Some punishments begin after prison

Crisis, The, May/Jun 2003 by Mauer, Marc

Imagine for a moment that in a courtroom somewhere in America a woman named Eleanor Wilson has just been convicted of the sale of crack cocaine to an undercover officer. Ms. Wilson's attorney was able to arrange a plea bargain for his client in order to avoid a mandatory five-year prison term, and so Ms. Wilson agrees to serve one year in prison. After a brief sentencing hearing, Ms. Wilson is led off to begin to serve her time.

Largely unbeknownst to anyone in the courtroom, though, a host of additional "invisible punishments" have also been imposed on Ms. Wilson. As a result of her felony drug conviction (and depending on the state in which she lives), Ms. Wilson is now barred for life from receiving welfare benefits, will lose access to student loans for higher education, may be barred from living in public housing and will lose her right to vote.

Ms. Wilson is not an actual person. But her story is very real. Similar scenarios are played out in courtrooms across the country every day, with both men and women falling victim to undisclosed sanctions beyond their stated sentences.

These penalties are not normally mentioned at sentencing, but they arise from an array of policy changes, many adopted by Congress in recent years, that have dramatically escalated the barriers to successful community reintegration by ex-offenders. Many of these penalties have not been incorporated in crime legislation, but instead have emerged through policy change in other areas.

In 1996, for example, as a little-noticed aspect of the federal welfare reform legislation, Congress imposed a lifetime ban on the receipt of welfare and food stamp benefits for anyone convicted of a felony drug offense. States can choose to opt out of this provision, so far 10 have, but it applies across the board unless they do so. Women are disproportionately affected by this provision, since they are the primary recipients of welfare benefits and a greater percentage of female inmates are incarcerated for drug offenses. Since the adoption of the ban in 1996, an estimated 92,000 women (in the 23 states for which data was obtainable) - more than half of them African American or Latina - have become subject to its provisions.

Similarly, in 1998, Congress passed an amendment to the Higher Education Act that denies federal financial aid to students with drug convictions. Ostensibly designed to discourage drug use, the measure is likely to affect disproportionately low-income students who hope to attend college. In the 2001-02 school year, 48,000 applicants were denied aid under this provision.

These new punishments have corresponded with the unprecedented rise in rates of criminal prosecution and incarceration over the last 30 years. There are now seven times as many people incarcerated in the nation's prisons as in 1970. Including inmates in local jails, more than 2 million Americans are behind bars. The racial and ethnic dimensions of this escalation are dramatic. Nearly two-thirds of the nation's prisoners are African American or Latino, and if current trends continue, 29 percent of Black males born today can expect to serve time in prison at some point in their lives. The rate for Black women, 3.6 percent, isn't nearly as alarming, but the racial disparities are similar, with only 0.5 percent of White women expected to spend time in prison in their lifetimes.

This rise in the prison population is a byproduct of a zeal among lawmakers to impose broad-based "get tough" policies. Thus, while some of the restrictions on felons, such as disenfranchisement, have been in place since the founding of the nation, many are recent products of the "wars" on crime and drugs.

The combined impact of these policies is both irrational and counterproductive. Since many of the prohibitions apply only to drug offenders, they create a situation whereby a three-time armed robber can be released from prison and immediately qualify for welfare benefits and public housing, benefits that would be denied to a single mother who engaged in a one-time drug sale.

These collateral consequences are also heavily race- and class-biased. The prohibition on student loans for higher education for example, is less likely to present a barrier to college for a convicted drug user from a middle-income family than for a student in a working-class community. And, whether intended or not, these penalties exacerbate the racial disparities that pervade the criminal justice system. As long as practices such as racial profiling and a racially skewed war on drugs persist, communities of color are more likely to experience these penalties disproportionately.

In addition to the penalties imposed on individual offenders, many longstanding policies have increasingly diluted the political power of Black and other minority communities. As a result of laws in 48 states and the District of Columbia that restrict the voting rights of convicted felons, an estimated 4.7 million persons are now unable to vote. Given the racial dynamics of the criminal justice system, the proportion of disenfranchised persons in communities of color is particularly skewed, with an estimated 13 percent of Black males currently barred from the voting booth. (Disenfranchisement figures for women are not available.)