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March 31, 2012

The Machinery of Criminal Justice #7: Collateral Consequences and Reentry

[Stephanos Bibas, guest-blogging]

In my last guest-blog post about my new book, The Machinery of Criminal Justice, I advocated requiring military service as a punishment for able-bodied convicts without serious violent tendencies. Today, in my final guest-blog post, I'll make a pitch for reducing collateral consequences and facilitating prisoners' reentry into society.

 Making inmates quit drugs, learn, and work can better prepare them to reenter society. But even after they have supposedly paid their debts to society and victims, our laws are remarkably unwilling to give them a second chance. Ex-cons face a web of laws and prejudices. Some exclude them from the polity symbolically, by forbidding them to vote, serve on juries, or hold public office.

Other laws harm them more tangibly by limiting where they can live and how they can work. After conviction, inmates are often shipped to distant prisons at the other end of the state, impeding family visits and straining or breaking family bonds. Even after they are released from prison, sex offenders and others are often forbidden to live within a thousand feet or so of schools, day-care centers, playgrounds, churches, and hospitals. In many urban areas, these residency restrictions rule out most of the city, in effect exiling or banishing ex-cons entirely. Likewise, licensing laws limit felons' employment not only as police or schoolteachers, but also as embalmers or septic-tank cleaners.

 The net is quite broad: sex offenders include not only child molesters, but also flashers, public urinators, or teenage lovers. And the effects are often perverse: Ex-cons may not be able to live with their families and neighbors, who might keep an eye on them. Instead, they may have to crowd into the same motels on the wrong side of the tracks and build new criminal networks. Likewise, when we deny felons the right to work in the profession for which they have trained, we may be consigning them to unemployment or crime.

There is little evidence that these laws make us safer. Predators on the prowl can easily travel a mile or two to commit their crimes. On the contrary, residency restrictions probably make us less safe, by clustering ex-cons and preventing them from reintegrating into their families. Thus, even one prosecutors' group (the Iowa County Attorneys' Association) has vocally opposed a residency law as ineffective and distracting from the core mission of preventing crime.

The point of punishment is not to ostracize wrongdoers into a permanent, embittered underclass, but to exact retribution and prepare them to return to the fold. Shame, embarrassment, even modest degradation are fitting so long as they are temporary, so wrongdoers can repudiate their wrongs and be seen to suffer enough to discharge their debts to society and victims. Only a small fraction of predators are hardened and dangerous enough to require permanent confinement or execution; most will return someday.

The left and the right ought to be able to unite behind a combination of restorative punishment followed by forgiveness. Indeed, one prominent group associated with the religious right has already come out against many collateral consequences on just this ground. The Prison Fellowship, founded by Chuck Colson, draws on Biblical language of forgiveness to support a dramatic narrowing of collateral consequences. Governments, they argue, should abolish all restrictions that are not related to the crime of conviction and not needed to protect the public. Though a powerful political ratchet keeps toughening collateral conseuqneces, conservative groups such as the Prison Fellowship can give politicians cover for ameliorating them.

Now, forgiving does not require forgetting. One can legitimately worry about the sincerity of a wrongdoer's remorse or a sincerely repentant wrongdoer's ability to resist future temptations. It is one thing to restore a drug dealer's right to work as a bartender or plumber; it is another to license him as a pharmacist with access to prescription narcotics. Restoring rights requires difficult judgment calls about how severe the wrongdoer's crimes were, how trustworthy he has become, and how sensitive the right in question is. But we should not be so afraid that we refuse to take any chances at all.

Finally, public-private partnerships can promote successful reentry. Public reentry programs remain woefully inadequate; many inmates are released from prison with no support other than a bus ticket and a few dollars. In response, some private groups such as Prison Fellowship's InnerChange Freedom Initiative run reentry programs. Volunteers, often from local church congregations, mentor inmates and help to arrange for housing and jobs upon release.

Contact with mentors and congregations, empirical studies suggest, are crucial in holding ex-cons accountable and keeping them on a lawful path. The Establishment Clause issues with offering religious programming are manageable, so long as prisons are open to secular alternatives, state dollars don't directly fund specifically religious activities, and religious programs receive no better facilities or perquisites.

Governments should try harder, but public reentry programs are woefully underfunded and unprepared to help the masses of released inmates. As long as there is no religious coercion, we should welcome all manner of private assistance to bring inmates home and give them the mentoring, accountability, and community reintegration they need.

