Today a criminal freed from prison has scarcely more rights, and arguably less respect, than a freed slave or a black person living “free” in Mississippi at the height of Jim Crow. Those released from prison on parole can be stopped and searched by the police for any reason—or no reason at all—and returned to prison for the most minor of infractions, such as failing to attend a meeting with a parole officer. Even when released from the system’s formal control, the stigma of criminality lingers. Police supervision, monitoring, and harassment are facts of life not only for all those labeled criminals, but for all those who “look like” criminals. Lynch mobs may be long gone, but the threat of police violence is ever present. A wrong move or sudden gesture could mean massive retaliation by the police. A wallet could be mistaken for a gun. The “whites only” signs may gone, but new signs have gone up—notices placed in job applications, rental agreements, loan applications, forms for welfare benefits, school applications, and petitions for licenses, informing the general public that “felons” are not wanted here. A criminal record today authorizes precisely the forms of discrimination we supposedly left behind—discrimination in employment, housing, education, public benefits, and jury service. Those labeled criminals can even be denied the right to vote.
Criminals, it turns out, are the one social group in America we have permission to hate. In “colorblind” America, criminals are the new whipping boys. They are entitled to no respect and little moral concern. Like the “coloreds” in the years following emancipation, criminals today are deemed a characterless and purposeless people, deserving of our collective scorn and contempt. When we say someone was “treated like a criminal,” what we mean to say is that he or she was treated as less than human, like a shameful creature. Hundreds of years ago, our nation put those considered less than human in shackles; less than one hundred years ago, we relegated them to the other side of town; today we put them in cages. Once released, they find that a heavy and cruel hand has been laid upon them.
Brave New World
One might imagine that a criminal defendant, when brought before the judge—or when meeting with his attorney for the first time—would be told of the consequences of a guilty plea or conviction. He would be told that, if he pleads guilty to a felony, he will be deemed “unfit” for jury service and automatically excluded from juries for the rest of his life.2 He would also be told that he could be denied the right to vote. In a country that preaches the virtues of democracy, one could reasonably assume that being stripped of basic political rights would be treated by judges and court personnel as a serious matter indeed. Not so. When a defendant pleads guilty to a minor drug offense, nobody will likely tell him that he may be permanently forfeiting his right to vote as well as his right to serve on a jury—two of the most fundamental rights in any modern democracy.
He will also be told little or nothing about the parallel universe he is about to enter, one that promises a form of punishment that is often more difficult to bear than prison time: a lifetime of shame, contempt, scorn, and exclusion. In this hidden world, discrimination is perfectly legal. As Jeremy Travis has observed, “In this brave new world, punishment for the original offense is no longer enough; one’s debt to society is never paid.”3 Other commentators liken the prison label to “the mark of Cain” and characterize the perpetual nature of the sanction as “internal exile.”4 Myriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy. These restrictions amount to a form of “civic death” and send the unequivocal message that “they” are no longer part of “us.”
Once labeled a felon, the badge of inferiority remains with you for the rest of your life, relegating you to a permanent second-class status. Consider, for example, the harsh reality facing a first-time offender who pleads guilty to felony possession of marijuana. Even if the defendant manages to avoid prison time by accepting a “generous” plea deal, he may discover that the punishment that awaits him outside the courthouse doors is far more severe and debilitating than what he might have encountered in prison. A task force of the American Bar Association described the bleak reality facing a petty drug offender this way:[The] offender may be sentenced to a term of probation, community service, and court costs. Unbeknownst to this offender, and perhaps any other actor in the sentencing process, as a result of his conviction he may be ineligible for many federally-funded health and welfare benefits, food stamps, public housing, and federal educational assistance. His driver’s license may be automatically suspended, and he may no longer qualify for certain employment and professional licenses. If he is convicted of another crime he may be subject to imprisonment as a repeat offender. He will not be permitted to enlist in the military, or possess a firearm, or obtain a federal security clearance. If a citizen, he may lose the right to vote; if not, he becomes immediately deportable.5
Despite the brutal, debilitating impact of these “collateral consequences” on ex-offenders’ lives, courts have generally declined to find that such sanctions are actually “punishment” for constitutional purposes. As a result, judges are not required to inform criminal defendants of some of the most important rights they are forfeiting when they plead guilty to a felony. In fact, judges, prosecutors, and defense attorneys may not even be aware of the full range of collateral consequences for a felony conviction. Yet these civil penalties, although not considered punishment by our courts, often make it virtually impossible for ex-offenders to integrate into the mainstream society and economy upon release. Far from collateral, these sanctions can be the most damaging and painful aspect of a criminal conviction. Collectively, these sanctions send the strong message that, now that you have been labeled, you are no longer wanted. You are no longer part of “us,” the deserving. Unable to drive, get a job, find housing, or even qualify for public benefits, many ex-offenders lose their children, their dignity, and eventually their freedom—landing back in jail after failing to play by rules that seem hopelessly stacked against them.
