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Sophia Goodson

Section AA

TA: Meagan Carmack

“I felt that I was set up to fail”:

Human Rights and Reentry in the United States

Every year over 650,000 people in the United States are released from State and Federal Prisons.

(Prisoner Re-entry) Millions more individuals are released from local jails each year. (Bertram) The

process of reentry that these millions of people experience in leaving these prisons and jails is notoriously

difficult. Even if an individual has not been incarcerated, living in the US with a criminal record is often

painful. The systems addressing individuals with criminal records are unjust to the point of constituting

human rights abuses. Current US policies surrounding prisoner reentry and criminal records are legalized

human rights abuses because they violate rights outlined in the United Declaration of Human Rights

including but not limited to; the right to free and equal treatment, the right to not have punishment be

made greater post-conviction, the right to vote, the right to work, the right to social security, the right to

food, and the right to housing. The US Federal government should take legislative steps to create a

consistent national policy with negative duties and positive duties, including social programs, supporting

the rights of those with criminal convictions to ensure that these violated rights are realized.

Criminal Convictions & Reentry in the US

To gain an understanding of reentry in the US, we need to look at the systems of incarceration

that create this population of reentering individuals. The US has an incarceration rate and incarcerated

population that dwarfs that of the vast majority of other countries, (Jacobson) with roughly 5,500,600

individuals actively under the control of the US Justice system in 2020. (United States, Correctional Pop.)

This system of incarceration starts with charging and arrest. Once individuals are arrested they are

often taken to a local jail. Here they are booked and held until they can post bail or until their charges get
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resolved. Their charges can get resolved through plea deals or trials. If these individuals get a trial, they

are found innocent or convicted and later sentenced. (“What to expect”) Depending on the severity of the

crime, individuals can be sentenced to alternative sentencing or probation, jail, which is usually less than

a year, or prison. (“Parent Sentencing Alternative”) After being convicted of a crime, the label of the

crime stays, and can interfere with many spheres of life in the US.

Depending on the state, the level of this interference for the millions of people who are convicted

of a crime and renter society post-jail or prison or undergo probation varies due to differing state and local

laws. The experiences of people who face difficulty in the US due to a criminal record are vast, including

individuals reentering from long prison sentences to those who have not been incarcerated but have

experienced probation and supervision. With this varied experience, individuals with criminal records are

connected by the fact that their involvement in the justice system, whatever form it takes, results in

separate rights and privileges from the rest of the US.

Now that we have outlined some background on the US carceral system and reentry, let’s look

more deeply at reentry and apply a human rights paradigm to establish why we must take action.

Criminal Convictions and Human Rights

Current US policy around reentry and criminal convictions violate international human rights law

in multiple spheres. The declaration relevant to the human rights abuses committed by the current US

system of prisoner reentry is the UN's Universal Declaration of Human Rights. (“Universal Declaration of

Human Rights”) The treaty that the US has not signed that is relevant here is the International Covenant

on Economic, Social, and Cultural Rights. (“International Covenant on Economic, Social, and Cultural

Rights”) The treaties that the US has ratified and are therefore binding include the Covenant to End all

forms of Racial Discrimination (“International Convention on the Elimination of All Forms of Racial

Discrimination.”) and the International Covenant on Civil and Political Rights. (“International Covenant

on Civil and Political Rights”)

The rights outlined in these treaties and declarations that have been violated include the right to

free and equal treatment, the right to not have punishment be made greater post-conviction, the right to
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vote, the right to work, the right to social security, the right to food, the right to housing, and the right to

healthcare.

The Right to Equal Treatment

A Human Right outlined in all of these relevant declarations, treaties, and constitutions is the

right to equal treatment and protection. (“Universal Declaration of Human Rights”)

The US Criminal Justice system is rife with racial discrimination at every step of the process. In

2019, the arrest rate for Black Americans was over twice that of White Americans, (“Law Enforcement”)

while the imprisonment rate for black adults was over five times that of white adults and the

imprisonment rate for Hispanic adults was over twice that of white adults. (United States, Prisoners) The

discrimination present in arrests and sentencing continues with reentry and post-prison consequences.

Because of disparities in who is incarcerated, the population that leaves prisons and jails is

disproportionately black and brown, resulting in discriminatory outcomes with reentry. (Mooney)

Aside from this racial discrimination present in reentry, the US carceral system creates a separate

class of people with the label of “criminal.” Those who have this status live a completely different life

with completely different rights than those who do not have a criminal record. This is the definition of

discrimination according to the UDHR, similar UN treaties, and the US Constitution: creating a

distinction between people with different rights. The US is violating International and domestic human

rights law in creating and maintaining this discriminatory system.

