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Collateral Consequences

A visit with S. David Mitchell, Associate Professor, School of Law

By LuAnne Roth
Published: - Topics: law law school sentencing felon disenfranchisement prisoner reentry
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When S. David Mitchell leaves for work in the morning, he isn’t sure which hat to wear. Sometimes he is a law professor, and sometimes he is a sociologist. On most days he wears both hats at once—an interdisciplinary approach to research that seems to bode well. As an associate professor in MU’s School of Law, Mitchell’s teaching and research feed off each other, focusing on the intersection of society and the law. While his teaching covers topics ranging from torts and criminal justice administration—from “bail to jail”—the courses he gets most excited about involve his main area of research, including “Law and Society” and “Collateral Consequences of Sentencing.”

Most of Mitchell’s research addresses crime legislation, particularly matters relating to felons. For example, one of his research projects concerns an area of law referred to as “ameliorative legislation,” that is, the relationship between today’s law and yesterday’s crime. To illustrate, Mitchell describes the case of Marcus Dixon. A successful student and athlete on his way to college, the eighteen-year old had sex with a fifteen-year-old classmate. Dixon was charged with statutory rape and aggravated child molestation, and was given a mandatory minimum sentence of ten years in prison. The court in the Dixon case noted the inconsistency in the law for the offenses of statutory rape and aggravated child molestation when committed by one adolescent within several years of the other. Under the former law, the charge would have been a misdemeanor with a maximum sentence of one year, while the latter was a felony with a mandatory minimum sentence of ten years. The court held that the legislative intent of the law was clear and that adolescents should be treated the same under both offenses.

Prior to this amendment, Genarlow Wilson, a seventeen-year-old promising athlete, was charged with aggravated child molestation, among other offenses, for engaging in consensual oral sex with a fifteen-year old classmate at a New Year’s Eve party. While Wilson’s case wound its way through the legal system, the legislature heeded the court’s earlier recommendation and amended the aggravated child molestation law, making the offense a misdemeanor with a maximum sentence of one-year in prison when consensual and committed by adolescents within three years of one another.

Although outrage over Wilson’s case inspired the ameliorative policy, the legislature refused to apply the amended law retroactively to Wilson, who eventually served two years in prison. When a legislative body changes a law to mitigate the penalty and improve someone’s condition, Mitchell reasons, this action should be applied retroactively to all cases still pending: “If the legislature changes a statute to reduce the penalty, in order to reflect the intent of their body and the will of the people, then the convicted and sentenced individual should get the benefit of that new penalty.”

Another aspect of Mitchell’s research concerns the collateral consequences of a felony conviction. As such, Mitchell looks at felon exclusion laws, those laws “that exclude ex-felons from being full citizens” in our society. Like the class he teaches on this topic, Mitchell’s research covers the constitutional basis for felon disenfranchisement, felon exclusion laws themselves, prisoner re-entry, as well as possible legislative changes.

Of the things felons are not allowed to do, perhaps the most familiar is that they are denied the right to vote while incarcerated. In some jurisdictions, ex-offenders even lose that right while on parole or probation. While in some areas the right to vote is restored upon unconditional release, in others there may be a waiting period of up to ten years following release. “There’s this mish-mash of laws that exist for ex-offenders,” explains Mitchell. With little consistency from one jurisdiction to another, the situation becomes very confusing: “People are really unclear as to the process of re-entry and the process of restoration of rights.” Many of these people get released from prison, Mitchell notes, “and then years later, when they have turned their lives around, they can’t vote. They have been effectively disenfranchised.”

Beyond the prohibition against voting, ex-felons are denied the right to serve on a jury for the rest of their lives, and the felony conviction may be used to deny them employment. Some felon exclusion laws, especially for particular drug felonies, deny people public housing, education loans; and in some jurisdictions even one’s parental rights are terminated upon conviction. Mitchell’s main commitment is thus to examining the broader scope of felon exclusion laws. “Most scholars look at the impact of denying the right to vote to ex-offenders," he explains, "and while I concur with the significance of that—it’s incredibly important—I don’t think that ex-offenders, at the end of the day when they are released, are most concerned about going to the polls.”

“When folks think about ex-felons or ex-offenders,” Mitchell continues, “they think, ‘oh, my gosh, the most egregious people in the world.’ They think about sex offenders, they think about serial killers, they think about murderers. Well, in all honesty, that’s about three percent of the population. The bulk of the population of ex-offenders are folks who’ve been convicted of drug crimes, check fraud. A felony, at its most basic definition, is merely an offense for which you could be incarcerated for a year or more.” Depending on the state, that could cover a range of activity—from writing a bad check or stealing something worth over $500 from a store.

“Just because you commit a criminal offense,” contends Mitchell, “it doesn’t negate that you are a citizen, and these laws, in my opinion, negate the fundamental right of citizenship.” Because citizenship involves political, social, and legal elements, he adds, following Justice Thurgood H. Marshall’s argument, “if you take away a right associated with any one of these areas, you are, in effect, denying full citizenship to ex-offenders.” Following this reasoning, Mitchell argues that the rights of ex-felons need to be automatically restored upon their release "once you have done what the state has required you to do. You’ve already been arrested, indicted, convicted, charged, and served your sentence. At that point in time, you’ve paid your debt. Well, then, you should be restored to full citizenship status.”

Standing at the intersection of society and the law, Mitchell describes one of the debates occurring within the scholarly community about whether there is a disproportionate impact of felon exclusion laws, that is, whether such laws affect some demographic groups more than others. If we consider, for instance, the disproportionate number of African-American men who are currently incarcerated or under control of the criminal justice system at some point in time (about one-third of the African-American male community), it becomes clearer that such laws do have a disparate and unfair impact on certain groups. In one community alone, for instance, in Tallahassee, Florida, surveys reveal that one member of every family is a disenfranchised African-American male. “It is incredibly prolific,” laments Mitchell.

Mitchell describes a number of county, state, and national organizations and programs that focus not only on the restoration of the right to vote for ex-felons, but also seek to address the other rights of which ex-felons are deprived, including the Missouri Reentry Process, the Sentencing Project, and the U.S. Department of Justice Reentry Programs. For example, he serves on a committee with the Boone County Transition Network, an organization that seeks “to promote a healthier and safer community by creating and maintaining an effective network of services that addresses the needs of offenders, their families, and our community” (www.bcotn.org).

In spite of such initiatives, Mitchell remains a realist. He knows that felon exclusion laws are not a popular cause with the American public. “There aren’t going to be picket signs saying, ‘give ex-felons rights’," he concedes. "That’s just not going to happen. But there’s a fundamental problem that folks seem to be forgetting. On average, we are going to have about 600,000 ex-felons released back into the community every year, and they will come home. They will not be incarcerated forever.” Communities have two choices, as he sees it: they can alienate and marginalize the ex-felons, a path that will likely lead to re-offense; or they can help the ex-felons successfully re-enter society, “so that they do not want to re-offend.”

Inspired by his research, Mitchell turns to teaching and advocacy work. It is not enough, he concludes, to be a scholar researching the impact of such laws on communities, and it is only too easy to resign oneself to the status quo. He believes that scholars also need to seek “some kind of remedy to improve these situations.”
In that vein, Mitchell underscores the need to remember MU’s fundamental mission—to educate. “Faculty are so pressed to write, to write, to write, that we forget that it is through the interaction with our students that we will have the greatest impact. I went into teaching,” he reflects, “because teaching is the best way to leave a living legacy.”