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.