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2999
THE MODERN DAY SCARLET LETTER
Ifeoma Ajunwa*
The stigma gone, Hester heaved a long, deep sigh, in which the burden of
shame and anguish departed from her spirit. O exquisite relief! She had
not known the weight, until she felt the freedom!
1
American society has come to presuppose the efficacy of the collateral
legal consequences of criminal conviction. But little attention has been
paid to their effects on the reintegration efforts of the formerly incarcerated
and, in particular, formerly incarcerated women. An 1848 case, Sutton v.
McIlhany, affirmed collateral legal consequences as constituting an
important part of criminal punishment. More recent cases, such as Turner
v. Glickman, in which a class of people convicted of drug crimes were
subsequently denied food stamps and other government benefits, have
upheld the constitutionality of imposing these legal penalties on an
individual even after she has served her prison sentence.
This Article argues that the collateral legal consequences of criminal
conviction represent a “modern day scarlet letter” that lingers with the
formerly incarcerated woman for life and that serves to circumscribe those
individuals’ economic and social opportunities. Calling upon critical legal
theory and empirical social science research, this Article argues that the
collateral legal consequences of conviction exact a disproportionate cost on
formerly incarcerated women. Expanding upon the understanding of
Professor Kimberlé Crenshaw’s critical legal theory of “intersectionality,”
this Article discusses the predominant intersectional identities that formerly
incarcerated women embody and examines how these identities compound
the impact of collateral legal consequences. This Article finds that Black
women are most negatively impacted by the collateral legal consequences
of incarceration. Relying on Professor Martha Fineman’s concepts, this
Article argues that the state has a “positive obligation” to abrogate
* Assistant Professor, David A. Clarke School of Law, University of the District of
Columbia; Ph.D. Candidate, Columbia University. For their helpful comments, many thanks
to Kimberlé Crenshaw, Ann Cammett, and the participants in the symposium entitled
Critical Race Theory and Empirical Methods Conference held at Fordham University School
of Law. Thanks also go to the David A. Clarke School of Law and to the Lutie Lytle Black
Women Faculty Scholarship Workshop where I presented earlier versions of this Article. I
remain grateful to my research assistant, Stacy Fuller. For an overview of the symposium,
see Kimani Paul-Emile, Foreword: Critical Race Theory and Empirical Methods
Conference, 83 F
ORDHAM L. REV. 2953 (2015).
1. N
ATHANIEL HAWTHORNE, THE SCARLET LETTER 167 (Barnes & Noble Classics 2003)
(1850).
3000 FORDHAM LAW REVIEW [Vol. 83
collateral legal consequences that disproportionately negatively impact
women and to mandate gender-sensitive policies for federally subsidized
reentry organizations. This Article proposes a model of reentry that is
cognizant of the increased vulnerability of formerly incarcerated women
and that is better designed to accommodate the exigencies that are intrinsic
to their intersectional identities.
I
NTRODUCTION ........................................................................................ 3000
I.
COLLATERAL CONSEQUENCES AS THE MODERN DAY SCARLET
LETTER ......................................................................................... 3006
A. The Rationale for Shaming As a Recidivism Reduction Tool 3007
B. The Collateral Damage of the War on Drugs ........................ 3009
II.
INTERSECTIONALITY AND COMPOUND IDENTITIES .......................... 3011
A. The Intersectionality of Criminality and Gender ................... 3014
B. The Unequal Demands of Parenthood ................................... 3014
C. Victims of Domestic Violence and Sexual Abuse ................... 3015
D. Racial Minorities ................................................................... 3016
III.
FOUR KEY ARENAS OF LEGAL DISCRIMINATION ............................ 3017
A. Government Aid: Food and Housing .................................... 3017
B. Employment ........................................................................... 3018
C. Education ............................................................................... 3019
D. Family Ties ............................................................................ 3021
IV.
THE DUTY OF THE RESPONSIVE STATE ........................................... 3022
A. Removing the Scarlet Letter ................................................... 3022
B. Enabling Reintegration .......................................................... 3024
V.
MANDATING A BETTER MODEL OF REENTRY .................................. 3024
A. Gender-Neutral Policies Ignore the Needs of Women ........... 3024
B. Regulations for a More Inclusive Model ............................... 3025
C
ONCLUSION ........................................................................................... 3026
I
NTRODUCTION
Mass incarceration
2
is one of the most significant social problems in
America. Although men represent the majority of the incarcerated
2. Studies show that nearly one in three Americans have been arrested by age twenty-
three and that on any given day, there are 1 in 100 adults behind bars. See Amy L. Solomon,
In Search of a Job: Criminal Records As Barriers to Employment, N
AT’L INST. OF JUSTICE
(June 15, 2012), http://www.nij.gov/journals/270/criminal-records.htm. Some scholars
argue that the term “hyperincarceration” is a more appropriate descriptor for the high rates of
imprisonment in the United States as those rates are highest in certain populations—Black
and Latino males—rather than throughout the mass population of the United States. See, e.g.,
Loïc Wacquant, Forum, in R
ACE, INCARCERATION, AND AMERICAN VALUES 57, 59 (2008)
(arguing for the use of “hyper-incarceration” rather than “mass incarceration”); see also
Frank Rudy Cooper, Hyper-Incarceration As a Multidimensional Attack: Replying to
Angela Harris Through the Wire, 37 W
ASH. U. J.L. & POL’Y 67 (2011) (arguing that
hyperincarceration is a multidimentsional attack on Blacks and Latinos). Although
2015] THE MODERN DAY SCARLET LETTER 3001
population, women comprise the fastest growing segment of the
incarcerated in the United States—to illustrate, from 1995 to 2008, the
female prison population increased by 203 percent.
3
As of 2003, nearly one
million women were in some way “under the control of the criminal justice
system,” including 72,671 women who were in prison, 167,000 in jail, and
800,000 on parole and probation.
4
Almost half of those women were
African American.
5
While there are myriad legal issues
6
associated with mass incarceration,
this Article constrains its focus to the impact of the collateral legal
consequences of conviction,
7
particularly as they affect formerly
“hyperincarceration” might have been a more accurate description in the early 1990s when
the War on Drugs (and its harsh sentencing policies) most targeted crack cocaine, this is no
longer the case. Given the decline of crack cocaine, a drug associated with Black and Latino
populations and the rise in the use and sale of heroin and methamphetamines associated
more with white populations, the War on Drugs now impacts all U.S. communities and has
indeed led to the mass incarceration of many individuals. See, e.g., Combat
Methamphetamine Epidemic Act of 2005 (CMEA), Pub. L. No. 109-177, 120 Stat. 256
(2006); see also Zusha Elinson, Heroin Makes a Comeback: This Time, Small Towns Are
Increasingly Beset by Addiction, Drug-Related Crimes, W
ALL ST. J. (Aug. 8, 2013),
http://online.wsj.com/article/SB10001424127887323997004578640531575133750.html
(detailing the rise of heroin addiction in rural areas and the accompanying rise in crime).
3. See D
ARRELL GILLIARD & ALLEN BECK, BUREAU OF JUSTICE STATISTICS, NCJ-
161132,
PRISON AND JAIL INMATES, 1995 (1996), available at
http://www.bjs.gov/content/pub/pdf/PJI95.PDF; W
ILLIAM J. SABOL ET AL., BUREAU OF
JUSTICE STATISTICS, NCJ 228417, PRISONERS IN 2008 (2009), available at
http://www.bjs.gov/content/pub/pdf/p08.pdf.
4. Natalie J. Sokoloff, The Impact of the Prison Industrial Complex on African
American Women, 5 S
OULS 31, 32 (2003).
5. Id.
6. See, e.g., Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in
African American Communities, 56 S
TAN. L. REV. 1271, 1275, 1278 (2004) (detailing the
pernicious effects of the War on Drugs on African American communities); Bryan A.
Stevenson, Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of
Criminal Cases, 41 H
ARV. C.R.-C.L. L. REV. 339, 343 (2006) (documenting how mass
incarceration has disrupted the administration of the criminal justice system); see also
M
ICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF
COLORBLINDNESS 178–220 (2010) (arguing that mass incarceration resembles the Jim Crow
laws because of its disproportionate impact on Black and Latino males in the United States);
Ifeoma Ajunwa, “Bad Barrels”: An Organizational-Based Analysis of the Human Rights
Abuses at Abu Ghraib Prison, 17 U.
PA. J.L. & SOC. CHANGE 75, 76–77 (2014)
(demonstrating that human rights abuses on par with the infamous incidents at the American
military Abu Ghraib prison also routinely occur within American domestic prisons, most
notably in the Los Angeles jail system); Ann Cammett, Shadow Citizens: Felony
Disenfranchisement and the Criminalization of Debt, 117 P
ENN ST. L. REV. 349, 349 (2013)
(asserting that “criminal justice debt can serve as an insurmountable obstacle to the
resumption of voting rights and broader participation in society”); Nekima Levy-Pounds,
Beaten by the System and Down for the Count: Why Poor Women of Color and Children
Don’t Stand a Chance Against U.S. Drug-Sentencing Policy, 3
U. ST. THOMAS L.J. 462, 494
(2006) (arguing that poor women of color and their children are adversely impacted by
current drug sentencing policies because such policies are designed to relegate women of
color and their children into a perpetual “pink hole,” which “engulfs the most vulnerable
members of society”).
7. Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten
Section of the Model Penal Code, 30 F
ORDHAM URB. L.J. 1705, 1705 (2003) (“The collateral
consequences of a criminal conviction linger long after the sentence imposed by the court
has been served.”).
3002 FORDHAM LAW REVIEW [Vol. 83
incarcerated women. This Article argues, with the support of empirical
evidence, that formerly incarcerated women are disproportionately
impacted by the collateral legal consequences of criminal conviction
because of their intersectional identities.
8
This Article does not overlook
the fact that formerly incarcerated men are also negatively affected by the
collateral legal consequences of conviction. In fact, much of the social
science research on the impact of collateral legal consequences has focused
exclusively on men, as is evidenced by the landmark work of Harvard
sociologist Devah Pager.
9
The work of sociologists Bruce Western and
Becky Pettit also has exclusively focused on male populations.
10
In
contrast, the struggles of formerly incarcerated women to reintegrate into
society after imprisonment have remained relatively understudied.
This Article does not affirm that the collateral legal consequences of
conviction should apply only to men and not women; the paramount thesis
is that the government ought to consider how, because of the genres of
intersectional identities that predominate among the population of formerly
incarcerated women, these women are disproportionately impacted by the
punitive policies that the collateral legal consequences of conviction
represent.
Furthermore, while this Article acknowledges that Black
11
women are
the most negatively impacted by collateral legal consequences, the decision
to not focus exclusively on the plight of Black women is one based on the
long recognized reality in critical legal theory studies that coalition building
is necessary to engender positive social change and avoid marginalization.
