Lahny Silva
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Professor of Law,
IU Robert H. McKinney School of Law
Community Engagement at its “Best”: A Holistic Approach to Prisoner Reentry
Professor Lahny Silva's research centers on improving outcomes around offender reentry and criminal recidivism. These issues impact public safety. Successful reentry is critical not only to the stability of the individual offender, but also to the strengthening of family units and the improvement of overall community health. Criminal recidivism typically means more crime. Moreover, high rates of imprisonment are geographically clustered in “hot spots” that are predicted by social factors correlated to urban disadvantage - poverty, unemployment, family disruption, and racial seclusion. These communities overwhelmingly bear the burdens associated with imprisonment and are not safer. Sociological studies report that these communities are considerably damaged when those released from prison return with reduced political, economic, and social opportunities and status. Successful reentry can make all the difference.
Professor Silva's research project hopes to build on the community work of the IU McKinney School of Law reentry clinic by forming a partnership with the IU School of Social Work. Focusing on civil legal barriers, the reentry clinic assists people released from prison navigate reentry related issues such as getting valid driver's licenses, securing employment, etc.. To better facilitate a successful reintegration, best practices encourage a holistic approach. Social work fills this gap.
Professor Silva's translation of research into using the reentry clinic to bring hope and help to an often neglected and overlooked group of people that do not typically have access to systems of justice is another excellent example of how IUPUI's faculty members are TRANSLATING their RESEARCH INTO PRACTICE.
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Item The Trap Chronicles, Vol. 2: A call to reconsider 'risk' in federal supervised release(Maryland Law Review, 2022-07-27) Silva, LahnyCorrectional supervision is one of the biggest traps in the criminal justice system. The current system involves a complicated web of vague statutes and amorphous rules set on shaky ideological ground. At last count, close to 4 million people, or 1 in 66, were under some form of state or federal supervision in the United States. This is an improvement from 1 in 31. And like most matters in criminal justice, race plays a correlative role with Black adults four times more likely as their White counterparts to be under correctional control and close to ten percent of the African American population under some form of supervision. While the War on Drugs is infamous for the institution of harsh sentences for drug offenders and the consequent mass incarceration of millions in American prisons, scant attention is paid in the legal academy to the battles waged in the nether land of correctional supervision. The irony is that the biggest explosion during the War was not in the prisons. Instead, it was in post-imprisonment supervision, a massive component of the federal carceral state, where the most pernicious bombs were detonated. The rules and regulations enacted during the War created a post-imprisonment structure that continues to keep prisoners hostage after release – under continued correctional surveillance with the threat of re-incarceration constantly looming. As we enter a new era in criminal justice, it is critical that we include correctional supervision in our reform discussions. This Article hopes to encourage a fresh socio-legal frame to examine the current rules and policies. More specifically, this paper aims to inform decision-makers about the structural condition of supervised release and offer alternatives to current models and practices. In an era of criminal justice reform, legal academics have an opportunity to make a significant contribution by reviewing current rules and offering solutions based on sound theory and recent data. Evidence of this type often comes from other disciplines, such as criminology, sociology, and psychology, and should be considered by decision-makers when crafting rules and making policy choices. Such interdisciplinary cross pollination allows for the creation of legal rules based on comprehensive and often more current data as opposed to policies based on wartime theory and dated models of supervision. In doing so, we should reflect on the theoretical foundations of supervision with an aim towards creating a firmer frame and improve our practices. This paper focuses solely on the system of federal supervised release. The decision to concentrate on this form of correctional supervision was chosen for a myriad of reasons. First, federal legislation often prompts state legislation and regularly serves as the legislative model at the state and local levels. This is particularly true of criminal justice policy over the past forty years, and specifically with origin and evolution of supervision in America. And although much of the discussion applies to supervision practices in a general sense, the need to focus on one specific supervision approach was critical to an extensive case study examination. Second, federal supervised release is now the dominant form of federal supervision. In the federal system, probation and supervised release are governed by the same statutory and regulatory rules and share the same purpose (public safety and rehabilitation) but are imposed for different reasons. At the federal level, probation