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June 26, 2015

"A Second Chance: Rebiography as Just Compensation"

I often tell my sentencing students that every good legal or policy debate has some important sentencing story lurking within it.  The title of this post is the title of this intriguing article authored by Jamila Jefferson-Jones just now appearing on SSRN, and it argues Fifth Amendment's Takings Clause has an important sentencing story lurking within.  Here is the abstract:

Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary.  As one legal historian noted, "American culture and law put enormous emphasis on second chances."  For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal.  My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted.  Then, regulatory takings analysis was applied to that reputational damage.  In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation.  Finally, it was argued that rebiography can serve as "just compensation" for this type of taking.

Rebiography as "just compensation" for the reputational taking suffered by the previously convicted leaves open two questions: First, does the takings analysis have the same outcome regardless of the offender?  In other words, does an offender have to try to use her reputation in a positive manner and be prevented from doing so in order to have a takings claim, or is it enough to say that requiring disclosure of criminal history is a taking across the board that always requires just compensation?  Secondly, what is the relationship between "rebiography" and "privacy"?  In "A Good Name," an established continued stigma attachment was shown as a governmental taking. Now, it is offered in a way to show that "just compensation" is owed to the previously convicted and that the way to provide it is through establishing a "rebiography right," stemming from the taking of a constitutionally cognizable property right.

Part I of this new article provides the introduction, giving general definitions of rebiography and “just compensation.”  In Part II, there are reviews of the application of the Takings Clause to the reputational damage suffered by the previously convicted and apply this analysis to actual cases.  In Part III, it is further explained as to why rebiography is necessary given statistics on the previously convicted's employment prospects and recidivism.  The article goes on to examine legislative and judicial options for rebiography.

June 26, 2015 at 08:08 AM | Permalink


The OBVIOUS correlation to this story is the fact that a certain segment of people, sex offenders, are not only prevented from "writing a rebiography," they are forever ENTRENCHED in their status as a "sex offender" that mandates a never-ending wave of punishment.

Posted by: Eric Knight | Jun 26, 2015 9:07:54 AM

I doubt I have ever said this in any comment.

What a clever, and brilliant proposal for appellate advocacy. I liked the professor so much, I looked her up, and her brilliance got even better. I have already forgiven her graduation from Harvard Law School.

I may offer her my support.

Posted by: Supremacy Claus | Jun 26, 2015 12:27:04 PM

Sorry but as I see things any damage to reputation is of an offender's own making.

This question does make me wonder about how things were handled in the long period where records simply did not follow someone leaving an area. If they were asked about prior convictions and lied but the lie was then uncovered what sort of consequences could be imposed for the falsehood? (Assuming of course that the convict stuck around to try and bear whatever came their way rather than moving on again).

Would, for instance, such a lie be enough to annul a marriage? (I am leaving out employment because as I understand it a strong form of employment at will held in most places).

Posted by: Soronel Haetir | Jun 26, 2015 12:48:17 PM

SH. She is not talking about reputation. She is talking about unwarranted exclusions of convicted felons from jobs, and other benefits by statutes, litigation, and other government action. I oppose regulation, so if an employer does not want to hire a felon, that is his business. But if he wants to, but cannot due to governmental actions, that is a regulatory taking.

What about the opposite of your scenario? I tell a young girl, I am a serial rapist and murderer, causing instantaneous love and infatuation. But, in truth, I am just a schlep, who has never broken the law, is our lovemaking, rape by deception?

Posted by: Supremacy Claus | Jun 26, 2015 3:15:27 PM

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