Skip navigation

After Prison - Roadblocks to Re-entry, Legal Action Center, 2004

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
AFTER PRISON: ROADBLOCKS TO REENTRY
A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS

A REPORT BY THE LEGAL ACTION CENTER

AFTER PRISON: ROADBLOCKS TO REENTRY
A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS

A Report by the Legal Action Center
www.lac.org/roadblocks.html

Acknowledgments
This project was researched and written by the staff of the
Legal Action Center. Paul Samuels, Director/President, and
Debbie Mukamal, Staff Attorney and Director of our National
H.I.R.E. Network, wrote the report. We would like to acknowledge
the invaluable assistance of Senior Attorney Anita Marton, as well
as former Staff Attorney Terri Stevens who undertook the majority
of the legal research underlying this project and Administrative
Assistant Michelle Harrison, who compiled the database to
analyze the state scores.
We would like to thank the Open Society Institute for its
generous support and we would like to express our gratitude to
Susan Tucker, Director of The After Prison Initiative, for her
leadership and active participation, which were vital to the
success of this project.
We are grateful to Cabengo LLC. (www.cabengo.com) for design
and development.
We would also like to thank Eddie Ellis, Felice Ekelman, Elizabeth
Gaynes, Martin Horn, William Maher, JoAnne Page, and Charles
See for sharing their invaluable insights and assisting us in
developing the criteria for evaluating state laws.

Copyright © 2004 by the Legal Action Center. All Rights Reserved.

OVERVIEW 8
WHAT’S THE LAW: ROADBLOCKS TO REENTRY 9
EMPLOYMENT 10
PUBLIC ASSISTANCE AND FOOD STAMPS 12
VOTING 14
ACCESS TO CRIMINAL RECORDS 15
PUBLIC HOUSING 16
DRIVERS’ LICENSES 17
ADOPTIVE AND FOSTER PARENTING 18
STUDENT LOANS 18
REPORT CARD 19
VISION FOR THE FUTURE 22
CONCLUSION 23

AFTER PRISON: ROADBLOCKS TO REENTRY
A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS

This report summarizes the findings of an exhaustive two-year study by the Legal Action Center (LAC) of the legal
obstacles that people with criminal records face when they attempt to reenter society and become productive, law-abiding
citizens. Our research found that people with criminal records seeking reentry face a daunting array of counterproductive,
debilitating and unreasonable roadblocks in almost every important aspect of life.
The study is in three parts. What’s the Law is a comprehensive catalogue of each state’s legal barriers to employment,
housing, benefits, voting, access to criminal records, parenting, and driving. The Report Card grades each state on whether
its laws and policies help or hurt those seeking reentry. Vision for the Future outlines how federal and state policymakers
can help reintegrate people with criminal records into society in ways that better promote public safety. A complete
compilation of our findings including statutory citations and an explanation of methodology are available on our web site,
www.lac.org/roadblocks.html. For those who do not have Internet access, please contact the Legal Action Center with
specific requests for information.

AFTER PRISON: ROADBLOCKS TO REENTRY, A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 7

OVERVIEW
More than 630,000 people are released from state and federal prisons every year, a population equal to that of Baltimore
or Boston, and hundreds of thousands more leave local jails. Rather than helping them successfully transition from prison
to community, many current state and federal laws have the opposite effect, interfering with the rights and obligations of
full citizenship in nearly every aspect of people’s lives. These laws diminish public safety and undermine the nation’s
commitment to justice and fairness, creating roadblocks to basic necessities for hundreds of thousands of individuals
who are trying to rebuild their lives, support their families, and become productive members of communities.
Here are some startling facts about existing legal barriers:
• Most states allow employers to deny jobs to people who were arrested but never convicted of a crime.
• Most states allow employers to deny jobs to anyone with a criminal record, regardless of how long ago or the individual’s
work history and personal circumstances.
• Most states ban some or all people with drug felony convictions from being eligible for federally funded public assistance
and food stamps.
• Most states make criminal history information accessible to the general public through the Internet, making it extremely
easy for employers and others to discriminate against people on the basis of old or minor convictions, for example to
deny employment or housing.
• Many public housing authorities deny eligibility for federally assisted housing based on an arrest that never led to a
conviction.
• All but two states restrict the right to vote in some way for people with criminal convictions.
In the past 20 years, the federal government and many states have dramatically increased the number, range, and severity
of civil penalties for those with criminal convictions – and, in some cases, even applied them to people never convicted of
a crime. Congress and state legislatures created new restrictions on eligibility for food stamps, public assistance, public
housing, student loans, and drivers’ licenses, while further expanding bars to employment, parenting, and voting.
As a result of the explosive growth of legal roadblocks in the last three decades, successful reentry into society is much
more difficult for people who have been arrested or convicted of crimes, many of whom are fully qualified to work and

8

participate in society and can demonstrate they are rehabilitated. Because African-Americans and Latinos are arrested and
convicted at significantly higher rates than Caucasians, individuals and whole communities of color are disproportionately
harmed by these policies, leading to widespread economic and political disenfranchisement.
Today, the good news is that that there appears to be increasing support in Congress and in the states for the repeal of
these counterproductive laws and policies. A number of initiatives are currently underway that will help people with
criminal records who have paid their debt to society become independent, law-abiding citizens, thereby strengthening
community safety. The Legal Action Center hopes that this study will help advance efforts to reform those laws and
policies that endanger public safety by excluding people with criminal records from mainstream society and opportunities
to lead law-abiding lives.

WHAT’S THE LAW: ROADBLOCKS TO REENTRY
This report presents the most comprehensive picture to date of the legal roadblocks that confront people with criminal
records in each state, and in the nation as a whole. LAC studied roadblocks created by both state and federal law. Since
many states are re-examining these issues and there may have been changes that have not yet come to our attention,
we advise our readers to verify the information before relying on it as the basis of legal action.

AFTER PRISON: ROADBLOCKS TO REENTRY, A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 9

EMPLOYMENT
Employers in most states can deny jobs to people who were arrested but never convicted of any crime.
• 37 states have laws permitting all employers and occupational licensing agencies to ask about and consider arrests that
never led to conviction in making employment decisions.
• Only 10 states prohibit all employers and occupational licensing agencies from considering arrests if the arrest did not
lead to conviction, and 3 states prohibit some employers and occupational licensing agencies from doing so.
Employers in most states can deny jobs to – or fire – anyone with a criminal record, regardless of individual history,
circumstance, or “business necessity.”
• 29 states have no standards governing the relevance of conviction records of applicants for occupational licenses.
That means occupational licensing agencies can deny licenses based on any criminal conviction, regardless of history,
circumstance or business necessity. 21 states do have standards that require a “direct,” “rational,” or “reasonable”
relationship between the license sought and the applicant’s criminal history to justify the agency’s denial of license.
• 36 states have no standards governing public employers’ consideration of applicants’ criminal records; 14 do.
• 45 states have no standards governing private employers; 5 do.
States have the power to offer certificates of rehabilitation but few issue them. Employers in a growing number of
professions are barred by state licensing agencies from hiring people with a wide range of criminal convictions, even
convictions which are unrelated to the job or license sought. All states have the power to lift those bars to
employment by offering certificates of rehabilitation, but only 6 states - Arizona, California, Illinois, Nevada, New Jersey
and New York – offer them.