The Right to Protection against Ex Post Facto Laws

Another Human Right outlined in the UDHR (Article 11) is the protection against Ex Post Facto

Laws. The protection against Ex Post Facto Laws is also outlined in the US constitution, in the original

constitution in Article 1, section 10. (“US Constitution”)

34 States in the US have systems of discretionary Parole. (Renaud) These parole systems, while

intended to offer inmates a second chance, often dole out harsher punishments for crimes than were

declared during sentencing. If an inmate is released on parole, then they will have to meet an array of

often confusing conditions, usually including reporting to a parole officer, maintaining employment, and
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supervision. Probation requires all the same supervision as parole, but individuals are automatically put

under supervision after sentencing and are not incarcerated. Parolees and individuals on probation have to

pay fees related to supervision. Parolees and Probationers may be expected to deplete their savings, let

rent go by the wayside, and even borrow money to pay these fees. If any of these fees are not paid, this

can mean more jail time or a revocation of parole for not being able to pay a simple sum. (Ruhland)

This extended jail time due to an inability to pay fees is a modern-day Ex Post Facto Law as it is

in essence a second punishment for the same initial crime. The protection against these laws is outlined as

a basic human right in the UDHR and the US constitution, and The US is violating it.

The Right to Vote

The right to vote and take part in a country's political process is a right guaranteed by the UDHR

Article 21, ICCPR Article 25, and by the 15th Amendment of the US Constitution.

This right is not universally guaranteed in the US to FI individuals. In all but 2 states individuals

lose their right to vote upon conviction of most crimes. Currently, 26 states continue to limit voting rights

in some way to individuals after incarceration, as well. Even for FI individuals who have gotten their right

to vote restored, it can be extraordinarily difficult to navigate the paperwork and cast a vote. (“Can People

Convicted Vote?”) Additionally, even in states where those with criminal convictions get the right to vote

restored, court debts can strip individuals of their voting rights. (Gershman)

The right to vote is a Human Right guaranteed in International Law by the UDHR and in

Domestic Law by the US Constitution, and the US is violating this right.

The Right to Work

The Right to work is a Human Right also outlined in Article 23 of the UDHR and Articles 6 and 7

of the ICESCR.

Almost half of all men who are unemployed in the US have been convicted of a crime,

(Bushway), and FI individuals who find employment often struggle to maintain it. FI Individuals who

found work had on average 3.4 jobs over four years in 2010. (United States, Employment)
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This is because of legal barriers between individuals with criminal records and employment. An

occupational license is required for a quarter of jobs in the US, jobs that tend to offer more mobility and

job security. There are over 16,000 legal barriers to gaining an occupational license for those with a

felony conviction, making obtaining a license all but impossible. (“Occupational Licensing”)

These are just the professions that require licenses. 35 States allow all private employers to

include a question about criminal history directly on a job application. When these questions and

background checks based on criminal records are allowed, employers can discriminate against FI

individuals easily. When employers ask about criminal history, they are 63% more likely to call back

individuals without a criminal record. As a note, even without these questions or background checks,

research has indicated that employers will hire fewer Black and Brown people under the racist assumption

that they would have a criminal record. (Stacy)

The systems of Parole and Probation that many states have also get in the way of employment.

Many of these supervision systems require FI folks to attend frequent meetings that may get in the way of

work shifts. If a single meeting is missed, this can be counted as a parole violation with potential jail time

that would take that individual away from work. (Deng)

This all means that the US has a system particularly difficult for those who have been convicted

of a crime to gain employment. The right to employment is one listed in the UDHR and ICESCR and the

US is violating it concerning individuals convicted of a crime.