is currently a criminal sentence reserved for low level offenders, while supervised release is imposed in addition to a prison sentence. During the War on Drugs, the imposition of probation decreased significantly, while supervised release was imposed regularly. Finally, I selected federal supervised release because my reentry clinic works with individuals on federal supervised release. This paper is dedicated to them.Item The Trap Chronicles, Vol. 1: How US housing policy impairs criminal justice reform(Maryland Law Review, 2021-08-12) Silva, LahnyClose to fifty years after President Richard Nixon’s 1971 declaration of a War on Drugs, America is attempting to remedy the aftermath. Today, the War is generally considered a failure. Despite all the arrests and prosecutions, the War has been unsuccessful in accomplishing its two touted objectives: eliminating drug trafficking and eliminating drug addiction in the United States. America paid dearly; it was extremely expensive, disproportionately impacted communities of color, and took hundreds of thousands of prisoners. This final cost was highlighted when the “the land of the free” earned the number one spot for having the highest incarceration rate in the world. Recognizing the substantial costs associated with wartime criminal laws and sentencing practices, a criminal justice reform is currently sweeping through legislatures across the country. In the spirit of fair sentencing and second chances, legislatures are commissioning studies of sentencing regimes and modifying criminal penalties with retroactive application. The return of judicial discretion with the United Supreme Court’s decision in United States v. Booker now allows punishments that deviate from otherwise strict determinate criminal sentences. And clemency is making a comeback, with both Presidents Obama and Trump utilizing the executive power to commute overly punitive terms of imprisonment. Over 100 days into his administration, President Biden has not yet made his views clear on clemency. Ex-offender reentry as a substantive and procedural legal issue is now considered a legitimate legislative concern, with Congress putting federal dollars behind evidence-based programs proven to reduce recidivism. States are following suit. Although this is a positive step in undoing decades of ineffective policy, other areas of law impacted by the Drug War must also be reviewed and modified if the damage caused is to be truly rectified. Wartime legislation contributed to the proliferation of not only criminal statutes and sanctions, but also numerous civil penalties associated with drug-related suspicion and/or conviction. Drug war policies bled over into civil and administrative areas of law, manifesting in rules that work as a form of further government control—wreaking havoc on poor, mostly minority communities that already absorbed the bulk of the War’s attacks on the criminal front. Commonly referred to as the “collateral consequences of conviction” in the academic literature, these civil statutes and administrative regulations are pervasive and pernicious, hindering the transition from prison to society. Collateral consequences affect almost every part of one’s life: areas that are essential to productive citizenship and socio-economic stability. As the War seems to be winding down on the criminal front, other rules continue to endure and serve as the predicate for intensive regulation and exclusion in civil and administrative matters such as voting, employment, and housing. This Article contributes to the existing scholarship on the War on Drugs, collateral consequences, and offender reentry by reviewing federal criminal and housing laws in the aftermath of redemptive rhetoric that has been employed to pronounce a retreat from the War. It applies drug war criticisms to federal housing policy and argues that the ideological shift away from “tough on crime” to “second chances” in the criminal context must be extended to national housing policy. I argue that wartime costs associated with criminal law are mimicked in the federal housing policy context, a battleground during the War on Drugs. More specifically, I argue that with wartime policy deeply penetrating the national housing agenda, the drug laws continue to serve as a justification to inflict socio-economic violence on targeted groups. This violence takes the form of intensive regulation in federal housing programs and operates as an additional layer of criminalization and social control on an already powerless group. In neglecting to review wartime policies beyond the criminal law, this Article contends that policymakers are creating an ideological schism that has manifested in an inconsistent legislative agenda. There are thus two systems: one where prisoners of the War are to be viewed as redeemed and worthy of a second chance, and the other where prisoners of the War continue to be demonized and excluded from mainstream society. In the criminal context, the government is pivoting from taking people out of their communities and incarcerating them to now releasing the legislative pressure valves to open the prison gates and release prisoners of the War. The question is: Where will they all live? Housing is identified as the primary barrier for those reintegrating. During this reform movement, legislators are overlooking collateral consequences affecting housing prospects for criminal justice-involved individuals, especially drug offenders, thus continuing the War on the civil front. This Article reasons that the next natural step in the retreat from the War’s policies