[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]











                        COLLATERAL CONSEQUENCES

=======================================================================

                                HEARING

                               BEFORE THE

                OVER-CRIMINALIZATION TASK FORCE OF 2014

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             JUNE 26, 2014

                               __________

                           Serial No. 113-100

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
SPENCER BACHUS, Alabama              SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina       DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------                                

                Over-Criminalization Task Force of 2014

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

SPENCER BACHUS, Alabama              ROBERT C. ``BOBBY'' SCOTT, 
RAUL LABRADOR, Idaho                 Virginia
GEORGE HOLDING, North Carolina       JERROLD NADLER, New York
                                     STEVE COHEN, Tennessee
                                     KAREN BASS, California
                                     HAKEEM JEFFRIES, New York

                     Caroline Lynch, Chief Counsel
























                            C O N T E N T S

                              ----------                              

                             JUNE 26, 2014

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, Over-
  Criminalization Task Force of 2014.............................     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, Over-
  Criminalization Task Force of 2014.............................     2

                               WITNESSES

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, 
  Montgomery County, Dayton, Ohio
  Oral Testimony.................................................    11
  Prepared Statement.............................................    14
Rick Jones, Executive Director, Neighborhood Defender Service of 
  Harlem
  Oral Testimony.................................................    25
  Prepared Statement.............................................    27

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Bob Goodlatte, a 
  Representative in Congress from the State of Virginia, and 
  Chairman, Committee on the Judiciary...........................     5

                                APPENDIX
               Material Submitted for the Hearing Record

Material submitted by the Honorable Spencer Bachus, a 
  Representative in Congress from the State of Alabama, and 
  Member, Over-Criminalization Task Force of 2014................    54
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Over-Criminalization Task Force of 2014........    60
Prepared Statement of the Consumer Data Industry Association 
  (CDIA).........................................................   140
Letter from the National Association of Professional Background 
  Screeners (NAPBS)..............................................   149
Material submitted by the Federal Interagency Reentry Council....   154
Prepared Statement of the Brennan Center for Justice Legislative 
  Office.........................................................   156

 
                        COLLATERAL CONSEQUENCES

                              ----------                              


                        THURSDAY, JUNE 26, 2014

                        House of Representatives

                Over-Criminalization Task Force of 2014

                       Committee on the Judiciary

                            Washington, DC.

    The Task Force met, pursuant to call, at 9:30 a.m., in room 
2237, Rayburn House Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Task Force) presiding.
    Present: Representatives Sensenbrenner, Bachus, Gohmert, 
Conyers, Scott, Cohen, Johnson, Bass, and Jeffries.
    Staff Present: (Majority) Robert Parmiter, Counsel; Alicia 
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
    Mr. Sensenbrenner. The Task Force on Over-Criminalization 
will come to order.
    Without objection, the Chair will be authorized to declare 
recesses during votes on the floor. Let me say we are supposed 
to have an hour and a half worth of votes beginning at 10:30 to 
10:45, and I don't think that it would be advisable to have the 
witnesses sit for an hour and a half, and I don't know how many 
Members will be coming back after an hour and a half; so I 
would like to wrap this up by 10:30, 10:45.
    I have an opening statement. I yield myself 5 minutes.
    Good morning, and welcome to the eighth hearing of the 
Judiciary Committee's Over-criminalization Task Force. Today's 
hearing will focus on the collateral consequences associated 
with a criminal conviction. Over its first seven hearings, the 
Task Force examined issues related to criminal intent, over-
federalization, penalties, and other issues which affect 
criminal defendants during the investigative and prosecutorial 
phases of the criminal justice process.
    However, today's hearing will examine the consequences that 
follow a criminal conviction which may not be immediately 
apparent during the pendency of a criminal case.
    The American Bar Association knows that some collateral 
consequences serve an important and legitimate public safety, 
or a regulatory function, such as keeping firearms out of the 
hands of violent offenders, protecting children or the elderly 
from persons with a history of physical, mental or sexual 
abuse, or barring people convicted of fraud from positions of 
public trust. Others are directly related to the particular 
crime such as registration requirements for sex offenders, 
driver's license restrictions for those convicted of serious 
traffic offenses, or disbarment of those convicted of 
procurement fraud.
    However, advocates for reform in this area including our 
panel today, have argued that in many cases the collateral 
consequences applicable to a given criminal conviction are 
scattered throughout the code books and frequently unknown to 
those responsible for their administration and enforcement. 
This claim should sound familiar to Members of this Task Force 
since the witnesses before us have repeatedly demonstrated that 
statutes carrying criminal penalties are also scattered 
throughout the U.S. Code.
    Additionally the Supreme Court recognized in Padilla versus 
Kentucky in 2010, that when a person considering a guilty plea 
is unaware of serious consequences that will inexorably follow, 
this raises questions of fairness and implicates the 
constitutional right to effective assistance of counsel. I 
agree that this area is one that the Task Force should consider 
during its evaluation of the over-criminalization of Federal 
law.
    However, there are several areas where I have serious 
concerns, most notably with regard to the argument advanced by 
many, including at least one of our witnesses today, that 
Congress should force private employers to ignore an employee's 
criminal history when making a hiring decision via a Ban the 
Box and other legislative initiatives.
    Generally I do not believe that adult offenders who engage 
in violent and other forms of malum in se conduct should be 
able to complain about the consequences of their actions. 
Additionally, over the years Congress has repeatedly seen fit 
to make criminal history records available to employers, 
including schools, banks, power plants and other vital parts of 
our Nation's infrastructure in order to protect public health 
and safety. Proposals such as Ban the Box run directly contrary 
to that important effort.
    Additionally, as the author of the Adam Walsh Child 
Protection and Safety Act of 2006, I have serious concerns with 
any efforts that characterize dangerous sex offenders who prey 
on our children as suffering from an unjust collateral 
consequence. Having said that, during my tenure in Congress, I 
have been a consistent proponent of efforts to help 
rehabilitate ex-offenders and to lessen their risk of their 
reoffending following release.
    Last year I reintroduced H.R. 3465, the ``Second Chance 
Reauthorization Act of 2013.'' This bipartisan legislation 
which has been co-sponsored by the Task Force's Ranking Member, 
Mr. Scott, would reauthorize and streamline the grant programs 
in the Second Chance Act to help ex-offenders become productive 
members of our society.
    I want to thank the witnesses for appearing today and look 
forward to hearing about these and other issues associated with 
the collateral consequences of a criminal conviction.
    It is now my pleasure to recognize for his opening 
statement, the Ranking Member of the Task Force, the gentleman 
from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Chairman, our last hearing focused on the problem of 
over-incarceration and the need for proportional evidence-based 
and individualized sentencing. The Pew Center on the States, 
estimates that any ratio of over 350 per 100,000 in jail today 
begins to get a diminishing return for additional 
incarceration. They also tell us that anything over 500 per 
100,000 actually becomes counterproductive because you are 
wasting so much money, you are messing up so many families. You 
have so many people with felony records it actually increases 
crime not decreases crime.
    Data shows that since 1992, the annual prison costs have 
gone from about $9 billion to over $65 billion adjusted for 
inflation, and that increase of prison costs was over six times 
greater than higher education. This hearing focuses on the 
significant punitive and offered counterproductive collateral 
consequences that obstruct, impede, and undermine successful 
reentry. Our witnesses today will share the data that 
demonstrates that our existing system of State and Federal 
collateral consequences wastes the taxpayers' money, violates 
common sense, and are ultimately counterproductive to the goal 
of public safety.
    Just like each of the 195 mandatory minimums got in our 
Federal code one at a time, each and every one of the over 
45,000 collateral consequences that were written into State and 
Federal law got there slowly over time. When considered in 
isolation, a collateral consequence may not initially appear to 
be a high hurdle to reentry and success, but taken together, 
these collateral consequences form a tightly woven web that 
restricts individuals from overcoming the hurdles in their 
path.
    Many of these collateral consequences are born from the 
worst of the worst of these tough on crime sound bites 
masquerading as sound public policy. Just as mandatory minimum 
sentences, sentence people before they are even charged or 
convicted based solely on the code section violated without any 
consideration to the seriousness of the crime or the role of 
the defendant, collateral consequences apply across the board 
and to ``all convicted felons.''
    For example, in the drug context in the fiscal year 2012, 
60 percent of convicted Federal drug defendants were convicted 
of offenses carrying a mandatory minimum penalty of some sort. 
Right now restrictions on your ability to work, live, learn and 
survive are the same irrespective of your expense, or how long 
ago it was or what role you played, the collateral consequences 
you face are not narrowly tailored or even tailored at all. It 
is a one size fits all, it is another example of tough on crime 
sweeping far too broadly and far too harshly. There is no 
reliable scientific data that demonstrates that any of these 
collateral consequences actually improve public safety, reduce 
recidivism, or save money. To the contrary, all of the evidence 
is just the opposite.
    Collateral consequences of conviction affect an 
individual's ability to obtain necessary social services, 
employment, professional licenses, housing, student loans to 
further their education, the ability to interact with their 
children, and critically, power through the voting in the 
Democratic process. All of these restrictions, among tens of 
thousands of other ones, have resulted in lifelong civil 
penalties that prevent individuals from transitioning back to 
society successfully. They serve to marginalize and stigmatize 
those with prior convictions and treat them as second class 
citizens.
    Just as the Children's Defense Fund has recognized that 
secure housing, employment, education and other social services 
are the best crime-prevention resources to redirect individuals 
from what they call the cradle to prison pipeline, toward a 
cradle to college and career pipeline, so too must we apply the 
same data to redirect those reentering our communities after 
serving their sentences.
    When there is no hope for a decent job because employers 
refuse to hire those with a prior conviction, we can't be 
surprised that some choose to return to the very paths that led 
them to prison in the first place. Often there is no bearing, 
no correlation, and no relevance between someone's prior 
conviction and the job they are applying.
    Now, in some circumstances, there may be value in looking 
at the criminal conviction. For example, it makes sense for 
someone with an embezzlement conviction to be denied a job at a 
bank. But what does a 30-year-old marijuana possession 
conviction have to do with someone getting a good paying 
construction job? Now the EEOC has issued guidance that 
provides that an employer's use of an individual's criminal 
record may discriminate against them if there is a 
disproportionate impact on certain minorities without any job-
related relationship. That could constitute discrimination and 
so although the criminal record may be relevant--can I have 
about 30 more seconds.
    Mr. Sensenbrenner. Without objection.
    Mr. Scott. Although the criminal record may be relevant, 
the untargeted, overly broad denial of all jobs because of any 
Federal record may actually constitute discrimination.
    Mr. Chairman, thank you for holding the hearing, and look 
forward to the testimony of our witnesses.
    Mr. Sensenbrenner. The the time of the gentleman has 
expired.
    Without objection other Members' opening statements will be 
made a part of the record.
    [The prepared statement of Mr. Goodlatte follows:]


