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June 20, 2011

"Administering Justice: Removing Statutory Barriers to Reentry"

The title of this piece is the title of this new forthcoming article from Joy Radice now available via SSRN. Here is the abstract:

After years of swelling prison populations, the reentry into society of people with criminal convictions has become a central criminal justice issue.  Scholars, advocates, judges, and lawmakers have repeatedly emphasized that, even after prison, punishment continues from severe civil penalties that are imposed by federal and state statutes on anyone with a conviction.  To alleviate the impact of these punishments, they have increasingly endorsed state legislation that creates certificates of rehabilitation.  Seven states offer these post-conviction certificates, and six others proposed such legislation in 2011.  Many look to New York’s statute as the best model because it is the oldest and most robust.  Yet no article has examined New York’s experience with Certificates of Rehabilitation.

This Article draws lessons from the fifty-year history of New York’s Certificates of Rehabilitation to describe features of an ideal administrative mechanism that removes statutory barriers to reentry.  I argue that a model Certificate of Rehabilitation statute will have a strong enforcement mechanism and clear directives for administering authorities.  Successful implementation also requires committed administrative leadership and an effective means for making certificates accessible to the population they serve. Certificates of Rehabilitation do not erase a person’s criminal history, but they offer legal and social recognition that after a criminal conviction, a person deserves a second chance.

June 20, 2011 at 03:29 PM | Permalink

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Comments

This just sounds like more false hope for those trying to turn their lives around. I just can't see anything like this happening in the near future on a federal level. Ever piece of federal legislation that's come up over the past several years to address this has died a slow death and never made it out of committee. Change will only happen in this area if it's championed, promoted and pushed on the inside by forward thinking individuals. Which I guess automatically excludes politicians, DOJ bureaucrats and the likes in control at the present.

Posted by: james | Jun 20, 2011 6:08:41 PM

"This just sounds like more false hope for those trying to turn their lives around."

Exactly James. It is way past the time that lawmakers should get off the pot and pass serious legislation like Congressman Steve Cohen's "Fresh Start Act" or Congressman Charles Rangel's "Second Chance Act". These two pieces of legislation will allow at least some first time non-violent federal offenders an opportunity to seek expunction of their record. Anything else is just empty rhetoric and pandering by politicians seeking election.

Certificates of Rehabilitation may remove some statutory barriers to reentry but do they eliminate the stigma of a federal felony conviction and denial of employment to ex-offenders who have long since paid their debt?

Posted by: Thomas | Jun 20, 2011 6:46:51 PM

as long as any IDIOT can pull up your whole life on the internet not a CHANCE IN HELL!

Posted by: rodsmith | Jun 21, 2011 1:44:31 AM

Can a certificate of rehabilitation qualify one for a lawyer license in NYS, to automatically pass the character portion of the licensing process? Start there to avoid hypocrisy.

A huge barrier is tort liability of employers for negligent hiring, negligent entrustment. These liabilities should be addressed.

Posted by: Supremacy Claus | Jun 21, 2011 4:19:24 AM

I am reluctant to admit it, but I agree with SC on this one. Some companies have lawyers who as a large part of their job review and give advice on liability consequences on hiring someone with a criminal record. This does need to be addressed.

Posted by: David | Jun 21, 2011 9:43:25 AM

"I am reluctant to admit it, but I agree with SC on this one."

LOL, as rare as it is I have to agree with you David.

As regards addressing the issue mentioned as well as Rod's right on the mark comments, legislation such as I mentioned in my previous comment would handle both of these issues very nicely. At least for a large number of ex-offenders.

If an individual is granted relief under the provisions of the legislation, to quote from the Rangel bill, the relief granted "shall restore the individual to the status such individual occupied before the arrest". In addition, the legislation of both Congressman Rangel and Cohen levies penalties for un-authorized disclosure after expungement is granted.

Posted by: Thomas | Jun 21, 2011 12:17:27 PM

Why is the public any more likely to credit a Certificate of Rehabilitation than it credits the last government report on Progress on the Deficit?

No fair-minded person denies that ex-inmates should be given a chance. I believe that and have acted on that belief.