is to review and modify Drug War legislation that transcends criminal law. This is a necessity if the proclaimed political promise of a second chance is to be truly fulfilled. If it is not, then the redemptive rhetoric is nothing but a trap—a political ploy used to pander to public opinion on the criminal justice front, while laying cover to the grave legislative mistakes made in the shadows on the civil front during the War.Item Community Engagement at its “Best”: A Holistic Approach to Prisoner Reentry(Center for Translating Research Into Practice, IU Indianapolis, 2022-10-16) Silva, LahnyThe 2022 Charles Bantz Community Fellowship was awarded to Lahny Silva, Professor of Law in the IU Robert H. McKinney School of Law. The project “Community Engagement at its “Best”: A Holistic Approach to Prisoner Reentry” is a collaboration between Thomas Ridley’s 1 Like Me, the Martin Luther King Community Center, and the Marion County Prosecutor's Office. The goal of the project is to utilize this collaborative effort in the reentry clinic to reduce recidivism and enhance public safety at a grassroots level in Indianapolis by helping released people from prison successfully navigate reentry related issues.Item Ringing the Bell: The Right to Counsel and the Interest Convergence Dilemma(2017) Silva, Lahny R.Item MUSCLE: Mentoring Untenured Scholars for Clinical and Legal Scholarship Excellence(Office of Academic Affairs, IUPUI, 2015-02-02) Shaver, Lea; Dutton, Yvonne M.; Morris, Emily; Ryznar, Margaret; Silva, Lahny R.; Winters, Diana; Huffman, Max; Nguyen, Xuan-Thao; Pitts, MichaelItem MUSCLE: Mentoring Untenured Scholars for Clinical and Legal Excellence(Office of Academic Affairs, IUPUI, 2016-09-16) Shaver, Lea; Dutton, Yvonne M.; Silva, Lahny R.; Ryznar, Margaret; Hagan, Carrie; Winters, DianaThis poster describes the progress and lessons learned as a result of newly implemented Faculty Mentoring Program in the Robert H. McKinney School of Law.Item Item Collateral Damage: A Public Housing Consequence of the "War on Drugs"(2015-11) Silva, Lahny R.Often automatic upon a conviction, collateral consequences work to relegate individuals to the status of second-class citizen by the systematic deprivation of opportunity in all aspects of life. Shockingly, these penalties are not aimed solely at ex-offenders. Individuals arrested frequently are denied access to opportunity by virtue of their interaction with the criminal justice system. In the context of public housing, even an arrest is not required for the imposition of collateral consequences. Instead, a public housing agency employee, without having to satisfy any statutorily mandated burden of proof, may make a determination that a household member or guest has engaged in “drug-related criminal activity,” terminate the household from public housing assistance, and subsequently evict the family. This Article hopes to add to the existing scholarship and advocacy regarding exclusionary federal housing policies. It is meant not only to supplement the collateral-consequences literature by identifying and examining additional issues in the administration of federal housing policy, but also to draw attention to the inequities inherent in the current system. More specifically, this Article explores federal termination policies and the way in which they are administered by local public housing authorities (PHAs). I argue that federal law grants an unwarranted amount of discretion to PHAs in assessing cause for exclusion from the program and also fails to provide sufficient statutory and regulatory guidance in the enforcement of PHA lease agreements. Reviewing alleged “drug-related criminal activity” lease violations through a criminal law lens may assist PHAs in making appropriate termination decisions. With this, I recommend that a framework be established requiring PHAs to meet a statutorily mandated burden of proof prior to a “drug-related criminal activity” termination. This standard ought to focus on such activity through a criminal law frame.Item Clean Slate: Expanding Expungements and Pardons for Non-violent Federal Offenders(2010) Silva, Lahny R.Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states. The “tough on crime” rhetoric of the 1980s and 1990s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, “truth in sentencing” laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population. However, unlike the states the federal government does not have a legal mechanism in place adequately reintegrating federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism. This is a price tag the United States can no longer afford to pay. This Article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to rid their slates of their criminal histories. Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders. First, this Article examines post-conviction penalties and contemporary recidivism trends. Second, this Article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for non-violent offenders to re-enter mainstream society. This Article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not practically or politically feasible. Moreover, the two existing federal post-conviction remedies--pardons and judicial expungements-- are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities. Using state post-conviction mechanisms as examples, this Article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (U.S.S.C.) create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions. With a Second Chance Advisory group, the U.S.S.C. could be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs.