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Abstract
Excerpted From: Alec C. Ewald, “These Are the Things That You Have to Learn”: The Misinformation Problem and Collateral Consequences Facing People with Conviction Histories in the United States, 58 No. 1 Criminal Law Bulletin ART 1 (Winter 2022) (145 Footnotes) (Full Document)
Like anyone else, people who have been convicted of a crime need to be able to find a place to live, get a job, and access public benefits they need. They may also want to participate in valued activities like pursuing post-secondary education, owning a firearm, or registering to vote. In seeking work, they might consider one of the many jobs that require a government credential, or they might think about trying to enlist in the U.S. military.
In the United States, all of these activities may be limited by policies known as “collateral consequences” or “collateral sanctions.” Located mostly in state rather than federal law, varying considerably from one place to another, and often characterized by complexity and discretion, such rules pertain to housing, employment, voting, jury service, firearms ownership, public benefits, and more, and can have significant lifelong effects on people with histories of criminal-justice contact. Most attach to convictions—meaning even people who avoid prison sentences will face them—but some are triggered by lower levels of criminal-justice involvement. And partly because they are almost always defined as “civil” sanctions, they are rarely discussed in courtrooms and correctional institutions. Indeed, with few exceptions, there is no requirement that anyone in the criminal-justice process inform defendants, prisoners, or probationers about such restrictions, and research suggests many people subject to these laws may not know what they are.
Seeking to better understand what people with criminal backgrounds know and think about collateral sanctions, I conducted extended semi-structured interviews with thirty-two people who were visiting a New York City organization that provides a range of re-entry services. In asking people with conviction histories what they believed to be the civil-restriction rules they were subject to—and what their opinions were about what such policies should be—I seek to enrich our understanding of “carceral citizenship,” and specifically the role these civil restrictions play in the lives, political imaginations, and discourse of people with conviction records. A robust literature demonstrates the depressive effects of criminal-justice contact on political participation, and punitive experiences can bring about broader social alienation. Yet to date, this literature has not documented whether people with records actually know the collateral-sanctions rules that govern them. Listening to people with serious criminal backgrounds shows that misinformation about one's legal status is an important feature of carceral citizenship.
“These are the things that you have to learn,” a fifty-five-year-old man said, explaining that he had found out while he was incarcerated that New York City's housing authority had begun permitting some people with serious records to live in public housing. But criminal and civil restrictions in the United States are so numerous, complicated, and varied, as Miller and Stuart have observed, that it is often difficult for people convicted of crime “to fulfill the obligation to obey the laws to which they are subject, to know which laws they are in violation of or to anticipate what their conviction status means from time to time or place to place.” These interviews made all too clear how accurate that statement is: many of that interviewee's peers had not, in fact, learned the things he said they needed to learn.
The people I spoke with were resourceful, engaged, and opinionated. But while they knew a good deal about the civil restrictions imposed on people with conviction histories, much of what they said about the law was not accurate, and their accounts were riddled with important gaps and omissions. In almost every area, subjects who had the rules wrong believed that exclusions were more restrictive than they are. Misinformation appears to be a major contributor to the exclusionary force of the collateral-consequences regime in the United States. While some people with conviction histories are opting out of social and civic life because of alienation, others are likely doing so partly because they wrongly believe they are barred from participating.
In structured conversations, I asked interviewees what they thought the law was in each of ten areas, as well as where they had learned what they knew. I also asked whether they would want to engage in a particular activity, were they legally permitted to, and what they thought the rules should be. A majority of respondents gave either partly incorrect or extremely incorrect accounts of the law in most of ten categories, including voting rights, eligibility for military service, a person's ability to have firearms rights restored, and the possibility of getting back jury-service eligibility. Typically, interviewees knew about laws that took their rights away—but knew far less about policies providing for rights restoration. No clear patterns emerged connecting sources with accuracy: subjects had learned about the law from many different people and institutions, but they appeared to have received substantially incorrect information about collateral-sanctions rules from a variety of places.