10

INQUIRIES ABOUT ARRESTS

NH

WA
MT
OR

MN

ID

WI

SD

MI

CA

PA

IA

NE
UT

IL

CO
KS

IN

NJ

OH
WV

MO

KY

NC

OK

NM

MD
DC

SC

AR
MS

TX

RI
CT

DE

VA

TN
AZ

MA

NY

WY
NV

ME

VT

ND

AL

GA

LA
FL

AK
HI

states prohibiting all employers and occupational licensing agencies from considering arrests
not leading to conviction
states prohibiting some employers and occupational licensing agencies from doing so
states permitting all employers and occupational licensing agencies to ask about arrests not
leading to conviction

AFTER PRISON: ROADBLOCKS TO REENTRY, A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 11

PUBLIC ASSISTANCE AND FOOD STAMPS
The 1996 federal welfare law prohibits anyone convicted of a drug-related felony from receiving federally funded food
stamps and cash assistance (also known as TANF - Temporary Assistance for Needy Families). This is a lifetime ban -- even if
someone has completed his or her sentence, overcome an addiction, been employed but got laid off, or earned a certificate of
rehabilitation. States have the option of passing legislation to limit the ban or eliminate it altogether.
Most states restrict at least some people with drug felony convictions from being eligible for federally funded public
assistance and food stamps.
• 17 states have adopted the federal drug felon ban without modification. They permanently deny benefits, even if a crime
occurred years before or the person has been treated and rehabilitated.
• 21 states have limited the ban in some way to enable those with drug felony convictions to get public assistance if
they meet certain conditions, such as participating in alcohol or drug treatment, meeting the waiting period, having a
“possession only” conviction, or satisfying other conditions.
• Only 12 states have eliminated the ban entirely.

12

DRUG FELON BAN ON TANF AND FOOD STAMPS
adopted
federal ban

opted out of
federal ban
entirely

opted out of
food stamps
and modified
ban on tanf

modified ban
by requiring
treatment

modified ban
by requiring
completion of
sentence or
treatment

other
modifications *

Alabama
Alaska
Arizona
California
Georgia
Indiana
Kansas
Mississippi
Missouri
Montana
Nebraska
North Dakota
South Dakota
Texas
Virginia
West Virginia
Wyoming

Idaho
Maine
Michigan
New Hampshire
New Mexico
New York
Ohio
Oklahoma
Pennsylvania **
Oregon
Utah
Vermont

Illionois
Massachusetts

Colorado
Hawaii
Iowa
Kentucky
Nevada
South Carolina
Tennessee

Connecticut

Arkansas
Delaware
Florida

Louisiana
Maryland
Minnesota
New Jersey
North Carolina
Rhode Island
Washington
Wisconsin

* Limiting ban to distribution or sale offenses or requiring submission to drug testing.
** The new statute opting out specifically requires the department to follow pre-existing procedures for referral for assessment and treatment if
available and appropriate.

AFTER PRISON: ROADBLOCKS TO REENTRY, A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 13

VOTING
States have absolute power to decide whether someone with a criminal record can vote.
All but two states place some restrictions on the right to vote for people with felony convictions.
• 12 states have lifetime bans on voting for some or all people convicted of crimes, 5 states prohibit voting for life by
those convicted of certain classes of crimes; 7 states have a lifetime bar that may be lifted only if the state grants a formal
“restoration of civil rights.”
• 18 states bar people from voting while they are incarcerated or serving parole or probation sentences.
• 6 states bar people from voting while they are incarcerated or on parole.
• 12 states deny voting rights to people only while they are incarcerated.

14

no restrictions

cannot vote
while
incarcerated

cannot vote
while
incarcerated
or on parole

cannot vote
until
completion of
sentence

lifetime bar
that can be
lifted

lifetime bar

Maine
Vermont

Hawaii
Indiana
Illinois
Massachusetts
Michigan
Montana
New Hampshire
North Dakota
Ohio
Oregon
South Dakota
Utah

Alaska
California
Colorado
Connecticut
New York
Wisconsin

Arizona
Arkansas
Florida
Georgia
Idaho
Kansas
Louisiana
Minnesota
Missouri
New Jersey
New Mexico
North Carolina
Oklahoma
Pennsylvania
Rhode Island
South Carolina
Texas
West Virginia

