The Modern Day Scarlet Letter

American society has come to presuppose the efficacy of the collateral legal consequences of criminal conviction. But little attention has been paid to their effects on the reintegration efforts of the formerly incarcerated and, in particular, formerly incarcerated women. An 1848 case, Sutton v. McIlhany, affirmed collateral legal consequences as constituting an important part of criminal punishment. More recent cases, such as Turner v. Glickman, in which a class of people convicted of drug crimes were subsequently denied food stamps and other government benefits, have upheld the constitutionality of imposing these legal penalties on an individual even after she has served her prison sentence.

This Article argues that the collateral legal consequences of criminal conviction represent a “modern day scarlet letter” that lingers with the formerly incarcerated woman for life and that serves to circumscribe those individuals’ economic and social opportunities. Calling upon critical legal theory and empirical social science research, this Article argues that the collateral legal consequences of conviction exact a disproportionate cost on formerly incarcerated women. Expanding upon the understanding of Professor Kimberlé Crenshaw’s critical legal theory of “intersectionality,” this Article discusses the predominant intersectional identities that formerly incarcerated women embody and examines how these identities compound the impact of collateral legal consequences. This Article finds that Black women are most negatively impacted by the collateral legal consequences of incarceration.

Relying on Professor Martha Fineman’s concepts, this Article argues that the state has a “positive obligation” to abrogate collateral legal consequences that disproportionately negatively impact women and to mandate gender-sensitive policies for federally subsidized reentry organizations. This Article proposes a model of reentry that is cognizant of the increased vulnerability of formerly incarcerated women and that is better designed to accommodate the exigencies that are intrinsic to their intersectional identities.