Examining So-Called Invisible Punishments

Invisible sanctions or punishments are a notion that I read about in a book by a former director of the National Institute of Justice, Jeremy Travis. In his book about the challenges facing prisoners re-entering society and all of the implications of various criminal justice policies, he describes these invisible sanctions as any number of revocation of civil rights and/or additional conditions placed upon former prisoners. Sex offender registration falls into this category, according to Travis. The basic idea being that these are punishments or controls placed on individuals beyond their typical sentence and which operate largely through unknown or unfamiliar channels. The question posed to our authors today is whether or not policies which revoke various civil or social rights or privileges on the basis of prior conviction is fair, and if not what should the alternatives look like?

Eric

As far as I’m concerned, the argument against these types of additional sanctions is that we can hardly expect individuals to successfully reintegrate into society while simultaneously stigmatizing and excluding them. The counter usually being that these are policies which revoke privileges rather than rights, although a public safety aspect is likely to come into play as well depending on the case.

As usual, I don’t think this is a black and white issue. Consider for a moment that a felony conviction prevents one from receiving federal financial aid for education; so if an individual receives a conviction on a drug offense, for instance, and serves all other aspects of their sentence they may still be denied from pursuing educational aspirations because of a past mistake. That doesn’t seem fair. But what about a fellow who robs a store at gun point? Should he be allowed to purchase firearms after completion of his sentence? I would say no in this case.

I suspect it comes down to one’s perception regarding what is a right and what is a privilege. I know it’s technically a constitutional right to own a gun, but I view gun ownership as more of a privilege. Sorry, but using a gun in a violent crime should disqualify you from owning another. Voting, on the other hand, is something I think should be reinstated to all persons assuming they satisfactorily complete all aspects of their sentence. The right to vote to me is just too valuable an aspect of American democracy; it is what gives one that ultimate feeling of citizenship and may even build or restore trust in the political system and other civil authorities.

If forced to generalize, I would say that policies such as this are not fair. In fact, I would have to agree with Travis who postulates in his book that a more just approach would be to consider each case on an individual basis, tailoring additional/invisible punishments to their crimes; no guns for violent offenders seems reasonable. However, no federal financial aid for any felony conviction seems overly harsh, unless their crimes have shown them to be unsuitable borrowers. I don’t think there is anything wrong with trying to take a proactive approach to prevent future violations of the law, but many of the sanctions go beyond this, such as taking away the right to vote.

Troy

After a criminal exits prison several sanctions and consequences follow them for years affecting things such as gun ownership, finding employment, and civic involvement. Revoking certain rights, I believe, is justified. However, the context and the manner in which we implement such policies are important.

Gun ownership for criminals, in my view, is the easiest area to judge. I should begin my noting that I am a strong supporter of the second amendment and grew up as one of many in a large hunting family. However, if a person proves to be a danger to society, there is a clear foundation on law, reason, and morals to take reasonable steps to limit the likelihood that individual will again become a serious threat to society. Violent criminals should have gun rights permanently revoked. As well, many in prison for more minor crimes become “educated criminals” during their prison stay, often becoming more serious criminals (which points to a need to focus the criminal justice system on rehabilitation rather than retribution, but that’s an issue for another day). This group should have gun rights revoked for a certain period (5 years? 10 years?) during which they must remain crime-free.

Another problem criminals face when leaving prison is finding a job. For nearly every job available, disclosing past criminal activity is required. While I believe this is good and necessary, there should be some stipulations placed on how the information may be used. For example, statutes that require employers not to discriminate against former criminals unless the crime committed is a direct and necessary consideration in relation to the job they are applying for. For example, a drug charge should not be held against an individual applying to be a salesman at JCPenney, though charges ranging from violent crimes to theft should be taken into account as they may imply potential future conduct that will harm the company or coworkers. In general, limitations on employment discrimination and opening more job opportunities to criminals will ensure a greater likelihood of becoming a productive member of society and reduce the likelihood the individual returns to crime. The alternative is an increased likelihood of crime and poverty.

