* Professor of Law, New York University School of Law. J.D., Harvard Law School; B.A., Northwestern University. I am grateful to Professor Randy Hertz and especially Professor Kim Taylor-Thompson. I also would like to thank Anna Roberts and Liyah Brown for their research assistance and Dulcie Ingleton for her administrative support. I gratefully acknowledge financial support from the Filomen D’Agostino and Max Greenberg Research Fund at the New York University School of Law.
1 Marc Mauer, The Sentencing Project, Race to Incarcerate 114 (1999).
2 James P. Lynch & William J. Sabol, Prisoner Reentry in Perspective, Crime Pol’y Rep. (Urban Inst. Justice Policy Ctr., Washington, D.C.), Sept. 2001, at 4, 15, http://www.urban.org/UploadedPDF/410213_reentry.pdf.
3 See Jeremy Travis et al., Urban Inst. Justice Policy Ctr., From Prison to Home: The Dimensions and Consequences of Prisoner Reentry 1 (2001), http://www.urban. org/UploadedPDF/from_prison_to_home.pdf.
4 Lynch & Sabol, supra note 2, at 16.
5 Id.
6 See Travis et al., supra note 3, at 43.
7 See Lynch & Sabol, supra note 2, at 13.
8 Travis et al., supra note 3, at 15–16.
9 Id. at 21–22; see Joan Petersilia & Susan Turner, Intensive Probation and Parole, 17 Crime & Just. 281, 282 (1993) (discussing the elements of a generic intensive supervision program to include “some combination of multiple weekly contacts with a supervising officer, unscheduled drug testing, strict enforcement of probation or parole conditions, and requirements to attend treatment, to work, and to perform community service”).
10 Travis et al., supra note 3, at 22; see Petersilia & Turner, supra note 9, at 282 (describing “intermediate sanctions”).
11 See Travis et al., supra note 3, at 21.
12 See Jeremy Travis, But They All Come Back: Rethinking Prisoner Reentry, Sentencing & Corrections (U.S. Dep’t of Justice, Washington, D.C.), May 2000, at http://www.ncjrs. org/txtfiles1/nij/181413.txt (comparing parole supervision to more collaborative programs such as drug treatment and pretrial services).
13 See Travis et al., supra note 3, at 31–32; Lynch & Sabol, supra note 2, at 18.
14 See Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697, 699–700 (2002).
15 Velmer S. Burton, Jr. et al., The Collateral Consequences of a Felony Conviction: A National Study of State Statutes, Fed. Probation, Sept. 1987, at 52, 52 (identifying legally mandated collateral consequences of the loss of voting rights, the holding of public office and offices of private trust, service as a juror, employment opportunities, professional licenses, and domestic rights); Chin & Holmes, supra note 14, at 705–06; see 20 U.S.C. � 1091(r) (2000) (suspending eligibility for federal loans and grants for drug convictions); Anti-Drug Abuse Act of 1988 � 5101, 42 U.S.C. � 1437d(l) (2000) (permitting eviction from public housing for “criminal activity” by tenants or their guests); Developments in the Law—One Person, No Vote: The Laws of Felon Disenfranchisement, 115 Harv. L. Rev. 1939, 1939–40 (2002) [hereinafter One Person, No Vote].
16 Mark J. Heyrman, Mental Illness in Prisons and Jails, 7 U. Chi. L. Sch. Roundtable 113, 118 (2000).
17 Travis et al., supra note 3, at 25.
18 Id. at 29; see Heyrman, supra note 16, at 118; James R.P. Ogloff et al., Mental Health Services in Jails and Prisons: Legal, Clinical, and Policy Issues, 18 L. & Psychol. Rev. 109, 112–15 (1994) (describing a study involving 3684 offenders incarcerated in New York prisons, which found that eight percent were suffering from severe psychiatric or functional disabilities of the severity ordinarily found among patients in a psychiatric hospital); T. Howard Stone, Therapeutic Implications of Incarceration for Persons with Severe Mental Disorders: Searching for Rational Health Policy, 24 Am. J. Crim. L. 283, 287–90 (1997).
19 Heyrman, supra note 16, at 118.
20 See Travis et al., supra note 3, at 1.
21 Allen J. Beck & Bernard E. Shipley, Office of Justice Programs, U.S. Dep’t of Justice, Bureau of Justice Special Report: Recidivism of Prisoners Released in 1983, at 1 (1989), http://www.ojp.usdoj.gov/bjs/pub/pdf/rpr83.pdf. The eleven states are California, Florida, Illinois, Michigan, Minnesota, New Jersey, New York, North Carolina, Ohio, Oregon, and Texas. Id.
22 Id.
23 Travis et al., supra note 3, at 43.
24 Evelyn Nieves, Homicides Rise Again, Threatening Oakland’s Renaissance, N.Y. Times, Aug. 11, 2002, at A18.
25 Id.
26 See Attorney General Janet Reno, Remarks at John Jay College of Criminal Justice on the Reentry Court Initiative (Feb. 10, 2000), http://www.usdoj.gov/archive/ag/speeches/ 2000/doc2.htm.
27 Id.
28 See Travis, supra note 12.
29 See Standards Relating to Collateral Sanctions & Disqualification of Convicted Pers. � 19-1.2 (2003), http://www.abanet.org/crimjust/standards/collateralblk. html#1.2.
30 See Robert L. Rabin, Lawyers for Social Change: Perspectives on Public Interest Law, 28 Stan. L. Rev. 207, 232 (1976) (emphasizing the degree of specialization in public interest law firms).
