Book Excerpt: Their Former Offense Keeps Blocking Them from Moving Ahead

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This is an excerpt from the new book “Trapped in a Vice: The Consequences of Confinement for Young People.”

When she was 17 years old, Shayla was arrested for selling drugs in front of public housing projects in her neighborhood. After she was arrested, she received a notice banning her from trespassing on the grounds of those projects, where her mother and girlfriend lived. Although she lived nearby in a private apartment with her grandmother, Shayla couldn’t even walk through the grounds of the buildings to get to the nearby subway stop.

New York City’s public housing projects receive federal subsidies. As such, they are subject to a set of federal rules enacted just three years before Shayla was born, in 1988. Emerging at the height of the war on drugs, these rules were gradually expanded over the course of the 1990s until eventually President Bill Clinton gave them a name when he signed the strongest version of the law into action: the “One Strike” policy.

Individuals who engaged in criminal activity on public housing grounds, or public housing tenants who engaged in criminal activity, would be banned or evicted from public housing, no questions asked. Even someone believed to be using drugs or alcohol or who had a history of drug or alcohol abuse could be barred from applying for public housing.

Shayla was banned from the projects even though she had received the equivalent of a second chance — youthful offender treatment, an opportunity given to young people in New York up to age 19 that allows one misdemeanor and one felony to be removed from their record. It recognizes that young people are less culpable for their crimes than adults. But in the minds of the New York City Housing Authority policymakers, Shayla was allowed no such chance.

Alexandra Cox

In theory, youthful offender treatment also allows young people the opportunity to apply for jobs without having to check a box denoting their criminal conviction. Yet many of the young people I met when doing the research for my book, “Trapped in a Vice: the Consequences of Confinement for Young People,” overwhelmingly thought that they would not get a job as a result of their criminal case, regardless of whether they had a conviction or not. Even those with a juvenile delinquency adjudication, which does not appear on a criminal record, or youthful offender treatment, felt that a potential employer might somehow find out about their time in the system.

In some cases, this dissuaded them from even applying for a job. Their perceptions were linked to the realities of the waged labor market: Employers do actually discriminate against individuals with criminal convictions. Just under half the participants I interviewed expressed fears about applying for jobs with a criminal conviction and being denied a job because of that conviction. These fears were particularly pronounced in the wake of the financial crisis of 2008, when I began doing my research.

They want to go to school, work

For my book project, I spent time with 39 young people charged with crimes and adjudicated as juvenile delinquents from across New York State. I spent time with them in the residential facilities they were placed in, sometimes hundreds of miles away from home, in their local detention facilities, in court and in their homes.

Almost all the young people I met, like Shayla, wanted to go to college and dreamed of embarking on a range of careers. Jacob, for example, actively researched colleges while he was incarcerated and recited a list of names that included Harvard, Princeton and Yale. Jacob and Jamal both spoke about their desire to attend a criminal justice college because they were both interested in pursuing a career in law enforcement. Yet a number of the young people expressed concerns about realizing these career aspirations because of their criminal convictions. Tony wanted to become a lawyer, and Jacob wanted to become police officer, but both of them knew that their time in the system would create barriers to realizing these goals.

If Shayla had applied to college, she may have again faced a felony conviction box. Even though she had the ability to check “no” on that box because of her youthful offender status, many other young people I met did not have that luxury. Even those with youthful offender treatment often checked the box, assuming that they were obligated to — they had been processed through the criminal court, after all. The full weight of their youthful offender adjudication may have been explained to them, but they never fully understood it.

These teenagers were born into a world where the collateral consequences of a conviction were everywhere. Many people, including my own students and colleagues, believe that a criminal conviction alone will block someone from going to college or receiving financial aid. In 1996, Congress passed an amendment to the Higher Education Act that denied individuals with a drug conviction from receiving financial aid, but that provision has long since been revised; it now more narrowly denies people from receiving aid if they get a felony conviction while they are in college. Yet this distinction is poorly understood on the ground. While he was incarcerated on Rikers Island, Michael spoke with resignation about his future prospects to go to college, saying, “I wanted to go to college,” but “I’m in here, because of the felony.”