Well, thank you all for having me guest-blog here for the past two weeks. I certainly can't match Doug Berman's speed or volume, but I hope you've enjoyed hearing about some different historical and contemporary angles on punishment and corrections, and hope you'll consider taking a look at the book, which covers much more.


Stephanos Bibas

March 31, 2012 at 09:00 AM | Permalink


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And I was hoping you'd explain to me the relevance of Article III to states . . . .

Posted by: federalist | Mar 31, 2012 9:16:49 AM

Professor Bibas --

With all respect, sir, your thinking seems to me to omit the single most important fact: That by the time a person has come to view the world in a way that makes it permissible for him to hold a revolver to the clerk's head to knock over the 7-11; or to sell meth to a 16 year-old to make a quick buck; or to concoct some swindle based on a pack of lies, to wheedle Grandma, or a thousand Grandma's, out of their savings -- by the time that has happened, it's already too late for any instrument or program or attitude by the government to rescue the situation.

Redemption does not take unless it's wanted. On the present evidence, there is nothing the state can do to make a wrongdoer want it. A change of heart that fundamental can come only from within. If there is a way of inducing it from the outside, no one has found it yet.

Posted by: Bill Otis | Mar 31, 2012 10:15:32 AM

Bill, you're absolutely right. I think, however, that decisionmakers need to be conscious of the costs of their decisions. Does it really make sense for consensual sex between a 17 year old and a 15 year old to be a life-ruining event for the 17 year old? I am into a draconian criminal law; I am not into mindless draconian criminal law.

Posted by: federalist | Mar 31, 2012 10:28:32 AM

federalist --

"Does it really make sense for consensual sex between a 17 year old and a 15 year old to be a life-ruining event for the 17 year old?"

Of course it doesn't.

This does not change the fact that Prof. Bibas's proposals seem to me to be based on a naive view of the great bulk of felony convicts and the attitudes and ways of thinking that led them to their present status.

Your example is apt. It is true that there are a very few of these harmless Romeo/Juliet cases that no one in his right mind would think are even criminal, much less deserving of such severe punishment. The problem is that those cases get seized upon to portray the entire system as predatory on normal, good-hearted people, and this portrayal is utterly false. Most sex offenders are not high school kids in love. Most are, instead, older men who rape younger women, using drugs, intimidation or force or all three.

People who do that sort of thing need an attitude change. Prof. Bibas apparently believes that the more productive course would be FOR THE REST OF US to have an attitude change, and for this collective change to express itself in -- you guessed it -- shorter sentences.

I just think this elides the central problem: That there is such a thing as a criminal view of the world, and that the first, essential step in changing that view is internal. It is essentially unreachable by government action.

Posted by: Bill Otis | Mar 31, 2012 10:47:22 AM

There must be many minds which are wired to want to think the way two of the above posters, think! Now, I know what is wrong in this world. The prisons are physical places of confining human beings, but so many poor, poor souls, have a prison condition on their way of thinking, that is much stronger. You guys are wrong. You think that people who end up in prison in America are "wrong", are already "ruined." Some are. Most are not. Many, many, many were just at the wrong place at the wrong time, and there, but for the grace of God, go you!

Posted by: Dana Laine | Mar 31, 2012 11:00:13 AM

The problem, Bill, is that these things are happening. And draconian criminal laws are being brought to bear on all sorts of activities that either do not deserve criminal sanction or very light sanctions. For example, in Chicago, prosecutors are trying instances of videotaping cops as serious felonies. And there was the recent post in here about a guy who committed very minor crimes in his youth who was sentenced to 15 years for possession of a hunting rifle--now I admit I don't know all the facts, but on its face, this seems a tremendous waste. People are losing custody of their children to DCFS for simple marijuana possession, which is an outrage.

I, like you, despise the "be nice to criminals" nonsense that we see from far too many judges. However, given the heartwrenching anecdotes of clear overreach of the criminal justice system and the propaganda of those with an agenda, we will lose this battle.

People like Professor Bibas, I believe, also fail to take into account the issues that led to the draconian responses. "Revolving door justice" was not just a slogan, but an accurate descriptor.

Posted by: federalist | Mar 31, 2012 11:02:14 AM

"I just think this elides the central problem: That there is such a thing as a criminal view of the world, and that the first, essential step in changing that view is internal. It is essentially unreachable by government action."