31 See infra notes 34–137 and accompanying text.
32 See infra notes 138–241 and accompanying text.
33 See infra notes 242–278 and accompanying text.
34 Kansas v. Hendricks, 521 U.S. 346, 361–62 (1997).
35 Tali Mendelberg, The Race Card: Campaign Strategy, Implicit Messages, and the Norm of Equality 136–65 (2001); Sara Sun Beale, Federalizing Hate Crimes: Symbolic Politics, Expressive Law, or Tool for Criminal Enforcement?, 80 B.U. L. Rev. 1227, 1247–53 (2000); see Nancy E. Marion, Symbolic Policies in Clinton’s Crime Control Agenda, 1 Buff. Crim. L. Rev. 67, 67 (1997).
36 Mauer, supra note 1, at 59–60.
37 Eda Katherine Tinto, The Role of Gender and Relationship in Reforming the Rockefeller Drug Laws, 76 N.Y.U. L. Rev. 906, 910 (2001); Katherine N. Lewis, Note, Fit to Be Tied? Fourth Amendment Analysis of the Hog-Tie Restraint Procedure, 33 Ga. L. Rev. 281, 281 (1998).
38 Kim Taylor-Thompson, Taking It to the Streets, 29 N.Y.U. Rev. L. & Soc. Change 153, 154 (2004).
39 Mauer, supra note 1, at 71–72.
40 Id. at 72.
41 Id.
42 Id. at 71–72.
43 Id. at 72.
44 David Garland, The Culture of Control 61–63 (2001).
45 Id.
46 Id.
47 Mauer, supra note 1, at 72.
48 Id.
49 See Garland, supra note 44, at 168; Alfred Blumstein & Allen J. Beck, Population Growth in U.S. Prisons, 1980–1996, in Prisons 17, 56 (Michael Tonry & Joan Petersilia eds., 1999).
50 The Real War on Crime: The Report of the National Criminal Justice Commission 115 (Stephen R. Donziger ed., 1996) [hereinafter Real War on Crime]; see Anthony C. Thompson, It Takes a Community to Prosecute, 77 Notre Dame L. Rev. 321, 340 (2002); Eric Schlosser, The Prison-Industrial Complex, Atlantic Monthly, Dec. 1998, at 51, 56–57 (describing the increase in tough-on-crime legislation and prison construction preceding, during, and after the 1980s crack epidemic).
51 Mauer, supra note 1, at 152.
52 Real War on Crime, supra note 50, at 118.
53 Mauer, supra note 1, at 61.
54 See id. at 56–68 (noting impact on incarceration rates of war on drugs’ policies).
55 See Joseph L. Galloway et al., A Bleak Indictment of the Inner City, U.S. News & World Rep., Mar. 12, 1990, at 14 (noting that the war on drugs focuses mainly on inner cities, which are populated primarily by minorities).
56 See id.
57 See Dorothy E. Roberts, Crime, Race, and Reproduction, 67 Tul. L. Rev. 1945, 1956–59 (1993).
58 See id.
59 See Gerald W. Heaney, The Reality of Guidelines Sentencing: No End to Disparity, 28 Am. Crim. L. Rev. 161, 203–07 (1991); Knoll D. Lowney, Smoked Not Snorted: Is Racism Inherent in Our Crack Cocaine Laws?, 45 Wash. U. J. Urb. & Contemp. L. 121, 122–23 (1994); Dennis Cauchon, Balanced Justice? Sentences for Crack Called Racist, USA Today, May 26, 1993, at A1.
60 Mauer, supra note 1, at 143.
61 Lowney, supra note 59, at 123; see Ron Harris, Blacks Take Brunt of War on Drugs, L.A. Times, Apr. 22, 1990, at A1; U.S. Has Highest Rate of Imprisonment in World, N.Y. Times, Jan. 7, 1991, at A14 (noting that from 1984 to 1988, the percentage of all drug arrestees who were black rose from 30% to 38%).
62 Patrick A. Langan & John M. Dawson, Bureau of Justice Statistics, U.S. Dep’t of Justice, Bulletin: Felony Sentences in State Courts, 1990, at 1, 5 (1993). The Bureau of Justice Statistics issues this report approximately every two years.
63 Report: U.S. Has Top Jailing Rate, Chi. Trib., Jan. 6, 1991, at 5.
64 Ruth Marcus, Racial Bias Widely Seen in Criminal Justice System: Research Often Supports Black Perceptions, Wash. Post, May 12, 1992, at A4 (citing a 1989 USA Today study). “Between 1980 and 1988, the combined federal and state prison populations increased by ninety percent.” Marc Mauer, The Sentencing Project, America Behind Bars: One Year Later 7 (1992). The U.S. prison population has tripled since 1970 and doubled since 1980. Fox Butterfield, U.S. Expands Its Lead in the Rate of Imprisonment, N.Y. Times, Feb. 11, 1992, at A16.
65 See Hon. Peggy Fulton Hora et al., Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America, 74 Notre Dame L. Rev. 439, 457 (1999) (describing legislation passed during the war on drugs that created mandatory minimum sentences and a general increase in the penalties for drug offenses).
66 Mauer, supra note 1, at 151–52.
67 See id. at 47.
68 Id. at 45.
69 Id. at 46.
70 Id.; see Travis et al., supra note 3, at 14.
71 Mauer, supra note 1, at 45–46.
72 See Donald C. Nugent, Judicial Bias, 42 Clev. St. L. Rev. 1, 46–47 (1994).
73 See Leonard Cargan & Mary A. Coates, The Indeterminate Sentence and Judicial Bias, 20 Crime & Delinq. 144, 147–56 (1974); Nugent, supra note 72, at 47 (“Studies consistently report that racial minorities receive harsher and longer prison sentences.”).
