During a search of Penelope Harris’s Bronx apartment in 2010, police found 10 grams of cannabis. Even in the days before cannabis legalization in New York, that tiny amount fell below the legal threshold for a misdemeanor, according to The New York Times.
But that brief interaction with the police, which resulted in no criminal charges against Harris, spiraled into disastrous consequences for her and her family. Acting on a referral from police, the child welfare system—which some advocates insist is more accurately termed “the family policing system”—removed Harris’s son from her custody and placed him in foster care. The agency investigated her for neglect, and only returned her son on the condition that she agree to random drug screenings and unannounced caseworker visits.
Harris’s case illustrates how even minor interactions with the legal system can have far-reaching impact. Punishment often does not end at conviction and sentencing. Instead, the consequences of a history with the legal system can spill over into people’s lives for years, or decades—long after their cases have been closed or they’ve completed their sentences. These harms are commonly referred to as “collateral consequences”—a euphemism which masks the dire situations that formerly incarcerated people face and that disproportionately impact Black people and other people of color.
Here’s what those “collateral consequences” can look like in practice:
Family separation
As Harris’s case demonstrates, parents who have interactions with the police or legal system—even those that do not lead to a conviction—may be subject to surveillance and the threat of losing their children. “So many parents come to our family defense practice terrified that their kids are going to be taken away because of minor police interactions that, for many other people, wouldn’t involve any additional follow up,” said Alice Fontier, managing director of Neighborhood Defender Service of Harlem, a public defender office which represents parents in family defense cases. “For our clients, mostly Black parents, those same interactions often mean an enormous amount of surveillance by [child welfare agencies], all under threat that their family could be torn apart.”
Once a child welfare agency initiates an investigation, a parent comes under intense scrutiny. With the agency’s advice, courts can mandate
different sorts of requirements, like drug testing, random child welfare visits, and legal appearances. In New York City, the Administration for Children’s Services (ACS) can also initiate “emergency removals” that wrest children from their homes. A finding of neglect, the most common reason child welfare agencies remove children from their homes, can stem from an accusation as innocuous as a messy home or a broken smoke detector.
Because child welfare systems are deeply connected to broader racial injustice in the criminal legal system, enforcement is felt differently across race and class. One study found that California’s child protective agency had investigated half of all Black and Indigenous children born in the state in 1999 by the time they reached adulthood. In New York, an internal ACS study found that Black families were seven times more likely to be investigated and 13 times more likely to have their children removed than white families. ACS initiates
investigations in districts with the highest child poverty rates four times more often than in those with the lowest.
Unemployment and loss of income
Any interaction with the legal system can have disastrous consequences on someone’s ability to earn a living. Incarceration for any duration can lead to missing work and potentially losing employment altogether. Even a misdemeanor conviction can lead to a 16 percent loss of income every year. A prison stint drops someone’s subsequent earnings by an average of 52 percent
annually. Those figures can represent hundreds of thousands of dollars in lost income.
Federal law allows employers to ask applicants about a history of involvement with the criminal legal system, and 95 percent of employers conduct some form of background check. Employment discrimination contributes to the struggle to find work after returning from prison; one study found a 33 percent
joblessness rate over four years post-release among the 50,000 people released from federal prison from 2010 to 2021. A conviction can also bar people from securing certain licenses
necessary to hold some jobs.
Because not having a job also makes someone more likely to be arrested and incarcerated, employment discrimination exposes those it targets to a higher risk of future contact with the system.
Loss of immigration status and deportation
For noncitizens, an arrest can lead to devastating consequences in the immigration system. Not only could they be deported or lose the potential to gain citizenship, but they may be detained in federal custody. Sometimes people accused of crimes are deported before their criminal cases are even resolved.
Congress can take action to address the harmful impact that criminal legal system contact can have for immigrants by passing the New Way Forward Act, which would roll back harmful immigration laws, ending mandatory detention and restoring due process protections. The Fairness to Freedom Act would guarantee government-funded legal representation to anyone who faces deportation and can’t afford it. Having an attorney is critical to helping people defend their rights when facing these life-changing consequences, but while the Sixth Amendment guarantees the right to government-provided counsel in criminal court, there is no such right in immigration court. Immigrants who are represented by lawyers are 3.5 times more likely to be granted bond and up to 10 times more likely to establish their right to remain in the United States.