The problem is that barriers to re-enty consist less of statutory restrictions than of social attitudes. Those attitudes view with concern the risks of hiring ex-inmates (as David correctly implies). The stigma of conviction is principally something that will linger no matter what the government does; it's not mainly a governmental problem, it's mainly a cultural phenomenon. Once you've done wrong, you have to go the extra mile to earn being trusted again. This is a fact of life the government can't change

Posted by: Bill Otis | Jun 21, 2011 1:32:06 PM

"I believe that and have acted on that belief."

Yep, good old Bill gave an ex-offender a job fetching and carrying but would he ever allow him to have his record cleared so he can get a real job?

Posted by: Thomas | Jun 21, 2011 9:14:17 PM

Thomas,

When you as a business owner (or even not an owner but someone in charge of hiring or even just giving a recommendation) are faced with two otherwise equal applicants, one with a criminal record the other without, what possible incentive is there to go with the putatively former criminal? Especially now with the way the economy is going it's an employers job market, so of course those with a criminal record are going to find it even harder to obtain employment.

And with the way the databases are private now I would be surprised if even expungement would keep interested employers from finding out. Maybe if former offenders who have been deemed sufficiently rehabilitated were given new social security numbers but not under our current setup. And unlike European countries I don't think you could mandate that such data providers remove the conviction records or add the expungement record. In the U.S. (correctly in my opinion) a criminal conviction is considered to be an item of public interest so truthfully disseminating truthful information about prior convictions is a protected activity even when undertaken as business.

Posted by: Soronel Haetir | Jun 22, 2011 9:42:57 AM

"When you as a business owner (or even not an owner but someone in charge of hiring or even just giving a recommendation) are faced with two otherwise equal applicants,"

That is the problem. The ex-offender rarely gets the benefit of having his/her qualifications considered to see if he/she is "equal". He/she is rejected out of hand.

"And with the way the databases are private now I would be surprised if even expungement would keep interested employers from finding out."

"And unlike European countries I don't think you could mandate that such data providers remove the conviction records or add the expungement record."

You obviously are not familiar with the content of either Congressman Cohen's or Congressman Rangel's legislation. Both provide for severe penalties including fines and imprisonment for unauthorized disclosure of expunged records.

"In the U.S. (correctly in my opinion) a criminal conviction is considered to be an item of public interest"

In your opinion? And why would that be? Is it because you are by nature a nosy busybody? If an ex-offender is determined to be worthy of expungement, his/her personal information is no more your business that is that of any other citizen.

The two pieces of legislation mentioned are very limited in scope and only apply to first time, non-violent offenders. I will ask as I have many times before, at what point is the debt marked paid in full?

Posted by: Thomas | Jun 22, 2011 10:29:48 AM

The article does not address this, but -Why not seal criminal records (akin to juvy) when a certificate of rehabilitation is awarded? That would give it teeth, and make it effective for all parties concerned.

In response to: "Why is the public any more likely to credit a Certificate of Rehabilitation than it credits the last government report on Progress on the Deficit?" -- Perhaps for the same reasons the public credits the legal system's finding of a criminal conviction in the first place?

I would also add that there are not infrequent instances where the person with a felony record is actually *more * qualified than someone who does not have a record, and who the prospective employer admittedly likes the most and wants to hire. But company or institutional policy prevents them from doing so. An official Cert. of Rehabilitation may not cure this in all instances, but as official recognition from the state, it may help in some situations. Again, I suggest giving it teeth by sealing records, particularly of non-violent, non-serious felonies when the certificate of rehab. is issued and as part of that process ( and which is usually only after many, many years anyway).

Posted by: cdcrsurvivor | Jun 22, 2011 12:13:31 PM

The proposed laws can mandate whatever they like, I don't think any such provision would survive a first amendment challenge.

Posted by: Soronel Haetir | Jun 22, 2011 12:34:05 PM

Soronel, why then does sealing of juvy records survive a first amendment challenge?

Posted by: cdcrsurvivor | Jun 22, 2011 12:46:34 PM

cdcrsurvivor ,

The difference is that juvenile records are not made public and then sealed, they are private from the start. I would expect any law that attempts to regulate dissemination of information once made public to fail under first amendment analysis. Just like the attempts to actually enforce rape shield laws against media defendants have failed. The factors that weigh against protecting the names of victims counsel even more strongly that no such protection is available to offenders, even if the government later decides to offer some form of reprieve.

