“It is not, as a rule, the good people who commit crime.”
— Justice David J. Brewer, Hawker v. New York, 170 U.S. 189 (1898)
“Still, the prisoner is a person; still, he or she is part of the family of humankind.”
— Justice Anthony M. Kennedy, Speech to the ABA (August 2003)
The quotations above encapsulate the historic tension in our justice system between condemnation for an offender and reintegration. With the expansion of the war on drugs and the war on terror, reintegration has increasingly taken a backseat to other concerns. The recent case of a former University of Alaska Anchorage student denied admission to the School of Social Work highlights the difficulties faced by former offenders seeking reentry into mainstream society. M.P. enrolled at the University after serving 20 years for a murder he committed as a teenager. Although he was successful in his foundational courses and, for a time, served as president of the school’s Social Work Club, the School of Social Work twice denied him admission into the social work degree program. A superior court decision held that the University was within its rights in denying his application (3AN-05-0937CI).
The story of the case received extensive coverage in the media, but omitted from most reports was any discussion of Alaska’s regulatory framework controlling the licensure of social workers. Those statutes and regulations provide that a felony or misdemeanor conviction is grounds for the state to deny an otherwise qualified applicant a license to practice social work. This licensing scheme, and its indirect impact on M.P., is a classic example of the phenomenon often labeled collateral consequences. The term refers to the myriad, often unforeseen, ways in which state and federal laws disadvantage those with criminal convictions as they seek to engage in the ordinary activities of American life. In Alaska, these laws run the gamut from impairing the right to vote to limiting access to food stamps to barring an individual from working as a fisheries observer. At the federal level, these laws may impair access to public housing, render students ineligible for financial aid, bar individuals from various forms of federal employment, and, for noncitizens, trigger deportation proceedings. (The term collateral consequences is used here to refer generally to the effect of any measure that might increase the negative consequences of a criminal conviction. Note, however, that in proceedings for post-conviction relief the term carries a specific meaning. In Alaska courts, a collateral consequence is one that originates outside of the trial court. Thus, a consequence that will flow inevitably from a conviction may be deemed collateral, provided it does not originate in the original trial court proceeding, to the same extent as those consequences that are mere possibilities. Sex offender registration, for example, is deemed a civil regulatory matter collateral to the imposition of an offender’s sentence.)
At both the state and federal level, the collateral consequences of a criminal conviction fall roughly into three categories. The first is impaired access to, or enjoyment of, the ordinary rights and benefits associated with citizenship or residency, such as voting or driving. The second is impaired economic opportunity, primarily through reduction of the range of available employment. The third is increased severity of sanctions in any subsequent criminal proceeding brought against the offender.
These indirect but significant consequences of a felony or misdemeanor conviction are receiving increasing attention from policy makers, ethicists, and the bar. Setting aside issues of constitutional or statutory rights, the growing web of civil disabilities triggered by a criminal conviction raises fundamental questions about what makes sense as a matter of public policy. The questions encompass both economic considerations and our values as a democratic people.
Policy Considerations: Criminal Administration, Economics, and Public Safety
Alaska’s Constitution spells out the policies underlying administration of our criminal justice system. They are: “the need for protecting the public, community condemnation of the offender, the rights of victims of crimes, restitution from the offender, and the principle of reformation” (Alaska Const. art. I, § 12). Of these, the need for protecting the public, community condemnation, and reformation or rehabilitation figure most significantly in the collateral consequences debate. There is, of course, an inherent tension between the community’s interest in public safety and the criminal defendant’s interest in full restoration of civic rights. Legislators and regulatory agencies seeking to adjust this tension must evaluate those measures that truly advance public safety, those that are merely punitive or reflect “community condemnation,” and those that, despite the legitimacy of the foregoing policies, unduly impede the defendant’s reformation.
Although an offender’s constitutional right to rehabilitation does not extend beyond release from custody, Alaska law recognizes a public interest in rehabilitation. From a policy standpoint, the appropriate question is, “What opportunities should be available to the released offender that will advance the interests of the community as a whole?” Certainly, the community’s interests are advanced when former offenders are reintegrated as working, tax-paying members of society, with adequate resources to provide for themselves and their families. (It should be noted, in this regard, that a majority of those incarcerated in the nation’s prisons are parents of children under the age of 18.) A released offender’s inability to find work often further impoverishes his or her family and places a concomitant burden on the social welfare system.
In addition to boosting the tax rolls and decreasing the welfare burden, providing released offenders with adequate opportunity for employment also serves the interest of public safety. Studies show a statistical relationship between lack of employment and increased risk of recidivism. There is an economic aspect to this as well: Increased recidivism translates into increased public expense associated with court administration, prosecutors, public defenders, incarceration, probation, and parole.
