Ending the Collateral Consequences of Criminal Records


The American Bar Association’s Criminal Justice Section has catalogued more than 38,000 statutes nationwide that impose collateral consequences on people convicted of crimes; these statutes create barriers to jobs, housing, welfare benefits, and voting.[1] The majority of these statutes (80%) work as denial of employment opportunities.[2] This means that statutes that make it harder to reenter society successfully affect more than 620,000 individuals released from prison and jail yearly.[3] These types of policies play a role in the recidivism rates because stable employment is a crucial predictor of successful reentry and desistance from crime.[4] Among state prisoners released in 30 states in 2005, more than two-thirds were arrested for a new crime within three years and more than three-fourths were arrested within five years; further, more than a third of all prisoners who were arrested within five years were arrested within the first six months after release, with more than half arrested before the end of the first year.[5]

President Obama recently unveiled new actions to promote rehabilitation and reintegration of individual with criminal records.[6] The President’s plan includes the following: establishing reentry grants; implementing arrest guidance for public and other Department of Housing and Urban Development (HUD) regarding the use of arrests in determining who can live in these subsidized properties; providing permanent housing to help people cycling between the criminal justice system and homelessness; banning the box in federal employment which removes question about the job applicant’s criminal history from initial employment applications; expanding tech training and jobs in over 30 communities; providing technical assistance to legal aid programs and reentry service providers to assist in record-cleaning and expungement; and funding to assist programs for juvenile reentry.[7]

These types of policies should be applauded because reentry programs not only promote fairness and justice, but also work in the public interest. Resources used to fund incarceration can instead be diverted into programs that invest in individuals who can contribute to the economic prosperity of the country by having stable employment and housing, while simultaneously decreasing the circumstances that foster crime. States and local communities should follow suit in implementing similar programs. Last month, Miami-Dade County Commissioners approved a ban the box initiative regarding county government hiring policies, joining similar laws passed by 19 states and more than 100 cities and counties nationwide.[8]

However, according to a Society for Human Resources survey, 69% of organizations reported that they conduct criminal background checks on all their job candidates[9] with a majority “probably” or “definitely” not willing to hire a job applicant with a criminal record.[10] Given this information, States should also look to make legal changes that do not require as many resources and could assist those previously incarcerated in the private sector. For example, allowing courts the discretion to withhold an adjudication of guilt depending on the offense of the individual in the same way that Florida law currently allows.[11] The benefits of withholding adjudication of guilt include the ability of a person to deny having been convicted of a crime.

We should turn the criminal justice system to the objective of rehabilitation as opposed to only punishment and even if we do not, the punishment should end once a person’s incarceration ends.


[1] National Inventory of Collateral Consequences of Conviction, http://www.abacollateralconsequences.org/map/ (last visited Nov. 12, 2015).

[2] Id.

[3] E. Ann Carson, Prisoners in 2013, U.S. Dep’t of Just., 10 (2014), http://www.bjs.gov/content/pub/pdf/p13.pdf.

[4] Christy A. Visher et al.,, Ex-Offender Employment Programs and Recidivism: A Meta-Analysis, Journal of Experimental Criminology 1, 296-316 (2005). See also John H. Laub & Robert J. Sampson, Understanding Desistance from Crime, Crime & Justice 28 (2001).

[5] Alexia D. Cooper et al., Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010, 1 (2014).

[6] Press Release, Office of the Press Secretary, Fact Sheet: President Obama Announces New Actions to Promote Rehabilitation and Reintegration for the Formerly-Incarcerated (Nov. 2, 2015), https://www.whitehouse.gov/the-press-office/2015/11/02/fact-sheet-president-obama-announces-new-actions-promote-rehabilitation.

[7] Id.

[8] Michael Vasquez, Miami-Dade Removes Criminal History Question from County Job Applications, Miami Herald, Oct. 6, 2015.

[9] Society for Human Resources Management, Background Checking – Conducting Criminal Background Checks, (2012).

[10] Harry J. Holzer et al., Perceived Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers, The Journal of Law and Economics 49.2 (2006).

[11] § 948.01(2), Fla. Stat. (2015).


Marlon Baquedano is a 2017 Staff Editor of the Race and Social Justice Law Review.

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