Download Social Disenfranchisement

Independent Social Science Research
ISR -ES
Research Profiles
Interdisciplinary Social Research
Ethnography Series
June, 2006 ISSR – ISR – ES: 06-02
Civil Death Penalty: Social Disenfranchisement
to deny the vote to black people. While
disenfranchisement laws had existed long before
these practices began, a number of Southern
States tailored these laws to maximize their
impacts on African-Americans. Unlike most other
laws that burden the right of citizens to vote based
on some form of social status, felony
disenfranchisement laws have been held to be
constitutional.2
Robert S. Grigsby
Center for Social Justice Policy
Disenfranchisement
Main Entry: dis·en·fran·chise
Pronunciation: "dis-in-'fran-"chIz
Function: transitive verb
: to deprive of a franchise, of a legal right, or of
some privilege or immunity; especially : to
deprive of the right to vote
- dis·en·fran·chise·ment /-"chIz-m&nt, -ch&z-/
noun
In Richardson v. Ramirez, the United States
Supreme Court upheld the constitutionality of felon
disenfranchisement statutes, finding that the
practice did not deny equal protection to
disenfranchised voters. The Court looked to
Section 2 of the Fourteenth Amendment to the
United States Constitution, which proclaims that
States which deny the vote to male citizens, except
on the basis of "participation of rebellion, or other
crime", will suffer a reduction in representation.
Based on this language, the Court found that this
amounted to an "affirmative sanction" of the
practice of felon disenfranchisement, and the 14th
Amendment could not prohibit in one section that
which is expressly authorized in another. However,
many critics argue that Section 2 of the 14th
Amendment does not represent an endorsement of
felon disenfranchisement statutes as constitutional
in light of the equal protection clause; but is limited
only to the issue of reduced representation.3
Source: meriam-webster dictionary
HISTORY
The roots of felony disenfranchisement laws can be
traced back to ancient Greek and Roman traditions.
Disenfranchisement was commonly imposed on
individuals convicted of "infamous" crimes as part
of their "civil death", whereby these persons would
lose all rights and claim to property. The practice of
disenfranchisement was transplanted to America by
English settlers1, and has since that time been
used as a political tool to discriminate.
Upon the passage of the Fifteenth Amendment,
giving African-Americans the right to vote, Southern
States began to use seemingly neutral voting
qualifications–e.g.
literacy
tests,
property
requirements, grandfather clauses, tests for good
moral character and criminal disenfranchisement–
The United States Supreme Court has generally
upheld felony disenfranchisement laws, but has at
the same time struck down those that were clearly
intended to disenfranchise particular racial groups,
or which allowed disenfranchisement based on the
1
Such an examination permits an exploration into
domains of our society which otherwise would be
hidden, and heightens a sense of awareness of
felony disenfranchisement that occurs as a result of
some other aim or intent of a social policy.
commission of acts so minor that they could not be
classified as felonies.4
A Point of Departure
This is a point of departure from the common usage
of the term felony disenfranchisement, although not
a radical departure. But it is a departure we believe
is important in order for a clearer understanding to
exist
of
the
different
forms
of
felony
disenfranchisement that are used within our
American society to discriminate against those who
have been formerly incarcerated.
Public Safety
From our very beginnings as a nation, public safety
has been espoused as the prime directive for much
of the laws that have contributed to the expansion
of America’s prison system.
Everyday, somewhere in the United States, there is
an effort to intone the public safety chant on the
road to creating and implementing new laws. Along
with this chant, there are many political special
interest groups that converge to support such
measures, and raise the chant to a scream.
Through sensationalized media generated reports,
Americans are flooded with fictional statistics from
these groups and politicians, made possible by
politically misrepresented research findings.6
Given
the
historical
nature
of
felony
disenfranchisement, where many sectors of our
society have been denied the right to vote and to
participate in the benefit of that freedom, the
contemporary social environment is no less prone
toward
sustaining,
and
advancing
felony
disenfranchisement on many different levels within
our society and our social institutions.
While the major focus of felony disenfranchisement
has been directed toward the denial of the right to
vote, the endeavor here is to expand the focus to
embrace the fact that felony disenfranchisement
also encompasses an exclusion from society: social
disenfranchisement.
Such a case in point is the Iowa sex offender registry
law that mandates “… [a] person who is required to
register as a sex offender and whose underlying
criminal offense was committed against a minor is
prohibited from residing within 2,000 feet of the real
property comprising a public or nonpublic elementary
or secondary school or a child care facility.”7
Much has been made about the effect having a
felony conviction has on an individual’s ability to be
able to participate in the political process. In deed,
we should examine every facet of the denial
process, and scrutinize every element for why it
exists. No stone should be left unturned, and when
an argument is given to continue its practice, it
should be thoroughly evaluated and analyzed for its
intent.
This law, and the many other similar laws enacted
throughout the United States, has come to be
known as the Exclusion Zone law. Many
communities have followed suit in drafting city
ordinances which prohibit all individuals formerly
incarcerated for a sex offense from living in their
community or city, whether their offense involved a
child or not and whether the parties involved were
consensually dating teens with one being 16 years
of age and the other 18 years of age.
The fact that we now incarcerate between 2.1 and
2.5 million people, with an estimated 7 million plus
under some type of correctional probation or parole
supervision,5 demands that we inspect every realm
within our society for practices of felony
disenfranchisement.
For example, the eastern Iowa town of Ely, a
population of approximately 1500, which did not
have a school or day care, passed an ordinance
banning sex offenders from residing in nearly all of
the town.8 Officials in Des Moines, Iowa in 2005
added parks, libraries, swimming pools, even
recreational trails to the restricted-zone list, virtually
exiling sex offenders from the state’s largest city.9
Every realm means every sector, segment, division,
and subdivision where felony disenfranchisement
can exist to manifest the historical practice of
biased intolerance and inequality, better know as
discrimination.
