Few would deny the logic of restricting an ex-offender convicted of child molestation from ever working in a day care center. The potential harm avoided far outweighs the limitation on an individual's freedom.

But when collateral sanctions are applied indiscriminately and block an ex-offender's ability to re-enter society as a law-abiding citizen, then the grounds for these restrictions come into question.

Disqualifications for ex-offenders vary from state to state and range from the loss of voting rights to ineligibility for pubic housing.

"It's huge problem. Most people who have criminal justice records are low income [residents] and private housing is very expensive in this country. If you have a criminal record you can be barred from public housing [but] if you don't have a stable residence it's hard to get your life back together," said Jamie Fellner, Director of the U.S. Division for Human Rights Watch.

No Second Chance, a Human Rights Watch report published last year chronicles the experiences of many ex-offenders who have been denied public housing because of draconian regulations imposed by both the federal and local governments around public housing eligibility

The report's authors identified one story of an ex-offender in Pennsylvania who was denied public housing for herself and her two children because of a previous shoplifting conviction in which she stole a tube of ChapStick from the local drug store.

Fellner said the injustice in the application of these rules and regulations is glaring.

"The federal regulations give the local housing authorities [the ability] to create their own. Unfortunately, many have created sweeping exclusions in the type [of crime] and length of time [they apply] and, in some cases, even if they are arrested and never prosecuted," she said. "You can be excluded from public housing because you forged a check. We're not talking about just excluding people for violent conduct."

Fellner said these restrictions, which many offenders don't even know about until after they are released, not only impact the ex-offender's ability to get back on their feet, but also their ability to take care of their children.

"Many ex-offenders are women with children and if they are denied public housing, then where are they supposed to go? There are ripple effects for society and it's not necessary," she added.

Joan Petersilia, Professor of Criminology, Law and Society at University of California, Irvine and an advisor to the California Youth and Adult Corrections Agency, has written about re-entry issues and says that collateral sanctions can be problematic in many ways, but housing and employment are areas that are critical for ex-offenders.

"The restrictions have been increasing and increasing. There are fewer jobs for which they are eligible," said Petersilia.

She added that licensing requirements in many states have changed to exclude certain offenders from the types of jobs that they would typically access.

"These are jobs that, in the past, they could qualify for  -- a nail technician, carpenter, trades jobs and many of the requirements exclude as a blanket policy those with  conviction records," she said.

Because of the unfairness of many of these sanctions, several efforts have emerged to increase the dialogue about these disqualifications and how to implement change so that true re-entry and reduced recidivism can be achieved.

Standards and Model Statutes

The American Bar Association over the last several years has paid special attention to collateral sanctions both in its Justice Kennedy Commission Report, which was issued in 2004, and in the creation of standards about collateral sanctions, which were approved in 2003.

According to attorney Margaret Love, Chair of the ABA's Criminal Justice Standards Committee's Task Force on Collateral Sanctions, member of the Justice Kennedy Commission and a former U.S. Pardon Attorney for the Department of Justice, many in the criminal justice system are starting to realize that collateral sanctions are a problem.

"These disqualifications, what we really call sanctions - it's a new way of looking at it. It has long been thought of as civil disability, but if something happens to you automatically, then your legal status has changed. That is part of the sanction of the crime and, as a result, you have to be notified; that's only fair," said Love.

As a legal matter, Love said that the legal system could be impacted if offenders pleading guilty are not notified about the sanctions they may face in the future.

"If someone pleads guilty in ignorance of a standard - and would have fought the charges otherwise -- then you let them withdraw the plea. Judges are worried about this," she said.

Beyond these legal issues, the ABA felt the need to attempt to reform these regulations so that they are fairly applied to those who pose a specific and related public safety risk and so that offenders clearly understand the challenges they will face after release.

The standards that have been created by the ABA address the fact that collateral sanctions are not typically collected on one single system, that they should be accounted for in sentencing and that they should be applied based on a substantial relationship between a person's conduct and the specific duty or benefit in question. In addition, the standards were written to focus attention on the impact collateral sanctions have on a person's ability to re-enter society and resume normal, every-day activities.

Examples of restrictions that the ABA states are not justified under the standards are denial of student aid, loss of a driver's license upon conviction of a drug offense and absolute barriers to employment or licensure.

"There are also a lot of states that have always required criminal records checks and you can't qualify for education, child care, elder care professions - but those are very good entry level jobs. Also there are a lot of transportation jobs that are controlled by Transportation Security Administration (TSA) --  truck driving, airport employees -- that have new regulations that require criminal records checks," said Love.

Included in the ABA's standards is a suggestion that legislatures collect, set out or reference all collateral sanctions in one chapter of the criminal code and identify with "particularity" the type, severity and duration of the sanctions and to what offenses they apply. The standards also state that a legislature should only impose a sanction if it can justify that the sanction matches the conduct of that offense; that the court should ensure that the defendant has been informed of collateral sanctions before accepting a plea; that the legislature should authorize the sentencing court to take into account applicable collateral sanctions in determining the overall sentence; and that the legislature establish a process by which a convicted person may obtain review or an order of relief from any discretionary disqualification.

Although states are under no obligation to follow the ABA's standards, they are considered a general standard of practice and specific ABA standards have been referred to recently by the U.S. Supreme Court as such areas as adequate assistance of counsel and death penalty representation.