Bill, I didn't know you were an anti-Arisotelian.

Posted by: federalist | Mar 31, 2012 11:04:53 AM

"You guys are wrong. You think that people who end up in prison in America are "wrong", are already "ruined." Some are. Most are not. Many, many, many were just at the wrong place at the wrong time, and there, but for the grace of God, go you!"

You're right. Some people are redeemable. Some criminals would take the opportunity to better themselves if released.

There are two problems. The practical one is that there is no good way to separate the who is going to be good and who is not, and thus you shift the risk to members of the innocent public. (Of course, there's a moral question embedded there.) The second problem is the unfairness to victims. Let's say, after a year in the pokey, a violent rapist learned his lesson, and we could be sure that he would never reoffend. Is it fair to simply let him go?

Posted by: federalist | Mar 31, 2012 11:24:14 AM

Dana Laine --

"...there, but for the grace of God, go you!"

I don't think so, Ms. Laine. I don't do drugs, steal stuff, have sex with minors, use violence to settle disputes, lie or mislead people to get their money, cheat on my taxes, etc., etc.

The idea that everyone is all the same so "there but for the Grace of God go you" is just so much sloganeering egalitarian nonsense. Different people make different decisions about who they want to be and how they're going to live. At some level, surely you know this.

Posted by: Bill Otis | Mar 31, 2012 11:41:59 AM

federalist --

It's easy to magnify outrageous episodes to create a vastly misleading impression of how the system works. Many liberal sites specialize in doing exactly that.

Let's say this site had featured 200 scandalous episodes like the Romeo/Juliet example and the hunting rifle case you mention. What always gets omitted is the huge number of cases in which the system functions properly. I don't even know (although I should, for my teaching, find out) how many felony convictions there are each year. I suppose there are hunderds of thousands; the usual liberal complaint is that we're locking up the whole country, just like China, Iraq, Iran, etc., et al.

For purposes of assessing how well the system is doing, we have to look at the number of unjust outcomes COMPARED TO the number of just ones. It is that comparison that never seems to make it onto this board. We also have to look at how the system is working to achieve its paramount goal, to wit, to reduce the number of crimes and the number of person victimized by crime. (And the answer is its doing stupendously well, with crime HALF of what it was 20 years ago).

No system is going to operate perfectly; every system is going to have errors and trade-off's. As you correctly point out in another comment, the question is: Who should bear the unavoidable risk or error? You also give the correct answer to that question -- criminals, not present or future crime victims.

Posted by: Bill Otis | Mar 31, 2012 12:02:35 PM

federalist --

I think I skipped class to play volleyball when they had the lesson on Aristotle.

Posted by: Bill Otis | Mar 31, 2012 12:13:23 PM

Bill, you're right that every system is going to have errors and trade-offs. And I tend to be pretty forgiving of honest mistakes. (When I was 13, I had a gun pulled on me by police officers in my own home. Apparently, someone reported a burglary.) My issue is that a lot of times the errors you refer to aren't on-the-spot mistakes, but studied injustices.

Posted by: federalist | Mar 31, 2012 12:27:44 PM

This was an excellent set of guest postings. As a reader outside the United States, I particularly enjoyed the last one on collateral consequencees. This is a topic likely to loom large internationally in the coming years.

Posted by: Tom | Mar 31, 2012 12:55:35 PM

This article seems pretty spot on to me. While what Bill and others were saying is true, that the government cannot force the offender to actually want redemption, it is still nevertheless foreclosed even to those who do want it due to a system of one-size-fits-all collateral consequences that are perpetual. If one were cynical, one might take issue with the assertion that "[t]he point of punishment is not to ostracize wrongdoers into a permanent, embittered underclass, but to exact retribution and prepare them to return to the fold."

In actuality, the point of punishment seems much more closely aligned with the prior proposition, as opposed to the latter.

Posted by: Guy | Mar 31, 2012 1:43:50 PM

Dana Laine stated: "You think that people who end up in prison in America are "wrong", are already "ruined." Some are. Most are not. Many, many, many were just at the wrong place at the wrong time, and there, but for the grace of God, go you!"


I worked in several prisons of all security classifications. Unfortunately, the overwhelming majority of these individuals were those who did very bad things to get in prison, were doing bad things in prison, and will do more bad things when released.