Housing
Involvement with the criminal legal system—including just an arrest—can jeopardize a household’s tenancy and lead to an eviction, and incarceration of any duration can jeopardize someone’s ability to afford to stay in their home.
After incarceration, a criminal record can create long-term barriers to securing stable housing. Formerly incarcerated people are 10 times more likely than the general public to experience homelessness, and unhoused people are 11 times more likely to be arrested in the future than people with stable housing. But most public housing agencies in the United States have admissions policies that prevent or restrict formerly incarcerated people from living in their housing units—even if that’s where their family lives. Other housing providers also deny people admission because of their record. This can create a cycle of instability that is difficult to break.
There is national momentum to remove these barriers. The Department of Housing and Urban Development recently announced that it will be issuing regulations that remove barriers to public housing. Meanwhile, states like New Jersey have passed legislation to prevent all housing providers, public and private, from discriminating against formerly incarcerated tenants. Vera’s Opening Doors to Housing initiative is working to pass similar legislation in states such as Michigan.
Loss of access to public benefits
Formerly incarcerated people lose public benefits beyond housing access. Since 1996, people convicted of certain drug crimes have been ineligible for the federal programs Temporary Assistance for Needy Families (TANF) and Supplemental Nutrition Assistance Program (SNAP). Many states impose restrictions on their welfare benefits, too.
Medicaid also excludes
currently incarcerated people—a population that is particularly vulnerable to health conditions—from its benefits. The exclusion denies services to people who face high rates of some chronic illnesses, as well as high rates of mental health conditions. The Social Security Administration also suspends benefits to people who are convicted and sentenced to 30 or more consecutive days of incarceration.
Loss of access to higher education
About 70 percent of four-year colleges in the United States require applicants to disclose prior experience with the criminal legal system. The practice is unjust and compounds the economic harms people who have been ensnared in the legal system face. So far, seven states have passed “ban the box” laws that eliminate this requirement.
Long-term surveillance
There are 3.7 million people in the United States on parole or probation, also known as community supervision. Although those systems are sometimes viewed as ways to alleviate mass incarceration, in reality, they feed it. The supervision imposed on people in these systems places onerous constraints on their time, movement, and behavior, making it harder for them to successfully manage reentry after incarceration. Study after study shows that reducing the intense scrutiny that parole and probation place people under would allow jurisdictions to maintain, or perhaps improve,
public safety while generating dramatic cost savings.
That’s in part because parole and probation perpetuate cycles of incarceration: people in these systems are can be re-incarcerated because
of the heightened supervision they endure. They often end up behind bars for technical violations of the rules of their supervision, and they receive disproportionate
punishment for those alleged offenses. Technical violations can be as minor as failing to report a change of address, missing a check-in, or missing curfew.
Black people and other people of color are nearly four times more likely to be subject to probation and parole than white people. Some research also shows that Black and Latino people on parole are significantly more likely to receive a parole violation than white people in the same system.
Loss of civil rights
Nearly five million people are unable to vote because of a prior criminal conviction—a population larger than most states. More than 5.3 percent of adult Black people are disenfranchised because of a felony conviction, compared to 1.5 percent of non-Black adults.
People convicted of felonies are also unable to serve on juries in many states, which compounds existing biases in the legal system.
Revocation of driver’s license
Half of all states punish people who cannot pay fines and fees associated with criminal proceedings by taking away their driver’s licenses. This practice impacts nearly 11 million people
nationwide and severely restricts their ability to secure a job, maintain stable housing, and participate in their community.
Collateral consequences perpetuate cycles of harm
Collateral consequences compound the damage of an interaction with the legal system. These life-altering consequences position the legal system as a source of perpetual punishment that denies individuals and communities the stability they need to thrive.
