Magazine | October 3, 2011, Issue

Crime, Punishment, and Rehabilitation

When they’ve done the time, expunge the crime

People on the right tend to be enthusiastic about yoking men and women in marriage and about locking bad guys up in prison. To what extent, however, does the latter practice undermine the former?

Research verifies common sense by showing that married men are less likely than single men to break the law. Getting married is thus a good way for a man to help himself avoid getting locked up. But what about single men who have already been charged with committing crimes? They are less attractive marriage partners, not just because they may be incarcerated, but because rap sheets are not conducive to good-paying, family-supporting jobs. By not marrying, they lose a major source of support in straightening out their lives. How can they escape this trap?

Before suggesting a few ideas — which will be short of far-reaching, given the vast size of the problem — let’s look at some discouraging numbers. (Unless otherwise stipulated, references to “prison” and “incarceration” are to state and federal penitentiaries, not local jails.)

‐ The incarceration rate in the United States is approximately seven times the average for Western Europe, and is approached elsewhere only by a few tiny states and some former Soviet republics.

‐ At year end 2009, there were more than 1.6 million inmates in federal and state prisons. During the twelve-month period ending June 30, 2009, 12.8 million inmates had been admitted to local jails.

‐ As of the early 2000s, more than 11 percent of American men could expect to go to prison at some time in their lives.

‐ Across the country, studies consistently show that more than 40 percent of low-income men who father a child out of wedlock have already been in jail or prison by the time their first son or daughter is born.

‐ One in four black men born between 1975 and 1979 had experienced imprisonment by 2009. The comparable ratio for white men was one in 19. The chance of having been imprisoned for black men in this cohort who had not graduated from high school was two in three.

‐ As of 2000, about 25 percent of black men between the ages of 22 and 30 were married. Among incarcerated black men, the marriage rate was less than half of that, 11 percent.

Statistics such as these powerfully raise the question of whether the United States locks up too many people. This issue has become more salient over the last three decades as prison populations have exploded, in large part because of ever-increasing numbers of drug convictions, along with a trend toward stiff mandatory sentences for crimes in general, including life or very long terms for a third felony conviction (“three strikes, you’re out”). Over the last third of a century, the U.S. incarceration rate has grown about fivefold, from approximately 100 to approximately 500 prisoners for every 100,000 people.

But it’s hard to accept claims that the American judicial system is too quick to put people away, given that nearly every time someone is arrested for some heinous crime, his rap sheet is found to be pages long, yet he was still on the street. More than 90 percent of inmates in state prisons are either violent offenders or convicted recidivists. This is no small matter: A significant reason that crime rates have decreased, often dramatically, over the last two decades is that a lot of potential murderers, robbers, and rapists have been behind bars.

Incarceration aside, though, an inescapable conclusion is that far too many Americans, for whatever reasons, commit far too much crime. How does marriage help reduce this problem? Or to look at things another way, how does the absence of marriage increase it? Here’s an illustrative example.

#page#As recounted by demographer Linda J. Waite and journalist Maggie Gallagher in their invaluable 2000 book The Case for Marriage (still the best research roundup on the subject), a study of 500 chronic juvenile delinquents, aimed at determining why some young men abandoned criminal behavior while others continued it into their early 30s, found that a good marriage made more than a little difference. The men in the study who improved their ways were very similar to those who did not in terms of measurable childhood characteristics such as poverty rates and IQs. They also had been rated as equally “difficult” and “aggressive” and had been arrested as teenagers about as often. Nevertheless, over time, “those who entered a good marriage sharply reduced their criminal activity” — by about two-thirds — compared with men who did not establish good marriages or did not marry at all.

Not at all unrelatedly, the U.S. Justice Department reported in the mid-1990s that single and divorced women were four to five times as likely as married women to be crime victims (although widowed women were the least likely to be victimized). Single and divorced women were three times as likely as married women to be the victims of aggravated assault, and almost ten times as likely to be raped. The evidence, writes Gallagher, is “overwhelming that being unmarried puts women at special risk for domestic abuse,” since a large body of research shows that marriage is a much less dangerous arrangement than cohabitation.

With public-safety considerations always paramount, what steps should we take to reduce the destructiveness of past incarceration? More specifically, outside of conventional reentry programs and faith-based programs such as Prison Fellowship (in which I have greater albeit still limited confidence), how can we remove obstacles to ex-offenders’ getting and keeping decent jobs? Let me suggest several modest ideas, preceded by a brief word about a worsening impediment that reduces the employment prospects for people with records.

The terms “collateral sanctions” and “collateral consequences” are used to describe the legal and extralegal (which is to say, much broader and more insidious) blockages to employment and other benefits for ex-offenders. Collateral sanctions include any legal penalty, disability, or disadvantage imposed automatically upon conviction: for example, ineligibility for various jobs, such as school-bus driver or property manager for an apartment building. Collateral consequences encompass the full range of bad things and debilitating restrictions — official or unofficial, codified or not — that regularly confront people after they’ve served their sentences. In the words of lawyer Margaret Colgate Love, who both practices in and writes about this area, collateral consequences include not only the specific sanctions mandated by the judicial system, but also the “degradation of social status often called the ‘stigma of conviction.’”

These are huge issues, increasingly compounded by rapid growth in the number of companies providing potential employers with instantaneous online access to everything in a person’s criminal record. Also increasingly accessible is every scrap of incorrect information that may live on in the file of a man or woman who is straining to play by the rules.

