NACDL - Race and Collateral Consequences

Race and Collateral Consequences

It is legal today to discriminate against individuals with criminal records “in nearly all the ways that it was once legal to discrimination against African Americans,” says Michelle Alexander in The New Jim Crow. “Once you’re labeled a felon, the old forms of discrimination, housing discrimination, denial of the right to vote, denial of education opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal.”

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The vast array of collateral consequences imposed on those with criminal records disproportionately impacts people of color, particularly Black people. Disproportionate contact with the criminal justice system, largely due to more aggressive policing and prosecution of people of color, is one reason why collateral consequences disproportionately impact people of color. Felony disenfranchisement, for example, heavily impacts Black communities:

Over 7% of the adult black population are disenfranchised in the United States. In Florida, Kentucky, Tennessee, and Virginia, that figure is over 20% (U.S. Commission on Civil Rights, 2019).
Black Americans are banned from voting at four times the rate of all other racial groups combined (The Marshall Project, 2018).
1 in 13 voting-age African Americans are disenfranchised in the U.S. (Brennan Center for Justice, 2017).

The Welfare Act of 1996 law imposed a lifetime ban on cash assistance and food stamps for people who have felony drug convictions from state or federal courts, unless states opt out (The Sentencing Project, 2018). Today, “these restrictions particularly impact people of color, not only because people of color are disproportionately convicted and incarcerated, but also because they are more likely to meet the poverty threshold qualifying them for such public benefits” (U.S. Commission on Civil Rights, 2019).

The disproportionate impact of collateral consequences also manifests in the disparate ways that gatekeepers, such as employers and property agents, treat individuals of different races with criminal records:

A study conducted in D.C. by the Equal Rights Center found that white applicants with criminal backgrounds received preferential treatment 47% of the time over Black applicants with similar records, and that property agents imposed stricter criminal record screening criteria, and sometimes greater fees, on Black applicants than on white applicants (U.S. Commission on Civil Rights, 2019).
An audit study published in 2009 found that “the magnitude of the criminal record penalty suffered by black applicants (60%) is roughly double the size of the penalty for whites with a record (30%).