Collateral Consequences may be doing more harm than good. It’s hard to say. Our laws are littered with them, but we never step back to evaluate whether they serve a purpose, and the legislature seems determined to create new ones each year.
Collateral Consequences are sanctions or disqualifications against people with criminal records that arise from the operation of laws and regulations, but they were not part of the sentence handed down at the time of conviction. We normally think crime is punished by incarceration, fines, restitution, probation or parole. But in addition to what the criminal code assigns to various convictions, a multitude of civil laws pile on more punishment. Examples of collateral consequences include loss of professional and occupational licenses, restrictions on public housing, ineligibility for public benefit programs, loss of voting rights, restrictions as to firearms, the inability to adopt children or become a foster parent, and more. Colorado law is replete with these additional consequences for people with criminal records.
Add to the extensive list of collateral consequences the fact that many employers and landlords won’t consider people with criminal records, and you can easily see how the deck is stacked against someone coming out of the criminal justice system. Studies have shown that the biggest indicators of success after prison are stable employment and housing. Without these supports, people released from prison are likely to be part of our unfortunately high recidivism rate. We know that employment and housing contribute to success on parole, yet Colorado law places collateral consequences in the path of former offenders as they seek jobs and places to live. It doesn’t make sense.
SB 105 is a response to this contradiction in Colorado law. The bill is similar to one I introduced last year (SB 11-044), but it is more clearly written and includes additional new features. The bill I introduced last year was based upon a model act written by the National Conference of Commissioners on Uniform State Laws. This model act was recommended because states across the country are looking for ways to provide relief from collateral consequences.
SB 105 has several distinct features, all designed to help people who have been in trouble with the law put their life back together and successfully reintegrate into society. First, the bill requires people to be notified about the existence of collateral consequences at several key stages of the criminal justice process. Before someone accepts a plea bargain they should know that their guilty plea may cost them their license to practice their profession or other important benefits. I think due process and effective assistance of counsel require such notice, but I’ve written this into SB 105.
SB 105 next creates the opportunity for a judge to grant relief from collateral consequences for people being sentenced to probation or direct sentenced to community corrections. In these cases, the offender will remain in the community, so they’ll need employment and housing. Giving the sentencing court the power to waive collateral consequences will increase the likelihood of success on probation, or stated differently, make it less likely that probation will be revoked and the person will be sent to prison.
Next, SB 105 creates a process for similar relief from collateral consequences for people released from prison after a certain amount of time has passed. If they’ve completed their time in prison and on parole and they’ve stayed out of trouble, they can petition a court for a certificate of rehabilitation that grants relief from specified collateral consequences. Again, this allows someone to gain back their license to practice their profession or take other steps to move forward with their life. And again, the goal is success after incarceration.
Finally, SB 105 creates processes for removing certain things from your record, such as old arrests that never resulted in the filing of charges or old convictions for petty offenses and municipal ordinance violations. These things turn up in criminal background checks, but after the passage of time have little relevance to whether someone should get a job interview or be rented an apartment. Old records like these shouldn’t haunt people for the rest of their lives, and SB 105 makes it possible to put these things in the past behind you.
I believe this approach to people with criminal records makes sense and will improve people’s lives and their ability to support their families. Each collateral consequence will be individually considered by a judge, and only those cases where someone can show they deserve a second chance will win relief. SB 105 is limited in its scope and doesn’t apply to sex offenders or other violent crimes, and it probably won’t work for everyone. But it’s a step in a progressive direction and it offers hope and relief to those who often find little of these things in today’s society. It should reduce recidivism and the costs to taxpayers and victims that come from criminal offenses.
SB 105 is sponsored in the House by Rep. Claire Levy, my colleague from the Joint Budget Committee. Working on the budget committee gives us an unique perspective on the importance of reducing recidivism and helping people successfully reintegrate after prison. Instead of being a drain on the state budget we’d prefer to see former offenders become productive members of society. It’s time for our laws to create pathways to success rather than impose burdens that lead to failure. SB 105 will help get us there.
To learn more about Collateral Consequences and how people can get along despite them, visit the website for the Institute for People with Criminal Records. You can also follow developments in this area of law through The Sentencing Project. Finally, an article published in the New York University Law Review provides a good explanation of the problems caused by Collateral Consequences and recommendations for reforms.