74 Joan Petersilia, When Prisoners Return to Communities: Political, Economic, and Social Consequences, Sentencing & Corrections (U.S. Dep’t of Justice, Washington, D.C.), Nov. 2000, at 1, 1, http://www.ncjrs.org/pdffiles1/nij/184253.pdf.
75 See Mauer, supra note 1, at 44–47.
76 See Michael Tonry, Reconsidering Indeterminate and Structured Sentencing, Sentencing & Corrections (U.S. Dep’t of Justice, Washington, D.C.), Sept. 1999, at 1, 3, http://www. ncjrs.org/pdffiles1/nij/175722.pdf; see also Travis et al., supra note 3, at 14.
77 See Mona Lynch, Waste Managers? The New Penology, Crime Fighting, and Parole Agent Identity, 32 Law & Soc’y Rev. 839, 842–43 (1998); Andrew von Hirsch & Julia M. Mueller, California’s Determinate Sentencing Law: An Analysis of Its Structure, 10 New Eng. J. on Crim. & Civ. Confinement 253, 254 (1984).
78 See Petersilia, supra note 74, at 2.
79 Id.
80 Id.
81 Id.
82 See id.
83 See Petersilia, supra note 74, at 3.
84 Lynch, supra note 77, at 843.
85 See Edward Epstein, Brown Tries to Grab Crime Issue, San Francisco Chron., June 14, 1994, at A3 (describing 1994 gubernatorial candidate Kathleen Brown’s attack on the efficacy of the state’s parole regulations).
86 Lynch, supra note 77, at 843; see Jonathan Simon, Poor Discipline: Parole and the Social Control of the Underclass, 1890–1990, at 133 (1993).
87 See Simon, supra note 86, at 135–37.
88 See Mark Curriden, Hard Time, A.B.A. J., July 1995, at 72, 74.
89 See Richard Lacayo, The Real Hard Cell: Lawmakers are Stripping Inmates of Their Perks, Time, Sept. 4, 1995, at 31, 31; see also Rhonda Cook, Around the South Back to Hard Labor, Atlanta J.-Const., Aug. 20, 1995, at D4.
90 Iris Kelso, Tough-on-Crime Rhetoric Scary, New Orleans Times, Sept. 17, 1995, at B7.
91 Andy Miller, Like It or Not: James Has Alabama in Spotlight, Atlanta J.-Const., Sept. 7, 1995, at C5 (remarking that one opponent termed the reintroduction of chain gangs by politicians as “Alabama’s current genius of bumpkin publicity”).
92 Michael Tonry, Race and the War on Drugs, 1994 U. Chi. Legal F. 25, 52–55.
93 See Sourcebook of Criminal Justice Statistics 567 (Kathleen Maguire & Ann L. Pastore eds., 1995).
94 For other reasons that limit the employability of ex-offenders, including lack of skills, race, relocation of jobs, changes in the job market, economic downturns, and competition from welfare leavers, see Travis et al., supra note 3, at 31–33 and Lynch & Sabol, supra note 2, at 18.
95 See Peter T. Kilborn, Flood of Ex-Convicts Finds Job Market Tight, N.Y. Times, Mar. 15, 2001, at A16.
96 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, � 20411, 108 Stat. 1796, 1828 (codified at 20 U.S.C. � 1070a(b)(8) (2000)).
97 See Eric Blumenson & Eva S. Nilsen, How to Construct an Underclass, or How the War on Drugs Became a War on Education, 6 J. Gender Race & Just. 61, 73–74 (2002).
98 See id. at 79–83 (stating that prison education programs have reduced recidivism rates by a factor of four); see also Robert B. Greifinger, Commentary: Is It Politic to Limit Our Compassion?, 27 J. L. Med. & Ethics 234, 234 (1999).
99 Blumenson & Nilsen, supra note 97, at 68–69; see Higher Education Reauthorization Act of 1998, Pub. L. No. 105-244, � 483(f), 112 Stat. 1581, 1736–37 (codified at 20 U.S.C. � 1091(r)).
100 See 20 U.S.C. � 1091(r); see also Blumenson & Nilsen, supra note 97, at 70.
101 See Blumenson & Nilsen, supra note 97, at 68–71 for an excellent discussion of this point.
102 See Travis et al., supra note 3, at 28; Charles Blanchard, Drugs, Crime, Prison and Treatment, Spectrum, Winter 1999, at 26, 26 (describing high instance of drug and alcohol addiction among inmates); Elisabeth Rosenthal, Doctors Behind Bars Balance Safety and Care, N.Y. Times, Jan. 1, 1994, at A1.
103 Travis et al., supra note 3, at 28.
104 Id.
105 Faith Colangelo & Mariana Hogan, Jails and Prisons—Reservoirs of TB Disease: Should Defendants with HIV Infection (Who Cannot Swim) Be Thrown into the Reservoir?, 20 Fordham Urb. L.J. 467, 467 (1993); Kollin K. Min, The White Plague Returns: Law and the New Tuberculosis, 69 Wash. L. Rev. 1121, 1128 (1994).
