Jonathan P. Baird

Recently U.S. Supreme Court Justice Anthony Kennedy spoke out about the sentences of criminal offenders being too long.  It was rare and refreshing to hear a conservative jurist speak critically about the harm of mandatory sentencing.

There can be little doubt that as a society we are big on punishment.  We are good at putting people away.

Where we are not so good is thinking rationally about treatment of ex-offenders after they have served their sentences.  This is important because most incarcerated offenders will, at some point, be released.

Instead of encouraging positive approaches to promote a fresh start and reintegration into a community, we have constructed legal barriers that make it harder for ex-offenders to resume a normal life.  In housing, public benefits, employment, parental rights and student loans, the fact of a criminal record is often the basis for a second, civil punishment.

More often than not, judges, prosecutors, and defense attorneys are unaware of these collateral consequences.  They do not consider it at sentencing.

The consequences happen after the criminal case is over.  You get denied the job, the apartment, custody of your child or a student loan because of something criminal in your past, even your distant past.  In effect, it is the punishment that keeps punishing.

Here are some routine examples from my law office at New Hampshire Legal Assistance:

●  A public housing authority denied readmission to a husband who
wanted to return to his previous residence, where his wife lived.
The husband had completed his jail time.  Because of his criminal
conviction for drug possession, he was deemed a threat to other
tenants.  Under the Section 8 rules, he was barred readmission for
five years.

●  Fourteen years ago, a mentally disabled woman stole food from a
convenience store in Massachusetts.  She did not show up at her
court hearing on the charge and she had an outstanding warrant.
After moving to New Hampshire to escape domestic violence, she
rebuilt her life.  She qualified for disability benefits, found a modest
apartment and was quietly living her life.

The Social Security Administration cross-matched computer
information about her criminal record.  Based on the assumption
that she was a fleeing felon, Social Security terminated her
benefits and sent her notices that she was liable to repay over
$17,000 in benefits she had received over past years.

She lost her only income, $545 a month, and is now fighting
eviction.

●  A developmentally disabled high school student faced eviction
from the federally subsidized housing project where he lived
with his even more disabled mother.  The young man violated
the terms of his probation by contacting the underage girl with
whom he had been in love and with whom he had previously
engaged in some consensual touching.  The girl had been
writing the young man and he wrote back.

The housing project evicted him because his probation violation
had again landed him in prison.  He and his public defender had
previously plea-bargained a simple assault charge.  Although
popular and well-liked in his home community, has was considered
a risk to other children in the project.  He is now without income,
living in a homeless shelter and trying to finish high school.

In all these situations, a criminal past led to some additional civil punishment.

This makes little sense.  There is no evidence that piling on civil punishments makes us safer in New Hampshire.  They are based on demonizing ex-offenders.

The typical ex-offender is not Hannibal Lecter.  Movies and crime novels give maximum exposure to super-predator psychopaths who kill remorselessly while competing for first prize in the evil department.

These dehumanized stereotypes distort a realistic view of the offender population.

We know a fair amount about this population.  Most prisoners report incomes of less than $8,000 a year in the year before going to prison.  A majority were unemployed at the time of their arrest.  Seventy percent of parents in state prison do not have high school diplomas.

While the government does not keep statistics on pre-incarceration earnings and employment histories, some generalizations seem safe.  Most prisoners are poor with limited education and job skills.  A high percentage have severe mental impairments.  They often have drug and alcohol problems with histories of being physically, psychologically and sexually abused.  Most ex-offenders have convictions for drug-related or property crimes, not violent crimes.

A majority do not have long conviction records.  Almost a quarter of male inmates and 35 percent of female inmates were never previously convicted.

As a new study from the U.S. Department of Justice demonstrates, there are over 5 million people in the United States with experience in state or federal prison.  this does not include those in local jails or those who were arrested and never charged or had charges dropped.  Clearly, the stigma of a record is of great importance to many millions.

A rational public discussion should reconsider whether rehabilitation is served by policies that make it more likely ex-offenders will be without income, employment or a place to live.