Nonviolent Drug Convictions: Stakeholders' Views on Potential Actions to Address Collateral Consequences
Published: 2017-09-07T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: In 2015, certain federal, state, and other law enforcement agencies made about 11 million arrests, according to the Department of Justice's Federal Bureau of Investigation. Individuals ultimately convicted of a crime may face federal or state collateral consequences. According to the ABA's NICCC, roughly 46,000 collateral consequences existed in federal and state laws and regulations, as of December 31, 2016. According to the ABA, collateral consequences have been a feature of the justice system since colonial times, but have become more pervasive in the past 20 years.
The Comprehensive Addiction and Recovery Act of 2016 included a provision for GAO to review collateral consequences for individuals with NVDC. This report identifies (1) collateral consequences in federal laws and regulations that can be imposed upon individuals with NVDC, (2) mechanisms that exist to relieve individuals from these collateral consequences, and (3) selected stakeholders' views on actions the federal government could consider to mitigate these collateral consequences.
GAO analyzed NICCC data as of December 31, 2016; reviewed relevant laws, regulations, and federal agency documents; and conducted interviews with ABA staff, selected federal officials, and 14 stakeholders. GAO selected stakeholders with relevant experience, among other factors. Selected stakeholders included leaders of organizations representing judges, victims of crime, and states, among others.
section_title: What GAO Found
paragraphs: Collateral consequences are the penalties and disadvantages that can be imposed upon an individual with a criminal conviction, in addition to those directly associated with a sentence (such as a fine, prison, or community service). GAO's review of the American Bar Association's (ABA) National Inventory of the Collateral Consequences of Conviction (NICCC) found that, in federal laws and regulations, there are 641 collateral consequences that can be triggered by nonviolent drug convictions (NVDC). For example, individuals with NVDC may be ineligible for certain professional licenses and federal housing assistance. The NICCC data that GAO reviewed indicate that these 641 collateral consequences can limit many aspects of an individual's life, such as employment, business licenses, education, and government benefits. In addition, GAO also found that the NICCC identified that 497 (78 percent) of the 641 collateral consequences can potentially last a lifetime.
Of the 641 federal collateral consequences for NVDC, GAO found that the NICCC identified 131 (20 percent) as having a relief mechanism in a related law or regulation that prescribed how an individual could potentially obtain relief from the consequence. For example, individuals may be relieved if they successfully complete a drug rehabilitation program or receive a pardon.
Thirteen of the 14 stakeholders GAO interviewed said the federal government should consider taking action to reduce the severity of (i.e., mitigate) federal collateral consequences for NVDC, such as conducting a comprehensive review of these collateral consequences and implementing a new relief mechanism. Additional mitigation could, according to some stakeholders, help individuals with NVDC obtain employment, housing, or education; and almost all the stakeholders said mitigation could potentially reduce the likelihood of reoffending. At the same time, federal collateral consequences can serve public safety functions and protect government interests. Some stakeholders cautioned that federal action should strike the appropriate balance between preserving collateral consequences that provide a public safety benefit, and addressing consequences that can cause unnecessary burdens and potentially increase the likelihood that individuals with NVDC reoffend.

section_title: Letter
paragraphs: In 2015, U.S. law enforcement agencies made approximately 11 million  arrests, according to the Department of Justice’s (DOJ) Federal Bureau of  Investigation. Individuals ultimately convicted of a crime generally face a  sentence, which can include fines, probation, and incarceration in jail or  prison. In addition to the sentence (i.e., the direct consequences),  individuals may also face collateral consequences. Collateral  consequences are penalties and disadvantages, other than those  associated with a sentence, which can be imposed upon an individual as  a result of a conviction. Collateral consequences can be contained in  federal and state laws and regulations. For example, based on federal  laws and regulations, individuals that receive a state or federal drug  conviction may be ineligible for certain professional licenses, federal  education loans, or federal food assistance.
According to the American Bar Association (ABA), collateral  consequences have been a familiar feature of the American justice  system since colonial times, but have become more pervasive in the past  20 years. In 2012, the ABA began compiling the first nationwide  inventory of collateral consequences, known as the National Inventory of  the Collateral Consequences of Conviction (NICCC), after receiving a  grant from DOJ’s National Institute of Justice (NIJ). As of December 31,  2016, the NICCC contained roughly 46,000 collateral consequences  established through federal and state laws and regulations. According to  the NIJ’s NICCC project description, the NICCC can be used by people  with convictions, policymakers, lawyers, judges, and others to understand  the breadth and severity of collateral consequences. Individuals can also  use the NICCC to learn if opportunities exist for them to be relieved of a  collateral consequence. Specifically, the NICCC describes whether relief  mechanisms (e.g., presidential pardon) are available for certain collateral  consequences.
The Comprehensive Addiction and Recovery Act of 2016 includes a  provision for GAO to review collateral consequences that can be imposed  on people with federal and state nonviolent drug convictions (NVDC).  Our objectives were to identify (1) collateral consequences contained in  federal laws and regulations (i.e., federal collateral consequences) that  can be imposed upon individuals with NVDC; (2) mechanisms that exist  to relieve individuals from federal collateral consequences for NVDC; and  (3) actions stakeholders identified that the federal government could  consider to mitigate federal collateral consequences for NVDC.
To address our first objective, we obtained data on federal collateral  consequences from the ABA’s NICCC, as of December 31, 2016. We  used the data from the ABA’s NICCC to determine the number of federal  collateral consequences that can be imposed on individuals with NVDC,  and to identify selected characteristics, such as duration (e.g., permanent  or specific term) of these collateral consequences. According to ABA  officials, the NICCC does not identify whether a federal collateral  consequence is triggered by NVDC; however, an estimate could be  calculated using NICCC data. According to ABA officials, the NICCC was  intended to provide a comprehensive inventory of collateral  consequences contained in all federal and state laws and regulations. For  example, if a collateral consequence was established in a federal law and  also included in a federal regulation, the NICCC would include the  occurrence in federal law and regulation as two separate collateral  consequences. In addition, in instances that federal law requires the  imposition of a collateral consequence by state law or regulation to  receive certain federal funding, the NICCC would include the federal law  and each state law or regulation as a separate collateral consequence.