106 See Henry J. Steadman & Stephen A. Ribner, Changing Perceptions of the Mental Health Needs of Inmates in Local Jails, 137 Am. J. Psychiatry 1115, 1115 (1980) (discussing perception of correctional administrators that prisons are becoming inundated with mentally ill inmates); Open Soc’y Inst., Research Brief, Mental Illness in U.S. Jails: Diverting the Nonviolent, Low-Level Offender (Nov. 1996) (on file with author).
107 See Violent Crime Control and Law Enforcement Act of 1994 � 20411, 20 U.S.C. � 1070a(b)(8) (2000) (denying Pell Grants to prisoners); see also Fox Butterfield, Tight Budgets Force States to Reconsider Crime and Penalties, N.Y. Times, Jan. 21, 2002, at A1 (describing State of Illinois funding cuts for education in prison beyond high school equivalency level).
108 See Steven Belenko, The Challenges of Integrating Drug Treatment into the Criminal Justice Process, 63 Alb. L. Rev. 833, 835 (2000).
109 Id. at 835 & n.15, 836–37.
110 Id. at 836.
111 Id. at 834–38; Christopher P. Krebs et al., Jail-Based Substance User Treatment: An Analysis of Retention, 38 Substance Use & Misuse 1227, 1227 (2003); Amanda Kay, Comment, The Agony of Ecstasy: Reconsidering the Punitive Approach to United States Drug Policy, 29 Fordham Urb. L.J. 2133, 2175 (2002).
112 See Robert Martinson, What Works? Questions and Answers About Prison Reform, 35 Pub. Int. 22, 48–49 (1974); see also Douglas Lipton et al., The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies 515–32, 542–46 (1975) (outlining various findings from previous evaluations of correctional treatment programs).
113 See D.A. Andrews et al., Does Correctional Treatment Work? A Clinically Relevant and Psychologically Informed Meta-Analysis, 28 Criminology 369, 369, 384–85 (1990) (explaining that imprisonment without rehabilitation will have no effect on recidivism); Paul Gendreau & Robert R. Ross, Revivification of Rehabilitation: Evidence from the 1980s, 4 Just. Q. 349, 350–51 (1987); Stone, supra note 18, at 298.
114 Belenko, supra note 108, at 855–56.
115 Id. at 861.
116 Id.
117 Id.
118 See Petersilia, supra note 74, at 3.
119 See Lynch & Sabol, supra note 2, at 16, 18 (describing socioeconomic problems within core communities).
120 See Petersilia, supra note 74, at 3.
121 See Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 Stan. L. & Pol’y Rev. 153, 153–54 (1999).
122 Chin & Holmes, supra note 14, at 705–06; see U.S. Dep’t of Justice, Civil Disabilities of Convicted Felons: A State-by-State Survey apps. A, B (1996) (providing listings of several types of disabilities afforded ex-offenders).
123 See Mirjan R. Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study, 59 J. Crim. L. & Criminology 347, 347 (1968).
124 See Chin & Holmes, supra note 14, at 700.
125 See Robert M.A. Johnson, Message from the President: Collateral Consequences, Prosecutor, May–June 2001, at 5, 5.
126 Id.
127 See id.
128 See Nat’l Legal Aid & Defender Ass’n, Justice in Action Conference Program 1, 24 (2002), at http://www.nlada.org/Training/Train_Annual/Annual_2002 [hereinafter NLADA].
129 Nancy Morawetz, Rethinking Retroactive Deportation Laws and the Due Process Clause, 73 N.Y.U. L. Rev. 97, 99, 120 (1998).
130 See NLADA, supra note 128, at 8. Reentry was a central theme of the NLADA 2002 annual conference. See id.
131 See Damaska, supra note 123, at 347.
132 A consequence is “direct” where it is “definite, immediate and largely automatic.” United States v. Kikuyama, 109 F.2d 536, 537 (9th Cir. 1997). A consequence is “collateral” where it is “beyond the control of the sentencing court.” Chin & Holmes, supra note 14, at 704.
133 See Laurie Robinson & Jeremy Travis, Managing Prisoner Reentry for Public Safety, 12 Fed. Sent. Rep., 258, 258 (2000); Jennifer Leavitt, Note, Walking a Tightrope: Balancing Competing Public Interests in the Employment of Criminal Offenders, 34 Conn. L. Rev. 1281, 1281 (2002).
134 Reentry Courts, Crim. Just., Spring 2002, at 15, 15. For more information about federal reentry solicitation, see Office of Justice Programs, U.S. Dep’t of Justice, Learn About Reentry, at http://www.ojp.usdoj.gov/reentry/learn.html (last visited Apr. 6, 2004).
135 Reentry Courts, supra note 134, at 15.
136 Id.
137 See U.S. Dep’t of Justice, supra note 134; see also Reentry Courts, supra note 134, at 15.
138 Lynch & Sabol, supra note 2, at 15–16.
139 Jerome G. Miller, Search and Destroy: African-American Males in the Criminal Justice System 80–82 (1996); Alfred Blumstein, Incarceration Trends, 7 U. Chi. L. Sch. Roundtable 95, 103 (2000) (stating that the incarceration rate of African Americans is 8.2 times that of whites); Punishment and Prejudice: Racial Disparities in the War on Drugs, Hum. Rts. Watch, May 1, 2000, http://www.hrw.org/reports/2000/usa/Rcedrg00. htm#P54_1086.
140 John Hagan & Ronit Dinovitzer, Collateral Consequences of Imprisonment for Children, Communities, and Prisoners, in 26 Prisons: Crime and Justice 121, 121–22 (Michael Tonry & Joan Petersilia eds., 1999).
