Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity

This Article adds to the burgeoning literature that explores the various collateral consequences that attach to criminal convictions in the United States. These consequences include ineligibility for public and government-assisted housing, public benefits, and various forms of employment, as well as civic exclusions such as ineligibility for jury service and disenfranchisement. This Article argues that decisionmakers in the United States failed to foresee the collective impact of these consequences when they expanded them dramatically in the 1980s and 1990s. They also failed to account for the disproportionate impact these consequences would have on individuals and communities of color. To provide a broader context for studying the United States’ imposition of collateral consequences and the extent to which these consequences are rooted in race, this Article looks to England, Canada, and South Africa. These countries, which have criminal justice systems similar to the United States’ and have similar histories of disproportionately incarcerating people of color, have in recent years adopted criminal justice practices similar to those of the United States and have turned to increasingly punitive punishment schemes. This Article is the first to offer a detailed comparative examination of collateral consequences and finds that the consequences in the United States are harsher and more pervasive than the consequences in these other countries. It also shows that Canada and South Africa have articulated broad protections for the dignity interests of incarcerated and formerly incarcerated individuals that are influenced by human rights notions of rights and privileges. Canada, in particular, has employed mechanisms to ease racial disparities in incarceration. Drawing lessons from these countries, this Article offers steps the United States should take to ease the legal burdens placed on individuals with criminal records, as well as to lessen the disproportionate impact these post-sentence consequences have on individual and communities of color.