disability Insurance (SSDI), and Medicaid. 552 During
incarceration, inmates are ineligible for SSI or SSDI benefits, so their benefits are suspended
during that period. 553 For individuals who received SSDI and were confined for less than one year,
benefits are reinstated the month after their release. 554 If an individual has been incarcerated for
more than 12 consecutive months, SSI benefits are terminated, and the individual must reapply for
those benefits. 555 To reapply, individuals must provide official documents proving their release
from prison or jail.556 As advocates have testified, the reapplication process can be cumbersome,
requiring detailed documentation from prison administrators whose willingness to assist with the
bureaucratic process varies. 557 Some prisons and jails offer pre-release programs that help
incarcerated individuals navigate the reapplication process; many advocacy groups consider such
51F

52F

53F

54F

56F

alleged that such policies were racially discriminatory. See 392 U.S. 309, 321-22 (1968) (“Critics argued, for
example, that such disqualification provisions undermined a mother’s confidence and authority, thereby promoting
continued dependency; that they forced destitute mothers into increased immorality as a means of earning money;
that they were habitually used to disguise systematic racial discrimination; and that they senselessly punished
impoverished children on the basis of their mothers’ behavior, while inconsistently permitting them to remain in the
allegedly unsuitable homes.”).
548
McCarty et al., Drug Testing and Crime-Related Restrictions in TANF, SNAP, and Housing Assistance, supra
note 536 at 2.
549
Ibid. at 2-3; 134 Cong. Rec. H7259-02, 1988 WL 175612 (Sept. 8, 1988) (statement of Representative McCollum
urging support of federal policies denying public benefits to people convicted of drug offenses).
550
Marc Mauer & Virginia McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare
Benefits, The Sentencing Project, 2015, at 1, https://sentencingproject.org/wp-content/uploads/2015/12/A-Lifetimeof-Punishment.pdf.
551
142 Cong. Rec. S8493, S8498 (July 23, 1996).
552
Social Security Administration, “What Prisoners Need to Know,” at 1-4, https://www.ssa.gov/pubs/EN-0510133.pdf; Joint Statement, Disability Advocates at 9-10.
553
20 C.F.R. § 404.468; Ibid. at 1-3.
554
Ibid.
555
Ibid.
556
Ibid. at 3.
557
Joint Statement, Disability Advocates at 10-11; Hirsch et al., Every Door Closed: Barriers Facing Parents With
Criminal Records, supra note 36 at 36 n.43 (stating that the “process [of reapplying for Social Security benefits] is
made more difficult by the refusal of some prison medical care providers to complete disability evaluation forms.”).

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
reentry assistance a best practice for ensuring that formerly incarcerated individuals receive
benefits immediately post-release. 558
57F

As noted above, federal law prohibits incarcerated individuals from receiving Medicaid benefits
during confinement. 559 But Medicaid-eligible inmates admitted to a hospital for more than 24
hours may receive Medicaid coverage during that hospital stay. 560 Some states have opted to
suspend, rather than terminate, Medicaid enrollment during the incarceration period, so that
coverage reactivates automatically post-release. 561 By suspending instead of ending coverage,
states save the time and costs of reenrolling people who are reentering society and ensure that
formerly incarcerated individuals continue to receive the care they need. 562
58F

59F

560F

561F

The Disproportionate Impact of Lifetime Drug Bans for Public Benefits
A study of women with drug convictions in Pennsylvania noted that many women developed
substance abuse issues early in their lives because of their difficult life circumstances—such as
surviving and fleeing sexual or physical abuse, lacking access to education and job-market skills,
resorting to homelessness and prostitution, and suffering physical and mental health problems
related to drug use. 563 In federal prisons, 56 percent of women are incarcerated for drug offenses,
compared to 47 percent of men; in state prisons, 25 percent of women are incarcerated for drug
offenses, compared to only 14 percent of men. 564 With a criminal record, these women will face
denial of welfare benefits and difficulties attaining self-sufficiency to provide for themselves and
their families. 565 On average, women also earn less money than men for the same amount of
work. 566
562F

563F

564F

56F

558

Hirsch et al., Every Door Closed: Barriers Facing Parents With Criminal Records, supra note 36 at 36-37. Joint
Statement, Disability Advocates at 10-11.
559
42 U.S.C. § 1396d(a)(30)(A); 42 C.F.R. § 435.1009.
560
42 C.F.R. § 435.1010; see also U.S. Government Accountability Office, Medicaid: Information on Inmate
Eligibility and Federal Costs for Allowable Services, 2014, at 1, https://www.gao.gov/assets/670/665552.pdf
(explaining that inmates admitted to a medical institution for at least 24 hours for inpatient services become eligible
for Medicaid during the stay).
561
U.S. Government Accountability Office, Medicaid: Information on Inmate Eligibility and Federal Costs for
Allowable Services, supra note 560 at 6-7.
562
Ibid. See also Families USA, “Why States Should Suspend Medicaid for People During Incarceration,” 2016,
https://familiesusa.org/blog/2016/03/why-states-should-suspend-medicaid-people-during-incarceration (last
accessed Dec. 3, 2018).
563
Amy E. Hirsch, “Some Days Are Harder than Hard”: Welfare Reform and Women with Drug Convictions in
Pennsylvania, Center for Law and Social Policy, 1999, at 5-35,
http://www.clasp.org/sites/default/files/public/resources-and-publications/files/0167.pdf.
564
Carson, Prisoners in 2016, supra note 1 at 13.
565
Hirsch, “Some Days Are Harder than Hard”: Welfare Reform and Women with Drug Convictions in
Pennsylvania, supra note 563 at 35-41.
566
U.S. Dep’t of Labor, Bureau of Labor Statistics, The Economics Daily: Women’s and Men’s Earnings by Age in
2016, supra note 254 (finding that among full-time wage and salary workers ages 16 and older, median weekly
earnings were $749 for women and $915 for men).

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS

The lifetime bans on TANF and SNAP benefits often disproportionately impact women, children,
and people of color. 567 The number of women in prison from 1980 to 2010 rose by 646 percent,
compared to a 419 percent increase for men, 568 and the number of female prisoners has continued
to climb since then. 569 Moreover, in 2016, the incarceration rate for black women was almost
double that for white women, 570 and the incarceration rate for Latina women was 1.2 times the rate
for white women in 2014. 571 The American Civil Liberties Union reports that women of color are
arrested and imprisoned for drug crimes at far higher rates than white women. 572 An estimated
180,000 women were affected by the TANF ban from 1996-2011 due to felony drug convictions
or other convictions that would trigger the ban. 573 Approximately 85 percent of adult TANF
recipients are women, and most TANF recipients are people of color (27.6 percent white, 29.1
percent black, and 36.9 percent Latino). 574 Twice as many women (23 percent) as men (12 percent)
have received SNAP benefits at any time in their life, and women of color are much likelier to
have received SNAP benefits (for example, 39 percent of black women and 31 percent of Latina
women versus 19 percent of white women). 575 In 2015, over half of SNAP’s non-elderly adult
recipients were women (62 percent), and just under half of SNAP participants were children (44
percent). 576 By extension, the bans on public benefits impact children being cared for by a parent
who is subject to the ban. 577 Under the law, parents with felony drug convictions can collect SNAP
56F

567F

568F

569F

570F

571F

572F

573F

574F

57F

576F

567

Mauer & McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits, supra
note 550 at 4; Amy E. Hirsch, Written Statement for the Collateral Consequences: The Crossroads of Punishment,
Redemption, and the Effects on Communities Briefing before the U.S Commission on Civil Rights, May 19, 2017, at
5 [hereinafter Hirsch Statement].
568
Mauer & McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits, supra
note 550 at 4.
569
Carson, Prisoners in 2016, supra note 1 at 1, 3.
570
Ibid. at 13.
571
E. Ann Carson, Prisoners in 2014, U.S. Dep’t of Justice, Bureau of Justice Statistics, 2015, at 15,
https://www.bjs.gov/content/pub/pdf/p14.pdf; The Sentencing Project, Fact Sheet: Incarcerated Women and Girls,
2015, at 2, http://www.sentencingproject.org/wp-content/uploads/2016/02/Incarcerated-Women-and-Girls.pdf.
572
American Civil Liberties Union, “Words From Prison: Drug Policy, Race and Women’s Incarceration,”
https://www.aclu.org/other/words-prison-drug-policy-race-and-womens-incarceration (last accessed Dec. 3, 2018).
573
Mauer & McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits, supra
note 550 at 3.
574
U.S. Dep’t of Health and Human Services, Office of Family Assistance, Characteristics and Financial
Circumstances of TANF Recipients: Fiscal Year 2016, supra note 159 at Tables 17, 18 (showing that among 2016
adults TANF recipients, 94,967 were men and 542,506 were women) and Table 10 (showing TANF recipients by
race and ethnicity).
575
Rich Morin, “The Politics and Demographics of Food Stamp Recipients,” Pew Research Center, July 12, 2013,
http://www.pewresearch.org/fact-tank/2013/07/12/the-politics-and-demographics-of-food-stamp-recipients/; Hirsch
Statement at 5.
576
U.S. Dep’t of Agriculture, Characteristics of Supplemental Nutrition Assistance Households: Fiscal Year 2015,
supra note 160 at 21.
577
Mauer & McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits, supra
note 550 at 4-5.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
benefits only on behalf of their child, and thus receive far less assistance than parents who were
never convicted. 578
57F

In her testimony before the Commission in 2017, Amy Hirsch explained how policymakers may
not have considered how the lifetime ban for drug convictions could so severely impact women
and families, and how much of a difference these benefits could make in a person’s life:
When you look at TANF, over 90 percent of the adults who get TANF are women.
In order to get TANF, you have to either be pregnant or the custodial parent or other
close relative of minor kids . . . And, what you get with those benefits is minuscule
. . . [t]he maximum grant [in Pennsylvania] for a mother and child is $316 a month,
and there are 21 states that are less generous than Pennsylvania. But, the difference
between having that $316 and having nothing, is a world. I mean, it means that you
may be able to double up with family or friends because you have a little something
you can bring to the table. It means that, if you’re eligible for transitional housing,
you can get it because you have to have some income to get in the door. It’s just
incredibly huge, the impact of that miserable pittance. The response I would make
and the conversation I’ve had with lots of very conservative folks is that [the ban]
had unintended counterproductive consequences. 579
578F

Hirsch testified that the exclusion of women with drug convictions from eligibility for TANF
benefits “absolutely” communicates government animus about which women are eligible and
which women are not. 580
579F

Critics of these lifetime bans argue that they are counterproductive to safe reentry. 581 Welfare
benefits allow a person to meet basic survival needs while searching for employment or housing;
without public benefits, individuals with criminal records may be more likely to turn to criminal
activity to provide for themselves and their families. 582 One study examined the effects of denying
SNAP benefits to individuals with drug convictions and found the denial increased recidivism
among those individuals. 583 For individuals banned from receiving benefits, another study reported
580F

581F

582F

578

21 U.S.C. § 862a(a)-(b); see also Marina Golan-Vilella, “Why SNAP Matters for Formerly Incarcerated People,”
Friends Committee on National Legislation, June 26, 2018, https://www.fcnl.org/updates/why-snap-matters-forformerly-incarcerated-people-1526.
579
Briefing Transcript at 164 (statement of Amy Hirsch).
580
Ibid. at 166.
581
Jeremy Haile, “How the Felony Drug Ban Keeps Thousands of Americans Hungry,” Talk Poverty, March 21,
2017, https://talkpoverty.org/2016/03/21/felony-drug-ban-keeps-thousands-hungry/.
582
Ibid.; CLASP Statement at 3.
583
Cody Tuttle, “Snapping Back: Food Stamps Bans and Criminal Recidivism,” SSRN, 2018, at 26,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2845435.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
an elevated risk of food insecurity and other troubling public health implications. 584 In fact, the
level of food insecurity reported in this study among individuals upon reentry “mirror[ed] the
magnitude of food insecurity in developing countries.” 585 In addition, the bans can prevent
individuals from obtaining mental health or substance abuse treatment, including residential
treatment programs that rely on funds from public assistance to cover room and board costs. 586
583F

584F

58F

A 2018 University of Maryland researcher’s study examined the effects of the SNAP ban on people
with felony drug convictions, and found that these individuals were likelier to recidivate for
offenses based on “a monetary motive,” like theft or drug distribution, instead of violent crimes. 587
The study illustrated that the desperation driving individuals who are denied public assistance
based on their criminal records may explain recidivism; without resources, many individuals resort
to criminal activity as a stopgap. 588 Similarly, other studies have found that the first offense
resulting in conviction for many women is often a low-level drug crime, which women frequently
commit because they are forced to rely on men financially to survive.589 In a report collecting the
stories of incarcerated women, one woman quit her job because of sexual harassment and threats
and could not find a job to care for her grandmother and asthmatic son, so eventually resorted to
working as a courier for a drug dealer. 590 After her arrest and conviction, she was sentenced to 20
years in prison. 591 Another woman reported that she resumed criminal activity after her release
from prison for a drug offense because she was blocked from receiving public assistance and
denied numerous jobs; she was subsequently charged with parole revocation and returned to
prison, where she attempted suicide. 592
586F

587F

58F

589F

590F

591F

584

Emily A. Wang, Gefei A. Zhu, Linda Evans, Amy Carroll-Scott, Rani Desai, Lynn E. Fiellin, “A Pilot Study
Examining Food Insecurity and HIV Risk Behaviors Among Individuals Recently Released from Prison,” AIDS
Educ Prev, vol. 25, no. 2 (2013), at 4,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3733343/pdf/nihms469405.pdf; see also Haile, “How the Felony
Drug Ban Keeps Thousands of Americans Hungry,” supra note 581; Jeremy Haile, “Thousands of Americans Are
Hungry Because of This One Law,” The Nation, March 23, 2016, https://www.thenation.com/article/thousands-ofamericans-are-hungry-because-of-this-one-law/.
585
Wang et al., “A Pilot Study Examining Food Insecurity and HIV Risk Behaviors Among Individuals Recently
Released from Prison,” supra note 584 at 5.
586
Mauer & McCalmont, A Lifetime of Punishment: The Impact of the Felony Drug Ban on Welfare Benefits, supra
note 550 at 8.
587
Tuttle, “Snapping Back: Food Stamps Bans and Criminal Recidivism,” supra note 578 at 3, 20, 26. The author
studied “the effect of the SNAP ban on probability of financially motivated recidivism and probability of nonfinancially motivated recidivism” and found that “the effect is completely driven by recidivism for financially
motivated crimes.” Ibid. at 20. The author defined “financially motivated recidivism” as “a return to prison” for
property crimes and drug distribution offenses among formerly incarcerated people. Ibid. at 2-3.
588
Ibid.
589
Shimica Gaskins, “Women of Circumstance”—the Effects of Mandatory Minimum Sentencing on Women
Minimally Involved in Drug Crimes, 41 AM. CRIM. L. REV. 1533, 1533-34 (2004).
590
American Civil Liberties Union, “Words From Prison: Drug Policy, Race and Women’s Incarceration,” supra
note 567.
591
Ibid.
592
American Civil Liberties Union, “Words from Prison: The Collateral Consequences of Incarceration,”
https://www.aclu.org/node/23317 (last accessed Feb. 11, 2019).

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
In states that have opted out of the bans on public benefits, pre-enrollment in benefits before release
from prison or jail reduces gaps in coverage and helps secure access to the resources women need
to survive upon release. 593 The availability of immediate coverage post-release also enables
women to participate in employment and training programs and lowers their likelihood of
recidivism. 594
592F

593F

Barriers to Financial Aid for Higher Education
Federal law prohibits a person who was convicted of certain drug offenses “during a period of
enrollment for which” the person was receiving federal aid from obtaining federal student grants,
loans, or work assistance for higher education. 595 The duration of ineligibility for financial aid
varies depending on whether the person has committed a first, second, or third offense. 596 For
people with drug-related criminal convictions, the obstacles to obtaining a share of the alreadyscarce supply of financial aid for postsecondary education are significant.
594F

59F

Moreover, the federal restrictions on financial aid for people with drug-related convictions
disproportionately impact people of color. 597 Students of color are not only more likely to be
arrested, convicted, and/or incarcerated than white students, they are also more likely to need
federal financial aid to attend college. 598 Combined with income inequality, legal barriers to
financial aid can frustrate the ability of people of color to attend college—even as research has
repeatedly proven that postsecondary education boosts employment and earnings. 599
596F

597F

598F

A postsecondary education can be critical to finding a job with a sustainable wage. 600 Research
confirms that people with a college degree are more likely to be employed and earn higher
incomes, and are less likely to rely on public assistance programs.601 Both the Obama and Trump
59F

60F

593

CLASP Statement at 3.
Ibid.
595
20 U.S.C. § 1091(r)(1).
596
20 U.S.C. § 1091(r)(2).
597
See Chapter 1, “Demographics of the Corrections Population,” supra notes 96-130.
598
Wheelock & Uggen, Race, Poverty and Punishment: The Impact Of Criminal Sanctions On Racial, Ethnic, and
Socioeconomic Inequality, supra note 166 at 21.
599
See Chapter 1, “Demographics of the Corrections Population,” supra notes 96-130; The College Board, Trends in
College Pricing 2018, 2018, at 3, https://trends.collegeboard.org/sites/default/files/2018-trends-in-collegepricing.pdf (finding that, after adjusting for inflation, in “the public two-year and private nonprofit four-year sectors,
published [college tuition] prices are more than twice as high in 2018-19 as they were in 1988-89,” and the “average
in-state tuition and fee price in the public four-year sector is about three times as high in inflation-adjusted dollars as
it was in 1988-89.”); U.S. Dep’t of Education, Beyond the Box: Increasing Access to Higher Education for JusticeInvolved Individuals, supra note 168 at 1.
600
U.S. Dep’t of Education, Beyond the Box: Increasing Access to Higher Education for Justice-Involved
Individuals, supra note 168 at 1.
601
Jennifer Ma, Matea Pender, Meredith Welch, Education Pays 2016: The Benefits of Higher Education for
Individuals and Society, The College Board, 2016, at 3-4,
https://trends.collegeboard.org/sites/default/files/education-pays-2016-full-report.pdf. Research has also confirmed
that the ability to earn a college degree in prison would expand post-release job opportunities for people once they
594

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
Administrations have sought to broaden opportunities for incarcerated students while the federal
ban on Pell Grants for people in prison remains in place. In 2015, the Obama Administration
launched the Second Chance Pell program, which partners colleges and universities with penal
institutions to allow eligible incarcerated students to receive Pell Grants and pursue a
postsecondary education. The Trump Administration has extended this program and is now
determining how to evaluate the results of the program, which reaches 10,000 students across 65
schools. 602
601F

Because of the steep cost of higher education in the United States,603 financial aid is often pivotal
to a student’s ability to attend and complete college. 604 But as the price of postsecondary tuition
has increased, 605 federal financial aid has generally decreased—thus making a college education
even more cost-prohibitive for many prospective students. 606 For the seventh consecutive year,
federal loans per full-time undergraduate student declined in 2017-18. 607 Persistent income
inequality in the United States exacerbates the struggle of lower-income individuals to attain a
602F

603F

604F

605F

60F

are released from prison. See Vera Institute of Justice, Investing in Futures: Economic and Fiscal Benefits of
Postsecondary Education in Prison, supra note 263 at 21, 23, https://storage.googleapis.com/vera-webassets/downloads/Publications/investing-in-futures-education-in-prison/legacy_downloads/investing-in-futures.pdf.
But the federal ban on Pell Grants as financial aid for incarcerated people has restricted this opportunity. See 20
U.S.C. § 1070a(b)(6) (prohibiting “any individual who is incarcerated in any Federal or State penal institution” from
receiving a Pell grant). According to the Vera Institute, restoring Pell grant funding for incarcerated individuals
“would increase state employment rates of formerly incarcerated workers who participated in a postsecondary
program by 4.7 percentage points, or nearly 10 percent.” Vera Institute of Justice, Investing in Futures: Economic
and Fiscal Benefits of Postsecondary Education in Prison supra note 263 at 23. For more discussion of how
education programs in the correctional setting could benefit formerly incarcerated individuals, see supra notes 25763.
602
See Andrew Kreighbaum, “Building Momentum Behind Prison Education,” Inside HigherEd, Aug. 29, 2018
https://www.insidehighered.com/news/2018/08/29/trump-administrations-renewed-interest-prison-education; Vera
Institute of Justice, Statement from Vera on U.S. Department of Education's Decision to Renew Second Chance Pell,
February 14, 2019, https://www.vera.org/newsroom/press-releases/statement-from-vera-on-u-s-department-ofeducations-decision-to-renew-second-chance-pell.
603
See Organization for Economic Cooperation and Development (OECD), Education at a Glance 2018, 2018, at
246, 254 (revealing that the United States spends more money on postsecondary education than any other OECD
country except Luxumbourg, which provides mostly government-subsidized education); see also Amanda Ripley,
“Why Is College in America So Expensive? The outrageous price of a U.S. degree is unique in the world,” Atlantic,
Sept. 11, 2018, https://www.theatlantic.com/education/archive/2018/09/why-is-college-so-expensive-inamerica/569884/.
604
The College Board, Trends in Student Aid 2018, 2018, at 7,
https://trends.collegeboard.org/sites/default/files/2018-trends-in-student-aid.pdf (noting that federal grants “and tax
benefits lower the overall price of education for students and families, making the net price of college less than the
published price” and “loans do not lower the price, but they do make it possible to spread payments out over time.”);
see also Rick Seltzer, “Net Price Keeps Creeping Up,” Inside Higher Ed, Oct. 25, 2017,
https://www.insidehighered.com/news/2017/10/25/tuition-and-fees-still-rising-faster-aid-college-board-report-shows
(reporting that high tuition costs “drive questions about the affordability of higher education for many families”).
605
The College Board, Trends in College Pricing 2018, supra note 599 at 29.
606
The College Board, Trends in Student Aid 2018, supra note 604 at 10. See also Seltzer, “Net Price Keeps
Creeping Up,” supra note 604 (pointing out that the “federal share of grant aid topped out at 44 percent in 2010-11
and has since dropped to 32 percent in 2016-17.”).
607
The College Board, Trends in Student Aid 2018, supra note 604 at 10.

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
college degree; from 1987 to 2017, family income inequality mushroomed as the incomes of
higher-earning families grew fastest. 608 In 2017, the average income for the highest-earning 20
percent of families was more than triple that of the middle 20 percent ($245,040 versus
$75,840). 609 By contrast, in 1987, the average income of the top 20 percent of earners was just 2.6
times higher than the middle 20 percent ($167,390 versus $64,000). 610 The income gap is
particularly pronounced for people of color; in 2017, the median incomes for black and Latino
families were 59 percent and 62 percent, respectively, of the median income for white families.611
607F

608F

609F

610F

According to a 2010 study, 66 percent of surveyed postsecondary institutions collected criminal
history information from applicants. 612 On its website, the U.S. Department of Education advises
college applicants to submit the federal financial aid form regardless of their ineligibility for
federal aid due to drug-related convictions, because “most schools and states use [the] information
to award nonfederal aid.” 613
61F

612F

In 2016, the Department of Education issued guidance that advised colleges against using criminal
history information for admissions decisions. 614 The department addressed this issue because data
indicated that postsecondary institutions solicited information about applicants’ criminal
backgrounds to influence their decisions about admissions (not just financial aid). 615 In the
guidance, the department recommended best practices for college and university leaders to remove
barriers to higher education for people with criminal convictions. 616 These best practices included
encouraging colleges and universities to “assess and consider whether use of [criminal history
information] furthers institutional goals of creating safe, inclusive, and diverse campus
communities.” 617 The department reasoned that because school disciplinary policies
disproportionately impact students of color, leading to entanglement with the criminal justice
system and saddling such students with criminal records, college admissions policies that consider
criminal records may disproportionately impede students’ access to postsecondary education. 618
613F

614F

615F

61F

617F

Moreover, the department cautioned that under Title VI of the Civil Rights Act of 1964,
postsecondary institutions must neither intentionally discriminate on the basis of race nor
608

The College Board, Trends in College Pricing 2018, supra note 599 at 29.
Ibid.
610
Ibid.
611
Ibid.
612
Center for Community Alternatives, The Use of Criminal History Records in College Admissions Reconsidered,
2010, supra note 167 at 8-9.
613
U.S. Dep’t of Education, Office of Federal Student Aid, “Students with criminal convictions have limited
eligibility for federal student aid,” https://studentaid.ed.gov/sa/eligibility/criminal-convictions (last accessed Dec. 6,
2018).
614
U.S. Dep’t of Education, Beyond the Box: Increasing Access to Higher Education for Justice-Involved
Individuals, supra note 168 at 1-2, 18.
615
Ibid. at 2, 10.
616
Ibid. at 1-2.
617
Ibid. at 18.
618
Ibid at 1-2, 4-6.
609

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS
implement facially neutral policies that have a disparate adverse impact on a racial group. 619 The
department outlined its three-step process for determining unlawful disparate impact, which
includes analyzing whether the policy produces an adverse impact on a racial group, whether the
institution can show that the policy is “necessary to meet an important educational goal,” and
whether “comparably effective alternative” policies could meet the goal “with less of a
discriminatory effect.” 620 According to the department, a school’s policy of asking about an
applicant’s criminal history could have a disparate impact on applicants of color because of their
disproportionate contact with the criminal justice system. 621 To comply with Title VI and expand
opportunities for student of color to attend postsecondary schools, it recommended that school
admissions personnel “consider a multistep approach to mitigate barriers to higher education
associated with inquiring about [criminal history information] on college applications and
conducting background checks.” 622 Under such an approach, the department asserted, admissions
personnel should base decisions about applicants on various factors, including their academic
record and credentials, test scores, references, essays, and personal interviews. 623 The approach
mirrors the “individualized assessment” process recommended by the EEOC in hiring people with
criminal convictions. 624
618F

619F

620F

621F

62F

623F

619

Ibid. at 14-17. See also Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
U.S. Dep’t of Education, Beyond the Box: Increasing Access to Higher Education for Justice-Involved
Individuals, supra note 168 at 17.
621
Ibid. at 18.
622
Ibid.
623
Ibid.
624
Ibid. at 21. See also EEOC, 2012 Guidance.
620

CHAPTER 2: ACCESS TO SELF-SUFFICIENCY AND MEETING BASIC NEEDS

[This page intentionally left blank]

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION

Chapter 3: Access to Civic Participation
Civic participation is a term describing engagement with the community, governing institutions,
and issues of public concern. 625 A criminal conviction can lead to collateral consequences that
limit an individual’s ability to engage in civic participation.626 For instance, a felony conviction
can lead to restrictions on an individual’s right to vote and serve on a jury, both of which embody
the principles of civic participation. This chapter discusses the barriers that a criminal conviction
can impose on voting and jury service. Many states restrict the voting rights of people with criminal
records, through a practice known as felony disenfranchisement. 627 The history of felony
disenfranchisement in the United States, and the arguments supporting and opposing it, are
explored herein. This chapter also examines the exclusion of persons with criminal convictions
from juries and analyzes the perceived benefits and drawbacks of this policy. Finally, this chapter
investigates how collateral consequences related to civic participation disproportionately and
adversely affect people of color.
624F

625F

62F

Voting
The United States has a long history of denying individuals with criminal records the right to
vote. 628 Supporters of felony disenfranchisement justify it as a way to gauge the rehabilitation of
individuals who have been convicted of crimes, believing such barriers are warranted until a state
decides that a formerly incarcerated individual “ha[s] changed [his] behavior and ha[s] shown that
627F

625

See American Psychological Association, “Civic Engagement,” http://www.apa.org/education/undergrad/civicengagement.aspx (last accessed Sept. 29, 2018) (defining civic engagement as “individual and collective actions
designed to identify and address issues of public concern. Civic engagement can take many forms, from individual
voluntarism to organizational involvement to electoral participation. It can include efforts to directly address an
issue, work with others in a community to solve a problem or interact with the institutions of representative
democracy.”). See also the National Civic League, “Why Civic Engagement Matters,”
https://www.nationalcivicleague.org/why-civic-engagement-matters/ (last accessed Sept. 29, 2018) (stating that
“[w]here there is inclusive civic engagement, in which everyone has a place at the table to define, direct and
implement public services and amenities, there is greater civic pride and responsibility, which then lead to sustained
community wellbeing.”).
626
A person can engage in civic participation by exercising certain civil rights, such as voting. See Black’s Law
Dictionary, Civil Right, supra note 56 (defining a civil right as “[a]ny of the individual rights of personal liberty
guaranteed by the Bill of Rights and by the 13th, 14th, 15th, and 19th Amendments, as well as by legislation such as
the Voting Rights Act,” especially “the right to vote, the right of due process, and the right of equal protection under
the law.”).
627
Jean Chung, Felony Disenfranchisement: A Primer, The Sentencing Project, 2018, at 1,
https://www.sentencingproject.org/publications/felony-disenfranchisement-a-primer/ (describing felony
disenfranchisement laws as “laws that disenfranchise citizens convicted of felony offenses,” which “vary by state.”).
It is worth noting, however, that some jurisdictions restrict the right to vote based on convictions for certain
misdemeanors in addition to felonies. See, e.g., MO. ANN. STAT. § 115.133(2) (prohibiting people convicted of “a
felony or misdemeanor connected with the right of suffrage” from voting). Therefore, this report may generally
describe felony disenfranchisement as a restriction applicable to people with criminal records (interchangeably with
the term “felony disenfranchisement”).
628
Brian Pinaire, Milton Heumann, Laura Bilotta, Barred from the Vote: Public Attitudes Toward the
Disenfranchisement of Felons, 30 FORDHAM URB. L.J. 1519, 1524 (2002).

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
[he] can be trusted to once again exercise all of the rights of full citizenship.”629 In medieval
Europe, governments condemned people who committed certain crimes to a “civil death,” which
entailed banishment from the community and “the deprivation of all rights, confiscation of
property, exposure to injury and even to death.” 630 Individuals deemed offenders were stripped of
the right to participate in the political process. 631 During the U.S. colonial period, some states
added restrictive disenfranchisement provisions to their constitutions; but most state constitutions
expressly empowered their legislatures to enact laws that disenfranchised people who had
committed specific offenses. 632
628F

629F

630F

631F

During the Jim Crow era, states broadened these laws to apply to individuals convicted of all
felonies, often citing a desire to “preserve the [racial] purity of the ballot box.” 633 This section
discusses the current landscape of relevant state laws, and arguments for and against felony
disenfranchisement, including those that arose from the Commission’s 2018 independent
investigation: An Assessment of Minority Voting Rights Access in the United States. 634 It also
evaluates the racial history and ongoing racial disparities of these policies, as well as legal
challenges and campaigns to restore voting rights.
632F

63F

The Current Landscape of State Felony Disenfranchisement Laws
At least 6 million Americans cannot vote because of a felony conviction. 635 Forty-eight states and
the District of Columbia prohibit people who are currently incarcerated with felony convictions
634F

629

Hans von Spakovsky, Written Statement for the Collateral Consequences: The Crossroads of Punishment,
Redemption, and the Effects on Communities Briefing before the U.S. Commission on Civil Rights, May 19, 2017,
at 3 [hereinafter von Spakovsky Statement].
630
Jamie Fellner & Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United
States, Human Rights Watch and The Sentencing Project, 1998, at 2 (quoting Howard Itzkowitz and Lauren Oldak,
Note, Restoring the Ex-Offender’s Right to Vote: Background and Developments, 11 AM. CRIM. L.R. 721, 722
(1973)), http://www.sentencingproject.org/wp-content/uploads/2016/01/Losing-the-Vote-The-Impact-of-FelonyDisenfranchisement-Laws-in-the-United-States.pdf. See also Harry David Saunders, Civil Death—A New Look at an
Ancient Doctrine, 11 WM. & MARY L. REV. 988, 990 (1970).
631
George P. Fletcher, Disenfranchisement As Punishment: Reflections on the Racial Uses of Infamia, 46 UCLA L.
REV. 1895, 1899 (1999).
632
Behrens et al., “Ballot Manipulation and the ‘Menace of Negro Domination’: Racial Threat and Felon
Disenfranchisement in the United States, 1850-2002,” supra note 67 at 563.
633
Ibid. (quoting Washington v. State, 75 Ala. 582, 585 (1884)). See “Arguments for and Against Felony
Disenfranchisement,” infra notes 675-729 for further discussion of arguments for and against felony
disenfranchisement.
634
U.S. Commission on Civil Rights, An Assessment of Minority Voting Rights Access in the United States, 2018, at
106, https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf [hereinafter USCCR, Minority Voting
Rights Access].
635
Christopher Uggen, Ryan Larson, and Sarah Shannon, 6 Million Lost Voters: State-Level Estimates of Felony
Disenfranchisement, 2016, The Sentencing Project, Oct. 6, 2016, https://www.sentencingproject.org/publications/6million-lost-voters-state-level-estimates-felony-disenfranchisement-2016/ at 3.

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
from voting. 636 The only two states that allow currently incarcerated people to vote are Maine and
Vermont. 637
635F

63F

Disenfranchisement laws generally fall into four categories applicable to people with felony
convictions: (1) currently incarcerated individuals convicted of felonies; (2) formerly incarcerated
individuals with felony convictions released on parole; (3) individuals with felony convictions
who are serving probation instead of incarceration; and (4) formerly incarcerated individuals who
have served their sentence and no longer have contact with the criminal justice system. 638
637F

As of 2018, in 14 states and the District of Columbia, people with felony convictions regain their
voting rights immediately after release. 639 In 22 states, people with felony convictions lose their
voting rights until the full completion of their sentence, which includes parole and/or probation. 640
In 12 states, people with felony convictions lose their voting rights indefinitely or until pardoned
by the governor, or until an extra waiting period has passed or additional action has occurred 641
(which may include parole or probation) before regaining their voting rights. 642 Those states are
Alabama, Arizona, Delaware, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee,
Virginia, Wisconsin, 643 and Wyoming. 644
638F

639F

640F

641F

642F

636

643F

National Conference of State Legislatures, “Felon Voting Rights,” supra note 187; see also Marc Mauer, Written
Statement for the Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on
Communities Briefing before the U.S. Commission on Civil Rights, May 19, 2017, at 1 [hereinafter Mauer
Statement].
637
Id. See also Maine Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Maine, 2018,
at 16, https://www.usccr.gov/pubs/2018/06-29-ME-Voting-Rights.pdf (concluding that by allowing incarcerated
individuals to vote, “Maine recognizes that there is no government interest served by felon disenfranchisement—
much less a compelling one.”).
638
Jeff Manza & Christopher Uggen, Punishment and Democracy: Disenfranchisement of Nonincarcerated Felons
in the United States, SYMPOSIUM, U.S. ELECTIONS, vol. 2, no. 3 (2004), at 494,
http://users.soc.umn.edu/~uggen/Manza_Uggen_POP_04.pdf.
639
National Conference of State Legislatures, “Felon Voting Rights,” supra note 187.
640
Ibid.
641
Additional action could include formal action undertaken by other state actors, such as the Dep’t of Corrections.
See infra note 643.
642
National Conference of State Legislatures, “Felon Voting Rights,” supra note 187.
643
Under Wisconsin law, a person with a felony conviction regains the right to vote after incarceration or probation,
but the state’s Dep’t of Corrections or “jailer” (for county jails) must “inform the person in writing at the time his or
her right to vote is restored.” See WIS. STAT. ANN. § 304.078(3). Because this notification is required, it constitutes
additional action for the purposes of regaining the right to vote. Id.
644
National Conference of State Legislatures, “Felon Voting Rights,” supra note 187.

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION

Table 1: Restoration of Voting Rights After Felony Convictions
Right to Vote Upheld
During Incarceration

Lost Only While
Incarcerated Automatic
Registration After
Release

Lost Until Completion of
Sentence Parole and/or
Probation Automatic
Restoration After

Maine

District of Columbia

Alaska

Lost Until Completion of
Sentence | In Some States
a Post-Sentencing
Waiting Period |
Additional Action
Required for Restoration
Alabama

Vermont

Hawaii

Arkansas

Arizona

Illinois

California (note:
individuals may vote
while incarcerated in
county jails, but not in
state or federal prisons)

Delaware

Indiana

Colorado

Iowa

Maryland

Connecticut

Kentucky

Massachusetts

Florida (for most felony
convictions)

Mississippi

Michigan

Georgia

Nebraska

Montana

Idaho

Nevada

New Hampshire

Kansas

Tennessee

North Dakota

Louisiana

Virginia

Ohio

Minnesota

Wisconsin

Oregon

Missouri

Wyoming

Pennsylvania

New Jersey

Rhode Island

New Mexico

Utah

New York
North Carolina
Oklahoma
South Carolina
South Dakota
Texas
Washington
West Virginia

Sources: National Conference of State Legislatures, Felon Voting Rights, November 2018.

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
The Sentencing Project issued a report that estimated the scope and distribution of felony
disenfranchisement in the U.S. 645 This report highlighted that, as of 2016:
64F



More than 50 percent of the total disenfranchised population (about 3.1 million people)
were people who had already completed their sentences (including parole and/or
probation). 646
Florida accounted for about 27 percent of the total U.S. disenfranchised population; the
state also accounted for 48 percent of the individuals disenfranchised post-sentence (nearly
half of the national total). 647
One in 13 (7.4%) African Americans of voting age was disenfranchised, which is 4 times
greater than the rate of disenfranchisement of non-African Americans (1.8%). 648
In 1980, only nine states disenfranchised more than 5 percent of their African-American
adult population; today, 23 states do so. 649
645F



64F



647F



648F

Data on felony disenfranchisement of Latino people are scarce due to insufficient data
collection, 650 but research confirms that the incarceration rate of Latino people is growing. 651 From
2015 to 2016, the number of Latino prisoners sentenced to more than one year in prison increased
by about 2 percent. 652 Moreover, despite representing about 18 percent of the total U.S. population,
close to one third (32.2%) of people confined in federal prisons are Latino. 653 A 2003 report found
that felony disenfranchisement laws in 10 states blocked approximately half a million Latino
649F

650F

651F

652F

645

Uggen, 6 Million Lost Voters, supra note 635 at 3.
Ibid. at 3.
647
Ibid. In November 2018, Florida voters approved a state constitutional amendment restoring voting rights to
people with certain felony convictions upon full completion of their sentence (including probation and parole). See
Fla. Division of Elections, “Constitutional Amendments,” https://dos.myflorida.com/elections/lawsrules/constitutional-amendments/ (last accessed Dec. 7, 2018); Fla. Division of Elections, “Voting Restoration
Amendment 14-01,” https://dos.elections.myflorida.com/initiatives/fulltext/pdf/64388-1.pdf (last accessed Feb. 20,
2019); Fla. Division of Elections, Constitutional Amendment Petition Form, “Voting Restoration Amendment,”
https://dos.elections.myflorida.com/initiatives/fulltext/pdf/64388-1.pdf (containing full text of the amendment). See
also “The Restoration of Voting Rights,” infra notes 805-889, for a full discussion of the Florida initiative and
related reform efforts.
648
Uggen, 6 Million Lost Voters, supra note 635 at 3.
649
Ibid. at 11.
650
See Urban Institute, The Alarming Lack of Data on Latinos in the Criminal Justice System, 2016,
http://apps.urban.org/features/latino-criminal-justice-data/?language=english (finding that Alaska was the only state
that “consistently included data on Latinos in regularly and recently released reports on arrests and prison,
probation, and parole population.”).
651
E. Ann Carson, Prisoners in 2016, supra note 1 at 5.
652
Ibid.
653
U.S. Census Bureau, “Quick Facts: Population Estimates,” July 1, 2017,
https://www.census.gov/quickfacts/fact/table/US/PST045217 (listing 18.1 percent of the U.S. population as
“Hispanic or Latino” as of July 1, 2018); U.S. Federal Bureau of Prisons, “Inmate Ethnicity,” supra note 113
(displaying graph showing that 32.2 percent of federal inmates are “Hispanic.”).
646

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
people from voting. 654 These data suggest that felony disenfranchisement impacts Latino people
at an increasingly disproportionate rate. 655
653F

654F

Figure 7: Number Disenfranchised for Selected Years, 1960-2016
7,000,000
6,106,327
5,852,180
5,358,282

6,000,000

4,686,539

5,000,000
4,000,000

3,342,586

3,000,000
2,000,000

1,762,582
1,176,234

1,000,000
0
1950

1960

1970

1980

1990

2000

2010

2020

Source: Reproduced from “6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement,” The Sentencing Project, 2016, at 9.

Figure 7 shows the number of disenfranchised individuals from 1960 through 2016. 656 While the
number of disenfranchised individuals declined from 1960 to 1976, the number rose steadily from
1976 through 2016, increasing sharply from 1996-2000. 657 As the number of people under
correctional supervision has ballooned, so too has the number of people who cannot vote. The
disenfranchised population nearly doubled from 1996-2016, with the population increasing from
3.3 million to 6.1 million disenfranchised individuals. 658
65F

65F

657F

654

Mexican American Legal Defense and Educational Fund (MALDEF), Diminished Voting Power in the Latino
Community: The Impact of Felony Disenfranchisement Laws in Ten Targeted States, 2003, at iii,
https://maldef.org/assets/pdf/feb18-latinovotingrightsreport.pdf. In the report, MALDEF cited the difficulties of
studying the impact of felony disenfranchisement on Latinos because of inadequate data collection concerning the
Latino population. Ibid. at 2. In choosing the 10 states to study, MALDEF considered the following factors: “The
total number of Latinos in a state; The percentage of Latinos in each state’s total population; The total number and
percentage of Latino population growth in a state between the 1990 and 2000 Decennial Census; The level of
restriction of a state’s felony disenfranchisement laws and its voting rights laws; The total prison population; and A
regional diversity of states.” Ibid. at 3.
655
Ibid.; see also Wayne Taliaferro, Duy Pham, Anna Cielinski, From Incarceration to Reentry, A Look at Trends,
Gaps, and Opportunities in Correctional Education and Training, Center for Law and Social Policy, 2016, at 4,
https://www.clasp.org/sites/default/files/public/resources-and-publications/publication1/2016.10.27_fromincarcerationtoreentry.pdf (citing the “disproportionately high rate of incarceration among Black
and Latino men”).
656
Uggen, 6 Million Lost Voters, supra note 635 at 9.
657
Ibid.
658
Ibid. Note that the growth rate of the total U.S. population is substantially lower than the growth rate of the
disenfranchised population, and has even decreased, during relatively the same period. See Worldometers,

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
As previously mentioned, state laws vary significantly in terms of when (if ever) voting rights may
be restored. 659 Automatic restoration after release from prison occurs in the District of Columbia
and 14 states: Hawaii, Illinois, Indiana, Maryland, Massachusetts, Michigan, Montana, New
Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, and Utah. 660 Restoration
after release from prison, parole, and/or probation occurs in 22 states: Alaska, Arkansas,
California, Colorado, Connecticut, Florida (for most felony convictions), Georgia, Idaho, Kansas,
Louisiana, Minnesota, Missouri, New Jersey, New Mexico, New York, North Carolina, Oklahoma,
South Carolina, South Dakota, Texas, Washington, and West Virginia. 661
658F

659F

60F

Alabama, Arizona, Delaware, Iowa, Kentucky, Mississippi, Nebraska, Nevada, Tennessee,
Virginia, Wisconsin, and Wyoming impose restrictions post-sentence, and the restrictions
sometimes depend on the nature of the conviction, the number of convictions, the time elapsed
since the conviction, or an individualized assessment of the conviction and subsequent
rehabilitation. 662 For example, Arizona permanently disenfranchises people with two or more
felony convictions unless a judge restores their civil rights. 663 Nevada permanently disenfranchises
people convicted of a category A felony, a category B felony “involving the use of force or
violence that resulted in substantial bodily harm,” or two or more separate felonies, unless a court
restores their civil rights. 664 Nebraska requires people with felony convictions to wait two years
after probation to regain their voting rights. 665 Delaware permanently disenfranchises people
convicted of certain felonies (murder, bribery, and sexual offenses), but restores the voting rights
of people convicted of other felonies upon completion of their sentence or a pardon from the
governor. 666 Similarly, Mississippi permanently disenfranchises people convicted of “murder,
61F

62F

63F

64F

65F

“Population of the United States (2018 and historical),” Dep’t of Economic and Social Affairs, Population Division,
http://www.worldometers.info/world-population/us-population/ (showing that the U.S. population growth rate was
1.02% in 1995 and 0.70% in 2016) (last accessed Dec. 12, 2018).
659
See supra notes 635-69. See also infra notes 670-74, 724-29, and 838-50 for discussion of reports published by
the Commission’s state advisory committees (SACs) that address felony disenfranchisement.
660
National Conference of State Legislatures, “Felon Voting Rights,” supra note 187.
661
Ibid. California is one of these 22 states, but the state does allow people convicted of a felony and incarcerated in
jail (but not prison) to vote. See CAL. ELEC. CODE §§ 2101, 2212. In Florida, voters approved a constitutional
amendment to restore voting rights to people convicted of felonies, other than murder or sexual offenses, upon
completion of their sentence. See Fla. Division of Elections, “Voting Restoration Amendment 14-01,” Constitutional
Amendment Petition Form, supra note 647. See also “The Restoration of Voting Rights,” infra notes 805-889, for a
full discussion of the Florida initiative and related reform efforts.
662
National Conference of State Legislatures, “Felon Voting Rights,” supra note 187.
663
ARIZ. REV. STAT. ANN. § 13-905.
664
NEV. REV. STAT. ANN. § 213.157. On Jan. 1, 2019, Nevada implemented a new law that allows the automatic
restoration of voting rights for individuals who were convicted of a felony and served their entire sentence, except
under the circumstances specified in the above text and in the statute. Id. See also Michelle Price, “New Nevada
laws lift tampon tax, restore some voting rights,” Reno Gazette Journal, Jan. 1, 2019,
https://www.rgj.com/story/news/2019/01/01/new-nevada-laws-lift-tampon-tax-restore-some-votingrights/2458952002/.
665
NEB. REV. STAT. ANN. § 29-2264. See also Uggen, 6 Million Lost Voters, supra note 635 at 14; National
Conference of State Legislatures, “Felon Voting Rights,” supra note 187.
666
DEL. CONST. art. 5, § 2.

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery,
embezzlement or bigamy” unless they are pardoned by the governor or obtain approval from twothirds of the state legislature. 667 In Alabama, people convicted of a crime of “moral turpitude” are
permanently disenfranchised but may petition for restoration of their rights. 668 Until 2017,
Alabama had not defined crimes of moral turpitude, but its statute now specifies that murder, rape,
kidnapping, forgery, and certain other offenses belong in that category. 669
6F

67F

68F

Several of the Commission’s state advisory committees (SACs) have reported on felony
disenfranchisement laws in their respective states. 670 During the Alabama SAC’s hearing on the
topic, panelists commended Alabama for its relative transparency about moral turpitude offenses,
but questioned its rationale for including some nonviolent offenses as moral turpitude crimes—
such as forgery, theft of property, and theft of lost property—while excluding many “white-collar”
offenses. 671 The Alabama SAC also heard testimony about the state’s complicated process for
voting rights restoration, which first requires a pardon from the State Board of Pardons and Parole
and then the submission of a Certificate of Eligibility to Register to Vote to the county board of
registers. 672 According to panelists, the state does not notify people awaiting release from prison
about how to petition for a pardon or register to vote, leaving the task to “nonprofit entities without
the same resources.” 673 The cumbersome process of registering to vote and lack of assistance from
states to individuals upon reentry were also flagged as critical issues during the Arizona, Illinois,
69F

670F

671F

672F

667

MISS. CONST. art. 12, § 241; MISS. CONST. art. 12, § 253; MISS. CODE. ANN. § 47-7-41.
ALA. CONST. art. VIII, § 177.
669
ALA. CODE § 17-3-30.1. See also Samantha Michaels, “Alabama’s Republican Governor Just Helped Thousands
of Felons Get Their Voting Rights Back,” Mother Jones, May 25, 2017,
https://www.motherjones.com/politics/2017/05/alabama-governor-signs-law-could-restore-voting-rights-thousandspeople/.
670
See Ala. Advisory Committee to the U.S. Commission on Civil Rights, Access to Voting in Alabama, 2018, at 1621, https://www.usccr.gov/pubs/2018/08-08-AL-Voting-Access.pdf; Ariz. Advisory Committee to the U.S.
Commission on Civil Rights, Voting Rights in Arizona, 2018, at 8-11, https://www.usccr.gov/pubs/2018/07-25-AZVoting-Rights.pdf; Fla. Advisory Committee to the U.S. Commission on Civil Rights, Rules of Executive Clemency
Should Allow Level 1 Offenders to Have Their Civil Rights Automatically Restored Upon Completion of Their
Sentences, 2014, https://www.usccr.gov/pubs/docs/FL_SAC_Ex-Felon-Report.pdf; Ill. Advisory Committee to the
U.S. Commission on Civil Rights, Civil Rights and Voting in Illinois, 2018, at 11-12, 20-30, 56,
https://www.usccr.gov/pubs/2018/IL-Voting-Rights.pdf; Ky. Advisory Committee to the U.S. Commission on Civil
Rights, Voting Rights in Kentucky, 2009, https://www.usccr.gov/pubs/docs/KYVotingRightsReport.pdf; La.
Advisory Committee to the U.S. Commission on Civil Rights, Barriers to Voting in Louisiana, 2018, at 22-24,
https://www.usccr.gov/pubs/2018/08-20-LA-Voting-Barriers.pdf; Me. Advisory Committee to the U.S. Commission
on Civil Rights, Voting Rights in Maine, supra note 630, at 12-13, 16; Ohio Advisory Committee to the U.S.
Commission on Civil Rights, Voting Rights in Ohio, 2018, at 4, 16, https://www.usccr.gov/pubs/2018/06-27-OHVoting-Rights.pdf; Tenn. Advisory Committee to the U.S. Commission on Civil Rights, The Right to Vote and ExFelon Disenfranchisement in Tennessee, 2014, https://www.usccr.gov/pubs/docs/TN_SAC_Ex-Felon-Report.pdf.
671
Ala. Advisory Committee to the U.S. Commission on Civil Rights, Access to Voting in Alabama, supra note 670
at 18 (testimony of Johnathan Barry-Blocker, Southern Poverty Law Center); ALA. CODE § 17-3-30.1(c).
672
See ALA. CODE § 17-3-31; Ala. Advisory Committee to the U.S. Commission on Civil Rights, Access to Voting
in Alabama, supra note 670 at 17-18 (testimony of Brock Boone, American Civil Liberties Union, and Kareem
Crayton, Southern Coalition for Social Justice).
673
Ala. Advisory Committee to the U.S. Commission on Civil Rights, Access to Voting in Alabama, supra note 670
at 17 (testimony of Brock Boone, American Civil Liberties Union).
668

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
Ohio, and Tennessee SAC hearings. 674 For more discussion about the SAC reports and voting
rights restoration in various states, see “The Restoration of Voting Rights,” below.
673F

Arguments For and Against Felony Disenfranchisement
A common argument favoring felony disenfranchisement is grounded in the belief that committing
a felony violates a social contract, and this violation threatens the order and well-being of the
political community. 675 According to this reasoning, the logical response is to deny the violator
the right to participate in politics and governance. 676 Another theory embraces the importance of
moral character and virtue to the political community, and postulates that any person who commits
a felony demonstrates poor moral judgment and an inability to adhere to the moral code of a “civic
republic.” 677 Some policymakers believe that if an individual has disregarded the law, that
individual should not be entitled to provide input on public policy.678 Moreover, they believe that
an individual’s “impurity” will lead him to “cast [his] votes in a corrupt manner.” 679 This argument
dovetails with the justification for why individuals with criminal records cannot hold public office,
in that such individuals are perceived to be more susceptible to corruption. 680 Similarly, some
contend that people convicted of felonies are more prone to committing voter fraud and should
therefore be barred from the electoral system. 681 It is worth noting that scholars studying this issue
have identified no data to support this argument. 682 In reviewing voter fraud committed by persons
674F

675F

67F

678F

679F

680F

681F

674
See Ariz. Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Arizona, supra note 670
at 9; Ill. Advisory Committee to the U.S. Commission on Civil Rights, Civil Rights and Voting in Illinois, supra note
670 at 27-30; Ohio Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Ohio, supra note
670 at 4, 16.
675
Pinaire et al., Barred from the Vote: Public Attitudes Toward the Disenfranchisement of Felons, supra note 628
at 1525; see also John Locke, Two Treatises of Government, 269-78 (Peter Laslett ed., Cambridge Univ. Press 1998)
(1690).
676
Pinaire et al., Barred from the Vote: Public Attitudes Toward the Disenfranchisement of Felons, supra note 628
at 1526.
677
Id. at 1525-26.
678
Campagna et al., “Restrictions on the Citizenship Rights of Felons: Barriers to Successful Reintegration,” supra
note 8 at 24.
679
Id. (citing Gabriel J. Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth
Amendment Repeal Section 2 of the Fourteenth Amendment?, 92 GEO. L.J. 259, 312 (2004)).
680
Id. at 24.
681
Id.
682
Id. (citing Tanya Dugree-Pearson, Disenfranchisement-A Race Neutral Punishment for Felony Offenders or A
Way to Diminish the Minority Vote?, 23 HAMLINE J. PUB. L. & POL’Y 359, 371-72 (2002)) (reporting a lack of
evidence “showing that a convicted felon is more likely to commit voter fraud or vote for unpopular political
changes than the average American citizen.”); see also Justin Levitt, The Truth about Voter Fraud, Brennan Center
for Justice, 2007, at 16-17,
https://www.brennancenter.org/sites/default/files/legacy/The%20Truth%20About%20Voter%20Fraud.pdf (stating
that “only a handful” of cases existed where individuals with felony convictions voted despite knowing that they
were ineligible and therefore not permitted to do so); Human Rights Watch and The Sentencing Project, Losing the
Vote: The Impact of Felony Disenfranchisement Laws in the United States, Part V, 1998,
http://pantheon.hrw.org/legacy/reports98/vote/usvot98o-03.htm#P108_2608 (stating that “there is no evidence that
ex-felons are more likely to commit voter fraud than anyone else.”). Thus far, researchers have found relatively few
instances of voting fraud even among the general population (not just people with felony convictions). See, e.g.,

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
with felony convictions, the Commission recently found that, “when voter fraud occurs, it is often
aggressively prosecuted, even if the person was mistaken that the person had the right to vote and
did not intend to vote illegally.” 683 The Commission found this type of voter fraud (and voter fraud
overall) to be exceedingly rare. 684 Federal courts have supported the rights of states to impose
some restrictions on the right to vote based upon felony convictions. 685
682F

683F

684F

By contrast, many scholars point out the unique importance of the right to vote and argue that
denying this right to even a “subset of the population” jeopardizes democracy for the entire
population. 686 Dating back to the nineteenth century, the Supreme Court has recognized the right
to vote as “a fundamental political right, because preservative of all rights.” 687 The Court has
reaffirmed this principle by declaring that the right to vote is “the essence of a democratic society,
685F

68F

John S. Ahlquist, Kenneth R. Mayer, Simon Jackman, “Alien Abduction and Voter Impersonation in the 2012 U.S.
General Election: Evidence from a Survey List Experiment,” Election Law Journal: Rules, Politics, and Policy, vol.
13, no. 4 (2014), https://www.liebertpub.com/doi/10.1089/elj.2013.0231 (reporting the results of “a survey list
experiment fielded immediately after the 2012 U.S. general election” and finding “no evidence of widespread voter
impersonation, even in the states most contested in the presidential or statewide campaigns.”); Ray Christensen and
Thomas J. Schultz, “Identifying Election Fraud Using Orphan and Low Propensity Voters,” American Politics
Research, vol. 42, issue. 2 (2014), http://journals.sagepub.com/doi/10.1177/1532673X13498411 (testing a method
“in multiple jurisdictions” measuring “actual instances of fraud rather than waiting for conclusive proof of fraud
produced in a criminal prosecution” and finding only two election fraud violations).
683
U.S. Commission on Civil Rights, Minority Voting Rights Access, supra note 634 at 106 (citing Michael Wines,
“Illegal Voting Gets Woman 8 Years in Prison, and Almost Certain Deportation,” New York Times, Feb. 10, 2017,
https://www.nytimes.com/2017/02/10/us/illegal-voting-gets-texas-woman-8-years-in-prison-and-certaindeportation.html); see also BBC News, “Texas woman jailed for five years for accidental voter fraud,” March 30,
2018, http://www.bbc.com/news/world-us-canada-43597908?SThisFB (discussing the conviction and sentencing of
a woman with a felony conviction who voted while on probation in Texas).
684
U.S. Commission on Civil Rights, Minority Voting Rights Access, supra note 634 at 103 (“In a 10-year
independent study by News21 commissioned by the Knight Foundation (“News21 Study”), researchers examined
public news and court records of all allegations of voter fraud in all 50 states. Researchers found that there were
2,068 cases of alleged fraud from 2000-2010, but only 10 cases of allegations of in-person voter fraud
(approximately one case per every 15 million eligible voters).”)
685
See Johnson v. Governor of State of Fla., F.3d 1214, 1228 (11th Cir. 2005); Farrakhan v. Gregoire, 623 F.3d
990, 993-94 (9th Cir. 2010); Simmons v. Galvin, 575 F.3d 24, 42 (1st Cir. 2009). For a full discussion of legal
challenges and case law pertaining to felony disenfranchisement, see “Legal Challenges,” infra notes 754-97.
686
Campagna et al., “Restrictions on the Citizenship Rights of Felons: Barriers to Successful Reintegration,” supra
note 8 at 22.
687
Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); see also Harper v. Virginia State Bd. of Elections, 383 U.S. 663,
670 (1966) (including the right to vote as one of the “fundamental rights and liberties…asserted under the Equal
Protection Clause”). But see Burdick v. Takushi, 504 U.S. 428, 433-34 (1992) (rejecting the standard of review
applied to fundamental rights by stating “[e]lection laws will invariably impose some burden upon individual
voters” and “to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly
tailored to advance a compelling state interest…would tie the hands of States seeking to assure that elections are
operated equitably and efficiently.”); Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 210 (2008) (arguing that
the Court has “avoided preset levels of scrutiny [applied to a voting restriction] in favor of a sliding-scale balancing
analysis: the scrutiny varies with the effect of the regulation at issue.”); Joshua A. Douglas, Is the Right to Vote
Really Fundamental?, 18 CORNELL J.L. & PUB. POL’Y 143, 152 (2008) (pointing out that “the Court has not always
used a fundamental rights approach when considering a state election regulation that distinguishes eligible voters
from non-eligible voters”), https://www.lawschool.cornell.edu/research/JLPP/upload/Douglas.pdf.

