Color of Crime: The Tyranny of ‘Collateral Consequences’

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It’s an uncomfortable conversation and one that is fraught with emotion.

In a judicial system tasked with providing equal justice to all, what role does race play in decision-making?

More than 15 percent of all criminal cases had a black defendant in Cumberland County, Maryland between 2010 and 2015, according to an analysis of court records.

However, the U.S. Census Bureau reports that only about 3 percent of the county’s population is black.

During the five-year time-frame examined by The (Cumberland County) Sentinel, a black person was nearly six times more likely per capita than a white person to be charged with a criminal offense; and black defendants, on average, were required to pay higher bail amounts to stay out of jail.


[The consequences of this disparity] can last far beyond any formal punishment. As researchers have revealed, those consequences can disproportionately affect black and minority people.

“We call them collateral consequences. I say bull … they’re just consequences, because they are done across the board,” Pennsylvania Secretary of Corrections John Wetzel said.

“I don’t know why we are calling them collateral.”

The consequences can include difficulty finding work, housing and accessing public benefits, according to Benjamin Levin, Climenko Fellow and lecturer on law at Harvard Law School.

“It’s not just conviction,” Levin said. “Sometimes very significant collateral consequences can attach just based on a charge and even arrest, which is something that should raise a ton of red flags.”

Impact on Employability

For employment, the consequences can be both set in laws that ban certain kinds of work for people with a criminal record, as well as difficulty getting hired by employers who are reluctant or unwilling to employ people with a criminal history.

A study by Harvard professor Devah Pager found that having a criminal conviction cuts the number of callbacks an applicant receives from potential employers to at least half.

However, even this impact is not consistent across race.

“If you are disproportionately incarcerating one portion of your population, they are disproportionately affected by collateral consequences of crime on the back end,” Wetzel said.

Pager found that callbacks for white applicants fell from 34 percent without a criminal record to 17 percent with a criminal record.

Even with a criminal record, white applicants were more likely to receive a call back from an employer than a similarly qualified black applicant who did not have a criminal record.

A staggeringly low five percent of black applicants with a criminal record received a call back, according to Pager.

This means 95 percent of black applicants who had a criminal record never made it past the first stage in the employment process.

As Levin pointed out, this can become a major problem if the goal is to keep individuals from returning to prison.

“There is research out there that suggests that…being able to find gainful employment is a really important step for people as they reenter,” he said.

“As they begin to get out of prison and reacclimate to society, being able to have the stability of a job, but also access to the benefits that come with steady employment, can be very important in preventing someone from reentering informal criminal markets or getting rearrested.”

Levin did not suggest that employers should not check criminal records when making hiring decisions.

He noted that depending on the work that is being done, an employer can face civil lawsuits if they hire a person with a criminal history and they go on to commit another crime on the job.

Levin gave the example of a cable company hiring a person with a history of committing violent crimes to do in-home service.

If that employee goes on to commit a similar crime against a customer, the cable company could face a lawsuit, Levin said.

How the courts handle these cases varies from state to state, he explained.

‘A Strange Area of Law’

“It’s a strange area of law because there is this question of what is actually foreseeable,” Levin said. “How can an employer predict what an employee will do? … If a person has a 20-year-old charge on their criminal record, is it foreseeable that that person is going to commit another crime 20 years later?”

However, he said the current judicial system typically does not take into account these consequences.

When a judge hands down a sentence of two years in prison, generally little thought is given to what happens after, he said.

“The sentencing judge doesn’t factor into those two years the kinds of things that are going to happen on the back end,” Levin said. “Neither will the legislature much of the time.”

But, why should society care what happens to people who have been convicted of a crime?

“That’s simple to me. We’re going to release 20,000 people (this year),” Wetzel said. “Some of those people are going to be in your community. Do you want them better or worse?

“Do you want them to have opportunities or do you want them to be looking to see when you go to work so they can rob you? It’s just that simple.”

Wetzel, who oversees all of the state’s correctional facilities, said the state system provides opportunities for inmates to get an education and job skills in an effort to make them a productive member of society upon release.

There are more than 90 different vocational programs that help train inmates in everything from warehousing and barbering to fiber optics and as optical technicians.

“Ladies who have done that program and gotten that certificate are getting job interviews from inside the prison,” Wetzel said of the optical technician program.

The state correctional system released prisoners to every county last year, including three people to Forest County — one of the lowest populated areas of the state.

“We love to do this us versus them thing and that’s great, but guess what folks, they’re coming back to a neighborhood near you,” Wetzel said. “If anybody who’s reading (this) story thinks they don’t have an investment in people coming out and being successful, they really need to rethink that.”

Wetzel said true corrections reform needs to begin before a person gets involved in the criminal justice system.

Reform Starts With Investing in the Community

It needs to start with the community, he said, with investment in things like education, economic opportunities and preventing the breakdown of families and of the community.

“(There is a) 69 percent lifetime probability of incarceration if you drop out of school,” Wetzel said. “So, let’s keep kids in school.”

Cumberland County District Attorney David Freed reiterated those sentiments, but also said there are ways the criminal justice system can aid people after they have made that first contact.

“We have to be cognizant of (the consequences) in one sense,” Freed said. “On the other hand, I am the chief law enforcement officer and it is my job to make sure victims are made whole and the community is protected. So, I have to balance those two things.”

Freed has been a vocal proponent of “second chance” bills, which provide for expungement or sealing criminal records after a period of offense-free time generally for non-violent offenders.

These bills have gained bipartisan support and are aimed at allowing people who have been convicted of a crime to not have that follow them for life.

“We have to find ways to give people a second chance because of the negative impacts that a criminal record has for somebody,” Freed said. “The negative impacts, because of the way we share information and the amount of information that is out there now, are far more negative than when I started my career.

“I didn’t give this much of a thought in 2002 and 2003, now I think about it all the time.”

Editor’s Note: For another look at the difficult journey faced by the formerly incarcerated in returning to civilian society, please see the podcast series by TCR Deputy Editor Alice Popovici, “Life After Prison.”

Joshua Vaughn is a staff writer for The Sentinel in Cumberland County, PA, and a 2016 John Jay/Harry Frank Guggenheim Justice Reporting Fellow. The above is a condensed version of a four-part series produced as a project for his fellowship. In November 2016 Vaughn won the Lee Enterprise President’s Award for criminal justice coverage which included this series. To read the complete series please click HERE. Josh welcomes readers’ comments.

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