The United States’ Criminal Caste: The Problem of Collateral Consequences

By Ross Coker

The Georgia Public Policy Foundation and other organizations committed to intelligent criminal justice reform in Georgia, have for some time pointed out Georgia’s astronomical rates of parole and probation, the highest in the nation by far. Georgia has 4,565 adults on probation per 100,000 adults, whereas that number falls to 2,200 for the next state on the list, Rhode Island.

Parole and probation join the larger problem in criminal justice reform efforts known as “collateral consequences:” things beyond fines and prison sentences such as restrictions on civic participation that prevent ex-offenders from living the same lives as those who have not, even if they desire to return to a law-abiding, contributory role in society.

The justification for Georgia’s sky-high parole and probation rates is that more people convicted of a crime are not behind bars but subject to supervision as they consider their next life move. It is of crucial importance, however, to consider the potential adverse effect, which could cause a life of crime to remain the “path of least resistance.”

John Malcom and John-Michael Seibler of The Heritage Foundation consider the question in, “Collateral Consequences: Protecting Public Safety or Encouraging Recidivism?” The report examines whether intentional “collateral consequences” to certain crimes (such as inability to get a driver’s license, public housing, student aid, etc.) serve the desired purpose or contribute to a return to a criminal lifestyle.

The authors conclude that only some of the consequences even have a direct, demonstrable link to their stated purpose of public safety or other related function. For example, while it makes sense from a public safety perspective to prevent a sex offender from being near school grounds, removing military veteran benefits after an offense has a far less direct link to public safety, to say the least. This seemingly contradicts the supposed intention of these consequences to be remedial rather than punitive (further punishment), they conclude.

Similarly, since these consequences are in the civil rather than criminal universe, judges and prosecutors who deal with statutes and criminal code may not even consider the weight of the consequences when making their sentencing determinations: Collateral consequences occupy a sort of “separate universe” in which offenders must navigate further restrictions even after release from prison.

The study cites American Bar Association statistics that indicate 60-70 percent of these consequences are employment-related.

When someone is convicted of a crime and pays their debt to society via a sentence handed down by a judge, it seems to send a mixed message to then close opportunities to legitimate, entry-level jobs that such a person might consider as an alternative to returning to crime.

The Heritage study helps show yet another unintended consequence of aspects of the criminal justice system and offers food for thought for crucial reforms in this area. For example, the study recommends that lawmakers first consider consolidating all such collateral consequences in one central location or list to examine their collective impact. This would allow for removal of the more unnecessary or harsh consequences intelligently, to still protect public safety.

Similar reforms in this area could be of special importance in Georgia, given the need to help reentry of the large number of those on probation or parole into society more fully.

Ross Coker is Director of Research and Outreach of the Georgia Public Policy Foundation. The Foundation is an independent think tank that proposes market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the view of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature. © Georgia Public Policy Foundation (February 15, 2017). Permission to reprint in whole or in part is hereby granted, provided the author and his affiliations are cited.