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.