12
Thus, by framing the issue in a multiracial manner, I allow other groups to
8. See Marne L. Lenox, Neutralizing the Gendered Collateral Consequences of the
War on Drugs, 86 N.Y.U. L. REV. 280 (2011) (finding that women are unjustly impacted by
the collateral legal consequences of criminal conviction but not presenting empirical
evidence in the form of interviews of the women).
9. See Devah Pager, The Mark of a Criminal Record, 108 A
M. J. SOC. 937, 959 (2003)
(finding that Black male job applicants with criminal records were the least likely to get a
callback interview). Pager also found that Black applicants without a criminal record
received fewer callbacks than white applicants with a criminal record. Id. at 958; see also
Devah Pager, Double Jeopardy: Race, Crime, and Getting a Job, 2005 W
IS. L. REV. 617
(discussing the legal implications of the author’s audit study of employment prospects for
formerly incarcerated men).
10. See Bruce Western & Becky Pettit, Incarceration & Social Inequality, 2010
D
AEDALUS 8 (noting the cycle of inequality created by the intergenerational incarceration of
Black and Latino males, especially those in their twenties with low education credentials).
11. Following the tradition in critical race theory whose founders have noted that
“Blacks, like Asians [and] Latinos . . . constitute a specific cultural group and, as such,
require denotation as a proper noun,” I capitalize “Black” as a racial descriptor in the United
States. Kimberlé Williams Crenshaw, Race, Reform, and Retrenchement: Transformation
and Legitimation in Antidiscrimination Law, 101 H
ARV. L. REV. 1331, 1332 n.2 (1988).
However, I also use the term “African American” interchangeably with the term “Black.”
This use is based on the realities of U.S. law enforcement wherein people of African
ancestry with dark skin are racially profiled, with no consideration for cultural background.
12. See James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New
Jim Crow, 87 N.Y.U.
L. REV. 21, 64 (2012) (“[F]raming issues in terms of black and white
discourages other racial minorities from engaging in coalition politics.”); see also Anthony
V. Alfieri & Angela Onwuachi-Willig, Next-Generation Civil Rights Lawyers: Race and
Representation in the Age of Identity Performance, 122 Y
ALE L.J. 1484, 1520–30 (2013).
2015] THE MODERN DAY SCARLET LETTER 3003
come to recognize how their interests align with those of Black women who
are most disproportionally impacted by the policies.
13
With the same aim of reaching all audiences, this Article employs
ethnographic data and interviews of formerly incarcerated women from an
academic study
14
to illustrate some of the hurdles that formerly incarcerated
women face as a result of the intersection of their gender, criminal record,
and other identities. The purpose of such empirical social science data is
twofold. First, the interviews provide a nonfiction narrative. Narratives
have become an integral part of critical legal studies scholarship,
15
particularly as a means to focus the reader’s attention on legal inequalities
that had hitherto gone unrecognized.
16
However, the presence of narratives
in legal scholarship has been criticized.
17
In this Article, the empirically derived narratives, obtained through
rigorous social science protocols, address the criticism that the use of
narratives in critical race scholarship can distort the truth. The intent
behind the inclusion of such narrative is not to reify “objectivity.” As a
social science discipline, sociology recognizes that even at the collection
stage, the researcher inevitably influences the results of her research, even if
by her mere presence.
18
13. Alfieri & Onwuachi-Willig, supra note 12, at 1519 (arguing for a redefinition of
what civil rights law practice means in the present day and that the new civil rights “extend
beyond race, embracing rights movements on issues such as sex, sexuality, disability and
immigration”).
14. Under the auspices of the sociology doctoral program of Columbia University, I
conducted an ethnography of a reentry organization in Ohio, where I interviewed formerly
incarcerated men and women who make use of the organization. This study was approved
by the Human Research Internal Review Board of Columbia University as research protocol
IRB-AAAK9867. To ensure anonymity, the respondents are assigned a numerical identifier.
This is in no way meant to minimize the humanity of the women who graciously shared their
lived experiences with me.
15. See, e.g., D
ERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL
JUSTICE (1987); DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF
RACISM (1992); DERRICK BELL, RACE, RACISM AND AMERICAN LAW (6th ed. 2008).
16. See, e.g., Richard Delgado, Storytelling for Oppositionists and Others: A Plea for
Narrative, 87 M
ICH. L. REV. 2411, 2440 (1989) (“Stories humanize us. They emphasize our
differences in ways that can ultimately bring us closer together. They allow us to see how
the world looks from behind someone else’s spectacles. They challenge us to wipe off our
own lenses and ask, ‘Could I have been overlooking something all along?’”); see also
Kathryn Abrams, Hearing the Call of Stories, 79 C
ALIF. L. REV. 971, 972 (1991) (“They may
be a bridge to those who share a similar vision, or a means of inciting change among those
who do not.”); Charles Lawrence III, Listening for Stories in All the Right Places: Narrative
and Racial Formation Theory, 46 L
AW & SOC’Y REV. 247, 251 (2012) (“Stories express
depth and complexity, and allow for ambiguity and multiple interpretations. They inspire
feelings of commonality, connectedness, and empathy among tellers, listeners, and the
subjects of our stories.”).
17. D
ANIEL A. FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL
ASSAULT ON TRUTH IN AMERICAN LAW 39 (1997) (“[S]tories can distort legal debate,
particularly if those stories are atypical, inaccurate, or incomplete.”).
18. In sociological ethnographic work, researchers are expected to think about how their
identity and experiences could influence their research. See Anne-Marie Ambert et al.,
Understanding and Evaluating Qualitative Research, 57 J.
MARRIAGE & FAM. 879, 879–93
(1995). Also, researchers are expected to acknowledge their biases and to realize that it is
impossible not to bring in any subjectivities to the research process. Id.; see also Richard
3004 FORDHAM LAW REVIEW [Vol. 83
Second, beyond merely reassuring the critics, the inclusion of nonfiction
narratives derived from empirical qualitative social science research serves
to fulfill an important imperative of critical legal theory scholarship—it
amplifies the voices of the marginalized. As one critical legal theory
founder, Professor Mari Matsuda, has observed, “[l]ooking to the bottom—
adopting the perspective of those who have seen and felt [the injustices or
inequalities that one is studying] can assist critical scholars in the task of
fathoming the phenomenology of law and defining the elements of
justice.”
19
To start to grasp the devastating effects of the collateral legal
consequences of conviction on women, consider this hypothetical scenario
that combines the typical experiences of many incarcerated women: Julie is
a single mother who is addicted to crystal methamphetamines.
20
She
initially started taking the drug because she found that it gave her the extra
energy to work long hours as a waitress to provide for herself and her son.
She subsequently became romantically involved with her drug dealer,
Michael, who would supply her with the drug for free. One Sunday
evening, the DEA raids Julie’s apartment on an anonymous tip that her
boyfriend, who the DEA knows to be a drug dealer, is using the apartment
as a lab. The DEA does not find Michael but while searching Julie, they
discover a small amount of the drug. They offer Julie immunity in
exchange for her cooperation in a sting operation to arrest Michael. She
refuses and, as a result, she is charged with possession of a controlled
substance and endangering the life of a minor (because she admitted to
using the drug in the home she shares with her two-year-old son). She
pleads guilty and when she is sentenced, the judge tells her that he is
disgusted that a mother would choose to use drugs and orders the maximum
sentence possible.
21
She is sent to prison for twenty-six months. After
serving fifteen months of her sentence, she learns that her son, who entered
the foster system the day she was arrested, is now eligible for adoption
pursuant to the Adoption and Safe Families Act of 1997
22
(ASFA). Once
she is released from prison, she must deal with the emotional blow of
Delgado, On Telling Stories in School: A Reply to Farber and Sherry, 46 VAND. L. REV.
665, 670 (1993) (“Majoritarians tell stories . . . but with the conviction that they are not
stories at all, but the truth.”). The counter stories told by critical race theorists are necessary
because the “destruction of contingent, comforting myths is often a necessary prelude to
constructing a better, fairer world.” Id. at 671.
19. Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22
H
ARV. C.R.-C.L. L. REV. 323, 324 (1987).
20. Forty-five percent of individuals who entered methamphetamine treatment in 2003
were women. Female methamphetamine users are more likely than male users to be single
parents who live alone with their children. C
ATHLEEN OTERO ET AL., NAT’L CTR. ON
SUBSTANCE ABUSE & CHILD WELFARE, METHAMPHETAMINE ADDICTION, TREATMENT, AND
OUTCOMES: IMPLICATIONS FOR CHILD WELFARE WORKERS (2006), available at
http://www.ncsacw.samhsa.gov/files/Meth%20and%20Child%20Safety.pdf.
21. See A
NGELA J. HATTERY & EARL SMITH, PRISONER REENTRY AND SOCIAL CAPITAL:
THE LONG ROAD TO REINTEGRATION 66–67 (2010) (noting that women receive more severe
sentences than men for drug offenses).
22. Pub. L. No. 105-89, 111 Stat. 2115 (allowing children who are in foster care for
fifteen months out of a twenty-two–month period to be placed for adoption).
2015] THE MODERN DAY SCARLET LETTER 3005
having lost all parental rights to her son who has been adopted, while
maintaining the focus to continue drug addiction treatment and find
permanent housing. She also finds that although she completed her general
education degree (GED) while incarcerated, due to her status as a felon, she
is now ineligible to work as a nurse, a career path she was contemplating
before her incarceration. She is also now unable to work for her former
employer because he has an application form that requires applicants to
confess whether they have been convicted of a felony. She is despondent
about her future and unable to contemplate where and how she will live
after her stay at the short-term women’s shelter since her drug conviction
makes her vulnerable to denials of both private and public housing, and
because her conviction makes her ineglible for food stamps. She restarts a
relationship with Michael in order to avoid becoming homeless and before
long she starts using drugs again.
Unfortunately, Julie’s story is not unique. This Article details how many
formerly incarcerated women find themselves inordinately burdened with
legal penalties they continue to face even after they have served their prison
sentences. Part I of this Article provides a brief overview of the origin and
rationale behind collateral legal consequences and argues that they have
stigmatizing and exclusionary effects similar to those of the “scarlet letter”
described in Nathaniel Hawthorne’s novel depicting punishment in colonial
America.
23
Part II of this Article explicates Professor Kimberlé Crenshaw’s
legal concept of “intersectionality” and discusses the various predominant
intersectional identities that formerly incarcerated women embody,
including their status as (1) women, (2) primary caregivers, (3) victims of
domestic violence and sexual abuse, and (4) racial minorities. Part III of
this Article illuminates how these intersectional identities compound the
impact of collateral legal consequences with a focus on four key arenas in
which these collateral legal consequences come into play: (1) government
aid, (2) employment, (3) education, and (4) family ties. Part IV argues that
formerly incarcerated women are particularly “vulnerable subjects” and
that, following Martha Fineman’s theory of the “responsive state,” the
government has an affirmative obligation both to abrogate laws that serve to
impede women’s reintegration into society and to enact new laws and
policies that would facilitate women’s reentry. Finally, Part V of this
article urges a rethinking of the existing model of reentry and argues that
the male-oriented model of operation for reentry organizations (many of
which are federally subsidized) fails to take into account the intersectional
identities of formerly incarcerated women and is therefore inadequate in
effectuating their reentry into society.
I propose a model of reentry that is cognizant of the differing needs of
formerly incarcerated women, arising from their intersecting identities.
Such a model would be better designed to accommodate the exigencies that
are intrinsic to the identities. I conclude that it serves the interests of
society for formerly incarcerated women to be enabled to reintegrate
23. See HAWTHORNE, supra note 1.
3006 FORDHAM LAW REVIEW [Vol. 83
successfully. Thus, the government should carefully consider whether its
current policies are serving to make society safer by ensuring that all
members have a chance at upward mobility; or whether the opposite result
is achieved.
I.
COLLATERAL CONSEQUENCES AS THE MODERN DAY SCARLET LETTER
Because of their stigmatizing effects, the collateral legal consequences of
criminal conviction have come to represent a modern day scarlet letter for
formerly incarcerated women.
24
A collateral legal consequence of criminal
conviction is defined as: “a [legal] penalty, disability, or disadvantage,
however denominated, imposed on an individual as a result of the
individual’s conviction of an offense . . . whether or not the penalty,
disability, or disadvantage is included in . . . the sentence.”
25
The collateral
legal consequences of criminal conviction also have been referred to as:
punishment that is accomplished through the diminution of the rights and
privileges of citizenship and legal residency in the United
States . . . . [t]hrough judicial interpretation, legislative fiat, and legal
classification, these forms of punishment have been defined as “civil”
rather than criminal in nature, as “disabilities” rather than punishments, as
the “collateral consequences” of criminal convictions rather than the
direct results.
26
With some variation across the different states, collateral legal
consequences of criminal conviction include: restrictions on employment
and occupational licenses, denials of public and private housing,
ineligibility for public benefits, blocked access to legal immigration, limited
access to federal educational grants and both federal and private loans, and
potential loss of parental rights.
27
As statutes that determine collateral legal
24. See Deborah N. Archer & Kele S. Williams, Making America “The Land of Second
Chances”: Restoring Socioeconomic Rights for Ex-Offenders, 30 N.Y.U. REV. L. & SOC.
CHANGE 527, 527 (2006) (asserting that “virtually every felony conviction carries with it a
life sentence” because of the effects of the collateral legal consequences that continue to
punish and stigmatize the individual long after their prison sentence has been completed);
Ann Cammett, Expanding Collateral Sanctions: The Hidden Costs of Aggressive Child
Support Enforcement Against Incarcerated Parents, 13 G
EO. J. POVERTY L. & POL’Y 313,
319 (2006) (“Collateral sanctions, particularly against people with drug convictions, affect
poor people almost exclusively . . . sanctions themselves deprive formerly incarcerated
people of opportunities to lift themselves out of poverty.”); Loïc Wacquant, The New
‘Peculiar Institution’: On the Prison As Surrogate Ghetto, 4 T
HEORETICAL CRIM. 377, 384
(2000) (describing social discrimination, incarceration, and the preceding collateral
consequences as a “closed circuit” of perpetual marginality).
25. See U
NIF. COLLATERAL CONSEQUENCES OF CONVICTION ACT §§ 2(1)–(2) (2010),
available at http://www.uniformlaws.org/shared/docs/collateral_consequences/
uccca_final_10.pdf.
26. See Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in
I
NVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 15–16
(Marc Mauer & Meda Chesney-Lind eds., 2002).
27. See Collateral Consequences, S
ENTENCING PROJECT,
http://www.sentencingproject.org/template/page.cfm?id=143 (last visited Apr. 23, 2015).
2015] THE MODERN DAY SCARLET LETTER 3007
consequences differ from state to state,
28
this Article will focus on federally
sanctioned collateral consequences such as the ones that apply to federal
public housing, employment, federal loans for education, and the ASFA.
29
Prior to the discussion of how the stigmatization effects of collateral legal
consequences represent a modern day scarlet letter for formerly
incarcerated women, it is important to understand the historical roots, as
well as the accepted criminological theories that undergird this practice.
A. The Rationale for Shaming As a Recidivism Reduction Tool
The roots of collateral legal consequences lie both in American
puritanical history and in the more recent theories regarding the
reintegration of formerly incarcerated people. Consider Nathaniel
Hawthorne’s novel, The Scarlet Letter,
30
based on historical records of
colonial America. A young presumed widow, Hester Prynne, is punished
for her crime of adultery by being forced to wear a scarlet letter “A” at all
times; an act designed to shame her.
31
This shaming does not serve to
reintegrate her into society; rather she is shunned by her fellow villagers
and is forced to live on the margins of their town.
32
Prynne manages to eke
out a meager living for herself and her illegitimate daughter, Pearl, but she
must soon steel herself to fight the overtures of the villagers to remove her
daughter because of Prynne’s perceived pernicious influence.
33
The shaming of individuals convicted of a crime, like in The Scarlet
Letter, is a practice that persists in modern day America. The criminologist
John Braithwaite put forth a theory of reintegration in his book, Crime,
Shame and Reintegration,
34
that now serves as a template for punishment in
America.
35
Borrowing from sociological theories like labeling and control,
28. In 2003, the American Bar Association (ABA) established a new chapter of its
Criminal Justice Standards that called on each U.S. jurisdiction to collect and analyze the
collateral legal consequences in its laws and regulations. See ABA
STANDARDS FOR
COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS
§ 19-2.1 (2003). The ABA standards made a distinction between two types of collateral
consequences: (1) “collateral sanctions,” defined as penalties imposed automatically upon
conviction; and (2) “discretionary disqualifications” defined as penalties that are authorized
but not required to be imposed. Id. § 19-1.1. Although this Article chooses not to make this
distinction, because an individual may be subject to either type of consequence without
notice or process, this distinction is present in a uniform law adopted by the National
Conference of Commissioners on Uniform State Laws (NCCUSL), and also section 510 of
the Court Security Act, both of which also call for a comprehensive study of collateral legal
consequences. See ABA,
INTERNAL EXILE: COLLATERAL CONSEQUENCES OF CONVICTION IN
FEDERAL LAWS AND REGULATIONS 9 (2009).
29. For a comprehensive overview of federal statutes that impose collateral legal
consequences upon conviction, see Federal Statutes Imposing Collateral Consequences
upon Conviction,
DEP’T OF JUSTICE, http://www.justice.gov/pardon/
collateral_consequences.pdf (last visited Apr. 23, 2015).
30. H
AWTHORNE, supra note 1.
31. Id. at 46.
32. Id. at
68.
33. Id. at
90–97.
34. J
OHN BRAITHEWAITE, CRIME, SHAME AND REINTEGRATION 1–5 (1989).
35. In North America, the growth of restorative justice in which reintegrative shaming is
practiced has been facilitated by NGOs dedicated to this approach to justice. See Daniel W.
3008 FORDHAM LAW REVIEW [Vol. 83
Braithwaite asserts that high rates of violent crime within a society indicate
the society’s failure to adequately shame the perpetrators of crime.
36
According to Braithwaite, making individuals feel guilty for crimes they
have committed deters them from committing further crime.
37
His proposal
harkens back to a traditional view of crime as an opportunity to reinforce
societal norms.
The theory that shaming could be redemptive seems to run counter to
human experience—shaming is, by its nature, isolating and alienating.
Hawthorne’s story of the condemned woman who never regains her place in
society is archetypical of stigmatization arising from crime. The Scarlet
Letter illustrates that continued shaming and societal reintegration are
mutually exclusive.
Braithewaite’s theory of reintegration is, however, not entirely devoid of
merit. At the core of Braithwaite’s theory is the belief that ties to family
and community deter crime because would-be criminals, in anticipating that
their tight-knit family or community would have an adverse reaction to their
criminal action, would choose to forgo the criminal act.
38
The question is
whether shaming is the best way to enforce this loyalty to family and
community, and ultimately, whether shaming is the best way to reduce
recidivism. Other scholars have criticized Braithwaite’s theories regarding
crime and recidivism for failing to adequately take into account
environmental factors such as structural inequality
39
and systemic
injustice.
40
A fundamental assumption of Braithwaite’s theory is that lack
of shame causes crime, but as sociologists and social psychologists have
argued, crime can be a rational act driven by societal factors.
41
For
example, an individual that is shut out from societally accepted methods of
earning money because of lack of opportunities for social mobility or
Van Ness, North America, in HANDBOOK OF RESTORATIVE JUSTICE 512 (Gerry Johnstone &
Daniel W. Van Ness eds., 2007).
36. B
RAITHEWAITE, supra note 34, at 105.
37. Id. at 75.
This is similar to Émile Durkheim’s view of crime, now viewed as a major
influence on the later developed sociological theory of “control.” Durkheim argued that
stronger social control among individuals of the Catholic faith was what resulted in their
lower rates of suicide in comparison to those of the Protestant faith. É
MILE DURKHEIM, ON
SUICIDE 156, 163 (Robin Buss trans., 1897).
38. B
RAITHEWAITE, supra note 34, at 56–57.
39. See Toni M. Massaro, The Meanings of Shame: Implications for Legal Reform, 3
P
SYCHOL. PUB. POL’Y & L. 645, 678 (1997); see also Gabrielle Maxwell & Allison Morris,
The Role of Shame, Guilt, and Remorse in Restorative Justice Processes for Young People,
in R
ESTORATIVE JUSTICE: THEORETICAL FOUNDATIONS 267 (Elmar G.M. Weitekamp &
Hans-Jürgen Kerner eds., 2002).
40. See Bonnie Price Lofton, Does Restorative Justice Challenge Systematic Injustices?,
in C
RITICAL ISSUES IN RESTORATIVE JUSTICE 381 (Howard Zehr & Barb Toews eds., 2004).
41. See C
ARL HART, HIGH PRICE: A NEUROSCIENTIST’S JOURNAL OF SELF-DISCOVERY
THAT CHALLENGES EVERYTHING YOU KNOW ABOUT DRUGS AND SOCIETY 266–75 (2013)
(demonstrating through clinical studies with drug addicts conducted at Columbia University
that the use of illicit drugs is a rational choice driven by societal factors).
2015] THE MODERN DAY SCARLET LETTER 3009
discrimination may feel compelled to resort to criminal activities to attain
the same standard of living that she views others enjoying.
42
More recently, the criminologists Dina R. Rose and Todd R. Clear have
found in their research that robust ties to the community—that include
supportive networks—provide a deterrence to crime.
43
Rose and Clear also
discovered that the act of “shaming” the perpetrators of crime with long
prison sentences tended to destroy the very networks and ties to community
that would deter future crime, thus resulting in high recidivism rates.
