Collateral Consequences of Conviction — Civil Death

Collateral consequences of a criminal conviction arise at the time of reentry. The consequences are postsentence civil penalties with no relationship to a sentence imposed by a judge. Convictions involving drugs can have life-restricting consequences that affect the fundamental necessities of life — such as getting a job, housing, and further education. Collateral consequences can be devastating. They convert newfound freedom into a life sentence of legal obstacles and financial hardships that can make reentry a setup for recidivating back to prison.

Reentry is a fragile adjustment period for people returning to freedom. The prospect of reentry is the dream of most inmates. The expectation encompasses rushes of excitement and the ominous reality of rebooting life after a grinding sentence without personal growth. The challenge of the reboot raises uncertainties for inmates. Incarceration deprograms and desensitizes the drive to be independent and self-sustaining, resulting in inherently tragic byproducts of incarceration. The longer the prison sentence, the more difficult the adjustment upon reentry. Finding work and a place to live, reintegrating with family, going back to school, and qualifying for government assistance programs (such as food stamps) can be overwhelming for returnees. Those reentering are coming from a life in prison where every aspect was programmed for them. Being independent in prison is an oxymoron; inmates are told what to do and when and how to do it, and they are required to repeat the process every day. Swift punishments are doled out for failure to comply.

How Many People Reenter Society after Serving Their Sentences?

The number of formerly incarcerated people reentering is significant. According to the United States Department of Justice (DOJ), every week more than ten thousand people are released from federal and state prisons. Annually, more than 650,000 ex-offenders return to communities around the country, desperate for an equal chance. However, the DOJ report reflects the failure of reentry plans in that “approximately two-thirds [of reentries] will likely be rearrested within three years of release.” The failure of reentry is further exasperated by the fact that more than ten percent of these people, according to an article by Patricia McKernan posted by Volunteers of America,

are homeless in the months preceding and following their incarceration. Being homeless, unstably housed, [suffering from untreated mental illness,] or living in a high crime neighborhood all heighten an individual’s risk of reoffending.

Reentry Is a Tenuous Challenge That Returnees Are Not Always Prepared to Face

In The Shawshank Redemption,[1] screenwriter Frank Darabont illustrates how overwhelming reentry is for inmate Brooks Hatlen,[2] who — after fifty years in the prison and as a result of being “institutionalized” — is unable to adjust to being self-sustaining while living in a small rented room and bagging groceries at a Foodway. Brooks finds himself in a free but foreign world. Darabont illustrates through Brooks’s stream-of-conscious dialogue the unbearable pain of feeling like a misfit in an unprogrammed world: “I don’t like it here. I’m tired of being afraid all the time. I’ve decided not to stay.”[3] Brooks’s ironic escape from freedom is suicide by hanging.

While Brooks’s experience illustrates the perniciousness of prison on self-confidence and personal esteem, spending any number of years in prison sets up ex-offenders for failure. They’re met by postpunishment penalties and consequences imposed by federal and state governments;
these effects create obstacles to success that people without criminal records don’t have to deal with.

Paying One’s Debt to Society

Serving a prison sentence does not accomplish full payment back to society. The idea is an insult to reentering people eager to reintegrate into society because of the unexpected number of civil obstacles encountered at a time when folks need to be unshackled in order to reconstruct their lives. In reality, civil laws and rules imposed by the federal and state governments perversely add punitive obstructions and impediments to successful reentry. A negative impact on public safety results when there is a revolving door back to prison if life on the outside cannot be sustained because of restrictions that limit access to necessities of shelter, work opportunities, and much more.

Collateral Consequences

In her book Prisoners of Politics: Breaking the Cycle of Mass Incarceration, Rachel Elise Barkow rightfully argues that if the goal of punishing criminals is public safety, then “social consequences — recycling offenders through an overwhelmed criminal justice system,” with what she calls “Collateral Calamities,” makes no sense. Barkow sharpens her point by citing statistics that “7 out of 10 people [are] rearrested or convicted within 5 years of their release from prison, and most of the offenses [are] occurring within the first year that people step out of prison.” Her conclusion is that a contributing factor to this recidivism is the “desires for revenge against those who commit crimes . . . or those whom the public believes are committing crimes.”