The high percentage of erroneous voting-rights responses was particularly surprising, given the substantial amount of attention New York officials have devoted to this problem in recent years. Those efforts have included Governor Cuomo's use of an executive order to restore voting rights to parolees in 2018, and a campaign to register pre-trial detainees and misdemeanants at Rikers Island for the 2018 elections. Interestingly, most respondents did know that people with convictions are not flatly barred from occupational licensure and from public housing; here, they often spoke from direct experience. Respondents also knew they were eligible in two areas where New York correctional institutions appear to have been active: TANF and SNAP benefits, and, intriguingly, taking college courses. Their knowledge was very mixed with regard to public employment. Many did know that specific New York City agencies, such as the Metropolitan Transportation Authority (MTA), hire people with criminal backgrounds, but about a third of respondents believed people with records were generally barred from public employment in New York, which is not the case.
Finally, striking problems emerged in respondents' knowledge of employers' ability to make hiring decisions based on an applicant's conviction record. Many had heard about “ban the box” and “fair chance” laws that restrict employers. But they often erred in believing that employers can never ask about a background and can never decline to hire someone because of a record. Confusion in this area is particularly important, given both the centrality of employment to re-entry and the pace of change in state and local rules.
[. . .]
The people I spoke with had more education, and more years of life experience, than millions of others with conviction records in the United States, and they had already walked in the door of a reentry-focused nonprofit. For these reasons, these thirty-two individuals were probably better-informed about collateral-sanctions rules than most carceral citizens. Indeed, many had a good deal of information about these policies—informed by direct personal experience, their own research, or having spoken with friends and family, corrections staff, or other government officials. That must not be overlooked. Yet all too often, despite their serious personal stake in knowing the rules, their extensive interactions with state correctional and human-services agencies, and their own thoughtful reflections, most interviewees' knowledge of the law featured serious gaps and errors, and their mistakes had a clear exclusionary cast. This problem is an important and underexamined part of the collateral-consequences regime in the United States, one with damaging impacts on human functioning, legal transparency, and systemic fairness. Among other costs, misinformation makes it rational to withdraw from civic life: refusing to engage with government makes sense if one believes it might lead back to prison, and recent high-profile prosecutions of people who voted before their eligibility was restored show that is entirely possible.
More research is sorely needed, as is policy change. Simply providing more and better information is a necessary first step. Such efforts should start with government itself. Research and reporting regularly reveals that elections officials, social workers, and others do not know collateral-sanctions rules. Next, making sure that eligibility and restoration information is readily available to people affected by these policies—via materials discussed at discharge from prison, posters in community-supervision and social-service agencies, on-line FAQ documents, and elsewhere—is a low-cost step that local, state, and federal governments can and should take. Active, direct notification helps; telling people with conviction records that they are eligible to vote can improve turnout, though effects tend to be modest. Most recently, Morris found that when newly-restored New Yorkers were informed about their eligibility by parole officers, in person, turnout improved by a significant percentage, though it remained low. Yet voting-rights rules are actually among the clearest policies in the collateral-consequences landscape. As we have seen, trying to regain other rights and privileges can require parsing conviction-specific rules, enduring a waiting period, gathering documents, and wrangling diverse bureaucracies.
The misinformation problem is not merely one of absence—a simple matter of citizens' failure to gather and retain information. Properly understood, it is instead a problem created by rules that are unusually complex and sometimes truly obscure, often mixing state and federal law, varying both across jurisdictions and by conviction type, and entailing substantial discretion by government agents. Complexity imposes very real learning and compliance costs on citizens, and those costs are not evenly distributed. Particularly for people already carrying the weight of poverty and health problems, learning what these “hidden sentence” restrictions are and how to seek relief from them can be genuinely difficult. Reentry policy-makers should heed economists' and psychologists' empirical lessons about the cognitive costs of poverty. No one should expect that it will be enough to simply post facts on-line somewhere: robust, holistic re-entry support, in which people with records are not only informed but encouraged and supported as they join civic and social life, is essential, both through nonprofit organizations and through parole and probation offices.
Eliminating needless barriers, simplifying others, and helping people to alleviate restrictions where possible will be good for people with criminal backgrounds, and for U.S. society. Alienation can be one consequence of carceral-system contact. These interviews suggest that misinformation is an underappreciated contributor to this problem. Many people with histories of criminal-justice involvement may be withdrawing from political, economic, and social activities because they believe they are not legally permitted to participate, when in fact they are, or could become, eligible. Our civic life suffers from their absence.
Alec Ewald is an Associate Professor of Political Science at the University of Vermont. Please direct correspondence to
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