2
Most notably in these Ordinances, are the
references to the high rate of recidivism in declaring
their cities and counties restricted residency areas
for all sex offenders.
In citing their reason for doing so they stated the
following in the City Ordinance [No. 145000], and
point to a high rate of recidivism:
ARTICLE VIII. RESIDENCY RESTRICTIONS FOR SEX
OFFENDERS
However, national studies, and Iowa’s own state
studies on sex offender recidivism conclude just the
opposite.13
Sec. 70-307. PURPOSE.
This article is a regulatory measure aimed at
protecting the health and safety of children in Des
Moines from the risk that convicted sex offenders may
reoffend in locations close to their residences. As
recognized by the Eighth Circuit United States Court of
Appeals in its April 29, 2005 decision of Doe v. Miller,
and as recognized by the Iowa Supreme Court in State
v. Seering, decided on July 29, 2005, the city finds and
declares that sex offenders are a serious threat to
public safety. When convicted sex offenders reenter
society, they are much more likely than any other type
of offender to be re-arrested for a new rape or sexual
assault. Given the high rate of recidivism for sex
offenders and that reducing opportunity and
temptation is important to minimizing the risk of
reoffense, there is a need to protect children where
they congregate or play in public places in addition to
the protections afforded by state law near schools and
day care centers. The city finds and declares that in
addition to schools and daycare centers, children
congregate or play at child-oriented facilities identified
10
in section 70-309(1).
In Criminal Justice Research: A Point of Departure in
Offender Rehabilitation and Restoration, the research
cites Bureau of Justice Statistics data and Iowa
Criminal and Juvenile Justice Planning data that
sex offenders have one of the lowest recidivism
rates among offenders, second only to those
incarcerated for murder:
Iowa and national Bureau of Justice
Statistics
studies
(2004,
2006
respectively), as well as many other
state and federal studies, show that
recidivism for sex-offenders committing a
new sex offense is significantly low,
3.0% to 3.5% in Iowa;14 with national
rates of 3-13%15 and that 80% of the
offenses are committed in the home by a
family member.16 The Iowa Division of
Criminal and Juvenile Justice Planning in
their Statistical Overview of Crime and
Justice in Iowa (2006),17 show new
arrests for a sex offense to be 2.3%, for
treatment
strategies,
the
lowest
recidivism rate in the entire nation.
The City of Des Moines is in Polk County. Polk
County itself enacted Ordinance 238 declaring
almost the exact restrictions and citing the same
reasons.11 Making Polk County virtually off-limits to
individuals previously incarcerated for a sex
offense, and to their families.
Of further note, the Iowa laws have no time limit. It
is virtually for life; thus excluding those formerly
incarcerated for a sex offense from being able to
embrace their new found citizenship to participate
in the political process in the cities and counties
wherein they once lived, but now have been
banished from.
Other major cities such as Iowa City located in
Johnson County and the City of Cedar Rapids
located in Linn County, are almost completely
restricted.12
In 2005, on July 4th, Iowa’s Governor Thomas J.
Vilsack (D), issued Executive Order Number 42,
restoring the right to vote and hold public office to
those formerly incarcerated.
The pertinent text of Executive Order Number 42
reads as follows:
Iowa City, Iowa
“The
rights
of
citizenship,
including that of voting and
qualification to hold public office,
which were forfeited by reason of
conviction shall be restored for all
Cedar Rapids, Iowa
3
offenders that are completely
discharged
from
criminal
sentence,
including
any
accompanying term of probation,
parole, or supervised release, as
of July 4, 2005, but have not
made an application pursuant to
Iowa Code 914. This executive
order shall serve as evidence of
restoration of citizenship rights for
such individuals”18
have a formula that is used to accept or reject an
individual or family.
Models of Access
One of the major roles of our society and of our
social institutions in America is to provide the
opportunity to achieve social and personal goals,
and assist citizens within our society, our
communities, to achieve what these citizens are not
able to accomplish on their own to reach their
social and personal goals.
Given the fact that state laws and city/county
ordinances have banished sex offenders from
residing within city limits, and for the most part,
county limits, could an argument be made that they
are now politically disenfranchised from voting and
holding public office?
These social institutions come in a variety of
packages: schools, colleges, universities; health
and human service agencies, hospitals, and
government, to name a few.
They are sponsored through legislative acts of law,
policy, and procedures, and funded by federal,
state, and local appropriations.
Perhaps a legal argument of a Constitutional nature
will be made at some point, wherein a challenge is
made that they have been legislatively
disenfranchised by city ordinances that bar them
from the community as a new discrimination
method to keep them from voting or holding public
office. Is one not first required to have established
residency in the city or county they seek to vote or
hold public office?
Their mission statements are clearly defined, their
policies and procedures are written well, and their
services are designed to assist and support those
whom are in need.
In reality, though, our social institutions are
designed to assist and support those whom are in
need, and who can qualify, to receive the services
promulgated by each of our social institutions.
Along the same lines, do residency restrictions
where one can live or not live subject the person
and the family to barriers in meeting eligibility
requirements to gain access to public social service
assistance programs, to private programs, that are
afforded to those who have no restrictions on their
residency, and can live within the city, the county?
Not everyone who enters through the doors of our
social institutions qualify to receive the services.
Legislative laws and formulas have been designed
that clearly identify who shall be served and who
shall not.
In Iowa, and many other states, current social
policy requires that one must live in the specified
city or county to be able to be eligible for public
and/or private assistance.19 Other criteria is also
mandated by federal, state and local law that set
the eligibility standards for most of these programs.
One defining characteristic of our social institutions
is their need to selectively inhibit access for
services. By controlling the barriers affecting
access, social institutions control the number of
individuals who will (or will not) progress from one
phase in the process to the next. To illustrate this
point, we have designed and developed a model of
the phases that comprise service access and the
barriers to deny access; it is shown in Figure 1.