To address our second objective, we reviewed relevant laws, regulations,  and federal agency directives and guidance; and interviewed ABA staff  and selected federal officials. Specifically, we interviewed officials from  four federal agencies—the DOJ, Department of Housing and Urban  Development, Department of Health and Human Services, and  Department of Labor. We selected these agencies because they  participated on the Federal Interagency Reentry Council (Reentry  Council) and reviewed at least some regulations or policies in an effort to mitigate federal collateral consequences, among other criteria. In  addition, we analyzed NICCC data on each federal collateral  consequence for NVDC to determine whether relief was available. For our  first and second objectives, we examined the NICCC data and related  controls and interviewed ABA officials, and we concluded that these data  were sufficiently reliable to describe federal collateral consequences for  NVDC and their characteristics.
To address our third objective, we interviewed selected stakeholders to  gather perspectives on mitigating federal collateral consequences for  NVDC. To identify stakeholders, we conducted a literature search for  studies and other materials related to federal collateral consequences,  identified relevant work groups and conferences, and asked potential  stakeholders to recommend other stakeholders to participate in our study.  From the list of potential stakeholders, we selected individuals with  relevant experience, among other factors. We selected 14 stakeholders  and conducted semi-structured interviews with them to learn what, if any,  actions the federal government could consider taking to mitigate federal  collateral consequences for NVDC. The information obtained from these  stakeholders cannot be generalized across all stakeholders; however,  these stakeholders provided examples of potential actions the federal  government could consider taking to mitigate collateral consequences for  NVDC. To describe the types of actions taken by states to mitigate  federal collateral consequences, we identified and reviewed two studies  that examined actions taken by states to mitigate collateral  consequences, and summarized the types of actions. See Appendix I for  further discussion of our scope and methodology and for a list of the 14  stakeholders we interviewed.
We conducted this performance audit from September 2016 to  September 2017 in accordance with generally accepted government  auditing standards. Those standards require that we plan and perform the  audit to obtain sufficient, appropriate evidence to provide a reasonable  basis for our findings and conclusions based on our audit objectives. We  believe that the evidence obtained provides a reasonable basis for our  findings and conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: Collateral Consequences
paragraphs: The definition of collateral consequences can vary. For example,  definitions may include the penalties and disadvantages contained in laws  and regulations of the federal and state governments; ordinances  established by local governments; and policies maintained by non- government organizations, such as private employers, schools, and  churches. Some researchers consider additional effects of convictions to  be collateral consequences, such as the social stigma associated with a  conviction. For the purposes of this report, we focus on collateral  consequences contained in federal laws and regulations, which we will  refer to as federal collateral consequences.
Federal collateral consequences can serve various functions, such as  enhancing public safety or protecting government interests. For example,  collateral consequences may prohibit people who committed crimes  involving a sex offense or offense involving a child victim from working in  a child care facility. Importantly, federal collateral consequences can be  triggered by federal as well as state convictions. Thus, if an individual is  convicted in state court, then the individual can be subject to federal  collateral consequences. For example, according to federal law, in  general, individuals may be denied a merchant seamen license if within  10 years before applying for the license they were convicted of violating a  dangerous drug law of the United States or of a state.
section_title: National Inventory of the Collateral Consequences of Conviction
paragraphs: The Court Security Improvement Act of 2007 required the director of NIJ  to conduct a study to determine and compile the collateral consequences  of convictions for criminal offenses in the United States, each of the 50  states, each territory of the United States, and the District of Columbia.  In 2009, NIJ awarded a grant to the ABA to catalogue and publicize this  information on a publically searchable website, which eventually became  the NICCC. According to NIJ officials, by June 2014, the ABA had  compiled collateral consequence information for the federal and state  governments and publicized the information in the NICCC. In addition,  recognizing that laws and regulations can change, the ABA developed a  schedule to continuously update the NICCC. As of December 31, 2016,  the NICCC included roughly 46,000 collateral consequences from laws  and regulations at the federal and state level, which included the 50 U.S.  states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands.  See Appendix II for information on the number of collateral consequences  in each jurisdiction.
As discussed in greater detail later in this report, the NICCC provides  certain characteristics of collateral consequences, such as the type of  triggering offense (e.g., controlled substance offenses, sex offenses, and  public corruption offenses); the duration; and the type of collateral  consequence (i.e., mandatory vs. discretionary). According to DOJ  officials, in January 2017, NIJ transferred control of the NICCC from the  ABA to the Council of State Governments.
section_title: Nonviolent Drug Convictions
paragraphs: There is no standard definition of NVDC in federal laws and regulations.  Further, according to DOJ officials, DOJ does not use a standardized  definition of the term. For the purposes of our report, we defined NVDC  as violations of laws prohibiting or regulating the possession, use,  distribution, or manufacture of illegal drugs, which do not include: offenses that have as an element the use, attempted use, or  threatened use of physical force against the person or property of  another; or any other offense that by its nature, involves a substantial risk that  physical force against the person or property of another may be used  in the course of committing the offense.
section_title: Federal Collateral Consequences for Nonviolent Drug Convictions Can Limit Many Aspects of an Individual’s Life, and a Majority Can Last a Lifetime
subsections: section_title: There Are Hundreds of Federal Collateral Consequences for Nonviolent Drug Convictions, Which Can Affect Many Aspects of an Individual’s Life
paragraphs: The NICCC identified 1,171 federal collateral consequences that existed  as of December 31, 2016. The NICCC also identified which types of  criminal offense(s) can trigger these 1,171 collateral consequences, and  based on our review of these data, 641 (55 percent) may be imposed on  individuals with NVDC. In addition, the NICCC data that we reviewed  identified that these 641 collateral consequences can limit numerous  aspects of an individual’s life. For example, as a result of NVDC,  individuals may be terminated from their current jobs, no longer qualify for  certain jobs, and lose eligibility for some professional licenses. In  addition, individuals may no longer qualify for federal housing or food  assistance, lose gun ownership rights, and no longer be eligible for  certain federal healthcare programs, among many other consequences.  The text boxes included in this section identify some of the statements   made by stakeholders during our interviews regarding federal collateral  consequences for NVDC.