The Right to Social Security

The right to Social Security generally is also outlined in the UDHR (Article 22) and the ICSECR

(Articles 9&11) as the realization “of the economic, social and cultural rights indispensable for his dignity

and the free development of his personality.” (“Universal Declaration of Human Rights”)

Upon incarceration for over 30 days due to the conviction of a crime, social security benefits are

suspended. After incarceration, these benefits don’t just start back up again. Individuals need to reapply

and will need to wait a minimum of two months before receiving social security benefits –if they are even
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eligible. Social security is limited to retirement, survivors, or disability benefits, and if FI individuals

don’t meet those requirements, they are out of luck. (“Social Security”)

It can also be difficult to receive these social security benefits post-incarceration. A bank account

is needed for social security checks to easily be deposited into. Incarceration, whether it be short periods

in jail or longer prison sentences, often leads to issues with banking and credit. (Benoit) Many FI

individuals don’t have government ID and banking software often catches bounced checks and accounts

that were closed involuntarily, which tend to happen while incarcerated, which makes it very hard to open

a bank account. Without a bank account, there is nowhere to cash social security and government relief

checks, so these benefits can be delayed and at times impossible to access. (Craigie)

The US, in limiting the ability of individuals with a felony conviction to receive social security

benefits, is violating the right to social security.

The Right to Food

Article 25 of the UDHR and Article 11 of the ICESHR also outline a right to food.

After incarceration, with all of the difficulty in gaining employment, food insecurity is common.

91% of reentering individuals experience food insecurity. (Wang)

Part of this is because SNAP (known colloquially as food stamps), the program that's supposed to

support food security in the US, is not available to some folks with criminal convictions. The Personal

Responsibility and Work Opportunity Reconciliation Act of 1996, also known as welfare reform, severely

limited those who could access food stamps. Section 115 of this act declared individuals with felony drug

convictions ineligible to receive food stamps. The act is broad and allows states to decide how much of

this act they enact, but as of 2021, 26 states still have some version of this ban in place. (Osgood)

Banning individuals with a federal drug conviction from food stamps is denying them the right to

food. The right to food is outlined in the UDHR and ICESCR, and the US is violating this right.

The Right to Housing

Housing is outlined as a human right in Articles 17 and 25 of the UDHR and Article 11 of the

ICESCR.
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Formerly incarcerated individuals in the US are almost ten times more likely to be homeless than

the general public. (Couloute) This is primarily due to policies that restrict individuals with criminal

convictions from access to housing and a lack of policies that support formerly incarcerated individuals in

finding housing.

Public housing can be denied to individuals with certain felony convictions. The US Department

of Housing and Urban Development (HUD) regulations permanently ban applicants with a lifetime

requirement to register as a sex offender, and applicants convicted of manufacturing drugs on

federally‐assisted property from section 8 housing. (“Fair Housing”) Other felony convictions may not

result in a permanent ban but are likely to be deemed as evidence of “a risk to the safety of other tenants”

and thus be seen as a reason for denial. Whether other felony convictions may mean a denial of section 8

housing is up to the Public Housing Authority jurisdiction that an individual is under, though often any

kind of conviction can potentially mean denial of section 8 housing. (“Know your Rights”)

The Fair Housing Act of 1968 declared housing discrimination in private housing illegal.

(“Housing Discrimination”) In early 2022, the Biden Administration issued a memorandum that the Fair

Housing Act applied to individuals convicted of a criminal offense, saying that landlords can’t and should

not deny individuals with a criminal conviction housing just because of their conviction. (United States,

ASSISTANT) Even with this memorandum, it is very difficult to challenge discriminatory housing

practices. Practically, the ban on housing for formerly incarcerated individuals may hold for some just

because they do not have the resources to appeal. (“Housing Discrimination”)

Even if landlords across the US fully listened to this memorandum, individuals with a criminal

conviction would still disproportionately be denied housing. Prison time reduces credit scores on average

by 42-57 points due to the debt from the Justice System. Low credit scores can make it harder to obtain

private housing, adding another hurdle to obtaining this human right. (Benoit)

The right to housing is declared as a human right in both the UDHR and the ICESCR. The US is

denying and allowing for the denial of housing based on a criminal record, violating this human right.

Why Care?
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The US has ratified the ICCPR and the CERD and was a founding force in creating the UDHR, a

declaration that helped lead to the ICESCR. All of these treaties and declarations and the US constitution

itself outline rights that the US has violated when it comes to prisoner reentry and individuals with

criminal convictions. The United States prides itself on democracy and being a crusader for human rights,

but for all the US talks, it has created an entire class of people who have been stripped of their

fundamental rights. Action needs to be taken to make sure that the rights of individuals with criminal

convictions are recognized.

Recommendations

The violation of human rights associated with reentry and criminal convictions are far-reaching

and varied, with many different experiences and difficulties. A major reason for this variation is differing

policies State by State. Because of this, the US Government must implement a solution to this human

rights violation involving a consistent overarching national policy around the rights of those with criminal

convictions and reentering individuals.