141 See Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 Fordham Urb. L.J. 1705, 1716–19 (2003).
142 42 U.S.C. � 1437d(q) (2000) (permitting public housing agencies to access criminal records); 24 C.F.R. � 5.903 (2003).
143 24 C.F.R. � 966.4(l)(5)(vii).
144 Id.
145 See id. � 902.43(a)(5); Michael Barbosa, Lawyering at the Margins, 11 Am. U. J. Gender Soc. Pol’y & L. 135, 139 (2003).
146 Heidi Lee Cain, Comment, Housing Our Criminals: Finding Housing for the Ex-Offender in the Twenty-First Century, 33 Golden Gate U. L. Rev. 131, 149–50 (2003).
147 Id.
148 Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, � 5101, 102 Stat. 4181, 4300 (codified at 42 U.S.C. � 1437d(l) (2000)).
149 Id.
150 See Fox Butterfield, Invisible Penalties Stalking Ex-Convicts, Sanctions Target Jobs, Housing, Welfare, Voting, Pittsburgh Post-Gazette, Dec. 29, 2002, at A9.
151 See id.
152 See id.
153 See Brian Maney & Sheila Crowley, Scarcity and Success: Perspectives on Assisted Housing, 9 J. Affordable Housing & Community Dev. L. 319, 328 (2000).
154 Christina Victoria Tusan, Homeless Families from 1980–1996: Casualties of Declining Support for the War on Poverty, 70 S. Cal. L. Rev. 1141, 1190–93 (1997); Suzanne Daley, Robert Hayes: Anatomy of a Crusader, N.Y. Times, Oct. 2, 1987, at B1 (describing view of homeless that shelters are dangerous places).
155 See Tusan, supra note 154, at 1190–92; K. Scott Mathews, Note, Rights of the Homeless in the 1990s: What Role Will the Courts Play?, 60 UMKC L. Rev. 343, 344 (1991); see also Daley, supra note 154, at B1.
156 See Paul Ades, The Constitutionality of “Antihomeless” Laws: Ordinances Prohibiting Sleeping in Outdoor Public Areas as a Violation of the Right to Travel, 77 Cal. L. Rev. 595, 620 n.183 (1989) (“[E]ven if shelter beds are accessible, it can be argued that homeless people are offered no real choice if, as is likely, the shelter is dangerous, drug-infested, crime-ridden, or especially unsanitary. . . . Giving one the option of sleeping in a space where one’s health and possessions are seriously endangered provides no more choice than does the option of arrest and prosecution.”).
157 Nora V. Demleitner, Collateral Damage: No Re-entry for Drug Offenders, 47 Vill. L. Rev. 1027, 1038 (2002).
158 Id. at 1038–39.
159 Id. at 1038.
160 Id.
161 See id.
162 Bruce E. May, The Character Component of Occupational Licensing Laws: A Continuing Barrier to the Ex-Felon’s Employment Opportunities, 71 N.D. L. Rev. 187, 193 (1995).
163 See id. at 193–94.
164 See id.
165 Id. at 197.
166 Id.; see Bayside Enters., Inc. v. Carson, 450 F. Supp. 696, 707 (M.D. Fla. 1978) (stating that the character requirement is “so imprecise as to be virtually unreviewable”); Deborah L. Rhode, Moral Character as a Professional Credential, 94 Yale L.J. 491, 571 (1985).
167 See May, supra note 162, at 197.
168 See id.
169 See id. at 195–96.
170 See id. at 193–94 & n.52 (listing licensed occupations that exclude former offenders).
171 Id. at 206–07.
172 Note, Civil Disabilities of Felons, 53 Va. L. Rev. 403, 406 (1967).
173 Parker v. Ellis, 362 U.S. 574, 593–94 (1960) (Warren, C.J., dissenting).
174 Dareh Gregorian & Pia Akerman, Ex-Con Barber in Hair Tangle, N.Y. Post, Feb. 21, 2003, at 3.
175 Id.
176 Id.
177 Id.
178 Id.
179 See One Person, No Vote, supra note 15, at 1941.
180 See Jamie Fellner & Marc Mauer, Human Rights Watch & The Sentencing Project, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States 4 (1998); The Sentencing Project, Legislative Changes on Felony Disenfranchisement 1996–2003, at 3 (2003), http://www.sentencingproject.org/pdfs/legchanges-report.pdf (providing updates from several states).
181 Fellner & Mauer, supra note 180, at 4; see Patricia Allard & Marc Mauer, Regaining the Vote: An Assessment of Activity Relating to Felon Disenfranchisement Laws 3–4 (2000), http://www.sentencingproject.org/pdfs/9085.pdf (for an overview of current laws and initiatives relating to felon disenfranchisement).
182 See Leslie Acoca & Myrna S. Raeder, Severing Family Ties: The Plight of Nonviolent Female Offenders and Their Children, 11 Stan. L. & Pol’y Rev. 133, 140 (1999).
183 Ellen M. Barry, Bad Medicine: Health Care Inadequacies in Women’s Prisons, Crim. Just., Spring 2001, at 39, 39–42.
184 See Acoca & Raeder, supra note 182, at 135–36.
185 Id.; Myrna S. Raeder, Gender and Sentencing: Single Moms, Battered Women, and Other Sex-Based Anomalies in the Gender-Free World of the Federal Sentencing Guidelines, 20 Pepp. L. Rev. 905, 949 (1993).
186 See Raeder, supra note 185, at 952 (revealing that ninety percent of male inmates reported that their children’s mother was caring for their children).