Take a look at Cox v Cone (420 U.S. 469, I think the holding that the state cannot punish the publication of a rape victim's name obtained from publicaly available judicial records would apply just as strongly to the publication of an eventual convict's name obtained the same way. And I don't think the government can hide the ball by saying the records are now no longer public.
)

Posted by: Soronel Haetir | Jun 22, 2011 1:42:12 PM

well soronel i take it you missed it when after 9/11 the bush govt pulled 100's of thousands of documents from public library's and other research facilities that had been public in most cases for decades all in the name of natiional security.

so why couldn't it do the same thing here. in the name of NATIONAL SECURITY once an individuals court ordered punishment is done and a certificate of rehabilitatin is issued all records of said individual are now considered classified LAW ENFORCMENT use only!

failure to obey draws you a welded mesh chain prison cell in cuba!

Posted by: rodsmith | Jun 22, 2011 2:00:21 PM

Rod,

Again, the difference is that if someone had made copies of all those documents the government wouldn't be able to stop continuing publication. Even in the case of materials that were never declassified the government is generally unable to punish the publisher of those documents or even stop the publication -- except in the most extreme of circumstances (that's pretty much the take away of the Pentagon papers case), The leaker can be punished but not the publisher the leaker gives the documents to and not the readers of the published material. None of that says however that the government is obligated to continue to allow access to documents after an initial decision to release.

If the government can't punish someone who publishes classified documents I fail to see any ability to punish someone who publishes material they obtained while it was open to the public. And I don't think the national security exception the court hinted at in the pentagon papers case would ever be met by truthful information about an individual's prior convictions.

Posted by: Soronel Haetir | Jun 22, 2011 2:17:06 PM

'If the government can't punish someone who publishes classified documents I fail to see any ability to punish someone who publishes material they obtained while it was open to the public. And I don't think the national security exception the court hinted at in the pentagon papers case would ever be met by truthful information about an individual's prior convictions.'

Guess that rational only works for classified documents and is exempted in cases related to internet SO crimes for viewing previously released and publicly disseminated material.

Posted by: james | Jun 22, 2011 7:27:10 PM

Soronel,

Thanks for that info. I really want to research this further, as the article posted just glosses over this issue. As to your points, it still seems to me be quite a different situation than the rape shield scenario you mention, and more akin to juvy records. In California, for example, juvenile records are not automatically sealed; one must petition the court to have that done, and it is only for certain offenses. As a result there are many juvenile records that go unsealed, sometimes for decades, simply because many people with those records in their past never get around to going through the cost and bureacracy to seal their past juvenile records.

I do know someone who is 61 who recently got his juvenile record sealed from years ago, (for professional reasons) and all this time it has been public. I see no reason why a former prisoner, convicted of non-violent, non-serious crimes, some 6-10 years after successfully completing parole from a prison sentence, and then successfully getting a certificate of rehabilitation, and who has built up an exemplary life in the community, should not be able to do the same. And I think any first amendment challenge would not nearly be as clear cut as you say; in fact I think it would be a seriously flawed argument.

Posted by: cdcrsurvivor | Jun 24, 2011 9:27:17 AM

cdcrsurvivor,

Sorry this ttok me some time to hunt down but here is a post from Eugene Volokh that is pretty much directly on point:
http://volokh.com/2011/01/31/is-it-libel-to-say-someone-was-convicted-of-a-crime-when-the-conviction-has-been-expunged-2/

I believe the reasoning there would apply even in the case of pardon, let alone the highlighted case of expungement or some lower level threshold reached by a certificate of rehabilitation.

Again with the case of sealed records the government is well within its power to stop making records available itself but it does not have the power at all to stop some third party from making the same information available if it had acquired the data while it was public.

And I believe this is the right outcome because pardon, expungement or a COR only remove some amount of the public taint associated with the conviction. Individuals should be free to make up their own minds how much private taint remains.

So again I would say that the proposed second chance laws can mandate whatever they like in regard to non-disclosure. Those provisions could even be enforced in an ongoing manner against government officials (think record keepers etc). They just couldn't be enforced against the data aggregaters that are the likely first source a query is going to turn to.

Posted by: Soronel Haetir | Jun 25, 2011 10:45:47 AM

wel soronel i still say based on our curent sytem and the way the legal system has devolved. that tomorrow the federal govt could pass a law that simply says

"individial' personal information is now PERSONAL. Any releast of in individuals personal information or history absent a written agreement from the individual is a federal felony!"

case closed!

Posted by: rodsmith | Jun 25, 2011 3:40:02 PM

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