44
Similarly, rather than serving to reintegrate formerly incarcerated women,
modern “shaming” of those individuals by the assignation of collateral legal
consequences, many of which endure for life, operate to drive those
individuals to the margins of society.
A study of prisoner reentry
45
discovered that people who are incarcerated
at a young age have a high likelihood of returning to prison in their adult
years. Furthermore, the study tied this high recidivism rate to the persisting
stigma of incarceration.
46
Many formerly incarcerated individuals find
themselves limited in their ability to enter professional fields or to obtain
the funding for higher education, which is one way that collateral legal
consequences can restrict social mobility and foster social
marginalization.
47
Despite evidence of the ineffectiveness of shaming as a
method of reducing recidivism, collateral legal consequences that
negatively discriminate against formerly incarcerated individuals continue
to enjoy legal support.
48
B. The Collateral Damage of the War on Drugs
Although statutes imposing collateral legal consequences have long been
a part of the history of American punishment
49
and have withstood several
legal challenges,
50
many more of those statutes have been enacted since the
42. See, e.g., SUDHIR VENKATESH, GANG LEADER FOR A DAY: A ROGUE SOCIOLOGIST
TAKES TO THE STREETS 27–35 (2008) (noting that gang leaders who engage in criminal
activities like drug dealing believe that they have been shut out of socially accepted
structures for earning a high income).
43. See Dina R. Rose & Todd R. Clear, Incarceration, Social Capital, and Crime:
Implications for Social Disorganization Theory, 36 C
RIMINOLOGY 441 (1998) (asserting a
social disorganization theory in which mass incarceration weakens community ties and
diminishes the social and cultural capital within a community thereby leading to less
informal social control and more crime).
44. See id. at 491.
45. J
OAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY
(2003).
46. Id. at 224.
47. Id.
48. See, e.g., Sutton v. McIlhany, 1 Ohio Dec. Reprint 235, 236 (Ct. Com. Pl. 1848)
(acknowledging the importance of collateral consequences as part of criminal conviction);
see also Turner v. Glickman, 207 F.3d 419, 430–31 (7th Cir. 2000) (upholding the
constitutionality of collateral consequences).
49. See, e.g., Sutton, 1 Ohio Dec. Reprint at 236.
50. See Turner, 207 F.3d at 423, 426–27, 431; see also People v. Boespflug, 107 P.3d
1118, 1121 (Colo. App. 2004) (dismissing defendant’s argument that “he should be allowed
to withdraw his pleas because the court did not advise him that he would lose his right to
3010 FORDHAM LAW REVIEW [Vol. 83
beginning of the War on Drugs in the 1980s,
51
and their effects have been
exacerbated by harsher charges and longer sentences.
52
New developments in the laws against drug possession and sale are
important factors driving the increase of incarcerated women and the rise in
new collateral legal consequences. These developments include longer
mandatory minimum sentences for drug offenses
53
and harsher and longer
lasting collateral legal consequences, such as the legalized lifetime
exclusion of felons from certain professional jobs
54
and the denial of federal
loans for education.
55
vote while he was imprisoned”); Henry v. State, No. 207, 2003 Del. LEXIS 507, at *1, *6
(Del. Oct. 7, 2003) (rejecting defendant’s request to withdraw a nolo contendere plea based
on counsel’s failure to “inform him of the possible revocation of his Mortgage Loan Broker
License”); Slater v. State, 880 So. 2d 802, 803 (Fla. Dist. Ct. App. 2004) (rejecting
defendant’s claim that “the trial judge should have set aside his pleas of no contest because
the sentencing court and his attorney failed to advise him that as a result of a plea, his
parental rights would be terminated”); State v. Wilkinson, No. 20365, 2005 WL 182920, at
*1 (Ohio Ct. App. Jan. 28, 2005) (denying defendant’s motion to withdraw his guilty pleas
because he was not informed that his pleas could “preclude him from any future employment
at any facility that provides care to older adults,” and could also “jeopardize his nursing
license”); Gonzalez v. State, 83 P.3d 921, 923–25 (Or. Ct. App. 2004) (involving a
successful ineffective assistance of counsel claim stemming from counsel’s failure to
adequately warn of collateral deportation consequences); Commonwealth v. Duffey, 639
A.2d 1174, 1175 (Pa. 1994) (rebuffing defendant’s claim that his plea was invalid because
he was not told that his license would be suspended); Ames v. Johnson, No. CL04-413, 2005
WL 820305, at *3 (Va. Cir. Ct. Mar. 28, 2005) (concluding that trial counsel’s failure to
warn of civil commitment collateral consequence did not violate defendant’s right to
effective assistance of counsel); State v. Merten, 668 N.W.2d 750, 753–55 (Wis. Ct. App.
2003) (refusing defendant’s request to withdraw a plea due to trial court’s failure to warn of
resulting denial of Medicare and Medicaid benefits).
51. See Archer & Williams, supra note 24, at 530 (noting that the disproportionate
impact of collateral consequences on drug offenders “creat[e] an absurd result: ex-offenders
convicted of rape or murder are nonetheless eligible for a number of rights denied to drug
offenders”); see also Michael Pinard, Collateral Consequences of Criminal Convictions:
Confronting Issues of Race and Dignity, 85 N.Y.U.
L. REV. 457, 461 (2010) (noting that
“collateral consequences have increased in number, scope, and severity since the 1980s”).
52. See Sentencing Reform Act, Pub. L. No. 98-473, 98 Stat. 1976 (abolishing federal
parole).
53. See id. (creating a sentencing disparity of 100 to 1 for crack versus powder cocaine,
which has been shown to disproportionately impact racial minorities and the poor); Anti-
Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (instituting mandatory
minimum sentences for drug crimes on the mere basis of the quantity of drugs recovered).
But see Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (reducing the
crack versus powder cocaine sentencing disparity to 18 to 1). In August of 2013, Attorney
General Eric Holder, announced that the Department of Justice will help certain drug
offenders, who have no ties to large-scale organizations, gangs, or cartels, avoid harsh
mandatory minimum sentences. See Ryan J. Reilly, DOJ to Nix Mandatory Minimum
Sentences in Some Pending Drug Cases: Eric Holder, H
UFFINGTON POST (Sept. 19, 2013),
http://www.huffingtonpost.com/2013/09/19/mandatory-minimum-sentences-doj-eric-
holder_n_3956409.html.
54. Federal law automatically excludes felons from serving or continuing to serve as a
law enforcement officer, without exception. See 5 U.S.C. § 7371 (2012). Persons wishing to
serve as airport security screeners or who need access to secure areas of an airport must not
have been convicted of a wide variety of felonies during the previous ten years. See 49
U.S.C. § 44936(b)(1)(B) (2012). Similar restrictions exist for persons whose employment
requires a Transportation Worker Identification Credential. See 46 U.S.C. § 70105 (2012).
Merchant mariners also must not have been convicted of certain enumerated offenses,
2015] THE MODERN DAY SCARLET LETTER 3011
Women are especially affected by the collateral legal consequences
stemming from a drug conviction, as incarcerated women are more likely to
be convicted of a drug offense than their male counterparts.
56
In fact,
convictions for nonviolent drug felonies and property offenses account for
nearly 80 percent of the female inmate population.
57
Gender disparities in
sentencing for drug crimes also play a factor in how women experience the
collateral legal consequences of conviction. Studies have shown that
women convicted of a drug offense receive harsher sentences than similarly
situated men.
58
These statistics are significant because of the developments
in the drug laws that impose harsh collateral legal consequences on
individuals convicted of drug felonies.
59
Thus, a significant percentage of
formerly incarcerated women, because they have been convicted of a drug
crime, face government-imposed restrictions on affordable housing and
welfare,
60
employment,
61
and the pursuit of higher education.
62
Collateral
legal consequences represent a herculean hurdle that formerly incarcerated
women must surmount in their bid to reintegrate into society. Next, I detail
how the intersectional identities of women exacerbate this particularly
difficult task.
II.
INTERSECTIONALITY AND COMPOUND IDENTITIES
The laws that allow for collateral legal consequences are facially neutral;
that is, they make no notice of gender. However, it should not be
overlooked that the intersectional identities of formerly incarcerated women
serve to intensify the negative impact of those consequences. Legal
activists and scholars have long recognized circumstances in which a law of
general applicability is nonetheless shown to have a discriminatory effect or
including federal “dangerous drug laws.” See id. §§ 7703–7704.
Airman certificates can be
revoked for certain convictions, particularly those involving drugs. See 14 C.F.R. § 61.15
(2014).
55. See Students with Criminal Convictions Have Limited Eligibility for Federal Student
Aid, F
ED. STUDENT AID, https://studentaid.ed.gov/eligibility/criminal-convictions (last visited
Apr. 23, 2015).
56. Meda Chesney-Lind, Imprisoning Women: The Unintended Victims of Mass
Imprisonment, in I
NVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS
IMPRISONMENT 15, 84 (Marc Mauer & Meda Chesney-Lind eds., 2002).
57. Women in Prison Project, Women in Prison Fact Sheet, C
ORR. ASS’N OF N.Y.
(2006), http://www.prisonpolicy.org/scans/Fact_Sheets_2002.pdf.
58. Id.
59. Gabriel J. Chin, Race, the War on Drugs, and the Collateral Consequences of
Criminal Conviction, 6 J.
GENDER RACE & JUST. 253, 259 (2002) (observing that “drug
offenses are subjected to more and harsher collateral consequences than any other category
of crime”).
60. Travis, supra note 26, at 15–16.
61. M
ARGARET COLGATE LOVE & SUSAN M. KUZMA, U.S. DEP’T OF JUSTICE, OFFICE OF
THE
PARDON ATTORNEY, CIVIL DISABILITIES OF CONVICTED FELONS: A STATE-BY-STATE
SURVEY 6–10 (1996); PETERSILIA, supra note 45, at 19–20.
62. P
ATRICIA ALLARD, THE SENTENCING PROJECT, LIFE SENTENCES: DENYING WELFARE
BENEFITS TO WOMEN CONVICTED OF DRUG OFFENSES 17 (2002), available at
http://www.sentencingproject.org/doc/publications/women_lifesentences.pdf.
3012 FORDHAM LAW REVIEW [Vol. 83
indeed is revealed to purposefully target a subset of the population that
share a disadvantaged identity.
63
An early canonical case in which a facially neutral law was found to be
discriminatory in effect is that of Yick Wo v. Hopkins.
64
In that case, the
Court struck down a San Francisco ordinance that sought to curtail the
operation of laundries in wooden buildings. The ordinance
disproportionately affected people of Chinese descent as 95 percent of the
city’s 320 laundries were operated in wooden buildings and Chinese
immigrants owned two-thirds of those wooden laundry buildings.
