By Margaret Colgate Love

The problem of collateral consequences calls to mind Supreme Court Justice Oliver Wendell Holmes Jr.’s famous line: “The life of the law has not been logic: it has been experience.” U.S. criminal law itself is not theoretically pure. In the area of civil law, in particular commercial law, dozens of uniform laws are on the books, drafted by experts, many of which, such as the Uniform Commercial Code, have been widely adopted. But in a country where we evaluate criminal justice policies based on a melange of principles - retributivist, utilitarian, economic, religious, pragmatic, intuitive, and emotional - there is and could be no Uniform Penal Code.1 Criminal law is inconsistent across states, and even within states, in its underlying justification or rationale, and the reasons that particular rules or practices exist. The Model Penal Code has been widely influential, but—as designed—states adopted only the pieces they liked and heavily modified them. Disagreement about how to treat someone who has been arrested or prosecuted after their criminal case is concluded is, if anything, even more intense. The collateral or indirect consequences of their experience may be divided into four main types: Loss of civil rights, limits on personal freedom (such as registration or deportation), dissemination of damaging information, and deprivation of opportunities and benefits, each of which may be justified and criticized for different reasons. Accordingly, criminal law practitioners and scholars disagree about the fundamental nature and purpose of collateral consequences. To the extent the public at large ever thinks about them, they also hold a range of views. There is no consensus about whether collateral consequences in general or particular ones should be understood as further punishment for crime or prophylactic civil regulation, as a reasonable effort to control risk or as an unconstitutional and immoral perpetuation of Jim Crow, or, perhaps, understood in some other way. Advocates, analysts, and lawmakers will never be in a position to argue persuasively “because collateral consequences rest on Principle X, it follows that they should apply in and only in Condition Y, and must be relieved under Circumstance Z.”  Yet, the practical problem of collateral consequences looms large. With their massive expansion in recent decades, those who experience collateral consequences firsthand know that they cannot become fully functioning members of the community without finding a way to overcome them. The economic dislocations caused by the COVID-19 pandemic underscore the practical implications of collateral consequences: With individuals desperate for money and opportunity, and businesses hungry for workers, the need for a sensible policy to minimize employer concerns about risk is clear. And while there remains no compelling necessity for all states to have the same penalties for armed robbery or cattle rustling, collateral consequences are a national economic problem affecting whole communities that might justify a federal, or at least a uniform, solution. Fortunately, agreement on underlying principles is not required to agree on particular policies.2 Most Americans agree that people arrested or convicted of a crime should not be relegated to a permanent subordinate status regardless of the passage of time, successful efforts at rehabilitation and restitution, and lack of current risk to fellow Americans. Finding ways to restore their legal and social status is a compelling necessity, given the array of collateral consequences adversely affecting tens of millions of Americans, their families and communities, the economy, and public safety itself. To adapt a line from Justice Anthony Kennedy’s 2003 speech on criminal justice to the ABA, too many people are subject to too many collateral consequences for too long. At the same time, substantial majority likely agree that public safety requires excluding those convicted of recent criminal conduct from situations where they present a clear and present danger of serious harm. Even if it is impossible to identify a s     

Arnold, MO: Collateral Consequences Resource Center (CCRC) , 2022. 129p.

By Sandra Susan Smith

As a growing number of jurisdictions across the country have attempted to implement bail reforms, debates have intensified about the relationship between such reforms and crime, including and perhaps especially violent crime. Similar debates, for instance, have raged in New York, where the backlash against bail reform caused the state legislature to roll back key elements just three months after implementation. In recent weeks, New York Governor Kathy Hochul has proposed further rollbacks to the law to address continued concerns that bail reform has contributed to spikes in the state’s violent crime rate. Although largely driven by politics, these debates raise an important and timely set of empirical questions: What role does pretrial detention/release play in producing, or threatening, public safety? Does pretrial release incentivize crime and drive-up crime rates, including violent crime, as many in law enforcement have claimed? Or, all things considered, is pretrial detention the greater risk to public safety? This discussion paper is an effort to synthesize the evidence on this question. Before doing so, however, I specify the conceptualizations of public safety that I deploy throughout. I then draw from academic and policy research on the costs and benefits to public safety of pretrial detention/release, distinguishing evidence from studies of the impacts of releases resulting from routine pretrial practices, from bail reform, and from responses to the Covid-19 pandemic. No matter the cause of pretrial release, the evidence seems clear: Overall, pretrial detention is a far greater threat to public safety than pretrial release. Not only does detention increase the risk that even low-risk individuals might reoffend (or be rearrested), but detention also initiates a series of collateral consequences downstream that are difficult for many to overcome.

Arnold Ventures Public Safety Series, July 2022. 14p.

By Emily Widra

More than 1 in 10 people admitted to state prisons every year have committed no new crime, but have simply broken one or more of the many conditions, or rules, of their probation. All of this unnecessary incarceration is the predictable result of widely-adopted probation conditions that are so vaguely defined, so burdensome, and so rigidly applied that they actually broaden the scope of what counts as “recidivism.” Through these conditions, courts and probation authorities create punishable offenses that go far beyond criminal law, setting people up to fail. And because the vast majority of people under correctional control are on probation — 2.9 million people, 1 far surpassing the 1.9 million people incarcerated — these trap-like conditions make probation a major driver of mass incarceration, not the “alternative” it’s supposed to be. Shrinking the massive probation system — and the number of people incarcerated from community supervision — is central to ending mass incarceration. Doing so requires challenging existing “standard conditions” that (a) are often in conflict with one another, (b) exacerbate the challenges people on probation are already facing, and (c) empower probation officers — rather than courts — to make subjective decisions that can lead to revocation and incarceration. Examining these conditions clarifies why probation often functions as an on ramp to incarceration instead of an alternative, and can help advocates and policymakers reorient probation systems away from incarceration. Unfortunately, standard probation conditions are often difficult to locate and parse, vary between jurisdictions, and use complicated and unclear language, so to aid in this effort, we collected and analyzed the standard conditions for 76 jurisdictions across all 50 states and Washington, D.C., creating one of the most comprehensive compilations of these rules to date. 

Northampton, MA: Prion Policy Initiative, 2024. 

By Julian V. Johnsen, Laura Khoury:

Peer actions play a key role in the criminal sector due to its secrecy and lack of formal institutions. A significant part of criminal peer exposure that happens in prison, is directly influenced by policymakers. This paper provides a broader understanding of how peer effects shape criminal behavior among prison inmates, focusing on co-inmate impacts on recidivism and criminal network formation. Using Norwegian register data on over 140,000 prison spells, we causally identify peer effects through within-prison variation in peers over time. Our analysis reveals several new insights. First, exposure to more experienced co-inmates increases recidivism. Second, exposure to "top criminals" (i.e. those with extreme levels of criminal experience) plays a distinctive role in shaping these recidivism patterns. Third, inmates form lasting criminal networks, as proxied by post-incarceration co-offending. Fourth, homophily intensifies these peer effects. These findings contribute to the theoretical understanding of peer influences in criminal activities and offer practical insights for reducing recidivism through strategic inmate grouping and prison management policies.

Bonn: Institute of Labor Economics - IZA, 2024.