In addition, last year the ABA's Justice Kennedy Commission report urged states and the federal government to remove unwarranted legal barriers to re-entry and suggested many of the same reforms as the new ABA standards.

In its report, the Commission recommended that jurisdictions "should identify the legal barriers to re-entry, including both collateral sanctions imposed upon conviction and discretionary disqualification of convicted persons from otherwise generally available opportunities and benefits." In eliminating these barriers, the commission suggested that educational programs be developed not only for public officials and employers, but also for the private sector.

The ABA's standards and recommendations were also considered as part of a proposed "Act" that will soon be considered by the National Conference of Commissioners of Uniform State Laws at its annual meeting this summer. It is possible that out of the NCCUSL conference discussion about collateral sanctions some new model code or statute would be created for states to follow.

In the interim, state officials, including corrections agencies, should become educated about these barriers to re-entry, Love said.

"They have to become familiar with these. There are some states that require the DOC to notify people about how to get their licenses back. Parole and probation are the ones that it's really important for. They are ones that are guiding re-entry [in many cases]. But everyone in the system, the prosecutors, the defense, prison people and community supervision [need to be involved]," Love said.

In Ohio, corrections officials are paying attention to the effect of collateral sanctions and hope that in the near future some of them will be changed.

Ohio Considers Changes

A corrections re-entry program can only do so much to prepare offenders a smooth return to the community if state collateral sanctions serve as a roadblock for those who want to turn their lives around.

Ohio Department of Rehabilitation and Correction Director Reginald Wilkinson would like to see many of these barriers lifted and is making an effort to push in that direction.

"In some cases they are warranted. [But] in other cases there is no nexus between the reason for incarceration and their future employment. It's a travesty and an embarrassment," said Wilkinson.

Wilkinson said in many ways collateral sanctions are a hypocrisy because states urge offenders to work hard and keep their noses clean after release, but then it offers hurdles rather than open doors.

"I do believe corrections agencies ought to be advocates to make public officials aware  about the impact. It can be a part of re-entry [but] it's a bigger issue with public officials. The inmates can't do anything about it. We tell them what they are eligible for. If someone has ambitions to do something where there is a barrier, we'll let them know that," he said.

Wilkinson advocates for states to allow for discretionary disqualifications rather than blanket prohibitions about the types of jobs ex-offenders can hold, the kinds of housing they are eligible for and assistance they can receive from the government.

He said some states, such as Delaware, have enacted laws that prohibit the outright disqualification of all ex-offenders from certain types of employment. Ohio corrections officials believe this is legislation worth exploring further.

"In Ohio we're trying to review the range of collateral sanctions and look carefully at what is the sensible balance that we need to have defined in statute that mitigates [unfair exclusions]. If here is a reasonable nexus - such as a convicted sex offender and employment in a day care center -- but if it is a barrier without a nexus, that's what we are concerned with," said Ed Ryan, Deputy Director, Office of Policy and Offender Reentry for the Ohio DRC.

Ryan said corrections officials are examining the practices of others states to compare where Ohio sits in terms of disqualifications and potentially make recommendations to the legislature about changes to the laws in Ohio.

"Ohio is fairly moderate in terms of the range of collateral sanctions relative to other states; some states are much more onerous than Ohio," Ryan said.

Offenders in Ohio, for example, regain their ability to vote after release while in some states, offenders do not.

But, other collateral sanctions such as denial of student loans to certain drug offenders are controlled on the federal level.

Some federal legislators have realized this. In fact, Massachusetts Congressman Barney Frank introduced legislation earlier this spring to repeal those restrictions and the bill is now in committee.

"The dilemma folks have is often when you enter a plea of guilty, you don't know that there is a wide range of sanctions that may be imposed on you," said Ryan.

Beyond the legal limitations for ex-offenders are the unspoken wage penalties that ex-offenders experience when landing a job and the general stigma society places on ex-offenders.

What it will take to rectify this situation for ex-offenders and create a climate that welcomes success after release, according to Fellner of HRW, is for the federal, state and local legislators - as well as society -- to truly embrace the idea of re-entry.

"A lot of this has been promoted and fostered not just by a general tough-on-crime philosophy but more specifically on the drug war," sad Fellner. "The U.S. is still talking out of two sides of its mouth. On the one hand, it talks about rehabilitation and on the other hand, there are these barriers."

But as more research is conducted and the barriers are made more visible, advocates hope that change will follow.

Resources:

HRW -  http://www.hrw.org

ABA CJ Section - http://www.abanet.org/crimjust/home.html

Open Society After Prison Initiative -  http://www.soros.org/initiatives/justice/focus_areas/after_prison

Joan Petersilia - http://www.seweb.uci.edu/users/joan/

Life on the Outside: The Prison Odyssey of Elaine Bartlett By Jennifer Gonnerman
Life on the Outside tells the story of Elaine Bartlett, who spent sixteen years behind bars for selling cocaine - a first offense - under New York's controversial Rockefeller drug laws. http://search.barnesandnoble.com/bookSearch/isbnInquiry.asp?r=1&isbn=0374186871

When Prisoners Come Home: Parole and Prisoner Reentry (Studies in Crime and Public Policy) By Joan Petersilia
http://www.amazon.com/exec/obidos/ASIN/019516086X/qid%3D1044985345/sr%3D11-1/ref%3Dsr%5F11%5F1/002-8436846-2618428