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Collateral Damage - Study by the NACDL

posted Aug 5, 2014, 12:16 PM by Phoenix Rayne
The Study that can also be found in our Reference Library on this site.

Executive Summary

Collateral damage occurs in any war, including America’s “War on Crime.” Ironically, our zealous efforts to keep communities safe may have actually destabilized and divided them. The vast expansion of the nation’s criminal
justice system over the past 40 years has produced a corresponding increase in the number of people with a criminal record. One recent study estimated that 65 million people — one in four adults in the United States — have a criminal record.2At the same time, the collateral consequences of conviction — specific legal restrictions, generalized discrimination and social stigma — have become more severe, more public and more permanent. These consequences affect virtually every aspect of human endeavor, including employment and licensing, housing, education, public benefits, credit and loans, immigration status, parental rights, interstate travel, and even volunteer opportunities. Collateral consequences can be a criminal defendant’s most serious punishment, permanently relegating a person to second-class status.

The obsession with background checking in recent years has made it all but impossible for a person with a criminal record to leave the past behind. An arrest alone can lead to permanent loss of opportunity. The primary legal mechanisms historically relied on to restore rights and status — executive pardon and judicial expungement — have atrophied or become less effective.

It is time to reverse this course. It is time to recognize that America’s infatuation with collateral consequences has produced unprecedented and unnecessary collateral damage to society and to the justice system. It is time to celebrate the magnificent human potential for growth and redemption. It is time to move from the era of collateral consequences to the era of restoration of rights and status.

NACDL recommends a broad national initiative to construct a legal infrastructure that will provide individuals with a criminal record with a clear path to equal opportunity. The principle that individuals have paid their debt to society when they have completed their court-imposed sentence should guide this initiative. At its core, this initiative must recognize that individuals who pay their debt are entitled to have their legal and social status fully restored.

Until recently, defense lawyers have not regarded avoiding and mitigating collateral consequences as part of their responsibility to the client. This has changed, in part because of court decisions recognizing collateral consequences as an integral part of the criminal case, and in part because of the increasing social and economic significance of collateral consequences themselves. As a result, in 2011 NACDL established a Task Force on Restoration of Rights and Status After Conviction to inquire into how existing restoration mechanisms are actually functioning and to determine how they can be improved. The Task Force conducted extensive hearings in six different major American cities in five distinct regions of the country over more than two years and took testimony from more than 150 witnesses. The result is this report and the following comprehensive recommendations for reform.