“Virginians with a felony conviction can now vote, but getting a job is no easier”

Lincoln Caplan, formerly of the editorial staff of The New York Times and now on the faculty at Yale Law School, has written a thoughtful piece about collateral consequences for the New Yorker.  It points out why Governor McAuliffe’s order restoring the vote to Virginians with a criminal record doesn’t help them deal with the myriad of legal restrictions that deny them opportunities, or with what he calls “a relentless form of social stigma.”  He concludes that relief measures like expungement, which are based on concealing the fact of conviction, may be less effective for felony-level crimes than more transparent measures like pardon or certificates of rehabilitation.  He concludes that “Forgiving, when someone has earned it, gives an individual a fresh start and, just as important, it helps restore the idea of rehabilitation in American justice.”

A featured piece by a well-regarded journalist in such a sophisticated venue may do a lot to bring the problem of collateral consequences to the attention of people in a position to do something about them.  We reprint portions of the article below.

Voting rights are a prominent issue this year, so it is not surprising that attention turned to the political significance of the order, or that Republicans accused McAuliffe of enfranchising voters to strengthen Democrats’ position in the state. But voting rights are only one of many rights that are withheld from people who have had felony or other convictions. Virginia also imposes eight hundred and fifty-three other restrictions, known as collateral consequences, on people who have been convicted of a crime. For example, Virginia—and thirty-three other states—put up barriers when people who have been convicted apply for a license to work in one of many occupations, as a report issued last week by the National Employment Law Project explained. The state lets licensing agencies reject these applicants—to be cosmetologists, home inspectors, engineers, and other kinds of professionals—on the ground that they are generally unfit or unsuited. The agencies do not have to prove that a particular conviction is evidence of a person’s lack of fitness or suitability to do a specific job, and there is no easy way for an applicant to challenge a rejection.

In the past generation, the scope and number of collateral consequences have dramatically increased. Every state and the federal government now imposes these restrictions, which prevent people convicted of felonies and misdemeanors from getting, among other things, jobs, housing, education, government contracts, bank loans, and public benefits. As retribution became the focus of criminal justice, rehabilitation fell away as a goal of the system. So did the idea that people who finish paying their debt to society—by completing their term in prison and their probation or parole, or whatever their penalty—have earned a fresh start. Collateral consequences are considered civil rather than criminal matters. They are described as regulations instead of punishments. But they can be harshly and repeatedly punitive, a relentless form of social stigma.

American law once favored the concept of civil death—of stripping a felon of civil rights for an especially heinous crime like treason. The country came to spurn that idea in the early twentieth century, and it largely disappeared. But the pervasive and largely invisible restrictions of collateral consequences are similarly oppressive. They can amount to a new form of civil death.

Caplan points out that

In the age of mass incarceration, collateral consequences represent an enormous problem. In the past half-century, the likelihood that an American will be arrested by the age of twenty-three has climbed to about thirty per cent. The consensus is that sixty-five million to seventy million Americans now have criminal records. A former prisoner’s chances of successfully reëntering society depend heavily on his or her ability to get a job, find a place to live, and establish a stable life—and collateral consequences make all of these things difficult. Partly as a result, the United States has stunningly high levels of recidivism. Seventy-seven per cent of people released from state prisons in 2005 were arrested again within five years, fifty-five per cent were convicted after their arrest, and twenty-eight per cent were sent back to prison, according to a report released this year by the U.S. Sentencing Commission.

Caplan notes that the Obama Administration’s embrace of measures like “ban the box” is focused on the role of collateral consequences in driving recidivism rates.

But it is highly unlikely that legislators can be persuaded to drastically reduce the number of so-called civil restrictions on people who have been convicted. Instead, activists have been promoting two alternative solutions to this problem of collateral consequences, which Margaret Love, a lawyer in Washington, D.C., who is co-author of a treatise on these restrictions, calls the “forgetting” and “forgiveness” models. These, in short, would seal or expunge a criminal record, or use a pardon or a certificate of rehabilitation to show society’s forgiveness.

He explores the difference between the forgiving and forgetting models of relief with a discussion of the “federal certificate of rehabilitation” issued by Judge John Gleeson in March to a woman whose conviction had “caused her disappointment time and time again”:

Two days before he retired from the bench, in March, Judge John Gleeson of the Federal District Court in Brooklyn addressed the choice between these models and the problem of collateral consequences, in an opinion about the case of Jane Doe v. United States of America. Doe, a fifty-seven-year-old woman from Jamaica, is a legal permanent resident in the U.S. and has her nursing license. In 2000, her boyfriend persuaded her to take part in a staged car accident to scam an insurance company. She received no money for the crime. A jury found her guilty of conspiring to commit, and committing, health-care and mail fraud. Gleeson eventually sentenced her to spend eleven months in prison and to pay about seventy-four hundred dollars in restitution.

After she was released from prison, in 2004, she was able to work again as a nurse for a couple of years. But in 2006, the New York State Office of Professional Discipline found her guilty of professional misconduct as a result of this offense, her first and only criminal conviction. Later that year, her nursing license was suspended for two years and she received two additional years of probation. From then until 2015, she constantly faced collateral consequences, and cycled in and out of employment. As Gleeson wrote in March, “Despite her persistence in trying to find employment in her chosen profession, Doe’s conviction has caused her disappointment time and time again.”

The motion that brought Doe back to Gleeson’s courtroom was for him to expunge her criminal record. That would not help her, he decided, since the conviction would still appear on her nursing license and in private criminal-record databases. And federal law would not let him do what she asked for, because her situation, he said, is neither harsh nor unique. In other words, forgetting wasn’t an option. But he felt a duty to do something. He wrote, “There is no longer a need to deprive Doe of her liberty interests in the way collateral consequences imposed by the law have been doing. As her sentencing judge, I owe it not only to Doe, but to her family and community, to do my part to lift any remaining hardship on her.”

Gleeson could “certify that Doe has been rehabilitated,” and he did. He invented a federal Certificate of Rehabilitation, modelled on similar ones that judges can grant in courts in fourteen states and Washington, D.C. He went on, “Most prospective employers do not have the time or resources to gain a comprehensive understanding of who Doe is, and then to figure out what weight, if any, her conviction should play in the hiring process. So I have done that for them. I have reviewed each page of Doe’s trial transcript, presentence report, probation reports, deposition transcript, and other documents she and the government provided to me for a holistic view of her character and competency today. I find that there is no relationship between Doe’s conviction and her fitness to be a nurse.” He embraced the “forgiveness” model, which, as he wrote, “is gaining favor in the reentry community for both functional and philosophical reasons.”

Caplan’s final comments about the relative merits of forgiving and forgetting to mitigate the harsh effects of collateral consequences are worth careful consideration:

Forgetting seems to work well for minor crimes, but in this age of vanishing privacy it will rarely work for serious ones, because there will likely be a record of them somewhere. Forgiving, when someone has earned it, gives an individual a fresh start and, just as important, it helps restore the idea of rehabilitation in American justice. On Doe’s certificate, Gleeson was explicit about the collateral consequences it should apply to, and the status it accords her: “I recommend her for employment, housing, benefits, and other opportunities as a full participant in society.”