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
and any restrictions on that right strike at the heart of representative government.” 688 According to
the Court:
687F

No right is more precious in a free country than that of having a voice in the election
of those who make the laws under which, as good citizens, we must live. Other
rights, even the most basic, are illusory if the right to vote is undermined. Our
Constitution leaves no room for classification of people in a way that unnecessarily
abridges this right. 689
68F

Critics of felony disenfranchisement believe that it is an unnecessary abridgment. They cite the
Court’s proclamations to assert that classifying people with felony convictions as undeserving of
the right to vote does not enable democracy to thrive—on the contrary, it subverts the democratic
process and flies in the face of democratic ideals. 690
689F

Another argument against felony disenfranchisement contends that stripping the right to vote from
a person with a criminal record can hinder that person’s successful reintegration into society.691
According to this reasoning, even if incarceration achieved its goal of rehabilitating the alleged
criminal (a topic beyond the scope of this report), the continuing disenfranchisement of people
post-sentence solidifies their status as ostracized individuals incapable of fully assimilating into
society. 692 The authors of one study make the powerful claim that “the act of voting manifests the
desire to participate as a law-abiding stakeholder in a larger society.” 693 According to Linda Steele,
690F

691F

692F

688

Reynolds v. Sims, 377 U.S. 533, 555 (1964).
Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964).
690
Campagna et al. “Restrictions on the Citizenship Rights of Felons: Barriers to Successful Reintegration,” supra
note 8 at 24 (citing Reynolds, 377 U.S. at 555 (the right to vote is “the essence of a democratic society”) and
Wesberry, 376 U.S. at 17-18 (other rights “are illusory if undermined”) to argue that when the right to vote “is
denied to a subset of the population, the definition of democracy becomes inconsistent with the practice of
democracy.”); see also Anthony Gray, Securing Felons’ Voting Rights in America, 16 BERKELEY J. AFR.-AM. L. &
POL’Y 3, 31 (2014) (arguing that the United States should “strike down prisoner disenfranchisement laws as being
contrary to representative democracy”); Courtney Artzner, Check Marks the Spot: Evaluating the Fundamental
Right to Vote and Felon Disenfranchisement in the United States and Canada, 13 SW. J. L. & TRADE AM. 423, 428
(2007) (“The principle underlying the extension of the right to vote in the United States is that every citizen is to
remain politically equal. Prisoner disenfranchisement laws operate very differently from this general trend by
revoking recognition of a prisoner’s political equality, resulting in their exclusion from the political community.”).
Critics of felony disenfranchisement frequently cite Reynolds and Wesberry to support their argument that the voting
right is fundamental and cannot be denied to a portion of otherwise eligible voters. See also Illinois State Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) (contending that “[r]estrictions on access to the
ballot burden” the “distinct and fundamental” right to vote) (internal citations omitted) (emphasis added); Kramer v.
Union Free Sch. Dist. No. 15, 395 U.S. 621, 626 (1969) (asserting that “[a]ny unjustified discrimination in
determining who may participate in political affairs or in the selection of public officials undermines the legitimacy
of representative government.”).
691
Campagna et al., “Restrictions on the Citizenship Rights of Felons: Barriers to Successful Reintegration,” supra
note 8 at 22.
692
Note, The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and “The Purity of the Ballot Box,” 102
HARV. L. REV. 1300, 1314-17 (1989).
693
Id.
689

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
who lost her right to vote due to a felony conviction and later regained it and voted for the first
time in November 2008:
There were tears in my eyes as I waited to vote. I felt like I was finally a productive
member of society . . . I walked out of the polling place felling like I mattered, that
I had made a difference. I realized how far I’ve come. 694
693F

Some advocates of criminal justice reform have pointed to high recidivism rates as evidence that
the government must support initiatives that destigmatize and ease the reentry of formerly
incarcerated people into the community. 695 This proposal has garnered bipartisan support. 696
Within the context of voting rights, opponents of felony disenfranchisement assert that protecting
the franchise for the formerly incarcerated will foster their reintegration, thereby lowering
recidivism rates and improving public safety in the general community. 697
694F

695F

69F

One study explored the relationship between felony disenfranchisement and recidivism using data
from the Department of Justice’s Bureau of Justice Statistics. 698 The authors found that individuals
in states with permanent felony disenfranchisement laws were about 10 percent more likely to
recidivate than those in states that restore voting rights post-release. 699 The authors acknowledged
that they did not identify a direct causal link, but recommended further investigation of this
relationship. 700 In another study, researchers pointed out this lack of causal connection, finding
that although political participation through voting correlated with reduced criminality, such
participation did not necessarily decrease criminal behavior. 701
697F

698F

69F

70F

694

Erika Wood & Liz Budnitz, Jim Crow in New York, Brennan Center for Justice, 2010, at 14.
https://www.brennancenter.org/sites/default/files/legacy/publications/JIMCROWNY_2010.pdf.
695
See, e.g., Mark Holden & Ryan Norris, “What Opponents Get Wrong About Criminal Justice Reform,” The Hill,
Aug. 22, 2018, http://thehill.com/blogs/congress-blog/judicial/403105-what-opponents-get-wrong-about-criminaljustice-reform.
696
See ibid. (the authors represent Koch Industries and Americans for Prosperity, respectively, two traditionally
conservative organizations); see also American Civil Liberties Union, Lawyers Committee for Civil Rights Under
Law, Leadership Conference, NAACP Legal Defense Fund, Sentencing Project, Democracy Imprisoned: A Review
of the Prevalence and Impact of Felony Disenfranchisement Laws in the United States, 2013, at 3,
https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/USA/INT_CCPR_NGO_USA_15128_E.pdf
(where the authors state that “[f]elony disenfranchisement operates contrary to the goals of ensuring public safety
and reducing reoffending by alienating from society those individuals that the criminal justice system is
simultaneously attempting to reintegrate.”).
697
Guy Padraic Hamilton-Smith & Matt Vogel, The Violence of Voicelessness: The Impact of Felony
Disenfranchisement on Recidivism, 22 BERKELEY LA RAZA L.J. 407, 413-14 (2012).
698
Id. at 408.
699
Id. at 427. The authors controlled for individual characteristics and state unemployment, noting that “the crime
rate varies with the unemployment rate, and so recidivism can be expected to be higher in states with higher
unemployment.”
700
Id. at 429.
701
Alan S. Gerber, Gregory A. Huber, Daniel R. Biggers, David J. Hendry, “Can Political Participation Prevent
Crime? Results from a Field Experiment About Citizenship, Participation, and Criminality,” Political Behavior, vol.
39, no. 4, 909-34 (2017), https://link.springer.com/article/10.1007/s11109-016-9385-1.

100

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
Finally, a common argument against felony disenfranchisement stems from the starkly
disproportionate effects of these laws on people of color, particularly black men, whose voting
rights have historically been imperiled if not denied. 702 The Commission explores this argument
further in the next subsection, “The Racial Origins of Disenfranchisement Laws and Ongoing
Disparities.” 703
701F

702F

This argument relates to another criticism of felony disenfranchisement, which focuses on how
these laws affect civic participation overall, especially in communities of color. 704 Since voting
can be a communal activity, one that individuals often discuss or practice with friends and family,
scholars argue that any limits imposed on that activity may cause a ripple effect. 705 In other words,
by disenfranchising a significant portion of the community, these laws discourage civic
engagement and create a “culture of political nonparticipation” within that community. 706
703F

704F

705F

As advocates of reform have observed, felony disenfranchisement may compound the inequities
and socioeconomic disadvantages already facing communities of color on a daily basis:
Felony disenfranchisement affects more than individual voters themselves—it
diminishes the voting strength of entire communities of color, which are too often
already plagued with concentrated poverty, substandard housing, limited access to
healthcare services, failing public schools, and environmental hazards. As a result,
people in these communities have even less of an opportunity to effect muchneeded positive change through the political process. 707
706F

One study found that states with harsher disenfranchisement laws have lower voter turnout among
legally eligible voters. 708 The study also revealed that in states with harsher disenfranchisement
laws, the probability of voting dropped at a higher rate among black voters than white voters, even
for individuals who lacked criminal convictions. 709 Although the study’s authors acknowledged
that a direct causal link could not be confirmed, their research suggests that disenfranchisement
70F

708F

702
Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal
Section 2 of the Fourteenth Amendment?, supra note 679 at 261-62, 264.
703
See infra notes 730-62.
704
Aman McLeod, Ismail K. White, Amelia R. Gavin, The Locked Ballot Box: The Impact of State Criminal
Disenfranchisement Laws on African American Voting Behavior and Implications for Reform, 11 VA. J. SOC. POL’Y
& L. 66, 80 (2003).
705
Mauer, Voting Behind Bars: An Argument for Voting by Prisoners, supra note 39 at 561-62.
706
NAACP Legal Defense Fund & The Sentencing Project, Free the Vote: Unlocking Democracy in the Cells and
on the Streets, 2016, at 3, http://www.sentencingproject.org/wp-content/uploads/2016/12/Free-the-Vote.pdf.
707
Ibid.
708
McLeod et al., The Locked Ballot Box: The Impact of State Criminal Disenfranchisement Laws on African
American Voting Behavior and Implications for Reform, supra note 704 at 80.
709
Ibid.

101

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
laws may depress overall non-disenfranchised voter turnout, particularly in the black
community. 710
709F

In response, supporters of disenfranchisement laws point to the higher rates of black voter turnout
in recent elections to contend that felony disenfranchisement does not affect overall black voter
turnout. 711 For example, they cite data showing that in 2012, black voter turnout surpassed white
voter turnout by about 2 percentage points. 712 Other scholars maintain that black voters would
have voted in even higher numbers but for felony disenfranchisement laws. 713 Moreover, data from
the 2016 election show that black voter turnout decreased for the first time in 20 years in a
presidential election, falling by about 7 percentage points. 714
710F

71F

712F

713F

During the Commission’s 2018 voting rights briefing in North Carolina, various experts and
community advocates testified about the disproportionate impact of felony disenfranchisement
laws on people of color and the need to restore voting rights to persons with felony convictions. 715
In a written statement, former Deputy Assistant Attorney General at the U.S. Department of Justice
and current Executive Director of Southern Coalition for Social Justice Anita Earls noted that
while over 7 percent of the adult black population are disenfranchised nationwide, over 20 percent
714F

710

Ibid. at 81.
See, e.g., Briefing Transcript at 103 (statement of Hans A. von Spakovsky).
712
Id.; see also Jens Manuel Krogstad & Mark Hugo Lopez, “Black Voter Turnout Fell in 2016, Even as a Record
Number of Americans Cast Ballots,” Pew Research Center, May 12, 2017, http://www.pewresearch.org/facttank/2017/05/12/black-voter-turnout-fell-in-2016-even-as-a-record-number-of-americans-cast-ballots/.
713
Briefing Transcript at 103 (statement of Marc Mauer).
714
Krogstad & Lopez, “Black Voter Turnout Fell in 2016, Even as a Record Number of Americans Cast Ballots,”
supra note 712. Courts have also pointed out that higher voter turnout does not necessarily equate to fair access to
the ballot. See, e.g., N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204, 232 (4th Cir. 2016), cert.
denied sub nom. North Carolina v. N. Carolina State Conference of NAACP, 137 S. Ct. 1399 (2017) (stating that in
North Carolina, “although aggregate African American turnout increased by 1.8% in 2014, many African American
votes went uncounted” because of North Carolina’s restrictive voting law).
715
See generally U.S. Commission on Civil Rights, An Assessment of Minority Voting Rights Access in the United States,
Briefing Meeting, transcript, Feb. 2, 2018 [hereinafter Voting Rights Briefing Transcript]. In their written statements,
both Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, and Vanita
Gupta, the former head of the Dep’t of Justice’s Civil Rights Division and current President and CEO of the
Leadership Conference on Civil and Human Rights, discussed the disproportionate racial impact of felony
disenfranchisement laws and their support for the Democracy Restoration Act of 2017, which would restore voting
rights in federal elections to formerly incarcerated citizens. See Sherrilyn Ifill, Written Statement for the Assessment
of Minority Voting Rights Access in the United States Briefing before the U.S. Commission on Civil Rights, Feb. 2,
2018, at 12; Vanita Gupta, President and CEO, Leadership Conference on Civil and Human Rights, Written
Statement for the Assessment of Minority Voting Rights Access in the United States Briefing before the U.S.
Commission on Civil Rights, Feb. 2, 2018, at 5; Voting Rights Briefing Transcript at 128 (statement by Sherrilyn Ifill)
(noting that many of the current felon disenfranchisement laws in southern states originated from state officials
amending their respective constitutions at the turn of the 20th century to dilute the black vote). See also S. 1588,
115th Cong. (2017), https://www.congress.gov/115/bills/s1588/BILLS-115s1588is.pdf. For more discussion about
this legislation, see “The Restoration of Voting Rights,” infra at notes 805-889.
711

102

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
of the adult black population are disenfranchised in Florida, Kentucky, Tennessee, and Virginia. 716
In addition, Earls stated that the real impact of felony disenfranchisement laws are difficult to
measure. 717 According to Earls,
715F

716F

[e]ven as an attorney, I’ve said to voters ‘I’ve looked up [your record] online, [and]
you’ve completed your sentence. As a lawyer I’m telling you [that] you’re eligible
to register and vote,’ but they don’t believe. They’re scared, they’re intimidated,
they won’t try to vote. Also there are people who don't know exactly when they’re
able to re-register. 718
71F

The Commission’s 2018 report on voting rights also discussed felony disenfranchisement in the
context of voter roll purges. 719 For many years, Florida conducted massive voter purges that
allegedly disproportionately impacted voters of color.720 In an earlier report, the Commission
studied voter purges in Florida and found that these purges were often based on inaccurate data,
denying voting rights to numerous citizens, particularly black voters. 721 Moreover, in 2004, Florida
conducted a purge specifically targeting persons with felony convictions, which also
disproportionately affected black voters. 722
718F

719F

720F

721F

Additionally, the Commission’s SACs in Alabama, Arizona, Illinois, Kentucky, Louisiana, Ohio,
and Tennessee expressed concerns about the disproportionate impact of felony disenfranchisement
laws on communities of color. 723 In its report, the Alabama SAC cited testimony about how
financial barriers to voting rights restoration (i.e., the state’s mandatory payment of significant
court fees) especially affected black voters with felony convictions because of Alabama’s
72F

716

Anita Earls, Executive Director, Southern Coalition for Social Justice, Written Statement for the Assessment of
Minority Voting Rights Access in the United States Briefing before the U.S. Commission on Civil Rights, Feb. 2,
2018, at 2.
717
Voting Rights Briefing Transcript at 163-64 (statement by Anita Earls).
718
Ibid.
719
USCCR, Minority Voting Rights Access, supra note 634 at 145.
720
Ibid.
721
U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presidential Election: Ch. 5
The Reality of List Maintenance, 2001, http://www.usccr.gov/pubs/vote2000/report/ch5.htm (last accessed Sept. 26,
2018).
722
USCCR, Minority Voting Rights Access, supra note 634 at 145-46; see also Ford Fessedon, “Florida List for
Purge of Voters Proves Flawed,” New York Times, July 10, 2004, http://www.nytimes.com/2004/07/10/us/floridalist-for-purge-of-voters-proves-flawed.html.
723
Ala. Advisory Committee to the U.S. Commission on Civil Rights, Access to Voting in Alabama, supra note 670
at 19; Ariz. Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Arizona, supra note 670
at 9; Ill. Advisory Committee to the U.S. Commission on Civil Rights, Civil Rights and Voting in Illinois, supra note
670 at 23; Ky. Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Kentucky, supra note
670 at 16; La. Advisory Committee to the U.S. Commission on Civil Rights, Barriers to Voting in Louisiana, supra
note 670 at 24; Ohio Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Ohio, supra
note 670 at 4; Tenn. Advisory Committee to the U.S. Commission on Civil Rights, The Right to Vote and Ex-Felon
Disenfranchisement in Tennessee, supra note 670 at 1, 18.

103

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
“systemic [racial] wealth gap.” 724 Arizona’s SAC pointed out that although Native Americans with
felony convictions maintained the right to vote in tribal elections, it was unclear whether election
officials permitted them to exercise this right, and uncertain whether Native Americans knew the
extent of their rights. 725
723F

724F

Most of the SACs studying felony disenfranchisement reported that because people of color in
their states experienced disproportionate contact with the criminal justice system, these residents
experienced disproportionate disenfranchisement. 726 According to the Tennessee SAC, black
people represented only 17 percent of the state population in 2014, but comprised nearly one-half
of the state’s incarcerated population. 727 And in 2009, black people constituted only 7 percent of
Kentucky’s population but more than 30 percent of the state’s prison population. 728 As the authors
of the Louisiana SAC report wrote in 2018:
725F

726F

72F

This disproportionate racial impact [of felony disenfranchisement] can affect
communities and the very concept of proportional representation. If many members
of a community are unable to vote, they are denied the opportunity to be governed
by people who might best serve their interests. 729
728F

The Racial Origins of Disenfranchisement Laws and Ongoing Disparities
Research suggests that racially motivated felony disenfranchisement laws pre-date the Civil
War. 730 For example, New York amended its state constitution in 1821 to allow counties to pass
laws that denied the right to vote among “persons who have been, or may be, convicted of infamous
729F

724

Ala. Advisory Committee to the U.S. Commission on Civil Rights, Access to Voting in Alabama, supra note 670
at 19 (testimony of Johnathan Barry-Blocker). For more discussion of state requirements regarding payment of court
fees and voting rights restoration, see “The Restoration of Voting Rights,” infra notes 805-889.
725
Ariz. Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Arizona, supra note 670 at
9.
726
See Ill. Advisory Committee to the U.S. Commission on Civil Rights, Civil Rights and Voting in Illinois, supra
note 670 at 23 (“In the state of Illinois, black people are over-represented within the incarcerated population while
white people are under-represented.”); Ky. Advisory Committee to the U.S. Commission on Civil Rights, Voting
Rights in Kentucky, supra note 670 at 16; La. Advisory Committee to the U.S. Commission on Civil Rights,
Barriers to Voting in Louisiana, supra note 670 at 24; Ohio Advisory Committee to the U.S. Commission on Civil
Rights, Voting Rights in Ohio, supra note 670 at 4; Tenn. Advisory Committee to the U.S. Commission on Civil
Rights, The Right to Vote and Ex-Felon Disenfranchisement in Tennessee, supra note 670 at 1, 18.
727
Tenn. Advisory Committee to the U.S. Commission on Civil Rights, The Right to Vote and Ex-Felon
Disenfranchisement in Tennessee, supra note 670 at 18.
728
Ky. Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Kentucky, supra note 670 at
16.
729
La. Advisory Committee to the U.S. Commission on Civil Rights, Barriers to Voting in Louisiana, supra note
670 at 24.
730
Erika Wood & Liz Budnitz, Jim Crow in New York, supra note 694 at 6-8, 13.

104

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
crimes.” 731 During the state’s 1821 constitutional convention, the delegates debated whether or not
to expand black voting rights. 732 To rationalize restricting the franchise, several delegates argued
that black men tended to be criminals who filled “your jails and penitentiaries,” implying that black
men could not trusted with the power to vote. 733 Many delegates repeated these allegations at the
1846 constitutional convention, and one delegate claimed that “the relative proportion of infamous
crime is nearly thirteen and a half times as great in the colored population as in the white.” 734 The
New York Constitution was then amended to add bribery and larceny specifically to the
disenfranchisement clause, thereby permitting counties to prohibit anyone convicted of “bribery,
larceny, or of any infamous crime” from voting. 735 Finally, in 1874, the state amended the
constitution to explicitly require the disenfranchisement of anyone “convicted of bribery or of any
infamous crime.” 736
730F

731F

732F

73F

734F

735F

Some scholars argue that rampant racial bias during the Reconstruction spurred the widespread
enactment of felony disenfranchisement laws. 737 They point to the former Confederate states’
reliance on Section 2 of the 14th Amendment to implement felony disenfranchisement laws; this
section reduces electoral representation in any state that disenfranchises male citizens aged 21 and
older for reasons other than “participation in rebellion, or other crime.” 738 Section 2 expanded the
franchise to “any” male citizen, thus allowing black men to vote unless they were convicted of a
crime. 739 After the passage of the 15th Amendment, which explicitly prohibited states from
restricting the franchise “on account of race,” 740 researchers claim that some states fashioned their
felony disenfranchisement laws to encompass crimes that they thought black men were likelier to
commit, like burglary, theft, and arson. 741 Because the former Confederate states knew that black
people constituted the majority or a sizable minority of their populations, 742 they purportedly
736F

73F

738F

739F

740F

741F

731

N.Y. CONST. art. II § 2 (1821); see also id. at 8.
Wood & Budnitz, supra note 694 at 7-8.
733
Ibid.
734
Ibid. at 9.
735
Ibid. at 10.
736
Ibid. at 13.
737
Reuven (Ruvi) Ziegler, Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human
Rights Perspectives, 29 B.U. INT’L L.J. 197, 217-18 (2011).
738
U.S. CONST. amend. XIV, § 2; Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the
Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment?, supra note 679 at 267 (citing the recognition
of segregationist states that “enfranchisement of African Americans would have given them too much power, [but]
Section 2 [of the 14th Amendment] left open the option of de jure disenfranchisement.”).
739
Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal
Section 2 of the Fourteenth Amendment?, supra note 679 at 266-67; U.S. CONST. amend. XIV, § 2.
740
U.S. CONST. amend. XV, § 1.
741
Ziegler, Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights Perspectives,
supra note 737 at 217-18; see also NAACP Legal Defense Fund and The Sentencing Project, Free the Vote:
Unlocking Democracy in the Cells and on the Streets, supra note 706 at 2 (pointing out that “[t]hrough the
convoluted reasoning of [one felony disenfranchisement] law, one would be disenfranchised for stealing a chicken,
but not for killing the chicken’s owner.”).
742
Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal
Section 2 of the Fourteenth Amendment?, supra note 679 at 261-62, 266-67; see also Aderson Bellegarde Francois,
732

105

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
recognized that the only way to maintain electoral representation and simultaneously prevent black
people from gaining political power was to convict more black men of crimes. 743 Mississippi offers
an example: in 1890 the state amended its constitution to disenfranchise people who committed
those crimes, but not people who committed murder. 744 In upholding that amendment’s
constitutionality, the Mississippi Supreme Court reasoned that “‘[r]estrained by the [U.S.]
Constitution from discriminating against the Negro race, the [Mississippi] convention
discriminated against its characteristics and the offenses to which its weaker members were
prone.” 745 Here, the Mississippi Supreme Court appeared to acknowledge that the amendment
represented a negative reaction to the 15th Amendment, and sanctioned it as such. 746
742F

743F

74F

745F

As the popularity of felony disenfranchisement laws grew, researchers documented an increase in
black imprisonment rates and a decrease in voter registration rates. 747 For instance, in Alabama in
1850, 2 percent of black people were incarcerated; in 1870, the number had climbed to 74
percent. 748 In Louisiana after the Civil War, black people represented 44 percent of registered
voters, but in 1920 the number had dropped to 2 percent. 749 These examples strongly suggest that
felony disenfranchisement legislation formed part of a “white backlash” against black voting
746F

74F

748F

To Make Freedom Happen: Shelby County v. Holder, the Supreme Court, and the Creation Myth of American
Voting Rights, 34 N. ILL. U. L. REV. 529, 542-43 (2014) (reporting that by 1880, black people constituted the
majority of the population in Louisiana, Mississippi, and South Carolina, and more than 40 percent of the population
in Alabama, Florida, Georgia, and Virginia) (citing Gabriel J. Chin & Randy Wagner, The Tyranny of the Minority:
Jim Crow and the Counter-Majoritarian Difficulty, 43 HARV. C.R.-C.L. L. REV. 65, 88-90 (2008)).
743
See Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth Amendment
Repeal Section 2 of the Fourteenth Amendment?, supra note 679 at 261-62 (summarizing how “[c]riminal
disenfranchisement was widely used in the South after Reconstruction to suppress the vote of African-Americans”);
Andrew L. Shapiro, Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy, 103
Yale L.J. 537, 543 (1993) (describing criminal disenfranchisement as “an outright barrier to voting that, like the poll
tax and literacy test, was adopted in some states with racially discriminatory intent and has operated throughout our
nation with racially discriminatory results”); Ziegler, Legal Outlier, Again? U.S. Felon Suffrage: Comparative and
International Human Rights Perspectives, supra note 737 at (stating that after the 15th Amendment’s enactment,
“states ‘tailored’ their criminal disenfranchisement legislation to cover crimes they considered African-Americans
more likely to commit and excluded crimes they thought both races were equally likely to commit”); Wood &
Budnitz, supra note 694 at 4 (concluding that “criminal disenfranchisement laws were part of the effort to maintain
white control over access to the polls.”).
744
Ziegler, Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights Perspectives,
supra note 737 at 217-18.
745
Ratliff v. Beale, 74 Miss. 247, 20 So. 865, 868 (1896).
746
For more information on Mississippi’s post-Reconstruction efforts to restrict African-American voting rights, see
USCCR, Minority Voting Rights Access, supra note 634 at 17 (reporting, inter alia: “In Mississippi, during Jim
Crow, voter suppression was based on a new state constitution enacted in 1890, which specifically intended to
exclude African Americans from political participation.”).
747
Ziegler, Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights Perspectives,
supra note 737 at 217-18. The Commission acknowledges that the decrease in black voter registration rates during
the post-Reconstruction period corresponded with the proliferation of not only felony disenfranchisement laws, but
also various tactics designed to block African Americans from voting, such as poll taxes and literacy tests. See
USCCR, Minority Voting Rights Access, supra note 634 at 17-18.
748
Ziegler, Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights Perspectives,
supra note 737 at 217-18.
749
Id.

106

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
rights, and some advocates contend that the continually disproportionate negative impact of these
laws on black people evince the laws’ ongoing racially discriminatory purpose. 750
749F

Supporters of felony disenfranchisement have tended to downplay the racial origins of these laws.
In his testimony at the Commission’s briefing on collateral consequences, attorney Hans von
Spakovsky of the Heritage Foundation stated, “[t]he claim that state laws that take away the right
of felons to vote are all rooted in racial discrimination is simply historically inaccurate . . . it is true
that five Southern states passed race-targeted felon disenfranchisement laws from 1890 to 1910,
but those laws have all been changed and amended.” 751 Other supporters argue that because several
states had already enacted felony disenfranchisement laws before the Civil War, the more recent
laws could not have been racially motivated. 752 However, this argument neglects to address the
research showing that former Confederate states shaped their laws to address crimes they deemed
more likely to be committed by black people. 753
750F

751F

752F

Regardless of the origins of felony disenfranchisement laws, the data showing their
disproportionate effect on black people today are irrefutable. 754 While felony disenfranchisement
laws are facially race neutral to comply with the 15th Amendment, they disproportionately affect
people of color because these groups are convicted and incarcerated at disproportionate rates. 755
As previously noted in this report, black voters are disenfranchised at four times the rate of nonblack voters. 756 Moreover, black people represent nearly 40 percent of the population in federal
prisons, about 28 percent of adults on probation, and approximately 38 percent of adults on
753F

754F

75F

750

Id.; see also Chin, Reconstruction, Felon Disenfranchisement, and the Right to Vote: Did the Fifteenth
Amendment Repeal Section 2 of the Fourteenth Amendment?, supra note 679 at 261-62.
751
von Spakovsky Statement at 4.
752
Roger Clegg, George T. Conway III, & Kenneth K. Lee, The Case Against Felon Voting, 2 U. ST. THOMAS J.L. &
PUB. POL’Y 1, 3 (2008).
753
Id.; see also Ziegler, Legal Outlier, Again? U.S. Felon Suffrage: Comparative and International Human Rights
Perspectives, supra note 737 at (stating that after the 15th Amendment’s enactment, “states ‘tailored’ their criminal
disenfranchisement legislation to cover crimes they considered African-Americans more likely to commit and
excluded crimes they thought both races were equally likely to commit”); Wood & Budnitz, supra note 694 at 4
(concluding that “criminal disenfranchisement laws were part of the effort to maintain white control over access to
the polls.”).
754
See “Chapter 1: Demographics of the Corrections Population,” supra notes 96-130.
755
Manza & Uggen, Punishment and Democracy: Disenfranchisement of Nonincarcerated Felons in the United
States, supra note 638 at 492; Human Rights Watch and the Sentencing Project, Losing the Vote: The Impact of
Felony Disenfranchisement Laws in the United States, 1998, https://www.sentencingproject.org/wpcontent/uploads/2016/01/Losing-the-Vote-The-Impact-of-Felony-Disenfranchisement-Laws-in-the-UnitedStates.pdf; Wheelock, “Collateral Consequences and Racial Inequality: Felon Status Restrictions as a System of
Disadvantage,” supra note 103 at 84; Mauer, Voting Behind Bars: An Argument for Voting by Prisoners, supra note
39 at 553-54; American Civil Liberties Union et al., Democracy Imprisoned: A Review of the Prevalence and Impact
of Felony Disenfranchisement Laws in the United States, supra note 696 at 2. See also Chapter 1, “The
Demographics of the Corrections Population,” supra notes 96-130.
756
Uggen, 6 Million Lost Voters, supra note 635 at 3.

