Collateral consequences scholarship round-up

Collateral consequences and restoration of rights have become hot topics in academia as the consequences of conviction grow more severe and the need for law reform becomes more apparent.  Below we survey notable articles on topics relating to collateral consequences that have been released so far in 2017, some of which will be covered in more detail in subsequent posts.  We hope to make scholarship round-ups a regular feature on the CCRC site, and we welcome submissions on relevant topics.  A more complete collection of scholarship on issues relating to collateral consequences can be found on our “Books & Articles” page.


“Briefing the Supreme Court: Promoting Science or Myth?”

Melissa Hamilton, University of Houston Law Center

Emory Law Journal Online (Forthcoming)
Date Posted on SSRN: March 23, 2017

The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders. An issue that has arisen in the case is the state’s justification for the ban. North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes. The collective states contend that these three claims are supported by scientific evidence and common sense. This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.

“Criminological Perspective on Juvenile Sex Offender Policy”

Franklin E. Zimring, University of California, Berkeley

The Safer Society Handbook of Assessment and Treatment with Adolescents Who Have Sexually Abused. Brandon, VT.: Safer Society Press (Forthcoming).S. Righthand and W. Murphy (Eds).
Date Posted on SSRN: March 23, 2017

Persons under 18 are in the very early years of sexual maturity and lack both experience and perspective. When juveniles commit sexual offenses, the behavior is typically not violent and most often involves conduct only referred to authorities because of an age difference between the offender and the victim. Rates of future sexual offending in later years are quite low for most juvenile sex offenders and on current data the presence or absence of a juvenile sex offense is not a significant predictor of sexual offending in young adulthood. Under these circumstances, requiring registration and public notification of juvenile sex offenders is very poor crime control policy as well as gross injustice to the juvenile offender.

“Recognizing Redemption: Old Criminal Records and Employment Outcomes”

Peter Leasure, University of South Carolina, College of Arts and Sciences, Student
Tia Stevens Andersen, University of South Carolina

N.Y.U. Review of Law and Social Change, The Harbinger, Vol. 41, 271-286
Date Posted on SSRN: March 21, 2017

Upon completion of their sentences and when attempting to ‘reenter’ society, offenders face large barriers, often referred to as the ‘collateral consequences’ of conviction. One of the largest barriers, given the stigma of a criminal record, is finding employment. The problem primarily arises because of increases in the use of background checks by employers and the use of a criminal record to eliminate candidates. Such a practice is partly understandable for employers, as a recent conviction is one of the best predictors of future criminal activity. However, recent evidence suggests that an offender’s risk of reoffending decreases over time and can eventually come “close enough” to that of one who has never offended, even becoming lower than that risk for a random person within the general population. However, no study has examined whether such knowledge has reached potential employers. Our study sought to determine whether knowledge such as this has reached potential employers and asked whether there are employment outcome differences for hypothetical applicants with older criminal records. Results indicate that those possessing older criminal records still face barriers when seeking employment. Based on these findings, we present policy considerations.

“Reforming Registries”

Wayne A. Logan, Florida State University – College of Law

in Academy for Justice, A Report on Scholarship and Criminal Justice Reform, (Erik Luna ed., 2017 Forthcoming)
Date Posted on SSRN: March 9, 2017

Since the 1990s, laws in U.S. jurisdictions have required that convicted sex offenders, living in communities, provide identifying information to authorities, which is then made available to community residents in the dual hope that they will undertake safety measures and that registrants will be deterred from re-offending. The laws have been and remain popular with the public and political actors alike, but have long been criticized for being predicated on empirical misunderstandings, most notably that sex offenders as a group recidivate at higher rates than other offenders and that most sexual offending involves strangers. Today, moreover, a considerable body of social science research calls into question whether registration and notification achieve their avowed public safety goals. This chapter, to be included in a forthcoming volume on potential criminal justice reform initiatives, summarizes the research undertaken to date and offers several concrete suggestions for ways in which registration and notification laws can be improved.

“Unmarked? Criminal Record Clearing and Employment Outcomes”

Jeffrey Selbin, University of California, Berkeley – School of Law
Justin McCrary, University of California, Berkeley; National Bureau of Economic Research (NBER)
Joshua Epstein, University of California, Berkeley, School of Law, Student

Publication forthcoming
Date Posted on SSRN: February 6, 2017

An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively low-level misdemeanors. In an era of heightened security concerns, easily available data and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential.

In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We study a random sample of participants in one such program to analyze the impact of the record clearing intervention on employment outcomes. Using methods to control for selection bias and the effects of changes in the economy in our data, we find evidence that: (1) the record clearing intervention boosts participants’ employment rates and average real earnings, and (2) people seek record clearing remedies after a period of suppressed earnings.

More research needs to be done to understand the durability of the positive impact and its effects in different local settings and labor markets, but these findings suggest that the record clearing intervention makes a meaningful difference in employment outcomes for people with criminal records. The findings also suggest the importance of early intervention to increase opportunities for people with criminal records. Such interventions might include more legal services, but they might also include record clearing by operation of law or another mechanism that does not put the onus of unmarking on the person with a criminal record.

“Ban the Box, Convictions, and Public Sector Employment”

Terry-Ann Craigie, Connecticut College

Publication forthcoming
Date Posted on SSRN: January 27, 2017

In 2004, the grassroots civil rights organization All of Us or None, advocated for the implementation of Ban the Box (BTB) policies to improve the employment outcomes of the correctional population, especially within the public sector. However, scholars argue that young low-skilled minority males may be subject to employer use of statistical (racial) discrimination. The study employs quasi-experimental methods to identify the impact of public sector BTB policies on public sector employment. In general, the study finds that public sector BTB policies increase the odds of public sector employment for those with convictions by close to 40%; however, the study uncovers no evidence of statistical (racial) discrimination against young low-skilled minority males.