Civil Penalties, Social Consequences

Christopher Mele, Teresa A. Miller, Christopher Mele, Teresa A. Miller

• Publisher: Routledge
• Year: 2013
• eBook ISBN: 9781136076503
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Mele and Miller offer a timely, insightful analysis of the continuing challenges faced by ex-felons upon re-entry into society. Such penalties include a lifetime ban on receiving welfare and food stamps for individuals convicted of drug felonies as well as barriers to employment, child rearing, and housing opportunities. This much-needed work contains pieces by scholars in law, criminology, and sociology, including: Scott Christianson, Michael Lichter, and Daniel Kanstroom.

1

Collateral Civil Penalties as Techniques of Social Policy

CHRISTOPHER MELE AND TERESA A. MILLER

In this chapter, we describe first the ways in which collateral civil penalties were originally conceived as “disabilities” and how scholars have since examined their unstated purpose as an extension of punishment, their seemingly official invisibility, and their unfairness toward individuals who suffer under them. Following, we put forward a more sociological approach in which we examine penalties as techniques deployed as part of a default social policy that has evolved from the demise of the social welfare state and the rise of carceral regulation of the poor. This perspective informs our understanding of the more recent penalties linked to the Wars on Drugs and Terror, to which most of the authors in this volume refer. Finally, we address the limitations and possibilities of efforts to reform or undo collateral civil penalties in the United States and abroad.

From Civil Disabilities to Collateral Civil Penalties

In their original conception, collateral civil penalties served limited, focused purposes. The older term, civil disabilities, broadly referred to civil sanctions that denied certain categories of people, including ex-felons, participation in certain activities that define civic life, such as voting, holding public office, or serving on juries. Although sanctions presented obstacles to individuals attempting to reenter civil society, most were acknowledged as a “deserved” consequence of and as proportional in severity to an individual’s breach of the social contract. Other disabilities were largely precautionary measures, employed to protect the public from the possibility of ex-felons further breaching laws. These penalties tended to be explicitly connected to the original criminal culpability of the offender. Hence, individuals who committed crimes linked to their professions were denied the licenses to resume practice. Most states continue to revoke licenses for a number of occupations and businesses for persons convicted of certain categories of felonies. Attorneys, for example, are automatically disbarred for felony convictions in New York and several other states (Movillo 1999). The Securities and Exchange Commission routinely revokes the registrations of investment advisors, brokers, and other securities industry personnel who have been convicted of securities violations. Physicians, accountants, and other licensed professionals, may have their licenses revoked at the state level (Movillo 1999). In some states, public employment is denied to convicted felons (Olivares, Burton, and Cullen 1996).

The idea of civil sanctions as simply “disabilities” became unsustainable in light of drastic changes in the social welfare and criminal justice policies enacted since the late 1970s. The shift toward penal management of poor, mostly minority and immigrant populations and the concomitant criminal justice policies emanating from the Wars on Drugs and Terror since the early 1980s have brought historically unprecedented numbers of persons in contact with the U.S. criminal justice system.¹ In addition, legislation linked to the Wars on Drugs and Terror have put into practice new and harsher collateral civil penalties that are grossly disproportionate and noticeably disconnected from the felony crimes committed (as discussed later in this chapter). These developments have prompted legal scholars, criminal justice scholars, activists, and social service practitioners to reconsider the more benign “disabilities” as civil penalties with collateral consequences. This conceptual shift is reflected in more recent analyses of the punitive aspects of collateral civil penalties for individuals, their seeming “invisibility” at various stages of the criminal justice process, and the lamentable consequences of these penalties for poor, mostly minority individuals.²

The proportional relationship between the type of felony and the severity of civil disability that follows has always been tenuous at best.³ Disenfranchisement is a prime example of disproportionality between the crime and the civil sanction. The growth of mass incarceration and the highly contested U.S. presidential election in 2000 have made this fact even more apparent to scholars, activists, and practitioners. The traditional rationale for disenfranchisement, such as fear of ex-felons corrupting the “purity of the ballot box” through electoral fraud or the questionable moral probity of felons as jurors, has always been specious.⁴ The state-by-state proscriptions against the ex-felon vote challenge the legitimizing principle that disabilities are proportionally linked to the types of crimes committed. As a practical matter, mass incarceration has made the issue of felony disenfranchisement more salient and visible, affecting election outcomes and electoral representation of particular communities and not simply the constitutional rights of individuals (see Chapter 4).