107

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
parole, 757 despite accounting for roughly 13 percent of the U.S. population. 758 An estimated 2.2
million black people are disenfranchised because of their contact with the criminal justice
system. 759 In addition, felony disenfranchisement laws increasingly affect Latino people: Although
approximately 16.3 percent of the U.S. population is Latino, about 32.4 percent of federal prisoners
are Latino. 760
756F

75F

758F

759F

But supporters of the laws have contended that “[t]he racial impact of these laws is irrelevant” as
a constitutional or policy matter. 761 What matters, according to their reasoning, is that the
Constitution authorizes state legislators to determine voting qualifications that are facially neutral
in their states; legislators should do so and “let the chips fall where they may.” 762
760F

761F

Legal Challenges
The Supreme Court did not weigh in on the issue of felony disenfranchisement until the 20th
century. First, in the 1974 case Richardson v. Ramirez, the Supreme Court interpreted Section 2
of the 14th Amendment as constitutional support for the power of states to disenfranchise those
who participate in “rebellion, or other crime” and, by extension, people convicted of felonies. 763
But in 1985, the Court added a caveat. In Hunter v. Underwood, the Court held that a
disenfranchisement law directed at crimes of “moral turpitude” violated the Equal Protection
Clause of the 14th Amendment because, although facially neutral, the law was enacted with a
racially discriminatory purpose. 764 The Court examined a section of the Alabama Constitution of
1901, which disenfranchised people convicted not only of certain felonies but also undefined
“crime[s] involving moral turpitude” and many misdemeanors. 765 Upon review of the legislative
762F

763F

764F

757

Federal Bureau of Prisons, “Inmate Race,” 2018, https://www.bop.gov/about/statistics/statistics_inmate_race.jsp
(last accessed Dec. 13, 2018); Kaeble, Probation and Parole in the United States, 2016, supra note 115 at 17, 23.
758
U.S. Census Bureau, “Quick Facts: Population Estimates,” July 1, 2017,
https://www.census.gov/quickfacts/fact/table/US/PST045217.
759
Christopher Uggen, Sarah Shannon, Jeff Manza, State-Level Estimates of Felon Disenfranchisement in the
United States, The Sentencing Project, 2012, at 17,
http://www.sentencingproject.org/doc/publications/fd_State_Level_Estimates_of_Felon_Disen_2010.pdf.
760
Sharon R. Ennis, Merarys Rios-Vargas, Nora G. Albert. The Hispanic Population: 2010, 2011, at 2-3,
https://www.census.gov/content/dam/Census/library/publications/2011/dec/c2010br-04.pdf; Carson, Prisoners in
2016, supra note 1 at 5; U.S. Federal Bureau of Prisons, “Inmate Ethnicity,” supra note 113.
761
Hans von Spakovsky & Roger Clegg, Felon Voting and Unconstitutional Congressional Overreach, The
Heritage Foundation, 2015, at 9, http://thf_media.s3.amazonaws.com/2015/pdf/LM145.pdf.
762
Ibid.
763
418 U.S. 24 at 54. Justice Marshall dissented, noting that “there is little independent legislative history as to the
crucial words ‘other crime’,” and pointing out that Section 2 “does not differentiate between felonies and
misdemeanors;” he further asserted that “absurd results” would occur if “other crime” was interpreted to mean “any
crime.” Id. at 75 n.24, 72-73 (Marshall, J., dissenting). Marshall also argued that “the disenfranchisement of exfelons must be measured against the requirements of the Equal Protection Clause of [section] 1 of the Fourteenth
Amendment.” Id. at 77 (Marshall, J., dissenting).
764
471 U.S. 222, 233 (1985). For an in-depth discussion of racial discrimination and disenfranchisement, see “The
Racial Origins of Disenfranchisement Laws and Ongoing Disparities,” in this chapter, supra notes 730-62.
765
Hunter, 471 U.S. at 226.

108

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
history, the Court noted that the constitutional convention’s all-white delegates publicly stated
their intent “to establish white supremacy” and pointedly chose to disenfranchise individuals
convicted of offenses they believed were “more frequently committed by blacks” when enacting
the section. 766 The Court concluded that Alabama added the constitutional provision “motivated
by a desire to discriminate against blacks,” and that Alabama would not have enacted it “but for”
this unconstitutional motive, regardless of whether the state also intended to discriminate against
“poor whites.” 767 Moreover, the Court asserted that “events occurring in the succeeding 80 years”
could neither validate the provision nor erase the ongoing racial impact of the provision “to this
day.” 768
765F

76F

In cases where intentional discrimination cannot be proven, Section 2 of the Voting Rights Act of
1965 (VRA) bans voting qualifications that “result in the denial or abridgement of voting rights of
any citizen of the United States on account of race or color.” 769 A 1982 amendment made clear
that proof of discriminatory purpose or intent was not required. 770 Given the inequitable impact of
disenfranchisement laws on black people, 771 advocates of reform began to question their legality
based on Section 2 of the VRA. 772 Some scholars have referred to felony disenfranchisement as a
“modern literacy test.” 773
768F

769F

70F

71F

72F

Thus far, arguments about disenfranchisement laws as Section 2 violations have not succeeded in
the courts. For instance, in Johnson v. Governor of State of Fla., the Eleventh Circuit
acknowledged that Section 2 allows a plaintiff to prove a VRA violation exists without showing
discriminatory intent, but viewed felony disenfranchisement laws as “unlike other voting
qualifications” partly because they “are deeply rooted in this Nation’s history and are a punitive
device stemming from criminal law.” 774 After reviewing the legislative history of the VRA and
finding no “clear statement from Congress” that it intended the VRA to “encompass felon
disenfranchisement provisions,” the court concluded that Section 2 should not apply to felon
73F

766

Id. at 227-29.
Id. at 232. In its defense, Alabama contended that the constitutional provision’s “real purpose” was to
disenfranchise both “poor whites” and black people. Id. at 230. The Court responded that even if this additional
intent existed and was deemed permissible, it would not negate the unconstitutionality of the state’s racial
motivation in enacting the provision. Id. at 232.
768
Id. at 232-33.
769
52 U.S.C. § 10301(a) (formerly cited as 42 U.S.C. § 1973(a)).
770
Kevin J. Coleman, The Voting Rights Act of 1965: Background and Overview, Congressional Research Service,
2015, at 21, https://fas.org/sgp/crs/misc/R43626.pdf.
771
See Chapter 1, “Demographics of the Corrections Population,” supra notes 96-130; see also “Racial Origins of
Disenfranchisement Laws and Ongoing Disparities,” supra notes 730-62.
772
52 U.S.C. § 10301(a) (stating that “[n]o voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or
abridgement of the right of any citizen of the United States to vote on account of race or color…”).
773
Campagna et al., “Restrictions on the Citizenship Rights of Felons: Barriers to Successful Reintegration,” supra
note 8 at 23.
774
405 F.3d at 1228 (internal citations omitted).
767

109

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
disenfranchisement laws. 775 Similarly, in rejecting a Section 2 challenge to a disenfranchisement
law, the First Circuit cited “the historic legitimacy of felon disenfranchisement, the constitutional
recognition of the authority of states to disenfranchise imprisoned felons, the congressional
recognition of that authority and the express congressional statements that the VRA was not meant
to proscribe that authority.” 776
74F

75F

By contrast, the Ninth Circuit ruled that disenfranchisement laws were not entirely exempt from
Section 2 challenges. 777 However, the court held that a challenger bringing such a claim “based on
the operation of a state’s criminal justice system must at least show that the criminal justice system
is infected by intentional discrimination or that the felon disenfranchisement law was enacted with
such intent.” 778 Moreover, the court was noncommittal about whether a litigant meeting this
burden of proof “would necessarily” prove a Section 2 violation. 779 This case law illustrates the
extreme difficulties faced by plaintiffs seeking to repeal disenfranchisement laws based on the
VRA.
76F

78F

In Louisiana, plaintiffs representing and including disenfranchised individuals challenged the
state’s felony disenfranchisement law on the ground that it conflicts with the state constitution.780
The plaintiffs argued that the state law, which prohibits people with felony convictions from voting
while on probation or parole, conflicts with the Louisiana Constitution, which forbids people with
felony convictions from voting only during “imprisonment.” 781 After the trial court granted the
Louisiana Secretary of State’s motion for summary judgment in June 2017, 782 the plaintiffs filed
an appeal the following September. 783 But the state court of appeals rejected the plaintiffs’
argument, 784 and the Louisiana Supreme Court denied the plaintiffs’ appeal. 785 In the meantime,
Louisiana enacted a law to restore voting rights to people who were convicted of felonies and have
79F

780F

781F

782F

783F

775

784F

Id. at 1227-34.
Simmons, 575 F.3d at 42.
777
Farrakhan, 623 F.3d at 993-94 (emphasis in original).
778
Id.
779
Id. (emphasis in original).
780
Class Action Petition for Declaratory and Injunctive Relief, Voice of the Ex-Offender, et al. v. Louisiana, Docket
No. 649587, at 7-10 (La. 6/30/16); see also Joe Gyan, Jr., “Appeal challenging Louisiana Constitution felon voting
rights law taken to state’s high court,” The Advocate, June 8, 2018,
https://www.theadvocate.com/baton_rouge/news/courts/article_c1f80324-6b5a-11e8-b016-57c105c0e29d.html.
781
Class Action Petition for Declaratory and Injunctive Relief, Voice of the Ex-Offender, et al. v. Louisiana, Docket
No. 649587, at 8-10 (La. 6/30/16); see also LA. STAT. ANN. § 18:102(A)(1) (disenfranchising people convicted of
felonies while incarcerated, on probation, or on parole); LA. CONST. art. I, § 10 (granting state citizens ages 18 and
older “the right to register and vote, except that this right may be suspended while a person is interdicted and
judicially declared mentally incompetent or is under an order of imprisonment for conviction of a felony.”).
782
Hearing and Oral Reasons for Judgment, Johnson v. Louisiana, Docket No. 649587, at 16 (La. 3/13/17).
783
Voice of the Ex-Offender, et al. v. Louisiana, No. 2017-CA-1141 (La. App. 1 Cir. 9/27/17).
784
Voice of Ex-Offender v. State, 249 So. 3d 857, 863-64, reh’g denied (Apr. 27, 2018), reh’g denied (May 9, 2018),
writ denied, 2018-0945 (La. 10/29/18), 255 So. 3d 575.
785
Voice of Ex-Offender v. State, 2018-0945 (La. 10/29/18), 255 So. 3d 575.
776

110

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
been released from incarceration for five years. 786 The law was scheduled to take effect in March
2019. 787
785F

786F

As discussed in the next section, Florida voters approved a constitutional amendment restoring the
franchise to people who had served their sentences after felony convictions, 788 but excluding
people convicted of murder or a felony sexual offense. 789 In Florida, people convicted of these
felonies are permanently banned from voting unless the governor and two cabinet members
(collectively, the Clemency Board) restore their civil rights. 790 Florida’s Rules of Executive
Clemency specify that qualifying individuals must wait at least seven years after completing their
sentences to apply for rights restoration to the board, which may consider selected applications
during one of its four scheduled hearings each year. 791 Under the rules, the governor maintains
“unfettered discretion to deny clemency at any time, for any reason,” and the governor and two
board members have “unfettered discretion to grant” clemency “at any time, for any reason.” 792
78F

78F

789F

790F

791F

In Hand v. Scott, a federal court found that Florida’s clemency-based voting rights restoration
process violated the 1st Amendment of the Constitution and the 14th Amendment’s Equal
Protection Clause. 793 The court pointed out that these protections include the freedom to associate
with a political party and the freedom to express political speech by voting. 794 It then found that
despite Florida’s legitimate interest “in limiting the franchise to responsible individuals,” the state
had not chosen the least restrictive means possible to advance that interest. 795 The court asserted
792F

793F

794F

786

H.B. 265, 2018 Leg., Reg. Sess., Act 636 (La. 2018) (effective 3/1/19). See also Louisiana Advisory Committee
to the U.S. Commission on Civil Rights, Barriers to Voting in Louisiana, supra note 670 at 22-23. In this report, the
Commission’s Louisiana SAC discussed the legal structure of felony disenfranchisement in the state, including the
new law and the ongoing litigation challenging felony disenfranchisement.
787
H.B. 265, supra note 786.
788
See “The Restoration of Voting Rights,” infra notes 805-889.
789
The amendment, which took effect on Jan. 8, 2019, specifies that “[n]o person convicted of murder or a felony
sexual offense shall be qualified to vote until restoration of civil rights.” See Fla. Division of Elections,
Constitutional Amendment Petition Form, “Voting Restoration Amendment,” supra note 640 at Art. IV, § 4(b). An
individual convicted of murder or a felony sexual offense will “continue to be permanently barred from voting
unless the Governor and Cabinet vote to restore their voting rights on a case by case basis.” See Floridians for a Fair
Democracy, “Voting Restoration Amendment,” https://secondchancesfl.org/about/voting-restoration-amendment/
(last accessed Dec. 18, 2018). See also FLA. STAT. ANN. § 944.292 (suspending the civil rights of a person convicted
of a felony until grant of “a full pardon, conditional pardon, or restoration of civil rights” pursuant to the state
constitution); FLA. STAT. ANN. § 97.041(2)(b) (prohibiting individuals convicted of felonies from voting until civil
rights restoration); FLA. CONST. art. IV, § 8(a) (authorizing the governor, with approval of two cabinet members, to
restore a person’s civil rights).
790
FLA. STAT. ANN. §§ 944.292, 97.041(2)(b); FLA. CONST. art. IV, § 8(a). See also Fla. Commission on Offender
Review, Rules on Executive Clemency, Rule 1, at 3, https://www.fcor.state.fl.us/docs/clemency/clemency_rules.pdf
(declaring that “[t]he Governor and members of the Cabinet collectively are the Clemency Board.”).
791
Fla. Commission on Offender Review, Rules on Executive Clemency, Rules 10(a), 11(A), 12(A), supra note 790
at 14-16.
792
Id. at 4.
793
285 F. Supp. 3d 1289, 1292, 1309 (N.D. Fla. 2018).
794
Id. at 1295-99.
795
Id. at 1300-01.

111

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
that Florida’s process risked “arbitrary and discriminatory vote-restoration” because the process
granted the governor and board “unfettered discretion” to restore the franchise to political
supporters and deny the franchise to political opponents. 796 It noted ample evidence in the record
showing that viewpoint discrimination (i.e., discriminating against petitioners based on their
political views) and lack of clear time limits resulting in years of delays in processing applications
had infected the rights restoration process in violation of the 1st Amendment. 797 Moreover, the
rights restoration process violated the 14th Amendment’s Equal Protection Clause because it
allowed the governor and board to “make ‘completely arbitrary distinction[s] between groups of
felons.’” 798
795F

796F

79F

The federal court ordered Florida to develop “specific and neutral criteria to direct vote-restoration
decisions” and prohibited officials from enforcing “the current unconstitutional” voting restoration
process. 799 Florida immediately appealed, and in 2018, the Eleventh Circuit Court of Appeals lifted
the federal district court’s injunction, thereby allowing the clemency-based rights restoration
process (as amended by the Voter Restoration Amendment) to continue pending the appeal. 800
798F

79F

Iowa 801 and Kentucky 802 permanently disenfranchise individuals with any felony conviction
unless they receive an executive pardon, clemency, or rights restoration. In January 2019,
80F

796

801F

Id. at 1301-03.
Id. The court described the risk of viewpoint discrimination in Florida as “distressingly real. Plaintiffs identify
several instances of former felons who professed political views amenable to the [executive clemency] Board’s
members who then received voting rights, while those who expressed contrary political views to the Board were
denied those same rights. Applicants—as well as their character witnesses—have routinely invoked their
conservative beliefs and values to their benefit.” Id. at 1302.
798
Id. at 1308 (internal citations omitted).
799
Hand v. Scott, 315 F. Supp. 3d 1244, 1255-56 (N.D. Fla. 2018).
800
Hand v. Scott, 888 F.3d 1206, 1215 (11th Cir. 2018).
801
IOWA CONST. art. II, § 5 (disqualifying “a person convicted of any infamous crime” from voting). The Supreme
Court of Iowa held that an “infamous crime under the constitution means felony crime.” Griffin v. Pate, 884 N.W.2d
182, 205 (Iowa 2016). The same court also recognized the power of the governor to restore voting rights via pardon.
State v. Richardson, 890 N.W.2d 609, 624 n.11 (Iowa 2017). See also IOWA CODE ANN. § 914.2 (permitting persons
convicted of a crime to apply “to the board of parole for recommendation or to the governor for a reprieve, pardon,
commutation of sentence, remission of fines or forfeitures, or restoration of rights of citizenship at any time
following the conviction.”). ; Office of the Governor, “Executive Clemency,” https://governor.iowa.gov/constituentservices/restoration-of-citizenship-rights (specifying that the “Application for Restoration of Citizenship” must be
filed for most individuals to regain the right to vote) (last accessed Feb. 20, 2019). Individuals who had discharged
their sentence before July 4, 2005 had their rights restored automatically under Executive Order 42. Ibid. Note that
Iowa’s governor has expressed interest in implementing further automatic voting restoration for people with felony
convictions in the state. See Tim Lau, “Progress on Voting Rights Restoration in Iowa?” Brennan Center for Justice
Blog, Nov. 21, 2018, https://www.brennancenter.org/blog/progress-on-voting-rights-restoration-in-iowa.
802
KY. CONST. § 145 (disqualifying “[p]ersons convicted in any court of competent jurisdiction of treason, or
felony, or bribery in an election, or of such high misdemeanor as the General Assembly may declare” from voting,
but allowing civil rights restoration upon executive pardon); KY. REV. STAT. ANN. § 196.045 (directing the Dep’t of
Corrections to develop regulations for applications of “eligible felony offenders” who have served their full sentence
for civil rights restoration, including the right to vote, and to “[f]oward information on a monthly basis of eligible
felony offenders who have requested restoration of rights to the Office of the Governor for consideration of a partial
pardon.”).
797

112

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
disenfranchised plaintiffs with felony convictions filed a complaint alleging that Kentucky’s
voting rights restoration process violates the 1st Amendment. 803 The plaintiffs argue that the
governor’s “unfettered discretion” and the lack of “reasonable, definite time limits” within the
restoration process risked “arbitrary, biased, and/or discriminatory treatment of restoration of
voting rights applications.” 804 At the time of this writing, the case was still pending.
802F

803F

The Restoration of Voting Rights
Some states, including Florida, have taken steps through ballot initiatives, legislative processes, or
gubernatorial action toward voting rights restoration for persons with felony convictions. 805
804F

Florida’s state constitution previously disenfranchised people with any felony conviction
indefinitely, 806 who comprised approximately 10.6 percent of the state’s voting-age population.807
In 2018, Florida voters approved a ballot measure known as the Voting Restoration Amendment,
which restores voting rights to people convicted of felonies other than murder or sexual offenses
who have completed their sentence (including probation and parole); those individuals convicted
of murder or sexual offenses still fall under the clemency regime discussed above. 808 An estimated
1.4 to 1.5 million Floridians regained the right to vote as a result of the new amendment. 809 In
Tampa alone, during the first week that the amendment took effect, the average number of voter
registrations surged to about 2.5 times the weekly average in the preceding months. 810 Moreover,
at the start of 2019, black people represented 22 percent of Tampa’s registered voters; but on the
805F

806F

807F

80F

809F

803

Third Amended Complaint for Declaratory and Injunctive Relief, Harbin v. Bevin, No. 6:18-CV-277-KKC, ¶¶ 7,
35-36, 46 (E.D. Ky. Jan. 4, 2019),
https://docs.wixstatic.com/ugd/85cfb4_843027b8b9554a63aac28a2c24606ed8.pdf.
804
Id. at ¶¶ 39-40, 49-50.
805
See generally Ballotpedia, “2018 Ballot Measures: Voting Requirements and Ballot Access,”
https://ballotpedia.org/2018_ballot_measures (last accessed Oct. 2, 2018). According to research, states generally
are not enacting more restrictive felony disenfranchisement laws. See Sarah Jackel & Stuart A. Thompson, “The
Myth of the Lazy Nonvoter,” New York Times, Oct. 5, 2018,
https://www.nytimes.com/interactive/2018/10/05/opinion/midterm-election-voter-turnout-photo-id.html?smid=twnytopinion&smtyp=cur (citing research from the Campaign Legal Center on state felony disenfranchisement laws, at
https://campaignlegal.org/restoreyourvote/). See also supra notes 780-86 (discussing the law enacted in Louisiana to
restore voting rights to people convicted of felonies when five years have elapsed since their release from
incarceration).
806
Advancement Project, Democracy Disappeared: How Florida Silences the Black Vote through Felony
Disenfranchisement, 2018, at 29, https://advancementproject.org/wp-content/uploads/2018/10/Democracydisappeared-FOR-ONLINE-without-blank-pp_26Sep2018.pdf.
807
Ibid. at 21.
808
Fla. Division of Elections, “Voting Restoration Amendment 14-01,” Constitutional Amendment Petition Form,
supra note 647.
809
The Brennan Center, “Voting Rights Restoration Efforts in Florida,”
https://www.brennancenter.org/analysis/voting-rights-restoration-efforts-florida (last accessed Dec. 8, 2018); Uggen,
6 Million Lost Voters, supra note 635 at 3.
810
Langston Taylor, “Amendment 4 is already changing Tampa’s electorate,” Tampa Bay Times, Feb. 7, 2019,
https://www.tampabay.com/florida-politics/buzz/2019/02/07/amendment-4-is-already-changing-tampas-electorateheres-how/.

113

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
first day the amendment took effect (January 8), black people accounted for 47 percent of new
voter registrations. 811 Black voters constituted 35 percent of new voter registrations in Tampa
during the first week of the amendment’s implementation alone. 812 These numbers illustrate the
disproportionate effect of felony disenfranchisement on black voters in just one city in Florida. 813
810F

81F

812F

Virginia’s state constitution still permanently disenfranchises people convicted of any felony
unless the governor restores their rights, but unlike in Iowa and Kentucky, many returning
Virginians’ rights have been restored. 814 Individuals whose civil rights are restored by the governor
“or other appropriate authority” may vote 815 if the Commonwealth “remove[s] political disabilities
consequent upon conviction for offenses committed.” 816 In 2016, then-Governor Terry McAuliffe
signed an executive order to restore the civil rights of 206,000 Virginians who had been convicted
of felonies and served their sentences. 817 The governor also indicated his intent to issue similar
orders at the end of each month going forward. 818 In response, Virginia’s state legislature sued the
governor, contending that he had exceeded his authority under the state constitution. 819 The
Virginia Supreme Court agreed with the state legislature, finding that the governor could pardon
individuals only on a “case-by-case” basis and not categorically. 820
813F

814F

815F

816F

817F

81F

819F

Governor McAuliffe responded by embarking on an effort to restore voting rights on an
individualized basis to Virginians with felony convictions who had served their sentences.821 The
820F

811

Ibid.
Ibid.
813
Ibid.
814
VA. CONST. art. II, § 1. See also infra notes 815-23.
815
VA. CONST. art. II, § 1.
816
VA. CONST. art. V, § 12.
817
Howell v. McAuliffe, 292 Va. 320, 326-28 (2016) (summarizing the governor’s April 22, 2016 executive order);
id. at 320:
Article II, Section 1 of the Constitution of Virginia sets out a general rule of law and then provides
for an exception: “No person who has been convicted of a felony shall be qualified to vote unless
his civil rights have been restored by the Governor or other appropriate authority.” Va. Const. art.
II, § 1 (emphasis added). On April 22, 2016, Governor Terence R. McAuliffe issued an Executive
Order that inverts this rule-exception sequence. The practical effect of this Executive Order
effectively reframes Article II, Section 1 to say: “No person who has been convicted of a felony
shall be disqualified to vote unless the convicted felon is incarcerated or serving a sentence of
supervised release.”
818
Id. at 328.
819
Id.
820
Id. at 349.
821
Lindsey Turok, Howell v. McAuliffe: Felon Disenfranchisement in Virginia and the “Cautious and Incremental
Approach” to Voting Equality, 28 GEO. MASON U. CIV. RTS. L.J. 341, 342-43 (2018).
812

114

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
state legislature’s attempt to hold the government in contempt of court failed, 822 and the governor
restored the voting rights of more than 170,000 individuals by the end of his term. 823
821F

82F

In April 2018, New York Governor Andrew Cuomo signed an executive order removing voting
restrictions for people with felony convictions who are on parole. 824 The order mandates that
individuals on parole “be given consideration for a conditional pardon that will restore voting
rights without undue delay.” 825 Prior to the order, New York already allowed individuals on
probation or released from prison without post-release community supervision to vote. 826
823F

824F

825F

Although public opinion is not the arbiter of civil rights, the Commission notes that public opinion
reflects a preference for voting rights restoration. In a 2003 study, academic researchers sought to
measure public opinion about whether voting rights should be restored to individuals with felony
convictions (including currently and formerly incarcerated individuals, and individuals on parole
or probation), and found an overwhelming 81.7 percent of individuals surveyed believed that the
right to vote should be restored to these individuals at some point. 827 And according to a 2016
report, if state policies reflected current public opinion, 77 percent of the 6.1 million people
currently disenfranchised would regain their voting rights. 828 Moreover, Florida’s November 2018
voting rights restoration amendment was supported by 65.5 percent of the state’s total electorate,
including voters from both major political parties. 829
826F

827F

82F

822

Motion for an Order Requiring Respondents to Show Cause Why They Should Not Be Held in Contempt for
Violating the Writ of Mandamus, Howell v. McAuliffe, 788 S.E.2d 706 (Aug. 31, 2016, Va.) (No. 160784) (motion
on behalf of the state legislature to hold the governor in contempt of court); Upon a Petition for Writs of Mandamus
and Prohibition, Howell v. McAuliffe, 778 S.E.2d 706 (Sept. 15, 2016, Va.) (No. 160784) (containing the Virginia
Supreme Court’s unanimous denial of the motion to hold the governor in contempt of court). See also Graham
Moomaw, “Virginia Supreme Court denies Republican effort to hold McAuliffe in contempt over felon voting
rights,” Richmond Times-Dispatch, Sept. 15, 2016, https://www.richmond.com/news/virginia/virginia-supremecourt-denies-republican-effort-to-hold-mcauliffe-in/article_397c5a9f-5695-521c-a791-fabae3e17812.html.
823
Vann R. Newkirk III, “How Letting Felons Vote Is Changing Virginia,” The Atlantic, Jan. 8, 2018,
https://www.theatlantic.com/politics/archive/2018/01/virginia-clemency-restoration-of-rights-campaigns/549830/.
824
2018 Sess. Law News of N.Y. Exec. Order 181, Restoring the Right to Vote for New Yorkers on Parole (April 18,
2018), https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_181.pdf.
825
Id.
826
N.Y. ELEC. LAW § 5-106; see also Office of Governor Andrew M. Cuomo, “Governor Cuomo Signs Executive
Order to Restore Voting Rights to New Yorkers on Parole,” April 18, 2018,
https://www.governor.ny.gov/news/governor-cuomo-signs-executive-order-restore-voting-rights-new-yorkersparole.
827
Pinaire et. al., Barred from the Vote: Public Attitudes Toward the Disenfranchisement of Felons, supra note 628
at 1540.
828
Uggen, 6 Million Lost Voters, supra note 635 at 14.
829
See Ballotpedia, “Florida Amendment 4, Voting Rights Restoration for Felons Initiative (2018),”
https://ballotpedia.org/Florida_Amendment_4,_Voting_Rights_Restoration_for_Felons_Initiative_(2018) (reporting
that 64.5 percent of Florida’s voters supported the amendment) (last accessed Feb. 14, 2019); German Lopez,
“Florida votes to restore ex-felon voting rights with Amendment 4,” Vox, Nov. 7, 2018,
https://www.vox.com/policy-and-politics/2018/11/6/18052374/florida-amendment-4-felon-voting-rights-results
(reporting bipartisan endorsements of the measure).