Stakeholder Perspectives on Federal Collateral Consequences for Nonviolent Drug  Convictions “The breadth of federal collateral consequences for nonviolent drug convictions is so  massive and affects so many aspects of a person’s life, such as family life, immigration, jury  service, housing, employment, and voting, that they contribute to an underclass of people.”  “Many instances wherein the federal collateral consequences for nonviolent drug convictions  end up making it hard for people to live a law abiding life. For example, they may not be able  to live in public housing or may be barred from getting an occupational license or doing a  particular job. This may push them to turn back to committing crimes to make some money.”  “…some federal collateral consequences for nonviolent drug convictions are sensible and  appropriate. If we abolish  exist you could imperil public safety…”  “We can’t just say we’re going to err on the side of public safety and implement a wide range  of collateral consequences strictly across the board. The problem is that public safety is  undermined by making it impossible for individuals to move on from the criminal offense.”  “It is important not to assume that nonviolent means that there is no victim.”
The NICCC uses consequence categories to categorize the aspects of an  individual’s life that a collateral consequence can affect. Figure 1 below  shows the number of federal collateral consequences for NVDC, by  NICCC consequence category. Our review found the NICCC identified  most of the 641 federal collateral consequences for NVDC as relating to  employment. For example, the figure shows that the largest category was  Employment (341), and Business licensure and other property rights was  the second largest category (161). See Appendix III for the ABA’s  descriptions of the NICCC consequence categories.
Importantly, although there are 641 federal collateral consequences for  NVDC, a number of factors will determine which of these collateral  consequences apply to any one individual. For example, some of these  collateral consequences are triggered by felony convictions but not  misdemeanor convictions, and some are triggered by convictions for the  sale of drugs but not possession of drugs. Table 1 below includes  examples of federal collateral consequences that can be imposed on  individuals with NVDC, including the NICCC consequence category and  the specific type of NVDC that can trigger the collateral consequences.
section_title: Most Federal Collateral Consequences for Nonviolent Drug Convictions Can Last a Lifetime, and About Half are Mandatory
paragraphs: According to our review of the 641 federal collateral consequences for  NVDC that the NICCC identified, 497 (78 percent) were classified as  permanent, meaning that they could potentially last a lifetime. The NICCC  classifies the duration of collateral consequences as follows:
Permanent: Laws or regulations express that the collateral  consequence is permanent, or do not express when the collateral  consequence would expire, and thus, the collateral consequence  could last indefinitely;
Specific term: Laws or regulations express a specific time frame  when the collateral consequence could expire; and
Conditional: Laws or regulations express that the collateral  consequence could expire after a specified event “under the affected  individual’s control.” For example, a collateral consequence may  expire after an individual completes a drug rehabilitation program.
Figure 2 shows the percentage of federal collateral consequences for  NVDC, by NICCC duration category, of which 78 percent were classified  as permanent in the NICCC.
In addition, the NICCC classifies collateral consequences as discretionary  or mandatory. Discretionary means that a federal entity, such as a  federal agency or court, is authorized but not required to impose the  collateral consequence. For example, a collateral consequence would be  considered discretionary if the federal entity can decide whether imposing  the collateral consequence on an individual is necessary to protect public  safety. In contrast, mandatory means that a federal entity has no  discretion and must impose the collateral consequence. For example, a  law may require that a collateral consequence be imposed on all  individuals with drug possession convictions, and thus, the federal entity  must impose the collateral consequence on these individuals. According  to our review of the 641 collateral consequences, nearly half were  classified as mandatory in the NICCC. Figure 3 shows the percentage of  federal collateral consequences for NVDC, by consequence type.
section_title: Some Mechanisms Exist to Relieve or Mitigate Federal Collateral Consequences for Nonviolent Drug Convictions
subsections: section_title: One in Five Federal Collateral Consequences for Nonviolent Drug Convictions Have Relief Specified in Laws or Regulations
paragraphs: Of the 641 federal collateral consequences for NVDC, we found that the  NICCC identified 131 (20 percent) as having a relief mechanism, as of  December 31, 2016. Thus, the NICCC showed these collateral  consequences as having a related law or regulation that prescribed how a  person could potentially obtain relief from the collateral consequence. For  example, by law, generally individuals convicted of a state or federal drug  possession offense, while receiving federal education loans, lose  eligibility for federal education loans for a specified period of time.  However, the law also includes a relief mechanism for this collateral  consequence, stating that individuals may resume eligibility for federal  education loans if they successfully complete a drug rehabilitation  program. Examples of other types of relief mechanisms include: presidential or gubernatorial pardon; expungement or sealing of conviction; appeal or review; and  certificate of recovery.
Although we found that the NICCC identified these 131 collateral  consequences as having a mechanism to obtain relief, individuals  wanting relief may not actually be relieved of the collateral consequences  for a variety of reasons. Below are some of these reasons, based on our  review of the NICCC:  Years since Conviction: Individuals may not be able to obtain relief  until a certain amount of time has passed since their conviction. For  example, a federal collateral consequence may require that  individuals wait 10 years after their conviction to be eligible for relief.  Thus, if it has only been five years since an individual’s conviction,  then the individual would have to wait an additional five years to be  eligible for relief.
Type of Offense: Individuals may not be eligible for a relief  mechanism due to the type of drug offense for which they were  convicted. For example, a relief mechanism may be available to  individuals convicted of a drug possession offense but not a drug  trafficking offense, or may be available to individuals after their first  offense but not their second offense. Thus, in this example,  individuals with drug trafficking offenses or individuals who received  second convictions would not be eligible for relief.
Denied Request: Some requests for relief can be denied. For  example, one relief condition is that individuals request an appeal or  review. However, the appeal or review may result in an unfavorable  outcome, and thus, the collateral consequence may continue to be  imposed on individuals seeking relief.
