SINCE the financial crisis, complaints that corporate wrongdoers suffer light penalties have become routine. One reason is the Department of Justice’s longstanding policy that prosecutors must consider the “collateral consequences” that pursuing a corporation might have on innocent employees, shareholders, pensioners and even the financial system at large.
Amid public outrage, Congress has hauled in prosecutors to ask precisely how often collateral consequences have led them to give the banks a pass. Last spring, when four of the country’s biggest banks pleaded guilty to felonies, raising the issue again, I had a different question. As a reporter covering the criminal justice system’s impact on both the accused and their families, I wondered why we don’t give more consideration to collateral consequences when prosecuting individuals.
We think of punishment as calibrated to the offense, measured out in fines levied and time served. But collateral damage begins for many defendants and their families at the time of arrest, not conviction, and continues long afterward. And it does not spare those with minor charges, including many that do not result in conviction.
My notebooks are filled with stories like that of Markeisha Brown, forced to drop out of school when her boyfriend, who took care of her kids, was held on bail he could not afford, for a case that was later dismissed. I met Ryleigh, 9 months old, whose mother, a McDonald’s worker, served 40 days for failure to pay a $432 fine. I read a handwritten plea for help from Lakayla Evans, a 17-year-old held in an adult jail for more than four months awaiting the resolution of charges that she trespassed on a high school campus.
“We’ve got to start being at least as interested in helping people reform and get their lives back as we are in this concept of permanent punishment,” said Gov. Dannel P. Malloy of Connecticut, who has enacted reforms under an initiative called Second Chance Society. “If somebody makes a stupid mistake when they’re young, why should they be denied a decent job for the rest of their life, be denied housing for the rest of their life and not even be eligible for a student loan?”
“It is the rough equivalent,” he continued, “of cutting off your own nose to spite your face, but society is doing it to itself on a mass basis.”
Collateral damage is not limited to the guilty party. When money for fines or bail is needed, often a relative pays. When prisoners are released, often with no job prospects, no driver’s license, and crippling court debt, their families bear the burden.
“Prosecutors are attuned to collateral consequences in prosecuting a corporation because of the unfair economic consequences that it can have on third parties,” said Jenny Roberts, a law professor at American University who has studied the repercussions of misdemeanor charges. “It’s not exactly the same for individuals — but remember that an individual is part of a family, a community, a society and a country.”
There has been a gradual move toward addressing the issue. More than a dozen states, most recently Georgia, Oregon, Ohio and Virginia, have limited the use of criminal background checks in hiring. Some, including Colorado and Maryland, are allowing more criminal records to be suppressed. But such remedies often remain out of reach for those who need them most — in Tennessee, for example, expunging a conviction costs $450 — and they ignore what many critics say is the root problem: too many arrests and too little due process.
Some collateral consequences make obvious sense, like barring a violent felon from possessing a gun, or a child molester from working as a teacher. In other cases the connection to public safety is less clear. The American Bar Association has compiled a database of 45,000 regulations that prohibit individuals with criminal histories from civic activities like voting and jobs like cutting hair. Oregon is considering a bill on collateral consequences — not to make them less harsh, but simply to list them all in one place.
The word “collateral” means “secondary,” but millions of children affected by incarceration suffer a primary loss. Between 1991 and 2007, the percentage of children with mothers in prison more than doubled, according to federal data — and that does not count the many more mothers who spent time in jail. It doesn’t take statistics to grasp how damaging separation can be, but even so, the data shows these children have more depression, aggression, delinquency, absenteeism, asthma and migraines. As adults, their earnings are reduced and their chances of homelessness are higher. The problem is so pervasive that “Sesame Street” produced a series of videos to help children cope with a parent’s incarceration.
Collateral effects can rear up years later, said Patricia Warth, an advocate for indigent defense in New York. “I can’t tell you how many times I’ve gotten a call from someone who says, ‘I’m a parent; my daughter’s 10 years old; she’s in the school ballet, but the school says I can’t volunteer because I have a conviction from 15 years ago,’ ” Ms. Warth said.
Some argue that offenders should weigh the harm to their families before breaking the law rather than expecting prosecutors to consider it. But that does not make a child any guiltier than a corporate shareholder. True, the downfall of a low-income parent is not going to bring down the world financial system. But consider the aggregate: Almost one in three Americans has a rap sheet of some kind, according to a 2001 federal estimate, and even an arrest that does not result in conviction can reduce the chances of finding work or an apartment. The harm disproportionately affects African-Americans, who are routinely stopped more, arrested more and receive higher bails and longer sentences.
Then there is the collateral damage to public safety. Study after study has shown that punishment can backfire, increasing the chances that low-risk offenders will commit new crimes. One study by the Arnold Foundation of 150,000 pretrial defendants — who are legally innocent — found that even a brief stay in jail increased their chances of rearrest, most likely because it disrupted the very factors, such as stable housing and employment, that made them lower risk in the first place.
At a Pennsylvania legislative hearing in June, Ms. Roberts of American University raised an economic argument for more forgiving policies. She pointed out that neighboring Maryland was about to allow many misdemeanor convictions to be suppressed, giving that state’s workers an edge. “Other countries incarcerate far less,” Ms. Roberts said. “When we think about who’s going to be able to get jobs and who’s going to be able to work, I think we better think about that in light of the competition we’re going to have in a global economy, and every state needs to think about it in light of what’s going on across the border.”
Punishment is supposed to be proportional to the severity of the offense, but collateral consequences are often unmoored from such considerations, obscuring their true cost. “We’re just beginning to acknowledge the extent to which we’re not just punishing individuals, we’re punishing entire communities,” Ms. Warth said. “Sometimes we become so harsh that we’re punishing ourselves.”