115

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
The majority of the American public may disfavor permanent disenfranchisement of people with
felony convictions, but opinions differ as to when voting rights should be restored. 830 Research
shows that although most people do not support voting rights for the currently incarcerated, about
80 percent support restoration for people who have completed their sentence, 68 percent support
restoration for people on probation, and 60 percent support restoration for parolees. 831 Some
people advocate for waiting periods or individualized assessments in lieu of automatic restoration,
given a perceived likelihood that formerly incarcerated individuals will commit a new crime. 832
Backers of this approach sometimes cite a U.S. Department of Justice report revealing that twothirds of formerly incarcerated individuals in 30 states were arrested for a new crime within three
years of release, and three-quarters were arrested within five years of release.833 The recidivism
rate within the three- to five-year period post-release may strengthen the case for waiting periods
because, according to this perspective, only formerly incarcerated people who have not been
rearrested within those time periods have proven themselves worthy of regaining the franchise.
829F

830F

831F

832F

By contrast, other scholars cite the high recidivism rates during the initial post-release period as
evidence that current policies are ineffective in helping to reintegrate the formerly incarcerated.834
They argue that if this is the case, policymakers should intensify their efforts to reintegrate
formerly incarcerated people sooner. 835 Some research has identified a positive link between
voting and reduced criminality, suggesting that restoring the right to vote may facilitate
83F

834F

830

Manza & Uggen, Punishment and Democracy: Disenfranchisement of Nonincarcerated Felons in the United
States, supra note 638 at 500.
831
Ibid.
832
See, e.g., von Spakovsky Statement at 5; Roger Clegg, “If You Can’t Follow Laws, You Shouldn’t Help Make
Them,” New York Times, April 22, 2016, https://www.nytimes.com/roomfordebate/2016/04/22/should-felons-everbe-allowed-to-vote/if-you-cant-follow-laws-you-shouldnt-help-make-them (arguing that voting rights should be
restored “on a case-by-case basis after a person has shown that he or she has really turned over a new leaf”).
833
Matthew R. Durose, Alexia D. Cooper, Howard N. Snyder, Recidivism of Prisoners Released in 30 States in
2005: Patterns from 2005 to 2010, U.S. Dep’t of Justice, Bureau of Justice Statistics, 2014, at 1,
https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf. The report indicated that “states were selected for the study
based on their ability to provide prisoner records and the FBI or state identification numbers on persons released
from correctional facilities in 2005.” Ibid. at 16. The states included Alaska, Arkansas, California, Colorado,
Florida, Georgia, Hawaii, Iowa, Louisiana, Maryland, Michigan, Minnesota, Missouri, Nebraska, Nevada, New
Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South
Dakota, Texas, Utah, Virginia, Washington, and West Virginia.
834
See, e.g., Holden & Norris, “What Opponents Get Wrong About Criminal Justice Reform,” supra note 695
(asserting that “what tough-on-crime supporters fail to acknowledge is that a high recidivism rate is proof our
current approach isn’t working, not an argument against reform”); see also American Civil Liberties Union et al.,
Democracy Imprisoned: A Review of the Prevalence and Impact of Felony Disenfranchisement Laws in the United
States, supra note 696 (where the authors argue that “[f]elony disenfranchisement operates contrary to the goals of
ensuring public safety and reducing reoffending by alienating from society those individuals that the criminal justice
system is simultaneously attempting to reintegrate.”). For further discussion about the relationship between felony
disenfranchisement and recidivism, see “Arguments For and Against Felony Disenfranchisement,” supra notes 668720.
835
Holden & Norris, “What Opponents Get Wrong About Criminal Justice Reform,” supra note 695; American
Civil Liberties Union et al., Democracy Imprisoned: A Review of the Prevalence and Impact of Felony
Disenfranchisement Laws in the United States, supra note 696.

116

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
reintegration. 836 Therefore, policies that automatically restore voting rights post-release may
benefit public safety more than those that impose waiting periods. 837
835F

836F

As previously noted, some Commission SACs have reported a general lack of awareness about
post-release voting rights among individuals with criminal convictions, even in states like Illinois
and Ohio that automatically restore the franchise. 838 These findings suggest that the impact of
automatic restoration on reintegration may be limited if corrections personnel do not inform people
with criminal convictions about their rights.839 The SAC reports also highlight the vast differences
among states in terms of the processes implemented to restore voting rights.
837F

83F

For instance, the Tennessee SAC reported that local election officials “had difficulty understanding
and accurately applying” the voting rights restoration and registration process. 840 In Tennessee,
individuals convicted of a serious felony (aggravated rape, first-degree murder, treason, or voter
fraud 841) permanently lose their right to vote; however, individuals convicted of other felonies lose
their right to vote but may petition for rights restoration after “expiration of the maximum sentence
imposed.” 842 If the pardon is granted, the individual must submit proof of both the pardon and the
voting rights restoration to the county elections administrator in order to register to vote. 843 But
before authorizing the individual to register, the county elections administrator must first confirm
839F

840F

841F

842F

836

Christopher Uggen & Jeff Manza, Voting and Subsequent Crime and Arrest: Evidence from A Community
Sample, 36 COLUM. HUM. RTS. L. REV. 193, 213 (2004).
837
Holden & Norris, “What Opponents Get Wrong About Criminal Justice Reform,” supra note 695; American
Civil Liberties Union et al., Democracy Imprisoned: A Review of the Prevalence and Impact of Felony
Disenfranchisement Laws in the United States, supra note 696.
838
See, e.g., Ariz. Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Arizona, supra
note 670 at 9; Ill. Advisory Committee to the U.S. Commission on Civil Rights, Civil Rights and Voting in Illinois,
supra note 670 at 27-30 (reporting that despite Illinois’s automatic restoration of voting rights post-release, some
formerly incarcerated people testified about their mistaken belief that they remained disenfranchised); Ohio
Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Ohio, supra note 670 at 4, 16
(reporting that despite Ohio’s automatic restoration of voting rights post-release, the differences among state
election laws “create confusion and misinformation” and recommending the “universal and systemic notification of
the right to vote to people with felony convictions upon their release from prison”). See also “The Current
Landscape of State Felony Disenfranchisement Laws,” supra notes 635-74.
839
See, e.g., Ohio Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Ohio, supra note
670 at 4, 16 (urging the “universal and systemic notification” of voting rights to people upon release from
incarceration). For more discussion about the absence of mechanisms that clarify and notify the public about
collateral consequences, see Chapter 1, “Notification of Collateral Consequence,” supra notes 199-221.
840
Tenn. Advisory Committee to the U.S. Commission on Civil Rights, The Right to Vote and Ex-Felon
Disenfranchisement in Tennessee, supra note 670 at 9.
841
TENN. CODE ANN. § 40-29-105 (outlining the felonies that result in permanent disenfranchisement, based on the
year of the conviction); TENN. CODE ANN. § 40-20-112 (prohibiting people with criminal convictions from
exercising the right to vote).
842
TENN. CODE ANN. § 40-29-101 (allowing “the circuit court” to restore the rights of citizenship to individuals
“rendered infamous or deprived of the rights of citizenship by the judgment of any state or federal court” and
permitting individuals who have been pardoned to petition for restoration of their rights); TENN. CODE ANN. § 2-19143 (disenfranchising any individual “convicted of an infamous crime…unless such person has been pardoned by
the governor, or the person’s full rights of citizenship have otherwise been restored as prescribed by law.”).
843
TENN. CODE ANN. § 2-2-139(a)-(b).

117

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
with the state coordinator of elections that the individual is indeed eligible. 844 Moreover, “[t]he
state election coordinator is empowered to formulate a uniform procedure for verifying the
registration eligibility of any” individual with a felony conviction, and the county elections
administrator can allow the individual to register only upon receipt of “sufficient verification of
such person’s eligibility to register.” 845 Unsurprisingly, given the complicated nature of this
process, the Tennessee SAC reported not only confusion among local elections officials but also
widespread “concerns about procedural barriers to restoration,” including limited access to court
records needed to comply with the process and “financial hardship” about outstanding child
support payments. 846
843F

84F

845F

During SAC hearings in Alabama and Arizona, experts also testified about state regulations that
further prohibit people with felony convictions from regaining the franchise until they pay certain
fines or fees, even when they are otherwise eligible. 847 One Alabama panelist cited research finding
that one-third of applications filed between 2000 and 2014 for regaining voter registration
eligibility “were denied due to court debt” even when the applicants met all other conditions for
eligibility. 848 About 70 percent of this court debt constituted docket fees (which vary by judicial
district), public defender fees, and district attorney collection fees (“equal to 30 percent of
outstanding debt after 90 days”). 849 The Arizona SAC also recommended that the state “eliminate
the requirement” that people with felony convictions pay outstanding court fees to restore their
voting rights. 850 In Arizona, the superior court judge who delivered the sentence (or the judge’s
846F

847F

84F

849F

844

TENN. CODE ANN. § 2-2-139(b).
TENN. CODE ANN. § 2-2-139(c)
846
Tenn. Advisory Committee to the U.S. Commission on Civil Rights, The Right to Vote and Ex-Felon
Disenfranchisement in Tennessee, supra note 670 at 9.
847
See Ala. Advisory Committee to the U.S. Commission on Civil Rights, Access to Voting in Alabama, supra note
670 at 19-20; Ariz. Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Arizona, supra
note 670 at 9-10. See also Ala. Board of Pardons and Paroles, “About Us: Rules, Regulations, and Procedures, art.
9,” http://www.pardons.state.al.us/DisplayPDF.aspx?sh=Voting (requiring people who were convicted of crimes of
moral turpitude, seeking to regain the right to vote, and unable to pay fines to apply for remission of fines, which
must be approved by the Board) (last accessed May 6, 2019); Ariz. Board of Executive Clemency, “Frequently
Asked Questions,” http://www.pardons.state.al.us/DisplayPDF.aspx?sh=Rules (stating that Arizona's Board of
Executive Clemency will consider “[w]hether the applicant is delinquent on any outstanding fees, restitution and/or
other obligations” in deciding whether to forward voting restoration applications to the governor, who ultimately
decides if the applicant with a felony conviction will receive a pardon restoring the franchise) (last accessed May 6,
2019).
848
Ala. Advisory Committee to the U.S. Commission on Civil Rights, Access to Voting in Alabama, supra note 670
at 19 (testimony of Johnathan Barry-Blocker) (citing Marc Meredith & Michael Morse, Discretionary
Disenfranchisement: The Case of Legal Financial Obligations, 46 J. LEGAL STUD. 309, 329 (2017)).
849
Marc Meredith & Michael Morse, Discretionary Disenfranchisement: The Case of Legal Financial Obligations,
46 J. LEGAL STUD. 309, 324 (2017).
850
Ariz. Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Arizona, supra note 670 at
10. See also Maricopa Cty. Recorder’s Office, “Restoration of Right to Vote,”
https://recorder.maricopa.gov/elections/restorationofvotingrights.aspx (stating that for a person with one felony
conviction to qualify for voting rights restoration, “[i]f a fine or restitution was imposed, that fine and/or restitution
must be paid in full”) (last accessed Feb. 13, 2019).
845

118

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
successor) exercises discretion about whether to restore the convicted person’s voting rights; 851
although voting rights restoration generally occurs when applicants pay mandatory fines and
satisfy other criteria, this wide judicial latitude sometimes prevents restoration even when
applicants are otherwise eligible. 852 Tennessee’s application for voting rights restoration also
mandates the payment of “[a]ll of the restitution ordered by the court as a part of the sentence” for
a person with a felony conviction to become eligible for exercising the right to vote once again. 853
850F

851F

852F

Due in part to the variability of state laws, some policymakers have proposed federal action on
the issue of voting rights restoration. In his written testimony to the Commission, Senator
Benjamin Cardin (D-MD) discussed the Democracy Restoration Act that he submitted to the
114th Congress (S. 772). 854 The bill sought to create a national standard to restore voting rights
to formerly incarcerated individuals. 855 Senator Cardin cited three discrepancies in state laws that
the bill would seek to rectify, including: 856
853F

854F

85F



The lack of uniformity in voting in federal elections, which creates an “unfair disparity
and unequal participation” based on a person’s residence. 857
The lack of uniformity in state laws that allow or disallow the restoration of rights. 858
The disproportionate impact that disenfranchisement has on racial and ethnic
minorities. 859
856F




857F

85F

851

ARIZ. REV. STAT. ANN. § 13-908.
See Ariz. Advisory Committee to the U.S. Commission on Civil Rights, Voting Rights in Arizona, supra note 670
at 9 (reporting that “25 percent of formerly incarcerated individuals who served time in Maricopa County, who did
not owe fees, were denied restoration of voting rights due to [a] judge’s decision.”).
853
Tenn. Division of Elections, Certificate of Restoration of Voting Rights, 2017, https://sos-tn-govfiles.tnsosfiles.com/forms/ss-3041.pdf.
854
Cardin Statement at 1; S. 772, 114th Cong. (2015).
855
Cardin Statement at 1; S. 772, 114th Cong. (2015).
856
Cardin Statement at 2-3.
857
Ibid. at 2.
858
Ibid. at 3.
859
Ibid.
852

119

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
The previously introduced version of the bill drew widespread support from civil rights and reform
organizations, religious and faith-based organizations, and law enforcement and criminal justice
organizations. 860 In 2017, Senator Cardin reintroduced the bill as S. 1588 in the 115th Congress. 861
In the 116th (current) Congress, Congressman Jerrold Nadler (D-NY) introduced the Democracy
Restoration Act of 2019 as H.R. 196, which mirrors Senator Cardin’s bill. 862 In addition, the For
the People Act of 2019, introduced by Congressman John Sarbanes (D-MD) as H.R. 1,
incorporates the Democracy Restoration Act and would prohibit the denial or abridgement of a
citizen’s right to vote based on his or her conviction “of a criminal offense unless such individual
is serving a felony sentence in a correctional institution or facility at the time of the election.” 863
859F

860F

861F

862F

Critics of this type of legislation have argued that Congress lacks the constitutional authority to
impose a national standard on states relating to the qualifications of voters. 864 For support, they
point to Article I, Section 2’s provision that voters for members of the House of Representatives
in each state “shall have the Qualifications requisite for Electors of the most numerous Branch of
the State Legislature.” 865 According to the bill’s critics, this clause implies that if states must
determine the qualifications of voters for state elections, then states must determine voting
863F

864F

860

Ibid. at 6-11. Senator Cardin’s testimony attached three separate letters of support from multiple organizations.
See “Letter In Support Of The Democracy Restoration Act (S. 772/ H.R. 1459) From Civil Rights And Reform
Organizations,” March 25, 2015, including AFL-CIO, African American Ministers In Action, American Civil
Liberties Union, American-Arab Anti-Discrimination Committee (ADC), Asian Americans Advancing Justice |
AAJC, Bend the Arc Jewish Action, Brennan Center for Justice, Commission on Social Action of Reform Judaism,
Common Cause, Communication Workers of America, CURE, DC Vote, Demos, Drug Policy Alliance, Fair
Elections Legal Network, FairVote, FedCURE, Global Alliance, Interfaith Networks, International CURE, Jewish
Council for Public Affairs, Lawyers' Committee for Civil Rights Under Law, The Leadership Conference on Civil
and Human Rights, League of United Latin American Citizens, MALDEF, NAACP, NAACP Legal Defense &
Educational Fund, Inc., National Association of Criminal Defense Lawyers, National Association of Social
Workers, National Council of Jewish Women, National Urban League, NETWORK, A National Catholic Social
Justice Lobby, OurTime.org, People Demanding Action, People For the American Way, Prison Policy Initiative,
Project Vote, The Sentencing Project, Voting Rights Forward; “Letter In Support Of The Democracy Restoration
Act (S. 772/ H.R. 1459) From Religious And Faith-Based Organizations,” March 27, 2018, including African
American Ministers In Action, Bend the Arc Jewish Action, Church of the Brethren, Office of Public Witness,
Commission on Social Action of Reform Judaism, CURE, Disciples Justice Action Network, FedCURE, Global
Alliance Interfaith Networks, Institute for Prison Ministries, International CURE, Jewish Council for Public Affairs,
Mennonite Central Committee U.S. Washington Office, National Council of Churches, National Council of Jewish
Women, NETWORK, A National Catholic Social Justice Lobby, People Demanding Action, Presbyterian Church
(U.S.A.), United Church of Christ, Justice and Witness Ministries, United Methodist Church, General Board of
Church and Society; “Letter In Support Of The Democracy Restoration Act (S. 772/ H.R. 1459) From Law
Enforcement And Criminal Justice Organizations,” March 27, 2018, including American Probation and Parole
Association, Blacks in Law Enforcement of America, Jorge Montes, Principal at Montes & Associates, Former
Chairman, Illinois Prisoner Review Board, International Community Corrections Association. Ibid. at 6-11.
861
S. 1588, 115th Cong. (2017). The 115th Congress runs from Jan. 3, 2017 through the end of Dec. 2018.
862
H.R. 196, 116th Cong. (2019), https://www.congress.gov/116/bills/hr196/BILLS-116hr196ih.pdf. The 116th
Congress runs from Jan. 3, 2019 through the end of Dec. 2020.
863
H.R. 1, 116th Cong. §§ 1401-08 (2019), https://www.congress.gov/116/bills/hr1/BILLS-116hr1ih.pdf.
864
See, e.g., von Spakovsky Statement at 4.
865
U.S. CONST. art. I, § 2, cl. 1.

120

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
qualifications for federal elections. 866 Moreover, they argue, Article I, Section 4 empowers
Congress to regulate the “Time, Places, and Manner” of federal elections in the states, but does
not explicitly authorize Congress to regulate voting qualifications in the states.867
865F

86F

In response, proponents of the legislation maintain that because felony disenfranchisement
disproportionately adversely affects people of color, Congress has more leeway. 868 They note that
although federalism devolves ample election authority to the states, the U.S. Constitution preserves
the right of Congress to regulate federal elections regarding their time, place and manner, and to
protect against racially discriminatory voting procedures in the states. 869 The U.S. Supreme Court,
they argue, has repeatedly upheld the ultimate authority of Congress to supervise federal
elections. 870 Moreover, in upholding the Voting Rights Act of 1965, the Court has upheld the
power conferred upon Congress to guarantee equal protection and access to the ballot regardless
of race under the 14th and 15th amendments. 871 Given the disproportionate impact of felony
disenfranchisement on people of color, supporters of the bill assert, Congress would be well within
its power to enact federal legislation to address the issue. 872
867F

86F

869F

870F

871F

866

von Spakovsky & Clegg, Felon Voting and Unconstitutional Congressional Overreach, supra note 761 at 9.
Ibid.; U.S. CONST. art. I, § 4, cl. 1.
868
Cardin Statement at 2, 4.
869
Ibid. at 2 (citing U.S. CONST. art. I, § 4, cl. 1. (“Congress may at any time by Law make or alter such [state]
Regulations [of elections]”) and U.S. CONST. amend. XIII, XIV, XV, XIX, XXIV, XXVI (authorizing Congress to
enforce, respectively, the abolition of slavery, the duty of states to guarantee due process and equal protection of the
laws, the requirement that states not deny or abridge the right to vote “on account of race, color, or previous
condition of servitude,” the requirement that states not deny or abridge the right to vote “on account of sex,” the
requirement that states not deny or abridge the right to vote “by reason of failure to pay any poll tax or other tax,”
and the requirement that states not deny or abridge the right to vote of citizens aged 18 and older “on account of
age.”)).
870
See, e.g., Ex parte Siebold, 100 U.S. 371, 383-84 (1879) (interpreting the Elections Clause to find that “the power
of Congress over [election regulations] is paramount. It may be exercised as and when Congress sees fit to exercise
it. When exercised, the action of Congress, so far as it extends and conflicts with the regulations of the State,
necessarily supersedes them.”); Ex parte Commonwealth of Virginia, 100 U.S. 339, 345-46 (1879) (“Whatever
legislation is appropriate, that is, adapted to carry out the objects the [Reconstruction] amendments have in view,
whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of
perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited,
is brought within the domain of congressional power.”).
871
See, e.g., Shelby Cty., Ala. v. Holder, 570 U.S. 529, 557 (2013) (declining to invalidate Congressional power
under Section 2 of the Voting Rights Act to enforce “the permanent, nationwide ban on racial discrimination in
voting “); South Carolina v. Katzenbach, 383 U.S. 301, 337 (1966) (upholding Congressional authority codified in
the Voting Rights Act, stating that “Congress has full remedial powers to effectuate the constitutional prohibition
against racial discrimination in voting. Congress has repeatedly exercised these powers in the past, and its
enactments have repeatedly been upheld.”).
872
Cardin Statement at 2, 4 (pointing out that “Article I, Section 4, of the Constitution grants Congress ultimate
supervisory power over Federal elections, an authority which has repeatedly been upheld by the United States
Supreme Court” and that “Congress has a responsibility to remedy [racial disparities] and enact a nationwide
standard for the restoration of voting rights.”); see also Brennan Center, Legal Analysis of Congress’ Constitutional
Authority to Restore Voting Rights, 2009, at 2, 3 n.2,
https://www.brennancenter.org/sites/default/files/legacy/Democracy/Brennan%20Center%20analysis%20of%20DR
A%20federal%20authority%208-10-09.pdf (noting the Supreme Court’s recognition “that Congress’ enforcement
powers are a grant of broad authority to eradicate any racial discrimination in voting” and that “[c]riminal
867

121

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
Prison Gerrymandering and Vote Dilution
Prison gerrymandering refers to the practice of counting incarcerated individuals as residents of
correctional facilities, rather than their home communities, when redrawing electoral maps (i.e.,
during redistricting). 873 Like felony disenfranchisement, prison gerrymandering is a collateral
consequence of a felony conviction, affecting not just incarcerated people but also their home
communities, to which they frequently return.874 Voters have challenged prison gerrymandering
as a violation of the “one-person, one-vote” principle of the Equal Protection Clause, contending
that the practice dilutes the voting strength of incarcerated people’s home communities and inflates
the voting strength of communities where prisons are built. 875 Because prisoners are
disproportionately people of color from more urban areas, and prisons are located in primarily
white, rural areas, prison gerrymandering can unequally redistribute and reapportion political
power and representation. 876
872F

873F

874F

875F

Among the cases litigated thus far, courts have differed in assessing whether prison
gerrymandering violates the Equal Protection Clause. In Florida, a federal district court evaluated
the districting scheme of Jefferson County’s five single-member districts, which elect
representatives to the County’s Board of Commissioners and School Board; the entire county had
an estimated population of 14,761 people. 877 In District 3, the county was home to a state prison
that confined 1,157 people, only nine of whom were convicted in Jefferson County. 878 The
876F

87F

disenfranchisement provisions today continue to have a substantially greater impact on minorities, especially
African American men.”).
873
Harvard Law Review Association, Constitutional Law-Equal Protection-First Circuit Holds That Prison
Gerrymandering Does Not Violate the Equal Protection Clause, 130 HARV. L. REV. 2235 (2017).
874
See Weiss, Housing Access for People with Criminal Records, supra note 413 at 1 (noting that “as more former
prisoners return to their communities, there is a growing concern about how they will fare upon reentry.”). Note that
where “an apportionment scheme” confers “greater ‘representational strength’” upon the district where incarcerated
people are confined than upon their home district, the equal protection rights of people residing in incarcerated
persons’ home districts may be violated. See, e.g., Calvin v. Jefferson Cty. Bd. of Comm’rs, 172 F. Supp. 3d 1292,
1303-04 (N.D. Fla. 2016).
875
See Davidson v. City of Cranston, R.I., 837 F.3d 135, 139 (1st Cir. 2016) (holding that the city’s redistricting
plan, which included nonvoting inmates of a city ward’s correctional facility in the ward’s population count, did not
inflate that ward’s voting strength or dilute the other five wards’ voting strength in violation of the Equal Protection
Clause); Calvin, 172 F. Supp. 3d at 1298, 1325-26 (finding that the county’s redistricting scheme, which counted
nonvoting inmates of a state prison as part of that district’s population, enlarged the district’s representational
strength and diluted the other five districts’ representational strength in violation of the Equal Protection Clause).
876
Julie A. Ebenstein, The Geography of Mass Incarceration: Prison Gerrymandering and the Dilution of
Prisoners’ Political Representation, 45 FORDHAM URB. L.J. 323, 325 (2018).
877
Calvin, 172 F. Supp. 3d at 1295.
878
Id. at 1296. A single-member district is a district in which one elected official represents the entire district,
whereas a multimember district is one in which multiple elected officials represent voters in one district. See
Thornburg v. Gingles, 478 U.S. 30, 46-48 (1986). The Supreme Court has held that multimember district plans may
“impede the ability of minority voters to elect representatives of their choice” when a minority group can show “that
it is sufficiently large and geographically compact to constitute a majority in a single-member district,” that it is
“politically cohesive,” and that the majority group “votes sufficiently as a bloc to enable it . . . to defeat the
minority’s preferred candidate.” Id. at 48-51.

122

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
county’s districting scheme, which included the correctional institution’s population in District 3,
resulted in a 42 percent deviation of the non-incarcerated population as compared to the other four
districts in the county 879 The court found that the scheme denied residents of other districts equal
protection of the laws by diluting their “representational and voting strength” while enlarging that
of District 3 residents. 880 Moreover, the court noted, the county’s incarcerated individuals lacked
a “meaningful representational nexus” with the county government, “in every way that matters for
representative democracy.” 881
87F

879F

80F

By contrast, the First Circuit held only a few months later that the redistricting scheme of a city
ward in Cranston, Rhode Island was not unconstitutional.882 The city ward’s population was
13,642, of whom 3,433 were non-voting inmates. 883 The court found no equal protection violation
because the plaintiffs had not shown “invidious discrimination” on the part of the ward, and absent
a showing of intentional discrimination the court must defer to “local election authorities related
to apportionment.” 884
81F

82F

83F

On February 19, 2019, another federal court held that a case alleging Equal Protection violations
could proceed against the state of Connecticut. 885 This is the first known statewide prison
gerrymandering case. 886 At the time of this writing, it is still unresolved.
84F

85F

Notably, certain legislative initiatives designed to prevent or rectify prison gerrymandering have
been upheld in the courts. 887 In 2010, Maryland enacted the No Representation Without Population
Act, which requires districting authorities to count incarcerated individuals as residents of their
home districts and survived a constitutional challenge. 888 And a New York law that also requires
districting maps to include incarcerated persons as residents of their home districts, rather than the
districts where they are confined, was upheld by a New York state trial court. 889
86F

87F

879

Calvin, 172 F. Supp. 3d at 1298, 1323-24.
Id. at 1323.
881
Id.
882
Davidson, 837 F.3d at 146.
883
Id. at 138.
884
Id. at 141.
885
NAACP, “NAACP Challenge to Prison Gerrymandering Moves Forward, First Statewide Challenge in the
Nation,” Feb. 19, 2019, https://www.naacp.org/latest/naacp-challenge-prison-gerrymandering-moves-forward-firststatewide-challengenation/?fbclid=IwAR3z9RzHn6XBUQmPR6ynCh4TuXF3LufyLxfEK1hjsoganmckzuNDLeybsDM.
886
Ibid.
887
Fletcher v. Lamone, 831 F. Supp. 2d 887, 904 (D. Md. 2011), aff’d, 567 U.S. 930 (2012); Decision and Order,
Little v. LAFTOR, No. 2310-2011 (N.Y. Sup. Ct. Dec. 1, 2011), at 8-9
https://www.prisonersofthecensus.org/little/Decision_and_Order.pdf.
888
Fletcher, 831 F. Supp. at 893, 904.
889
Decision and Order, Little v. LAFTOR, No. 2310-2011 (N.Y. Sup. Ct. Dec. 1, 2011), at 8-9,
https://www.prisonersofthecensus.org/little/Decision_and_Order.pdf.
880

123

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
Jury Service
Jury service represents one of the pillars of the U.S. criminal justice system. The right to be tried
by a jury of one’s peers was established in the U.S. Constitution in 1787. 890 The Supreme Court
has held that exclusion of people of color from jury service violates the defendant’s equal
protection rights because it denies the defendant’s right to a trial “composed of [his] peers or
equals…that is, of his neighbors, fellows, associates, persons having the same legal status in
society as that which he holds.” 891 In addition, the Supreme Court has recognized that denying a
person the right to serve on a jury based on her race “unconstitutionally discriminate[s] against the
excluded juror,” not just the defendant. 892
89F

890F

891F

Federal courts in the United States prohibit people who have been convicted of a felony from
serving on a federal jury. 893 In most U.S. states, individuals with felony convictions are
automatically disqualified from serving on juries for at least some period of time. 894 About 30
states ban people with felony convictions from jury service for life. 895 The restrictions in other
states vary; some impose the ban until the completion of the sentence, parole, and probation 896 and
some for a period of time after incarceration, 897 while others make a juror with a conviction
challengeable for cause. 898 Colorado and Maine are the only two states without restrictions on jury
service based on criminal records (except that Colorado bans people with felony convictions from
892F

893F

894F

895F

896F

897F

890

U.S. CONST. art. III, § 2 (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such
Trial shall be held in the State where the said Crimes have been committed[.]”).
891
Batson v. Kentucky, 476 U.S. 79, 86 (1986) (quoting Strauder v. State of W. Virginia, 100 U.S. 303, 308 (1879)).
See also Hernandez v. State of Tex., 347 U.S. 475, 477-79 (1954) (noting that “the exclusion of a class of persons
from jury service on grounds other than race or color may also deprive a defendant who is a member of that class of
the constitutional guarantee of equal protection” and adding that exclusion of a juror “solely because of their
ancestry or national origin” also runs afoul of the 14th Amendment).
892
Batson, 476 U.S. at 87.
893
28 U.S.C. § 1865(b)(5). Federal law specifically excludes from jury service an individual who “has a charge
pending against him for the commission of, or has been convicted in a State or Federal court of record of, a crime
punishable by imprisonment for more than one year and his civil rights have not been restored.” Id. See also United
States Courts, “Juror Qualifications,” http://www.uscourts.gov/services-forms/jury-service/juror-qualifications (last
accessed Aug. 25, 2018).
894
Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 AM. U. L. REV. 65, 150-58 (2003); see also Anna
Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions, 98 MINN. L. REV. 592, 595-96
(2013).
895
Kalt, The Exclusion of Felons from Jury Service, supra note 894 at 150-58.
896
See, e.g., 9 R.I. GEN. LAWS ANN. § 9-9-1.1(c) (stating “[n]o person convicted of a felony shall be allowed to
serve as a juror, until completion of such felon’s sentence, served or suspended, and of parole or probation
regardless of a nolo contendere plea.”); WIS. STAT. ANN. § 756.02 (disqualifying a person who “has been convicted
of a felony and has not had his or her civil rights restored”) and § 304.078 (restoring civil rights after incarceration,
parole, or probation).
897
See, e.g., MASS. GEN. LAWS ANN. ch. 234A, § 4 (banning a person who “has been convicted of a felony within
the past seven years or is a defendant in pending felony case or is in the custody of a correctional institution”); OR.
CONST. art. I, § 45 (banning a person who has been convicted of “a felony or served a felony sentence within the 15
years immediately preceding the date” of jury service).
898
See, e.g., IOWA RULE 1.915(6)(a) (allowing a juror to be challenged by a party for “[c]onviction of a felony”).

