Sanctuary Cities are a direct slap in the face to 20 million Americans but not for the reasons you might think.

Currently in the United States, there are 20 million individuals who due to a felony conviction experience denial of civil and political rights, employment protections, career pathways, and access public assistance (Alliance for Safety & Justice, August, 2021).  The legalized discrimination they confront is based on their legal status—a convicted felon. 

Sanctuary City policies, conversely, decriminalize the legal status of illegal immigrant and in so doing extend legal protection to a group of individuals.  There are two distinct types of Sanctuary City policies—ones that focus on public health and safety (make it illegal to ask about or act upon immigration status in the provision of law enforcement, emergency services, and medical care) and others that seek to thwart the execution of the rule of law (refusal to participate in the investigation, identification, apprehension, arrest or conviction of illegal immigrants).  The Sanctuary City policies employ a “don’t ask, don’t tell” provision and provide blanket immunity from prosecution for illegal entry into the country.  With respect to those that focus on public health and safety, there is a recognition that a public good is served by having illegal immigrants participate in society without legal retribution which is often coupled with a values proposition that no one in the United States should be denied protection of law enforcement or access to basic medical care because they fear criminal action. 

One might make a qualitative distinction between the legal classes of felon and illegal immigrant by arguing that the latter is a non-violent, victimless crime.  On the flip side, there are a multitude of felonies that are non-violent (e.g. robbery, burglary, drug trafficking and distribution, grand theft, identity theft, white collar crimes, and possession of illegal firearms) and more pressing is the issue of why civic, political, and legal rights remain suspended, for life in some cases, after a felon has served his or her sentence, paid their “debt to society”.

Felons have become refugees within our society—alienated socially, politically, and economically by a complex regime of sometimes overlapping, sometimes bifurcated federal and state laws.  To be clear, this is not about the rights of felons.  It is about the denial of American rights and legal protections to a class of individuals.

Implicated in this discussion, and part of what differentiates the illegal immigrant protected by Sanctuary policies from felons, are our views of human nature and the purpose and efficacy of our penal system.

In some ways, our nation’s felony penalties are a call back to Nathaniel Hawthorne’s literary classic, The Scarlet Letter, in which an unmarried woman gives birth and is required to wear a scarlet-colored letter “A” pinned to her chest for the rest of her life so that neither she nor anyone else forgets that she committed adultery.  Her punishment serves to publicly reinforce the intertwined political, religious, and moral values of the Puritan theocracy in which she lives and also places her forever outside of devout and respectable society.  There is also an alarming acontextuality about her case.  The circumstances of her crime including the identity of the father are not relevant to the adjudication of her case or her punishment which is not dissimilar to the treatment of felons post-conviction wherein someone convicted of first degree murder is, under the law, treated the same as someone who committed a non-violent robbery.

While we easily recognize that Sanctuary City policies have a political undercurrent and that the Scarlet Letter’s heroine was unjustly judged by Puritanical ideology, we are far less inclined to acknowledge that the majority our nation’s 20 million felons became felons for reasons that are political, classist, and racist.   In the modern era, beginning with the Johnson administration and aggressively continuing through Clinton’s presidency, poverty has not only been criminalized, but incarceration has become the preferred and certainly best funded approach for dealing with problems stemming from chronic, widespread undereducation, unemployment, underservicing, and desperate poverty in America’s cities.

This will not be a post where I outline the modern era’s war on crime policies but I certainly recommend Elizabeth Hinton’s From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America for an in-depth history of federal criminal policy since the Kennedy administration and Michelle Alexander’s landmark opus on mass incarceration, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.

There is, however, one historical thread that needs to be picked up because it marks a true turning point in the ideology of our nation’s crime policies.  By the end of Nixon’s first term, despite massive investments in urban law enforcement, crime had not gone down and some cities had increased.  That reality coupled with Nixon’s antipathy for anti-poverty and social welfare policies led him and his advisors to arrive at dark conclusions that haunt us to this day.  The Nixon team believed that poverty and violence in America’s cities were linked, were equally intractable, and were resistant to behavioral and attitudinal interventions and investments in education, workforce development, job creation, community development, and safety net assistance.  Given that inner city dysfunction, particularly in Black communities, was systemic and incurable, the only way to address it was to criminalize its manifestations and remove persons as young as possible and for as long as possible from the community.

Nixon’s pessimism about the efficacy of social policy, his belief that there was genuine intergenerational, pathological dysfunction in Black communities, specifically, that simply could not be overcome informed the crime policies of every president that came after him and the hobby horse that President Joe Biden rode his entire career in the Senate as a member of the Judiciary Committee. 