It was also during the 1990s that the State University of New York (SUNY) decided to add a felony conviction box on their application. This box created the demand that anyone, including someone who had a case when they were a teenager, check the box. The Common Application itself requires people who have had a delinquency adjudication to check their criminal conviction box.

After applicants checked the box, they received a letter from SUNY demanding an array of paperwork related to their conviction, including their rap sheet, which costs $65 to obtain from the state, detailed inmate administrative records and psychological treatment histories. They then usually faced a felony review committee that assesses their fitness to join the campus.

Unsurprisingly, a substantial number of people who check the felony conviction box and receive the letter demanding the supplemental information do not proceed with their application; this is a process that has been termed “denial of admission through attrition.” In August 2016, the SUNY Board of Trustees decided to eliminate the felony conviction box from the application.

Collateral consequences

A criminal conviction in New York is also accompanied by an array of fines and fees that can create burdensome debt for individuals.  Shayla faced mandatory surcharges in the courts as a result of her conviction, as well as fees associated with the programs she was eventually sentenced to. Jesse was convicted of a misdemeanor sex offense — “forcible touching” — when he was 18 years old. After he was released from Rikers Island, he was homeless and unemployed. Yet his conviction, which resulted in 10 years of probation supervision, also required that he pay for a sex offender treatment class. If he would not pay for his classes, he would violate the terms of his probation. At the time, he wasn’t working and thus was unable to pay.

The barriers to accessing housing, employment and education that Shayla and the other young people faced are just a few of what have been called the “collateral consequences” of a conviction. Many of these consequences were enacted into state and federal laws and regulations around the time they were born, as part of a national project of politicians in the 1990s who were tough on individuals accused of crimes — who created laws that subjected them to numerous civil penalties outside of a criminal conviction that treated their convictions as representative of the ways that they had violated the expectations of citizenship. Their parents were individuals whose relationship to the state, as dependents on welfare, public housing and public education, was considered provisional by governing authorities.

People who committed drug offenses faced particularly harsh consequences as a result of their arrests, but other people who were convicted of crime faced restrictions on their civic life. The people who faced the harshest restrictions were those who received any kind of state assistance, from housing to welfare. Federal lawmakers who created these penalties were of the belief that if people violated the law, they must face penalties that would communicate to them that their assistance from the state would be put in jeopardy if they violated the laws of that state.

For a number of the young people I met, their initial criminal conviction had compounding effects. New York has particularly punitive laws with respect to multiple felony convictions; under the “mandatory persistent” statute, individuals can face serious prison time if they have a second or third conviction. Tory was 16 when he faced his first adult-level conviction; after getting out of a residential facility, he was arrested not long afterward and charged with attempted murder. Now 22, he is doing a 12-year sentence in an adult prison in upstate New York.

In other words, a conviction is not just a conviction, nor is an arrest just an arrest. After an arrest, these teenagers face barriers in social systems beyond the criminal justice system. These barriers prevent them from realizing their desire to work and to go to school, and they expose them to more time in detention and prison. A young person’s arrest can set into motion an array of punitive responses that play a deep role in shaping their lives.

The barriers that the young people faced also came in the form of low expectations. So many of the adults that the teenagers encountered only ever saw them as their conviction. Shayla wanted a probation sentence for her felony offense, and eventually received it. However, Shayla asked her probation officer how many of her clients had succeeded, and the officer told her that about 1 out of 100 people did. Shayla felt that her officer would only ever believe that she should be sent to prison.

Yet, Shayla had to wait months to even be sentenced to probation, which would then last another five years. The indeterminacy of the court cases was another piece of the repressive legal apparatus that young people faced: Not only was the court process a difficult one for them, it often lasted many years and included a sprawling array of obligations and pressures.

Sense of indeterminacy

The court interventions sometimes lasted for months or even years. Only one of the young people I met with had their case fully resolved during the year that I followed them, even though I met a number of them long after they had been sentenced.  If teenagers were sentenced to custody, they sometimes faced lengthy periods of parole or probation after those sentences. Teenagers who are charged with less serious crimes find themselves moving in and out of juvenile justice, child welfare and mental health institutions for long periods of time.  