124

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
serving on grand juries). 899 The length of disqualification often varies, as some states implement
a lifetime disqualification, whereas other states allow for temporary or contingent
disqualifications, depending on the particular circumstances of an individual’s criminal record:
89F

The disqualification may end at the same time as one’s imprisonment, or sentence,
or if one is able to obtain an amnesty, annulment, expunction, pardon, reversal, or
restoration of civil rights. The disqualification may be triggered only by a particular
type of felony, by incarceration, or only by incarceration for a certain period of
time. The disqualification may last for only a certain period of years after
conviction, or after completion of one’s sentence. Each jurisdiction makes the cut
differently. 900
89F

In addition to direct disqualifications to jury service based on an individual’s criminal history,
some states limit jury service to “qualified electors,” which indirectly disqualify people with
criminal records from jury service based on a primary exclusion from voting. 901 Forty-eight states
place restrictions on voting rights for individuals with felony convictions, and voter registration
rolls largely contribute to the compilation of lists of potential jurors. 902 Furthermore, about a dozen
states have statutory provisions that may make misdemeanor convictions susceptible to
disqualification from jury service, depending on the type of conviction or otherwise. 903
90F

901F

902F

According to scholarship on the topic, there are two primary rationales for the exclusion of
formerly incarcerated persons from jury service. The first rationale posits that formerly
incarcerated people threaten the probity of the jury (“probity” as in “[m]oral excellence, integrity,
rectitude, uprightness; conscientiousness, honesty, sincerity”); the second contends that (within
the context of criminal trials only) formerly incarcerated people are inherently biased in favor of
criminal defendants. 904 The inherent bias rationale assumes that individuals with criminal
convictions harbor resentment against “the system” that punished them, and will favor the
defendant—seen as “a fellow underdog”—due to this bias. 905
903F

904F

899
COLO. REV. STAT. ANN. § 13-71-105; ME. REV. STAT. TIT. 14, § 1211. A grand jury is a body of 16 to 23 people
“chosen to sit permanently for at least a month—and sometimes a year” in private proceedings to decide whether to
indict an individual accused of a crime. See Black’s Law Dictionary, Grand Jury (10th ed. 2014); see also Wex’s
Legal Dictionary, Grand Jury, Cornell Law School, Legal Information Institute,
https://www.law.cornell.edu/wex/grand_jury (last accessed Oct. 3, 2018). During the grand jury proceedings, the
prosecutor presents the case, with or without the accused present, to convince grand jurors that probable cause exists
to charge the accused with a crime (i.e., issue an indictment). Id.
900
Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions, supra note 894 at 596.
901
Id. at 598.
902
Id. at 595.
903
Id. at 597.
904
Kalt, The Exclusion of Felons from Jury Service, supra note 894 at 73-74.
905
Id. at 74 (quoting Rubio v. Superior Court, 24 Cal. 3d 93, 101 (1979)).

125

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
A recent study examined the validity of the inherent bias rationale. 906 Researchers compared the
pretrial biases of three groups of participants: individuals with felony convictions, eligible jurors
not convicted of felonies, and law school students not convicted of felonies. 907 The study found
that a felony conviction alone is not the sole predictor of pretrial bias that favors the defense (as
opposed to bias favoring the prosecution). Among the factors that predicted pro-defense/antiprosecution bias, the study revealed that enrollment in law school had a greater effect on pretrial
bias than a felony conviction. 908 Furthermore, this study found that a felony conviction does not
uniformly lead to negative views of the law that might create a pro-defense/anti-prosecution bias,
and found that formerly incarcerated persons did not possess a disproportionately negative view
of the law. 909 In fact, there was no significant difference between the formerly incarcerated
persons’ view of the law and that of eligible jurors. 910 No similar studies have focused directly on
this issue. However, researchers continue to repeat the assertion that a juror with a criminal record
is more likely to sympathize with a criminal defendant, without citing supportive data. 911
905F

906F

907F

908F

90F

910F

At the Commission’s 2017 briefing, James Binnall, Assistant Professor at California State
University Long Beach, argued that the inclusion of jurors with criminal records aids their
successful reentry into society:
. . . former offenders spoke of their inclusion in the jury selection process and in
the jury process generally as a corroboration of their reformation, as a certification
of their change. And they also noted how removing barriers to reentry helps a
former offender build a personal narrative that acknowledges a criminal past while
allowing for a law abiding present. As many scholars have noted, this process of
reconciling past events with present and future aspirations is a key component to
[a] criminal's successful reentry. 912
91F

He noted from personal experience that even after admission to the California bar:
I was informed by the Jury Commissioner that I was permanently ineligible for jury
service in California because of my prior felony conviction and I would never be
summonsed again. I protested mildly, explaining that I was an attorney, had used
906

James M. Binnall, “A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding
Convicted Felons from Jury Service?” Law and Policy, vol. 36, no. 1 (2014): 29.
907
Id. at 23.
908
Id.
909
Id. at 29.
910
Id. at 29.
911
Paula Z. Segal, A More Inclusive Democracy: Challenging Felon Jury Exclusion in New York, 13 N.Y. CITY L.
REV. 313, 358 (2010) (referencing the contention of some researchers that people “who have been charged with or
convicted of committing felonies are likely to bear a grudge against the criminal justice system” despite a lack of
supportive evidence).
912
Briefing Transcript at 91-92.

126

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
the special entrance, and was told that I should write my congressman if I was
unhappy about California's juror eligibility requirements. 913
912F

Federal courts have found that the Constitution requires neither the exclusion 914 nor the
inclusion 915 of people with felony convictions on juries. Three federal circuit courts have asserted
that the Sixth Amendment right to an impartial jury does not guarantee a right to “a jury of nonfelons” even if a state law mandates the exclusion of people with felony convictions. 916 In Coleman
v. Calderon, the court reasoned that although the California constitution prohibited people with
felony convictions from jury service, the right to a jury of non-felons is not a constitutionally
guaranteed “fundamental right” that would affect the defendant’s “substantial rights.” 917
Accordingly, the court found, the service of an individual with a felony conviction on a jury did
not deny the defendant due process under the law. 918 Other courts have contended that the Sixth
Amendment right to an impartial jury is intended to protect the defendant from juror bias, which
is not necessarily present when a person with a felony conviction serves on a jury. 919 According
to the courts’ reasoning, a mandatory exclusion of people convicted of felonies from juries “would
be appropriate only if one could reasonably conclude that felons are always biased against one
party or another.” 920
913F

914F

915F

916F

917F

918F

91F

The Supreme Court has not ruled directly on jury exclusion statutes, but has noted that “the
Constitution does not forbid the States to prescribe relevant qualifications for their jurors.”921 In
1970, in Carter v. Jury Commission of Greene County, the Court upheld an Alabama statute that
allowed only jurors who were “generally reputed to be honest and intelligent” and “esteemed in
the community for their integrity, good character and sound judgment.” 922 Black plaintiffs had
alleged that the statute was racially discriminatory and violated their right to serve as jurors,
920F

921F

913

Id. at 88.
See Coleman v. Calderon, 150 F.3d 1105, 1117 (9th Cir.), judgment rev’d on other grounds, 525 U.S. 141 (1998)
(finding that “[t]he Sixth Amendment does not bar ex-felons from jury service.”); United States v. Humphreys, 982
F.2d 254, 261 (8th Cir. 1992) (noting that the “Sixth Amendment right to an impartial jury does not require an
absolute bar on felon-jurors” (quoting United States v. Boney, 977 F.2d 624, 633 (D.C. Cir. 1992)). See also Kalt,
The Exclusion of Felons from Jury Service, supra note 894 at 71.
915
See Perez v. State, 11 S.W.3d 218, 224 (Tex. Crim. App. 2000) (Keller, J., concurring) (asserting that “the
Constitution does not affirmatively prohibit jury service by felons” and “the Constitution does not confer upon the
defendant a right to exclude criminals from the jury”) (emphasis in original); Taylor v. Louisiana, 419 U.S. 522, 538
(1975) (noting that “in holding that petit juries must be drawn from a source fairly representative of the community
we impose no requirement that petit juries actually chosen must mirror the community and reflect the various
distinctive groups in the population. Defendants are not entitled to a jury of any particular composition.”). See also
Kalt, The Exclusion of Felons from Jury Service, supra note 894 at 71-73.
916
Coleman, 150 F.3d at 1117; see also Humphreys, 982 F.2d at 261 (citing Boney, 977 F.2d at 633).
917
150 F.3d at 1117.
918
Id.
919
Humphreys, 982 F.2d at 261 (citing Boney, 977 F.2d at 633).
920
Id.
921
Carter v. Jury Comm’n of Greene Cty., 396 U.S. 320, 332-33 (1970).
922
Id. at 323, 336-37.
914

127

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
producing evidence that the county clerk charged with recommending jurors to the jury
commission consulted primarily white residents and was only “familiar” with black residents who
were “convicted of crimes” or “in trouble.” 923 Although they represented 65 percent of the county
population, black people thus composed only 32 percent of potential jurors in 1967. 924 But finding
the Alabama statute “devoid of any mention of race,” the Court upheld its constitutionality and the
discretion of states to base jurors’ eligibility on “good intelligence, sound judgment, and fair
character.” 925
92F

923F

924F

The Carter case focused on the equal protection rights of potential jurors, and other cases on jury
composition have focused on the equal protection rights of defendants. 926 But as mentioned
above, courts have often reviewed whether the litigant’s Sixth Amendment right to an impartial
jury encompasses the right to a jury that excludes people convicted of felonies. 927 Litigants,
rather than excluded jurors, have generally launched these challenges to protect against unfair
bias in their opponents’ favor, rather than to attain “equal and fair juries.” 928 Excluded jurors
rarely challenge their exclusion, as it is frequently difficult to ascertain when exclusion is
improper. 929 An excluded juror may never receive a summons, or may not fully understand why
he or she was removed from the jury pool, so “it is hard for an improperly excluded juror even to
know that a violation has occurred.” 930
925F

926F

927F

928F

92F

The most common argument against exclusion of jurors with felony convictions is the “crosssection” argument, which posits that without the representation of individuals with criminal
records, the jury will not draw from a broadly representative pool of people from a community. 931
Proponents of allowing people convicted of felonies to serve on juries often cite the Federal Jury
Selection and Service Act of 1968, in which Congress declared that all federal court litigants
“entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair
cross section of the community in the district or division wherein the court convenes.” 932 The
Supreme Court has recognized the cross-section requirement as “fundamental to the jury trial
guaranteed by the Sixth Amendment,” in that it furthers the purpose of the jury as the community’s
check on “arbitrary power” wielded by prosecutors and judges. 933 This goal cannot be fulfilled,
930F

931F

932F

923

Id. at 324-25.
Id. at 327-28.
925
Id. at 332-33, 336-37.
926
Mitchell S. Zuklie, Rethinking the Fair Cross-Section Requirement, 84 CAL. L. REV. 101, 107-08 (1996) (citing
Smith v. Texas, 311 U.S. 128 (1940) (where the Court reversed the conviction of a black defendant upon finding that
black people were systematically excluded as jurors)).
927
See, e.g., Humphreys, 982 F.2d at 261; Boney, 977 F.2d at 633. See also Kalt, The Exclusion of Felons from Jury
Service, supra note 894 at 71.
928
Kalt, The Exclusion of Felons from Jury Service, supra note 894 at 72.
929
Id.
930
Id.
931
Id., at 75.
932
28 U.S.C. § 1861.
933
Taylor, 419 U.S. at 530.
924

128

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
the Court has asserted, if the jury includes “only special segments of the populace” or excludes
“large, distinctive groups.” 934 However, courts have generally rejected the argument that excluding
people with criminal convictions violates the cross-section requirement. 935 Numerous federal
circuit and district courts have contended that people with criminal convictions do not constitute a
“distinctive group,” given the varying nature of the crimes they may have committed, and that
their exclusion promotes the necessary “probity” of the jury. 936 Some scholars argue that the
probity argument unfairly presumes that people with criminal convictions would not adhere to the
highest principles or act as upright individuals when serving on a jury. 937
93F

934F

935F

936F

The Impact of Jury Exclusion on People of Color
Because people of color are disproportionately arrested, prosecuted, and incarcerated, some
contend that jury exclusion based on an individual’s criminal record disproportionately excludes
people of color. 938 Researchers have alleged that jury exclusion of people with felony convictions
allows attorneys to circumvent the ban against racial discrimination in jury selection that the
Supreme Court set forth in Batson v. Kentucky. 939 According to this argument, prosecutors have
managed to use contact with the criminal justice system as a proxy for race, given that people of
color are more likely to be personally or tangentially involved with the criminal justice system. 940
For example, one study documented multiple prosecutorial objections to prospective jurors based
on “having relatives who were in the criminal justice system, were convicted, or were incarcerated;
having a criminal history, including having been charged with a crime; having a negative attitude
toward, or negative experiences with, the police; having been a victim of a crime; and opposing
the death penalty.” 941
937F

938F

93F

940F

934

Id.
Kalt, The Exclusion of Felons from Jury Service, supra note 894 at 75-76 (citing “United States v. Barry, 71 F.3d
1269, 1273-74 (7th Cir. 1995) (rejecting a cross-section challenge to felon exclusion); United States v. Foxworth,
599 F.2d 1, 4 (1st Cir. 1979) (rejecting a cross-section challenge to felon exclusion); United States v. Best, 214 F.
Supp. 2d 897, 904-05 (N.D. Ind. 2002) (finding the cross-section argument regarding felon exclusion “unavailing”);
State v. Compton, 39 P.3d 833, 842 (Or. 2002) (en banc) (rejecting a cross-section challenge to felon exclusion);
Carle v. United States, 705 A.2d 682, 686 (D.C. 1998) (rejecting the ineffective assistance claim relating to the
cross-section argument); Rubio, 24 Cal. 3d at 99 (rejecting a cross-section challenge to felon exclusion); State v.
Brown, 364 A.2d 186, 190-91 (Conn. 1975) (rejecting a cross-section challenge to felon exclusion).”).
936
See, e.g., Barry, 71 F.3d at 1273-74 (reasoning that “alleged felons” do not “comprise a distinctive group”);
Foxworth, 599 F.2d at 4 (finding that exclusion of jurors with criminal convictions is a rationally based measure
meant to “assure the ‘probity’ of the jury.”).
937
Kalt, The Exclusion of Felons from Jury Service, supra note 894 at 74-75.
938
Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions, supra note 894 at 602. See also
Kevin R. Johnson, “Hernandez v. Texas: Legacies of Justice and Injustice,” UC Davis Law, Legal Studies Research
Paper No. 19, at 8 (2004), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=625403 (observing that
“[c]itizenship and English language requirements for jury service, as well as the disqualification of felons, bar
disproportionate numbers of Latina/os from serving on juries.”).
939
See Anna Roberts, Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson, 45 U.C. DAVIS L.
REV. 1359, 1374-76, 1403-04 (2012); see also Batson, 476 U.S. at 79.
940
Roberts, Disparately Seeking Jurors: Disparate Impact and the (Mis)use of Batson, supra note 939 at 1379.
941
Id.
935

129

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION

The first known empirical study on jury exclusion examined Georgia’s statute permanently
excluding people with felony convictions from jury service, and concluded that the statute racially
homogenized juries. 942 Noting that up to one-fourth of black men in Georgia had been incarcerated
with felony convictions, the author found that 27.7 percent of black men were excluded from juries
across all Georgia counties. 943 Moreover, in nine counties, more than half of black men were
banned from jury service due to felony convictions. 944 Because the group “most likely to have
their lives altered by contact with the criminal justice system” was disproportionately excluded
from jury service, the results raised the question of whether the right to be tried by a jury of one’s
peers has been denied to black defendants. 945 As the author elaborated:
941F

942F

943F

94F

Many minority groups continue to be underrepresented across domains of civic
engagement, leading to disparities in juries, the electorate, and possibly even
elected office. Furthermore, there is little to no resistance to felon-jury-exclusion
policies (and collateral consequences more generally) despite strong preliminary
evidence that they have an important and significant impact on racial minorities.
The ripple effects of felon jury exclusion could act as a feedback loop back into the
criminal justice system, whereby inequalities in the jury selection system ultimately
lead to greater levels of racial inequality throughout the criminal justice system
itself. 946
945F

Another study estimated that the exclusion of people with felony convictions from jury service can
reduce the number of black men on juries by about 30 percent. 947
946F

Other scholars contend that states may justifiably bar people with felony convictions from jury
service, just as they do with gun ownership or voting. 948 Pointing out that a statute banning people
with felony convictions from juries was “facially race-neutral” and the alleged racial disparities
947F

942

See generally Darren Wheelock, “A Jury of One’s ‘Peers’: The Racial Impact of Felon Jury Exclusion in
Georgia,” Justice System Journal, vol. 32, no. 3 (2011): 335-59.
943
Id. at 348.
944
Id.
945
Id. at 352.
946
Id. at 353-54.
947
Kalt, The Exclusion of Felons from Jury Service, supra note 894 at 170-71 (citing Christopher Uggen et al.,
Crime, Class, and Reintegration: The Scope and Social Distribution of America's Criminal Class (unpublished
manuscript, on file with the American University Law Review, delivered to American Society of Criminology, Nov.
18, 2000), which concluded that “the lower end of the 29 to 37% range is consistent with other estimates in other
contexts”).
948
See, e.g., Hans A. von Spakovsky, “Should Felons Be Allowed to Vote? Yes, But . . . ,” The Heritage
Foundation, May 20, 2016, https://www.heritage.org/election-integrity/commentary/should-felons-be-allowed-voteyes (defending waiting periods for restoration of voting rights in part because “felons lose many other civil rights as
well, such as the right to sit on a jury, own a gun, obtain various professional licenses, or work as a public school
teacher or law enforcement official in many states.”).

130

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION
“not ‘pronounced’,” the Seventh Circuit rejected an equal protection claim that the statute
disproportionately excluded black potential jurors. 949 Many of the arguments supporting felony
disenfranchisement might apply to arguments supporting jury exclusion of people with felony
convictions. 950 For example, like proponents of felony disenfranchisement, proponents of jury
exclusion have asserted that individuals who violate “the social contract” through lawlessness
forfeit their right to serve on a jury, and/or display their lack of “moral competence and civic
responsibility necessary for their participation in self-government.” 951
948F

94F

950F

The counterargument points out that removing people who have experience with the criminal
justice system can “creat[e] bias even while being sought in the name of bias-removal” and hence
create juries with a less diverse array of viewpoints and perspectives. 952 Data indicate that two
characteristics of wrongful convictions are false confessions and law enforcement (or other
government) misconduct. 953 Juries composed of individuals who have experienced only positive
contact with the criminal justice system (if any) may be less likely to question the validity of a
confession or the legality of actions taken by law enforcement. 954 Excluding the significant swath
of the U.S. population represented by people with criminal convictions may frustrate the jury’s
ability to bring “a collective wisdom and body of experience” to their service. 955
951F

952F

953F

954F

949

Barry, 71 F.3d at 1272.
See, e.g., von Spakovsky Statement at 5 (arguing that “the loss of certain civil rights,” including the right to vote
and serve on a jury, are “sanction[s] that our society has determined should be applied to criminals.”);
951
Kalt, The Exclusion of Felons from Jury Service, supra note 894 at 121-23. See also “Arguments For and Against
Felony Disenfranchisement,” supra notes 668-720.
952
Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions, supra note 894 at 605.
953
Id. at 607-10.
954
Id.
955
Grigsby v. Mabry, 483 F. Supp. 1372, 1378 n.6 (E.D. Ark. 1980), modified, 637 F.2d 525 (8th Cir. 1980); see
also Roberts, Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions, supra note 894 at 605.
950

131

CHAPTER 3: ACCESS TO CIVIC PARTICIPATION

[This page intentionally left blank]

132

CHAPTER 4: FINDINGS AND RECOMMENDATIONS

Chapter 4: Findings and Recommendations
Findings
1. Collateral consequences are pervasive, broad ranging restrictions on the rights and
privileges of people with criminal convictions to participate in society and access certain
benefits. These consequences exacerbate punishment beyond the criminal conviction after
an individual completes the court-imposed sentence. In addition, collateral consequences
affect people living on parole or probation in the community while they complete a
criminal sentence.
2. Some collateral consequences, such as limitations on working with children for people
convicted of particular dangerous crimes, are enacted for valid public safety reasons. Many
collateral consequences are unrelated either to the underlying crime for which a person has
been convicted or to a public safety purpose. When the collateral consequences are
unrelated in this way, their imposition generally negatively affects public safety and the
public good.
3. The convicted person generally lacks notice as to what the collateral consequences are in
the jurisdiction in which she/he is charged. Except for immigration consequences,
collateral consequences are not required to be included in court proceedings, plea
bargaining, or counseling by attorneys. The general public, attorneys, and the courts often
lack knowledge of what the totality of the collateral consequences are in their jurisdiction,
how long they last, and whether they are discretionary or mandatory, or even if they are
relevant to public safety or merely an extended punishment beyond a criminal sentence.
This absence of public and judicial awareness of collateral consequences of conviction
undermines any deterrent effect that might flow from attaching such consequences,
separate and apart from the punishment itself, to criminal convictions.
4. There is scant evidence that collateral consequences act as a deterrent; however, the
evidence shows harsh collateral consequences unrelated to public safety increase
recidivism. This increase in recidivism is caused by limiting or by completely barring
formerly incarcerated persons’ access to personal and family support.
5. Many collateral consequence restrictions on professional licensing serve an anticompetitive function and work against the public interest. They hinder the chances for and
likelihood of rehabilitation for the formerly incarcerated person.
6. Voting restrictions because of a criminal conviction vary sharply by state. Some states
allow individuals to vote while in prison and some require individuals to submit

133

CHAPTER 4: FINDINGS AND RECOMMENDATIONS
applications for restoration of the right to vote years after they have served their criminal
sentence. Other states require a full pardon for the restoration of rights. In November 2018,
Florida voters overwhelmingly required the state to restore voting rights to people with
criminal convictions who have completed their sentence. The constitutional amendment
was approved by a margin of 64% in favor and 35% against with more than 8 million votes
cast.
7. The federal courts and some states permanently bar any person with a felony criminal
conviction from sitting on a criminal jury because of a belief that such persons will be
biased toward criminal defendants. Studies do not show pro-defendant biases among
people with criminal convictions. Rather studies show that formerly incarcerated
individuals are no more biased than other potential jurors. Some states also bar persons
with felony convictions from sitting on civil juries after they have served their sentences.
8. Restrictions on public housing and public benefits, including TANF and SNAP, make
people acutely vulnerable upon leaving prison. Many people who leave prison do so
without money and resources for basic living expenses, which are not easily obtained in
part due to the restrictions on public benefits and housing. These consequences fail to
protect the public safety and can lead the formerly incarcerated person toward unlawful
means to earn subsistence money. Data show that persons subject to these bans are
overwhelmingly women.
9. Many jurisdictions suspend driver’s licenses based on criminal convictions, unrelated to
whether the restricted person’s conviction involved a criminal driving violation or an
offense linked to driving. These restrictions severely limit employment opportunities,
leaving people unable to support themselves, which can lead to recidivism putting the
public’s safety at risk.
10. Access to federal financial aid for higher education is suspended for people with drug
convictions, but not for other criminal convictions. This restriction is not related to drug
offenses, and is not connected to a purpose that has been shown to promote the public good.
11. Employment is difficult to access for those individuals with a criminal conviction as many
employers choose to use a blanket ban on hiring any person with a prior criminal conviction
regardless of the offense committed by the person. In some jurisdictions employers are not
permitted to inquire about criminal history on an employment application but must delay
questioning and background checks about criminal history until a group of finalists are
chosen by the employer. These jurisdictions do not bar employers from hiring their
candidates of choice or performing background checks later in the hiring process. The
EEOC has issued guidance to employers on conducting criminal background checks in
ways that reduce unnecessary consequences and racial disparities.

134

CHAPTER 4: FINDINGS AND RECOMMENDATIONS

12. The processes people must undertake to restore rights, for example through applications
for pardon or for judicial record sealing, are often complicated, opaque, and difficult to
access. They often require hiring a lawyer, court filing fees, collecting evidence and several
appearances in court before the state will grant such restoration.
13. States, such as Pennsylvania, have instituted automatic restoration of rights and sealing of
criminal records for certain offenses after a period of time with no further criminal
convictions without the need for individuals to petition for record sealing.
Recommendations
1. Collateral consequences should be tailored to serve public safety. Policymakers should
avoid punitive mandatory consequences that do not serve public safety, bear no rational
relationship to the offense committed, and impede people convicted of crimes from safely
reentering and becoming contributing members of society.
2. Jurisdictions that impose collateral consequences should periodically review the
consequences imposed by law or regulation to evaluate whether they are necessary to
protect public safety and if they are related to the underlying offenses.
3. Congress should pass legislation creating a process to petition for sealing federal
conviction records for certain offenses, such as nonviolent crimes, after a reasonable period
of time. It should create a reasonable process where a person’s rights are automatically
restored when no public safety concerns are present upon completion of the person’s
sentence. Those collateral consequences that specifically relate to the crime and implicate
public safety should be lifted only after the applicant has demonstrated a reasonable period
of law-abiding conduct.
4. Congress should eliminate restrictions on TANF and SNAP benefits based on criminal
convictions as they do not serve the public safety or interest but do impose harsh burdens,
particularly
on
formerly
incarcerated
women.
5. Congress should limit discretion of public housing providers to prevent them from
categorically barring people with criminal convictions from access to public housing. The
United States Department of Housing and Urban Development should provide guidance
on what are reasonable periods of time that public housing agencies could permissibly
consider requiring to have passed after conviction or completion of sentence before
regaining access to public housing, in addition to what underlying conduct could lead to
restrictions on access to public housing. In such guidance HUD should consider and list
which crimes against people and property merit restrictions on entry to public housing.