When certain collateral civil penalties bear little or no relation to a criminal act either in kind or severity, it is no longer tenable to consider them simply civil consequences of criminal conviction. In the current period, multiple and compounding collateral civil penalties—denial of welfare benefits, federal student aid, and subsidized housing, among others—follow conviction for certain kinds of felonies, such as drug possession or sales. They function to continue criminal punishment (already heightened by federal sentencing guidelines and mandatory sentencing requirements) in civil form. In their penal function, collateral civil penalties, as opposed to disabilities, blur the boundaries between criminal law (required to abide defendants’ constitutional procedural rights and traditionally concerned with individualized justice) and civil law (regulatory, administrative, and procedural) (Klein 1999). In the case of noncitizen criminal offenders, for example, the use of the government’s deportation power (construed however dubiously as a civil sanction) to banish a noncitizen criminal offender from the United States by virtue of an “aggravated felony” or other criminal offenses, wholly avoids constitutional procedural protections that would otherwise be triggered if the criminal alien were a U.S. citizen. Even civil restrictions on professional employment licensing are increasingly disproportionate to the felony crime to which they are attached. In many states, licenses are required for automobile dealers, private security guards, boat pilots, stock salespersons, bail bondsmen, barbers and cosmetologists, nurses, midwives, embalmers, dental hygienists, social workers, and food inspectors, among many others (see, for example, Walter 1994). Civil licensing restrictions can effectively obstruct ex-felons from employment in a number of these professions.

Sociolegal and criminal justice scholars, as well as legal advocates and service providers, have also raised questions of individual justice and fairness regarding the expansive use of civil collateral penalties. In the criminal justice literature, collateral civil penalties are viewed as yet another barrier to successful reintegration of ex-prisoners and as a likely contributing factor to high recidivism rates among ex-offenders. Legal scholars have tended to focus on the manner in which these penalties abridge constitutional rights, which are inherently limited to individuals (and not groups at large). Advocates for legal reform have called for standardized procedures to notify criminal defendants of collateral civil penalties and their consequences in plea negotiations and deals (ABA Criminal Justice Standards 2002). Other individual remedies include efforts to expunge criminal records, seek clemency, and obtain pardons on a case-by-case basis.

Another thread in the legal studies literature concerns itself with the concealed character of collateral civil penalties, of which there are several different aspects (Mauer and Chesney-Lind 2002; Travis 2002). First, judges, prosecutors, and defense attorneys are not required to inform defendants of collateral penalties and their consequences in criminal proceedings (as discussed more fully in the chapter by Ferster and Aroca).⁵ As a result, the accused are often unaware of penalties and the harsh consequences to which they become subject after conviction. Second, these penalties tend to “kick in” automatically and without formal notice, often after criminal punishment. As such, they undermine the principle that an individual’s debt to society is paid upon completion of his sentence.⁶ Third, collateral civil penalties are enacted in civil legislation, rather than the more high-profile criminal sentencing legislation (such as mandatory minimum sentences, “three strikes” laws, and federal sentencing guidelines) with its pronounced emphasis on punishment. Penalties tend to be enacted with limited public knowledge and virtually no public debate, thus enhancing their “invisibility.” Fourth, the forms that penalties take vary significantly from state-to-state (as statutes, regulations, administrative rules, court decisions, etc.). Consequently, a key policy motive of this scholarship is to require full disclosure of collateral civil penalties in criminal proceedings. Another notable research and policy focus is the substantial legal inconsistency across jurisdictions regarding the individuals to whom such penalties may apply and for how long (Kuzma 1998; Olivares, Burton, and Cullen 1996). Efforts to catalog the wide range of collateral civil penalties at both the state and federal levels expose the urgent need for reform of criminal plea bargaining and sentencing procedures (ABA Criminal Justice Standards 2002).

Seeing Collateral Civil Penalties at Work

It should be noted that the apparent invisibility of collateral civil penalties can be partly attributed to the top-down analytical approaches (most) legal scholars have taken to date. Top-down, predominantly legalistic approaches necessarily emphasize the formal distinctions within the binaries of civil/criminal, legal sanction/social consequence, and citizen/noncitizen, in which the former (i.e., civil, legal sanction, and citizen) are analytically privileged over the latter in the pairings. While imperative, such approaches, alone, cannot capture how collateral civil penalties “adhere” to individuals, families, and communities, and that their consequences are neither ad hoc nor willy-nilly, but systematic and targeted.

Increasingly, scholars and practitioners (including many whose writings appear in this volume) have addressed this topic from different angles, expanding the scope of inquiry to see penalties “at work” in the homes, neighborhoods, and communities of the growing numbers of persons who come in contact with the criminal justice system. These newer approaches track the implementation of collateral civil penalties and catalog their effects at the ground level, where they are made meaningful to everyday experiences of exclusion from employment, housing, social services, federal financial aid, and banishment from civil society and, for some, the nation’s borders. Indeed, it is no longer feasible to address collateral civil penalties from an exclusively formal, legal, top-down perspective; the contemporary realities of mass incarceration and the release of thousands of prisoners each year, which disproportionately involve certain populations, require grounded, interdisciplinary approaches.