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                               __________
    Mr. Sensenbrenner. It is now my pleasure to introduce the 
two witnesses this morning.
    Mr. Rick Jones is the executive and a founding member of 
the Neighborhood Defender Service of Harlem. Mr. Jones is a 
lecturer at Columbia Law School where he teaches criminal 
defense externship and a trial practice course. He is also on 
the faculty of the National Criminal Defense College, in Macon, 
Georgia, and is frequently invited to lecture on criminal 
justice issues throughout the country.
    He currently serves as Secretary of the National 
Association of Criminal Defense Lawyers and previously served 
that organization as a two-term member of the board of 
directors, parliamentarian, co-chair of both the Indigent 
Defense Committee and the special task force on Problem Solving 
Courts, and is currently co-chair of the task force on the 
restoration of rights and status after conviction.
    Mr. Mathias Heck is a prosecuting attorney for Montgomery 
County, Ohio. He previously served Montgomery County as a law 
clerk and then as assistant prosecuting attorney. He received 
his undergraduate degree from Marquette University, which was a 
very wise choice, and his J.D. Degree from the Georgetown 
University Law Center.
    I would ask all of you to limit your opening remarks to 5 
minutes. I think you are all aware of what red, yellow and 
green means in the timer before you and even though I 
introduced you second, the prosecution always puts their case 
in first, so Mr. Heck, the floor is yours.