The churning of African Americans in and out of prisons today is hardly surprising, given the strong message that is sent to them that they are not wanted in mainstream society. In Frederick Douglass’s words, “Men are so constituted that they derive their conviction of their own possibilities largely from the estimate formed of them by others. If nothing is expected of a people, that people will find it difficult to contradict that expectation.”6 More than a hundred years later, a similar argument was made by an ex-offender contemplating her eventual release into a society that had constructed a brand-new legal regime designed to keep her locked out, fifty years after the demise of Jim Crow. “Right now I’m in prison,” she said. “Like society kicked me out. They’re like, ‘Okay, the criminal element, We don’t want them in society, we’re going to put them in prisons.’ Okay, but once I get out, then what do you do? What do you do with all these millions of people that have been in prison and been released? I mean, do you accept them back? Or do you keep them as outcasts? And if you keep them as outcasts, how do you expect them to act?”7
Remarkably, the overwhelming majority of ex-offenders struggle mightily to play by the rules and to succeed in a society seemingly hell-bent on excluding them. Like their forbears, they do their best to survive, even thrive—against all odds.
No Place Like Home
The first question on the minds of many released prisoners as they take their first steps outside the prison gates is where they will sleep that night. Some prisoners have families eagerly awaiting them—families who are willing to let their newly released relative sleep on the couch, floor, or extra bed indefinitely. Most, however, desperately need to find a place to live—if not immediately, at least soon. After several days, weeks, or months of sleeping in your aunt’s basement or on a friend’s couch, a time comes when you are expected to fend for yourself. Figuring out how, exactly, to do that is no easy task, however, when your felony record operates to bar
you from any public housing assistance. As one young man with a felony conviction explained in exasperation, “I asked for an application for Section 8. They asked me if I had a felony. I said, ‘yes.’ . . . They said, ‘Well, then, this application isn’t for you.’”8
This young man had just hit his first brick wall coming out of prison. Anyone convicted of a felony—any felony—is automatically ineligible for public housing assistance for at least five years. Even after the five-year period has expired, those labeled “criminals” face a lifetime of discrimination in public and private housing markets. Housing discrimination against former felons (as well as suspected “criminals”) is perfectly legal. During Jim Crow, it was legal to deny housing on the basis of race, through restrictive covenants and other exclusionary practices. Today, discrimination against felons, criminal suspects, and their families is routine among public and private landlords alike. Rather than racially restrictive covenants, we have restrictive lease agreements, barring the new “undesirables.”
The Anti-Drug Abuse Act of 1988, passed by Congress as part of the War on Drugs, called for strict lease enforcement and eviction of public housing tenants who engage in criminal activity. The Act granted public housing agencies the authority to use leases to evict any tenant, household member, or guest engaged in any criminal activity on or near public housing premises. In 1996, President Clinton, in an effort to bolster his “tough on crime” credentials, declared that public housing agencies should exercise no discretion when a tenant or guest engages in criminal activity, particularly if it is drug-related. In his 1996 State of the Union address, he proposed “One Strike and You’re Out” legislation, which strengthened eviction rules and strongly urged that drug offenders be automatically excluded from public housing based on their criminal records. He later declared, “If you break the law, you no longer have a home in public housing, one strike and you’re out. That should be the law everywhere in America.”9 In its final form, the act, together with the Quality Housing and Work Responsibility Act of 1998, not only authorized public housing agencies to exclude automatically (and evict) drug offenders and other felons; it also allowed agencies to bar applicants believed to be using illegal drugs or abusing alcohol—whether or not they had been convicted of a crime. These decisions can be appealed, but appeals are rarely successful without an attorney—a luxury most public housing applicants cannot afford.
In response to the new legislation and prodding by President Clinton, the Housing and Urban Development Department (HUD) developed guidelines to press public housing agencies to “evict drug dealers and other criminals” and “screen tenants for criminal records.”10 HUD’s “One Strike Guide” calls on housing agencies to “take full advantage of their authority to use stringent screening and eviction procedures.” It also encourages housing authorities not only to screen all applicants’ criminal records, but to develop their own exclusion criteria. The guide notes that agency ratings and funding are tied to whether they are “adopting and implementing effective applicant screening,” a clear signal that agencies may be penalized for not cleaning house.11
Throughout the United States, public housing agencies have adopted exclusionary policies that deny eligibility to applicants even with the most minor criminal backgrounds. The crackdown inspired by the War on Drugs has resulted in unprecedented punitiveness, denying poor people access to public housing for virtually any crime. “Just about any offense will do, even if it bears scant relation to the likelihood the applicant will be a good tenant.”12
The consequences for real families can be devastating. Without housing, people can lose their children. Take for example, the forty-two-year-old African American man who applied for public housing for himself and his three children who were living with him at the time.13 He was denied because of an earlier drug possession charge for which he had pleaded guilty and served thirty days in jail. Of course, the odds that he would have been convicted of drug possession would have been extremely low if he were white. But as an African American, he was not only targeted by the drug war but then denied access to housing because of his conviction. Since being denied housing, he has lost custody of his children and is homeless. Many nights he sleeps outside on the streets. Stiff punishment, indeed, for a minor drug offense—especially for his children, who are innocent of any crime.
