By Amanda Luneburg, St. John’s University School of Law
Honorable Mention in our second annual law student writing competition.
It is said that our past does not define our future but that is not entirely true when that past includes a criminal record. When someone is released from prison or jail it is only natural for them to want to re-assimilate back into society and leave their conviction in the past. They may want to go back home to be a member of their community or maybe even a different community. The criminal record that follows them, however, can cause former inmates to be treated almost as lepers, making re-assimilation that much more difficult. Not many realize the unforeseen consequences that come as a result of someone having a criminal record which make it hard to re-join society; it may even tempt people to commit more crimes. There are collateral consequences to having a record that many do not realize including: difficulty obtaining a job; additional steps to go back to school; restrictions on where one can live and/or travel; and having various rights and privileges revoked or restricted.
Once someone has a criminal record, almost any form or application they fill out will ask about their criminal history. It will ask if the applicant has a criminal record and what crimes were they convicted of. Even if the application does not ask about an applicant’s criminal history many employers, even including fast-food chains, will run a criminal background check and discover the record themselves. This can be problematic when someone with a criminal record is applying for a job. Most employers ask about a criminal history or look into criminal history even before the interview. Because many employers do not want to hire or even consider people with a criminal record, the employers will just toss the application to the side or reject it entirely. This is even more likely if the conviction is related to the job in some capacity. When an application asks about a criminal history outright and before interviews it becomes difficult for former convicts to get that first interview, let alone a job. To expand on this even more there are some civil service jobs that, depending on the type of conviction, render someone ineligible for a position. An example is when someone has a misdemeanor conviction for a domestic violence crime they are, per federal law, ineligible for jobs where the duties includes transporting, receiving, or possessing firearms and/or ammunition. Another example is some federal government jobs will not allow those convicted of felonies to work for them. Recently since the Obama Administration there have been “Ban the Box” executive orders which require federal government to not ask about an applicant’s criminal record until after the offer has been made. Multiple jurisdictions have followed President Obama’s lead but most of these new laws apply to the state governments and employers that have ties to the government (i.e. have contracts with the government) and thus do not apply to all employers. Additionally, as stated above and regardless of these new laws there still are jobs that former inmates are ineligible for because of their convictions.
This limits their options for jobs to those that may not pay well or are off-the-books and offer no benefits. If the person with a criminal record has bills or others to support, only being able to obtain a low-income job with no benefits can make crime for profit more desirable. When someone cannot get a good, well-paying job and a return to crime becomes much more desirable, jurisdictions start to have high rates of recidivism.
The same could be said if someone with a criminal record decides to continue their education at a college or university. When one decides to continue their education, depending on the jurisdiction, there may be extra steps in place before they can be enrolled. Aside from being required to disclose their criminal record to the admission department, if the student is accepted then there may be even more steps that need to be taken. For example, in some areas of Connecticut, when the criminal record includes sexual assault, the local police for that college or university must be sent a copy of the admitted student’s criminal record and past probation reports.
Additionally, where one lives or travels can change once someone has been convicted of a crime or crimes. Depending on the crime committed, the places available to live after someone is released can change. The most obvious example is sex offenders. Once they are released they are restricted from living close to schools, playgrounds, childcare facilities, or basically anywhere children gather. A more general example is landlords or housing departments turning down potential tenants because of their criminal records. While a blanket refusal policy is discriminatory, those with criminal records are not a protected class under the Fair Housing Act and therefore there are cases where those with criminal records can be refused. Overall, the availability of housing shrinks for those with criminal records that include any crime, not just specifically a sex offense. Another issue is travel. Usually once someone is released they have to report to parole or probation and at those departments there are rules that prohibit former convicts from traveling outside the state. Even if one does not have probation or parole, there are certain felonies that deem someone ineligible for a United States passport. For example, if someone was convicted of a drug related offense that included crossing the border, they would be ineligible to receive a United States passport. However, even if someone with a criminal record is able to get a passport there are certain countries where entry can be restricted based on the crimes within the criminal record. One example of a country that is strict with this is Canada. There, the Canadian border officials have the ability to deny entry to anyone convicted of a crime in the United States regardless of its degree or classification. Every country varies but extra research must be done for someone with a criminal record if they want to travel outside their own state or the United States.
