Matthew T. Mangino
Eliminate the collateral consequences of criminal convictions
U.S. Attorney General Eric Holder recently announced that low-level, nonviolent drug offenders will no longer be charged with offenses that impose severe mandatory sentences. Holder’s announcement is in response to soaring prison costs—$60 billion in 2012—and draconian budget cuts brought about through the federal sequester.
There is another way to reduce prison costs and maintain public safety without diminishing accountability—eliminate the collateral consequences of a criminal conviction. A criminal record shouldn’t be a life sentence.
A collateral consequence is a penalty, disability, or disadvantage that is related to employment or occupational licensing as a result of the individual’s conviction and applies by operation of law whether or not the penalty, disability, or disadvantage is included in the sentence.
According to the Pew Center on the States more than 40 percent of offenders released from prison are reincarcerated within three years, either committing a new crime or violating conditions of parole.
The problem with our crowded prisons isn’t the result of punishing offenders for their criminal conduct—it is the ongoing sanctions that hinder former offenders from successfully reintegrating into society.
The unemployment rate of formerly incarcerated offenders one year after release may be as high as 60 percent and there is an increasing reluctance among employers to hire people with criminal histories. Offenders successfully returning home from prison often identify employment as the most important factor that helped them stay crime-free.
Incarceration and community supervision are often not the end of the sanctions attached to a criminal conviction. According to the National Employment Law Project, an estimated 65 million Americans have a criminal record. The American Bar Association (ABA) has identified over 38,000 penalties—collateral consequences—that can impact people long after they complete their criminal sentence.
The ABA Task Force on Collateral Consequences, found that a former offender “may be ineligible for many federally-funded health and welfare benefits, food stamps, public housing, and federal educational assistance.” A former offender’s “driver’s license may be automatically suspended.” Their ability to earn a living in their chosen profession may be limited in that an offender “may no longer qualify for certain employment and professional licenses.”
Collateral consequences may prohibit military service, possession of a firearm or a federal security clearance. A convicted U.S. citizen may lose the right to vote. A non-citizen may lose the right to reside in the U.S.
Last year, Ohio adopted new protections for formerly incarcerated offenders. Many employers hesitate to hire individuals who have been arrested or convicted of a crime even though they may be the best qualified for the job.
Employers may be interested giving a person a second chance, but they are concerned that hiring a person with a criminal record might expose them to liability for negligent hiring if the employee commits a crime on the job.
Prior to 2012, five states had passed legislation limiting negligent hiring liability for employers who hire people with criminal records. According to The Sentencing Project, eight states considered new limitations on negligent hiring liability last year, only Ohio followed through.
The bill signed into law by Governor John Kasich on June 12, 2012, creates a mechanism by which an individual who is subject to a collateral sanction may obtain a certificate of qualification for employment that will provide relief from certain bars on employment or occupational licensing.
The law also provides immunity for employers from negligent hiring. The certificate is available to an individual either six months or one year after completing his or her sentence.
Ohio’s law is a common sense approach to eliminating a significant barrier to successful reentry. The law also provides the means to reduce prison costs, maintain accountability and generate tax revenue.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, Pa. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino.