CrimProf Blog

Editor: Stephen E. Henderson
University of Oklahoma

 
 

Thursday, August 25, 2022

Silva on Housing Policy and Criminal Justice Reform

Lahny Silva (Indiana University - Robert H. McKinney School of Law) has posted The Trap Chronicles, Vol. 1: How US Housing Policy Impairs Criminal Justice Reform (Maryland Law Review, Vol. 80, No. 565, 2021) on SSRN. Here is the abstract:
 
Close to fifty years after President Richard Nixon’s 1971 declaration of a War on Drugs, America is attempting to remedy the aftermath. Today, the War is generally considered a failure. Despite all the arrests and prosecutions, the War has been unsuccessful in accomplishing its two touted objectives: eliminating drug trafficking and eliminating drug addiction in the United States. America paid dearly; it was extremely expensive, disproportionately impacted communities of color, and took hundreds of thousands of prisoners. This final cost was highlighted when the “the land of the free” earned the number one spot for having the highest incarceration rate in the world.

Recognizing the substantial costs associated with wartime criminal laws and sentencing practices, a criminal justice reform is currently sweeping through legislatures across the country.
In the spirit of fair sentencing and second chances, legislatures are commissioning studies of sentencing regimes and modifying criminal penalties with retroactive application. The return of judicial discretion with the United Supreme Court’s decision in United States v. Booker now allows punishments that deviate from otherwise strict determinate criminal sentences. And clemency is making a comeback, with both Presidents Obama and Trump utilizing the executive power to commute overly punitive terms of imprisonment. Over 100 days into his administration, President Biden has not yet made his views clear on clemency. Ex-offender reentry as a substantive and procedural legal issue is now considered a legitimate legislative concern, with Congress putting federal dollars behind evidence-based programs proven to reduce recidivism. States are following suit. Although this is a positive step in undoing decades of ineffective policy, other areas of law impacted by the Drug War must also be reviewed and modified if the damage caused is to be truly rectified.

Wartime legislation contributed to the proliferation of not only criminal statutes and sanctions, but also numerous civil penalties associated with drug-related suspicion and/or conviction. Drug war policies bled over into civil and administrative areas of law, manifesting in rules that work as a form of further government control—wreaking havoc on poor, mostly minority communities that already absorbed the bulk of the War’s attacks on the criminal front. Commonly referred to as the “collateral consequences of conviction” in the academic literature, these civil statutes and administrative regulations are pervasive and pernicious, hindering the transition from prison to society. Collateral consequences affect almost every part of one’s life: areas that are essential to productive citizenship and socio-economic stability. As the War seems to be winding down on the criminal front, other rules continue to endure and serve as the predicate for intensive regulation and exclusion in civil and administrative matters such as voting, employment, and housing.

This Article contributes to the existing scholarship on the War on Drugs, collateral consequences, and offender reentry by reviewing federal criminal and housing laws in the aftermath of redemptive rhetoric that has been employed to pronounce a retreat from the War. It applies drug war criticisms to federal housing policy and argues that the ideological shift away from “tough on crime” to “second chances” in the criminal context must be extended to national housing policy. I argue that wartime costs associated with criminal law are mimicked in the federal housing policy context, a battleground during the War on Drugs. More specifically, I argue that with wartime policy deeply penetrating the national housing agenda, the drug laws continue to serve as a justification to inflict socio-economic violence on targeted groups. This violence takes the form of intensive regulation in federal housing programs and operates as an additional layer of criminalization and social control on an already powerless group.

In neglecting to review wartime policies beyond the criminal law, this Article contends that policymakers are creating an ideological schism that has manifested in an inconsistent legislative agenda. There are thus two systems: one where prisoners of the War are to be viewed as redeemed and worthy of a second chance, and the other where prisoners of the War continue to be demonized and excluded from mainstream society. In the criminal context, the government is pivoting from taking people out of their communities and incarcerating them to now releasing the legislative pressure valves to open the prison gates and release prisoners of the War. The question is: Where will they all live? Housing is identified as the primary barrier for those reintegrating. During this reform movement, legislators are overlooking collateral consequences affecting housing prospects for criminal justice-involved individuals, especially drug offenders, thus continuing the War on the civil front. This Article reasons that the next natural step in the retreat from the War’s policies is to review and modify Drug War legislation that transcends criminal law. This is a necessity if the proclaimed political promise of a second chance is to be truly fulfilled. If it is not, then the redemptive rhetoric is nothing but a trap—a political ploy used to pander to public opinion on the criminal justice front, while laying cover to the grave legislative mistakes made in the shadows on the civil front during the War.

https://lawprofessors.typepad.com/crimprof_blog/2022/08/silva-on-housing-policy-and-criminal-justice-reform.html

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