     TESTIMONY OF MATHIAS H. HECK, JR., MONTGOMERY COUNTY 
     PROSECUTING ATTORNEY, MONTGOMERY COUNTY, DAYTON, OHIO

    Mr. Heck. Good morning, Mr. Chairman, Members of the Task 
Force. Thank you very much. I appreciate your comment about 
Marquette--Okay? Thank you.
    Again, good morning, I appreciate your comments about 
Marquette University, and I know it is very dear to your heart.
    In addition to being the prosecuting attorney from 
Montgomery County, Dayton, Ohio, I am also honored to be the 
chair of the Criminal Justice Section of the American Bar 
Association which is a section of about 20,000 members which 
include the whole array of the partners of the criminal justice 
section and the criminal justice process in the American 
system, and that is judges, defense lawyers, prosecutors, law 
professors, and other law enforcement personnel.
    I appear today to talk about the ABA's view of collateral 
sanctions and how it relates to convictions and also highlight 
some of the things that the American Bar Association has done. 
As many of you know, the American legal system has long 
recognized that certain legal disabilities or collateral 
sanctions result from a criminal conviction in addition to a 
sentence, so, there may be a prescribed sentence relating to a 
crime, but attached thereto may be collateral sanctions or 
disabilities that are also imposed in addition to the sentence.
    That sentence could be probation, could be to the 
penitentiary, or a combination of both. These collateral 
consequences of conviction include such familiar penalties of 
disfranchisement, deportation, loss of professional licenses, 
felon registration, ineligibility for certain public welfare 
benefits, even loss of a driver's license, and many more.
    Over the last number of years, collateral consequences have 
been increasing steadily in variety and severity throughout the 
country, and they have been accumulated with little 
coordination in State and Federal laws, making it almost 
impossible to determine all of the penalties and disabilities 
applicable to a particular offense.
    Now, some collateral sanctions or consequences do serve an 
important and legitimate public purpose. As the Chairman has 
already mentioned, keeping firearms out of the hands of persons 
convicted of crimes of violence, or barring persons who have 
been convicted of embezzlement from holding certain public 
interest jobs, or denying driving privileges to those convicted 
of aggravated vehicular homicide. Other collateral sanctions 
are more difficult to justify, particularly when applied 
automatically across the board to a complete category of 
convicted persons, and the reason is, it results in serious 
implications not only in terms of fairness, and as a prosecutor 
I can say this, not only as in regards to fairness to the 
individual charged, but also to the resulting burdens on the 
community, on the citizens.
    Collateral consequences can also present challenges to the 
issue of reentry, and reentry is very important. It may become 
a surprise to many of you, but local prosecutors throughout the 
country have very spearheaded, reentry programs because we see 
this as a public safety issue. Nonetheless, not all collateral 
consequences of conviction are affected. Many have no 
relationship to public safety and prevent a former offender 
from doing productive work in order to support a family and 
contribute to the community. This effect to employment results 
and represents one of the more difficult issues facing, I 
think, our justice system and our Nation. The reality is that 
ex-offenders who cannot find jobs that provide sufficient 
income to support themselves and their families are more likely 
to commit more criminal acts and find themselves again back in 
prison.
    Now, the American Bar Association has adopted a 
comprehensive set of principles regarding collateral sanctions, 
and they have two primary goals, one to encourage awareness of 
all involved in the justice system process of the full legal 
consequences of a conviction, so when someone is convicted they 
know what's going to happen.
    And, secondly, to focus attention on the impact of 
collateral consequences on the process by which a convicted 
person can get into reentry and come back into the community 
and be a productive member of the community.
    They also call for a significant number of reforms to the 
law. Number one, the law should identify with particularity the 
type, severity, and duration of the collateral sanctions, so if 
there is a collateral sanction to a particular crime, everyone 
knows what it is.
    Now, the Collateral Consequences of Conviction Project, 
which is funded by the National Institute of Justice and 
completed just recently by the American Bar Association is 
something that was authorized by Congress. We started it in 
2009, we just completed it, and we have adopted and found 
45,000 collateral consequences.
    And, again, the hope is that we can categorize these and 
that everyone knows, it is open to the public, to defense 
lawyers, to prosecutors, and that way everyone can understand 
what the collateral consequences are. They are readily 
available, and they know what's involved. Thank you very much, 
and I appreciate it, and I will be glad to answer any 
questions.
    [The prepared statement of Mr. Heck follows:]


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                               __________

    Mr. Sensenbrenner. Thank you very much, Mr. Heck.
    Mr. Jones.

   TESTIMONY OF RICK JONES, EXECUTIVE DIRECTOR, NEIGHBORHOOD 
                   DEFENDER SERVICE OF HARLEM

    Mr. Jones. Thank you for the invitation to appear before 
you this morning.
    We have a lot of ground to cover and a little time. I am 
going to get right into it. Sixty eight million people in this 
country are living with a criminal record. That is one in every 
four adults. Twenty million people with felony convictions, 14 
million new arrests every year, 2.2 million people residing in 
jail or prison, that is more than anywhere else in the world.
    As a member of the NACDL task force that produced this 
collateral damage report, I had the opportunity to travel to 
every region of the country and listen to the testimony of 
people living with convictions as well as to the testimony of 
many other stakeholders in the criminal justice system.
    In Northern California, we heard from a chief of police who 
is dealing with a significant crime problem, a rising murder 
rate, and widespread community distrust. As he searched for 
solutions, he realized that he was policing from a place of 
fear. That was his term, policing from a place of fear. He was 
not serving or protecting the community. He was at war with the 
community. His officers did not really know the citizens they 
were policing. Distrust and fear was the order of the day. It 
wasn't until he took the time to get to know the people he was 
charged with protecting, that he recognized and appreciated 
their humanity. Trust and understanding improved, and his crime 
problem began to decline.
    Sixty eight million people living with convictions, more 
than the entire population of France. We are in danger of 
becoming a nation of criminals because we are policing from a 
place of fear. Fourteen million new arrests every year. We are 
prosecuting from a place of fear. Forty five thousand, 
collateral consequences on the books in this country, 45,000 
road blocks to the restoration of rights and status after 
conviction. We are legislating from a place of fear. The time 
has come for change in our national mind set. We must move from 
penalty, prosecution and endless punishment to forgiveness, 
redemption and restoration.
    A great way for this Task Force to begin the healing 
process is to implement the first recommendation in our report, 
a call for a national restoration of rights day, a day every 
year where we can celebrate redemption and restoration with 
educational programs for employers, skills training workshops 
for the affected community, job fairs, certificate of relief 
programs, at no cost and no cost opportunities, no cost 
opportunities to clean up your rap sheet.
    More concretely, there are four steps this Task Force can 
take that will have an immediate impact on the collateral 
damage of collateral consequences. First, you must repeal 
Federal mandatory collateral consequences. Fourteen million new 
arrests each year, 68 million people living with convictions, 
mandatory, automatic, across-the-board collateral consequences 
make no sense. You cannot paint with that broad a brush. There 
is no public safety benefit in stripping people of their right 
to vote. Eliminate mandatory collateral consequences and stop 
creating new ones.
    Second, you must provide meaningful Federal relief 
mechanisms for those people living with Federal convictions. 
First and foremost 14 million new arrests each year is 
indicative of the problem. We must create avenues for avoidance 
and diversion in the Federal criminal justice system. Defense 
attorneys, prosecutors and judges must be cognizant of 
diversion opportunities and promote them. Judges have to be 
empowered with relief at sentencing, individualized relief, 
tailored to the individual and unique circumstances.
    The Federal pardon process must be reinvigorated and 
meaningfully carried out. Pardons should be routinely granted 
in the ordinary course of business. The process must be 
transparent and accessible to all. The media must be informed 
and aware of the process, and there should be dedicated staff 
committed to the regularized review of pardon applications.
    Third, for those discretionary consequences that remain, 
there must be clearly established guidelines for decisionmakers 
to follow, guidelines with respect to relevancy, passage of 
time and evidence of rehabilitation. There should be a 
presumption of irrelevance for any conviction beyond a certain 
number of years and for anyone who has shown evidence of 
rehabilitation.
    Finally, consumer reporting agencies and background check 
companies must be regulated. Rap sheets are not a commodity. We 
should not be creating a market in the buying and selling of 
people's conviction records. There are some law enforcement 
agencies in this country that sell rap sheets. That must stop. 
Any records disclosed must be accurate. The FBI Web site, which 
is the main source of criminal record acquisition, is wrong 50 
percent of the time. It must be cleaned up and maintained, and 
there must be an easily accessible, no-cost method for 
individuals to check their rap sheets and make corrections or 
updates.
    The time has come to end the economic drain of collateral 
consequences, the endless Government intrusion into the lives 
of our citizens, and the social and moral havoc they wreak on 
individuals, on families and entire communities. We need a 
coherent national approach to forgiveness, to redemption, to 
the restoration of rights and status after conviction.
    Thank you. I look forward to your questions.
    [The prepared statement of Mr. Jones follows:]


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                               __________