Because collateral consequences are enacted by the federal and all state governments, a number of laws run interference with starting over. According to the American Bar Association (ABA) National Inventory of Collateral Consequences of Conviction, 45,401 separate conviction-based disabilities are found in state and federal laws,[4] or as many as fifty thousand collateral consequences of having been convicted exist.[5] The latter number is cited in United States of America v. Nesbeth by senior district federal judge Block in an opinion the judge was compelled to write to underscore his observations about the devastating collateral consequences of a criminal conviction.

In his opinion, Judge Block carefully outlined his rationale for sentencing Chevelle Nesbeth, a twenty-year-old woman convicted of smuggling 602 grams of cocaine with intent to distribute, to a one year probationary sentence. The federal advisory sentencing guidelines applicable for the crime ranged from thirty-three to forty-one months. “Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon,” wrote the judge. How unusual and refreshing for a jurist to look beyond a criminal conviction with the intent of insulating a nonviolent convicted felon from the ravages of the civil consequences of her serious criminal conviction.

Judge Block states in his opinion (which was not appealed) the reasons he considered Nesbeth’s case an opportunity to speak out against collateral consequences of a felony conviction:

I am writing this opinion because from my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers — both prosecutors and defense counsel — as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant. And I believe that judges should consider such consequences in rendering a lawful sentence.

Judge Block further detailed the reasoning behind his action: There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. Many — under both federal and state law — attach automatically upon a defendant’s conviction.

Judge Block gave credit to a large part of his reasoning to Ohio State University professor Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness:

The effects of these collateral consequences can be devastating. As Professor Michelle Alexander has explained, “[m]yriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy. These restrictions amount to a form of ‘civi[l] death’ and send the unequivocal message that ‘they’ are no longer part of ‘us.’”

To get to his sentencing decision, Judge Block preliminarily reviewed the history of civil death[6] and how it functioned after the Civil War as an “integral part of criminal punishment” to perpetuate the social exclusion and political disenfranchisement of African Americans. Defendant Nesbeth is African American.

Although efforts to attenuate or eliminate the collateral consequences have taken place through legislation and official acts, Judge Block wrote the following:

Today, the collateral consequences of a felony conviction form a new civil death. Convicted felons now suffer restrictions in broad ranging aspects of life that touch upon economic, political, and social rights. In some ways, “modern civil death is harsher and more severe” than traditional civil death because there are now more public benefits to lose, and more professions in which a license or permit or ability to obtain a government contract is a necessity.

The judge looked at the facts of Nesbeth’s conviction and did a fact-based assessment of her life before her criminal conduct. His evaluation was over and above the recommendation that probation departments delve into backgrounds before making sentencing recommendations to a judge. In this case, the judge stood in the place of the probation department before fashioning his sentencing order.

The depth of Block’s review of Nesbeth’s situational equities is remarkable. It included close scrutiny of her age, single-parent upbringing (including the reliance on food stamps while living with her mother in Connecticut), positive history of working with young children, college credits earned toward becoming a teacher, student loan balance, lack of reported drug or alcohol use, and full compliance with the terms of her unsecured bail bond.

With this review as a backdrop, the judge examined twenty-four federal and state collateral consequences laws relevant to Nesbeth’s felony drug conviction, weighing the impact of the rights she would lose that translated to imminent personal failure. Here are just a few of the laws and regulations identified by the judge:

• Under 20 U.S.C. §1091, Nesbeth would be ineligible for grants, loans, and work assistance for a period of two years [which was] the duration of her college career.
• Under 21 U.S.C. § 862, . . . Ms. Nesbeth would be ineligible “for the issuance of any grant, contract, loan, professional license, or commercial license provided by an agency of or appropriated by funds of the United States.”
• Under 42 U.S.C. § 13661 and 24 C.F.R. §5.855, Ms. Nesbeth and her household may be denied admission to federally assisted housing for a “reasonable time.”
• “Under 21 U.S.C. § 862(a), Ms. Nesbeth shall not be eligible for assistance under any state program funded under Part A of Title IV of the Social Security Act, or for Food Stamp benefits.
• Under 23U.S.C.§159 and 23C.F.R§192.4, states are required “to enact a law requiring that any individual convicted of a drug offense have their [driver’s] licenses suspended or revoked for a period of at least six months.”

