State policies in the United States impacting drug-related convictions and their consequences in 2015

Abstract

Background:

Criminal justice system involvement has been associated with health issues, including sexually transmitted disease. Both incarceration and sexually transmitted disease share associations with various social conditions, including poverty, stigma, and drug use.

Methods:

United States state laws (including Washington, D.C.) regarding drug possession and consequences of drug-related criminal convictions were collected and coded. Drug possession policies focused on mandatory sentences for possession of marijuana, crack cocaine and methamphetamines. Consequences of drug-related convictions included ineligibility for public programmes, ineligibility for occupational licences and whether employers may ask prospective employees about criminal history. We analysed correlations between state sexually transmitted disease rates and percentage of a state’s population convicted of a felony.

Results:

First-time possession of marijuana results in mandatory incarceration in one state; first-time possession of crack cocaine or methamphetamines results in mandatory incarceration in 12 (23.5%) states. Many states provide enhanced punishment upon a third possession conviction. A felony drug conviction results in mandatory ineligibility for the Supplemental Nutrition Assistance Program and/or Temporary Assistance for Needy Families in 17 (33.3%) states. Nine (17.6%) states prohibit criminal history questions on job applications. Criminal convictions limit eligibility for various professional licences in all states. State chlamydia, gonorrhoea and syphilis rates were positively associated with the percentage of the state population convicted of a felony (p < 0.05).

Conclusion:

While associations between crime, poverty, stigma and health have been investigated, our findings could be used to investigate the relationship between the likelihood of criminal justice system interactions, their consequences and public health outcomes including sexually transmitted disease risk.

Higher levels of punishment for drug possession, and more intensive law enforcement and prosecutorial practices, increase the number of individuals interacting with the criminal justice system as well as the ‘intensity’ of this interaction (i.e. incarceration versus non-incarceration and the duration of incarceration). Interactions with the criminal justice system are stigmatizing and may impact one’s social capital (Schnittker and John, 2007). Research has shown that with respect to drug-related crimes, recidivism (the rate of reoffence after release from incarceration) is especially common (Smith et al., 2002).

Legal consequences of conviction may endure even after any formal criminal punishment ends. For instance, eligibility for social programmes intended to assist those in poverty in the United States (U.S.) can be limited based on criminal convictions. Similarly, states may limit one’s ability to receive an occupational licence on the basis of a prior criminal conviction. Because these policies affect access to programmes intended to reduce poverty or otherwise promote employment, it is possible that conviction-based exclusion further cements one’s socioeconomic status.

While changes to the U.S. healthcare system over the past decade have increased access to care, certain public health crises have emerged or worsened. One such example is sexually transmitted disease (STD): chlamydia remains the most commonly reported disease in the U.S. with 1,708,569 cases in 2017, 925,327 more cases than were reported in 2001 (United States Centers for Disease Control and Prevention, 2002, 2018). Significant racial and economic disparities among certain STDs exist and are often related to social determinants of health (SDoH).

The criminal justice system may act as SDoH. Specifically, a theory of ‘felony disenfranchisement’ explores how laws related to social participation may act as a SDoH among vulnerable populations (Purtle, 2013). Principally, ‘felon disenfranchisement could become embodied through pathways of inequitable public policies that differentially allocate resources for health and the deleterious psychosocial mechanisms (i.e. feelings of low control and social exclusion) that contribute to allostatic load.’ Purtle specifically identified the effect of drug-related mandatory sentencing laws, their impact on incarceration and incarceration’s impact on STD risk as a possible driver of inequity as an issue for further inquiry.