In essence, one must be a resident of that
particular state, city, community, or county to gain
access to the services these entities provide–(e.g.,
a resident of Iowa City cannot seek public
assistance in Cedar Rapids, without first becoming
a resident of Cedar Rapids, and having resided in
that city for at least 6 months.) A similar criterion is
required by county and state programs. Most all
To exemplify this position, we will utilize the model
in Figure 1 to demonstrate two essential points.
The first point is that federal, state, and local laws
as they currently exist in Iowa and many states
4
impose social disenfranchisement on people who
have been convicted of a felony; and the second
point is that Iowa and others states have
condemned them to a civil death sentence as a
result.
A brief note regarding this model: the horizontal
arrows at each of the potential barriers to access
represent a deselecting, a weeding out, of
individuals from one phase to the next. For
example, not all individuals who are known to need
services will possess knowledge of that need or of
service availability; not all with knowledge will
possess the means of physical access, and so on.
The Civil Death Penalty
In revisiting our point of departure stance, we once
again reiterate that felony disenfranchisement has
historically been directed toward the denial of the
right to vote. The endeavor here, as we so stated
previously, is to expand the focus to embrace the
fact
that
felony
disenfranchisement
also
encompasses exclusion from society⎯in many
different ways, and on many different levels.
The process is much like the progression through
the grades in public school. Not all who matriculate
will graduate; some will be forced to drop out at
each grade along the way.
By employing this model, we aim to provide a
model that accomplishes two main goals: a model
that provides a more comprehensive understanding
and realization of the many social forces that are
acting within our social environment that condemn
ex-cons to a civil death sentence; and provide a
model that others can use to evaluate and analyze
their own social environment, their own world.
The point being made is this; felony
disenfranchisement is also disenfranchisement
from access to economic, social, educational,
political and vocational opportunities as a result of
having a felony conviction.
Models of Access: SAM-I and SAM-II
The model represented in Figure 1 is a graphical
description of service access⎯a model of service
access. This Service Access Model identified as
SAM-I will be used to demonstrate this point.
The Models of Access we have designed are a tool
developed to assess, evaluate, and analyze our
social institutions, our society, our world.
The Models of Access are identified as the Service
Access Model (SAM-I) and the Social Access
Model (SAM-II), each are comprised of eight (8)
primary sections which are identified as: Need
Population,
Knowledge,
Physical
Access,
Psychological Access, Screening and Eligibility
Criteria, Resource Availability, Service/Resource
Utilization, and Denial of Resource Access.
Regional Population
Need Population
Knowledge
Physical Access
D
E
N
I
A
L
Each section represents the basic elements that
exist within all of our American social institutions.
Whether it is a government institution or a private
institution, these eight elements are the primary
controlling sectors in attendance to disqualify
access to resources in our society.
Psychological Access
O
F
Screening and Eligibility Criteria
Resource Availability
S
E
R
V
I
C
E
S
•
Service/Resource Utilization
Figure 1. A Service Access Model (SAM-1)
5
Need Population
The need population is any individual or
group that is said to be in need of the
services or resources offered or provided
by the social institution.
•
Knowledge
The individual or group must have
knowledge that the desired service(s) or
resource(s) exist, are available, and what
social institution offers the service or
resource.
•
Physical Access
The individual or group must have
physical access to the social institution;
e.g., to the building or office, and to the
staff or services/resources available.
•
•
•
•
As such, the individual or group seeking or
requiring access to services and/or resources
depends on the need of the individual or group, the
knowledge that the services and resources exist,
having physical access to the services/resources,
the social and psychological barriers associated
with receiving the services/resources, the screening
and eligibility criteria required, the resources
available, and actually receiving the desired or
needed services and/or resources.
The purpose of formulating this model is to identify
current social policies within our social institutions,
mandated by federal, state, and local laws, which
socially and politically disenfranchise citizens who
have a felony conviction; and show how that
disenfranchisement condemns them to a civil death
sentence.
Psychological Access
The individual or group must have
psychological
access
to
the
services/resources available, [refers to the
possible or potential stigma of the
service(s)
offered,
staff
perceptions/prejudices, views of others
who are in need and are also seeking to
receive similar services, and public
disclosure of information. Can be any or
all of these, and can include socio-cultural
norms.]
By controlling the barriers affecting access, policymakers control the number of individuals who will or
will not progress from one phase in the process to
the next. Put another way, social policy, and thus
social policy-makers, can control the variables
and/or probability that an individual or group will
make the transition to the next phase.
Screening and Eligibility Criteria
The individual or group must be able to
meet screening and eligibility criteria
established by federal, state, and local
laws; the social institution or mandated by
a third party institution.
This is very evident in view of the federal, state,
and local laws and municipal ordinances that have
been developed for those having been formerly
incarcerated.
Barriers to Temporary Assistance to Needy
Families (TANF)
Resource Availability
The social institution must have adequate
resources available to meet the individual
or group need population.
In 1995, as part of the Welfare to Work Program,
Congress enacted the Temporary Assistance to
Needy Families Act (TANF), wherein screening and
eligibility criteria were developed that introduced
specific disqualifications to deny public assistance
to anyone formerly convicted of a specified drug
offense. TANF is an example of political forces
controlling the barriers to access public assistance.
Service/Resource Utilization
Services actually provided to the
individual or group in the need population.
For purposes of clarity, the above seven (7)
sections are barriers to access services and
resources, and combine in an exponential manner
to either severely limit or deny access to services
and resources.
Federal law requires states to impose a lifetime ban
on the receipt of TANF cash assistance and food
stamps for those individuals who have been
convicted of drug felonies for conduct that occurred
after August 22, 1996.20
The eighth section, Denial of Resource Access, is
self-defining.
In 2000, the law was adjusted to allow states the
option to either modify or opt out of the lifetime ban.