65
Of
course, the reach of Yick Wo was limited. Even after Yick Wo, the Court in
Plessy v. Ferguson
66
upheld laws that discriminated against African
Americans by asserting a “separate but equal”
67
standard that allowed for
legal segregation until it was overturned by the Brown v. Board of
Education
68
decision in 1954. Both cases involved instances when racial
animus or the intent to discriminate on racial grounds could be shown. The
plaintiff who alleges no discriminatory intent, but rather “disparate
impact”
69
and/or disproportionate impact based on grounds other than
race,
70
faces a much more arduous path to effectuating redress.
71
Intersectionality as a feminist sociological theory was first highlighted by
Deborah King, who referred to a “double jeopardy” arising from a woman
question and a race problem.
72
Kimberlé Crenshaw
73
and Patricia Hill
63. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356 (1886).
64. 118 U.S. 356 (1886).
65. Id. at 358–59.
66. 163 U.S. 537 (1896).
67. Id. at 552 (Harlan, J., dissenting).
68. 347 U.S. 483 (1954).
69. See McClesky v. Kemp, 481 U.S. 279, 291–92 (1987) (holding that racially
discriminatory impact of death penalty as shown by comprehensive study is not enough to
overturn verdict without a showing of a racially discriminatory purpose); Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–70 (1977) (establishing the disparate
impact test wherein the challenging party bears the burden of demonstrating that the law in
question: (1) affects a protected class in greater proportion, and (2) was created with the
intent or purpose to discriminate against the protected class); Washington v. Davis, 426 U.S.
229, 239 (1976) (finding that laws that have a racially discriminatory impact but which do
not have a racially discriminatory purpose are not unconstitutional).
70. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273–74 (1979) (holding that a
gender-neutral law with an exclusionary impact on women is not unconstitutional absent a
showing of discriminatory purpose). But see Griggs v. Duke Power Co., 401 U.S. 424, 431
(1971) (establishing that pursuant to Title VII, an employer must provide a business
necessity justification for the use of a test that has a disparate impact on a protected class). In
1991, Congress amended Title VII to codify the “disparate impact test” established by
Griggs. See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.
71. See Ricci v. DeStefano, 557 U.S. 557, 594–95 (2009) (Scalia, J., concurring)
(implying Title VII’s disparate impact provision is unconstitutional); id. at 609 (Ginsburg, J.,
dissenting) (raising the issue of whether the holding in Ricci has effectively overruled
Griggs); see also infra Part III (offering a brief discussion of how the disproportionate
gendered effects of collateral legal consequences might be challenged on the equal
protection doctrine).
72. See generally Deborah K. King, Multiple Jeopardy, Multiple Consciousness: The
Context of a Black Feminist Ideology, 14 S
IGNS 42, 42 (1988).
73. See generally Kimberlé Crenshaw, Mapping the Margins: Intersectionality, Identity
Politics, and Violence Against Women of Color, 43 S
TAN. L. REV. 1241 (1991).
2015] THE MODERN DAY SCARLET LETTER 3013
Collins
74
then articulated the legal realities of intersectionality. Crenshaw
popularized the legal concept in an attempt to contextualize the double and
intersecting discrimination that Black women endure as a result of their
dual identities as women and as racial minorities.
75
However, the concept
has evolved into a methodology employed in both critical legal studies
76
and empirical social science research to aid the examination of how social
and cultural categories such as gender, race, class, disability, and other
facets of identity interact on multiple and often simultaneous levels, to
contribute to systematic social inequality.
77
Even in the matter of legal
redress, the negative effect of intersectionality is documented by a study
showing that legal plaintiffs who bring discrimination claims are
disadvantaged when they reveal their intersectional identities.
78
74. Patricia Hill Collins, Gender, Black Feminism, and Black Political Economy, 568
ANNALS AM. ACAD. POL. & SOC. SCI. 41 (2000); Patricia Hill Collins, Learning from the
Outsider Within: The Sociological Significance of Black Feminist Thought, 33 S
OC. PROBS.
S14 (1986); Patricia Hill Collins, The Tie That Binds: Race, Gender and US Violence, 21
E
THNIC & RACIAL STUD. 917 (1998).
75. Crenshaw, supra note 73, at 1242–43 (explaining that women of color are at the
intersection of race and gender oppression); see also Kimberlé Williams Crenshaw, Panel
Presentation on Cultural Battery, Speaker: Kimberlé Williams Crenshaw, 25 U.
TOL. L.
REV. 891, 892 (1995) (“Intersectionality generally functions as a metaphor for capturing the
different dimensions of race and gender as they converge in the lives of women of color.”).
76. See Devon W. Carbado & Mitu Gulati, The Law and Economics of Critical Race
Theory, 112 Y
ALE L.J. 1757, 1775 (2003) (asserting that intersectionality “conveys at least
the following two ideas: (1) that our identities are intersectional—that is, raced, gendered,
sexually oriented, etc.—and (2) that our vulnerability to discrimination is a function of our
specific intersectional identities”); Frank Rudy Cooper, Against Bipolar Black Masculinity:
Intersectionality, Assimilation, Identity Performance, and Hierarchy, 39 U.C.
DAVIS L. REV.
853, 860–74 (2006) (applying intersectionality theory to heterosexual Black men); Emily
M.S. Houh, Toward Praxis, 39 U.C.
DAVIS L. REV. 905, 924–38 (2006) (operationalizing
anti-essentialism and intersectionality in a sexual harassment hypothetical); Gowri
Ramachandran, Intersectionality As “Catch-22”: Why Identity Performance Demands Are
Neither Harmless nor Reasonable, 69 A
LB. L. REV. 299, 301 (2005) (discussing the double
bind of “intersectionals,” defined as “persons who are members of more than one ‘low-
status’ category, such as women of color, queer persons of color, or indigent women”);
Catherine Smith, Queer As Black Folk?, 2007 W
IS. L. REV. 379, 381 n.4 (“The experiences
for black heterosexual women in interracial relationships are also different than those of
black lesbians and black men in interracial relationships.”).
77. For a pioneering example of how the concept of intersectionality has been employed
in legal research to illuminate overlooked disadvantaged identities, see generally Angela
Onwuachi-Willig & Jacob Willig-Onwuachi, A House Divided: The Invisibility of the
Multiracial Family, 44 H
ARV. C.R.-C.L. L. REV. 231 (2009) (calling for housing
discrimination statutes to explicitly recognize “interraciality” as a protected category because
“interraciality” (as in the case of an interracial couple or multiracial family) is a
disadvantaged identity that renders an individual particularly vulnerable to housing
discrimination). See also Leslie McCall, The Complexity of Intersectionality, 30 S
IGNS 1771
(2005) (noting that intersectionality has introduced new methodological issues).
78. See Rachel Best et al., Multiple Disadvantages: An Empirical Test of
Intersectionality Theory in EEO Litigation, 45 L
AW & SOC’Y REV. 991, 991 (2011) (finding
that both intersectional demographic characteristics and legal claims are associated with
dramatically reduced odds of plaintiff victory).
3014 FORDHAM LAW REVIEW [Vol. 83
A. The Intersectionality of Criminality and Gender
Formerly incarcerated women embody various intersectional identities,
but the most predominant of these identities is that of a woman who has
been convicted of a crime. Criminal women suffer from the double
vulnerability of discrimination that comes from being both “criminal” and
“female,” meaning that they experience negative differential treatment as a
result of the convergence of gender bias and the stigma of having been in
prison.
79
As a result of the stigma surrounding femininity and crime, there
are fewer reentry resources for formerly incarcerated women. One
groundbreaking study has identified seven major unmet needs of formerly
incarcerated women:
(1) treatment for substance abuse;
(2) health care for serious medical problems;
(3) treatment for serious mental health issues;
(4) protection from abusive environments, and treatment for past, violent
trauma;
(5) educational and employment services;
(6) safe and affordable housing; and
(7) services to address family reunification needs.
80
Further, the study found three broad social and institutional contexts
within which reentry barriers exist for women. These contexts include:
(1) the combined impact of the competing demands of the barriers to
reentry—for example, a female parolee is expected to find employment as
soon as possible even while she is trying to reconcile with her children;
(2) the ill-equipped and deteriorating communities to which women return,
and; (3) the additional gender, racial, and economic challenges specific to
women of color.
81
B. The Unequal Demands of Parenthood
In addition to the stigma of female criminality, formerly incarcerated
women are more greatly impacted by the demands of parenthood. First,
formerly incarcerated women must contend with undeniably distinct
biological and social demands, particularly in regards to pregnancy,
childbirth, and parenting.
82
Second, women are more likely to be the
primary caregivers of their minor children. Approximately 75 to 80 percent
79. See Coramae Richey Mann, Minority and Female: A Criminal Justice Double Bind,
in A
FRICAN AMERICAN CLASSICS IN CRIMINOLOGY AND CRIMINAL JUSTICE 261 (Shaun
Gabbidon et al. eds., 2002).
80. Beth E. Richie, Challenges Incarcerated Women Face As They Return to Their
Communities: Findings from Life History Interviews, 47 C
RIME & DELINQ. 368, 371–79
(2001).
81. Id. at 380–83.
82. S
ANDRA ENOS, MOTHERING FROM THE INSIDE: PARENTING IN A WOMEN’S PRISON
(2001); Barbara Bloom et al., Women Offenders and the Gendered Effects of Public Policy,
21 R
EV. POL’Y RES. 31, 32–33 (2004).
2015] THE MODERN DAY SCARLET LETTER 3015
of incarcerated women are mothers of minor children, with the incarcerated
woman having an average of 2.11 children under the age of eighteen.
83
Further, the majority of incarcerated mothers, approximately 64 percent,
lived with their minor children immediately prior to incarceration.
84
As a
result of these differences, there are disparities in outcomes for children
when a mother is incarcerated versus when a father is sent to prison. About
10 percent of the children of incarcerated women are placed in foster care
85
which is in stark contrast to the 2 percent of the children of incarcerated
men who end up in foster care.
86
Thus, formerly incarcerated women are
more likely to face the added challenge of losing legal custody of their
children.
One formerly incarcerated woman I interviewed articulates a situation
that many formerly incarcerated women must confront upon release: the
loss of their children. “Well, the many of the women maybe have lost their
children . . . . Often times jail is a reason why they lose their children.
They may not have someone to go to take of them, so they are put into the
foster care system.”
87
C. Victims of Domestic Violence and Sexual Abuse
Studies have shown that most incarcerated women, about 78 percent,
were victims of abuse.
88
Several studies have suggested a link between
abuse and involvement in the criminal justice system,
89
and in some cases,
women are incarcerated because they were convicted of killing their
abusive domestic partners.
90
Other illicit behavior can derive from the
abuse, including drug and alcohol use as a coping mechanism, or crimes
such as property and financial crimes related to a desperate bid to escape
the abusive partner.
91
The intersectional identity of domestic violence victim is particularly
significant for formerly incarcerated women given that legal scholars have
found that the criminal justice system does not respond adequately to
83. See HATTERY & SMITH, supra note 21, at 67; see also LAWRENCE A. GREENFIELD &
TRACY L. SNELL, BUREAU OF JUSTICE STATISTICS, NCJ 175688, WOMEN OFFENDERS 8
(1999), available at http://www.bjs.gov/content/pub/pdf/wo.pdf.
84. C
HRISTOPHER J. MUMOLA, BUREAU OF JUSTICE STATISTICS, NCJ 182335,
INCARCERATED PARENTS AND THEIR CHILDREN (2000), available at
http://www.bjs.gov/content/pub/pdf/iptc.pdf.
85. Id. at 1.
86. Id.
87. Interview with Female Respondent 130612_001 (June 12, 2013).
88. Kayleen A. Islam-Zwart & Peter W. Vik, Female Adjustment to Incarceration As
Influenced by Sexual Assault History, 31 C
RIM. JUST. & BEHAV. 521, 522 (2004).
89. See, e.g., H
ATTERY & SMITH, supra note 21, at 47, 67; COAL. FOR WOMEN
PRISONERS, COALITION FOR WOMEN PRISONERS’ 2006 PROPOSALS FOR REFORM (2006),
available at http://www.correctionalassociation.org/wp-content/uploads/2012/05/
Proposals_for_Reform_06_Brochure.pdf.
90. A
NGELA BROWNE, WHEN BATTERED WOMEN KILL 9–11 (1989); COAL. FOR WOMEN
PRISONERS, supra note 89.
91. H
ATTERY & SMITH, supra note 21, at 67; COAL. FOR WOMEN PRISONERS, supra note
89.
3016 FORDHAM LAW REVIEW [Vol. 83
female victims of domestic violence.
92
Thus, some formerly incarcerated
women who confront a lack of housing opportunities
93
upon their release
from prison may have no recourse but to return to their abusers, leading to
their recurrent victimization.
Formerly incarcerated women are also more likely than men to have been
victims of sexual abuse.
94
Forty-four percent of female offenders report
having been either sexually or physically assaulted and 69 percent report
that the abuse took place before they were eighteen.
95
One formerly incarcerated woman I spoke with recounted her sexual
abuse:
My mother was a workaholic. She didn’t have time for me. She had the
people that were renting the house that she owned babysit me and it was a
messed up environment. Alcoholic environment. You know, I believe I
was sexually abused in that house, I was so young. It was like kinda I
could remember up to a certain point and then it was like and nothing.
And when I’m older now and I can look back and try to put the pieces, it
all kinda makes sense. Can’t prove it, but I’m pretty sure.
96
D. Racial Minorities
In addition to the intersection of the stigma of incarceration and sexism,
women of color have the added stigma of accompanying negative
stereotypes
97
and are subject to the racial biases that have been found to
permeate the legal system.
98
Black women are three times more likely to
be incarcerated than white women and twice as likely as Hispanic women.
99
These racial discrepancies persist after incarceration. For example, Black
children of incarcerated mothers are more likely to be in foster care than
their counterparts, making regaining custody of their children much harder
for formerly incarcerated Black women.
100
Some legal scholars have
identified an intersectionality centered around race, gender, and reentry and
have made the argument that African American women, because of their
92. See, e.g., Kimberly D. Bailey, Lost in Translation: Domestic Violence, “The
Personal Is Political,” and the Criminal Justice System, 100 J.
CRIM. L. & CRIMINOLOGY
1255 (2010) (arguing that the criminal justice system is ineffective for addressing domestic
violence as it fails to account for the social, political, and economic factors involved in such
cases).
93. The housing limitations that formerly incarcerated women face are discussed infra
Part III.A.
94. See generally L
ESLIE ACOCA & KELLY DEDEL, NAT’L COUNCIL ON CRIME & DELINQ.,
NO PLACE TO HIDE: UNDERSTANDING AND MEETING THE NEEDS OF GIRLS IN THE CALIFORNIA
JUVENILE JUSTICE SYSTEM (1998), available at http://www.nccdglobal.org/sites/default/files/
publication_pdf/no-place-to-hide.pdf.
95. G
REENFIELD & SNELL, supra note 83, at 8.
96. Interview with Female Respondent 130410 (Apr. 10, 2013).
97. See Jyoti Nanda, Blind Discretion: Girls of Color & Delinquency in the Juvenile
Justice System, 59 UCLA
L. REV. 1502, 1520–21 (2012).
98. Mann, supra note 79.
99. See U.S.: World’s Leading Jailer, New Numbers Show, H
UM. RTS. WATCH (Dec. 11,
2008), http://www.hrw.org/news/2008/12/10/us-world-s-leading-jailer-new-numbers-show.
100. See D
OROTHY ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD WELFARE 210–11
(2002).
2015] THE MODERN DAY SCARLET LETTER 3017
gender and race, are the most disproportionately impacted by the collateral
legal consequences of criminal conviction.
101
III.
FOUR KEY ARENAS OF LEGAL DISCRIMINATION
The arenas of legal discrimination I chose to focus on were derived both
from my literature review of prior reentry studies and from my interviews
with the formerly incarcerated women. Contrary to the stereotype of
disadvantaged subjects who are oblivious to their marginalized social
positions, many of these women were socially and politically aware. One
formerly incarcerated woman astutely summarized the disadvantages
women in her situation face:
So you know, I know the money goes and follows where the greatest need
is and somebody has said that it’s men. But women are the caretakers of
the kids, women when they are released are less likely to be employed
than men because our demographics show that most are [or] have been in
poverty. Don’t have a high school degree, have had numerous issues and
barriers—whether that be culturally, socially, economically—have mental
health, historically have a familial history or culture of poverty and that
cycle of abuse, neglect, mental health issues, substance abuse
issues . . .
where you often don’t see, that doesn’t happen as many times
with men.
102
A. Government Aid: Food and Housing
Ironically, the human comforts that a formerly incarcerated woman needs
most, like food and housing, may be out of reach once she is released from
prison. The Personal Responsibility and Work Opportunity Reconciliation
Act of 1996
103
(PRWORA) denies government aid, including federally
subsidized housing and food stamps, to individuals convicted of drug
offenses. While states may opt out of the provisions of the Act, currently,
there are more states that comply with the ban than there are those that do
not.
104
This denial of housing has been shown to lead to crime.
105
One formerly incarcerated woman I interviewed described how the lack
of housing played a role in her reincarceration. The need for housing left
101. See, e.g., Geneva Brown, The Wind Cries Mary—The Intersectionality of Race,
Gender, and Reentry: Challenges for African American Women, 24 S
T. JOHN’S J. LEGAL
COMMENT. 625 (2010); see also HATTERY & SMITH, supra note 21, at 68–69.
102. Interview with Female Respondent 130612_001 (June 12, 2013).
103. Pub. L. No. 104-193, 110 Stat. 2105 (1996).
104. See M
ARC MAUER & VIRGINIA MCCALMONT, THE SENTENCING PROJECT, A LIFETIME
OF
PUNISHMENT: THE IMPACT OF THE FELONY DRUG BAN ON WELFARE BENEFITS 2 (2013),
available at http://sentencingproject.org/doc/publications/cc_A%20Lifetime%20of%
20Punishment.pdf.
105. See George Lipsitz, “In an Avalanche Every Snowflake Pleads Not Guilty”:
Collateral Consequences of Mass Incarceration and Impediments to Women’s Fair Housing
Rights, 59 UCLA
L. REV. 1746, 1754–56 (2012).
3018 FORDHAM LAW REVIEW [Vol. 83
her with no choice but to seek refuge in an environment she knew was
criminogenic
106
and which facilitated her relapse as a recovering addict.
The first time it happened . . . I had to go move back with Pops and a
whole really drug-fulfilled environment, active addiction household.
Yeah that was just all crazy. It was just relapse then straight. Relapse,
straight. Was in the treatment, went to transitional housing right over
here across the street. Relapsed. Boom, straight back.
107
Clearly, the fact that this woman endured such Sisyphean efforts to stay
sober demonstrates a willingness to rejoin society as a productive member.
However, as she describes, her lack of housing, and the consequence of
being forced to inhabit a household where drug use was pervasive, were
factors that thwarted this woman’s will to reclaim her sobriety and stay out
of legal trouble, no matter how many times she tried.
B. Employment
The fact that formerly incarcerated women are less likely to have been
employed prior to their period of incarceration has significant implications
for reentry.
108
Forty percent of women offenders were employed prior to
their incarceration compared to 60 percent of their male counterparts.
109
This can be a challenge to successful reentry as other studies have
demonstrated that employment serves to reduce recidivism among the
formerly incarcerated.
110
Furthermore, levels of compensation, a variable
dependent on level of education, also influences reentry outcomes, as those
making higher wages are less likely to recidivate.
111
In addition to
lowering recidivism rates, employment helps the formerly incarcerated
reintegrate into society, as they are now able to financially support
themselves and their families.
112
Recent studies have explored the link
106. “Criminogenic” is an adjective which denotes “producing or leading to crime or
criminality.” See Criminogenic, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 537
(1986).
107. Interview with Female Respondent 130410 (Apr. 10, 2013).
108. See A
COCA & DEDEL, supra note 94, at 121.
109. G
REENFIELD & SNELL, supra note 83, at 8.
110. See Robert J. Sampson & John L. Laub, A Life-Course Theory of Cumulative
Disadvantage and the Stability of Delinquency, in 7 A
DVANCES IN CRIMINOLOGICAL THEORY
1 (Terence P. Thornberry ed., 1997); Christopher Uggen, Work As a Turning Point in the
Life Course of Criminals: A Duration Model of Age, Employment, and Recidivism, 67 A
M.
SOC. REV. 529, 529–30 (2000); see also MILES D. HARER, FED. BUREAU OF PRISONS, OFFICE
OF
RESEARCH & EVALUATION, RECIDIVISM OF FEDERAL PRISONERS RELEASED IN 1987, at 4–5
(1994), available at http://www.bop.gov/resources/research_projects/published_reports/
recidivism/oreprrecid87.pdf.
111. See C
HRISTY VISHER ET AL., URBAN INST. JUSTICE POLICY CTR., EMPLOYMENT AFTER
PRISON: A LONGITUDINAL STUDY OF RELEASEES IN THREE STATES 8 (2008), available at
http://www.urban.org/UploadedPDF/411778_employment_after_prison.pdf.
112. D
IANA BRAZZELL ET AL., URBAN INST. JUSTICE POLICY CTR., FROM THE CLASSROOM
TO THE
COMMUNITY: EXPLORING THE ROLE OF EDUCATION DURING INCARCERATION AND
REENTRY 17 (2009), available at http://www.urban.org/UploadedPDF/411963_classroom_
community.pdf.
2015] THE MODERN DAY SCARLET LETTER 3019
between incarceration and employment rates, finding that spending time in
prison disadvantages released criminal offenders.
113
Formerly incarcerated women are even more impacted by unemployment
for various reasons. For one, most formerly incarcerated women cannot fall
back on many of the unskilled or semiskilled jobs that their male
counterparts can. Many other trade jobs or vocational jobs, such as being
an electrician or welding require an apprenticeship and are socially closed
off to women.
114
Additionally, most “pink-collar” jobs that attract women
such as nursing or teaching are subject to professional licenses and
background checks that weigh negatively against people who have been
convicted of a crime.
115
One woman I interviewed assessed the barriers stacked against her
chances of finding employment:
Well, jobs is pretty hard nowadays. I was just talking to somebody about
McDonald’s, and they go through, send you through an extensive
background. And just to work there. And I worked at McDonald’s years
ago and it wasn’t nothing like it is now. . . . But I mean they have to
know that there’s a lot of people that do go to prison and come out and
that doesn’t mean that they’re a waste to society. I mean. People still
have to make a living. I still have to pay bills. I still want to see my kid.
I have to have a job to do that.
116
C. Education
In relation to employment, many scholars have found that education is
important for the successful reentry of the formerly incarcerated.
117
Formerly incarcerated women discover, however, it is more difficult to
113. Becky Petit & Christopher Lyons, Status and the Stigma of Incarceration: The
Labor-Market Effects of Incarceration, by Race, Class, and Criminal Involvement, in
B
ARRIERS TO RE-ENTRY? THE LABOR MARKET FOR RELEASED PRISONERS IN POSTINDUSTRIAL
AMERICA 203, 223 (Shawn Bushway et al. eds., 2007).
114. See Vickie Elmer, Report: Women Still Face Barriers in Construction Trades,
W
ASH. POST (June 11, 2014), http://www.washingtonpost.com/blogs/she-the-
people/wp/2014/06/11/report-women-still-face-barriers-in-construction-trades/ (noting that
women still face barriers in entering construction trades).
115. See Elvis Michael, Can Certified Nursing Assistants with Felony Convictions Get
Jobs?, H
OUS. CHRON., http://work.chron.com/can-certified-nursing-assistants-felony-
convictions-jobs-26491.html (last visited Apr. 23, 2015) (explaining that a required
background check would most likely disqualify an individual from becoming certified and
registered in most states if he or she has a felony conviction). In the state of Minnesota, a
background check is required for persons offered employment by a K–12 school, including
teachers and athletic and academic extracurricular activity coaches. See M
INN. STAT.
§ 123B.03 (2009).
116. Interview with Female Respondent 130710 (July 10, 2013).
117. See generally S
TEPHEN J. STEURER & LINDA G. SMITH, EDUCATION REDUCES CRIME:
THREE-STATE RECIDIVISM STUDY EXECUTIVE SUMMARY (2003); Bruce Western, The Penal
System and the Labor Market, in B
ARRIERS TO RE-ENTRY? THE LABOR MARKET FOR
RELEASED PRISONERS IN POSTINDUSTRIAL AMERICA 335 (Shawn Bushway et al. eds., 2007);
Robert J. Sampson & W. Byron Groves, Community Structure and Crime: Testing Social-
Disorganization Theory, 94 A
M. J. SOC. 744 (1989); Gerald G. Gaes, The Impact of Prison
Education on Post Release Outcomes, U
RBAN INST. JUSTICE POL’Y CENTER (2008),
http://www.urban.org/projects/reentry-roundtable/upload/Gaes.pdf.
3020 FORDHAM LAW REVIEW [Vol. 83
obtain higher education, after prison. The federal government makes
eligibility for student grants—including the Pell Grant which is for students
from low-income backgrounds—and student loans contingent on the
absence of a criminal record.
118
Beginning in 1994, prisoners were
declared ineligible for college Pell Grants, thus creating a nearly
insurmountable financial hurdle for the formerly incarcerated individuals
who would like to continue their education while in prison.
119
Although men bear a higher risk of incarceration, women are
disproportionately impacted by the lack of educational programs in prison.
While correctional institutions have increased the number of general
education programs available to prisoners since the 1970s, as of 1996 only
52 percent of correctional facilities for women offered post-secondary
education.
120
Avenues for financing higher education have become even
restricted for the formerly incarcerated woman since the enactment of the
1998 amendment to the Higher Education Act.
121
Under this Act,
individuals with drug convictions are prohibited from receiving federal
financial aid to enroll in a post-secondary institution.
122
During the 2000–
2001 school year, more than 43,000 college students were affected by the
amendment.
123
Lack of access to education is a concern given that education has been
shown to result in increased employment and reduced recidivism.
124
Education may be helpful in mitigating the stigma of incarceration that
“marks” an individual as unfit for work
125
—as credentials and diplomas
certify the formerly incarcerated individual’s hard work and ability for
success.
126
Higher education also has been theorized as an important key to the
reintegration of formerly incarcerated people as it provides greater access to
social networks and social and cultural capital, intangibles which
criminologists argue should help reduce recidivism.
127
There is, however, a
paucity of effective programs that enable formerly incarcerated women to
obtain higher education.
128
One woman I interviewed spoke about her dissatisfaction with a prior
reentry program that did not allow her to continue her education:
118. Richard Tewksbury et al., Opportunities Lost: The Consequences of Eliminating
Pell Grant Eligibility for Correctional Education Students, 31 J.
OFFENDER REHABILITATION
43, 44 (2000).
119. A
LLARD, supra note 62, at 15.
120. Karen F. Lahm, Equal or Equitable: An Exploration of Education and Vocational
Program Availability for Male and Female Offenders, 64 F
ED. PROBATION 39, 41 (2000).
121. Pub. L. No. 105-244, 112 Stat. 1581 (codified as amended in scattered sections of 20
U.S.C.); A
LLARD, supra note 62, at 17.
122. A
LLARD, supra note 62, at 17.
123. Id. at
17.
124. See Gaes, supra note 117, at 3–4.
125. See Western, supra note 117, at 335.
126. See A
LLARD, supra note 62, at 17.
127. See Rose & Clear, supra note 44; Sampson & Groves, supra note 117.
128. See Gaes, supra note 117.
2015] THE MODERN DAY SCARLET LETTER 3021
Their concentration was on that you do their program which meant that
since it was faith based that we spent a lot of time at church. And not
only that, they didn’t allow you to leave the building unless they agreed to
why you were leaving the building. So again, I felt like I was back in
prison. I told them that I had a need that I wanted to fulfill that was
school. That I wanted to continue my education because I was very
excited to have my GED. And you were not allowed to go to school or
have a job in that shelter.
129
D. Family Ties
The loss of parental ties is another issue that negatively impacts the
reintegration of formerly incarcerated women. In 1997, the federal
government enacted the Adoption and Safe Families Act with the stated
goal of facilitating domestic adoptions.
130
However, in practice, the ASFA
has become a government-mandated push for the adoption of children who
have been in foster care for fifteen months out of a twenty-two month
period,
131
thus negatively impacting incarcerated parents. Adoption rates
have nearly doubled since the enactment of the ASFA.
132
Since its
enactment in 1997, the annual number of children leaving foster care for
adoption has risen from roughly 30,000 to more than 50,000.
133
The annual
number of adoptions from foster care climbed from less than 30,000 in the
mid-1990s, to a peak of some 57,000 in fiscal year 2009.
134
Since then the
number has remained at, or above, roughly 50,000.
135
While this might be
good news for children who would otherwise age out of the foster care
system without ever having the security net and emotional stability afforded
by a permanent family, this also means that fewer children are being
reunited with their biological families.
The adoption of many of these children is not really the best result given
that said adoption is based on the length of an imposed prison sentence,
rather than a true judgment of the suitability of the incarcerated parent to
raise a child. Furthermore, because women are more likely to be the
principal guardians of minor children, many more formerly incarcerated
women than men find themselves as parents with no parental rights to their
biological children.
136
As the average prison sentence exceeds twenty-two
129. Interview with Female Respondent 130710 (July 10, 2013).
130. See Olivia Golden & Jennifer Macomber, The Adoption and Safe Families Act
(ASFA), in I
NTENTIONS AND RESULTS: A LOOK BACK AT THE ADOPTION AND SAFE FAMILIES
ACT 8 (2009), available at http://www.urban.org/UploadedPDF/1001351_safe_families_
act.pdf.
131. See Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115.
132. E
MILIE STOLTZFUS, CHILD WELFARE: STRUCTURE AND FUNDING OF THE ADOPTION
INCENTIVES PROGRAM ALONG WITH REAUTHORIZATION ISSUES 3 (2013), available at
http://www.fas.org/sgp/crs/misc/R43025.pdf.
133. Id.
134. Id.
135. Id.
136. See M
UMOLA, supra note 84, at 1 (nothing that about 64 percent of women in state
prison reported that they had been primary caregivers of children compared to about 43
percent of men).
3022 FORDHAM LAW REVIEW [Vol. 83
months, incarcerated parents dependent on the foster care system to care for
their children risk losing custody.
137
Therefore, loss of parental rights is of
particular concern to mothers in prison, who are five times as likely as men
to report having children placed in a foster home.
138
One formerly
incarcerated woman shared her thoughts with me regarding the other
formerly incarcerated women she knew who had lost their children: “Oh
some of them are really depressed, angry, just so much because they’ve lost
their children forever. Their children have been adopted out through the
system which makes it so they never will ever get their children back.
Some of them won’t even know where their children are living.”
139
IV.
THE DUTY OF THE RESPONSIVE STATE
The state has a duty to ensure that all members of its population enjoy the
equal opportunity to strive for upward social mobility and that starts by
redressing the inequalities it has created because of overlooked
intersectional social identities. I argue that the state’s “carceral burden”
140
goes beyond an individual’s tenure as a ward of the state while in prison. I
propose that the state’s carceral burden extends to when the former inmate
is released and necessitates that the state affirmatively ensure that the
individual is free to reintegrate back into society, without legally imposed
fetters that would continue to hinder the individual’s economic and social
progress.
As my empirical research has shown, formerly incarcerated women
represent particularly “vulnerable subjects” because of the manner in which
their intersectional identities work to exacerbate the effects of the collateral
legal consequences of criminal conviction.
141
Thus, the state has an
affirmative obligation, first, to reconsider the collateral legal consequences
that serve to anchor formerly incarcerated women to a marginalized status,
and second, to enact new laws and policies that would enable their social
mobility.
A. Removing the Scarlet Letter
To remove the scarlet letter from formerly incarcerated women, the
government should ensure that institutional policies, particularly when it
comes to housing, employment, and education, are not being used to
“mark” and sort those individuals for negative discrimination.
142
For
137. SARAH SCHIRMER, ASHLEY NELLIS & MARC MAUER, THE SENTENCING PROJECT,
I
NCARCERATED PARENTS AND THEIR CHILDREN: TRENDS 1991–2007, at 9 (2009), available at
http://www.sentencingproject.org/doc/publications/publications/inc_incarceratedparents.pdf.