Of the 641 federal collateral consequences for NVDC, we found that the  NICCC identified 510 (80 percent) that did not have a related law or  regulation that prescribed how a person could potentially obtain relief  from the collateral consequence, as of December 31, 2016. However,  there may be circumstances whereby a person could still obtain relief. For  example, from January 1993 through January 2017, presidents granted,  on average, 33 pardons per year. According to officials from DOJ’s  Office of the Pardon Attorney, a presidential pardon may relieve an  individual of a collateral consequence even if related federal laws or  regulations do not specifically prescribe that the consequence can be  relieved by a pardon. In addition, the officials said that federal collateral  consequences would have to be reviewed on a case-by-case basis to  determine what effect, if any, a presidential pardon may have on the  collateral consequences. Specifically, an individual would have to review  related case law and agency policies to determine the potential effect of a  pardon, according to Office of the Pardon Attorney officials.
section_title: Federal Interagency Reentry Council Agencies Have Issued Guidance or Directives Intended to Mitigate Federal Collateral Consequences
paragraphs: In January 2011, the U.S. Attorney General convened the Reentry  Council, a group of about 20 federal entities whose mission is to make  communities safer, assist those who return from prison and jail in  becoming productive citizens, and save taxpayer dollars by lowering the  direct and collateral costs of incarceration. According to a 2016 Reentry  Council report, some Reentry Council agencies have issued guidance or  directives on federal collateral consequences. A primary focus of the  Reentry Council is to reduce “the policy barriers to successful reentry, so  that motivated individuals—who have served their time and paid their  dues—are able to compete for jobs, attain stable housing, support their  children and their families, and contribute to their communities.” In 2012,  the Attorney General requested that federal agencies participating in the  Reentry Council review their regulations and consider eliminating those  collateral consequences that lessen the likelihood of successful reentry  without improving public safety. In addition, the Attorney General  requested that these agencies determine whether unnecessary collateral  consequences exist that could be amended without new legislation. The  review requested by the Attorney General did not target federal collateral  consequences triggered by specific types of convictions, such as NVDC.
According to Reentry Council leadership, a takeaway from the review was  that many federal collateral consequences are written into law, and thus,  Reentry Council agencies were limited in their ability to modify the related  regulations. Another takeaway was that some federal collateral  consequences included in the review are appropriately tailored and  should not be changed. Further, according to the 2016 Reentry Council  report, some Reentry Council agencies issued guidance or directives  intended to mitigate federal collateral consequences. The following are  examples of actions taken by Reentry Council agencies, according to the  2016 Reentry Council report:
The Office of Personnel Management issued a proposed rule  (sometimes referred to as the ban the box rule) regarding the federal  government’s hiring practices. Specifically, for certain jobs, federal  agencies must withhold questions about an applicant’s criminal  background until the agency has made a conditional offer of  employment. In December 2016, subsequent to the release of the  2016 Reentry Council report, the Office of Personnel Management  finalized the rule.
Reentry Council agencies developed Reentry Myth Busters, which are  fact sheets that seek to clarify certain federal collateral consequences,  such as those related to housing, employment, and parental rights.  For example, according to a Reentry Myth Buster, a common myth is  that veterans with a criminal record or a history of incarceration are  not eligible for health care from the Department of Veterans Affairs.  The Reentry Myth Buster clarifies that “an eligible Veteran, who is not  currently incarcerated, can use  care  regardless of any criminal history, including incarceration.”
The Department of Housing and Urban Development issued guidance  to housing providers intended to clarify when the use of criminal  history records may constitute discrimination, and thus, violate the  Fair Housing Act.
In 2013, the Attorney General issued a memorandum to DOJ  components and U.S. Attorneys directing them to take collateral  consequences into consideration when proposing new or revising  existing regulations or policy guidance.
section_title: Selected Stakeholders Highlighted Actions the Federal Government Could Consider to Potentially Mitigate Federal Collateral Consequences for Nonviolent Drug Convictions
subsections: section_title: Stakeholders Underscored the Importance of Federal Action to Mitigate Federal Collateral Consequences for Nonviolent Drug Convictions
paragraphs: Most of the stakeholders that we interviewed said it was important for the  federal government to take action to mitigate federal collateral  consequences for NVDC. Specifically, 11 of the 14 stakeholders we  interviewed said that it was either “very important” or “moderately  important” for the federal government to take action to mitigate federal  collateral consequences for NVDC. In addition, 1 of the 2 stakeholders  who responded “somewhat important” said that it is only somewhat  important to reduce the severity specifically for individuals with NVDC,  whereas it would be very important to reduce the severity for individuals  with all types of convictions. Only 1 stakeholder we interviewed said that  federal action was “not important” and, moreover, that these collateral  consequences are, at times, inadequate. Figure 4 below shows the  stakeholder responses to our question on the degree of importance, if  any, of federal action to mitigate federal collateral consequences for  NVDC.
Thirteen stakeholders highlighted benefits of mitigating federal collateral  consequences for NVDC. Benefits identified by stakeholders included  greater workforce participation (7 stakeholders), more individuals with  housing (7 stakeholders), and the removal of barriers to education (4  stakeholders). For example, 1 stakeholder highlighted that individuals  may lose their driver’s license as a result of a drug conviction, which can  create a barrier to attending school and work. The stakeholder further  highlighted that if mitigation removes this barrier, then a person is more  likely to obtain a job and attend school. In addition, 8 stakeholders said  that mitigating federal collateral consequences can have a positive effect  on families, including children, of individuals with NVDC. For example, 1  stakeholder highlighted that mitigation may allow individuals to maintain  their jobs, and thus support themselves and their families, and contribute  as taxpayers. One stakeholder said that mitigation was not important and  did not offer any potential benefit of mitigation.
Thirteen stakeholders said that mitigating federal collateral consequences  could potentially reduce the likelihood that individuals with NVDC  reoffend. For example, 1 stakeholder said that federal collateral  consequences for NVDC create barriers for individuals that are willing  and able to reform and could potentially lead these individuals back into  criminal activity. Another stakeholder said “we can’t just say we’re going  to err on the side of public safety and implement a wide range of collateral  consequences strictly across the board. The problem is that public safety  is undermined by making it impossible for individuals to move on from the  criminal offense.” In addition, 11 stakeholders said that mitigation could  potentially increase the likelihood that individuals with NVDC successfully  reenter the community after jail or prison. For example, 1 stakeholder said  “minimizing collateral consequences for someone who has paid their debt  to society for committing a particular crime only brings good benefits   employment and education, and all of this is for the benefit of  public safety by rebuilding families, communities, and the tax base.”