    Mr. Sensenbrenner. Thank you, Mr. Jones.
    The Chair is going to put himself at the end of the 
questioning queue, just so in case we run out of time, all of 
the other Members will be able to ask questions.
    And at this time, well, before recognizing the gentleman 
from Virginia, Mr. Scott, let me say that the Chair is going to 
be especially vigilant in enforcing the 5-minute rule so that 
everybody has a chance. I do have a reputation of looking at 
the red light.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you. Mr. Heck, Ban the Box has been 
mentioned. Is banning the box where you have to check off on 
your application that you have been convicted of a felony, does 
that prohibit an employer from considering on an individualized 
basis your criminal record?
    Mr. Heck. First of all, on behalf of the American Bar 
Association, the American Bar Association has not taken a 
position on that. I think there are discussions that have to be 
had on that. I think we are seeing a lot of problems that are 
associated with that particular issue.
    Mr. Scott. The point is, if you don't check off the box, it 
does not subsequently eliminate the employer's consideration of 
your record, but only on an individualized basis and whether or 
not the record is relevant to the job.
    Mr. Jones, are you familiar with the EEOC guidance? Can you 
say a word about that?
    Mr. Jones. Ban the Box, you are absolutely correct, 
Congressman Scott. Ban the Box does not prevent an employer 
from having an opportunity to review and determine relevancy of 
a person's criminal record or criminal conviction. All Ban the 
Box does is get the person's foot in the door initially. It 
allows them to have an opportunity to prove their credentials, 
to prove their ability to do a job.
    And once an employer is in a position to think that this 
individual is able to do the job and is someone who we would 
like to employ, they then have the opportunity to review the 
person's criminal record and decide whether it is relevant, 
whether they are rehabilitated, whether there has been enough 
passage of time so that it is not a factor. But they do at the 
end of the process have the opportunity to know and evaluate 
the person's record. So Ban the Box is not a wholesale 
preclusion.
    Mr. Scott. But you never would have gotten to that point 
where you would have been considered if you had checked the 
box. The application would have been thrown in the trash.
    Mr. Jones. That is right.
    Mr. Scott. When you talk about collateral consequences, a 
couple things that haven't been mentioned is the total waste of 
money. I know California many years ago spent a lot more money 
on higher education than prisons. Now prisons have exceeded by 
large margin what they are spending on higher education. So the 
waste of money crowds out things, and that is a collateral 
consequence of over incarceration, and children with parents in 
prison are also at high risk.
    Just very briefly, Mr. Heck, can you tell me whether the 
automatic, across the board collateral consequences help keep 
people from coming to jail or add to coming back to jail? For 
example, a collateral consequence of unemployment making it 
more difficult to get a job, does that help or hurt in terms of 
recidivism?
    Mr. Heck. I think it is counterproductive to what we are 
trying to do. I think any type of across the board sanction, 
without looking at the particular offense and the particular 
offender is counterproductive.
    Mr. Scott. What about education?
    Mr. Heck. Well, education is the same way. It is 
interesting in Ohio, we have dealt with that and the 
legislature has over the last year. There are a number of 
alternatives that we now offer to prison, and I mean, a number 
of different alternatives that they have to try because, again, 
it makes no sense. When we are talking about reentry, most of 
the individuals who go to the penitentiary are going to be 
released, and so I think we have to look at that on the front 
end rather than saying what are we going to do after they are 
released.
    Mr. Scott. Well and if you cut back on your right to get an 
education, education has been studied over and over again. That 
actually the more education you get the less likely you are to 
come back. Denying somebody an education seems to be clearly 
counterproductive.
    Mr. Heck. Absolutely.
    Mr. Scott. What about, have you studied the implications of 
the right to vote in terms of recidivism?
    Mr. Heck. Again, the project that the American Bar 
Association has just completed looked into that as a collateral 
consequence. Again, I see no reason why someone is not restored 
to the right to vote. That is to me a fundamental right, 
personally as well as the American Bar Association, that should 
be respected, and I think they should be restored.
    Mr. Scott. Mr. Jones, have you done any studies to show the 
impact on recidivism for any of these things I have mentioned?
    Mr. Jones. Well, certainly when you disenfranchise, you are 
disenfranchised. You want to enfranchise people. So you 
certainly don't want to take way their right to vote or their 
sense of participation in the Democratic process.
    With respect to the money that the Government spends on 
educating people to hold any kind of license to be a barber, 
for example, it makes no sense to educate someone and to give 
them a license to be a barber, to pay for that, and then when 
they get out, tell them that they can't do that job. It is 
counterproductive, and it absolutely leads to frustration and 
recidivism.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentleman from Alabama, Mr. Bachus.
    Mr. Bachus. Thank you, Mr. Chairman.
    One statement here in Mr. Jones' testimony is, even with 
conviction records the well-documented failure States record 
when charges are dismissed or records sealed and the failure of 
private data companies to keep accurate records hurts millions 
of individuals. That is a little separate situation, but is 
that a big problem, too?
    Mr. Jones. That is a big problem, particularly when people 
are being denied opportunities without even having a 
conviction, but merely the arrest is enough in many cases to 
deny a person the opportunity.
    Certainly when records are not updated, someone has 
received a certificate of relief from disability, someone has 
been pardoned, those things are not added to the record and are 
not known, it hurts the person right off the bat because all we 
are seeing is an arrest and many times not even an arrest that 
leads to a conviction that is denying people opportunities.
    Mr. Bachus. What, if you know, the FACT Act has certain 
strict regulations on what can be reported in a background 
check. Is that violated, and what is the process for combatting 
that? Do you know, or under the EEOC?
    Mr. Jones. It is frequently violated, particularly in an 
age where you can get almost anything with a mouse click or a 
keystroke. So frequently employers and other decision makers, 
landlords, are making decisions on less than accurate 
information and often inaccurate information.
    And really there needs to be much greater limited access to 
these records, much greater regulation over the records, 
opportunities for people to update and correct inaccurate 
information in their rap sheets. All of these things need much 
stricter guidelines, limited access, and an opportunity at no 
cost for people to correct mistakes in their conviction records 
or their rap sheets.
    Mr. Bachus. Well, do employers actually get the criminal 
record or criminal history, or are they told whether or not the 
person meets a certain criteria? Do you know?
    Mr. Jones. Employers are actually given a person's rap 
sheet. They can actually, they can buy them from consumer 
reporting agencies. In some cases they can get them directly 
for a fee or not from law enforcement agencies.
    So the access an employer or other decisionmaker has to a 
person's complete criminal rap sheet is far too loose and 
easily available, and they have them.
    Mr. Bachus. All right. I am the co-sponsor for legislation 
with Mr. Sensenbrenner and others, Mr. Scott, I think, of the 
Second Chance Act, which helps State and local government 
agencies and community organizations improve prisoner reentry 
nationwide. Do any of you have comments on the Second Chance 
Act and how it might help?
    Mr. Heck. Well, again, I think with comments that have 
already been made, prosecutors around the country are certainly 
supporting and have started reentry programs. I think it is so 
important. Without looking up front at what is going to happen 
to an individual who is sentenced to the penitentiary, knowing 
that that individual is going to come back into the community, 
is just very, it misses the entire point of what we are trying 