National policy solutions to this human rights issue must also include both positive and negative

duties, both bans and active solutions. Beyond simply prohibiting rights violations, treaties that bind

states and international law declare that States have to actively take a role in instituting policies and

practices that protect these rights. (“Universal Declaration of Human Rights”) Few policies actively

promote the human rights of formerly incarcerated individuals in the US; most simply ban violating these

rights, if that. Solutions to the human rights violations around criminal convictions in the US must include

both bans against rights violations and more proactive action to promote these rights.

To fulfill the negative duties and make bans against these human rights violations more

far-reaching, solutions implemented by the US Government will need to be shaped with the idea of

bringing the two worlds of rights of those with and without criminal convictions together. The US has a

relatively robust system of rights for those with certain identities (distinctly without criminal conviction

status). Creating national laws to shift the status of those with criminal convictions into those with full

personhood and rights will broaden the bans against human rights violations to encompass the rights of
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those with criminal convictions. This policy should address all the elements of human rights abuses. It

should address the right against discrimination by amending the civil rights act to include formerly

incarcerated status. It should address the right against Ex Post Facto laws by banning jail time for failure

to pay fees associated with supervision. It should address the right to vote by passing a federal act for

universal suffrage post-incarceration. It should address the right to work by passing bans on background

checks for felony convictions (while also putting in work to address racial discrimination in workplace

hiring). It should address the right to Social Security by banning the removal of individuals who are

incarcerated for longer than 30 days from social security rolls. It should address food insecurity by

passing an act overturning section 115 of the welfare reform act. It should address housing by passing an

act banning discrimination against those with felony convictions in section 8 housing.

Aside from these bans, the United States Government should implement more policies that

actively address the human rights of individuals with criminal records and formerly incarcerated

individuals. These “progressive measures” should also address all of these human rights that are being

violated. Taskforces should be created to actively institute systems that address these Human Rights

violations. Policies with incentives encouraging employers to hire formerly incarcerated individuals and

landlords to accept formerly incarcerated tenants should be put into place. The United States Department

of Justice should shift its energies from enforcement and imprisonment to restorative justice programs

that support prisoner reentry and successful lives post-conviction.

Part of the reason these rights have continued to be trampled on for so long is because of our

attitudes toward incarceration and crime. There is a long, racialized history of negative attitudes toward

incarcerated people in the US. (Alexander) Current attitudes around incarceration echo this negativity and

alienation. According to research conducted by Ester Matthews, attitudes across the US tend to believe

that formerly incarcerated people should aspire to less than the rest of the general US population. Because

these attitudes that individuals with criminal records are worth less or deserve less run so deep, efforts to

restore human rights to people with criminal convictions must include education and media campaigns

that promote views that people with criminal convictions are humans worthy of every right individual
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without criminal convictions are. Positive, progressive measures the US takes must include creating a

culture of acceptance toward FI individuals and individuals with a criminal conviction.

Because the population whose rights are being violated is so broad, because their experiences

vary so much, and because policy regarding these experiences varies so much from state to state, there

will not be one easy solution. Because the rights of individuals convicted of a crime in the US is such a

deeply entrenched issue entangled with so much history, there will not be one easy solution. But if we

consistently work at creating solutions within this paradigm of creating national policy in the form of both

positive and negative action that addresses all of these human rights violations and push for kinder

attitudes towards formerly incarcerated folks, then we will eventually see all people in the US, regardless

of criminal conviction status, have their human rights fully recognized.

Conclusion

Core to the idea of human rights is the idea that every human being deserves full recognition of

their humanity and the fundamental rights that come along with that recognition of humanity. The US has,

with its system of incarceration created a class of people, disproportionately consisting of poor people and

people of color, who have been stripped of their humanity and rights. When this system of incarceration is

discussed, the focus tends to be placed on the Human Rights abuses committed in Prisons themselves.

Less attention is focused on post-prison consequences and all of the pain and hardship that comes from

being justice-impacted in any form. Justice-impacted individuals face lives stripped of the right to equal

treatment, the right to not have punishment be made greater post-conviction, the right to vote, the right to

work, the right to social security, the right to food, and the right to housing. We've created a system where

justice-impacted individuals have a separate world with separate rights so that we can ignore this world,

and it is time to end this. It is time to take action and restore human rights to formerly incarcerated and

Justice-impacted individuals. It is time to take legislative steps to create a consistent national policy with

negative duties and positive duties supporting the rights of those with criminal convictions. It is time to

restore justice to all people in the United States, regardless of their criminal conviction status.
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