We further investigate how STD risk may be particularly illustrative of the interaction between the criminal justice system and health, because many social conditions associated with criminal justice system involvement are the same as those associated with STD risk, including socioeconomic status and drug use (Freudenberg et al., 2005; Hogben and Leichliter, 2008; Wheelock and Uggen, 2006). Criminal justice system interaction is associated with other risk factors for STD, including engaging in more risky sexual behaviours, causing community-level sex ratio imbalances and disruption of sexual networks (Bland et al., 2011; Hogben and Leichliter, 2008). Incarceration and unstable housing have been found to be associated with sexual behaviours that place one at increased STD risk (Widman et al., 2014). One longitudinal study found that persons who have been incarcerated have higher reports of drug use and lower incomes than those who have never been incarcerated (Schnittker and John, 2007). A qualitative study of former inmates found that immediately post-release, they often lacked money, employment, access to healthcare and needed medications, and would return to social environments in which drug and alcohol abuse, having multiple sex partners, inconsistent condom use and transactional sex were all common (Adams et al., 2011).

In addition to sharing risk factors, direct associations between incarceration, drug use and STD have also been established. Research has shown that incarceration is associated with higher levels of chronic and infectious disease as well as discrimination that can lead to mental health issues (Turney et al., 2013). Similarly, persons who have been incarcerated or have a sex partner who has been incarcerated have a significantly higher risk of STD (Rogers et al., 2012). One meta-analysis found that use of crack cocaine was associated with STD prevalence in young adults (Butler et al., 2017). More broadly, research suggests that effects of mass incarceration may extend to the families and communities of incarcerated persons (Wildeman and Wang, 2017). The Global Commission on Drug Policy has identified law enforcement practices, and its associated stigma, as a contributor to ongoing HIV morbidity (Global Commission on Drug Policy, 2012).

We propose a possible health-based theoretical framework of criminal justice that seeks to integrate multiple areas of social research in order to better understand the role that the criminal justice system may play as a social determinant of health among vulnerable populations, for STD risk in particular. First, we describe U.S. state laws that may increase one’s likelihood of interacting with the criminal justice system, particularly among persons subject to health disparities, and how the impacts of such interactions might continue through access to public programmes and employment. To our knowledge, this is the first analysis to describe both criminal punishments as well as non-criminal consequences of convictions in a way that allows for direct comparisons between jurisdictions. Second, in order to add context to our policy findings, we demonstrate associations between state-level STD rates and the estimated percentage of state populations convicted of a felony.

Methods

Statutes and regulations focusing on (1) drug possession and (2) the implications for legal rights on the basis of criminal convictions were collected using WestlawNext, a legal research database, from all 50 U.S. states and Washington D.C., effective as of November 2015. These laws were coded in Microsoft Excel by public health law research attorneys on topics of relevance using commonly-accepted qualitative research methods (redundant coding with reconciliation of coding differences; Tremper et al., 2010); descriptive statistics were then calculated, also using Excel. Topics were chosen based on their identification in the literature as potentially serving as a social determinant of health.

Given that a significant amount of research has examined the role of specific drugs in STD risk, we coded state punishment for possession of three different drugs: marijuana, crack cocaine and methamphetamines. For each of the drugs we examined, the coding included: (1) the minimum punishable possessed amount (in ounces); (2) if punished by incarceration, the minimum duration of this sentence (in days); (3) the classification of the possession charge (felony (punishable by more than a year of incarceration), misdemeanour (punishable by a year or less of incarceration), or non-criminal civil infraction (usually punishable by fines)); and (4) the existence of enhanced penalties for a subsequent convictions of the same drug possession charge. We examined a third possession charge because, of all states that provide an enhanced penalty upon a repeat drug possession conviction (n = 43), nearly all (n = 42) do so by the third offence (i.e. upon a second or third offence).

We also coded state laws that may affect individual rights on the basis of a criminal conviction, primarily those related to access to public assistance programmes and employment. These legal topics included: (1) life-time ineligibility for the Supplemental Nutrition Assistance Program (SNAP) or Temporary Assistance for Needy Families (TANF) based on a felony drug conviction; (2) whether criminal history may be considered in a public housing applications; (3) whether a misdemeanour criminal conviction results in mandatory ineligibility from licensure for an occupation within 14 U.S. Census Occupational Categories comprised of primarily lower-income occupations (United States Census Bureau, 2012); and (4) whether public or private employers may inquire about a job applicant’s criminal history on an employment application. The occupational licensure variable was based, in part, on the Council of State Governments’ National Inventory of the Collateral Consequences of Conviction (Council of State Governments, 2019).

