Creating Criminals

It unfortunately doesn't appear to be online, but if you happen to be at a lawyer's house anytime soon, keep an eye out for the January issue of the ABA Journal. There's a nice -- albeit too short -- article ("Run-on Sentences") about "collateral consequences" of being convicted (or sometimes just charged) with a crime.

By and large, people with felony convictions are banned from enlisting in the U.S. military. Fifteen states bar convicted drug offenders from recieving welfare or food stamps. In various states, people with convictions are excluded from public housing, barred from recieving educational loans, and denied driver's licenses. In New York, for instance, a man who had learned to cut hair in prison was denied a barber's license when he got out. ... In New York City ... a person convicted of disorderly conduct -- a noncriminal violation -- may be banned from public housing for up to three years. Sometimes just an arrest record can be a problem. Most states allow employers to discriminate against people who have been arrested but not convicted ... And this information is readily available to employers, landlords and others.

And they don't even mention felons' loss of the right to vote in many states. There's an obvious facial injustice here -- if food stamps are the government's business at all, then they're a right, not a discretionary favor.

What's more, if you're one of those crazy people who think that the goal of the criminal justice system should be to reduce crime, these "collateral consequences" make no sense. It's absurd to hold a strict "personality trait" theory of crime (that crime is solely the result of the perpetrator's internal dispositions). Yet any theory that allows for situational influences would have to admit that taking away opportunities for a person to become better integrated into, and invested in, society will tend to increase crime. One might offer a "tough love" analysis -- but tough love only produces improvement, rather than further rebellion, when the tough-loved person respects and wants the approval of the tough-lover, and it's exactly the lack of that respect that makes crime possible. Then there's the idea of defensive ostracism (if you don't expect someone to improve, get away from them), which fails because people suffering collateral consequences are not in fact separated from the rest of the population -- they remain living alongside us, with less ability, reason, or incentive to make a law-abiding life for themselves. At best, some collateral consequences (such as barring people from housing or employment) allow each individual agency or employer to engage in a sort of Tragedy of the Commons, exchanging some level of risk to themselves for a larger risk spread out over the whole society.

The ABA Journal article approvingly cites a program in New York that would allow people to earn "certificates of good conduct" that would lift the collateral consequences of their past crimes. Such a program is the Kyoto Protocol of criminal justice. It essentially requires that people rehabilitate themselves in spite of the collateral consequences, then have them lifted. In essence, people must make their obesiance to the legitimacy and rightness of the system before it accords them their rights.