It is this attitude toward what we once called “throwaway people” that has informed decades of federal and state laws denying and restricting felons’ rights and legal protections.  There is zero optimism that criminals can be rehabilitated because what ails them is a cultural and pathological resistance to the rule of law and the dignity of work and a lack of regard for the fate of their fellow man.  Recidivism is not a problem to overcome, but an expected outcome.  To this day, the federal government neither collects nor compiles aggregate recidivism data.  It must be cobbled together from multiple data sets which bespeaks to a profound apathy about whether we do or do not have a problem in this country with serial offenders.  We just assume we do. 

There is also distinctive tone of retribution perhaps most poignantly reflected in President Bill Clinton’s “three strikes and your out” policy which explicitly kept score without meaningfully asking why people were re-offending.  Anti-felon laws in the modern era are a material extension of retributive justice that at times seem not only unfair, but simply mean.

Anti-felon laws exist at the federal and state level and are not even remotely aligned.  For example, under federal law, a prior conviction (of any kind) cannot be used as a reason to deny employment unless one is seeking a position in the following areas:  U.S. armed forces, law enforcement, teaching, childcare, and several jobs that require a professional license.  At the state level, some states allow employers total discretion to hire or fire employees based on a criminal record,  The federal government and every state delimits professions, licenses, and certifications denied to felons. 

Across the nation through federal and state laws, the following rights, protections, benefits and opportunities are denied to felons:

  • Right to serve on juries
  • Right to own or possess a firearm
  • Right to apply for state or federal grants
  • Loss of professional licenses or certifications for life or for a designated period of time (often 10 years)
  • Ineligibility for specific professions
  • Ineligibility to live in public housing, including Section 8 housing
  • Ineligibility to receive TANF, SSI or SNAP benefits
  • Ineligibility for state or federal student loans
  • Ineligibility to vote in local, state, and federal elections

There are also two critical areas in which private individuals and companies have unchecked discretion, nationwide, in regard to felons:  renting, eviction and bank loans.

“Felony disenfranchisement” or denial of voting rights to convicted felons is the oldest of the rights denied in the list above.  Modern felony disenfranchisement laws started appearing on the books during Reconstruction in both the North and the South (primarily).  They were explicitly intended to disqualify the newly freed enslaved people and were complimented by a dramatic expansion of felony offenses that the White establishment hoped to convict Blacks of on a mass scale.

Just as anti-felony laws are a crazy quilt, so are the provisions around re-instantiation and relief.  For example, voting rights may be restored after a sentence is completed or may be permanently revoked.  In some cases only a pardon will restore specific rights.  The process of petitioning for rights restoration, regardless of the state or the right, is widely acknowledged to be ridiculously complicated and often requires hiring legal assistance which makes it costly. 

The en vogue compromise position is relief is to grant relief to felons if they have earned it through good behavior (understanding that serving one’s court-ordered sentence is not sufficient).    Clean Slate Laws, for example, automatically remove specific felonies from an individual’s publicly accessible criminal record after a period of typically 10 years without any new convictions.  An individual’s full criminal history remains available to law enforcement and justice system personnel. 

As we are a nation that struggles with the concept of rights especially in the context of them being extended to and exercised by marginalized persons, I will explore the harms of anti-felon laws through a growing body of research that examines the post-release experiences and lifetime outcomes for convicted felons.

The first problem that felons often confront is housing.  Convicted felons are prohibited from renting or living in Section 8 housing which is a U.S. Department of Housing and Urban Development program and most state and local public housing authorities have similar rules.  Furthermore, private landlords and property management companies can refuse to rent to anyone with a criminal record and prohibit them from living at their properties.  Therefore, not only is a newly released convicted felon likely to find it extremely difficult to find housing that they are both eligible for and can afford, they also may not be able to be housed by family members or friends who could be evicted for allowing a convicted felon to reside with them.  Several local and national re-entry and post-conviction advocacy organizations have adopted a “Housing First!” policy wherein the first priority of their work with released prisoners is to find stable, safe, and affordable housing.

 There is also an undiscussed tragedy created by housing discrimination—felons are not able to re-unite their families post-release exacerbating, if not driving in some communities, single parent families and children growing up without one or both parents in the home.  In calling out Black fathers for neglecting or abandoning their children (as President Obama did) it should be kept in mind that unjust legal barriers may have stood between them and their children. 

According to the federal Bureau of Justice Statistics, 113 million adults have an immediate family member who is now or was incarcerated.  To place the collateral damage of mass incarceration in perspective:  36% of adult Americans have an immediate family member who was diagnosed with cancer (National Institute of Health, 2023).  44% have an immediate family member that is incarcerated now or in the past.