To illustrate the plausibility of association between STD risk and interaction with the criminal justice system at the population level, we performed an exploratory analysis of state-level correlations between reported rates of STDs and the estimated percentage of the state population who are felons. Reported state gonorrhoea, chlamydia and primary and secondary syphilis case rates and populations were obtained from NCHHSTP AtlasPlus (United States Centers for Disease Control and Prevention, 2019). Estimated state-level numbers of felons, overall and stratified by supervision status (where the supervised population includes those incarcerated, on parole or on probation), were obtained from Shannon et al. (2017). We focused our analysis on the most recent year of available data, 2010.

Results

Minimum punishable amount and classification of drug convictions

States vary in the minimum amount of marijuana that an individual must possess for state punishment. Forty (78.4%) states punish possession of marijuana in any amount, seven (13.7%) states punish possession of more than one ounce and four (7.8%) states punish possession of more than two ounces (Table 1).

Table 1.

Minimum statutory punishable amounts of marijuana and first and third possession conviction classifications and penalties, by state in 2015.

In 2015, several U.S. jurisdictions had authorized the recreational use of marijuana. However, these laws are subject to limitations on the amount that can be legally possessed; we coded the minimum amount of possessed marijuana that could result in a criminal charge. All states punish first-time possession of crack cocaine and methamphetamines in any amount.

Criminal classification

Upon a first conviction of marijuana possession, 14 (27.5%) states required a minimum of a civil infraction or did not define the punishment, 36 (70.6%) required a misdemeanour conviction and 1 (2.0%) required a felony (Table 1). Many fewer states defined crack cocaine possession as a civil infraction/not defined (7; 13.7%) or misdemeanour (14; 27.5%), and many more required a felony (29; 56.9%). States sentenced methamphetamines similarly to crack in general; results are shown in Table 2.

Table 2.

Statutory punishments (in days) for a first and third possession conviction for crack cocaine and methamphetamines, by state in 2015.

Upon a third marijuana possession conviction, 20 (39.2%) states did not provide for enhanced penalties, 16 (31.4%) required a misdemeanour charge, 8 (15.7%) required a civil infraction or did not define the punishment and 7 (13.7%) required a felony. Sentencing disparities between marijuana versus crack and methamphetamines for a third possession conviction were similar to those found between these drugs for a first possession conviction.

‘Non-incarceration’ indicates that a penalty exists for possession, although not incarceration; ‘0’ indicates that incarceration is considered as a punishment, although the law does not specify a minimum duration.

Criminal punishments

State mandatory minimum punishments mirrored their classifications of these crimes. For first time marijuana possession, 12 (23.5%) states provided no minimum punishment, 38 (74.5%) provided for a non-incarceration penalty, 1 provided for incarceration of less than a year and no state provided a minimum punishment of a year or more (Table 1). For crack cocaine, fewer states provided non-incarceration penalties (29), and more provided incarceration of both less than a year (6) and more than a year (11); methamphetamine results were similar.

Upon a third conviction of marijuana possession, 20 (39.2%) states did not provide for enhanced penalties, 21 (41.2%) provided for a minimum non-incarceration penalty, 4 (7.8%) provided no minimum, 3 (5.9%) provided for minimum incarceration of less than a year and 3 (5.9%) provided for minimum incarceration of a year or more. For a third crack cocaine possession conviction, more states required incarceration of less than a year (6; 11.8%) as well as incarceration for a year or more (10; 19.6%). As compared to crack cocaine, a third methamphetamine possession conviction would result in incarceration for less than a year in fewer states (4; 7.8%) and incarceration for more than a year in more states (16; 31.4%).