6
Breakdowns of the states that opted out, and of the
states that continue the disqualification, are
provided in Table 1.
This required passage of legislation at the state
level. Various states adopted their own form of
TANF, although many states did not, and allowed
the lifetime ban to continue to disenfranchise those
who are disqualified.
Table 1: State Responses to the Federal Drug Felon Ban on TANF and Food Stamps
As of January 2005
Adopted
Federal Ban
on TANF and
Food Stamps
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
(i.e. Limiting Ban
to Distribution or
Sale Offenses or
Requiring
Submission to
Drug Testing)
Alabama
Alaska
Arizona
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
Illinois
Massachusetts
Colorado
Hawaii
Iowa
Kentucky
Nevada
South Carolina
Tennessee
Connecticut
Arkansas
California
Delaware
Florida
Louisiana
Maryland
Minnesota
New Jersey
North Carolina
Rhode Island
Washington
Wisconsin
Source: Double Jeopardy: An Assessment of the Felony Drug Provision of the Welfare Reform Act, Center on Juvenile and Criminal Justice
Disqualification from TANF and similarly crafted
programs unfairly punishes people who have
already been punished by the criminal justice
system. In addition, TANF disqualification harms
children, whose access to basic financial support is
reduced when their formerly incarcerated parents
are denied TANF funds or assistance.
The Family Investment Program requires that in
order for an ex-felon incarcerated for a specified
drug offense to meet the criteria to receive
assistance, they must first comply with the
provisions that they are enrolled in a drug treatment
program and undergo drug testing in order to
receive assistance.21
The State of Iowa opted to modify TANF by
establishing the Family Investment Program (FIP).
Availability of drug treatment programs with waiting
list less than 12-months are virtually non-existent in
7
Iowa. Further complicating access to TANF
assistance is that Iowa has very little to no
treatment programs that are located in rural areas,
most if not all are located in urban areas that
require traveling sixty (60) miles or more (one way).
Public transportation from rural to urban centers is
non-existent.
criminogenic attributes have been undoubtedly
shown to be contributing factors or forces in crime
and recidivism. In explaining crime, we know that
there are a number of "criminogenic factors" that
are foretelling about why our society experiences
crime. These are factors such as poverty,
discrimination, inadequate health care, ineffective
parenting, lack of education, and other socialization
aspects such as family violence and abuse.
Social policy that disqualifies and denies access to
basic human needs of the individual and/or family is
morally wrong to say the least. Yet, we have many
such policies and practices embedded within our
social
institutions
which
impose
felony
disenfranchisement as a means of further
punishment.
Criminogenic Forces
As the research literature persuasively shows,
public social policy brought about through
legislative enactment can be a major contributing
force in maintaining, if not furthering, the
"criminogenic factors" related to crime, criminals,
criminal behavior, and victimization. Social policies
that restricts, inhibits, and outright bars access to
the human needs identified by research to be
criminogenic factors, are in and of themselves
"criminogenic forces" that contribute to crime.
In deploying this model for evaluating and
analyzing our social institutions⎯our society⎯one
recognizes many things at once. Social policies
which severely limit or outright deny access to
human needs are criminogenic. When we speak of
social policies as being criminogenic, we are
categorically stating that there is a causal
relationship between social policies and behavior
labeled as criminal.
These spheres of influence, which a) have been
shown to be associated with recidivism and b) can
be changed, are called criminogenic attributes.
The imposition of a lifetime ban on the receipt of
TANF cash assistance and food stamps for those
individuals who have been convicted of drug
felonies for conduct that occurred after August 22,
1996 is a criminogenic attribute of this social policy.
Which dynamic factors and forces are actually
criminogenic attributes and which are not does not
always equal some of the commonly held opinions
and beliefs in our society, or held by prison
administrators and legislators.
Criminogenic Attributes
Briefly stated, research has shown the following
types of needs to be criminogenic factors:
For purposes of clarification, criminogenic attributes
are by definition:
•
•
•
•
•
•
“Contributing factors and/or forces identified by
research as causal elements of crime and/or
related recidivism.” 22
Major research studies available show criminogenic
attributes to be contributing factors or forces of
crime and/or recidivism. In order for the general
public to grasp the need to understand the notion of
criminogenic attributes it is crucial we provide the
following.
Lack of employment/employment skills
Education
Substance abuse
Family dysfunction
Poor self-control, poor problem-solving skills
Mental Health
Anti-social personality disorders
Anti-social attitudes and values
Anti-social relationships/associates
Within the criminogenic factors classification, the
major predictor for recidivism is "employment",
followed by an "adequate education" to establishing
"meaningful" employment.
Criminogenic Factors
A significant amount of research over the last
decade has fully established that definite types of
8
What the professional literature reveals about
criminogenic attributes in our society and offender
crime and recidivism, and victimization makes it
inexcusable that we have social policies that
severely restrict and deny access to these
resources.
Although many of these laws have been in
existence for years, obstacles to ex-offenders have
recently proliferated as legislators have expanded
the statutory authority of noncriminal justice
agencies and groups to access criminal histories
for
purposes
of
employment
screening,
occupational licensing, and certifications. 24
Social policies, the likes of TANF, and the sex
offender exclusion zones, are indefensible and
need to be exposed for what they truly are; for they
are nothing more than a legislative means to
socially disenfranchise people and families.
Barriers to ex-offender employment may be direct
or indirect. Direct barriers, found in various statutes
and occupational code licensing requirements,
require employers to exclude applicants with
criminal convictions and, in some cases, arrest
records. 25
Barriers to food, health care, financial support,
employment, education, housing, and voting are
barriers to life. When social policy is formed to
exclude people and families from realizing these
benefits as a result of formerly being incarcerated,
social disenfranchisement is the result and the
punishment is a civil death penalty.