The structure of the court system also creates and sustains the indeterminacy of the sentences. Depending on their age, young people can face either short, determinate jail sentences or a sprawling ever-expanding form of surveillance by the state. For young people charged in family court with less serious offenses such as drug sales, minor theft and assault, they may actually receive a longer period of supervision in family court than if they were charged as adults. Luis spent three years in custody for a cocaine-related charge that he received as a juvenile delinquent in family court. After he returned home at age 17 and was arrested and sentenced on a similar charge, he did a 30-day jail sentence as an adult charged with a misdemeanor in criminal court.

Billy and Malcolm continued to attend their alternative-to-incarceration programs well over a year after their initial arrest. Tory faced five years of probation after spending 18 months at a residential facility. Others confronted up to a lifetime of parole after they completed their adult-level sentence, as in the case of two participants who had received sentences of 15 years to life. For others who experienced the uncertainty of the child welfare system, in which they did not know when or if they would be reunited with their birth families, returning to group homes or foster homes after custody was experienced as a continuation of custody. The group homes often prevented young people from going off property, and some foster homes had strict rules about curfews.

The legal cases also tend to last for long periods of time because of the intricacies of legal process, but also because of the frequency with which young people violated the terms of their probation sentences, returning to the original courtroom where they were sentenced. Billy, for example, spent more than two years in court for a robbery case that he was arrested for when he was 14 years old. He has been arrested several times since his first arrest and has spent time in a juvenile and an adult detention center. He has graduated from two alternative-to-incarceration programs, which he reported to at least twice a week. He had a curfew for over two years, and was expected by his judge to be with an adult family member at all times when he left his home. At one point, his probation officer discovered marijuana in his home and required him to go to a long-term residential drug treatment program.

This sense of indeterminacy provoked a range of emotions among the teenagers, from desperation and deep pessimism to rage.  Maya spoke about the various court interventions she had to engage in before she violated her probation and was sent to the residential facility by saying, “I had so much, it tortures me.” Many court actors might argue that these pains and frustrations are an integral part of young people’s need to integrate these new responsibilities into their lives where they were once absent, but it is arguable that this experience of “torture,” or perhaps, to a lesser extent, deep frustration, affects young people’s ability to fulfill their potential in the sense that they struggle to locate a focus for the expression of their sense of self-efficacy and their process of growth.

The teenagers felt powerless in the face of the indeterminacy of the custodial terms and were often ambivalent and frustrated about what it actually meant to change. In the courts, judges had the ultimate power over when and how they sufficiently met the court’s terms of participation in an alternative-to-incarceration program, which often meant that they would stay in the programs for months, or even years.

There were many years where Shayla struggled to find such freedom from her court case. She had already faced a great challenge, as a young person, to establish her identity as a gay black woman. When she was younger, she worried about a large birthmark on her face, her skin color (she felt it was too dark), and her hair. She wanted to wear boys’ clothes and always felt more like one of the boys, but her family didn’t approve of this — they wanted her to wear “girlie girlie” clothes — and she was teased at school. She did well in school when she was younger, and she was considered one of the smartest students in her class, but her grades began to slip, and she was ultimately kicked out of school for bringing marijuana there. By the time I met her, she had left her high school and was trying to enroll in a GED program.

After Shayla was finally sentenced to five years’ probation, she also faced mandatory participation in an alternative-to-incarceration program, which referred to intensive outpatient drug treatment for her marijuana use. She grew “tired of traveling back and forth and all that” to the program and that “it makes it harder when you stressed out like that, it makes you want to relapse.”

Shayla wanted to go to college, but then she felt like she would “have to worry about” not meeting the expectations of the program she was in and “have to worry about my probation officer.” She said to me, “Honestly, I don’t want to do any more programs. Like, I’m grouped out. Like, I don’t want to sit in a chair, I don’t want to talk no more, I don’t want to do that. I just want to move forward, and keep going. I want to be done with ... and that’s it.”