135

CHAPTER 4: FINDINGS AND RECOMMENDATIONS
This guidance should follow the best practices of state and local housing authorities that
have successfully provided access to public housing to people with criminal convictions.
Many people convicted of non-violent crimes should be allowed to live in public housing.
6. Congress should lift restrictions on access to student loans based on criminal convictions,
except for convictions related to financial fraud. When unrelated to financial fraud,
financial aid access restriction does not serve the public safety or interest. Lifting the
federal ban on Pell Grants to fund in-prison college programs would enable inmates to gain
valuable job skills and significantly boost their employment rates post-incarceration.
7. Congress should require federal courts to give comprehensive notice of federal restrictions
on individuals’ rights before guilty plea entry, upon conviction, and on release from
incarceration. Notice should include how long those restrictions last, and the procedures
that set out a step by step process persons must take to restore rights after release. The
individual should also be given notice that there will be state and local consequences.
8. The United States Department of Justice should issue guidance sharing best practices
related to collateral consequences of criminal convictions, clarifying at minimum the
following points:
a. State and local jurisdictions should undertake a comprehensive analysis of collateral
consequences authorized or required by their laws, collect them in a publicly available
format, and analyze the connection of each restriction to public safety and the broader
public interest. Consequences not serving the public interest should be repealed. Arrest
alone should never be sufficient justification to limit rights and privileges, except as set
forth by the court in which the charges are pending.
b. Jurisdictions should compile and clearly identify collateral consequences in a format
accessible to the public. Court systems should require these consequences to be
incorporated into counseling, plea bargaining, and sentencing considerations.
c. States should consider restoration of the right to vote to all people who have been
released from incarceration or are on probation/parole and are currently
disenfranchised because of criminal convictions. Denying the right to vote does not
serve the public safety or interest.
d. States should notify people disenfranchised because of a criminal conviction when their
right to vote is or can be restored, if restored automatically when that occurs, or what
steps they must undertake to restore their right to vote. In states where the right to vote
is restored upon release from incarceration or completion of supervision, an
opportunity to register to vote and assistance to complete the process should be
included as part of the completion of the exit process from prison, parole, or probation.

136

CHAPTER 4: FINDINGS AND RECOMMENDATIONS

e. States should eliminate blanket restrictions on jury service because of a criminal
conviction as these restrictions do not safeguard the jury process. Rather, challenges to
potential jurors for cause in cases where bias is presented are effective safeguards.
f. The only federally mandated public housing restrictions on access to public housing
for convicted persons are bars to Public Housing Authority residents convicted of an
offense requiring lifetime sex offender registration or of producing methamphetamines
on public housing grounds. For all other offenses, effective local practices to exercise
discretion in determining formerly incarcerated persons’ eligibility for public housing
should be implemented.
g. States should enact policies that enhance employment opportunities for people with
criminal convictions while also vigorously enforcing prohibitions on racial
discrimination in hiring. Such policies include training and outreach on how to consider
criminal history of applicants and robust equal employment opportunity protections.
Employers should not automatically disqualify a candidate with a criminal record,
except in circumstances when the criminal record directly conflicts with the scope of
employment.
h. States should clarify and expand opportunities to seal or expunge criminal records.
Expungement processes should be transparent and easy to navigate for people seeking
record sealing.
i. States should set standards for licensing boards and other professional licensing entities
for considering granting professional licenses for those with criminal convictions.
These standards should require a rational connection between the underlying conduct
the conviction reveals and ability to serve in the profession. The standards should ban
mandatory denials of professional licenses for any criminal conviction. States with
existing standards should monitor licensing boards to ensure the standards are being
followed.
j. States should repeal restrictions on driver’s licenses not related to an individual’s
capacity to safely operate a motor vehicle.

137

CHAPTER 4: FINDINGS AND RECOMMENDATIONS

[This page intentionally left blank]

138

COMMISSIONERS’ STATEMENTS

Commissioners’ Statements
Statement of Chair Catherine E. Lhamon
As this report documents, many of the more than 44,000 collateral consequences that impact
people who have experienced incarceration or have criminal records bear no specific relationship
to public safety or to the underlying convictions for which the people were incarcerated. 1 These
additional penalties separate and apart from conviction impose heavy burdens on formerly
incarcerated persons’ ability successfully to reintegrate into free society and in so doing render all
of us less equal and less safe. Some of these collateral consequences especially denigrate particular
groups of formerly incarcerated people; all of them communicate government disdain for their
worth as people. Where these consequences do not follow logically from the crimes for which
people were convicted and do not operate to protect public safety, the federal government as well
as states and local jurisdictions would do well to discontinue imposing them.
95F

Our criminal justice system is designed to punish persons for their infractions, and deter them and
others from future offenses. It is meant to rehabilitate persons who are incarcerated, the vast
majority of whom will leave prison and therefore need to be able to sustain themselves and often
their families. We all benefit if they are able to participate effectively and responsibly in their
communities. Placing impediments in their path to housing, employment, civic engagement, and
economic self-sufficiency unrelated to their convictions does not advance these criminal justice
goals but does further criminal behavior born of necessity or desperation.
I was struck, and encouraged, by the unusually strong bipartisan support we heard during the
Commission briefing for reform in this area, designed to strengthen all American communities. I
hope very much that Congress, and local communities, heed the call documented in these pages to
lift unnecessary restrictions. It is also imperative to shore up public and legal community
knowledge about the collateral consequences that attach to convictions so the consequences serve
their deterrent effect and so they attach only where related to the convictions imposed. I look
forward to the strengthened and safer communities that would result from securing long overdue
reform of these proliferating consequences to speed effective reentry for formerly incarcerated
persons.

U.S. Commission on Civil Rights, Collateral Consequences: The Crossroads of Punishment, Redemption, and the
Effects on Communities, June 2019, at ii.

139

COMMISSIONERS’ STATEMENTS

[This page intentionally left blank]

140

COMMISSIONERS’ STATEMENTS
Statement of Commissioner David Kladney
I proposed this project because I thought it was important to bring attention to the overly harsh
consequences we impose on people convicted of crimes. These consequences, which are in
addition to official criminal sentences, follow people throughout their lives and set them up to
fail. Many of these so-called consequences, with few exceptions, bear no relationship to the
offense committed and expose the public to a much higher recidivism rate than is necessary.
They are additional punitive punishments, plain and simple, with no redeeming value for the
individual or the public.
A fundamental principle of punishment is the punishment must be proportional to the crime. In
other words, the punishment must fit the crime. The cumulative effect of “consequences” not
related to the offense create punishments that are lifelong and extremely burdensome, beyond
what the legal code has determined is a proper criminal sentence. I believe criminal sentences are
themselves generally too harsh, and these irrelevant consequences only exacerbate that injustice,
but, more importantly, many of these “consequences” set up individuals attempting to right their
lives after interaction with the criminal justice system to fail.
One reason there are so many collateral consequences is that they are enacted by many different
policy makers and up to the discretion of many different decision makers.
We heard from people on the right and the left who came to the same conclusions, even with
very different worldviews and different approaches to the law. They echoed two main
sentiments: we should reduce collateral consequences because they are overly harsh and unfair to
people convicted of crimes, and we should also reduce them for the safety of the public. It makes
logical sense that restrictions on people’s ability to survive in legal ways push them to crime.
The data bears out this common-sense idea. States with harsher collateral consequences see
higher rates of recidivism.
Our report catalogues the social science research around recidivism, describing studies that
show:







Employment opportunities for formerly incarcerated people reduced recidivism
Lower barriers to occupational licensing reduced recidivism
Lack of stable housing increased recidivism
Allowing some people with criminal convictions to live in public housing reduced
recidivism
Denying SNAP benefits to people with drug convictions increased recidivism
States with permanent felony disenfranchisement have increased recidivism rates

Those of us who believe in rolling back some of these barriers to good citizenship which make
no sense get accused of being cavalier about public safety. This argument offers a false choice. It
is entirely possible to keep restrictions related to public safety and remove restrictions
unconnected from public safety. This is what I favor, as do the advocates who testified before us.
The point is that policy makers should undertake a review of collateral consequences and
determine which have a valid safety purpose. Child molesters should be prohibited from being

141

COMMISSIONERS’ STATEMENTS
and working around children; a person convicted of felony drunk driving should be prohibited an
unlimited driver’s license; a person convicted of fraud should be denied any position of financial
trust. Current policy does not make these kinds of connections. Instead it is characterized by
blanket restrictions that follow people forever, regardless of whether there is a connection to the
crime they committed.
It was once seen as political necessity to impose ever harsher penalties on people who committed
crimes. Additional restrictions on top of the criminal sentence therefore faced little opposition,
much like the steep increases in criminal sentences. We now understand harsher punishment is
not the only way to deal with crime. The U.S. is an international outlier in how much we use
incarceration. These consequences also demonstrate a strong zeal for punishment not following
evidence-based solutions which lead to rehabilitation for many more people trying to leave the
criminal justice system behind.
SNAP and TANF restrictions provide a useful window into the insidious and spiteful nature of
some collateral consequences of criminal convictions. During the height of the “war on drugs,”
lawmakers such as Senator Phil Graham came forward with lines such as, “if we are serious
about our drug laws, we ought not to give people welfare benefits who are violating the Nation’s
drug laws.” TANF and SNAP are designed to provide people with the very bare minimum they
need to survive. Prior to these drug law regulations, survival-level assistance programs had never
contained restrictions based on the conduct of the person needing assistance, for the simple
reason that every person needs food to survive. But now, as the twisted logic of the “war on
drugs” continues to filter throughout our code, according to federal law, these benefits may be
denied based on a drug conviction but not any other crime, including crimes of violence, fraud,
or abuse. This is nonsensical. Even when passed it was illogical and as our understanding of drug
addictions and effective treatments has grown, it makes less and less sense by the day.
The federal restrictions on these programs can be modified by the states, as our report explains in
detail, and we can be thankful that almost all states have limited or removed the restrictions. But
this progress is not guaranteed. For example, in Pennsylvania they re-instated the restrictions on
receiving benefits just this year. Although the ultimate decisions about these restrictions are left
to the states, the federal government should not be putting its thumb on the scale in favor of
punishing certain crimes to an extremely harsh degree, and not even the most serious crimes.
In addition to affronting the humanity of people with criminal convictions, these restrictions
increase recidivism. This increase, as the report describes, has been empirically shown to be true.
And it makes logical sense. If you cannot feed your family through employment (a steep climb
coming out of prison) or through an assistance program, what will you do? It is unconscionable
to increase people’s desperation to this level, and it makes all of us less safe.
Restrictions on benefits are not the only place we find counterproductive blanket restrictions. In
addition to all the other challenges people face coming out of prison, it’s difficult or impossible
for them to get professional licenses in skilled occupations. It’s easier for professional
organizations to simply deny a license to anyone with a criminal conviction than undertake a
thorough review of their application. It serves an anti-competitive interest to have a blanket ban
on a segment of the population. It may also be an overreaction to the fear that someone may

142

COMMISSIONERS’ STATEMENTS
reoffend. In reality, they are far more likely to reoffend if they are shut out of employment in a
field they are otherwise qualified for. In the most egregious cases, people who took advantage of
a professional training program in prison cannot work in that profession when they get out.
Licensing boards should understand people are capable of change.
As it stands, professional licenses are either denied outright to people with criminal convictions
or they have to navigate a complex hearing process regardless of the seriousness or relevance of
their criminal history to the profession. Licensing boards should implement rules so that they can
grant some licenses to people with convictions based on their applications alone. For more
serious or recent convictions, a hearing should be required, but procedures should be transparent
and simple to navigate. The board is responsible for the safety of the public, but their decisions
should be rational and not arbitrary. This serves all of our interests in licensing qualified
professionals to work in the community and in allowing people with criminal convictions to
pursue a career.
On top of denying people the ability to support themselves, we as a society also ostracize people
by taking away their right to vote and sit on a jury, categorically, in some places forever, because
they committed a crime. As for jury service, the stated rationale is that people with criminal
convictions will be biased toward criminal defendants, but when you actually investigate, that
isn’t the case. People with criminal convictions have a range of thoughts and attitudes about
criminal defendants and don’t demonstrate a consistent pro-defendant bias. In voting, we don’t
impose any other qualifications based on conduct or character. We say if you are citizen and are
old enough you can vote. That is democracy. People who have committed crimes also have an
interest in their communities, who represents them, and who leads this country. Denying them a
voice in the political process forever denies a basic right of citizenship. We should be
encouraging people to feel like part of society, not pushing them to the margins.
I am struck also by the utter lack of requirements that criminal defendants have any notice of
these consequences. It cannot be said that a person is making an informed guilty plea if they have
no idea of the true extent of the punishment they are agreeing to. Fair administration of justice
demands some kind of mechanism to make pleading guilty a meaningful choice with full
knowledge of all the consequences. The Supreme Court has recognized this in the immigration
context, and the logic of its decision extends to a range of consequences. It also behooves
attorneys to counsel their clients on collateral consequences, even beyond the bare minimum
currently required.
Some states are innovating in dealing with the breadth of collateral consequences by enhancing
opportunities for record sealing. In one fell swoop, such a remedy removes collateral
consequences for people who the state reasonably believes no longer pose any threat. Record
sealing is only granted after a period of time when a person has no new criminal charges. It
strikes a balance between appropriate punishment and allowing people to move on with their
lives. The problem with record sealing is that people have to know about the possibility of record
sealing and navigate the complicated processes on their own to achieve it. This of course favors
people with resources to hire a lawyer or connections that bring them in contact with people who
understand the system. Jurisdictions should instead create a transparent process. They should
take the initiative of identifying cases eligible for sealing and proactively notify people. This

143

COMMISSIONERS’ STATEMENTS
notification would occur only after the period of time has passed and the person has no further
legal trouble. Advancements in technology and digital records can make this an automated
process. All that is lacking is the political will to institute a program.
The way we treat people with criminal convictions after they return to their communities is in
need of serious reevaluation. Our report aims to encourage policy makers to undertake these
efforts and support, rather than continue to harm, people with convictions. All of us will benefit
if they do.

144

COMMISSIONERS’ STATEMENTS
Statement of Commissioner Peter N. Kirsanow
This report’s findings and recommendations urge the Department of Justice (DOJ) to issue
guidance regarding collateral consequences of incarceration. However, the findings and
recommendations do not identify the statute or regulation the guidance would be interpreting. 1
And interpreting existing statutes and regulations is all that guidances can do. Neither DOJ nor
any other department has a roving commission to issue pronouncements on any and every topic
that may be tenuously related to its purpose.
956F

In this statement, I will elaborate upon the narrow issue of felon voting. Recommendation
8(c) states:
States should consider restoration of the right to vote to all people who have been
released from incarceration or are on probation/parole and are currently
disenfranchised because of criminal convictions. Denying the right to vote does
not serve the public safety or interest. 2
957F

I disagree with this blanket recommendation and assertion. Although referred to dismissively in
the body of the report, the public does have an interest in having the laws made by people who
have managed to clear the very low bar of avoiding incarceration. 3 As I noted in my statement in
the Commission’s report on the use of criminal background checks in employment, “The
EEOC’s Guidance states that the percentage of Americans who have been incarcerated may
reach 6.6%. That means that 93.4% of Americans never serve time in prison.” 4 It is not that hard
958F

95F

Roger Clegg, George T. Conway III, and Kenneth K. Lee, The Case Against Felon Voting, The Federalist Society
for Law and Public Policy Studies, 2006, http://fedsoc.server326.com/ElectionLaw/FelonVoting.pdf.
As a legal matter, felon disenfranchisement laws have long been accepted in the American legal
system and easily pass constitutional muster. Indeed, the Fourteenth Amendment explicitly permits
states to adopt disenfranchisement statutes, and many such laws were enacted long before AfricanAmericans enjoyed suffrage. These laws are also beyond the reach of the Voting Rights Act of 1965
(“VRA”). The legislative history of the VRA and its 1982, as well as common sense, makes it
perfectly clear that the statute was not intended to cover felon disenfranchisement laws because it
would then exceed the enforcement powers of the Fourteenth and Fifteenth Amendments.
2
Recommendation 8(c).
3
Report at n. 675-679.
A common argument favoring felony disenfranchisement is grounded in the belief that committing
a felony violates a social contract, and this violation threatens the order and well-being of the
political community. According to this reasoning, the logical response is to deny the violator the
right to participate in politics and governance. Another theory embraces the importance of moral
character and virtue to the political community, and postulates that any person who commits a felony
demonstrates poor moral judgment and an inability to adhere to the moral code of a “civic republic.”
Some policymakers believe that if an individual has disregarded the law, that individual should not
be entitled to provide input on public policy. Moreover, they believe that an individual’s “impurity”
will lead him to “cast [his] votes in a corrupt manner.”
4
Statement of Commissioner Peter Kirsanow in U.S. COMMISSION ON CIVIL RIGHTS, ASSESSING THE IMPACT OF
CRIMINAL BACKGROUND CHECKS AND THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S CONVICTION
RECORDS POLICY, 2013, at 291, http://www.eusccr.com/EEOC_final_2013.pdf.

145

COMMISSIONERS’ STATEMENTS
to avoid going to prison if 93% of Americans manage to do it. There aren’t many things that
93% of Americans can all do, other than breathe. 5
960F

I disagree with the argument that an ex-felon has “paid his debt to society” and therefore should
automatically have all his rights restored, including the right to vote. There are multiple purposes
of justice: restoration, deterrence—and punishment. It is often impossible to undo the
consequences of a crime, or even to know all the consequences. A man is sent to prison for
twenty years for selling opioids or cocaine. All the law sees in imposing the sentence is the sale
itself. You don’t see the mom who lived in a drugged stupor, only half-feeding her kids and only
getting them to school half the time. 6 No one can know all the consequences of any action, but
people who engage in wrongful actions know that the consequences exist. Even though a state
only incarcerates a person for a set period of time, society is within its rights to determine that
the punishment for a crime is not limited to prison time. As Hans von Spakovsky wrote in his
testimony:
961F

In short, the initial time in prison is not, and has never been, the only way a felon
is punished for breaking the law, endangering his fellow citizens and the public
and intentionally and knowingly violating the rules of the civil compact that we
have collectively implemented to govern our civil society. 7
962F

Any society must be able to set boundaries. This is particularly the case in a country based on
social compact theory, as von Spakovsky indicates. The right to include necessarily encompasses
the right to exclude. And excluding someone on the basis of felon status is as objective a
standard as we can hope to achieve.

“Our Nation’s Highways: 2011,” Federal Highway Administration, U.S. Dep’t of Transportation, 2011 (87 percent
of U.S. population age 16 and over has a license),
https://www.fhwa.dot.gov/policyinformation/pubs/hf/pl11028/chapter4.cfm; Mark Dynarski, “Is the High School
Graduation Rate Really Going Up?,” Brookings, May 3, 2018 (the reported high school graduation rate is 83
percent, although this is probably artificially high), https://www.brookings.edu/research/is-the-high-schoolgraduation-rate-really-going-up/.
6
Matt DeLisi, Gloria Jones-Johnson, W. Roy Johnson, and Andy Hochstetler, The Aftermath of Criminal
Victimization: Race, Self-Esteem, and Self-Efficacy, 60 CRIME & DELINQUENCY 85, 87 (2014).
McGloin and Widom (2001), for example, conducted a 22-year follow-up study of persons who
were abused and neglected between 1967 and 1971 and a control group of 520 persons. Psychiatric
assessments were done to evaluate adult success in eight domains of functioning: employment,
residency, education, social activity, psychiatric disorder, substance abuse, official arrests, and selfreported acts of violence. Among the formerly abused or neglected treatment group, resilience was
defined as persons who were successful in at least six of the eight domain areas. Just 22% of
individuals met the criteria for resilience. This means that more than two decades after their
victimization and exposure to adverse environments, nearly 80% of formerly maltreated persons
continued to suffer across multiple domains of life compared with those who had not been
maltreated. In sum, across analytical techniques and data sources, victimization has been linked with
an array of maladaptive and negative outcomes including delinquency, psychiatric problems, fear
of crime, reduced socioeconomic status, social isolation, residential mobility/relocation, and others.
[citations omitted]
7
Hans A. von Spakovsky Statement at 2.

146

COMMISSIONERS’ STATEMENTS
The report asserts that even if disfranchisement on the basis of felon status may be generally
permissible, it is problematic because it has a disparate effect on blacks and Latinos. 8
Disfranchisement has a disparate impact on blacks and Latinos because blacks and Latinos are
disproportionately likely to be involved in crime. And contrary to fashionable political rhetoric, it
is highly unlikely that racial discrimination is responsible for the incarceration of a significant
number of blacks and Hispanics. 9
963F

964F

The report notes that despite the disproportionate effect felon disfranchisement has on black
voters, black turnout exceeded white turnout in 2012. 10 The report then notes triumphantly,
“Moreover, data from the 2016 election show that African-American voter turnout decreased for
the first time in 20 years in a presidential election, falling by about 7 percentage points.” 11 Here
is something else that was different in 2016 versus 2012: the first black president wasn’t on the
ballot.
965F

96F

Generally, I do not think it is necessary or even advisable for states to permanently bar ex-felons
from voting, though it is certainly within their power to do so. States can plausibly permanently
deny the franchise to murderers. After all, a murderer permanently disfranchised his victim.

Report at n. 702-729.
Statement of Commissioner Peter Kirsanow in U.S. COMMISSION ON CIVIL RIGHTS, ASSESSING THE IMPACT OF
CRIMINAL BACKGROUND CHECKS AND THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION’S CONVICTION
RECORDS POLICY, 2013, at 302, http://www.eusccr.com/EEOC_final_2013.pdf.
African-Americans and Hispanics are more likely to commit crimes than are members of other
ethnic groups, and therefore there is no great unfairness in their greater representation in the ranks
of ex-offenders. As Jeffrey Sedgwick testified at the Commission’s hearing, several decades of
scholarly research indicate that African-Americans and Hispanics are disproportionately likely to
come in contact with the criminal justice system because they are disproportionately likely to be
involved in criminal activity.
Earlier in his career, Dr. Blumstein specifically addressed the possibility that differing incarceration
rates were attributable to racial discrimination, noting that the disproportionate incarceration of
African-American men “generate[s] a deep concern that the disproportionality may be a
consequence of profound racial discrimination within the criminal justice system.” After analyzing
arrests and convictions, Dr. Blumstein concluded that differential rates of involvement in crime, not
racial discrimination, were the primary reason for the disproportionate incarceration of AfricanAmericans. His findings are supported by over twenty years’ worth of research.
See also Heather MacDonald, “Is the Criminal Justice System Racist?,” City Journal, Spring 2008, https://www.cityjournal.org/html/criminal-justice-system-racist-13078.html.
A 1987 analysis of Georgia felony convictions, for example, found that blacks frequently received
disproportionately lenient punishment. A 1990 study of 11,000 California cases found that slight
racial disparities in sentence length resulted from blacks’ prior records and other legally relevant
variables. A 1994 Justice Dep’t survey of felony cases from the country’s 75 largest urban areas
discovered that blacks actually had a lower chance of prosecution following a felony than whites
did and that they were less likely to be found guilty at trial. Following conviction, blacks were more
likely to receive prison sentences, however—an outcome that reflected the gravity of their offenses
as well as their criminal records.
See also Matt DeLisi and Robert Regoli, Race, Conventional Crime, and Criminal Justice: The Declining Importance
of Skin Color, 27 J. CRIM. JUSTICE 549 (1999).
10
Report at n. 712.
11
Report at n. 714.
9

147

COMMISSIONERS’ STATEMENTS
In cases other than murder, I support restoration of a felon’s voting rights after some years have
passed in order to determine if the individual has desisted from crime. I would suggest
restoration of voting rights perhaps seven years after release. The Bureau of Justice Statistics
issued a report in May 2018 that analyzed the recidivism of 401,288 state prisoners in 30 states
who were released in 2005. 12 83 percent of the prisoners were re-arrested within 9 years of
release. 13 However, the majority of ex-offenders are re-arrested in years 1-6. The percent rearrested increases from 79.4 percent in year 6 to 83.4 percent in year 9. 14 Therefore, if a person
has avoided arrest for seven years after his release from prison, we can have a fair degree of
confidence that he will continue to desist from crime. The report, of course, promotes the view
that this is a reflection on society’s failure to reintegrate ex-offenders (because when is it not
society’s fault). 15 The failure here is not on the part of “society,” but on the part of ex-offenders.
967F

968F

96F

970F

Mariel Alper, Matthew R. Durose, and Joshua Markman, 2018 Update on Prisoner Recidivism: A 9-Year Followup Period (2005-2014), at 1, https://www.bjs.gov/content/pub/pdf/18upr9yfup0514.pdf.
13
I am aware that arrests are not the same as convictions, but this report only analyzed arrests in order to obtain
adequate data from these 30 states. Additionally, “The 401,288 state prisoners released in 2005 had an estimated
1,994,000 arrests during the 9-year period, an average of 5 arrests per released prisoner.” Id. at 1. If released
prisoners are arrested an average of five times, it’s likely they will eventually be convicted for something.
14
Id. at 4.
15
Report at n. 833-837.

148

COMMISSIONERS’ STATEMENTS
Joint Statement of Commissioners Gail Heriot and Peter N. Kirsanow
This report contains some useful information about the collateral consequences of a criminal
conviction—defined as the “sanctions, restrictions, or disqualifications that stem from a person’s
criminal history.” But it also suffers from some significant flaws, which is why we are unable to
support its publication in its present form. 1 We agree with parts of it, but not with others. 2
971F

972F

We would classify most of these collateral consequences as falling into four broad categories: (1)
those intended to punish; (2) those aimed at the fair distribution of a scarce resource; (3) those
intended to protect third parties; and (4) those aimed at stifling competition. Many types of
collateral consequences fall into more than one category. Each of these categories deserves a
comment here. (We will confine our discussion of ex-offenders’ voting rights to a brief word at
the end of this Joint Statement, even though the longest portion of the report is devoted to that
issue.)
But first, one overarching problem is that at times the report seems to treat a criminal conviction
as something that happens almost randomly. For example, the report states, “Because of the
significant stigma attached to a criminal conviction, an employer could view an applicant with a
criminal record as untrustworthy or lacking in ‘job readiness,’ which is generally perceived as a
requisite qualification for both skilled and unskilled positions.” 3 The problem is that employers
view applicants with criminal records this way not merely because of some artificial stigma
attached to criminal conviction, but because people with criminal records really are, on average,
more likely than people without such records to engage in misconduct. Obviously, this
generalization is untrue in individual cases, and we would all do well to remember to treat
individuals as individuals. But ignoring this group difference will lead to stunningly bad policy.
973F

One of us (Heriot) voted no at the telephone meeting at which the report was considered. The other (Kirsanow)
arranged for it to be announced at the telephone meeting that he would have voted no if he had been able to attend.
In a separate statement, one of us (Kirsanow) discusses the report’s recommendation urging the Dep’t of Justice to
issue a guidance on collateral consequences. He points out that the recommendation failed to identify the necessary
legal authority for such a guidance. The Dep’t of Justice is not a roving Commission to advise states on legal or
policy matters; it acts when Congress, through legislation, gives it the authority to act. Commissioner Heriot agrees
with this point and with all or most of the rest of the statement. Only time constraints prevented her from joining in
those positions at the time the Commissioners exchanged their statements in the first round.
2
Has the scope of the substantive criminal law—particularly federal criminal law—grown too big? Certainly many
scholars and authors have made the case that it has. See, e.g., Harvey Silverglate, Three Felonies a Day: How the
Feds Target the Innocent (2011); Paul Larkin, The Extent of America’s Overcriminalization Problem, May 9, 2014,
available at https://www.heritage.org/report/the-extent-americas-overcriminalization-problem. See also George Will,
“When Everything is a Crime,” The Washington Post, April 8, 2015, available at
https://www.washingtonpost.com/opinions/when-everything-is-a-crime/2015/04/08/1929ab88-dd43-11e4-be40566e2653afe5_story.html?utm_term=.2d9dac1344ef. This is an important question that is closely related to the
central question of this report. Excessive imposition of collateral consequences is more serious if the scope of the
criminal law itself is too big. But because it is distinct from this report’s main question, we will not discuss it
further. It also goes well beyond the charge of this Commission.
3
Report at 29.