Indirect barriers originate in Title VII of the Civil
Rights Act of 1964, which establishes parameters
affecting the scope of a potential employer’s
inquiries about prior arrests, convictions, and other
aspects of the applicant’s criminal history. Under
Title VII, employers may exclude applicants with
arrest or conviction records if they can prove that
the applicant’s criminal history prevents the latter
from satisfying certain job requirements.26
In this country, social policies have been developed
at the federal, state, and local levels which
systematically punish people, and entire families,
as a result of being previously incarcerated.
Employers in many industries are legally compelled
to exclude ex-offenders. Some of these regulations
exclude ex-offenders outright and do not require a
nexus between the specific professions and the
type of offense committed.27
Through the lens of the Service and Social Access
Models we are able to identify numerous social
policies that have been designed to restrict access
to, and/or bar access to services and resources.
The screening and eligibility criteria of our social
institutions and of our business institutions are
mandated by social policy, and are crafted
specifically to exclude people who have been
formerly incarcerated.
Although some licensing provisions prohibit
employment of ex-offenders convicted of specific
offenses, other codes prohibit employment of
individuals lacking “good moral character.” It is
significant that most codes do not define good
moral character, leaving licensing boards and
agencies much latitude in determining which
criminal backgrounds do not meet this criterion.28
Barriers to Employment
Direct barriers to employment for those who have
been previously incarcerated exist in many different
forms of social policy.
Occupational licensing restrictions are daunting
both in numbers and scope. A survey by Hunt,
Bowers, and Miller (1973) conducted in the early
1970s revealed as many as 1,948 separate
statutory and licensing provisions barring or
restricting applicants with arrest or conviction
records. Thirty years later, occupational licensing
restrictions have spread to such an extent that they
defy enumeration.29
A number of legal barriers exist that bar exoffenders from acquiring lawful employment, an
essential means for acquiring the resources to
human needs, and social reintegration.
Most states have enacted various laws that make it
difficult, if not impossible, for ex-offenders to
acquire employment, regardless of their work
history or risk of re-offending. 23
Many states have also taken the position that
employers should be given much discretion in
9
The sale of a controlled substance:
making hiring or licensing decisions about
applicants with any form of criminal record. Thirtyeight states permit employers and licensing
agencies to rely on arrest that do not lead to
convictions in determining whether to hire or
license.30
Ineligibility
First
Second
(i) complies with such criteria as the Secretary shall
prescribe in regulations for purposes of this
paragraph; and
This is also true as to barriers to education, in that
federal, state, and local social policies have
effectively barred a great number of people from
entering colleges or universities as a result of
having been formerly incarcerated for a series of
offenses.
(ii) includes two unannounced drug tests; or
(B) the conviction is reversed, set aside, or
otherwise rendered nugatory.
(3) DEFINITIONS- In this subsection, the term
“controlled substance” has the meaning given the
term in section 102(6) of the Controlled Substances
Act (21 U.S.C. 802(6)).
Barriers to Education
Subsection (r) of section 484 of the Higher
Education Act of 1998 [see 20 U.S.C. 1091(r)]
states:
(2) EFFECTIVE DATE- The amendment made by
paragraph (1), regarding suspension of eligibility for
drug-related offenses, shall apply with respect to
financial assistance to cover the costs of
attendance for periods of enrollment beginning after
the date of enactment of this Act.33
Suspension of eligibility for drug related offenses;
(1) IN GENERAL - A student who has been
convicted of any offense under any Federal or
State law involving the possession or sale of a
controlled substance shall not be eligible to receive
any grant, loan, or work assistance under this title
during the period beginning on the date of such
conviction and ending after the interval specified in
the following table:
Barriers to Housing
Having a criminal history is a significant barrier to
people with criminal records who need to have
access to safe, secure and affordable housing just
as any other resident in a community.
If convicted of an offense involving the possession
of a controlled substance:
-
Period
2 years
Indefinite
(A) the student satisfactorily completes a drug
rehabilitation program that—
Iowa law allows noncriminal justice agencies, state
and private employers, access to obtain criminal
records of arrest and/or convictions.32
Offense
Offense
Offense
-
REHABILITATION- A student whose eligibility has
been suspended under paragraph (1) may resume
eligibility before the end of the ineligibility period
determined
under
such
paragraph
if--
In many of these States, every session of the
legislature in recent years has resulted in new
statutory authority for noncriminal justice agencies
and groups to obtain criminal record checks for
such purposes as public and private employment.31
Ineligibility
First
Second
Third
Offense
Offense
Many people leaving the criminal justice system do
not have a home to return to. Additionally, they very
often return to communities where persistent
poverty and lack of jobs and affordable housing
make finding a permanent home difficult. This is
especially true for sex offenders.
Period
1 year
2 years
Indefinite
10
Additionally, if a member of a household applying to
lease a Tax Credit unit has been arrested for a
felony, and the charge has not yet been
adjudicated, the unit cannot be rented to that
household.
For example:
Federal laws give local housing agencies much
leeway to decide whether to bar individuals with
criminal records from public housing premises.
Many public housing authorities deny eligibility for
federally assisted housing based on an arrest that
never led to a conviction.
Housing and Urban Development (HUD) initiatives
for public housing assistance clearly state that
Public Housing Authorities (PHA) have very little
restrictions under the act:
The Low-Income Housing Tax Credit (LIHTC) is the
most important resource for creating affordable
housing in the United States today. The LIHTC
database, created by HUD and available to the
public since 1997, contains information on nearly
22,000 projects and more than 1,141,000 housing
units placed in service between 1987 and 2002.34
Access to criminal and drug abuse records - The
act allows PHAs to require applicants for public
housing and tenant-based assistance to consent to
the PHA obtaining adult criminal conviction records
from the National Crime Information Center, other
law enforcement agencies and drug abuse
treatment facilities. The PHA requires applicants to
allow the PHA to get records on possible current
illegal drug use from a drug abuse treatment
facility.