The second problem felons confront is employment and income.  There are a myriad of occupations from which convicted felons are barred by state and federal laws.  In some cases the ban is for life and other cases it is for a period of typically 10 years if there are no new criminal convictions.  Beyond explicit restrictions, employment discrimination because of prior convictions, especially felony convictions, is completely legal. 

According to a 2018 study by the National Association of Professional Background Screeners, 95% of employers perform criminal background checks.  Applicants with a criminal record are 50% less likely to receive a call back for an interview according to a 2009 study published in the Annals of the American Academy of Political & Social Sciences.  The impact of these two phenomenon are evidenced in unemployment demographics and lifetime earnings.

In 2022, RAND Corporation reported that 50% of unemployed men in their 30’s had been arrested for or convicted of a crime.  Past felons also struggle to find decent paying jobs.  In a joint study, the University of Michigan and the U.S. Census Bureau determined that the average income for individuals with a felony was $7,000 less than those who did not have a felony conviction.  Felons who were incarcerated earn 52% less a year than workers with no criminal history (Brennan Center for Justice, 2020).  Over the course of a lifetime, the Brennan Center for Justice found they lose $358,000 in earnings.  Blacks and Hispanics who are incarcerated according to the Brennan Center for Justice exhibit a flat income trajectory over the course of their career signifying poverty persistence and an inability to move beyond low wage jobs or to advance themselves.

It also important to remember that felons are ineligible for any of the cash-based assistance programs (TANF, SSI or SNAP).  Therefore, they cannot get even temporary assistance as they search for employment upon release or supplement poverty wages with food assistance (SNAP).  The Brennan Center for Justice found that 45% of released inmates were without employment for the first full year after their release.  This is a desperate indication that re-entry programs are failing, not necessarily of their own accord, to re-integrate individuals into the economy.  

Housing and income issues coalesce to create a third problem disproportionately experienced by the formerly incarcerated:  homelessness. 

A 2018 survey by the federal Bureau of Justice Statistics found alarmingly high rates of homelessness for individuals who served prison terms.  The formerly incarcerated are 10 times more likely to be homeless than individuals in the general public and 3 times more likely to experience housing insecurity (being homeless or living in a rooming house, hotel or motel). 

No stable housing. Check.
Unable to reunite my family. Check.
Unemployed or grossly underemployed.  Check.
Intermittently homeless. Check.

Where do you think this person’s story goes from here?

There is some evidence that their journey increasingly does not involve going back to jail. 

Mindful that we, as a nation, are not properly capturing recidivism data, the Council on Criminal Justice in 2021 released a study of recidivism using data sources duck taped together from 2005-2012.

In 2005, 30.4% of all released inmates returned to jail within a year of release.  In 2012, that number was cut more than a half—only 19.9% individuals returned to prison. 

[Internal Footnote:  Post-release arrest rates were found to be very high by both the Council on Criminal Justice and a US Bureau of Justice Statistics study in 2021. Conviction and re-incarceration rates, however, remain low.  This begs the question—are the arrest rates evidence of heightened surveillance, aggressive arrest policies towards those with a criminal record, and/or police harassment?  All of which compound the difficulties a formerly convicted individual confronts maintaining housing, stable income and employment.]

The Council tentatively attributed this decline in prison re-entry to three factors:

  • Success of federal and state-funded re-entry programs
  • Private sector initiatives to hire felons
  • Declines in arrests for minor offenses
  • State legal reforms that prohibit reincarceration for technical violations of parole or probation

I have no doubt that all of the factors above have contributed to the decreased recidivism rate but they also don’t square with the real pain that I have otherwise documented.  The formerly incarcerated, especially those with felonies in their criminal history, are suffering and not just in the immediate aftermath of re-entry but over the course of their lifetime as proven by the Brennan Center for Justice’s work on longitudinal earnings.

The elusive phenomenon of recidivism that we so stubbornly refuse to track and measure may have unwittingly taught us something that we did not expect.  The formerly convicted are without a doubt struggling unjustly and against formidable obstacles to make a life, but they are doing it.  They are not the pathologically dysfunctional, violent animals that informed the Nixon and Reagan administrations’ social and criminal policy.  Nor are they bad seeds who cannot help but to continuously re-offend as called out by the Clinton administration.

What if we gave them a fair chance?  Not just after release, but from the start.  What if 1 in every 81 Black adults were not in prison right now (The Sentencing Project 2024)?  What if 1 in 5 Black men born after 2001 were not destined to serve time (The Sentencing Project, 2024)?  Instead of paying $42,672 to house a federal inmate annually, what if that became the median income for young Black men? 

What if the quiet, determined resilience we are observing in the decline of recidivism has been there all along and only needed nurtured? 

How very different might our cities and their families look if incarceration and felony discrimination were not ravaging and tearing them apart?