“While it has never been easy for a former convict to secure a full-time job,” reporter Mike Meyers wrote several years ago in the Minneapolis Star Tribune, “the rise of the electronic background check and fear of lawsuits among potential employers are creating ever-higher barriers to work for those leaving prison.” In 2004 the Wall Street Journal reported that about 80 percent of big U.S. companies were doing criminal-background checks. And if 80 percent of big employers were doing checks back then, it’s hard not to believe the proportion is bigger now.

#page#In response to all this, here are three suggestions:

Review collateral sanctions with an eye to safely reducing their number and duration. When compared with all the other problems former inmates face in trying to turn their lives around, laws and rules prohibiting them from filling certain specific jobs are usually not the main obstacle. Most of these will have little or no impact on ex-cons’ lives. In Ohio, for example, people convicted of a felony, or who have pleaded guilty to a misdemeanor, are forever prohibited from serving as a police chief or even a constable. And no one in Ohio can be an auctioneer or apprentice auctioneer for ten years if convicted of a felony or any other crime involving fraud. Moreover, there are many proper and essential restrictions across the country when it comes to felons’ working anywhere near children and other vulnerable people.

All that said, some states have collateral sanctions that are more the product of overkill than of necessity. For example, Ohio disqualifies anyone with a “second conviction . . . arising from two or more separate incidents” from ever getting a commercial driver’s license. And there are many other examples from around the country, often pertaining to marijuana convictions.

Consider the implications of widespread Internet availability of criminal records. I don’t suggest restricting public access to criminal records, because the problem here is not access itself but permanence. I have little faith that any law mandating the removal of certain records from public scrutiny, in order to protect the privacy and good name of individuals who deserve to be so protected, can withstand the onslaught of high technology. An ex-offender’s name can be removed from the official government register, but it would be very hard to scrub it from all records and caches of data on the Internet.

It’s unfair for people to carry around arrest records for the rest of their lives when they’ve never been guilty of anything beyond failing to pay parking tickets. And it is especially unfair if they were found innocent of whatever they were arrested for. Yes, there are procedures for sealing or expunging such information, but it always takes time and often takes money to do so, and by the time all the bureaucratic hurdles have been jumped, serious damage can already have been done, since documentation of the arrest may be forever recorded in cyberspace. By serious damage, I mean unfairly being denied jobs, housing, and other opportunities and benefits. Viewing the issue in terms of race, we should remember that many of the large number of black men arrested every year get picked up because they were simply in the wrong place at the wrong time; when that happens, the injustice should not afflict them for the rest of their lives.

One possible remedy would be for police to make greater use of citations, which don’t necessarily wind up on the Internet, instead of actual arrests. This idea, which was proposed several years ago by the Minneapolis-based Council on Crime and Justice, would help a significant number of people avoid life-scarring records. “The police,” the council urged, “should use the citation process for low-level offenses . . . unless an arrest is justifiable because the offender presents an articulable threat to public safety.”

Investigate the safest possible ways of helping former offenders cleanse their names. The traditional ways of helping individuals who have completed their sentences to get on with their lives have been legal and administrative devices, such as pardons and the expunging of records. The aforementioned Margaret Colgate Love, whose practice concentrates on pardons and relief from collateral consequences, has admitted that expunging records requires a willingness to “rewrite history,” something that is “hard to square with a legal system founded on the search for truth.” Also, to the degree that it hides an individual’s criminal record, “it tends to devalue legitimate public-safety concerns.” Nonetheless, she writes, granting a clean slate is an indispensable part of fair treatment for reformed criminals — essential to justice and to reducing recidivism.

#page#While Love fails adequately to appreciate the public’s fear of growing crime in the 1970s and 1980s, which led governments at all levels to come down harder on criminals, she puts her finger on the central question when she quotes the legal scholar Aidan R. Gough: “We sentence, we coerce, we incarcerate, we counsel, we give probation and parole, and we treat — not infrequently with success — but we never forgive.”

How, exactly, to forgive — safely?

Drawing on a model penal code drafted by the American Law Institute a half century ago, Love, in a 2003 article, offered a route worthy of consideration: reintegrating offenders into society “not by trying to conceal the fact of conviction, but by advertising the evidence of rehabilitation.” She and the model code proposed doing this in a two-tiered process. First, the original sentencing court “may issue an order relieving all legal disabilities after an offender has satisfied his sentence.” This would remove statutory bars to employment, housing, and the like. Second, after a further period of “law-abiding conduct” (the model code suggested five years), the sentencing court “may issue an order ‘vacating’ the convictions.” In practical terms, this means setting the convictions aside. What might such an approach accomplish that others would not?

The proposed scheme, Love argues, gives the offender an incentive to pursue rehabilitation and satisfies the need for a ritual of reconciliation. In relying primarily on the sentencing judge, it provides a more reliable and accessible process than pardons or other executive acts, and a more meaningful one than automatic statutory provisions. In contrast with expungement, it does not sacrifice the legitimate concerns of law enforcement or undermine respect for the value of truth in our legal system.

Would such a system, which essentially became law in Illinois in 2010, help some people move on with their lives in good ways? It would seem so. Would the reform likewise increase the likelihood of some ex-offenders’ marrying? It would seem so again, if only in fairly small numbers. Yet, stepping back and surveying the larger nexus of crime and marriage, it’s impossible not to recognize how far beyond sad the whole problem is, starting with millions of young men, disproportionately of color, whose lives are crippled from a very young age because of criminal behavior. What a ruin for themselves, their families, and our nation — and what an opportunity for creative policies that can reinforce family-oriented goals even as they serve the interests of justice.

– Mr. Pearlstein is the founder and president of Center of the American Experiment, in Minneapolis. His new book, From Family Collapse to America’s Decline, has just been published by Rowman & Littlefield.

Mitch Pearlstein is the founder and senior fellow at Center of the American Experiment in Minneapolis.

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