The last consequence I will discuss is restricted civic engagement from running for office to voting rights. It’s understandable that, while in prison, people should not be allowed to vote. Putting aside the limitations to conducting an honest vote in a prison setting, an individual who commits a crime has knowingly ceded their voting rights while being separated from society. I would argue criminals should not be allowed to run for any office while in prison either, though some occasionally do. However, when an individual leaves prison, they have served their time. Unlike the issue of gun rights, voting rights of an ex-criminal poses no public threat. When an ex-criminal does their time and reenters society, civic rights should be restored so the individual has the opportunity to participate in society. There is slow, but increasing, movement toward reinstating prisoner rights after a criminal has paid their debt to society. This is partially because minorities are disproportionately the target of the criminal justice system and therefore are disproportionately losing their right to vote. This has led some courts to rule that barring criminals from voting is a violation of the Voting Rights Act.

Generally speaking, where there is no public threat involved, rights for criminals should be restored so they can become reengaged in society. Social and economic marginalization will do nothing but continue, or deepen, the burdens crime and criminals pose for society.

Douglas

This is a topic that interests me greatly, for both political and personal reasons.  It interests me so much, in fact, that I did my entire senior seminar project about this topic in the last semester of my undergraduate career.  Titled “Democratic Imprisonment: Why A Felon’s Vote Should Not Be On Lockdown”, I explored the effects that felon voting bans (and by extension, other forms of social exclusion imposed by the state) had on rates of recidivism.  The findings were not surprising to me, but they could provide some insight into what we are missing.

The literature on this topic paints a complicated picture of factors that play into whether a felon will re-offend when released from incarceration.  If a felon has a good job history, they are more likely to find work and less likely to re-offend.  If a felon has a child, the responsibility of care for another human being can also reduce the chances that one re-offends.  If a felon has maintained a strong network outside of prison, this also reduces the chances that a felon will abscond from parole or probation.  Even something as simple as the neighborhood matters: a study at Florida State University showed that Black inmates that were released into areas where racial disparity were high went on to abscond more than inmates who were released into other areas.  Essentially, what I am getting at is that there are many factors that go into a felon’s ability to reintegrate into society and be a productive citizen.

However, the one thing that all of the literature seizes upon is how unhelpful (at best; deleterious at worst) the laws that mandate social exclusion for felons are.  In Virginia, for example, a felon’s voting rights are banned for life, and the only way that you can get the ability to vote again is through an executive order issued by the Governor or a piece of legislation passed by the General Assembly.  This is not the only thing that is placed out of the societal reach of felons: felons are not allowed to serve on juries, own weapons, and also have diminished job opportunities due to the fact that they must report their convictions to potential employers, who almost always disregard the applicant after obtaining this information.

Through running statistical analysis on SPSS on nearly 39,000 inmates who were released into fifteen different states (which took an immense amount of time to recode, lemme tell you), I was able to find that these laws had a statistically significant effect on whether a felon re-offended after release, even more so than gender and education level.  This finding shows that when you exclude people from society wholesale, we should not be surprised when they little or no success staying clean.  We should allow felons to have access to some rights upon release, such as voting and the ability to serve on juries.  While gun ownership is something that should probably be reserved for a felon that has proven that he can stay on the right side of the law, this should also be granted.  We should also make it a punishable felony for an employer to deny someone work solely based off their criminal background.  Simply because one has made a mistake does not mean that they are worth giving up on, and this ideal should be enforced in our statutes.

This is a multifaceted problem, but we can begin to turn the tide against recidivism with some very simple solutions.

Craig

To help me decide whether or not felons should have the ability to vote led me to some research on the issue. Missouri is one of 18 states that have restricted voting rights if someone is convicted of a felony and is (1) incarcerated (2) on parole (2) (on probation). Twelve states have stricter laws, many lose the ability to vote permanently.

If someone is incarcerated with a conviction of a felony charge, they should lose their right to vote. A felony charge ranges from a class D which is purposefully passing a bad check or fraud to class A which includes first degree robbery, first and second degree murder.

When incarcerated, a felon is going to be isolated from society and as a part of their punishment, should not be allowed to vote. This seems like common sense: they won’t be an educated voter, they won’t be a tax-paying citizen, and they won’t be contributing to society in any way. Not allowing a felon to vote while in jail should be considered part of their punishment.

However, if someone is on probation or parole, I believe they should have the benefit of the doubt. According to Justice Fellowship 40% of people on parole are sent back to prison. Because they are working, tax paying citizens, I believe they deserve to have the ability to vote.