Additional consequences cited by the judge impacted Nesbeth’s employment as a childcare provider, hospice worker, or working in an FDIC-insured bank within ten years of conviction. She would be barred from enlisting in the Armed Forces, from receiving disaster relief, and from adopting a child or serving as a foster parent for five years. Additionally, Nesbeth would not be allowed to vote under Connecticut law, and she would be disqualified from receiving a teaching certificate for five years.[7] Afterward, the Connecticut State Board of Education would maintain discretion to deny her a teaching certificate.[8]

Guided by the notion of civil death — or the loss of Nesbeth’s postconviction rights due to her serious drug conviction — Judge Block backed off from sentencing Nesbeth to between thirty-three and forty-one months in prison because the nature and extent of the collateral consequences she would experience would exacerbate the negative impact of a formal and personally debilitating prison sentence. The judge reasoned that

her crimes were certainly a marked deviation from an exemplary law-abiding life; she has worked in meaningful jobs; she has a record of prior good works counseling and tending to young children; she apparently was under the influence of her boyfriend, and there is no evidence that she was even to be paid for her crime or was motivated by financial gain. Finally, her status as a mere courier belies the notion that her crimes were anything but of a limited duration and without significant planning on her part.

Judge Block’s personal attention to Nesbeth’s mitigating circumstances related to her sentencing is admirable in this instance. And, his intent to highlight the scourge of collateral consequences is to his credit. However, Nesbeth represents a huge class of convicted drug felons who, if measured by the “Block Standard” of sane sentencing, would also benefit from extra sentencing guideline considerations of the long-term effects of a prison sentence exasperated by federal and state laws and regulations that pile on collateral penalties.

Conclusion

Felony sentences do not define the full punishment faced by criminal defendants. Currently up to fifty thousand collateral consequences of these convictions are promulgated by federal and state laws. These consequences add debilitating obstacles to the successful reentry of an estimated 650,000 ex-offenders who return annually to communities around the country and are desperate for an equal second chance. The high recidivism rate of this population is driven by collateral consequences that equate to civil death and lead back to prison. This predicable formula of failure does not serve the goal of punishment for public safety purposes.

A good example of how to break the cycle of compounding punishment and setting up returnees for failure is found in United States of America v. Nesbeth, where a federal judge took extraordinary action and used his authority to find justice and right the wrong of overbearing and punitive sentencing guidelines and collateral consequences. In doing so, the jurist put forth a humanitarian model for rational sentencing that furthers public safety serves and the best interests of convicted felons.

Your comments and suggestions are always welcome.

Image courtesy of 123rf.com.

[1] According to Wikipedia, “The Shawshank Redemption is a 1994 American drama film written and directed by Frank Darabont, based on the 1982 Stephen King novella Rita Hayworth and Shawshank Redemption.”

[2] Portrayed by James Whitmore.

[3] Frank Darabont, The Shawshank Redemption: The Shooting Script (New York, NY: Harper Collins, 2004).

[4] As noted in Sandra G. Mayson, “Collateral Consequences and the Preventive State,” Notre Dame Law Review 91 (2015): 309.

[5] United States v. Nesbeth, 188 F. Supp. 3d 179 (2016).

[6] Or, according to Black’s Law Dictionary, “the loss of rights. . .by a person who has been outlawed or convicted of a serious crime.”

[7] Conn. Gen. Stat. § 10–145i.

[8] Conn. Gen. Stat.§ 10–145b.