Remarkably, under current law, an actual conviction or finding of a formal violation is not necessary to trigger exclusion. Public housing officials are free to reject applicants simply on the basis of arrests, regardless of whether they result in convictions or fines. Because African Americans and Latinos are targeted by police in the War on Drugs, it is far more likely that they will be arrested for minor, nonviolent crimes. Accordingly, HUD policies excluding people from housing assistance based on arrests as well as convictions guarantee highly discriminatory results.
Perhaps no aspect of the HUD regulatory regime has been as controversial, however, as the “no-fault” clause contained in every public housing lease. Public housing tenants are required to do far more than simply pay their rent on time, keep the noise down, and make sure their homes are kept in good condition. The “One Strike and You’re Out” policy requires every public housing lease to stipulate that if the tenant, or any member of the tenant’s household, or any guest of the tenant, engages in any drug-related or other criminal activity on or off the premises, the tenancy will be terminated. Prior to the adoption of this policy, it was generally understood that a tenant could not be evicted unless he or she had some knowledge of or participation in alleged criminal activity. Accordingly, in Rucker v. Davis, the Ninth Circuit Court of Appeals struck down the “no-fault” clause, on the ground that the eviction of innocent tenants—who were not accused or even aware of the alleged criminal activity—was inconsistent with the legislative scheme.14
The U.S. Supreme Court reversed.15 The Court ruled in 2002 that, under federal law, public housing tenants can be evicted regardless of whether they had knowledge of or participated in alleged criminal activity. According to the Court, William Lee and Barbara Hill were rightfully evicted after their grandsons were charged with smoking marijuana in a parking lot near their apartments. Herman Walker was properly evicted as well, after police found cocaine on his caregiver. And Perlie Rucker was rightly evicted following the arrest of her daughter for possession of cocaine a few blocks from home. The Court ruled these tenants could be held civilly liable for the nonviolent behavior of their children and caregivers. They could be tossed out of public housing due to no fault of their own.
In the abstract, policies barring or evicting people who are somehow associated with criminal activity may seem like a reasonable approach to dealing with crime in public housing, particularly when crime has gotten out of control. Desperate times call for desperate measures, it is often said. The problem, however, is twofold: These vulnerable families have nowhere to go, and the impact is inevitably discriminatory. People who are not poor and who are not dependent upon public assistance for housing need not fear that, if their son, daughter, caregiver, or relative is caught with some marijuana at school or shoplifts from a drugstore, they will find themselves suddenly evicted—homeless. But for countless poor people—particularly racial minorities who disproportionately rely on public assistance—that possibility looms large. As a result, many families are reluctant to allow their relatives—particularly those who are recently released from prison—to stay with them, even temporarily.
No one knows exactly how many people are excluded from public housing because of criminal records, or even the number of people with criminal records who would be ineligible if they applied. There is no national data available. We do know, however, that there are several million ex-felons in the United States and that under existing rules everyone convicted of a felony is automatically ineligible for a minimum of five years. We also know there are tens of millions of Americans who have been arrested but never convicted of any offense, or convicted only of minor misdemean
ors, and they too are routinely excluded from public housing. What happens to these people denied housing assistance or evicted from their homes? Where do they go? Thousands of them become homeless. A study conducted by the McCormick Institute of Public Affairs found that nearly a quarter of guests in homeless shelters had been incarcerated within the previous year—people who were unable to find somewhere to live after release from prison walls.
Prisoners returning “home” are typically the poorest of the poor, lacking the ability to pay for private housing and routinely denied public housing assistance—the type of assistance which could provide some much-needed stability in their lives. For them, “going home” is more a figure of speech than a realistic option. More than a half million people are released from prison each year, and for many, finding a new home appears next to impossible, not just in the short term, but for the rest of their lives. As a forty-one-year-old African American mother remarked after being denied housing because of a single arrest four years prior to her application, “I’m trying to do the right thing; I deserve a chance. Even if I was the worst criminal, I deserve a chance. Everybody deserves a chance.”16
The New Jim Crow: Mass Incarceration in the Age of Colorblindness Page 19