Alabama
Iowa
Nebraska
Nevada
Virginia
Washington
Wyoming

Delaware
Kentucky
Maryland
Mississippi
Tennessee

ACCESS TO CRIMINAL RECORDS
States have the right to permit the sealing or expungement of arrests that never led to conviction and conviction records
after an appropriate period of time has elapsed.
Most states never expunge or seal conviction records but do allow arrest records to be sealed or expunged when the
arrest did not lead to a conviction.
• 33 states do not permit the expungement or sealing of any conviction records.
• 17 states allow some conviction records to be expunged or sealed, such as first-time offenses.
• 40 states allow people to seal or expunge records of some or all arrests that did not lead to conviction.
• 30 states allow you to deny the existence of a sealed or expunged arrest record when it did not lead to a conviction,
if asked on employment applications or similar forms.
Virtually anyone with an Internet connection can find information about someone’s conviction history online without his
or her consent or any guidance on how to interpret or use the information.
• 28 states allow Internet access to criminal records or post records on the Internet.
• 14 of these states make all conviction records available on the Internet.
• 6 make available on the Internet records of people who are incarcerated and those on probation or parole.
• 8 post on the Internet only records of people currently incarcerated.

AFTER PRISON: ROADBLOCKS TO REENTRY, A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 15

PUBLIC HOUSING
Federal laws give local housing agencies leeway in most situations to decide whether to bar individuals with criminal
records from public housing premises and whether to consider the individual circumstances and history of applicants or
arrests that never led to conviction. The primary exceptions are for people convicted of the production of methamphetamine
on public housing premises and people who are required to be registered under a state’s lifetime sex offender registry
program. Public housing agencies must deny admission to housing to households with family members with these types of
convictions. Since local housing agencies set these policies, LAC examined self-reported policies of the local housing agency
of the largest city in each state.
In a majority of states, public housing authorities make individualized determinations about an applicant’s eligibility
that include considering the person’s criminal record, as well as evidence of rehabilitation.
• In 47 states, public housing policies provide for individualized determinations.
• In 3 states, housing authorities do not make individualized determinations but instead flatly ban applicants with a wide
range of criminal records.
Many public housing authorities consider arrest records that did not lead to conviction in determining eligibility for
public housing.
• 27 housing authorities surveyed make decisions about eligibility for public housing based on arrests that never led to a
conviction; 23 do not.

16

DRIVERS’ LICENSES
In 1992, Congress passed a law withholding 10 percent of certain highway funds unless a state enacts a law revoking or
suspending driver’s licenses of anyone convicted of any drug offense for at least six months after the time of conviction.
States can opt out of the law, limit it to drug convictions related to driving such as driving under the influence of a controlled
substance, and impose a longer period than six months. Restricting the ability to drive makes it harder to be employed,
participate in addiction treatment or healthcare, or get education or job training.
27 states automatically suspend or revoke licenses for some or all drug offenses; 23 states either suspend or revoke
licenses only for driving-related offenses or have opted out of the federal law.
• Of the 27 states that automatically suspend or revoke licenses for some or all drug convictions, 21 limit the revocation or
suspension of licenses to six months for a first offense.
• 4 states – Colorado, Delaware, Massachusetts, and South Carolina – revoke or suspend drivers’ licenses for longer than six
months for drug convictions unrelated to driving.
Many states make restrictive licenses available so individuals whose licenses would otherwise be suspended can go to
work, attend drug treatment, or obtain an education.
• 32 states offer restrictive licenses; 18 do not.

AFTER PRISON: ROADBLOCKS TO REENTRY, A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 17

ADOPTIVE AND FOSTER PARENTING
The federal Adoption and Safe Families Act of 1997 (ASFA) bars people with certain convictions from being foster or adoptive
parents. States may follow these standards or adopt their own policies.
Most states make individualized determinations about an applicant’s suitability to be an adoptive or foster parent that
considers the person’s criminal record, as well as evidence of rehabilitation.
• 35 states consider the relevance of an applicant’s criminal record in making a determination about an applicant’s suitability
to be an adoptive or foster parent.
• 15 states have flat bars against people with criminal records becoming adoptive or foster parents.