Collateral consequences of convictions: Public assistance and employment

In one (2.0%) state, a felony drug conviction resulted in ineligibility for SNAP, in 6 (11.8%) it resulted in ineligibility for TANF and in 10 (19.6%) it resulted in ineligibility for both SNAP and TANF. In 34 (66.7%) states, a felony drug conviction did not affect an individual’s eligibility for TANF or SNAP (Table 3). Nine (17.6%) states prohibited both public and private sector employers from inquiring into criminal history on job applications, 14 (27.5%) prohibited public sector employers from doing so and 28 (54.9%) did not prohibit any employer from doing so (Table 3).

Table 3.

Statutory limitations on eligibility for public benefits programmes, and consequences for employment applications, based on criminal convictions, by state in 2015.

State	Public benefits			Employment
	TANF eligibility terminated upon felony drug conviction	SNAP eligibility terminated upon felony drug conviction	Public housing authority can consider criminal history in applications	Public employers can inquire as to criminal history of job applicants	Private employers can inquire as to criminal history of job applicants	Number of occupational licences limited by misdemeanour
Alabama				×	×	0
Alaska	×	×		×	×	4
Arizona				×	×	2
Arkansas				×	×	2
California			×		×	9
Colorado					×	2
Connecticut			×		×	1
Delaware					×	1
DC	×	×	×			1
Florida				×	×	3
Georgia	×	×			×	3
Hawaii						1
Idaho				×	×	0
Illinois						6
Indiana				×	×	5
Iowa				×	×	2
Kansas				×	×	2
Kentucky				×	×	3
Louisiana			×	×	××	4
Maine				×	×	7
Maryland					×	5
Massachusetts	×	××	×			2
Michigan				×	×	1
Minnesota						2
Mississippi	×	×		×	×	1
Missouri					×	5
Montana				×	×	2
Nebraska					×	2
Nevada				×	×	0
New Hampshire				×	×	7
New Jersey						6
New Mexico					×	2
New York	×	×	×			2
North Carolina				×	×	6
North Dakota	×	×		×	×	3
Ohio					×	6
Oklahoma	×	×			×	2
Oregon						3
Pennsylvania				×	×	3
Rhode Island			×			3
South Carolina	×	×		×	×	0
South Dakota				×	×	1
Tennessee					×	1
Texas				×	×	6
Utah				×	×	2
Vermont					×	0
Virginia					×	0
Washington				×	×	2
West Virginia	×	×		×	×	2
Wisconsin				×	×	7
Wyoming	×	×		×	×	1

SNAP: Supplemental Nutrition Assistance Program; TANF: Temporary Assistance for Needy Families programme.

Regarding public housing, seven (13.7%) states had laws allowing a public housing authority to consider an applicant’s criminal history.

Impact on professional licencing

A misdemeanour criminal conviction resulted in an inability to obtain a professional licence in 1–3 of the occupational licensure categories we analysed in 29 (56.9%) states; nine (17.6%) limited licensure within 4–6 of the categories and four (7.8%) limited licensure within 7–9 of the categories (Table 3).

Associations between STD rates and percentage of state population with felony conviction

The percentage of a state’s population who had a felony conviction and was currently supervised in 2010 was significantly correlated (p < 0.001) with state gonorrhoea, chlamydia and syphilis rates, with correlations of 0.556, 0.570 and 0.503, respectively (Table 4). The percentage of the state’s population that had a felony conviction and was ever supervised (i.e. currently or formerly) was significantly correlated with state gonorrhoea (0.354) and chlamydia (0.311) rates at p < 0.05 and was associated with state syphilis rates (0.415) at p < 0.01.

Table 4.

State-level Pearson correlation coefficients between estimated percentage of state population who are felons and state-reported case rates of gonorrhoea, chlamydia and syphilis, 2010.

	State gonorrhoea rate	State chlamydia rate	State syphilis rate
Percentage of state population who are felons, currently supervised	0.556a	0.570a	0.503a
Percentage of state population who are felons, formerly supervised	0.229	0.169	0.314c
Percentage of state population who are felons (total)	0.354c	0.311c	0.415b

^ap < 0.001;

^bp < 0.01;

^cp < 0.05.