For all of these reasons, unduly restricting an offender’s access to employment is antithetical to the public interest. This is not to suggest that restrictions on post-offender employment are never warranted. Few would argue, for example, that there is no legitimate public safety interest in keeping serial DUI offenders from getting behind the wheel of school buses, but any regulatory measure that excludes an offender from a given form of employment should be carefully calibrated to ensure there is a reasonable relationship between the requirements of the job, public safety, and the scope of the exclusion. While some Alaska statutes already meet this standard, others do not.
Policy Considerations: Ethics and Fundamental Fairness
Fundamental fairness is a recurring theme in our constitutional doctrines. It encompasses both notice and proportionality. The tangled web of collateral consequences presently existing under state and federal law raises troubling questions on both fronts.
Plea bargaining is indispensable to the machinery of justice in the United States, where approximately 90 percent of criminal cases are resolved without trial. Its legitimacy in our system is premised on the defendant’s informed choice regarding his fate. Thus, under Alaska’s criminal rules, a court may not accept a plea of guilty or nolo contendere (no contest) without first determining that the defendant understands the nature of the charge. The court must also inform the defendant of a “maximum possible punishment under the statute defining the offense for which a plea is offered.”
However, because collateral consequences laws are so widespread and so varied, and because they are largely buried in regulatory schemes unrelated to the criminal code under which an individual is prosecuted, they pose a special danger in this area. The absence of a central repository for all of these statutes and regulations makes it entirely possible that with respect to a given proposal, neither the prosecutor, defense counsel, nor judge—not to mention the defendant—will fully understand all the consequences triggered by a guilty or nolo plea. Notwithstanding this fact, in Alaska, as in the vast majority of jurisdictions, there is no obligation under the rules to inform a defendant of all of the possible collateral consequences of a guilty or nolo plea.
The courts’ refusal to hold that defendants have a right to be notified of all the potential consequences of a plea may make sense, given the enormous range of possibilities and the fact that many of these potential disabilities are essentially hidden in statutory schemes far removed from a jurisdiction’s penal code. A contrary holding might set a standard virtually impossible to meet under the extant system, with concomitant implications for establishing knowing and voluntary pleas and effective assistance of counsel. Nevertheless, whether or not they have a right to know, the desirability of providing all defendants with as much information as is reasonably possible is indisputable. The Alaska Rules of Criminal Procedure recognize that certain collateral consequences are sufficiently grave that they must form part of the court’s colloquy with the defendant. If the defendant is not a U.S. citizen, the court must advise that the conviction may affect the offender’s immigration status. In addition, the court must provide written notice of Alaska’s sex offender registration requirements to defendants charged with a statutorily-defined sex offense or child kidnapping.
Taken together, Alaska’s rules of procedure reflect that expectation of fair play on which our constitutional doctrines rest. Given this standard, the fact that it is presently so difficult to find all of the information necessary to provide such notice casts a shadow of unfairness over the entire plea bargaining process.
Just as troubling as the absence of complete notice is the lack of proportionality resulting from the vast network of regulatory measures barring offenders from full civic and economic participation. In many cases, the conflation of collateral consequences with the actual sentence imposed results in punishment far beyond what most would consider just.
First, the collateral consequences of a conviction may impose on the defendant lifelong stigmatization, a result contrary to the policy of rehabilitation underlying Alaska’s criminal administration. In addition, collateral consequences are associated with a diminution of overall life chances—the ability to obtain safe housing, adequate nutrition and medical care, higher education, and economic independence. The combined effect of the regulatory barriers triggered by a criminal conviction may include, as noted above, ineligibility for public housing assistance and food stamps, denial of student loans, revocation of driver’s licenses, destruction of family bonds, and a host of employment limitations. The financial impact of a criminal conviction, moreover, is not limited to the employment limitations imposed by statute or regulation. Private employers in all sectors of the economy have historically discriminated against those with a criminal history. (For some employers, the potential threat of a negligent hire lawsuit adds economic impetus to this practice.) Thus, for as long the law continues to permit private employment discrimination on the basis of criminal history, the actual percentage of the job pool unavailable to former offenders will be far larger than that represented by those jobs placed off limits by statute or regulation. In addition, the recent practice of providing public access to criminal prosecution information over the internet means that, with next to no effort, every potential employer may review an applicant’s local criminal history. The Alaska Court System’s CourtView program, for example, provides information about criminal (and civil) cases, including traffic cases and other minor offenses, in Anchorage, Barrow, Fairbanks, Kotzebue, Nome, Palmer, and Unalakleet.
In sum, the combined effect of legally denying access to certain jobs and the reluctance of employers to hire offenders even for those jobs for which they are legally qualified creates a formidable barrier to economic success and life satisfaction. The net effect on overall life chances will be, for many offenders, a far harsher penalty than that imposed under the state’s penal code.
More disturbing than all of the foregoing, however, is the disproportionate impact of collateral consequences on certain ethnic groups. Throughout the country, a complex network of economic and political disadvantages has led to the overrepresentation of discrete groups in the incarcerated population. Statistically, Alaska Natives/American Indians and African-Americans are disproportionately represented in Alaska’s offender population. Thus, to the extent the civil disabilities imposed on former offenders unduly impede their economic success and civic involvement, these groups as a whole are impoverished and disenfranchised to a greater extent than ethnic groups with lower levels of representation in the offender population.