STUDENT LOANS
The Higher Education Act of 1998 makes students convicted of drug-related offenses ineligible for any grant, loan or work
assistance. This federal legal barrier cannot be altered by the states. No other class of offense, including violent offenses,
sex offenses, repeat offenses, or alcohol-related offenses, results in the automatic denial of federal financial aid eligibility.
Financial aid is suspended on the date of conviction for varying lengths of time, depending on the type of offense and
whether or not it is a repeat offense. This restriction applies even if the person is not receiving financial assistance at the
time of conviction. A person convicted of a drug-related offense who is in school may become eligible for a student loan
before the end of the suspension period if he or she completes substance abuse treatment approved by the Secretary
of Education and passes two unannounced drug tests. Eligibility for financial aid may also be reinstated if the conviction
is reversed.

18

REPORT CARD
LAC’s Report Card grades every state based on to what extent its laws and policies create roadblocks to reentry – unfair or
counterproductive barriers - in the areas of employment, public assistance and food stamps, access to criminal records,
voting, public housing, adoptive and foster parenting, and drivers’ licenses.
Society has an important interest in protecting the safety of the public by promoting the successful reentry of people
with criminal records. This Report Card distinguishes between policies that may serve legitimate ends, such as enabling
employers to screen out individuals whose criminal behavior demonstrates they pose an unreasonable risk to public safety,
and roadblocks that unfairly prevent those who do not pose a threat to public safety from successfully reentering society.
LAC developed the criteria for grading the states in close consultation with a diverse panel of experts from around the
country, including attorneys, criminal justice policymakers, victim advocates, people with criminal records, and housing
officials. Two overarching principles emerged as key criteria in the grading system (with 0 being best and 10 the worst):
• State and federal laws should require individualized determinations about the suitability of someone with a criminal
conviction for the opportunity, benefit or right sought that takes into consideration the nature of the conviction(s), the
time that has elapsed since the conviction(s), the age of the person at the time of the conviction(s) and any evidence
of rehabilitation.
• State and federal laws should prohibit government agencies, public and private employers, and others from considering
information about arrests that did not lead to conviction when making decisions about a person’s eligibility for
employment, housing, or other services.

AFTER PRISON: ROADBLOCKS TO REENTRY, A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 19

RANKING THE STATES

NH

WA
MT

VT

ND

OR
ID

MN

SD

WI

CA

MI

IL

CO

KS

IN

NJ

OH
WV

MO

KY

NC

OK

NM

AR

SC
MS

TX

LA
FL

AK
HI

20

AL

GA

CT

DE

VA

TN
AZ

RI

PA

IA

NE
UT

MA

NY

WY
NV

ME

MD
DC

BEST

AVERAGE

HOW WE GRADED THE STATES

WORST

RANK STATE SCORE RANK STATE SCORE RANK STATE SCORE
1

ny

10

20

az

26

35

mo

36

States were assigned a maximum of ten points for

2

hi

12

21

id

28

35

ak

36

each roadblock category.

3

ca

14

21

wi

28

35

tx

36

Therefore, the fewer the points, the better the score.