138. Id.
139. Interview with Female Respondent 130710 (July 10, 2013).
140. See Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84
N.Y.U.
L. REV. 881, 891–92 (2009) (identifying the state obligation as the “carceral burden,”
which is “an ongoing affirmative obligation to meet the basic human needs of the people
exiled in this way”).
141. See supra Part III.
142. EEOC Enforcement Guidance, EEOC (Apr. 25, 2012),
http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
2015] THE MODERN DAY SCARLET LETTER 3023
example, the EEOC has instituted guidelines for the use of “conviction
questions” on job application forms, essentially limiting their use to when it
is a matter of “business necessity.”
143
Similarly, advocates in several states
have followed suit, instituting “Ban-the-Box” initiatives that call for
conviction questions to be removed from all initial application forms.
144
The National Employment Law Project reports that in 2013 and 2014 alone,
eight states passed ban-the-box legislation.
145
I argue for a federal law or
congressional act that effectively bans the use of conviction questions on
applications in all states. The federal government should not stand by and
watch piecemeal social reform, when it has the power to bring about
nationwide reform on its own.
In addition to eliminating conviction questions from initial employment
applications, federal funding should be reinstated, both federal loans and
the Pell Grant, for low-income students regardless of past criminal
background. As discussed above, lack of higher education—and the
resulting limited social mobility—is a factor leading to crime, thus it does
not serve the purpose of recidivism reduction for ex-offenders to be denied
the means of attaining higher education. Similarly, the ban-the-box
initiative should be extended to college applications; meaning that
conviction questions should be eliminated from college applications.
146
As
college education has now become the baseline for education and as its
achievement has become a prerequisite for social mobility, the government
owes a duty to ensure that all its citizens, including the formerly
incarcerated, enjoy equal access to higher education.
As discussed earlier in this Article, the achievement of higher education
is particularly important for the formerly incarcerated woman as it serves to
combat the stigma of incarceration that might otherwise render her
unemployable. Higher education also serves as a credential of job readiness
and the necessary skills. As it stands, however, former prisoners will have
to confront the harsh truth that, according to the Chronicle of Higher
Education, over 60 percent of colleges consider an applicant’s criminal
history when making admission decisions.
147
To make matters worse, most
of those schools have no formal protocols in place to determine how
criminal backgrounds should factor into the admission decision—thus
creating a situation that is ripe for the covert discrimination of protected
classes.
148
143. See id.
144. See Pam Fessler, How Banning One Question Could Help Ex-Offenders Land a Job,
NPR (July 14, 2014, 3:28 AM), http://www.npr.org/2014/07/14/330731820/how-banning-
one-question-could-help-ex-offenders-land-a-job.
145. N
AT’L EMP’T LAW PROJECT, BAN THE BOX (2015).
146. This does not prevent colleges from using the sex offender registry to ensure the
safety of their students living in on-campus dorms.
147. Sara Lipka, Experts Debate Fairness of Criminal-Background Checks on Students,
C
HRON. OF HIGHER EDUC. (June 30, 2010), http://chronicle.com/article/Experts-Debate-
Fairness-of/66107.
148. See id.
3024 FORDHAM LAW REVIEW [Vol. 83
As the statistics show that many formerly incarcerated women lack
higher education,
149
allowing criminal backgrounds to factor into the
admission decision creates an unnecessary hurdle for the formerly
incarcerated woman on her path to social inclusion and upward mobility.
Undoubtedly, the conviction question on the college application has a
chilling effect on formerly incarcerated women who otherwise would be
eager to continue their education after imprisonment.
In addition to removing impediments to education and employment, the
government should also consider the psychological havoc that barriers to
family reunification wreak on the formerly incarcerated woman’s state of
mind and motivation to reintegrate into society. It is undoubtedly a
psychological blow for a woman to understand that based on the length of
her sentence alone, rather than her suitability for parenting, she is now
eligible to lose all parental rights to her children. Rather, allowing women
the opportunity to regain custody of their children based on their good
behavior in prison and other demonstrated fitness such as pursuit of higher
education and employment will serve as motivation for these women to turn
away from a life of crime, buoyed in the knowledge that reunification with
their children awaits them.
B. Enabling Reintegration
Besides eliminating institutional policies that hinder the economic
progress of formerly incarcerated women, the government also holds a
positive obligation to enact policies that would enable and facilitate their
reintegration into society. The first of those policies is to emphasize higher
education in all prison systems, making it possible for women to earn
higher education degrees while they are incarcerated. It is unfair that, for
women, the continuation of their education comes to rest on fickle fortune
determining where they are incarcerated rather than on their personal ability
and initiative.
V.
MANDATING A BETTER MODEL OF REENTRY
Beyond merely eliminating collateral legal consequences that serve as
stumbling blocks for the formerly incarcerated, the government has a duty
to take on an active role in creating a model of reentry that facilitates the
reintegration of formerly incarcerated women into society.
A. Gender-Neutral Policies Ignore the Needs of Women
Historically, there always have been more men in prison than women.
150
Thus, it is not surprising that the model of reentry espoused by reentry
149. See CAROLINE WOLF HARLOW, BUREAU OF JUSTICE STATISTICS, NCJ 195670,
EDUCATION AND CORRECTIONAL POPULATIONS 1 (2003), available at
www.bjs.gov/content/pub/pdf/ecp.pdf .
150. Male inmates had an incarceration rate fourteen times higher than females. See E.
ANN CARSON & WILLIAM J. SABOL, BUREAU OF JUSTICE STATISTICS, NCJ 239808, PRISONERS
IN
2011, at 2 (2012), available at http://www.bjs.gov/index.cfm?ty=pbdetail&iid=4559.
2015] THE MODERN DAY SCARLET LETTER 3025
organizations is a “gender neutral” one that fails to take into account the
differing needs of formerly incarcerated women. However, women now
represent the fastest growing population in prison
151
and this also will have
an impact on the population of those who identify as formerly incarcerated.
B. Regulations for a More Inclusive Model
The Second Chance Act
152
enacted in 2008 was designed to facilitate the
societal reentry of formerly incarcerated individuals. It is the first type of
legislation to confer federal grants to government agencies and nonprofit
organizations that are engaged in providing support strategies for the
formerly incarcerated and services designed to reduce recidivism.
153
The
availability of this funding source has resulted in a proliferation of non-
profit organizations with the mission statement of aiding formerly
incarcerated people in their quest to reintegrate into society, vying to
receive grant money.
154
Most of these organizations derive their financial
support from a combination of grants made available through the Second
Chance Act and contributions from private donors.
155
The statistics indicate that the Second Chance Act has contributed to
reduced recidivism,
156
and there is a strong argument that it should be
reauthorized.
157
However, I argue that the implementation of the Act
should be modified to include more gender-specific guidelines and
standards
158
placed on the public and private organizations that receive the
grant.
151. The number of female prisoners rose at a faster rate (4.8 percent) than the number of
male prisoners (2.7 percent). The percent increase in female prisoners was almost twice that
of male prisoners. W
ILLIAM J. SABOL, TODD D. MINTON & PAIGE M. HARRISON, BUREAU OF
JUSTICE STATISTICS, NCJ 217675, PRISON AND JAIL INMATES AT MIDYEAR 2006. (2007) (rev.
2008), available at http://www.bjs.gov/content/pub/pdf/pjim06.pdf.
152. Pub. L. No. 110-199, 122 Stat. 657 (2008).
153. See Second Chance Act Prisoner Reentry Initiative, C
ATALOG OF FED. DOMESTIC
ASSISTANCE, https://www.cfda.gov/index?s=program&mode=form&tab=core&id=
0f0083d29a6d817d18734debda07293a (last visited Apr. 23, 2015).
154. L
YNNE HANEY, OFFENDING WOMEN: POWER PUNISHMENT AND THE REGULATION OF
DESIRE 101–03 (2010).
155. Since 2009, nearly 600 Second Chance Act grant awards have been made to
government agencies and non-profit organizations from forty-nine states for reentry
programs serving adults and juveniles. See T
HE SECOND CHANCE ACT: JUVENILE REENTRY
(2014), available at http://csgjusticecenter.org/wp-content/uploads/2014/08/SCA_Juvenile_
Reentry.pdf.
156. States like Ohio, Texas, Kansas, and Michigan, which have embraced the Second
Chance Act, have seen dramatic decreases in recidivism. See Rob Portman & J.C. Watts,
Reauthorize Second Chance Act: Rob Portman and J.C. Watts, C
LEVELAND PLAIN DEALER
(Apr. 29, 2013, 3:00 AM), http://www.cleveland.com/opinion/index.ssf/2013/04/
reauthorize_second_chance_act.html.
157. See id.
158. For the 2015 eligibility guidelines and standards for Second Chance Act grant
funding, see U.S.
DEP’T OF JUSTICE, SECOND CHANCE ACT TWO-PHASE ADULT REENTRY
DEMONSTRATION PROGRAM: PLANNING AND IMPLEMENTATION FY 2015 COMPETITIVE GRANT
ANNOUNCEMENT (2015), available at https://www.bja.gov/Funding/
15SCAReentryDemoSol.pdf.
3026 FORDHAM LAW REVIEW [Vol. 83
The federal government, through the Second Chance Act, has an
opportunity to develop a better model of reentry which takes into account
the intersectional identities of formerly incarcerated women and ensures
that they are not subjected to a “gender neutral” model that favors formerly
incarcerated men.
As noted earlier in this Article, formerly incarcerated women face
distinct reentry struggles from their male counterparts because of their
intersectional identities as women convicted of a crime, as primary
caregivers of minor children, as victims of domestic violence and sexual
abuse, and as racial minorities.
159
Thus, through the Second Chance Act,
the government should ensure that the programs it funds are cognizant of
these identities. Any program seeking funding should be required to prove
that (1) it has in place programming specific to women’s mental and
physical needs; (2) in-house childcare services or a system for women to
obtain reliable and secure childcare services; and (3) counseling for
domestic violence and sexual abuse.
C
ONCLUSION
The collateral legal consequences of criminal conviction
disproportionately impact women primarily because they cumulatively
serve as a modern day scarlet letter that attaches to formerly incarcerated
women for life and which renders the women’s attempts to reintegrate into
society Sisyphean. Beyond merely creating or recreating collateral
consequences that might impact men and women equally, it behooves the
government to reconsider whether collateral legal consequences serve to
reduce recidivism, which is perhaps the most important goal of punishment.
It is also the government’s duty to provide greater oversight over the
funding it provides for reentry programs to ensure that the model of practice
for such programs takes into account the intersectional identities of
formerly incarcerated women and their particular needs. It is without
argument that society as a whole benefits from the successful reintegration
of formerly incarcerated women. Thus, a responsive government should
not actively or passively promote practices that would stymie that very
process.
159. See supra Part III.