Challenges for the Bar and the Movement toward Change
As the number of statutory and regulatory measures negatively affecting offender re-entry continues to grow, the bar has begun examining its role in shaping a more just and humane system. To facilitate these efforts, the American Bar Association’s Criminal Justice Section has established the Re-entry and Collateral Consequences Committee.
Justice Anthony Kennedy of the U.S. Supreme Court gave considerable impetus to this movement in an August 2003 speech to the American Bar Association, in which he addressed the justice system’s failure to concern itself with the post-incarceration fate of offenders. He observed that a criminal justice system, the purpose of which is “to degrade or demean individuals is not acceptable in a society founded on respect for the inalienable rights of the people.” He urged lawmakers and lawyers in both civil and criminal practice to turn their attention to what happens to prisoners after they are locked away, “to help find more just solutions and more humane policies for those who are the least deserving of our citizens, but citizens nonetheless.”
During the same month Justice Kennedy issued his call for action, the American Bar Association House of Delegates approved standards designed to provide a legislative model for mitigating the overly harsh effect of extensive federal and state restrictions on the civic participation of former offenders. The standards include recommendations for limiting the sheer number of restrictions, ensuring that restrictions bear a legitimate relationship to the risks posed by the offenders’ criminal conduct, gathering restrictions in one place so that legal professionals, offenders, and the public may find them, requiring notice of collateral restrictions in the sentencing process, prohibiting unreasonable public and private discrimination against former offenders, and increasing the availability of methods for obtaining relief from extant restrictions.
Of these, the recommendation calling for collection of collateral consequences statutes has received the most ready response. The recommendation, however, only calls for collecting automatic disqualifications. For a great many defendants, discretionary disqualifications—those disabilities that do not flow automatically from a conviction, but which may be imposed by virtue of an individual’s particular circumstances—may be even more devastating. Consider, for example, the recent case of J.P., who was sentenced to six months in jail, five years probation, and payment of restitution after pleading no contest to forgery and theft. Approximately four years after her sentencing, J.P. applied for certification as a nurse’s aide. Her probation officer supported the application, stating that she had made “noted progress” during probation. The Board of Nursing, however, denied the application, finding, pursuant to its statutory authority, that the facts surrounding the applicant’s criminal conduct were incompatible with the duties of a nursing assistant. For J.P., the inability to work in her chosen profession may well be a greater penalty than her actual sentence. To take this example one step further, assume hypothetically that J.P. someday finds herself unable to bear children, and she and her husband decide to adopt. Under current Alaska law, her criminal history may prevent her from ever adopting a child or serving as a legal guardian.
It may be that in the foregoing example, Alaska’s professional licensing system worked exactly as it should. The board reasoned that, because J.P.’s criminal conduct victimized older persons, vulnerable to her actions, she should not have contact with those who might be vulnerable because of their medical condition. But, even if this particular case struck the right balance between public safety and reintegration, it is doubtful that J.P. understood the full range of career options that would be potentially unavailable following her plea, or the potential ramifications the plea might carry for her in the future, such as posing a barrier to adoption or guardianship. For that reason alone, jurisdictions should make every reasonable effort to increase the visibility of both automatic and discretionary or potential collateral consequences. Leaving in place a complex system of regulatory penalties that is essentially hidden from most defendants contravenes basic ideals of fair play and justice.
Locating Collateral Consequences in Alaska
In Alaska, statutes and regulations potentially affecting an offender’s civic and economic reintegration occupy well over one hundred different sections of the Alaska Statutes and Alaska Administrative Code. Other limitations imposed on offenders may be found only through careful perusal of the rules of evidence, rules of court, or unpublished agency policies. In this, Alaska is like every other state: The task of identifying all of the legal disabilities potentially triggered by a criminal conviction is enormously difficult. For an individual without time, resources, or training, it is likely to be impossible.
The tables accompanying this article illustrate the range of Alaska statutes, regulations, and other rules that affect or have the potential to affect adversely a convicted offender’s transition back into full civic and economic participation (local ordinances, which often contain similar restrictions, are omitted here). Table contents have been selected for illustrative purposes from a more complete, although still preliminary, listing, which is available at http://justice.uaa.alaska.edu/workingpapers/.
* * *
This is the first of a series of articles looking at this issue. It is intended merely as a starting place for analysis. (For further reading, see “Further Reading on Collateral Consequences” in this issue.) A thorough review of the complex questions of public policy raised by the issue of collateral consequences is beyond the scope of this essay. Pending such review, however, it may be well to remember Justice Kennedy’s admonishment that “a people confident in its laws and institutions should not be ashamed of mercy.”
Deborah Periman is an assistant professor with the Justice Center. A slightly different version of this article, with complete legal citations, can be found at http://justice.uaa.alaska.edu/occasionalpapers/.