Several policy statements address legal
barriers, which impede access to low-income housing (Policy Statement 18, Housing), employment and
professional licensing opportunities (Policy Statement 21,
Creation of Employment Opportunities), and public benefits (Policy Statement 24,
Identification and Benefits). Recommendations in those policy statements suggest
steps policymakers and practitioners can take to ensure that people understand
these barriers, and, when appropriate, eliminate them or limit their reach.
There are additional legal barriers, state and federal, not addressed in the
preceding policy statements because there is no consensus about their
appropriateness or usefulness. This afterward reviews several of these barriers,
not to convey their merits or drawbacks, but rather to recognize their relevance
to prisoner re-entry.
Surveying Local Barriers to
Re-Entry
This report repeatedly highlights the value of
identifying and assessing in each jurisdiction the legal barriers to re-entry,
to enable policymakers to improve awareness (and shatter any myths) about these
laws and regulations. Indeed, in many areas, individuals enter into guilty pleas
and judges impose sentences without awareness or notification of these kinds of
collateral sanctions, some or all of which may remain even after a person is
released from a term of incarceration or has completed a period of community
supervision. An individual may first learn about a restriction when he or she
files an application for a barbering license, seeks to obtain a driver's permit,
or attempts to register to vote. A survey of state and local codes and
regulations that catalogs all the mandatory and discretionary sanctions for
particular offenses or offense categories can therefore provide a key resource
for those making and those affected by a range of legislative and policy-based
collateral consequences.
[1]
Who could perform such a survey would vary from
state to state. In some jurisdictions, a state criminal justice policy arm could
be called upon.
[2]
In others, the
survey might be a good project for a law school or state bar association
committee. For those doing this work in any state, the Legal Action Center's
report, After Prison: Roadblocks to Reentry, A Report on
State Legal Barriers Facing People with Criminal Records, along with its
interactive website (www.lac.org), provides a good basis for the
project, as it features state-by-state information on access to criminal
records, public benefits, voting, employment, drivers' licenses, parenting, and
public housing.
[3]
-
Higher Education: Under the
1998 reauthorization of the Higher Education Act of 1965 ("HEA"), Congress
established that students who have prior convictions for the possession or
sale of controlled substances are ineligible for grants, loans, or work
assistance authorized under the Act, including Pell grants, Stafford loans,
and work-study programs.
[4]
The law does not distinguish between
old convictions, types of drugs, or amounts possessed or sold, nor does it
affect individuals with other kinds of criminal convictions. It does, however,
allow for suspension--rather than a lifetime ban--for a first or second
conviction for possession or a first conviction for distribution; under
certain conditions, an individual who completes a specified drug
rehabilitation program may also have the suspension lifted.
[5]
-
Parenting and Adoption: The
federal Adoption and Safe Families Act of 1997 (ASFA) made several changes to
the law governing families and adoption, which particularly affect re-entering
individuals.
[6]
ASFA bars people with certain
convictions from being adoptive or foster parents. Most states make
individualized determinations about an applicant's suitability to be an
adoptive or foster parent, taking into consideration the person's criminal
record, as well as evidence of rehabilitation.
[7]
Specifically, 35 states consider the relevance of an applicant's criminal
record in deciding whether he or she may become an adoptive or foster parent,
while 15 states have flat bars against people with criminal records becoming
adoptive or foster parents.
[8]
In addition, ASFA requires that states
file termination proceedings against parents whose children who have been in
state custody or foster care for 15 of the most recent 22 months.
[9]
Given the
average length of time served for felony convictions, parents whose children
have been placed in foster care during their incarceration may be subject to
such automatic termination proceedings.
[10]
-
Voting: Nearly all states
place some limits on the right to vote for people with felony convictions.
(See Appendix, chart, "Voting Restrictions for People with Felony
Convictions.") The restrictions range from five states that have a lifetime
bar to 12 states (plus the District of Columbia) that preclude only
individuals who are actually incarcerated from voting.
[11]
Maine
and Vermont are the only two states that allow people to vote while they are
incarcerated.
[12]
Certificates of
Rehabilitation
A state-authorized and documented presumption of
rehabilitation provides a way for qualified individuals with criminal records to
demonstrate that they have paid their debt to society and therefore have earned
the right to have statutory bars to jobs or other services lifted, as well as to
have civil rights and public benefits reinstated. Through this certification,
states can promote public safety and civic engagement, as well as the employment
of people who have completed their sentences. Some states, including Arizona,
California, Nevada, New Jersey, New York, and Illinois, have enacted legislation
to provide individuals with a way to remove barriers to employment or other
post-release rights, benefits, or services, because of a conviction.
[13]
Although
such remedies are often referred to as "Certificates of Rehabilitation," states
use different nomenclature (New York, for instance, offers "Certificates of
Relief from Disabilities" and "Certificates of Good Conduct") and have created
different eligibility requirements and forms of relief.