to do.
    We are trying to make productive citizens out of these 
individuals and to help them, and to just warehouse 
individuals, as a prosecutor I can tell you just warehousing 
individuals in the penitentiary makes no sense at all, and I 
think we have to be smarter on crimes, smarter on who is 
sentenced to the penitentiary, and also to help whether it is 
education, whether its having someone to be helped get job, 
have employment, have housing when they are released. So I 
commend all of you for supporting that.
    Mr. Jones. And NACDL certainly supports the Second Chance 
Act. Thank you.
    Mr. Sensenbrenner. The gentleman's time is expired.
    The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    I just want you to know that I think this over-
criminalization panel is one of the most important in the House 
Judiciary Committee, and what we are doing is working on ways 
to get this as much into the legislative mainstream as 
possible, so we would welcome any thoughts that you have now or 
in the future about this, it is that critical.
    And after the votes this morning, in 2226 Rayburn, right 
down the hall, we are going to have personal narratives of 
witnesses that have experienced some negative collateral 
consequences. So, we wanted to invite not only you two 
distinguished lawyers, but everyone here to join us if you can.
    My first question to both of you is, how can we ramp this 
subject up as effectively and as thoughtfully as possible 
without overdoing it or creating a backlash or anything like 
that? Do you have any thoughts on that, gentlemen?
    Mr. Heck. I do. Thank you for the question.
    First of all, the Collateral Consequences of Conviction 
Project that was funded by the NIJ and just completed by the 
American Bar Association, this is a grant we got and many 
reasons because of Senator Lahey from Vermont, although it was 
a $750,000 grant. The American Bar Association, because of the 
immense and the depth of this project, invested another 
$750,000 of its own money and it was just completed.
    Again, recognizing about 40,000 to 45,000 collateral 
consequences. What we would hope, what the American Bar 
Association hopes, is that Congress and the States use this 
database that we have to identify all the different collateral 
sanctions or consequences throughout the country in the Federal 
system, all right, and to look at them say how effective are 
they? How relevant are they? Retool some. Limit some. Some have 
just been overbroad, or they have applied forever.
    And so they need to limit some of them. So we are hoping 
again that Congress will take advantage of this monumental 
project that we have just completed and maybe use it, and we'll 
be glad to assist in any way possible.
    Mr. Conyers. Well, we intend to.
    Now, what about going beyond the American Bar Association. 
You know that there are dozens of law organizations and 
associations across the country. I am thinking about widening 
our approach so that we can begin this discussion with them 
working off of the good initial work that you have started.
    Mr. Heck. I appreciate the question. And, again, I think 
your point is well taken. As a former president of the National 
District Attorneys Association, I know that district attorneys 
across the country are very concerned about this project and 
are very interested in what the results are that we just 
finished, and I know we are going to be having conversations 
about this.
    I know State prosecutor's associations are going to have 
and are always concerned about collateral sanctions and the 
effect it has on not only the offender, but on the community.
    Mr. Conyers. You are giving prosecutors a great new 
description here. I always think of prosecutors as the bad guys 
that are trying to rack up as many convictions with as many 
severe penalties as possible. I mean, I think this is an 
incredible--has there been some kind of turnaround on the--have 
we been making progress that we didn't know about or what?
    Mr. Heck. Congressman, let me assure you that I really 
believe I can speak, not on behalf of the NDAA, because I am 
not the president. Henry Garza from Texas is now. But what I am 
saying is I think most of the prosecutors realize that.
    This idea of just putting people away, that may have been 
the thought of some prosecutors many years ago, but that is 
really not the thought today. The thought today is be smarter 
on crime and to identify those individuals who must be 
prosecuted.
    Mr. Conyers. How refreshing. Can I get just a----
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you and I appreciate your being here. 
Sorry I was late.
    This is a project that is near and dear to my heart, and 
when Ed Mace called and asked if I would participate in 
something that dealt with a problem that I saw as a massive 
problem, over-criminalization, something that as a formal 
prosecutor, judge, chief justice, has driven me crazy because I 
had seen when people want to beat their chests and show how 
tough they are, well, let's slap a criminal penalty on 
something.
    And so, as you know, as we talked about there are maybe 
5,000 or so crimes that are not in 18 U.S. Code where they 
ought to be as a criminal code, and I had wondered why in the 
world have we not been able to clean this mess up before? And 
what I heard is it seems like every time a project gets fired 
up to try to clean up the criminal code, that it ends up being 
a big Santa Claus Christmas bag, and people start trying to 
throw more and more in it, and then overall you lose too many 
votes and people go, I can't agree to that, wait a minute I 
loved the idea, I was on board, but now you have thrown that in 
the bag I can't agree to that; and then it loses the impetus 
and nothing gets done over and over.
    And so that is one of my concerns as we go here. I hear 
from people going, yeah, you are right. We got to stop this 
over-criminalization, and also we got to stop the 
militarization of some of these Federal Departments. And you 
know, the EPA doesn't need a SWAT team and neither does the 
Department of Education for heavens sake and we should never 
have, as we heard in this room, testimony about a poor little 
nerd that was trying to develop a new battery, and he gets 
pulled over by three Suburbans, run off the road, yanked out of 
his car, thrown down, boot in his back, handcuffed, and drug 
off because he didn't put a sticker on a thing he mailed to 
Alaska with an airplane with a line through it. He put ground 
only, checked that, but he didn't put the sticker. I mean, we 
need to stop that.
    And so people are getting that and they are getting all on 
board, and then when we start saying, well, we are also looking 
into whether or not maybe employers shouldn't be able to find 
out if you committed a crime before they hire you. Oh, wait a 
minute now, wait a minute. This is a very sensitive industry, 
and you are telling me I don't get to know if he has been 
stealing from his last job, or in this daycare job I don't get 
to know that this person has actually molested people in the 
past.
    And I can tell you as a judge, had a case where because of 
the law trying to protect people, protected a child molester; 
and it wasn't until he molested and destroyed other lives that 
he got stopped, and because of the way the law was, the 
juvenile probation department didn't even get to know that he 
had had these other incidences just because of the way he was 
protected.
    So I am really concerned that we may be getting into an 
area where we are going too far if we are not too careful. We 
lose the steam because, let me just ask you guys. Why would it 
be appropriate for Congress to force private businesses to 
ignore somebody's criminal history?
    Mr. Jones. Thank you for the question. I just want to be 
crystal clear about Ban the Box, right, because Ban the Box 
does not prevent an employer or other decisionmaker from 
knowing about a person's criminal record. There need to be 
clear relevancy guidelines that adhere across the board so that 
decisionmakers understand what is relevant and what is not when 
looking at a person's criminal record.
    And there also needs to be an opportunity for the 
individual to get his foot in the door to be able to present 
his credentials and his employability. But once those things 
are done, once there are clear relevancy guidelines and 
decisionmakers know, and once a person has his foot in the door 
then he----
    Mr. Gohmert. Well my time is about to expire, and I want to 
get this question in. Isn't it true that those who access 
individual criminal histories are already subject to strict 
regulation regarding the use of that information under Fair 
Credit Reporting Act and Equal Employment Opportunity 
Commission; isn't that true?
    Mr. Heck. That is correct.
    Mr. Gohmert. So it is not just wide open already.
    Mr. Heck. And I think there are safeguards. I think there 
are some abuses to it. No question about it. I understand what 
he is saying, but I do think that there are collateral 
consequences that are appropriate.
    Mr. Gohmert. Okay, thank you very much.
    I yield back.
    Mr. Sensenbrenner. The gentlewoman from California, Ms. 
Bass.
    Ms. Bass. Thank you very much, Mr. Chair, and the Ranking 
Member, for holding this hearing. I think this is such a 
critical issue for our Nation.
    And earlier this year in my district I had a town hall and 
we had several hundred people come talking about this very 
subject and it seems like in our society we used to have a 
belief that if you paid your debt to society, that you could be 
reintegrated; and it seems like part of what has happened over 
the last couple of decades is that we no longer have that 
belief and in fact you can spend some time in prison, but then 
you can spend the rest of your life with the stigma and not 
being able to appropriately reintegrate.
    In California when I was in the State legislature we had a 
law that said if you were a felon, you could not get a license 
to be a barber. At the same time in our State prison system, we 
had a barbering program where we taught felons how to be 
barbers and then didn't allow them to have the license when 
they left, and so we had to change that law and we had over 54 
occupations that you couldn't do if you had been a felon.
    Mr. Jones, you mentioned that there should be a presumption 
of irrelevance. And you know, the experience about Ban the Box, 
I completely understand what you mean in terms of getting your 
foot in the door to even say that it was a conviction from 30 
years ago, and it was when I was a college student or something 
like that. Because if you don't check that box and then you 
find out, then you are subject to immediate termination because 
you have lied.
    So when you were talking about a presumption of 
irrelevance, I wasn't sure if you were really talking about 
that rhetorically, or if you actually meant that that is what 
we should do and then I wanted to know how we would go about 
that?
    Mr. Jones. Well, thank you for the question. There are 
studies that suggest that after a certain number of years a 
person's conviction is--a person is less likely--is no more 
likely and in some cases less likely to reoffend than anybody 
in the general society.
    So when we are talking about evaluating a person's criminal 
record for whether or not they should be accessible to an 
opportunity or benefit, then what we really need to do is we 
really need to look at whether or not there is any relevance to 
the opportunity, what the passage of time has been, and whether 
or not there is any evidence of rehabilitation.
    And when the passage of time has been such and there is 
evidence of rehabilitation, there really ought to be a 
presumption of irrelevance, that the conviction is no longer 
relevant to whether or not this person ought to have that 
opportunity.
    Ms. Bass. So, and I agree with you, but how do we do that? 
Is it a law? Do we pass a law that says that? And then I am 
assuming that you would exempt certain times of crimes?
    Mr. Jones. Exactly. And I think that there have to be 
guidelines that are set out clearly for decisionmakers, for 
employers and landlords and others, there have to be guidelines 
that clearly instruct individuals as to what is relevant and 
what is not and what the passage of time is and what the 
evidence of rehabilitation might be so that people understand 
and know we are all playing by the same rules.
    But once we have those guidelines and we are all playing by 
the same rules, then there ought to be a presumption of 
irrelevance.
    Ms. Bass. And one of you, and I am not sure which one, made 
reference to the fact that the FBI Web site is wrong a 
significant amount of time. I wanted to know how it is wrong? 
Is it the wrong people are listed, wrong charges are listed?
    Mr. Heck. Well, I am not sure exactly what you are 
referring to, ma'am, except to say that so many times when we 
have the silver streaks or we have the histories of 
convictions, that many times that people who input that data, 
that it is incorrect. And I think, that not only saying the 
FBI----
    Ms. Bass. So it could be both, the wrong charges and the 
wrong people?
    Mr. Heck. Exactly. I think it is incumbent, I mean I find 
out when we are looking at defendants who we have charged in my 
office and my assistant prosecutors will try to get a record 
check, we have to make sure that we confirm that, to make sure 
it is accurate, because many times the inputting of that data 
and the way it goes through our Bureau of Criminal 
Investigation and Identification is wrong.
    Ms. Bass. I have a piece of legislation that I have 
introduced called the Success Act which is looking at you know, 
a piece of collateral damage which says that young people who 
have a certain crime cannot get financial aid, and I am 
wondering if in the tens of thousands of collateral damage 
examples that you two talked about, are there a number of them 
that relate to education?
    Mr. Heck. Well, I think a lot of them do relate to 
education, either directly or indirectly and I think the idea 
of preventing young people who may have made a mistake, from 
making amends, from doing what they were supposed to do and 
then later in life restricting them from having the education 
that benefits not only them but you know, society, makes no 
sense at all.
    Mr. Jones. It is very difficult to make the argument that 
there is a public safety benefit from allowing young people to 
get an education.
    Mr. Sensenbrenner. The gentlewoman's time is expired.
    The gentleman from New York, Mr. Jeffries.
    Mr. Jeffries. Thank you, Mr. Chair.
    And let me thank both of the witnesses for your testimony 
and for your work on this very important issue.
    Let me start with Mr. Heck. You testified earlier today, I 
believe appropriately, that automatic blanket, across the board 
imposition of collateral consequences is counterproductive. In 
that regard, how would you suggest the Committee look at or the 
Task Force look at, how the collateral consequences that you 
believe may be appropriate in certain circumstances are 
narrowly tailored to fit the severity of the crime so that we 
don't broadly sweep individuals into this blanket fashion.
    Mr. Heck. And I appreciate the question.
    And I do think that some collateral consequences if they 
are applied so broadly across the board are not relevant to 
that individual case or that individual offender. That is what 
I don't think the law has been looking at, the offender, not 
just the offense.
    For example, in Ohio if someone owes child support and they 
are not paying their child support, their driver's license is 
suspended. It is so ridiculous and I have told my prosecutors 
who handle those kinds of cases, we are not going to ask for 
that. In fact, we are going to say it shouldn't be done because 
we are asking the person to pay child support and saying you 
can't have a job to pay it. So I think we have to have a look 
what the collateral consequence is because some are 
appropriate.
    Mr. Jeffries. And when we craft the law, who should be 
given the discretion to make the determination as to the 
appropriate application of a collateral consequence if one is 
appropriate under limited circumstances? Should that be the 
court? Should that be built into the law in some way?
    Should the prosecutor have in the first instance have that 
opportunity? I don't know that everyone is as enlightened as 
you are or the prosecutors in your office. Who should have that 
opportunity to make that determination?
    Mr. Heck. There have been a lot of suggestions made on 
that. I believe, not the ABA, I believe that it should be the 
court. I think the judges are in a unique position to see both 
sides of the denominator, to see what is going on, and that 
they should make the judgment.
    Mr. Jeffries. Mr. Jones, do you have thoughts on that?
    Mr. Jones. Yes, I think that everybody in the system needs 
to be aware, updated. Prosecutors, defense counsel, everybody 
needs to understand at every step of the process the 
implication of collateral consequences as we go through the 
process.
    I do think that relief at sentencing by the judges who are 
able to tailor to the individual and remove and repeal 
consequences that are of no moment and are irrelevant is a good 
thing, so I believe that relief at sentencing is important, but 
I think all the players in the system ought to know and be 
aware at every step of the way, of the collateral consequences 
and their impact.
    Mr. Jeffries. Now on that point, you mentioned that there 