In this case, God's Grace comes in the form of freedom to choose good or evil. I choose not to commit crimes. They chose otherwise.

Posted by: TarlsQtr | Mar 31, 2012 3:50:51 PM

@ Tarls:

But isn't the point that if you choose good you should not be punished in perpetuity? And, if punishment only exists in perpetuity, then once condemned what reason does one have to choose anything but to continue to do evil, if it's punishment either way?

Posted by: Guy | Apr 1, 2012 4:18:47 AM

I hope Prof. Bibas sees these criticisms as expressions of esteem and caring. They are worth $hundreds per hour as consultations. Also the Professor is not so superior as to be above replying to the the scientifically or common sense validated criticism in the comments. He believes he is, but is not. I am not reassured about the intellectual horsepower of the clerks supporting the work of our Supreme Court Justices.

If the above were a high school term paper, I would return it to the student. It is a mere list from Wikipedia or some other convenient source. Before grading it poorly, I would ask that he briefly discuss, how and why these collateral consequences arose, and whose interest they serve, maintaining them.

OK, a violent offender should not receive a license to carry a concealed gun. That regulation is relevant to crime and safety.

But why should a fishing license beef result in a plumbing license hassle 10 years later? The dumbass Supreme Court where the Prof worked and got mentally crippled supports these collateral consequences. These Justices literally know nothing about nothing, and get to make law for 300 million people, in violation of Article I Section 1 of the Constitution. Yet, no politician may criticize the dumbasses without getting personally destroyed. That is because they generate massive government make work, and any attack on them is an attack on lawyer rent seeking.

1) Prove each regulation and collateral consequence of a criminal conviction promotes public safety.

2) Show relevance to the crime.

3) Set an expiration time, after which the collateral consequence should not apply.

4) If they are regulations and not punishment, generate massive litigation for their regulatory takings.

5) Get rid of the lawyer from all policy positions in the criminal law, including all benches. No lawyer should be allowed to be a judge. Being a lawyer is membership in history's biggest criminal syndicate. That is relevant to the integrity of the judicial system. The lawyer never recovers from the mental crippling effect of law school, so there should be no expiration date. After law school, the lawyer believes in supernatural doctrines from a church, in violation of the Establishment Clause. See the effect of law school on the brilliant intellect of the Professor.