Created by the Tax Reform Act of 1986, the LIHTC
program gives States the equivalent of nearly
$5 billion in annual budget authority to issue tax
credits for the acquisition, rehabilitation, or new
construction of rental housing targeted to lowerincome households.35
Admissions screening - The act authorizes PHAs
and project owners to establish standards
prohibiting admission to federally assisted housing
to households with a member who they determine
is illegally using a controlled substance or abusing
alcohol in a way that may interfere with the health,
safety, or peaceful enjoyment of the premises by
other residents. They are also allowed to deny
admission to a household if any member during a
reasonable time before admission engaged in drugrelated or violent criminal activity. PHAs and project
owners must also screen for and prohibit admission
of persons who are dangerous sex offenders.
Affordable Housing Tax Credit (AHTC) Rules
permanently banned any person convicted of a
felony. Although the 2007 AHTC Rules allow the
housing of some convicted felons after a certain
number of years, confusion has arisen over the
issue of those individuals who have only been
arrested for a felony, and have not been convicted.
The new language, as adapted from the HUD
Section 8 Rules, reads, “currently engaged in, has
been arrested, convicted, or incarcerated (for a
felony).” Any felony.
Terminations and evictions - Residents of public
housing, tenant-based Section 8 assistance, and
other federally assisted housing may have their
leases terminated and be subject to expedited
eviction (after an expedited grievance process) for
violent or drug-related criminal activity and felony
convictions. Families evicted for drug-related
criminal activity from public housing, tenant-based
Section 8, or other federally assisted units are
prohibited from being readmitted for 3 years.36
The intent of the AHTC Rules is not to prevent
innocent people from residing in Tax Credit
housing. For example, an individual arrested for a
felony, but who is acquitted of the charge (not
convicted), is eligible to reside in a Tax Credit
property. The same is also true for an individual
arrested on a felony charge that is dismissed.
However, if a member of a household currently
residing in a Tax Credit unit is arrested for a felony,
that individual is no longer qualified to remain in the
unit pending the disposition of his/her case.
People with criminal records who seek private
housing are often also confronted with the same
requirements set-forth by HUD, and are routinely
screened out following a background check that
reveals their criminal history.
11
Rental agreements contain many, if not all of these
eligibility requirements, and in effect bar entire
families from obtaining necessary shelter.
these restoration processes are so cumbersome
that few ex-offenders are able to take advantage of
them.36
Barriers to Voting
Impact of Felony Disenfranchisement:
As stated previously, felony disenfranchisement
has historically been the predominate tool to deny
those formerly incarcerated the right to vote.
• An estimated 5.3 million Americans, or one in
forty-one adults, have currently or permanently lost
their voting rights as a result of a felony conviction.
In many states, the effect of being denied the right
to vote have silenced the political voice of those
whom have sought changes in a criminal justice
system they view as a human landfill that serve
political interests not society, especially states
which have embarked on a robust prison
construction effort to meet the reservoir of citizens
being incarcerated as a result of the “Get Tough”
on crime legislative packages.
• 1.4 million African American men, or 13% of black
men, are disenfranchised; a rate seven times the
national average.
• An estimated 676,730 women are currently
ineligible to vote as a result of a felony conviction.
• More than 2 million white Americans (Hispanic
and non-Hispanic) are disenfranchised.
• In five states that deny the vote to ex-offenders,
one in four black men is permanently
disenfranchised.
Since the founding of the country, most
states in the U.S. have enacted laws
disenfranchising convicted felons and exfelons. In the last 30 years, due to the
dramatic expansion of the criminal justice
system, these laws have significantly
affected the political voice of many
American communities.37
• Given current rates of incarceration, three in ten
of the next generation of black men can expect to
be disenfranchised at some point in their lifetime. In
states that disenfranchise ex-offenders, as many as
40% of black men may permanently lose their right
to vote.
State Disenfranchisement Laws:
• 48 states and the District of Columbia prohibit
inmates from voting while incarcerated for a felony
offense.
• 2.1 million disenfranchised persons are exoffenders who have completed their sentences.
The state of Florida had an estimated 960,000 exfelons who were unable to vote in the 2004
presidential election.38
• Only two states - Maine and Vermont - permit
inmates to vote.
Barriers to Life
In deploying the Service/Social Access Model we
are able to now systemically state that an individual
who is in need of services and/or resources, who
possess knowledge of those services and/or
resources, has the physical means to reach these
services and/or resources, and who hurdles the
psychological stigma attached to the services
and/or resources, is barred from receiving those
services and/or resources in that they are unable to
pass the screening and eligibility criteria that has
legislative disqualified them as a result of being
formerly incarcerated.
• 35 states prohibit felons from voting while they are
on parole and 30 of these states exclude felony
probationers as well.
• Three states deny the right to vote to all exoffenders who have completed their sentences.
Nine others disenfranchise certain categories of exoffenders and/or permit application for restoration
of rights for specified offenses after a waiting period
(e.g., five years in Delaware and Wyoming, three
years in Maryland, and two years in Nebraska).
• Each state has developed its own process of
restoring voting rights to ex-offenders but most of
12
Utilizing SAM I-II, we are able to identify that social
policies have been developed to make sure that
those formerly incarcerated have little, to no access
to these life resources.
The psychological health of offenders have been
determined to be that 33.8% of those incarcerated
have a diagnosed mental illness.42
The operating budget for the Department of
Corrections for Fiscal Year 2006 is $348,584,948.43
Social policy that inhibits and denies such access
to services and resources saturate our social
institutions.
General Fund
Tobacco Money
Other Revenue
Total
They are barriers to life for many in our society, and
they are social disenfranchisement policies that
impose a civil death sentence on those who have
made mistakes in their lives.
$292,975,307
$3,141,285
$17,146,766
$313,263,35843a
(43a See budget note)
Looking In The Mirror
We, as a society, must endeavor to change our
social policies, change our social institutions, and
change our political institutions to be pro-social
factors, not criminogenic factors.