4

me

15

23

la

30

38

md

37

5

or

16

24

wv

31

38

in

37

website at:

5

nh

16

24

mn

31

38

ms

37

www.lac.org/roadblocks/reportcardstates.html

7

ut

17

26

ct

31.5

38

wy

37

A full description of the criteria and methodology

8

vt

18

27

ks

32

42

ia

38

we used to develop the Report Card can be found at:

9

mi

19

28

ar

33

42

sd

38

10

oh

19.5

28

nd

33

44

nj

39

11

ky

22

28

fl

33

45

al

41

11

nv

22

28

mt

33

46

de

41.5

11

ma

22

32

nc

35

47

va

43

14

il

22.5

32

ne

35

47

ga

43

15

ok

23

32

pa

35

49

sc

47

16

nm

24

50

co

48

17

ri

25

17

tn

25

17

wa

25

A Report Card for each state can be found on our

www.lac.org/roadblocks/reportcardcriteria.html

AFTER PRISON: ROADBLOCKS TO REENTRY, A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 21

VISION FOR THE FUTURE
To promote and guarantee the public’s safety, the U.S. government and the 50 states should adopt policies and practices
that facilitate the successful reintegration into society of people with criminal records. Each person should be judged on his
or her merits and not on stereotypes, prejudice, or stigma, and have a second chance to establish him or herself in a lawabiding life with the privileges and responsibilities of citizenship.
The state and federal governments should enact legislation that protects public safety by making sure that people with past
criminal records are able to re-integrate successfully. LAC recommends the following principles and reforms:
• Maximizing the chance that people with criminal records can successfully assume the responsibilities of independent, lawabiding citizens is a critical component of guaranteeing and reinforcing the community’s legitimate interest in public safety.
• An arrest alone should never bar access to rights, necessities, and public benefits. Doing so denies the presumption of
innocence – the core value of our legal system – to millions of Americans. Employers, housing authorities, and other
decision-makers should not be permitted to consider arrest records.
• A conviction should never bar access to a citizen’s right to vote or to basic necessities such as food, clothing, housing,
and education.
• Eligibility for employment, housing, adoptive and foster parenting, or a driver’s license should be based on the community’s
legitimate interest in public safety and the particulars of an individual’s history and circumstances. Blanket bans of entire
categories of people, such as everyone convicted of a felony, are neither wise nor fair; they do not take into account such
important factors as the nature or circumstances of the conviction and what the person has done since the commission of
the offense, including receiving an education, acquiring skills, completing community service, maintaining an employment
history, or earning awards or other types of recognition.
• States should enact legislation to provide for the automatic sealing or expungement of any arrest that never led to
conviction, and of conviction records after an appropriate amount of time has elapsed. States also should issue certificates
to qualified people with criminal records that acknowledge rehabilitation and lift automatic bars.
• Given the potential for misuse, conviction information should not be publicly accessible on the Internet. Access should be
restricted to those agencies, such as law enforcement, that need to retrieve criminal records to perform their duties.

22

CONCLUSION
People with criminal records face a daunting array of challenges. Without a job, it is impossible to provide for oneself and
one’s family. Without a driver’s license, it is harder to find or keep a job. Without affordable housing or food stamps or federal
monies to participate in alcohol or drug treatment, it is harder to lead a stable, productive life. Without the right to vote,
the ability to adopt or raise foster children, or access to a college loan, it is harder to become a fully engaged citizen in the
mainstream of society. These roadblocks block the reintegration of people with criminal records, which in turn compromises
everyone’s safety and the well-being of our communities.
But recent actions in a number of state legislatures and the Congress give us great hope that the tide has turned and major
reform is on the way. We hope this report will help concerned Americans all over the country take action to facilitate the
ability of people with criminal records to live productive and law-abiding lives.

AFTER PRISON: ROADBLOCKS TO REENTRY, A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 23

Legal Action Center
153 Waverly Place
New York, NY 10014
Phone: (212) 243-1313
Fax: (212) 675-0286
Email: lacinfo@lac.org
www.lac.org
Legal Action Center, Washington, DC Office
236 Massachusetts Avenue, NE, Suite 505
Washington, DC 20002
Phone: (202) 544-5478
Fax: (202) 544-5712
Email: info@lac-dc.org

 

 

Disciplinary Self-Help Litigation Manual Side
PLN Subscribe Now Ad 450x450
Prison Phone Justice Campaign