Free at Last: Legalized Discrimination Against Convicted Felons

For many, that our criminal justice system is institutionally racist is an old, tired point. From profiling to charging to jury selection to conviction, racial bias has seeped into its fabric. But the criminal justice system itself is only half the story - what happens to convicted felons when they’re released from prison?

Michelle Alexander, in her book The New Jim Crow, illustrates the longevity of legalized racial discrimination through the story of Jarvious Cotton: for five generations, Jarvious Cotton, his father, his grandfather, his great-grandfather, and his great-great grandfather have not been able to vote in U.S. elections. His great-great grandfather could not vote because he was a slave. His great grandfather tried to vote, but was beaten to death by the KKK. His grandfather received death threats from the KKK and never attempted to vote. His father was barred with poll taxes and literacy tests. And today, the fifth generation of Cotton men cannot vote because Jarvious Cotton is a felon.1

We fight for the rights of the innocent, loudly and passionately. But the rights of the convicted are often diluted and forgotten until we’ve created an entire system that has significant financial incentive to work against them.
For many, that our criminal justice system is institutionally racist is an old, tired point. From profiling to charging to jury selection to conviction, racial bias has seeped into its fabric. But the criminal justice system itself is only half the story – what happens to convicted felons when they are released from prison?

Going Into the System

More African Americans are under correctional control in the criminal justice system today than were enslaved in 1850.2 In large cities more than half of working age African American men are convicted felons.3

The facilitator of these mass incarcerations is the misguided “War on Drugs.” It continues to be a literal war in minority neighborhoods across the country that implements high technology and SWAT teams to arrest drug offenders.4 Upon commencement of the “War on Drugs” in the 1970s, drug convictions spiked 1,000% because federal funding became available to state law enforcement agencies to enforce drug arrests.5

Every year the government flaunts millions of dollars to be “hard on crime” and to charge as many drug crimes as possible.6 Because the kingpins at the top of the structure are more difficult to capture, enforcement agencies spend a disproportionate amount of time going after everyday drug users to boost their numbers rather than serious drug offenders.7

Entering into the cycle is brutally easy: typically a person of color living in a poor neighborhood is stopped and frisked on his or her way to school or work; the person is generally charged with a minor drug violation. These targeted people serve jail time and become integrated into the criminal justice system while little or no arrests occur for these exact same types of crimes when they occur in predominantly white upper middle class neighborhoods.8

As we move into the new civil rights movements of LGBT rights and immigration reform, we can’t forget that some of the hard fought rights we’ve won in past civil rights movements have never actualized as minorities across the country feel just as powerless as their ancestors once did.
Police target minority neighborhoods, not just because individual police officers are racist, but because it’s easy: minority communities often have little political muscle, so systematically focusing on minority neighborhoods brings negligible political repercussions.9 (That’s not to say that the plight of convicted felons does not apply to white communities; it obviously does. But an overwhelming number of convicted felons are minorities, and the implications of this particular legalized discrimination cut deep and span far back into American history).

Released as Second Class Citizens

We all have a vague sense that being released from prison is hard. You’ve been incarcerated for years, and adjusting to freedom must bring its fair share of hiccups. But “adjusting” to freedom is the least of your problems.

When people are released from prison, they have little to no financial resources and a whirlwind of fees from court costs, attorney’s fees, fines, and back child support. Up to 100% of the future earnings of a convicted felon can be garnished to pay back these fees.10

Convicted felons need to find a place to sleep, but can’t get access to public housing because of their felony conviction. If their families live in public housing, the families can get evicted from their homes for housing a felon. They need to find a job, but employers can legally discriminate against them. They need to eat, but felons can be denied food stamps for the rest of their lives (some states have opted out of the food stamp ban for drug offenders).11

They reenter society not restored to their position before entering jail but rather as second-class citizens subject to legalized discrimination on the most basic levels. Felons lose rights that allow us to engage in democratic society, like the right to vote and the right to serve on a jury; and they lose access to resources that facilitate survival like food stamps and public housing.12

Today’s justifications are different and easier to stomach than slavery and poll taxes, but the outcome of systematic disenfranchisement remains constant. We fight for the rights of the innocent, loudly and passionately. But the rights of the convicted are often diluted and forgotten until we’ve created an entire system that has significant financial incentive to work against them.

As we move into the new civil rights movements of LGBT rights and immigration reform, we can’t forget that some of the hard fought rights we’ve won in past civil rights movements have never actualized as minorities across the country feel just as powerless as their ancestors once did.


  1. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 1 (2010).
  2. One in 31: The Long Reach of American Corrections. Washington, DC: Pew Charitable Trusts, Mar. 2009.
  3. Alexander, supra note 1, at 175.
  4. Id. at 74.
  5. James Baker III, Institute for Public Policy http://www.bakerinstitute.org/files/pubs/dtn/dtnEventhtml3731.html/view?searchterm=iii
  6. Alexander, supra note 1, at 77.
  7. Too many laws, too many prisoners, The Economist, July 22, 2010, http://www.economist.com/node/16636027
  8. Alexander, supra note 1, at 169.
  9. Katherine Beckett, Kris Nyrop, Lori Pfingst, & Melissa Bowen, “Drug Use, Drug Possession Arrests, and the Question of Race: Lessons from Seattle,” Social Problems 419 (2005).
  10. Alexander, supra note 1, at 151.
  11. Id.
  12. Id.