The National Association of Criminal Defense Lawyers is sounding the alarm about the devastating collateral effects of incarceration.
Collateral damage occurs in any war, including America’s “War on Crime.” Ironically, our zealous efforts to keep communities safe may have actually destabilized and divided them. The vast expansion of the nation’s criminal justice system over the past 40 years has produced a corresponding increase in the number of people with a criminal record. One recent study estimated that 65 million people — one in four adults in the United States — have a criminal record. At the same time, the collateral consequences of conviction — specific legal restrictions, generalized discrimination and social stigma — have become more severe, more public and more permanent. These consequences affect virtually every aspect of human endeavor, including employment and licensing, housing, education, public benefits, credit and loans, immigration status, parental rights, interstate travel, and even volunteer opportunities. Collateral consequences can be a criminal defendant’s most serious punishment, permanently relegating a person to second-class status. The obsession with background checking in recent years has made it all but impossible for a person with a criminal record to leave the past behind. An arrest alone can lead to permanent loss of opportunity. The primary legal mechanisms historically relied on to restore rights and status — executive pardon and judicial expungement — have atrophied or become less effective.
As encouraging as the pan-ideological move toward criminal justice reform has been, it also is a recognition that we’ve been enforcing bad policies. Changing those policies going forward, difficult as that has been, is only half the battle. The other half is mending the damage those policies have done, at least to the extent that it’s mendable. So NACDL is pushing for a pretty dramatic shift in how we think about crime, criminals and criminal records.
It is time to reverse this course. It is time to recognize that America’s infatuation with collateral consequences has produced unprecedented and unnecessary collateral damage to society and to the justice system. It is time to celebrate the magnificent human potential for growth and redemption. It is time to move from the era of collateral consequences to the era of restoration of rights and status. NACDL recommends a broad national initiative to construct a legal infrastructure that will provide individuals with a criminal record with a clear path to equal opportunity. The principle that individuals have paid their debt to society when they have completed their court-imposed sentence should guide this initiative. At its core, this initiative must recognize that individuals who pay their debt are entitled to have their legal and social status fully restored. Until recently, defense lawyers have not regarded avoiding and mitigating collateral consequences as part of their responsibility to the client. This has changed, in part because of court decisions recognizing collateral consequences as an integral part of the criminal case, and in part because of the increasing social and economic significance of collateral consequences themselves.
I think this is right. We rarely hear the word redemption in discussions of criminal justice policy. “Once a criminal, always a criminal” is taken as truth. But crime statistics show that arrest rates peak at around age 20, then quickly drop in the decades that follow. One easy way to ensure that criminals re-offend is to make it as difficult as possible for them to integrate into society upon their release — be it through registries, restrictions on where they can live and work or parole programs that keep them buried in fines and chained with restrictions.
The NACDL recommends specific policy changes to address these problems. But the more important message from this report is to get people thinking about the very idea of redemption. One NACDL suggestion, for example, is to make criminal records less public, which would make it more difficult for employers to discriminate against ex-prisoners. That’s also the thinking behind the “ban the box” movement, which is trying to get prohibitions on putting the criminal history question on job applications.
But here’s a more radical thought: Maybe we start to see, say, a couple of drug convictions not as a reason to dismiss a job applicant out of hand but as an opportunity to display humanity — perhaps to give that person extra consideration. The data analytics firm Evolv has found that people with felony records are actually slightly more productive than hourly workers with clean records, perhaps because they feel compelled to prove themselves. Other studies have shown that once an ex-prisoner has been clean for 10 years, he’s no more likely to re-offend than someone with no criminal record. There are obvious exceptions: A school or nursing home wouldn’t want to hire someone convicted of a sex offense, for example. And there will always be some some understandable hesitancy before trusting someone who has been convicted of or even merely arrested for a felony. But maybe it’s time to start actively challenging that hesitancy, particularly with older former prisoners.
There now seems to be widespread acceptance of the notion that we’ve been living with a criminal justice system that is excessively punitive and inherently unfair, and that these problems have ravaged entire communities. Changing the policies at fault is a start. But we also have a shared responsibility to do what we can to undo the damage those policies have done to a couple of generations of people. We could start by spreading an idea that already resounds across most faiths, political ideologies and belief systems: People can be redeemed.