149

COMMISSIONERS’ STATEMENTS
We won’t solve the problem of re-integrating ex-offenders into the economy by being (or
pretending to be) naïve. While it is certainly true that formerly incarcerated individuals
sometimes struggle as a result of an unfair collateral consequence, sometimes the struggle is the
result of the characteristics that drove them to commit crimes in the first place. Any serious
effort to assess the benefits and costs of collateral consequences cannot ignore that.4
974F

This report focuses mainly on problems with punitive collateral consequences—those done with
the purpose of imposing punishment on ex-offenders beyond the term of their prison sentence.
We agree that some particular punitive collateral consequences can be too harsh and hence
counterproductive.
On the other hand, the zeitgeist seems to be that Americans have over-incarcerated offenders and
that some de-incarceration should take place. 5 Similarly, it is frequently argued that monetary
fines imposed on individuals who cannot afford to pay them are counterproductive and only
result in anxiety and desperation. Indeed, the Commission’s majority has elsewhere made those
arguments. 6 We agree that each of these methods of punishment has its drawbacks. Incarceration
is expensive and breaks up families. Some people are too poor to pay fees and fines, while others
are too rich for paying a fine to feel like much of a punishment. Yet there have to be some
negative consequences for law breaking; otherwise many people will eventually conclude that
there is no point in following the law.
975F

976F

Punitive collateral consequences are admittedly an imperfect strategy for doing that. Dangling
carrots in front of individuals for post-release good behavior—such as restoration of voting rights
after a specified period—may also give some ex-offenders incentives to get their lives back on
track. Something is necessary.
4
Another way in which the Commission seems unwilling to confront the arguments on both sides of these issues is
the use of hyperbolic statements in the Commissioner Statements. They call certain collateral consequences “nonsensical,” or based on “twisted logic,” and argue that these consequences “make no sense,” that they “communicate
government disdain for [ex-offender’s] worth as people,” and that they “affront[] the humanity of people with
criminal convictions.” See Statement of Commissioner David Kladney at 142; Statement of Chair Catherine E.
Lhamon at 139. This is not useful.
5
Commissioner Kladney points that the United States incarcerates at much higher rates than most other countries.
This is in part because at the same time prison populations were expanding, the number of psychiatric inpatients was
declining—from a high of over 550,000 in 1950 to around 30,000 by the 1990s. Megan Testa and Sara G. West,
Civil Commitment in the United States, 7 Psychiatry (Edgmont) 30, 33 (Oct. 2010). As a result, many of those who
in an earlier day would have been institutionalized in psychiatric hospitals wound up in prisons instead or on the
street. Estimates of exactly how many vary widely. Seth J. Prins, The Prevalence of Mental Illnesses in U.S. State
Prisons: A Systematic Review, 65 Psychiatr. Serv. 862 (2014). But today’s incarceration rates are surely influenced
by the near absence of psychiatric inpatients in the American systems. This makes incarceration rate comparisons
with other countries where psychiatric inpatients are more common unreliable and flawed. I wish we all had a better
sense of international comparisons.
6
U.S. Commission on Civil Rights, Targeted Fees and Fines Against Communities of Color, 2017; “U.S.
Commission on Civil Rights Urges Congress to Prioritize Civil Rights Oversight and Legislation,” 2018, available
at https://www.usccr.gov/press/2018/12-07-Priorities-for-116th-Congress.pdf (criticizing the use of mandatory
minimum prison sentences.)

150

COMMISSIONERS’ STATEMENTS
It is sometimes said that an ex-offender “has paid his debt to society” upon release from prison
and that any further punishment is thus wrong. In one sense, this is simply circular logic. If the law
imposes a particular prison sentence for a particular crime and in addition requires him to perform
certain acts (such as community service or the payment of restitution) or deprives him of the
possibility of particular benefits, then that is the debt that democratic processes have determined
that he must pay to society and not some other. 7 It isn’t over till it’s over. We are mindful of the
desirability of closure at some point. But given the strong desire among many Americans to deemphasize long-term incarceration, we are disappointed that more effort hasn’t gone into coming
up with workable incentives and sanctions that apply after an offender leaves prison, thus making
it possible to shorten actual prison sentences.
97F

The report also fails to grapple with what we term distributive fairness collateral consequences.
These are efforts to allocate a limited resource. Take, for example, financial aid for education. The
Department of Education presumably has a limited supply of money to distribute for this purpose.
It has to come up with rules for determining who gets it and who doesn’t. It isn’t obvious to all
how that “pot” should be divided. Is it fair that ex-offenders should get a share, if that means that
there will be fewer funds available for other prospective applicants who have been more lawabiding? Isn’t it at least arguably true that the law-abiding applicants—including the many who
are poor or have overcome other forms of disadvantage—are more deserving? On the other hand,
is it fair if ex-offenders are shut out of educational opportunities that could help their
rehabilitation? Add this to the considerations: Would the program be as popular if the average
taxpayer thought that benefits were going to ex-offenders? Might there be efforts to scale it back
generally or cancel it altogether? 8 Alas, there are no simple answers to those questions and no easy
way to balance those competing considerations. They are inherently political decisions.
978F

7
One possible objection to this argument: some offenders may agree to a plea bargain thinking that their “debt” will
have been paid once their sentence is served, without realizing that they will face collateral consequences
afterwards. Had they known more about collateral consequences, they might have held out for a lower sentence or
agreed to go to trial. Commissioner Kladney points out this problem in his Statement when he states, “I am struck by
the utter lack of requirements that criminal defendants have any notice of these consequences.” [Italics supplied.]
Oddly, he seems to contradict himself in the final sentence of the same paragraph when he writes, “It also behooves
attorneys to counsel their clients on collateral consequences, even beyond the bare minimum currently required.”
[Italics supplied.] If there is a “bare minimum [of notice] currently required, then there can’t be “an utter lack of
requirements.”
We are nevertheless sympathetic to the need to warn criminal defendants in some way about collateral consequences
up front. Commissioner Kladney is right that attorneys should expend more effort to ensure that their clients are
adequately informed. Still, a fundamental problem here is that it is impossible for defendants to understand
completely the ramifications of entering into a plea deal. Criminal defendants aren’t ordinarily warned, for example,
about the harshness of life in prison. They don’t know how a conviction will affect their relationships with family
and friends. We fear some of the outrage about lack of transparency regarding collateral consequences is selective.
8
See, e.g., Emily Badger and Margot Sanger-Katz, “Who’s Able-Bodied Anyway? The 400 Year History of How
We Talk About the Deserving vs. the Undeserving Poor,” The New York Times, February 3, 2018, available at
https://www.nytimes.com/2018/02/03/upshot/medicaid-able-bodied-poor-politics.html (“Free riders threaten
society—they undermine the basis of altruism,” said Robert Rector, a senior research fellow at the conservative
Heritage Foundation, who helped write a work requirement into welfare reform in the 1990s. That’s not a liberal or

151

COMMISSIONERS’ STATEMENTS
The same dilemma exists with regard to dividing up other limited resources discussed in this report,
like public housing, which frequently has waiting lists. 9 Prospective applicants who have obeyed
the laws have a sympathetic argument here that they deserve a greater share of these resources.
Yet this dilemma is barely acknowledged in the report. 10 We wish that it had engaged these tradeoffs more thoughtfully.
97F

980F

One thought that we can contribute to the discussion is that we prefer that decisions about how to
distribute limited resources be decentralized. If a single decisionmaker like HUD or the
Department of Education dominates the market for public housing or for educational financial aid,
then ex-offenders will be either in a very happy or very unhappy position. But if there are multiple
entities—such as state governments, local governments, and private charities—sponsoring such
benefits, then it is less likely that ex-offenders will be unfairly treated.
The report does a better job addressing what we call third-party-protection collateral
consequences—those that are intended to ensure the safety and security of some third party from
ex-offenders’ misconduct. The Findings, for example, explicitly acknowledge “Some collateral
consequences, such as limitations on working with children for people convicted of particular
dangerous crimes, are enacted for valid public safety reasons.” Rules that restrict firearm
ownership and rules that prohibit individuals convicted of financial crimes from working with
conservative belief, he argues, but a human one. “People want to be compassionate, but they don’t want to be taken
advantage of.”)
9
Some of the discussion on lifetime bans on public benefits for individuals with drug convictions tries to argue that
these bans disproportionately harm women. Report at 72-73. The problem is that prisoners are overwhelmingly male
(the number 93% is quoted elsewhere in the report), so the report’s efforts to cast these bans as having an unfair bias
against women don’t quite work. The various statistics cited in the report—e.g., that female offenders are somewhat
more likely to have been incarcerated for drugs than male offenders and that women are more likely to qualify for
certain public benefits in the absence of a drug conviction—aren’t mathematically enough to overcome the fact that
prisoners are overwhelmingly male.
We are a bit troubled—and perhaps a bit amused—that our staff took a topic (the collateral consequences of a
criminal conviction) that overwhelmingly affects men, downplayed the significance of this disproportionality, and
somehow managed to instead argue (incorrectly) that certain collateral consequences have a disparate impact on
women. It’s a sign of the times: World ends tonight, women and minorities to suffer most.
The report also states, “On average, women also earn less money than men for the same amount of work.” Report at
72. But the Dep’t of Labor statistic cited compares all female full-time wage and salary workers (full time defined as
“those who usually work 35 hours or more per week at their sole or principal job”) to all male full time wage and
salary workers. It does not control for the number of hours worked above 35. Much of that gap simply reflects that
female full-time workers tend to work fewer hours than male full-time workers. Women who work between 35-39
hours per week actually earn somewhat more than men who work 35-39 hours per week. See Diana Furchtgott-Roth,
Testimony on the Gender Pay Gap, Testimony Before the Joint Economic Committee, September 28, 2010,
available at https://www.jec.senate.gov/public/_cache/files/2a1f8ad4-f649-4ad3-a742-268d946962db/furchtgottroth-testimony.pdf. Moreover, even if it were true that “[o]n average, women also earn less money for the same
amount of work,” there is no evidence that applies to female ex-offenders vs. male ex-offenders. On the contrary,
since male offenders are more likely than female offenders to have committed a violent crime, they may find it
harder to secure well-paying jobs or, indeed, any jobs at all.
10
It is not discussed, for example, in “Barriers to Subsidized Housing for Individuals with Criminal Records” at pp.
56-63, in “The Disproportionate Impact of Lifetime Drug Bans for Public Benefits at 70-72, or “Barriers to
Financial Aid for Higher Education” at 74-77.

152

COMMISSIONERS’ STATEMENTS
money are generally intended to fall into that category, as are those that prevent persons convicted
of child abuse or endangerment from working with children. 11
981F

On the other hand, the report sometimes fails to address serious third-party-protection collateral
consequences arguments. The section on public housing, for example, fails to note that public
housing is often home to families with young children, the elderly, people with disabilities, and
that many cities have a reputation for failing to protect these and other particularly vulnerable
persons living there. In Chicago, in 1981, matters had deteriorated to the point that the city’s
mayor, Jane Byrne, moved into the Cabrini-Green housing project on the near North Side for 20
days—a move that finally forced the city police to start taking crime there seriously. 12 Again, we
are sympathetic to the argument that ex-offenders have to live somewhere. But is it fair to families
who are law-abiding but poor to have to share public housing with individuals who, as a group,
are more likely to threaten their safety? Alternatively, might it be good policy, at least in many
cases, to create a system in which ex-offenders are encouraged to live in halfway houses or with
family members who live in non-public housing rather than to attempt to qualify for public housing
on their own? These questions at least deserved an airing in this report.
982F

We are in stronger agreement with the report’s discussion of anti-competition collateral
consequences, such as occupational licensing laws. 13 The National Council of State Legislatures
983F

See, e.g., Statement of Margaret Love, Executive Director of the Collateral Consequences Resource Center, at 3:
“Some serve an important and legitimate public safety or regulatory function, such as keeping firearms out of the
hands of violent offenders, protecting children or the elderly from persons with a history of abuse, or barring people
convicted of fraud from positions of public trust. Others are directly related to a specific type of crime, such as
registration requirements for sex offenders, driver’s license restrictions for those convicted of serious traffic
offenses, or debarment of those convicted of procurement fraud.”
12
“When a Mayor Moved to the Cabrini-Green Projects,” National Public Radio, August 30, 2014, available at
https://www.npr.org/2014/08/30/344477127/when-the-mayor-moved-to-the-cabrini-green-projects.
13
The fact that we have concerns about the number of licensing laws that exclude ex-offenders does not mean we
approve of forcing employers to hire ex-offenders who would prefer not to by threatening them with disparate
impact liability under Title VII. For an extended treatment of our views on that subject, see U.S. Commission on
Civil Rights, Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity
Commission’s Conviction Records Policy at 308 (Statement of Commissioner Gail Heriot), available at
http://www.newamericancivilrightsproject.org/wp-content/uploads/2014/03/EEOC_final_2013-2.pdf; Id. at 289
(Statement of Commissioner Peter Kirsanow), available at http://www.newamericancivilrightsproject.org/wpcontent/uploads/2014/04/EEOC_final_2013.pdf. We prefer the use of modest tax incentives in order to encourage
the hiring of ex-offenders, which allows employers to opt in rather than being forced in.
We note that there is considerable empirical evidence that so-called ban-the-box laws and policies operate to the
disadvantage of African American males who have clean records. Once employers are prohibited or strongly
discouraged from checking into the criminal records of job applicants, they often end up hiring fewer African
American men rather than more. See, e.g., Amanda Agan & Sonja Starr, Ban the Box, Criminal Records, and Racial
Discrimination: A Field Experiment, 133 Q. J. Econ. 191 (2018); Jennifer L. Doleac & Benjamin Hansen, The
Unintended Consequences of “Ban the Box”: Statistical Discrimination and Employment Outcomes When Criminal
Histories are Hidden (August 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2812811.
In discussing studies like these, this Report states “Researchers have hypothesized that when criminal records are
unavailable, ‘employers use race as a proxy for criminal records.’ The findings suggest that Ban the Box policies
expose the pervasiveness of racial discrimination in hiring, while also possibly excluding more African-Americans
from the job market.” Report at 49. The truth is closer to the opposite. Ban the Box policies don’t “expose the

153

COMMISSIONERS’ STATEMENTS
has estimated that over the last 60 years, the percentage of jobs requiring an occupational license
has risen from 1 in 20 to 1 in 4. 14 Some of these licensing requirements undoubtedly serve genuine
health and safety purposes. Other licensing regulations ensure that senior professionals have an
incentive to give appropriate training to apprentices in their field and that apprentices have an
incentive to agree to that training. 15 But established insiders can also use licensing requirements as
a way of keeping out newcomers who might become their competitors. 16 As one U.S. Court of
984F

985F

986F

pervasiveness of racial discrimination in hiring.” Instead, they show that employers prefer to use indicators—like a
clean criminal record—to predict which job applicants will make the most reliable employees and which will not.
Only when they are prevented from using such indicators do they resort to ham-fisted statistical indicators. Ban the
Box policies thus create an incentive for employers to engage in racial discrimination that wouldn’t otherwise exist.
Two things may be of note here: First, (and this bears repeating over and over), Title VII was not intended to
prohibit employers from adopting job qualifications simply because they have a disparate impact on some protected
group. As Senators Clifford Case (R-N.J.) and Joseph Clark (D-Pa.), the bill’s co-managers on the Senate floor,
emphasized in their highly influential, bipartisan, interpretative memorandum: Title VII “expressly protects the
employer’s right to insist that any prospective applicant, Negro or white, must meet the applicable job
qualifications.” “Indeed,” they wrote, “the very purpose of Title VII is to promote hiring on the basis of job
qualifications, rather than on the basis of race or color.”
Second, it is not true that the only explanation for the harm to African-American men that appears to result from
Ban-the-Box laws and policies is that employers use race as a proxy for criminal records. Suppose for example, an
employer had been happy to hire applicants who did not have a high school diploma as full-time prior to the passage
of a Ban-the-Box law. After that law’s passage she decides to revamp her hiring practices entirely and advertise for
part-time college students at a local university (in addition to the full-time workers she had been hiring), because she
believes (rightly or wrongly) that college students are less likely to have serious criminal records. Such a practice
could well have a racial disparate impact, but it would not be a case of using race as a proxy for a clean record.
Rather it would be a case of using college status as a proxy.
14
Suzanne Hultin, The National Occupational Licensing Database, available at http://www.ncsl.org/research/laborand-employment/occupational-licensing-statute-database.aspx.
15
See Gail Heriot, “Apprenticeships: Useful Alternatives, Tough to Implement,” Cato Institute Policy Analysis No.
805, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2877970.
16
In Sensational Smiles L.L.C. v. Mullen, 793 F.3d 281 (2d Cir. 2015) cert. denied, 136 S. Ct. 1160 (2016), fifteen
public choice economics scholars, including Nobel prize winner Vernon L. Smith, filed an amicus curiae brief
urging the Supreme Court to grant the petition for certiorari. Although the petition was ultimately denied, the brief
contained a useful and succinct description of the problem to which we refer:
People typically assume that governmental regulations are ‘unbiased and conscientious’ efforts to
advance the ‘public interest.’ See John T. Delacourt & Todd J. Zywicki, The FTC and State
Action: Evolving Views on the Proper Role of Government, 72 Antitrust L.J. 1075, 1075 (2005); 1
William F. Shughart II, Regulation and Antitrust, in The Encyclopedia of Public Choice 263, 26364 (Charles K. Rowley & Friedrich Schneider eds., 2004); William F. Shughart II & Diana W.
Thomas, Regulatory Rent Seeking, in Companion to the Political Economy of Rent Seeking 169
(Roger G. Congleton & Arye L. Hillman eds., 2015). But among many economists, that
assumption is largely regarded as false, as experience has demonstrated that governmental
regulations often favor special interest groups to the detriment of the public. The evidence for this
conclusion is supplied by ‘public choice economics,’ a branch of economics that applies economic
theory to study the causes and effects of government actions. Public choice economics has been
widely and successfully used to explain and predict the forces that lead to the enactment of
anticompetitive regulations…. Public choice economics has been ‘almost universally accepted’
since the mid-1980s as explaining much economic regulation. See Jonathan R. Macey, Promoting
Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86
COLUM. L. REV. 223, 224 n.6 (1986) (citing Joseph P. Kalt & Mark A. Zupan, Capture and
Ideology in the Economic Theory of Politics, 74 AM. ECON. REV. 279 (1984)).
Research from public choice economics has concluded that special interest groups have significant
incentives to use the political and regulatory process to further their own financial interests, and

154

COMMISSIONERS’ STATEMENTS

155

Appeals judge memorably put it, “while baseball may be the national pastime of the citizenry,
dishing out special economic benefits to certain in-state industries remains the favored pastime of
state and local governments.” 17
987F

West Virginia requires that would-be “waxing specialists” and “shampoo assistants” be able to
demonstrate their “good moral character” to a government board in order to practice these trades. 18
Until recently, in Texas a drug conviction (no matter how old) automatically prevented one from
becoming a licensed well driller or water well pump installer. 19 Are rules like these really best
understood as primarily intended to keep the public safe from former criminals? We have our
doubts. 20
98F

98F

90F

that legislators and regulators often have incentives to respond to reward the special interest
groups. Thus, special interest groups are expected to mobilize to convince politicians and
regulators to implement regulations that benefit the interest groups’ members or to block the
repeal of these regulations. These problems are particularly acute when self-interested economic
actors—such as the licensed dentists in this case—are given the power to influence the rules by
which they are governed. In these situations, public choice theory predicts that they will behave as
self-interested private actors and act to benefit their own members, rather than as stewards of the
public interest. Cf. North Carolina State Bd. of Dental Exam’rs v. FTC, 135 S. Ct. 1101, 11112
(2015).
A particularly insidious form of regulation favored by special interest groups is one that, in effect,
operates to insulate a special interest group from competition… Abundant evidence demonstrates
that, over the past several decades, interest groups have mobilized to protect themselves from
competition by expanding the scope of existing occupational licensing regimes or implementing
such regimes in industries where it was previously thought unnecessary. The evidence
demonstrates that these exclusionary efforts have been driven overwhelmingly by the special
interest groups themselves, rather than by consumer complaints or evidence of consumer harm
caused by non-licensed competitors.
Brief of Public Choice Economic Scholars as Amici Curiae in Support of Petitioner at 5-6, in Sensational Smiles
L.L.C. v. Mullen, No. 15-507 (filed Nov. 18, 2015), available at https://ij.org/wp-content/uploads/2011/11/ct-teethwhitening-brief-of-public-choice-economics-scholars-as-amici-curiae-in-support-of-petitioner-11-18-2015.pdf.
See also Craigmiles v. Giles, 312 F. 3d 220, 225 (“The weakness of Tennessee's proffered explanations indicates
that the 1972 amendment adding the retail sale of funeral merchandise to the definition of funeral directing was
nothing more than an attempt to prevent economic competition. Indeed, Tennessee's justifications for the 1972
amendment come close to striking us with ‘the force of a five-week-old, unrefrigerated dead fish’”); St. Joseph
Abbey v. Castille, 712 F. 3d 215 (5th Cir. 2013) (“The FTC determined that it could not rely on state funeral
licensing boards to curb such [anti-competitive] practices because the state boards were ‘dominated by funeral
directors.’ The funeral directors had organized themselves into industry groups, which lobbied state legislatures and
made practices such as a refusal to disclose prices part of their professional ‘ethics’ code”).
17
Powers v. Harris, 379 F.2d 1208, 1221 (10th Cir. 2004)(Tacha, J. for the panel).
18
West Virginia Code 30-27 et seq.
19
Texas Public Policy Foundation Policy Perspective, Working with Conviction: Criminal Offenses as Barriers to
Entering Licensed Occupations in Texas, “https://files.texaspolicy.com/uploads/2018/08/16092520/2007-11-PP28licensing-ml.pdf. Because of broader efforts at licensing reform—see Jonathan Zalewski, “On Occupational
Licensing, Texas is Once Again the Lodestar State for Legal Reforms,” February 11, 2019, available at
https://www.heritage.org/crime-and-justice/commentary/occupational-licensing-texas-again-the-lodestar-state-legalreforms—now the licensing board merely considers past criminal convictions as part of its process.
20
We do disagree with the report’s complaints about lack of uniformity in licensing regulations. We agree that if a
state has a particularly unusual rule that seems badly crafted to achieve any public safety purpose, it is likely that
public safety is not the rule’s actual purpose. The Louisiana rules requiring occupational licensing for florists,
challenged by the Institute for Justice, are a typical example. See, e.g., Peters v. Odom, Appellants’ Brief, available

COMMISSIONERS’ STATEMENTS
Lastly, we take up the issue of ex-offender’s voting rights—which has become an extremely hot
issue in the last few years.
Curiously enough, it is the issue to which the report devotes the largest number of pages. 21 Yet
limitations on the ability to vote are hardly the greatest challenge faced by ex-offenders. A job and
a place to live are far more important. One might even say that the inability to vote is their least
important challenge. Unemployed ex-offenders frequently wind up back in prison; those who
cannot find a place to live can wind up on the streets.
91F

In discussing the issue, the report sometimes goes off track. For example, it complains that prison
gerrymandering is a further collateral consequence of incarceration, 22 despite the lack of direct
effect on individual prisoners.
92F

The report argues that “denying this right to even a ‘subset of the population’ jeopardizes
democracy for the entire population,” and that “the right to vote is the ‘essence of a democratic
society, and any [italics added] restrictions on that right strike at the heart of representative
government.” While the right to vote is, of course, precious, the report’s language glosses over the
fact that minors and the mentally ill generally cannot vote and that democracy nonetheless appears
basically unaffected. Moreover, the Constitution’s 14th Amendment specifically acknowledges the
ability of states to limit felons from voting. 23
93F

What explains this overemphasis? Disfranchised ex-offenders are widely thought to be a
Democratic-leaning group. 24 The Commission has six members who were appointed by
Democrats. We note that at least two other report topics approved by the current majority have
recommended broadening access to the ballot, not coincidentally in ways that looked likely to
94F

at https://ij.org/wp-content/uploads/2003/12/Appellants-Brief-la-florists.pdf. On the other hand, we see no reason
why licensing requirements must be uniform across all 50 states. In some cases, there may be good reasons for some
states to be stricter than others. In other cases, we think that states can be “laboratories of democracy” and can teach
each other by example what types of licensing rules work best.
21
It devotes 35 pages to voting, but just 25 to employment issues and 16 to housing.
22
Report at 114-115.
23
Earlier in history, convicted felons were usually executed, so there was no need for a policy that dealt with the
question of whether they should vote. But in the 19th century a number of states had to deal with the question of
whether the increasing number of convicted felons who had been released from prison should be able to vote. On the
eve of the Civil War, some two dozen states had either constitutional provisions or statutes that prohibited ex-felons
from voting. Because most states also prohibited blacks from voting (Maine, New Hampshire, Vermont, and
Wisconsin being exceptions) at that time, it is extremely unlikely that felon disfranchisement was motivated by race.
See Christopher Uggen and Jeff Manza, Democratic Contraction? Political Consequences of Felon
Disenfranchisement in the United States, 67 American Sociological Rev. 777, 781 (2002).
24
See, e.g., Christopher Uggen and Jeff Manza, Denying Felons and Ex-Felons the Vote: The Political
Consequences, Past and Future, Institute for Policy Research, Northwestern University (February 2002), available at
https://www.ipr.northwestern.edu/publications/docs/policybriefs/manzabrief.pdf (finding that had disenfrachised
felons been allowed to vote in a few key states, the Senate might have stayed Democratic from 1986 through 2002
and that Al Gore might have won the Electoral College in 2000.)

156

COMMISSIONERS’ STATEMENTS
benefit the Democratic Party. 25 It is hard to avoid the possibility that the majority is again driven
by partisanship here.
95F

See, e.g., U.S. Commission on Civil Rights, An Assessment of Minority Voting Rights Access in the United
States (2018), available at https://www.usccr.gov/pubs/2018/Minority_Voting_Access_2018.pdf; U.S. Commission
on Civil Rights, Increasing Compliance with Section 7 of the National Voting Rights Act (2016), available at
https://www.usccr.gov/pubs/docs/NVRA-09-07-16.pdf.

157

COMMISSIONERS’ STATEMENTS

[This page intentionally left blank]

159

COMMISSIONERS’ REBUTTALS

Commissioners’ Rebuttals
Statement of Commissioner David Kladney
My colleagues Commissioners Kirsanow and Heriot strike out in their statements on this report.
They fail to acknowledge the overwhelming evidence that reducing collateral consequences
reduces recidivism and keeps the public safe. They misrepresent the positions of our findings and
recommendations by saying the Commission’s majority does not believe in punishment. They
are wrong. We do believe in appropriate punishment, but not a lifetime of nonsensical
punishment. The Commission has not taken a position otherwise, in this or any other report.
Commissioners Kirsanow and Heriot believe we should continue to deny voting rights to people
with criminal convictions even after they have successfully completed their court ordered
sentences. They go so far as to say the only reason I or other Commissioners would support
expanding voting rights is that people with criminal convictions are more likely to vote for
Democrats. This is not only cynical and profoundly anti-democratic, but it is, sadly, untrue. We
do not deny people the right to vote based on who we think they will vote for. If we did, perhaps
Commissioners Kirsanow and Heriot could find other categories of the electorate they would bar
from voting. We cannot exclude those who have paid their debt based on their potential voting
patterns if we want to hold ourselves out to the rest of the world as a free and fair electoral
system. To do otherwise is to travel down the road of disenfranchising our political opponents.
Short-term partisan considerations have no place in America.
Partisan impediments to expansion of voting rights go beyond my colleagues on this
Commission. In Florida, where a large majority of millions of voters (65%) chose to enfranchise
people with felony convictions, the Republican legislature is working to block the will of the
people. A proposal was approved in the Florida legislature that would require payment of all
fines, fees and restitution before restoring voting rights, contrary to the intent of Florida citizens.
A poll tax if you will, so only those with money will be able to buy back their right to vote. This
Commission has documented in detail the pervasiveness of unconstitutional practices in this
country around the imposition of fines and fees. Even setting aside that some of these fees may
not be properly imposed, conditioning voting rights on their payment means voting is for people
with money and no one else. People who cannot scrape together a few hundred dollars to pay
their court costs are no less worthy of having the right to vote than people who can. Maybe the
next target on their anti-democratic agenda will be those who fail to pay their speeding tickets.
My colleagues also fail to mention or attempt to justify draconian restrictions on survival-level
assistance in the form of TANF and SNAP benefits, except for an oblique mention that including
people with criminal convictions in public programs may lessen public support for the programs

161

COMMISSIONERS’ REBUTTALS
overall. This does not engage with the stark testimony we received about the serious personal
consequences to people who are denied these benefits. Further, they offer no response to the
illogical focus of these restrictions on drug crimes to the exclusion of all other crimes. I believe
there is no justification for denying public benefits to people with drug convictions while at the
same time granting them to people with convictions for other crimes. Commissioners Kirsanow
and Heriot will have to admit their position exhibits a lack of logic and common sense. This lack
of common sense extends to the argument proffered by these two conservative Commissioners
that the public does not wish to make school loans to those with drug convictions. Yet, that
prohibition is for one year only and only for certain crimes. It does not make sense that public
support for financial aid would be conditioned on this provision alone.
All in all, my colleagues do not appreciate that those of us who seek to reduce collateral
consequences do not do so out of naiveté but, as a conservative panelist at our briefing said, for
“hard-nosed” public safety reasons. 1 People returning from incarceration need to be part of the
community. This is not only for their benefit, but also for all of us who live in the community.
It’s true that we must also abandon illogical and harsh consequences that do not relate to the
offense committed. Even if my colleagues disagree that people deserve second chances (which
one could take from their writing), they should acknowledge that kneecapping the opportunities
of people leaving prison leaves everyone less safe. More than 95% of currently incarcerated
people will leave prison, many, many without family support, only a bus ticket, and, maybe, 50
bucks in their pocket.
96F

We deserve laws and rules not driven by the rationale that people who committed crimes deserve
to be continually punished. Punishment for punishment’s sake is a useless and cruel exercise. We
can do better and we must. My colleagues fail to engage the arguments on these terms, and
therefore they fail to provide a logical response.

U.S. Commission on Civil Rights, Collateral Consequences: The Crossroads of Punishment, Redemption, and the
Effects on Communities, June 2019, at 13 (quoting testimony of Vikrant Reddy, Senior Research Fellow at the
Charles Koch Institute).

162

COMMISSIONERS’ REBUTTALS

[This page intentionally left blank]

164

Disciplinary Self-Help Litigation Manual - Side

The Habeas Citebook Ineffective Counsel Side