187 See Acoca & Raeder, supra note 182, at 135–36 (reporting that only twenty-six percent of female inmates indicated their children’s father was caring for their children).
188 See Marilyn C. Moses, Nat’l Inst. of Justice, U.S. Dep’t of Justice, Keeping Incarcerated Mothers and Their Daughters Together 4 (1995), http://www.ncjrs.org/ pdffiles/girlsct.pdf.
189 See id.
190 Amy E. Hirsch, Introduction to Every Door Closed: Barriers Facing Parents with Criminal Records 7, 7 (Ctr. for Law & Soc. Policy & Cmty. Legal Servs., Inc. ed., 2002).
191 Id.
192 See Acoca & Raeder, supra note 182, at 134.
193 See Stephanie R. Bush-Baskette, The War on Drugs as a War Against Black Women, in Crime Control and Women: Feminist Implications of Criminal Justice Policy 113, 113–15 (Susan L. Miller ed., 1998) (crediting the increase in black women’s incarceration rates to the war on drugs and indicating that black women are a greater percentage of the female prison population than black men are of the male prison population).
194 Acoca & Raeder, supra note 182, at 140–41.
195 42 U.S.C. � 608(a)(9) (2000); Personal Responsibility and Work Opportunity Reconciliation Act of 1996 � 115, id. � 862a; Acoca & Raeder, supra note 182, at 140–41; Recent Legislation, Welfare Reform—Punishment of Drug Offenders—Congress Denies Cash Assistance and Food Stamps to Drug Felons, 110 Harv. L. Rev. 983, 985 (1997).
196 Adoption and Safe Families Act of 1997, Pub. L. No. 105-89, 111 Stat. 2115 (codified in scattered sections of 42 U.S.C.).
197 Tracey L. Meares, Social Organization and Drug Law Enforcement, 35 Am. Crim. L. Rev. 191, 206 (1998).
198 The family disorganization that results from the imprisonment of an adult member not only increases the likelihood that juveniles will become enmeshed in the justice system but also decreases the likelihood that they will be able to disentangle from it. For example, one study reporting that institutionalization had an adverse effect on the likelihood that juvenile offenders would commit future parole violations also found that the most potent predictor of parole outcomes was the level of “family problems” they confronted once released. Michael Fendrich, Institutionalization and Parole Behavior: Assessing the Influence of Individual and Family Characteristics, 19 J. Community Psychol. 109, 119 (1991); see Meares, supra note 197, at 206.
199 See Regina Austin, “The Black Community,” Its Lawbreakers, and a Politics of Identification, 65 S. Cal. L. Rev. 1769, 1791–92 (1992).
200 Id.
201 Id.
202 Report of the Special Committee on Gender to the D.C. Circuit Task Force on Gender, Race, and Ethnic Bias (1995), excerpted in 84 Geo. L.J. 1657, 1796 (1996).
203 Id.
204 Raeder, supra note 185, at 951–54. For approximately twenty-eight percent of women state prisoners nationally, imprisonment means permanent loss of legal custody of their children. Id. at 954.
205 Peter Wagner, Prison Policy Initiative, Importing Constituents: Prisoners and Political Clout in New York 1, 4 (2002), http://www.prisonpolicy.org/importing/importing.shtml; Fred Alvarez, Census Bureau Counts on Huge Campaign to Get Numbers Right, L.A. Times, Nov. 28, 1999, at B1.
206 Wagner, supra note 205, at 4.
207 Id. at 4–6.
208 Peter Wagner, Prison Policy Initiative, Detaining for Dollars: Federal Aid Follows Inner-City Prisoners to Rural Town Coffers 1 (2002) (on file with author).
209 Id.
1 See id.
210 Id.
211 Id.
212 Wagner, supra note 208, at 1.
213 See id.
1 See Prison Policy Initiative, Diluting Democracy: Census Quirk Fuels Prison Expansion 1 (2003), at http://www.prisonpolicy.org/articles/dilutingdemocracy.pdf.
214 Id.; Wagner, supra note 205, at 4.
215 Peter Wagner, Locked Up, Then Counted Out: Prisoners and the Census, Fortune News, Winter 2002–2003, at 22, 22, http://www.fortunesociety.org/deathpenalty.pdf.
216 Id.
217 Press Release, Prison Policy Initiative, Study Says Prison Populations Skew New York Districts; City Loses, Rural Legislators Gain, from New Districts (Apr. 22, 2002), at http:// www.prisonpolicy.org/importing/pr.shtml. New York is a majority white state (54%), but the overwhelming majority of prison growth (87.6%) since 1970 has been of minorities. Wagner, supra note 205, at 12. During that period of growth, the New York prison population became 5.6 times larger. Id. Of the two million Americans now behind bars in local, state, and federal facilities across the nation, nearly half are black and 16% are Hispanic. Jonathan Tilove, Minority Prison Inmates Skew Local Populations As States Redistrict, Newhouse News Service, Mar. 12, 2002, at A1, http://www.newhousenews.com/archive/story1a031202.html.
218 Peter Wagner, Census Quirk Sustains New York’s Love Affair with Prisons, Alb. Center L. & Just. Newsl., Aug. 2002, http://www.prisonpolicy.org/articles/clj0802.shtml; Wagner, supra note 217, at 22.
219 Tilove, supra note 219, at A1.
220 See Prison Policy Initiative, supra note 215, at 1.
221 See id.
222 Id.
223 See id. (“On a political level, it is the urban minority communities ravaged by the war on drugs that have the greatest desire to see drug law reform.”). Jonathan Tilove describes a case study conducted by Peter Wagner in New York:
Almost half the state’s prisons are in the state Senate districts of four upstate Republicans who, if they could not count inmates, would have to stretch their district lines to encompass more people, setting in motion a ripple effect that eventually would reduce the Republican electorate in competitive districts closer to New York City.