were 45,000--I think both of you in your testimony, 45,000 
collateral consequences, which is a staggering number.
    So that is a difficult undertaking but one that obviously 
is necessary, and I think we as a Task Force are going to have 
to think through how to create greater transparency as it 
relates to those consequences and obviously take steps, in my 
opinion, to reduce many of them.
    But you mentioned that 68 million people in America, I 
guess, are living with convictions. Is that right?
    Mr. Jones. That is right. And that number is growing.
    Mr. Jeffries. And that 20 million of those individuals have 
felony convictions, which mathematically I gather would leave 
48 million with misdemeanor convictions or criminal violations 
in some way, shape or form.
    Now, if we are to look at this issue in terms of collateral 
consequences, has any work been done to look at the 
consequences associated to those convicted of felonies versus 
the consequences associated with those convicted of 
misdemeanors, and is it relevant for us to think through this 
issue in that fashion?
    Mr. Jones. Well, I think that even just looking at some of 
the legislation that is proposed, certainly there always is 
this notion that first time offenders, non-violent 
misdemeanants, are more often the subject of legislation. But 
the fact of the matter is that at some point everybody's coming 
home. Right? The vast majority of these folks are coming home, 
and we need to think about and incorporating and be prepared to 
embrace all of these folks because nobody is merely the product 
of the worst thing that they've ever done, and we all deserve a 
second chance.
    So I would strongly suggest that as you think about how to 
set these guidelines and evaluate relevance, that you include 
everybody, including those 20 million folks who are living with 
a felony conviction.
    Mr. Jeffries. Thank you.
    Mr. Sensenbrenner. Gentleman's time is expired.
    The gentleman from Georgia, Mr. Johnson.
    Mr. Johnson. Thank you, Mr. Chairman.
    We need to reject wholesale demonization of every person 
who has a brush with the criminal law. Persons who are released 
from prison should be given a second chance, and we need to 
enter into a new age of restoration and redemption. These are 
things that are listed in your conclusion, Mr. Jones, and I 
think that those are very important ideals that we should seek 
to live up to.
    Oftentimes, it is we ourselves that are the perpetrators of 
over-criminalization. It is certainly the legislators are 
responsible and certainly judges and prosecutors who both are 
elected are responsible for getting tough on crime and throwing 
the book at people and implementing the policies that we 
enshrine into law.
    But I will ask you both. You are both members of the bar. 
You are both attorneys. You are licensed to practice law, and 
you know that when a person suffers a felony conviction and 
even misdemeanor convictions in many States, they are barred 
from being able to be licensed to practice law. Do you believe 
that those types of barriers, which are collateral 
consequences, do you believe that those should be removed from 
a person's ability to practice law, to get a law license? Mr. 
Heck?
    Mr. Heck. I think like in any other collateral sanction, I 
think they have to be looked at the offense and the offender 
and I think there are cases. We have seen it in Ohio, where 
thoseimpediments have been removed and someone who was 
convicted, say, for example, of voluntary manslaughter or 
murder have become lawyers. We have seen it with a lot lesser 
offenses.
    And yet at the same time we have seen cases where someone 
who was convicted of a theft or a fraud was not given the 
license to practice law in Ohio. So there has to be some type 
of parity also. There has to be some type of fairness and 
equity if we are going to have any collateral sanctions at all.
    Mr. Johnson. So you would be against blanket bans on all 
who have been convicted being ineligible to receive a license 
to practice law?
    Mr. Heck. I would think blanket bans do not serve any 
public purpose, blanket bans; correct.
    Mr. Johnson. I think that means what I asked.
    Mr. Heck. I agree with you.
    Mr. Johnson. Okay, all right, thank you.
    And Mr. Jones?
    Mr. Jones. I would agree. I mean, unless you can show me 
that there is some public safety benefit, that outweighs the 
individual right for a person to you know, get a law license 
after they have gone to law school and passed the bar and 
practice law, unless you can show me that there is some public 
safety benefit that outweighs that individual being able to 
practice law, then I would certainly say that you should not 
have that restriction, and you should not have any automatic 
mandatory ban.
    Mr. Johnson. Do you know of any initiatives by the ABA or 
by any State bar association to address that particular issue, 
either one of you?
    Mr. Heck. No. I know the project of the Collateral 
Consequences of Conviction Project did not entail that. It had 
to do with cataloging and just assembling and identifying all 
the collateral consequences, which was again a monumental task. 
But as far as the particular issue that you are talking about, 
I do not know of any State or the American bar tackling that 
yet.
    Mr. Johnson. All right. Thank you.
    And how do collateral consequences disproportionately 
impact communities of color and the poor?
    Mr. Heck. I think that just like we see a disproportionate 
as far as imprisonment is concerned, I think that goes along 
with that, because so many times the collateral sanctions are 
attached to a conviction.
    So I think that once you see the effect it has on the 
incarceration and imprisonment, you are going to see the thing 
on collateral sanctions and I think collateral sanctions 
especially as it relates to employment, as it relates to having 
an income and housing, really has an effect in that regard. 
Thank you.
    Mr. Jones. The answer is profoundly. There are studies that 
show that African American men who have never had any trouble 
with the law at all are less likely to get a job than similarly 
situated White men with a felony conviction.
    There are studies that show that African American men are 
seven times more likely to be arrested for crimes, particularly 
drug possession crimes, when the usage of drugs in those 
community is the same. So the impact of its collateral 
consequences on African American individuals, their families 
and society is profound.
    Mr. Johnson. Thank you.
    Mr. Sensenbrenner. The gentleman's time is expired.
    The gentleman from Tennessee, Mr. Cohen.
    Mr. Cohen. Thank you, Mr. Chair.
    These issues affect my constituents in a major way. Second 
chance opportunities for employment is one of the things I hear 
most from constituents. If somebody has had a conviction at 
some time in the past, they can't get a job, the continuing 
cycle. But more fundamental is the loss of the right to vote.
    And I don't know if this has been addressed extensively by 
you all, but do either of you all know the history of those 
particular laws? I was reading about civil death or however it 
is called, yeah, civil death, and that seemed to take away your 
right to vote and everything else and being described as 
barbarism condemned by justice by reason and by morality, et 
cetera. But, we have these laws.
    Does Maryland have a law like that, Mr. Heck.
    Mr. Heck. Maryland?
    Mr. Cohen. Yeah.
    Mr. Heck. I have to be honest with you. I am not familiar 
with the Maryland law, sir.
    Mr. Cohen. Which State are you from?
    Mr. Heck. I am from Ohio.
    Mr. Cohen. I am sorry. I was thinking it was Maryland. They 
joined the Big Ten, and I am all confused.
    Mr. Heck. I appreciate that.
    Mr. Cohen. Ohio doesn't have such a law, does it?
    Mr. Heck. No.
    Mr. Cohen. It is mostly southern States; right?
    Mr. Heck. That is my understanding. I have not done a study 
of that, but that is my understanding. You know, there is a 
history of what you say that disfranchisement of the right to 
vote, which again to me is so important it trumps everything.
    And so I think when you take someone's right to vote away 
and with the idea of never giving it back, I just think that 
should never be.
    Mr. Cohen. Mr. Jones, are you familiar with any history on 
these laws?
    Mr. Jones. You know, I have my own thoughts, but they would 
be conjecture. I don't know, but I will tell you this. By the 
history disfranchisement, by the time I get back to New York 
this afternoon I will know, and I will get that to you.
    Mr. Cohen. I think the history goes back to Jim Crowe, and 
I think it was kind of a southern thing and really if you look 
at the States that have those laws and/or had those laws, they 
are generally the same States that Justice Roberts said no 
longer have to have preclearance because it is a wonderful 
world, according to Justice Roberts.
    It is hard to fathom when you look at the history of 
discrimination in this country and look at it in voting areas 
where you had preclearance, and those are the same States that 
put a scarlet letter on individuals that says thou shalt not 
vote. Voting, in my district we had an election in May, a 
primary election for county offices, very important and about 
10 percent of the people who were registered voted.
    And so my theory is if people who had convictions in the 
past were allowed to vote, if they voted, by their simple 
action of voting they would show they were in the upper 10 
percent of the citizenry. You know so, to say that they could--
--
    We do in Tennessee, have a law which I was happy to have 
sponsored and passed that allows you to get your right to vote 
restored without going to court and without having the D.A. 
Come and bless you, et cetera. But, a guy in the House, kind of 
a Neanderthal-type character, put an amendment on the bill 
which passed, and it said that if you were behind in your child 
support you couldn't get your right to vote back and it is not 
something that is pretty clearly intended to have a disparate 
impact.
    Mr. Jones. Well there are two States I believe, that this 
Task Force ought look at, that allow individuals to vote while 
they are in prison. I think that is Maine and Vermont, and you 
can conjecture and speculate as to why those two States allow 
that, but I do believe that Maine and Vermont, but somebody can 
correct me if that is wrong.
    Those two States allow you to vote while you are in prison, 
and I think that everybody, that is right.
    Mr. Cohen. It is Vermont, and which is the other State?
    Mr. Jones. Maine.
    Mr. Cohen. Maine. But you have to be eating lobster or 
cheese or something at the same time.
    I yield the balance of my time. Thank you.
    Mr. Sensenbrenner. Thank you.
    Well, we still have some time left, so I will now recognize 
myself for 5 minutes.
    Both Mr. Jones and Mr. Heck have said that we should repeal 
all mandatory collateral consequences that apply across the 
board. Now, one part of Federal law prohibits anyone who has 
been convicted of a misdemeanor crime of domestic violence from 
possessing a firearm. Do you believe that Congress should 
repeal this law?
    Mr. Heck. As far as my position is concerned, again the ABA 
has not taken a position on that. I think we have to look again 
at the individual involved and the individual crime. So for 
example, we have had cases and domestic violence is something 
that is certainly on my radar screen personally and my office, 
and something just like child abuse that we take very 
seriously.
    And when we have a domestic violence case, I think we have 
to look, is that person an owner of guns, or did that person 
use a gun? And I think those are the distinctions that have to 
be made. So I think a broad, simply designation of someone who 
owns a gun should never be able to own a gun again, I think has 
to be looked at very seriously, as opposed to using a gun again 
in domestic violence and I have no problem with that person not 
being allowed to own a gun.
    Mr. Sensenbrenner. So do you think the current law which 
applies to misdemeanors as well as felonies is a good law?
    Mr. Heck. Depending on the circumstance.
    Mr. Sensenbrenner. Okay.
    Mr. Heck. Again, depending on the circumstance, I think----
    Mr. Sensenbrenner. It shouldn't be across the board? Mr. 
Jones?
    Mr. Heck. I don't think it should be across the board.
    Mr. Sensenbrenner. Mr. Jones?
    Mr. Jones. Mandatory, automatic, across the board 
consequences ought be repealed, and we ought to be looking at 
individual tailoring the denial of opportunities to individual 
circumstances and individuals and individual people. They 
should not be across the board automatic mandatory.
    Mr. Sensenbrenner. I am kind of surprised. I think the NRA 
would agree with both of you on this.
    Let me ask you another question in the time that I have 
left. When I first was elected to Congress, my wife and I owned 
a two-family House that was across the street from an 
elementary school, and we lived in one half of it, and I rented 
out the other half. Say somebody came and applied and was a 
person who was a recognized minority, applied to live in the 
other half, and I found out before leasing it to them that they 
were registered sex offenders. Could my denial of housing 
because they were registered sex offenders, not because they 
were persons of color or a protected minority, be a defense in 
a fair housing complaint?
    Mr. Heck. Not in Ohio, because they would not be allowed to 
live there in Ohio. You are saying you lived right across the 
street from a school; correct?
    Mr. Sensenbrenner. I did.
    Mr. Heck. Right, no. In Ohio, and that has been going on 
and increasing the number of feet as well as the number of 
instances where a convicted sex offender may live. It started 
out within so many feet of a school, so many feet of a bus 
stop, so many feet of a daycare, so many feet from where 
children will be. So many--so that has become more broad.
    However, in the specific instance that you mentioned, no 
because under Ohio law they would not be permitted to live 
there anyway and we have had cases like that, my office has on 
the civil side, which we also represent, have actually ordered 
people to move and have got eviction notices for people and 
orders to have them move out because of the close proximity to 
schools.
    Mr. Sensenbrenner. So if I was accused of denying housing 
under the State or Federal Fair Housing Law because I denied 
them the lease because I lived across the street from the 
school, in Ohio I could go to the district attorney and have 
him represent me against the Fair Housing complaint?
    Mr. Heck. Well, under Ohio law we cannot represent an 
individual interest, but I can assure you that we would stand 
right next to you from the standpoint that that convicted sex 
offender should not live there.
    Mr. Sensenbrenner. Mr. Jones?
    Mr. Jones. Let me say two things about the sex offender 
issue and if you look in our report, you will see that not only 
prosecuting attorneys who work in this area but also 
individuals who are responsible for administering State sex 
offender registries say the same thing.
    Two points. The first is that anyone is more likely to be 
abused in that manner by someone within the four walls of their 
home, than they are by someone who is either delivering their 
mail or cutting their grass. You are much more likely to be 
molested or abused in some way by someone who is under your 
roof.
    And secondly, the overwhelming majority of arrests in these 
types of cases are by first offenders. The number of people who 
are sexual predators who are serial offenders is very small.
    So that these prosecutors and these people who run these 
sexual registries, what they say is the residency restrictions 
that we have placed on these folks are wrong-headed and don't 
make sense and are actually counterproductive because you are 
more likely to have a problem with Uncle Sam than you are with 
the guy who is delivering your mail.
    Mr. Sensenbrenner. Well, my time is expired.
    I want to thank all of the witnesses for your testimony and 
good answers to questions.
    Thank the Members for participating. Does anybody wish to 
put printed material into the record?
    The gentleman from Alabama.
    Mr. Bachus. I thank the, Chairman.
    I ask permission to----
    Mr. Sensenbrenner. Microphone please.
    Mr. Bachus [continuing]. Submit testimony in the record 
from Mr. Jessie Wiehl on behalf of Justice Fellowship, which is 
an independent prison fellowship ministry, which offers his 
perspective on the challenge of reentering society after he 
served a sentence for a criminal offense.
    Mr. Sensenbrenner. Without objection.
    Mr. Bachus. Thank you.
    Mr. Sensenbrenner. The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    I ask unanimous consent that the testimony from the Robert 
F. Kennedy Center for Justice and Human Rights; Bernard Kerik; 
Piper Kerman; Lamont Kerry; Anthony Pleasant; and reports from 
The Sentencing Project, ``State-Level Estimates of Felon 
Disenfranchisement in the United States 2010'' and ``A Lifetime 
of Punishment: The Impact of the Felony Drug Ban on Welfare 
Benefits,'' all be placed on the record.
    Mr. Sensenbrenner. Without objection.
    And, if there is no further business to come before the 
Task Force, without objection the Task Force stands adjourned.
    [Whereupon, at 10:42 a.m., the Task Force was adjourned.]



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