If we were to look at ourselves in the mirror, as a
State, the reflection that we find should scare us.
Social policies that impose restrictions and bar
citizens of human needs are incongruous with
criminogenic research.
For what we would fined is this; we are spending
over $348.5 million dollars a year to incarcerate
and supervise just a little over 8,183 or 20.9% for a
crime against a person, (3,761) in prison, (4,421)
on parole.
The inevitable results of such social policies are a
prelude to further alienation, social disruption, and
human suffering ⎯it is bizarre to think otherwise.
The remaining 31,006 or 79.1% of those
imprisoned or on parole are non-violent offenses.
The “Civil Death Penalty” is real⎯people are dying
as a result of it⎯everyday.
The image we see emerging is not very attractive,
in that 20,701 or 66.7% are drug offenders (11,006)
and public order offenders (9,695).
The Face of Iowa
Considering the social policies we have articulated
regarding access to services and resources, these
numbers have a chilling effect.
In May 2006, we find 39,189 citizens under the
authority of the Iowa Department of Corrections. Of
that population, 11,006 or 28% are drug offenders,
9,695 or 24.7% are under correctional authority as
a result of Public Order, 9,324 or 23.8% are
property offenders, 8,183 or 20.9% are offenders
having committed a crime against a person, with
981 or 2.5% being classified as other.39
If we were to take just 1% of the 11,006 drug
offenders, which is approximately 110, and plug
that number into the Service/Social Access Model,
the result of service/resource utilization (access to
services/resources) would be zero.
Of the 8,183 classified as having committed a crime
against a person, 1,119 or 7.31% were classified as
a sex offense.40
Broken down into its defined states and transition
probabilities, the SAM mathematical expression is
as follows:
The racial makeup of those under correctional
authority at mid-year in 2006, are as follows: 41
P(U/N) = P(K/N) x P(A/K) x P(P/A) x P(E/P) x P(R/E),
where,
P(U/N) is the probability that an individual in need
utilizes the services during some interval of time;
White:
Black:
Hispanic:
Nat. Amer.:
Unknown:
30,804
5,573
2,002
452
28
78.6%
14.2%
5.1%
1.2%
0.1%
P(K/N) is the probability that an individual has
knowledge of the need and of service availability given
that the individual has a need;
13
P(A/K) is the probability that an individual has physical
access given that the individual has knowledge;
legislative social policies have had on offender
access.
P(P/A) is the probability that an individual can overcome
psychological barriers given that the individual has
physical access;
Parametric analysis or simulation is another use of
SAM. It involves changing various transition
probabilities and then simulating what happens to
service, resource, and social access. The decision
by legislators and special interest groups to initiate
the 2000 foot residency restriction on sex
offenders, is an excellent example.
P(E/P) is the probability that an individual is eligible
given that the individual has overcome psychological
barriers;
P(R/E) is the probability that resources are available
given that the individual is eligible.
Broken down into its defined states and transitions
it is expressed as:
Referring to the data, we can quantify our
statement, our position, that zero offenders will be
able to access the services/resources.
P(U/N) is the probability that an individual sex
offender who needs shelter locates and establishes
housing within a community or county.
There are a total of 11,006 individuals in the
regional population. Of these, 110 (1%) are found
to be in need. Of the 110, one (1) is found to be
unaware of the service availability and drops out,
failing to make the transition from knowledge to
physical access. Thus: P(K/N) = (110-1)/110 =
109/110 or 0.9. Another individual has no
transportation even though that individual knows
about the services; therefore, P(A/K) = (109-1)/109
= 108/109 or 0.9. All other individuals surmount the
previous barriers and get to the service/resource
institution but finds that they are ineligible, and
therefore P(E/P) = (108-108)/108 or 0.0. No
individual is eliminated because of psychological
barriers or a lack of resources available, so P(P/A)
= 1.0 and P(R/E) = 1.0. When these probabilities
are inserted into the equation, we find that:
P(K/N) is the probability that an individual sex
offender has knowledge of the need of housing
availability given restrict access of sex offenders to
the community or county;
P(A/K) is the probability that an individual sex
offender has physical means to un-restricted
access to housing outside the 2000 foot buffer zone
given that the individual sex offender has
knowledge;
P(P/A) is the probability that an individual sex
offender can overcome psychological barriers to
restricting liberties where a sex offender can live
given that the individual sex offender has physical
access;
P(U/N) = 0.9 x 0.9 x 1.0 x 0.0 x 1.0 = 0.0
P(E/P) is the probability that an individual sex
offender is legally capable of living in a community
or county restricting access to sex offenders given
that the individual sex offender has overcome the
psychological barriers;
Thus, for a population of 110, total utilization of the
services/resources is given by:
U = 9 x P(U) = 9 x 0.0 = 0
P(R/E) is the probability that housing resources are
available to individual sex offenders given that the
individual sex offender is eligible to legally live in a
community or county.
SAM-I and SAM-II have three possible uses:
prediction, parametric analysis, and evaluation.
Prediction is a rather straight-forward application of
the model and merely involves extrapolating past
performance of accessing the services or resources
of the social institution. Thus, if social policies that
make offenders ineligible were not in existence,
and the data were available from our social
institutions on how many offenders they once
served in the past, we could predict how many are
not now being served today, and the impact these
There are a total of 6,209 sex offenders registered
in Iowa, you do the math.
Care must be taken, however, to assess the impact
of new legislation upon all transition probabilities.
Gains in restricting access made at the front end of
the process are lost when sufficient resources are
14
assuredly the device that births the system of
imprisonment and prisons.
not made available to the new demands, that is,
P(R/E) (housing resource availability) will surely
drop.