And if those same prison inmates were instead counted in the communities whence they came, the population of urban districts would swell, setting in motion reciprocal ripples that would increase the Democratic electorate in those same competitive districts. Wagner estimates the net effect of changing how prisoners are counted could gain urban Democrats two seats in both the New York House and Senate.
Tilove, supra note 219, at A1.
224 See Travis, supra note 12.
225 Id.
226 Reentry Courts, supra note 134, at 15.
227 See U.S. Dep’t of Justice, Reentry Courts: Managing the Transition from Prison to Community: A Call for Concept Papers 12–19 (1999) (developed by NIJ Director Jeremy Travis); see also Petersilia, supra note 74, at 5.
228 William Schma, Kalamazoo County Circuit Court, 29 Fordham Urb. L.J. 2016, 2019 (2002).
229 Reentry Courts, supra note 134, at 15.
230 See id.
231 Id.
232 See id. For a description of the judge-centered model, see Robinson & Travis, supra note 133, at 260. By contrast, “[u]sually a court's responsibility ends when a defendant is found or pleads guilty and is sentenced by the judge. . . . [T]he trial judge's responsibility ends when the trial ends.” U.S. Dep’t of Justice, supra note 229, at 5.
233 See Morris Hoffman, Commentary: The Drug Court Scandal, 78 N.C. L. Rev. 1437, 1533 (2000).
234 Anthony C. Thompson, Courting Disorder: Some Thoughts on Community Courts, 10 Wash. U. J.L. & Pol’y 63, 78 (2002).
235 See John S. Goldkamp, The Drug Court Response: Issues and Implications for Justice Change, 63 Alb. L. Rev. 923, 953 (2000) (raising the question: “What guides the drug court’s use of incarceration during the informal, non-adversarial proceedings, which emphasize judicial discretion, and even, some might say, raise it to new heights?”).
236 See id. at 950 n.146 (“The judge in drug court can be encouraging and supportive, even engaging the defendant in direct conversation. . . . However, if the defendant is not participating effectively in treatment, . . . the judge may order confinement.”).
237 Thompson, supra note 236, at 79.
238 See Goldkamp, supra note 237, at 927 (describing a “hands-off critique” of drug courts and other types of “problem-solving courts” that view “intervention into the problems of the individuals involved in criminal cases as inappropriate and compromising to the ‘neutral’ judicial adjudication function”).
239 See Thompson, supra note 236, at 79 (noting that drug court judges “typically do not have the sort of professional or specialized training that one would expect from someone vested with the responsibility to choose and design treatment programs”); id. at 93 (raising the question: “Are we expecting too much of judges if we charge them with resolving complex social problems through the criminal justice system?”).
240 See Travis et al., supra note 3, at 43; Reentry Courts, supra note 134, at 12, 13.
241 See The Bronx Defenders, The Civil Action Project, at http://www.bronxdefenders.org/comm/index.cfm?code=006 (2003).
242 The Legal Aid Society of New York has run two programs, one out of its Brooklyn office, administered by Ann Cammett, and the other, entitled “Second Chance,” out of its Harlem office, administered by Mike Barbosa. The Second Chance program is now defunct, but represents the type of program that can be focused on services for ex-offenders.
243 See Petersilia, supra note 74, at 5–6.
244 See Cynthia Works & Cait Clarke, Preparing for the Tidal Wave of Prisoner Reentry: Equipping Civil Legal Aid and Defense Lawyers to Represent the Whole Client, Cornerstone (Nat’l Legal Aid & Defender Ass’n, Washington, D.C.), Fall 2002, at 3, 3, http://www.nlada.org/DMS/ Documents/1044986725.85/Fall%202002%20Cornerstone%20final.pdf.
245 Anthony Thompson, Address to the National Legal Aid and Defender Association (“NLADA”) Annual Conference (Nov. 14, 2002), http://www.nlada.org/DMS/Documents/ 1038340494.03/Anthony%20Thompson%20Re-entry20%speech.doc.
246 See, e.g., The Pub. Defender Serv. for the Dist. of Columbia, About Us, at http://www.pdsdc.org/AboutUs/index.asp (last visited Apr. 6, 2004).
247 The Bronx Defenders, Who We Are, at http://www.bronxdefenders.org/whow/ index.cfm (2003).
248 Deborah Rhode, Access to Justice, 69 Fordham L. Rev. 1785, 1786 (2001); see Raymond H. Brescia et al., Who’s in Charge, Anyway? A Proposal for Community-Based Legal Services, 25 Fordham Urb. L.J. 831, 840 (1998) (describing funding cuts to legal services programs that limited their ability to assist the community).
249 This author was the keynote speaker at the 2002 NLADA Annual Convention. The topic was the need for more focus and collaboration on offender reentry. Concerned that attending such a speech might violate some federal mandates, civil legal service providers would only attend after an opinion was sought and circulated approving attendance at the keynote luncheon.
250 Vincent D. Basile, A Model for Developing a Reentry Program, Fed. Probation, Dec. 2002, at 55, 58.
251 See The Bronx Defenders, Resources and Opportunities, at http://www.bronxdefenders.org/reso/index.cfm (2003); The Pub. Defender Serv. for the Dist. of Columbia, The Community Defender Program, at http://www.pdsdc.org/CommunityDefender/index.asp (last visited Apr. 6, 2004).