Stakeholders also identified risks of taking federal action to mitigate  federal collateral consequences for NVDC. Specifically, 13 stakeholders  we spoke to highlighted at least 1 risk. Nine stakeholders said that  mitigating collateral consequences could create conditions for individuals  to commit crimes that they otherwise might not have had the opportunity  to commit. For example, 1 stakeholder said that mitigation may allow  individuals to get a job (e.g., air traffic controller, or operator of heavy  machinery) they otherwise could not have obtained, and that if the  individuals are under the influence of drugs, then their actions may injure  or kill other people. However, some of the 9 stakeholders said this risk  could be mitigated. For example, 1 stakeholder said the federal  government could provide discretion to officials responsible for  determining whether to impose a collateral consequence, allowing these  decision makers an opportunity to determine whether the individual poses  a threat to public safety. One stakeholder said that the amount of time  that has passed without a re-offense is a potential consideration when  determining whether to relieve an individual of a collateral consequence.
Nevertheless, 3 stakeholders were concerned that there is a risk that  mitigation will remove federal collateral consequences that serve an  important function for the federal government. For example, 1 stakeholder  said that “…some federal collateral consequences for NVDC are sensible  and appropriate. If we abolish  exist you could imperil public  safety…” One stakeholder noted that this risk could be mitigated by  reviewing federal collateral consequences—for example, understanding  whether they serve a valuable purpose. In addition, 1 stakeholder  highlighted that determining whether an individual committed a violent or  non-violent crime is difficult—for example, not everyone has the same  definition of NVDC—and therefore, the federal government may  inadvertently mitigate collateral consequences for an individual that  committed a violent crime. According to the stakeholder, allowing violent  behavior to continue means that the harm to victims could continue.
section_title: Stakeholders Highlighted a Need for a Review of all Federal Collateral Consequences for Nonviolent Drug Convictions and an Additional Relief Mechanism
paragraphs: Stakeholders recommended a range of actions the federal government  could consider taking to help mitigate federal collateral consequences for  NVDC. Specifically, 13 of the 14 stakeholders we interviewed  recommended at least 1 action. Some stakeholders cautioned that federal  action should strike the appropriate balance between preserving collateral  consequences that provide a public safety benefit, and addressing  consequences that can cause unnecessary burdens and potentially  increase the likelihood that individuals with NVDC reoffend. Each of the  following actions was recommended by several stakeholders, as we note  below:  Comprehensive Review: Eight stakeholders recommended that the  federal government conduct a review of federal collateral  consequences for NVDC to identify opportunities for mitigation.  Stakeholders offered some potential goals of the review, including the  following:
Reduce the types of offenses that can trigger a collateral  consequence. For example, 1 stakeholder said that some  collateral consequences are imposed after an individual violates  any type of controlled substance offense. However, it may be  appropriate to limit the collateral consequence to a smaller group  of controlled substance offenses.
Change the nature of a collateral consequence from mandatory to  discretionary. For example, 1 stakeholder said that giving decision  makers more discretion will allow them to impose collateral  consequences when beneficial instead of across-the-board for  everyone with a particular conviction.
Change the duration of a collateral consequence from permanent  to time limited. For example, 1 stakeholder said it is important to  impose a collateral consequence when an individual poses a risk,  but it is hard to justify imposing a collateral consequence after an  individual has had a long period of stability.
Eliminate certain collateral consequences. For example, 1  stakeholder recommended that a review examine each  consequence to determine whether it continues to be essential to  government policy and primarily focuses on public safety, and if  not, to eliminate the collateral consequence.
Stakeholders identified benefits of a comprehensive review, such as:
A review can result in the elimination of collateral consequences  that do not provide a public safety-related benefit.
A review can lead to a reduction in the number of affected  individuals, and a decrease to the length of time that the collateral  consequences can be imposed on individuals, if such actions are  determined beneficial.
Stakeholders also identified risks and disadvantages of a  comprehensive review, such as:
A review would require considerable time to conduct.
A review could result in the removal or modification of a collateral  consequence that could create conditions for a person to  potentially commit crimes that they otherwise might not have had  the opportunity to commit.
Broad Relief Mechanism: Seven stakeholders recommended a new  federal relief mechanism that allows individuals to petition federal  entities or officials to obtain relief from federal collateral  consequences for NVDC that have been imposed on them. Some  stakeholders highlighted that, currently, an individual can petition a  federal entity or official for relief from some federal collateral  consequences for NVDC; however, they recommended that this relief  mechanism be available for all federal collateral consequences for  NVDC. In addition, some stakeholders said that models for this type of  mechanism can be found in the Model Penal Code by the American  Law Institute and the Uniform Collateral Consequences of Conviction  Act by the Uniform Law Commission, and that some states have  implemented such a mechanism.
Stakeholders identified benefits of a broad relief mechanism, such as:
Expands opportunities for relief for people with state and federal  convictions, if deemed beneficial by the reviewing federal entity or  official.
Gives people with a conviction hope that they can overcome  problems associated with a collateral consequence. For example,  they can be relieved of a collateral consequence that serves as a  barrier to obtaining employment or education.
Judge or agency official can review the facts and circumstances of  the petitioner to determine whether there is a need for relief and  whether relief would create a risk to public safety.
Can potentially promote reentry, reintegration, and law abiding  behavior.
Stakeholders also identified risks and disadvantages of a broad relief  mechanism, such as:
A person may be relieved of a collateral consequence and  potentially commit crimes that they otherwise might not have had  the opportunity to commit.
The mechanism would allow federal officials to use discretion,  which is less efficient than automatically imposing a collateral  consequence.
Individuals may not have resources to obtain legal assistance  when petitioning a federal entity or official.
Avoidance Mechanism: Six stakeholders recommended a new  mechanism that allows individuals to petition a federal court before or  during sentencing to avoid a federal collateral consequence for  NVDC. Some stakeholders said that models for this type of  mechanism can be found in the Model Penal Code and the Uniform  Collateral Consequences of Conviction Act.
Stakeholders identified benefits of an avoidance mechanism, such as:
Expands opportunities for people to avoid collateral  consequences, if deemed beneficial by a federal court.
Judges or prosecutors can review the facts and circumstances of  the petitioner to determine whether there is a need to approve the  petitioner’s request and whether granting approval would create a  risk to public safety.
Can potentially promote reentry, reintegration, and law abiding  behavior.
Stakeholders also identified risks and disadvantages of an avoidance  mechanism, such as:
A person may avoid a collateral consequence and potentially  commit crimes that they otherwise might not have had the  opportunity to commit.