Many arguments in favor of banning a felon’s voting rights include trusting them and a deterrence. Briefly, I want to address these two things. Trust shouldn’t even be an argument in my opinion. Our country’s founders didn’t trust the “average” man. As a citizen of our society, if a felon pays taxes and is a part of American society, they deserve to have a say in their government.

I think it’s laughable to say that taking away the right to vote will serve as a “deterrent” for someone to commit a felony. Honestly, if someone commits a felony, I have a feeling that temporarily losing their voting privileges if they are convicted is the least of their worries.

In the United States, with voter turnout ranging from 20% in local elections to 60% in national elections, as a society we need to focus on increasing the voter turnout overall and encouraging all citizens to vote and vote often.

Missouri and the 17 other states should consider loosening their voting felon laws to align with the states of Pennsylvania, Utah, Montana, Michigan, and Ohio, and just ban felons currently incarcerated from voting.

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4 Responses to Examining So-Called Invisible Punishments

  1. Ashley Rodriquez says:

    I believe that once someone has committed a crime that is severe enough, that their rights should be limited. Granted you get the occasional “innocent” person who is wrongfully accused, or even sentenced, but what about the person who rapes young kids and has “the right” to face their accuser? These are the people who do not deserve the rights of others when they took rights given to people just for being human beings. The right to vote is another one that I feel they could afford to lose, maybe its a right they can get back, but if they are in jail what good does it do to let the “criminal minds” vote?

    • Douglas says:

      What is a crime that is considered severe enough, though? My problem with that is the pure subjectivity of the judgment, and if we are calling our incarceration services the “correctional system”, then let’s start correcting negative behaviors, and attempting to release productive citizens back out into society. Simply taking away rights from people and making them feel like second-class citizens has been proven not to work by any objective standard, and there are better ways to go about the treatment of felons then walling them off from the rest of society.

      While I think that prisoners should be allowed to vote, I understand that my views on this issue are not exactly inside the mainstream (except in Massachusetts and Vermont, where they have polling places for inmates inside the prisons). I am for the gaining of most privileges (voting, juries, etc.) immediately after release from an institution. Gun privileges should be held off until we can establish a track record of staying clean, but these should be given back to the felon as well.

  2. Jennifer says:

    Troy – you used the example that a person who has had a felony drug charge should not be prevented employment at a clothing retail store such as JcPenney. I’m wondering what your thoughts are on the link between drug use/abuse and likelihood to use theft to support the habit, and what impact you believe this should have on the topic.

    Douglas – You stated that it should be a punishable felony for a company to deny employment exclusively because of a prior felony. Could you elaborate on such situations as: 1) convicted of narcotics abuse/sales and working in a pharmacy/hospital. 2) convicted of pornography or sexual abuse of children and working in a school/daycare or any other place children are commonly present. 3) Convicted of sexual crimes or elder abuse and working in a nursing home or senior center. 4) Convicted of robbery/burglary and working in any position that has to handle large amounts of cash. 5) Convicted of identify theft/fraud or any financial fraud and working at a bank, hospital/clinic or any other place where large amounts of personal information are both stored and retrieved often.

    Also – Sexual offender registration was mentioned in the introduction to this weeks collaboblog, but never discussed by any of the contributors. There is a wide variety of of sexual offenders from pornography to rape (a violent crime regardless of the method of coercion). I’m wondering if you all agree with the views of Jeremy Travis, disagree, or have beliefs somewhere in between.

    An interesting topic you may consider for the future…”sexting”, along with the legal consequences of such actions depending upon who and how it is used.

    • Douglas says:

      @Jennifer: I would think that stealing money would be a quality that would prevent one from working at a bank, or that being a sexual predator would prevent one from working with children (although some of the sexual reporting laws are a little too loose to me, but that is a topic for another blog post). However, you know, and I know, that these cases are not very common. More often, it is the former drug addict that seeks to work at a department store, or the guy convicted of a DUI that seeks to work at a fast-food chain that gets denied employment due to their record. These employers should absolutely be punished. If you have committed a crime that directly relates in some fashion to the job that you are applying for, then that PERSONAL QUALITY is what should prevent you from finding work, not your paper trail from the state.

      I have heard of Jeremy Travis, but I have not read his research, so I cannot say for sure whether I agree with him or not.

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