252 The Public Defender Service for the District of Columbia, for example, has a division that works with inmates on civil matters while in prison. See The Pub. Defender Serv. for the Dist. of Columbia, The Civil Division, at http://www.pdsdc.org/Civil/index.asp (last visited Apr. 6, 2004).
253 Gideon v. Wainwright, Argersinger v. Hamlin, and progeny contemplate representation flowing from a criminal charge. See Argersinger, 407 U.S. 25, 25 (1972); Gideon, 372 U.S. 335, 335 (1963).
254 See Susan Finlay, Center for Problem Solving Courts, 29 Fordham Urb. L.J. 1982, 1997 (2002).
255 See id. for a description of the neighborhood defender model. Judge Susan Finlay, Director of Education of the Center for Problem Solving Courts, commented:
This [client] has multidimensional legal problems. They have a housing case and they have a criminal case. Wouldn’t it be interesting if we actually provided some form of civil representation for them? And then that model is expanded even more by the Vera Institute of Justice in what is called the neighborhood defender model. There is one up in Harlem which explores the idea that people who come to the defender service are of a certain character within a certain area. In other words, they are going to have a certain set of demographic characteristics which are going to cause them to have a whole host of problems that lead them to the criminal justice system; in other words that sense that we all had in law school that a person’s legal issue is a very narrow set of problems the person has, and if we just solve that person’s case, it is not really going to solve that crisis that they are in at that moment.
Id.; see also Terry Brooks & Shubhangi Deoras, New Frontiers in Public Defense, Crim. Just., Spring 2002, at 51, 51.
256 See Cait Clarke, Problem-Solving Defenders in the Community: Expanding the Conceptual and Institutional Boundaries of Providing Counsel to the Poor, 14 Geo. J. Legal Ethics 401, 401–05 (2001).
257 See Kim Taylor-Thompson, Institutional Actor v. Individual Player: Alternating Visions of the Public Defender, 84 Geo. L.J. 2419, 2469–70 (1996).
258 Id.
259 See Jeffrey R. Parsons, Litigation Management: In-House and Outside Counsel—Who’s in Charge? 219, 221–33 (Practising Law Inst., Corporate Law and Practice Course Handbook Series, PLI Order No. B4-6918, 1990), WL 684 PLI/Corp 219.
260 Maryellen B. Cattani, Managing Outside Counsel 75, 79 (Practising Law Inst., Corporate Law and Practice Course Handbook Series, PLI Order No. B4-6986, 1991), WL 760 PLI/Corp. 75.
261 Prior to the New York University Law School Offender Reentry Clinic, no law school in the United States offered a clinical course on issues ex-offenders face.
262 Stephen Wizner, The Law School Clinic: Legal Education in the Interests of Justice, 70 Fordham L. Rev. 1929, 1930 (2002).
263 Id.
264 Stephen Wizner, Beyond Skills Training, 7 Clinical L. Rev. 327, 328 (2001).
265 Id. at 338–39.
266 See Andrea M. Seielstad, Community Building As a Means of Teaching Creative, Cooperative, and Complex Problem Solving in Clinical Legal Education, 8 Clinical L. Rev. 445, 447 (2002) (describing a model for a clinical program that combines independent representation of clients with community lawyering).
267 Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 136 (2002) (holding that 42 U.S.C. � 1437(d)(l)(6), permitting eviction from public housing for drug-related activity, is constitutional).
268 See Shelley Albright & Furjen Denq, Employer Attitudes Toward Hiring Ex-Offenders, 76 Prison J. 118, 127–35 (1996) (describing results of a study of the factors that affect employers’ decisions to hire ex-offenders).
269 The major theorist of collaborative lawyering is Gerald Lopez. See, e.g., Gerald P. Lopez, Lay Lawyering, 32 UCLA L. Rev. 1, 2–3 (1984); Gerald P. Lopez, The Work We Know So Little About, 42 Stan. L. Rev. 1, 10 (1989).
270 For more information about the Legal Action Center’s areas of advocacy, see Legal Action Center, LAC Programs, at http://www.lac.org/programs/programs_top.html (last visited Mar. 18, 2004).
271 The journalist was Jennifer Gonnerman of the Village Voice, whose recent book chronicles the reentry of an ex-offender. See Jennifer Gonnerman, Life on the Outside: The Prison Odyssey of Elaine Bartlett (2004).
272 The case was Johnson v. Governor of Florida, 353 F.3d 1287 (11th Cir. 2003).
273 His name has been changed for purposes of confidentiality.
274 See N.Y. Correct. Law �� 750–755 (Consol. 2003).
275 The Corporation Counsel, a division of the New York City Law Department, represents the city and its agencies in a variety of legal matters ranging from personal injury to constitutional challenges. N. Y. City Law Dep’t, Message from the Corporation Counsel, at http://www.nyc.gov/html/law/html/ccmsg.html (last visited Mar. 18, 2004).
276 At a similar juncture in our legal history, the U.S. Supreme Court in 1972, in Argersinger, extended the right to counsel to misdemeanor cases, recognizing that this mandate would place demands on an already overtaxed legal system. See 407 U.S. at 34 & n.4, 37. At that time, the Court offered no real guidance regarding how to implement its ruling. See id. at 38. Indeed, Justice William Brennan suggested that states enlist law students in supervised clinics to provide representation. Id. at 40 (Brennan, J., concurring). In hindsight, it is clear that such a proposal could not possibly meet the demand of the system.