The mechanism would allow federal officials to use discretion,  which is less efficient than automatically imposing a collateral  consequence.
Eliminate certain federal collateral consequences for NVDC:  Three stakeholders recommended that the federal government  eliminate the requirements that states deny the Supplemental  Nutrition Assistance Program and the Temporary Assistance for  Needy Families for individuals with certain drug convictions. All 3  stakeholders acknowledged that states can currently opt out of these  requirements; however, they recommended that the federal  government eliminate the requirements altogether.
Stakeholders identified benefits of eliminating these federal collateral  consequences for NVDC, including those listed below. Stakeholders  did not mention any risks or disadvantages of this action.
Expand the number of people eligible for the Supplemental  Nutrition Assistance Program and the Temporary Assistance for  Needy Families program.
Family members, including children, of individuals with a NVDC  could potentially benefit from expanded program participation.
As discussed earlier, 13 stakeholders recommended at least 1 action to  mitigate federal collateral consequences for NVDC. During our interviews,  we asked these 13 stakeholders whether their recommended action(s)  could also be applied to convictions other than NVDC (e.g., convictions  related to theft). Eleven of the 13 stakeholders said yes, their  recommended actions could be applied to other types of convictions. For  example, 1 stakeholder said that actions to expand relief and to evaluate  whether collateral consequences should be mandatory or discretionary  could be applied to all convictions. In addition, 1 stakeholder said that, “if  we solve the problem of collateral consequences  for people with  nonviolent drug convictions, we would have left a much larger problem  untouched.”
section_title: Stakeholders Offered Perspectives on Mitigating Federal Collateral Consequences for Individuals that Participate in a Drug Rehabilitation Program
paragraphs: Stakeholders also recommended actions for individuals with NVDC who  participate in a drug rehabilitation program. Specifically, 11 of the 14  stakeholders said that they did not recommend any actions beyond what  they recommended for all individuals with NVDC. Two stakeholders  offered specific actions the federal government could take. For example,  1 stakeholder recommended that the federal government review federal  collateral consequences for NVDC to identify opportunities to mitigate  employment-related consequences for individuals that participate in a  drug rehabilitation program. One stakeholder did not believe that  mitigation was necessary, and did not offer any recommended actions.
In addition, 4 stakeholders highlighted that completion of, or participation  in, a drug rehabilitation program could be considered by federal officials  or agencies when determining whether to grant relief from federal  collateral consequences for NVDC. For example, 1 stakeholder said that  participating in a drug rehabilitation program could be the “price of  admission” for relief. However, some stakeholders highlighted risks of  requiring the completion of a drug rehabilitation program. One  stakeholder said that not all people with NVDC have access to a drug  rehabilitation program. Another stakeholder said that this requirement  should not be imposed for housing-related collateral consequences, as a  lack of housing could make it less likely that an individual stop using  drugs.
section_title: States Have Taken a Range of Actions to Mitigate Collateral Consequences
paragraphs: We identified two studies that described actions states took to mitigate  collateral consequences from 2009 through 2016. Specifically, these  two studies examined legislative or policy changes in all 50 states to  mitigate collateral consequences, and found that most states took at least  one action. The two studies did not target collateral consequences  triggered by specific types of convictions, such as NVDC. According to  the studies, the mitigation actions taken by states generally fell into the  following categories. For each category below, an example of an action is  provided:
Created or expanded expungement or sealing opportunities—some  states granted more individuals the opportunity to expunge or seal  their criminal records.
Issued, or expanded effects of, certificates of recovery—some states  started to issue certificates of recovery that, according to one study  we reviewed, can assist third parties (e.g., prospective employers) in  making more informed decisions about applicants with a conviction.
Expanded opportunities for offense downgrades—some states  expanded opportunities for individuals with a felony conviction to  downgrade the conviction to a misdemeanor after meeting certain  requirements, such as the successful completion of probation.
Expanded opportunities for people to avoid collateral consequences— some states expanded opportunities for individuals to participate in  deferred adjudication.
Addressed employment-related collateral consequences—some  states enacted laws or policies that may prohibit employers from  asking about criminal histories during the early stages of the hiring  process. These are sometimes referred to as ban the box laws and  policies.
Improved access to collateral consequence information—some states  took steps to provide convicted individuals with information on  collateral consequences that could potentially be imposed on them or  potential ways to obtain relief.
Mitigated certain state collateral consequences—some states  mitigated collateral consequences, such as those related to housing,  education, public assistance, and driving privileges.
Expanded effects of pardons—some states expanded the number of  collateral consequences that can be relieved by a gubernatorial  pardon.
section_title: Agency Comments and Third-Party Views
paragraphs: We provided a draft of this report to the DOJ, Department of Housing and  Urban Development, Department of Health and Human Services,  Department of Labor, and ABA, for their review and comment. In emails,  officials from the DOJ, Department of Housing and Urban Development,  Department of Health and Human Services, and Department of Labor,  stated that these agencies did not have any comments on our draft  report. The ABA provided technical comments, which we incorporated as  appropriate.
We are sending copies of this report to the appropriate congressional  committees, the Attorney General, the Secretary of the Department of  Housing and Urban Development, the Secretary of Labor, and the  Secretary of the Department of Health and Human Services. In addition,  the report is available at no charge on the GAO website at  http://www.gao.gov.
If you or your staff have any questions about this report, please contact  me at (202) 512-8777 or maurerd@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions to this  report are listed in Appendix IV.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: This report addresses the following objectives: (1) What federal collateral  consequences can be imposed upon individuals with nonviolent drug  convictions (NVDC), (2) What mechanisms exist to relieve individuals  from federal collateral consequences for nonviolent drug convictions, and  (3) According to selected stakeholders, what actions, if any, could the  federal government consider to mitigate federal collateral consequences  for nonviolent drug convictions.
To address our first objective, we obtained data on state and federal  collateral consequences from the American Bar Association’s (ABA)  National Inventory of the Collateral Consequences of Conviction  (NICCC). The data included variables, such as a description of the  collateral consequence and the duration (e.g., permanent or specific  term). We obtained the data from the NICCC as of December 31, 2016;  however, according to ABA officials, the data may not have been current  as of that date. According to ABA officials, collateral consequences in the  NICCC were not updated on a real-time basis for changes in jurisdictions’  laws and regulations. Collateral consequences for each jurisdiction were  updated periodically based on a schedule developed by NICCC project  management, and based on the schedule, some changes to laws or  regulations may have taken a year or longer to be reflected in the NICCC.  Therefore, even though the NICCC data were obtained as of December  31, 2016, the data may include some laws and regulations that were  removed or modified by a jurisdiction on or before December 31, 2016. In  addition, the NICCC data may not include some laws or regulations that  were added on or before December 31, 2016.