As citizens there are certain opportunities we do not realize we take for granted. There are rights afforded to people of the United States which can be taken away in an instant once someone has a criminal record. The most common of these rights is the right to vote. Majority of states (all but Maine and Vermont) will revoke one’s right to vote once someone has a felony conviction. Some states extend this even further and will revoke one’s right to vote once someone has a misdemeanor conviction. Many of the states that revoke after a felony conviction, however, will eventually reinstate the right to vote. The process for this right to be reinstated can vary depending on the jurisdiction. It can range from something as simple as completing their sentence and doing the time served or going through an extensive and expensive application process.
Another right that can be taken away or reduced is parental rights. If a couple is going through a custody battle and one of them has a criminal record the court is more likely to favor the other parent without the record. The favoring can be in the form of sole custody of the child or children and/or awarding the parent without the record more of what they are asking for (i.e. child support, supervised visitation for parent with criminal record). For someone who wants to provide for their kids, a criminal record can stand in the way.
It is not just rights that are affected by a criminal conviction, but also the privileges that are afforded to people in the United States. One example of a privilege that is afforded to many students is access to financial aid through federal student loans. When someone has a criminal conviction their eligibility is limited, and extra steps are required before eligibility for available loans can even be granted. For example, if someone was convicted of a sexual offense and was involuntarily civilly committed then they cannot receive a Federal Pell Grant. Additionally, if there was a drug related conviction that occurred while receiving federal aid then additional steps must be taken in order to be considered for continuing to receive the aid. These steps include filling out a worksheet to see if the drug related conviction alters their eligibility. If the eligibility is suspended, then a person can reinstate their eligibility by participating in drug rehabilitation and passing two random drug tests. A criminal record can affect eligibility for other types of loans as well (i.e. mortgage, car loan). Issues can arise when the application asks about a person’s criminal record. Depending on how severe the conviction is, the lender can potentially reject the former convict’s application. Another issue that arises is when the lender must look at credit reports. Someone who has served time in jail or prison may have had to declare bankruptcy while they were away which can affect their credit score. As stated above, obtaining a job or some form of income with a criminal record is difficult and this can also affect one’s credit score too. And as many know, a good credit score is a big factor in obtaining any loan.
Another privilege that can be lost when someone has a criminal record is being in the United States and living here. For someone who is an immigrant their status can be altered once they have a criminal record. Once an immigrant has a record they are most likely ineligible for a green card or a visa in the United States. Also, depending on their immigration status, they may be eligible for deportation.
Another privilege that is taken away once someone have a criminal record is forms of public assistance programs such as food stamps/ SNAP. Per the Social Security Administration website, a person who was convicted and served time is still eligible for Supplemental Security Income (SSI) benefits so long as (1) that person paid into social security for enough years or (2) are sixty-five years old or older or (3) are blind or (4) meet the Administration’s definition of having a disability. With other public assistance programs such as food stamps, also known as Supplemental Nutrition Assistance Program (SNAP), eligibility varies by state. In 1996 the President Clinton passed the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), which coincided with the “war on drugs” and placed a lifetime ban on those convicted of a drug felony. This rendered them ineligible for all public assistance programs for life. States have had the option to back out of that blanket lifetime ban policy and most have but, some still have not. A handful of states still have a full or partial ban on various public assistance programs; they are stuck in the old “war on drugs” mentality and the misconception about addiction. For example, the states that still have a full lifetime ban on receipt of the SNAP program for those convicted of a drug felony include Mississippi, South Carolina, and West Virginia. States that still have a partial ban include Colorado, Connecticut, and Kentucky. A partial ban means that someone convicted of a drug felony can regain their eligibility for SNAP benefits so long as they meet a series of criteria which can include completing a substance abuse treatment program. The fact that states still have these kinds of bans is troublesome because as stated above obtaining a job can be difficult, let alone a job that pays enough to provide for themselves and their family. These programs are meant to assist those in the country who need help while they try to “get back on their feet.”
Having a criminal record can make attempts to re-assimilate difficult. It starts when someone first gets out and tries to get a job and a new home and they face obstacles. Then, when a former convict tries to go back to school or get a loan for a house or a new car more obstacles are encountered. And matters are made even worse when the person is an immigrant who came to this country to make a better life and now may be deported. The collateral consequences that come as a result of a criminal record is a key reason why recidivism rates can be so high. Ultimately, to punish someone further when they were already punished and had served time for their crime is equivalent to extending their sentence—and that is just unjust.