Discussion

Variations across states in criminal punishment for drug possession, as well as the legal consequences of convictions for drug possession offences, result in markedly different treatment and consequences for the same behaviours. Generally, states provided more substantial penalties for crack cocaine and methamphetamines than marijuana; however, leniency with respect to marijuana was not universal. One state classified first offence marijuana possession as a felony with mandatory incarceration, and seven states classified a third offence as a felony.

The laws we analysed sometimes differed without a discernible pattern. While state laws generally punished crack cocaine and methamphetamines similarly, states differed in how they sentenced the same infraction. For instance, two states (California and Maine) sentence crack cocaine possession as a felony yet methamphetamine possession invokes a lesser sentence (misdemeanour or civil infraction), whereas one state (Wisconsin) sentences methamphetamine possession as a felony while crack cocaine possession invokes a lesser sentence. These differences reflect diverse state policy approaches to the issues facing jurisdictions and may provide for useful research questions in future analyses. They also reflect a differential individual risk of a felony conviction across states on the basis of the same conduct and may impact STD risk for subpopulations differently depending on the drugs used.

We also found that most states impose additional restrictions – collateral consequences of conviction – on persons with drug convictions. Such restrictions may limit access to government services, public housing or employment and licensure for some occupations: services that may be especially important to vulnerable populations that are at heightened STD risk. While states are generally consistent in how they regulate eligibility for TANF and SNAP, and in how they regulate occupational licences, states often did not consistently regulate between these variables (e.g. be consistently lenient for both occupational licensure and TANF/SNAP).

Nevertheless, our findings, consistent with previous research, demonstrate a complex regulatory environment for possession of illegal drugs in the U.S., and the consequences of such possession. Furthermore, we found the percentage of a state’s population that has been convicted of a felony to be significantly correlated with state chlamydia, gonorrhoea and syphilis rates: this serves to illustrate the importance of considering how criminal justice-related laws might impact STD morbidity. While causality cannot be inferred from our results, since our analyses were exploratory in nature, there exist many plausible explanations: they may directly impact one another, in either direction, or this relationship may be best characterized as a set of factors that are associated with one another. These factors may include criminal justice system interaction, poverty and other social determinants and STD risk. The collateral consequences of conviction that we analysed may be one explanation, thus serving as SDoH and a pathway through which criminal laws affect STD risk. This theoretical framework may be used to clarify relationships between these factors by identifying aspects of state drug regulation that could (1) make interactions with the criminal justice system more likely, (2) increase the duration of incarceration and severity of sentence and (3) increase barriers to employment and public programmes intended to decrease poverty and its impacts.

To further complicate this issue, stigma results from each of these factors and may increase an individual’s risk for all factors. As such, it is possible that these factors create a ‘positive feedback loop’ that self-amplifies over time. Crime, poverty, drug use and STD risk are all issues that negatively impact society. To the extent that they are related to one another, developing strategies to address the entry points into this cycle, as well as opportunities for removal from this cycle, may have positive social impacts beyond addressing any one factor in isolation.

This analysis has limitations. For marijuana, we captured penalties related to the minimum punishable amount of marijuana possessed. We did not examine maximum penalties in this analysis, although these also vary across states. Additionally, state enforcement of drug laws can depend on factors beyond the text of the law; in particular, changes in federal and local policies may impact the extent to which these policies affect health, and actual punishments may not always align with statutorily prescribed punishments. Finally, marijuana policy across many U.S. states has changed since 2015; our findings with regard to marijuana should be interpreted accordingly. However, it may take a significant amount of time for recent changes in marijuana policy to change any role these policies might have played as a potential SDoH given the enduring nature of criminal conviction-related stigma.

This research focuses on variation across states in terms of one entry point into this cycle: state drug possession policies and their outcomes. Furthermore, it provides a theoretical framework of state classifications that could be used for future public health research. Policymakers, researchers and stakeholders may find our framework a useful, simplified model for conceptualizing this complex system of interrelated factors, as well as for considering the impact of policies indirectly related to convictions on persons who have already been punished by the criminal justice system.