According to the ABA, the NICCC was developed using the definition of  collateral consequences in the Court Security Improvement Act of 2007.  According to the act: “The term ‘collateral consequence’ means a  collateral sanction or a disqualification….The term ‘collateral sanction’  means a penalty, disability, or disadvantage, however denominated, that  is imposed by law as a result of an individual’s conviction for a felony,  misdemeanor, or other offense, but not as part of the judgment of the  court; and does not include a term of imprisonment, probation, parole,  supervised release, fine, assessment, forfeiture, restitution, or the costs of  prosecution….The term ‘disqualification’ means a penalty, disability, or  disadvantage, however denominated, that an administrative agency,  official, or a court in a civil proceeding is authorized, but not required, to  impose on an individual convicted of a felony, misdemeanor, or other  offense on grounds relating to the conviction.” Although some differences  exist between the definition of collateral consequences in the  Comprehensive Addiction and Recovery Act of 2016 and the definition  used by the NICCC, we determined that the definition used by the ABA’s  NICCC was appropriate for the purposes of describing federal collateral  consequences for NVDC and their characteristics.
According to ABA officials, the NICCC was designed to provide a  comprehensive inventory of collateral consequences contained in federal  and state laws or regulations. For example, if a collateral consequence  was established in a federal law and also included in a federal regulation,  the NICCC would count this occurrence as two separate collateral  consequences. In addition, in instances that federal law requires the  imposition of a collateral consequence by state law or regulation to  receive certain federal funding, the NICCC would include the federal law  and each state law or regulation as a separate collateral consequence.
To determine the number of federal collateral consequences that can be  imposed on individuals with NVDC, we analyzed NICCC data. According  to ABA officials, the NICCC does not identify whether a federal collateral  consequence is triggered by NVDC; however, an estimate could be  calculated using the NICCC’s 16 triggering offense categories, among  other available data. Specifically, we determined that federal collateral  consequences included in the following triggering offense categories may  be imposed for NVDC: (1) Any offense, (2) Any felony, (3) Any  misdemeanor, and (4) Controlled substances. For example, if a federal  collateral consequence was included in the Any offense category, then it  could be triggered by any offense, including nonviolent drug offenses.  Similarly, if a federal collateral consequence was included in the Any  felony category, then it could be triggered by a felony nonviolent drug  offense. According to ABA officials, the following 11 triggering offense  categories generally do not contain drug offenses: Crime of moral  turpitude; Crimes involving fraud, dishonesty, misrepresentation or  money-laundering; Crimes of violence, including “person offenses”;  Weapons offenses; Sex offenses; Public corruption offenses; Election- related offenses; Recreational license offenses; Motor vehicle offenses;  Child Support offenses; and Other. As such, we excluded these 11  categories from our analysis. In addition, N/A, the final triggering offense  category, includes general background checks that are not triggered by a  specific offense or a type of offense, and may be conducted whether an  applicant or employee does or does not have a conviction. In addition, the  N/A category includes laws and regulations that provide relief from  collateral consequences. As such, we excluded the N/A triggering offense  category from our analysis.
Based on our analysis, we found that the Controlled substances triggering  offense category included some collateral consequences that did not  relate to drugs. As such, we reviewed each collateral consequence in the  Controlled substances category that included specific words, such as  alcohol and tobacco. If a federal collateral consequence only related to  alcohol or tobacco, we excluded it from our population of federal collateral  consequences for NVDC. Once we identified the population of federal  collateral consequences for NVDC, we analyzed the data by selected  characteristics, such as consequence type (i.e., mandatory, or  discretionary) and duration (i.e., permanent, specific term, or conditional).
Of the roughly 46,000 federal and state collateral consequences identified  in the NICCC, our review found that some of the consequences (less than  one percent of the total number of collateral consequences) had duplicate  legal citations and collateral consequence titles. We did not further  examine these collateral consequences. In addition, we did not remove  these potential duplicates from the data presented in Appendix II, as there  are reasons why these collateral consequences may be unique and not  duplicative. However, we examined the potentially duplicative federal  collateral consequences that could be triggered by NVDC, and  determined that two were duplicates. We removed these two collateral  consequences from our count of federal collateral consequences for  NVDC. We assessed the reliability of the NICCC data by obtaining  information from ABA officials responsible for managing the database on  how the data are collected and used, and what internal controls the data  are subject to. We examined the data and related controls and  interviewed ABA officials, and we concluded that these data were  sufficiently reliable for the purposes of describing federal collateral  consequences for NVDC and their characteristics.
To address our second objective, we analyzed NICCC data; reviewed  relevant laws, regulations, and federal agency directives and guidance;  and interviewed selected federal officials and ABA staff. To determine the  number of federal collateral consequences for NVDC that had a related  law or regulation that prescribed how a person could potentially obtain  relief from the collateral consequence, we analyzed NICCC data as of  December 31, 2016. Specifically, we analyzed each federal collateral  consequence for NVDC to determine whether the NICCC identified it as  having relief available. Our analysis was limited to the NICCC’s Relief  variable, which only includes relief mechanisms in laws and regulations  related to a specific collateral consequence. Therefore, our review did not  include federal relief mechanisms that may be available in laws or  regulations that were not specific to a federal collateral consequence for  NVDC, and mechanisms in sources other than laws or regulations, such  as federal agency policies. To identify examples of relief mechanisms, we  analyzed the NICCC description of the relief and the related laws and  regulations. As discussed above, we determined that the NICCC data  were sufficiently reliable for the purposes of describing federal collateral  consequences for NVDC and their characteristics.
To identify actions the Federal Interagency Reentry Council (Reentry  Council) and its participating federal agencies took to mitigate federal  collateral consequences, we analyzed Reentry Council reports and  interviewed Reentry Council leadership. In addition, we selected four  federal agencies—the Department of Justice, Department of Housing and  Urban Development, Department of Health and Human Services, and  Department of Labor. We selected these agencies because they  participated on the Reentry Council, and reviewed at least some  regulations or policies in an effort to mitigate federal collateral  consequences. We also asked Reentry Council leadership for  recommended agencies to include in our selections. Further, we sought  to select a group of agencies that oversee policy areas that often affect  individuals with NVDC, including employment and government assistance  (e.g., housing and education assistance). For selected agencies, we  reviewed relevant agency directives and guidance and interviewed  agency officials to better understand their actions to mitigate federal  collateral consequences. The information obtained from selected federal  agencies cannot be generalized across all federal agencies; however, the  information provided examples of recent actions the federal government  took to mitigate federal collateral consequences.
To address our third objective, we interviewed selected stakeholders to  gather perspectives on mitigating federal collateral consequences for  NVDC. We asked these stakeholders to provide their opinions and  perspectives, and not those of the organization to which they were  affiliated. To identify potential stakeholders, we conducted a literature  search for studies, government reports, conference papers, and other  materials, that related to federal collateral consequences. To identify  existing literature, we conducted searches of various databases, such as  ProQuest and Scopus. We performed these searches to identify potential  stakeholders that authored relevant literature, presented at conferences,  or held leadership positions in a workgroup from January 2006 to January  2017. In addition, we asked potential stakeholders to recommend other  stakeholders to participate in our study (i.e., snowball sampling). From  our list of potential stakeholders we selected 14 stakeholders, aiming to  select stakeholders with a range of perspectives and experiences  regarding federal collateral consequences. Table 2 below includes the list  of stakeholders we selected for interviews.
Next, we conducted semi-structured interviews with the 14 selected  stakeholders and asked questions regarding federal collateral  consequences for NVDC—for example, we asked what, if any, actions  the federal government should take to mitigate these collateral  consequences. In addition, we asked about potential benefits and risks of  taking actions to mitigate these collateral consequences. The information  obtained from stakeholders cannot be generalized across all  stakeholders; however, these stakeholders provided insights into potential  actions the federal government could consider taking to mitigate federal  collateral consequences for NVDC.
To identify types of actions that have been taken by states that could  inform the types of actions the federal government could consider to  mitigate federal collateral consequences for NVDC, we identified two  studies that examined actions taken by states to mitigate collateral  consequences, and summarized the types of actions. Specifically, we  identified and reviewed two studies that examined legislative or policy  changes in all 50 states to mitigate collateral consequences. The studies  did not focus on collateral consequences triggered by a specific type of  conviction, such as NVDC. One study examined actions taken during the  years 2009 through 2014, and the other study examined the years 2013  through 2016.
We conducted this performance audit from September 2016 to  September 2017 in accordance with generally accepted government  auditing standards. Those standards require that we plan and perform the  audit to obtain sufficient, appropriate evidence to provide a reasonable  basis for our findings and conclusions based on our audit objectives. We  believe that the evidence obtained provides a reasonable basis for our  findings and conclusions based on our audit objectives.
section_title: Appendix II: Number of Collateral Consequences by Jurisdiction, as Included in the National Inventory of the Collateral Consequences of Conviction
section_title: Appendix III: Descriptions of Consequence Categories in the National Inventory of the Collateral Consequences of Conviction
paragraphs: Appendix III: Descriptions of Consequence  Categories in the National Inventory of the  Collateral Consequences of Conviction Description  This category includes public employment, appointive office (not elective office), military  service, volunteering, publicly regulated private employment, employment by licensed  business entities, and employment as a manager or officer of a business. Volunteering  and eligibility for appointive office are also included in the Political and civic participation  category.
This category includes liquor licenses; livestock, agriculture, and wildlife licenses; lottery  and gambling licenses; licenses to operate care-giving or educational facilities; and,  licenses to engage in specific industries. It also includes consequences affecting  property rights, such as fines and administrative forfeitures, and corporate ownership  interests.
This category includes commercial drivers’ licenses, pilots’ and mariners’ licenses,  commercial hunting and fishing licenses, and most professional licensure requirements.  Endorsements to operate school buses, multiple-person vehicles, and any other  commercial vehicles on an ordinary driver’s license are also included in this category.
This category includes Medicaid and Medicare program participation and general  government contracting.
This category includes benefits in the form of welfare, health (e.g., Medicaid and  Medicare), retirement, workers compensation, veterans, employee benefits, etc. It also  includes immigration and travel restrictions.
This category includes business loans and educational financial aid.
This category includes two primary types of mandatory disclosure requirements:  Registration and mandatory supervision requirements usually applicable to sex  offenders, and public notification requirements that involve disclosing criminal history  information to the general public or to particular third parties, including victims and  employers and schools. It also includes restrictions on residency in licensed community  care facilities.
This category includes voting rights, eligibility for jury service, public office (both elective  and appointive office, but not public employment generally), and volunteer activities.
This category includes guardianships, executorships, and trusteeships; eligibility to  inherit from crime victims; and limitations in subsequent civil proceedings (e.g., collateral  estoppels and res judicata). Jury service is coded in the Political and civic participation  category only.
This includes occupancy in any form of housing, vouchers, housing subsidies, and  subsidized housing, which are also included in the Government benefits category.  Restrictions on residency in licensed facilities are coded in this category, and the  Registration, notification, and residency restrictions category.
This category includes educational program eligibility and financial aid, which are also  included in the Government benefits category.
Description  This category includes parental rights (e.g., custody or visitation), foster care, adoption,  and name changes.
This category includes all non-commercial hunting and fishing licenses, firearms  licenses, and recreational motor vehicle licenses.
This category includes all classes of drivers’ licenses not issued for commercial  purposes. Recreational vehicle licenses and commercial drivers’ licenses are not coded  in this category.
section_title: Appendix IV: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Brett Fallavollita (Assistant  Director) and Jeffrey Fiore (Analyst in Charge) managed the work. Also,  Enyinnaya David Aja, Kathryn Bassion, Willie Commons III, Dominick  Dale, Leia Dickerson, Elizabeth Dretsch, Lorraine Ettaro, Eric Hauswirth,  Jeffrey Daniel Paulk, Janay Sam, and Nina Thomas-Diggs, made  significant contributions to this report.