It is no accident that legal rights advocates, practitioners, and social service providers were among the first to address the crucial social, political, and economic ramifications of collateral civil penalties for families and entire communities. At least 95% of all prisoners in state facilities will be released from prison at some point (BJS 2003). The demographic scope of the rhetoric and policies associated with the Wars on Drugs and Terror is clearly narrow and sharply focused. Between 1984 and 1999, for example, the number of defendants charged with a drug offense in federal courts increased from 11,854 to 29,306 (BJS 2002). Poor women of color, many of whom are heads of households, have been the target of severe drug-related criminal and civil laws and regulations enacted since the 1980s. Incarceration rates for women of color increased exponentially in the 1980s and 1990s (Goldfarb 2002; Mauer 1999:125). As a result, large numbers are being released from prisons only to encounter substantial impediments to their ability to find work, receive public benefits, secure housing, and have their parental rights recognized (see the chapter by Hirsch and the one by Franklin). As a comprehensive report issued by the Center for Law and Social Policy documents, individuals—particularly women of color—who have served prison time for certain (mostly drug related) felonies face multiple and compounding collateral civil penalties with devastating consequences to family unification and stability (CLASP 2002). Others, such as Hagan and Dinovitzer (1999) and Hagan and Coleman (2001) have addressed the unprecedented numbers of exoffenders who are reentering communities and the challenges collateral civil penalties pose to family life.

There is a clustering of collateral penalties and their consequences among poor, mostly minority, populations in core, inner-city communities, where the War on Drugs has been most focused and concentrated. Hence, entire communities, not only individuals and families, are implicated directly and indirectly in an expansive criminal justice system. Released prisoners are concentrated in states with large prison populations: California, New York, Texas, Florida, and Illinois accounted for nearly half of all releases from state prisons in 2000 (BJS 2002). Within these states, returnees are concentrated in mostly impoverished neighborhoods within cities (Lynch and Sabol 2001: 16; Clear, Rose, and Ryder 2001). Given that the massive prison population generated by the War on Drugs is disproportionately drawn from these communities, the problems associated with the return of ex-offenders are amplified when collateral civil penalties are imposed (Travis, Solomon, and Waul 2001; Clear, Rose, and Ryder 2001; Lynch and Sabol 2001). Civil penalties negatively affect reintegration and contribute to high recidivism rates at the community level (Petersilia 2003; Travis and Petersilia 2001).

From angles other than atop, therefore, collateral civil penalties are quite visible in their implementation and in their effects: penalties affect poor, mostly minority populations who encounter them as yet another obstacle to basic necessities and participation in civil society. Ground-level approaches suggest that collateral civil penalties heighten and amplify many of the existing obstacles to securing housing and employment and to family reunification that an ex-offender faces. In the following section, we argue that this systematic and focused deployment of collateral civil penalties serves to regulate and manage the everyday lives of ex-offenders, their families, and communities.

Collateral Civil Penalties and Social Policy

The chapters in this volume document the range of more recent and severe collateral civil penalties that were mostly enacted or strengthened in the 1980s and 1990s and have increasingly affected the families and communities of ex-offenders (and not the ex-offenders or people directly supervised by the criminal justice system, exclusively). In this section, we take the position that these penalties constitute a set of techniques used to manage, regulate, and isolate poor, mostly minority urban communities. We initially describe the recent drift in policy toward the urban poor, highlighted by the dismantling of social welfare and the intensification of criminal justice supervision and management as the foundation of social policy. We then discuss how this deliberate drift toward a carceral administration of the poor is enshrined in recent social policies—particularly drug and security policies—that affect mostly minority, disadvantaged, or at-risk populations. Finally, we enumerate the ways in which collateral civil penalties function as effective techniques for management and social control.

Penal-Welf...

Table of contents

• Front Cover
• Half Title
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1. Collateral Civil Penalties as Techniques of Social Policy
• 2. Race, the War on Drugs, and the Collateral Consequences of Criminal Conviction
• 3. By Any Means Necessary: Collateral Civil Penalties of Non-U.S. Citizens and the War on Terror
• 4. Disenfranchisement and the Civic Reintegration of Convicted Felons
• 5. Battered Women, Battered Again: The Impact of Women’s Criminal Records
• 6. A Practitioner’s Account of the Impact of the Adoption and Safe Families Act (ASFA) on Incarcerated Persons and Their Families
• 7. Home Sweet Home for Ex-Offenders
• 8. The Civil Threat of Eviction and the Regulation and Control of U.S. Public Housing Communities
• 9. The Everyday World of House Arrest: Collateral Consequences for Families and Others
• 10. Immigration Law as Social Control: How Many People Without Rights Does It Take to Make You Feel Secure?
• 11. A Vicious Cycle: Resanctioning Offenders
• 12. Lawyering at the Margins: Collateral Civil Penalties at the Entry and Completion of the Criminal Sentence
• 13. Claiming Our Rights: Challenging Postconviction Penalties Using an International Human Rights Framework
• 14. Prisoner Voting Rights in Canada: Rejecting the Notion of Temporary Outcasts
• 15. Civil Disabilities of Former Prisoners in a Constitutional Democracy: Building on the South African Experience
• List of Contributors
• Index