Posted by: Supremacy Claus | Apr 1, 2012 6:20:06 AM

The attachment of multiple, disproportionate, illegal, harsh civil punishments and restrictions against the 2 million and counting Ohioans (excluding the 48 thousand currently in prison and the 20 some thousand awaiting conviction based on the "plea deal" system of jurisprudence) is a problem with many tentacles. Those state sponsored punishments under the euphemism "collateral sanctions" create multiple barriers for re-entry. Society permits those barriers yet at the same time hypocritically whines when crime either comes knocking on their door or close by. I don't know what would give anyone the impression that man or woman will live on their knees...where did that belief come from? Do you think that we are going to accept a sub-existence in society? Do you think we are going to allow our children to suffer the consequences of our admittedly stupid actions especially when we paid our debt to the state (note that importance) and perhaps the victim (and that importance) yet society, aspecial interest groups (i.e. background agencies, council on smaller enterprises in cleveland ohio, etc)oppose our re-entry; why? Should be be cast aside? If so, then let the bullets fly and we'll all see who is left standing. These civil punishments are just a continuation or mirror of the blackcodes and before that the outright slavery and poor codes-especially when you consider the over-representation of the african-american population confined to the american prison complex. Ohio, with a population of some 11.5 million people as of maybe late last year, also has within that population 2 million residents convicted of either felonies or misdemeanors; 17% of the Ohio population. Only 10% of the Ohio population is needed to create constitutional change. Imagine when we reach around 50-60% of the population-we might as well take over and turn Ohio into a prison "colony" and receive federal funding to operate the state as a haven for felons. It would be interesting to know how long it took to reach 17% of the population with roughly 400,000 people coming through the penal system of ohio in the 80s; how quick-at the rate Ohio is going in convictions and incarceration-can we obtain the majority in Ohio? Now, if you read above what supremacy clause said, you could come to an intelligent conclusion/solution to the problem. My theft conviction prohibits me from obtaining licensure to administer certain pesticides in the state of ohio. It also prohibits me from obtaining a license to become an electrician, plumber, hvac guy, nurse, care worker, pawnbroker, stockbroker and on and on and on. Another example, my 2003 conviction for lying to a cop about my identity because i was driving without a license brings 59 "collateral sanctions". You can go the the ohio public defender's website and check under CIVICC and do the search yourself. My agg burglary conviction brings about 450 collateral sanctions-more than had I been convicted of agg murder! the disproportionate punishments are unconstitutional. The lack of proper guidance to assist the various agencies who push these state sponsored punishments often results in impermissibly vague enforcement or application of said statutes and are also illegal. Then the sanctions themselves are illegal as they are pushed by a branch of government when another branch of government-the judicial-deals with punishment and crime. If the Ohio Supreme Court can rule part of the AWA unconstitutional and a form of punishment, surely a court will see light when it comes to the issue of collateral sanctions and the prohibition against slavery with the exception for a crime. that crime has been satisified but the state seeks to continue it's retributive course by sponsoring civil punishment during and after completion of the criminal punishment. The irony of all this is that its a subjective issue whereas if we focused more on society and preventing crime we wouldn't need to spend so much time trying to re-enter offenders in society and creating laws for this or that. If a homeless person steals because he's homeless because he can't find a job then obviously if you provide a job and perhaps a place to stay until permanent residency can be established, chances are that guy or girl isn't going to commit a crime. Same would apply with various drug related offenses. Maybe if you created community action plans where the entire (not some but all) community is required to participate absent good cause you can create a sense of entitlement whereas all have investments and most protect their investments. Felons who know what is needed are the people who need to be located and included in the 'non-felon' discussions of what to do about felons. For instance, I attend a workshop governor kasich created and hosted by the ODRC and I listen as senators and representatives of the various branches of state government and its agencies talk about how they know those collateral sanctions are barriers to employment and re-entry efforts and I watch as they shake their heads. But what I don't see is them saying they should review those statutes containing those collateral sanctions and either amend those statutes or rescind them. Instead, they want to create MORE laws to the legion of laws we already have placing more explanation for this to justify that while denying those. If a guy is shooting people and turns to you and says, yeah, we need to figure out a way to end this senseless violence-would not a good response be to lay the gun down? Apparently Ohio's legislators -most of them-do not understand this. It would have been funny if a couple felons would of walked into a workshop and held everyone up who wasn't a felon and gave all the money to the felons before leaving. Surely that would have amplified the need for serious reform. Seriously tho, reform is needed. the creation of laws is why we have so much 'crime'. we should distinguish issues classified as crimes and see if they can be remedied civilly. For instance, certain property crimes should be handled by a civil court judge and the offender be required to perform a community service to offset the monetary damages awarded to the victim of the property crime. The OAG's office already has a victims compensation program but its burdensome, hardly used by victims of crimes and needs to be overhauled. Employ felons. Employer liability claims will not follow. Employers are not even legally required to perform background checks. And a person with a 20 year old conviction who does something while at work or on duty isn't enough to constitute a form of negligent retention. Also, must workplace crime and violence is either perpetrated by nonfrequenters (robbers) or those without criminal records while at work or on duty. And that even includes those places which hire felons. Ohio's employer liability litigation history clearly demonstrates that and looking over numerous statistics from ohio and the federal government all show that workplace violence and crime is associated to you non-felons. Then there are the tax incentives-apparently only 15% of ohio businesses are aware of those incentives. And maybe those incentives can be less burdensome for employers to obtain. If it cost 40 thousand to keep a guy in prison for one year, how much does it cost to find an employer whom he or she can work for upon release? How much money and manpower is actually used in comparison to prosecuting and confining that person for 1 year? I served 12 years for a probation violation stemming from an agg burglary and theft conviction. No violence; just the statute considers it a violent offense. I stole about $500 in value of rings. Gave most back. 12 years in prison at lets say 30 grand a year, considering inflation and all that crap: 360,000. For a probation violation. Add the hundreds of thousands of tax payer dollars used to defend civil rights lawsuits and appeals of my criminal conviction and I probably had a tab of around 1.5 million dollars. So Ohio spends over 1 million dollars of tax paying money to incarcerate me and what does society receive in return? Maybe more money to keep me incarcerated again? Fortunately that wasn't the case. But it shows how wasteful our money is being handled and how that same amount-even less-could have been used to address issues such as mine which brought me to prison so that the next person in the same position as me wouldn't follow. But hey, I'm just a felon, what do I know.

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