The continuous debate that focuses on the prison
system, and who is in the prison system, must be
re-directed to why we have a prison system, and
why people are imprisoned. The truth of such a
focus will reveal that social policy developed at the
local, state, and federal level is designed to create
inequalities and then exploit those inequalities to
advance social, political, and economic agendas
that uphold the view that prison and imprisonment
are justified in our society.
The image in the mirror is revealing, it says we are
old, antiquated, in our views and our ways. It says
we need another face, one we can look at and not
be ashamed of. It says it is time for a change; a
change in social policy that does not endeavor to
disenfranchise entire segments of our society.
Being Comfortable with Uncomfortable Policies
We have become comfortable about being
uncomfortable with the inequities we see in our
communities. We have become numb to the social
and economic disparities that have been created by
social policies that socially, economically, and
politically disenfranchise millions of people in our
society.
Social policy that endeavors to maintain inequalities
to further the existence of prison, and
imprisonment, serve architects of such policy, not
society. Identifying such policies and their framers,
who hold our society hostage to such immoral
entrepreneurialism, is central in eliminating the
manufactured inequalities we use to disenfranchise
and imprison people in our society.
We have become comfortable with the fact that 2.1
million people⎯human beings⎯are imprisoned in
this country. And that over 7 million more are
under some sort of correctional supervision.
It is social policy that fills our prisons; one must not
ever forget that.
Policies that socially, economically, and politically
disenfranchise millions⎯are a civil death penalty.
We have become comfortable with uncomfortable
social policies, because we have failed to see the
result of such policies and the connection between
social policies of inequality and the prison system.
It is time for a radical change in our social policies,
our social institutions, and in our comfortableness.
A Call for Radical Change
We can no longer be comfortable with embracing
social policies and social institutions that produce
the very suffering they were sold to the American
public to cure.
The prison system is about inequalities. In our
social system these inequalities are planned,
manufactured, and produced, and then marketed in
attractive packages labeled social policy, and sold
to American society. Abolish the social policies that
birth the system of imprisonment, and the prison
system will be abolished. What “social policy” has
criminalized, decriminalization will remedy. The
inherent sense of this is unmistakable in view of the
people who populate our prisons. We must address
the cause, not the result. Changing the causes for
prisons, changes the result for prisons.
ENDNOTES:
1.
2.
3.
4.
5.
The social policies that are embedded in our social
institutions which labor to disenfranchise citizens
from quality health care, education, employment,
housing, economic stability, and all facets of
endeavoring to realize their benefits, are most
6.
7.
15
Manza, Jeff (2006), Locked Out. NY. Oxford
Ibid, p.35
Ibid, p.43
Ibid, p.73
Bureau of Justice Statistics, "Prison and Jail
Inmates at Midyear 2002" (NCJ-198877), Paige
M. Harrison and Jennifer C. Karberg.
Grigsby, Robert S. (2000-2006), Criminal justice
research: a point of departure in offender
rehabilitation and restoration. Iowa: Restorative
Justice Research Center.
Iowa Code § 692A.2A(1,2).
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
Christopher Uggen, Locked Out: Felony
ICLU Press Release, Ben Stone, Executive
Director, September 29, 2005
Ibid.
City of Des Moines, Ordinance 145000,
Residency Restrictions for Sex Offenders, 2005
Polk County Board of Supervisors, Ordinance
No. 238, Chapter 34, Residency Restrictions for
Sex Offenders, effective upon publication
(2005).
Johnson County GIS Mapping, Sex Offender
Restriction Zone, 2006; Linn County GIS
Mapping, Sex Offender Restriction Zone, 2006.
Grigsby, Robert S. (2000-2006), Criminal justice
research: a point of departure in offender
rehabilitation and restoration. Iowa: Restorative
Justice Research Center.
Criminal Justice Research: A Point of Departure
in Offender Rehabilitation and Restoration, 2006
Ibid, p.22
Ibid, p.51
Ibid, p.77
Executive Order 42, Thomas J. Vilsack,
Governor, Iowa; 2005
48A.5 Iowa Code; Iowa City Housing Code; City
of Cedar Rapids Housing Code
TANF, Welfare Reform Law, 1996 U.S. DHS
Ibid, p.12
Restorative Justice Research Center, 2006
Legal Action Center, 2004
Ex-Offenders Need Not Apply: The Criminal
Background Check in Hiring Decisions; Journal
of Contemporary Criminal Justice, Vol. 21 No.1,
February 2005 6-30
Ibid, p.7
Ibid, p.9
Ibid, p.9
Ibid, p.10
Ibid, p.22
Ibid, p.23
Compendium of State Privacy and Security
Legislation: 2002 Overview; November 2003,
NCJ 200030; U.S. Department of Justice Office
of Justice Programs; Bureau of Justice Statistics
Ibid, p.7
Subsection (r) of section 484 of the Higher
Education Act of 1998 (see 20 U.S.C. 1091(r))
Low-Income Housing Tax Credit (LIHTC), HUD,
March 8th, 2005
Ibid, p.15
Sources: Jamie Fellner and Marc Mauer, Losing
the Vote: The Impact of Felony Disenfranchisement
Laws in the United States, Human Rights Watch, The
Sentencing Project, October 1998; Patricia Allard
and Marc Mauer, Regaining the Vote: An Assessment
Disenfranchisement and American Democracy, 2006
Ibid, p.17
Ibid, p.23
Iowa Department of Corrections, 2006
Ibid, p.16
Ibid, p.16
Iowa Department of Corrections, Report to the
Board of Corrections, Mental Health, April 2006.
43. Iowa Department of Corrections, Quick Facts
May 2006.
37.
38.
39.
40.
41.
42.
43a. Budget Note: Iowa Budget Report 2007,
identifies the revenue and expenditures for the Iowa
Department of Corrections for FY 2006.
of Activity Relating to Felon Disenfranchisement Laws,
The Sentencing Project, January 2000, updates by
The Sentencing Project, and Jeff Manza and
16