Shayla used terms from the drug treatment program (“relapse” and later in the interview, “sobriety”), perhaps subconsciously recognizing that she might have to use this language to justify her desire to get out of the program.  Although she was an occasional marijuana user, she had been constructed as an addict for the purposes of the court intervention and thus had to prove her distance from that identity to get out of the program.

She threatened to “relapse” — even though she knew she probably would have never used that terminology before, particularly about marijuana use — because she hated the program and wanted to give up on it. For Shayla, there were limited opportunities in her life, post-conviction, to express and exercise responsibility, in part because of her adolescence, and in part because of her position in the courts. So her talk about “relapse” may have been one way of gaining a sense of power or control over her circumstances.

Shayla had to identify as a drug addict to stay out of prison. For many teenagers, marijuana use was a way of coping with the extreme anxiety associated with their lives, particularly in the absence of their access to mainstream mental health routes to overcome anxiety. Shayla said that “for a person like me to see a person that grew up in a urban neighborhood, and they smoke weed, and they get arrested, and they have to stop smoking, and like, that could be really hard on them ... It could change their attitude, their aspect, their outlook on life and could really shut them down as a person.”

She said that the court forced her, through the imposition of the programs and controls, to “stop being the person you was before” without recognizing that by imposing behavioral standards and controls without being attuned to where they were coming from, it would create problems in their lives. She said that “for them to throw you back in the same environment where you came from, before you got arrested, and before you had to make these life-altering decisions, it’s, it’s difficult.”

She found that one of the biggest challenges came when trying to navigate her life as a teenager, “because you want to hang out with the same people, and you want to go to the same parties, and you want to see the same girls, and you want to do the same things you did before. But you gotta, you gotta wonder, well if they’re smoking weed over there, I can’t go, because it might tempt me if they are doing this over there. I can’t go, I can’t do this.” Shayla’s response to this dilemma was to simply stay at home and close herself off from the world: “So you shut yourself down, and you become antisocial, and you live in a box for the rest of your life and you don’t want to do nothing.”

Frustrated and silenced

Shayla was frustrated that the court interventions failed to recognize her life context: she said, “You have to stop being the person you was before,” despite living in the same place. She wanted to “move forward, and keep going,” fulfilling her potential in the ways that she desired. After she was first arrested, Shayla also expressed a similar frustration that her capacity for change wasn’t recognized, saying “only my teachers from my school know what a good kid I am.” She said that they know about “my initiative, my passion ... how much I value my education.” The program made her feel stuck. In response, she argued, it is possible to “shut yourself down” and withdraw. Shayla perceptively recognized that the courts may never see her for who she is.

Shayla primarily perceived the alternative-to-incarceration program as a means to an end — freedom from incarceration. She located her aspirations and hopes outside of the program itself, in college. Shayla engaged in a form of “creative compliance” in which her participation in the program is on the surface one of compliance, but she is actually seeking out sources of change for herself that exist beyond that program.  Thus, her process of change and growth is in part frustrated by her feelings that she is unable to exercise her abilities to express those capacities for change but is instead fixed into her identity as a marijuana addict, unable and incapable of change until she has done her time in the program.

Young people often felt that while the court was a setting in which their lives, motivations, failures and progress were debated openly and at length, they could not play a role or offer any account of their own self or narrative of events in that setting. Malcolm, for example, said “I think it’s not right because it’s about me ... and I don’t get a chance to say something.”

Similarly, Shayla was frustrated about not being able to speak for herself, especially when the stakes were so high: For example, she failed a drug test in her alternative-to-incarceration program and got into a fight with another participant, and was potentially going to be remanded to custody, but was unable to speak during the court hearing which was called in response to these incidents. She said of her court appearance:

“Usually when you get up there like, you can’t say anything. I’m getting to the point now that, if she [her lawyer] doesn’t say what I want her to say, I’m just going to like cut her off and start talking myself, like listen here, Judge, like I appreciate everything [the program] has done for me, it’s been a whole six months I’ve been there, like I learned so many things, but I want to start school and I don’t want to stress myself out.”

This excerpt is reproduced with the permission of Rutgers University Press.

Alexandra Cox is a lecturer in criminology at the University of Essex. She was previously an assistant professor at the State University of New York at New Paltz in their Department of Sociology.

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