Category: Policy

Moral panic over sex offenses results in cruel and self-defeating overpunishment

National Lawyers Guild Review Editor-in-Chief Nathan Goetting has published a thought-provoking piece in the most recent issue of the Review, commenting on America’s “moral panic” over sexual offenses, which has “created self-defeating policies, unconstitutional laws, and cruel punishments.”   Among those punishments are a plethora of collateral consequences that stigmatize and shame without regard to actual risk.  We reprint the editorial here in its entirety, with permission.       It should go without saying that human sexuality is rife with complexity and mystifying contradictions. It’s a puzzle palace from which all sorts of behaviors—routine, bizarre, and sometimes dangerous—can emanate. Yet our criminal laws and procedures regarding sex crimes respond to this swirling welter of incomprehensible impulses with stubborn and self-defeating simplicity. We choose to punish that which we fear to understand, as if learning what motivates the behavior is to show a little too much sympathy and solidarity with “perverts,” toward whom only contempt can be shown. As with suspected terrorists since 9/11, our mercilessness leaves no room for anything else, not even enlightened self-interest. I can think of no area of the criminal law, except perhaps international terrorism, into which contemporary American society has terrified itself into more ignorance than this. One of the guiding principles of western philosophy, etched in same Greek language spoken by Socrates and Plato into Apollo’s shrine at Delphi, is the maxim “Know Thyself.” When it comes to the darker side of human sexual conduct, we’d rather not. To do so will almost certainly force us to reckon with the fact that many of us aren’t the neat and tidy sexual beings we’ve convinced ourselves we need to be. For a dangerous minority, certain impulses emanating from this darker side—dark in the twofold sense of being both dangerous and unknown—result in obvious and devastating social harms, especially against children. Such atrocities against the innocent and vulnerable inevitably cause panic and fury among adults charged with protecting them. However understandable these emotions are among those victimized by these crimes, allowing them to form the bases of our law and policy can only be self-defeating. The proper response to these harms is to harness the spirit of inquiry and problem-solving to discern their ultimate causes so as to better prevent them. The drafting and enforcement of our criminal sexual conduct laws, particularly those targeting crimes against children, are driven by a powerful collective feeling of visceral revulsion. Our shared emotional response to these crimes has created self-defeating policies, unconstitutional laws, and cruel punishments. We aren’t reasoning toward justice and prevention. We’re raging toward vengeance—and are abandoning basic constitutional values in the process. We suffer from a problem as ancient as it is apparently incurable— how to prioritize enlightenment over prejudice and devise a system capable of fairly judging a small and intensely hated minority. Only in this instance the problem is especially acute because the rancor toward the minority group is especially virulent. Sex offenders are the safest and easiest people to hate. Politicians, a category that certainly includes judges, never lose by condemning them and never win by coming to their defense. To argue too forcefully even for core legal protections afforded in other types of criminal cases is, in many contexts, to risk ostracism and raise suspicion. For this reason, politicians routinely lapse into self-serving demagogy, often deploying morally charged and unhelpful metaphysical terms like “evil” as substitutes for scientific or clinical concepts that might inform and enlighten. Demonizing sex offenders has become a reliable and effective campaign strategy in judicial elections. To appear “soft” toward a sex offender is to draft a campaign ad for one’s next opponent. 2014 was perhaps the best year yet for cynical judicial campaign ads showing how inflexibly punitive incumbent judges have been toward sex offenders. In my own state, Michigan, a television ad ran on behalf of two sitting state Supreme Court justices, Brian Zahra and David Viviano, entirely devoted to convincing viewers that the justices have “thrown the book at child predators” and that they will “keep affirming tough sentences.” Sex crimes represent a tiny fraction of that court’s docket, but the ad would have you think that Zahra and Viviano together composed the state’s only bulwark against an onslaught of slavering pedophiles. In “Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation,” Alexandra Stupple argues that the fears such ads engender and exploit are radically out of proportion to the actual dangers we face. Friends and family members are far more likely to sexually abuse children than strangers are. Stranger child predator cases are actually quite rare, especially when measured against public perception, and recidivism rates are lower for these types of crimes than those for many other violent offenses. The popular image of the lurking child molester is largely a “myth . . . which serves to distort perceptions of everyday risks.” This isn’t to say that such attackers don’t exist or that they don’t inflict incalculable pain and anguish when they strike. But stranger sex crimes, including those against children, don’t occur with the kind of epidemic frequency one would expect given the hysterical laws and practices that have been created to combat them. Stoking panic this way helps judges and legislators get elected. Stupple explains the psychological underpinnings that have caused and continue to sustain the moral panic against child sex offenders. Just because politicians luxuriate in chest-thumping rhetoric against sex offenders doesn’t mean that they don’t take their own message seriously. Stupple argues that the “disgust” legislators and judges feel toward sex offenders has led to their dehumanization in our courts. This dehumanization has in turn resulted in a failure in the courts’ essential function of protecting the individual liberties of criminal defendants. The more despised the accused, the more vital it is to our constitutional scheme that courts protect him or her from any temptations legislators might feel toward circumventing their rights. The failure of the courts in this regard has resulted in the continuation of a host of inhumane and ineffective punishments. These include massive, over-inclusive sex offender registries, which do far more to stigmatize and shame offenders, many of whom pose only a minimal recidivism threat, than protect the public. In many instances, inclusion on the registry is simply an internet-friendly method of public branding, what puritan judges would’ve done to Hester Prynne had laptops been available. Judges have also imposed and upheld a vast array of behavioral and residency restrictions on released sex offenders. They’re applied broadly and on a massive scale, often in purely punitive ways that make assimilation back into society even more difficult. Perhaps most troubling, both ethically and constitutionally, is the rise of civil commitment laws that redirect inmates who have served their sentences into mental institutions. These laws often function as de facto sentence-extenders. They turn medical professionals into jailers and punish the same individual twice, and the second time indefinitely, for the same offense. Stupple doesn’t deny that there are a certain number of repeat-offending sexual psychopaths from whom society must be protected. Rather, she argues that the response to this threat has been hysterical, disproportionate, and emotional rather than rational and effective. It has inflicted the double harm of exacerbating old problems, such as mass ignorance, fear, and the reinforcement of stereotypes, while creating new ones, including a metastasizing system of widespread overpunishment. Our legislatures and courts have promoted myths, exaggerated bogeymen, and recklessly fanned the flames of thoughtless rage and panic. Read more

European employment discrimination based on criminal record I – mandatory bars

There is no body of research on European criminal record-based employment discrimination (CBED) comparable to the employer surveys and field studies done in the United States. While European concern for informational privacy keeps criminal records out of the public domain, European countries do not prohibit employment discrimination based on criminal record. In fact, as in the United States, European countries make certain criminal records disqualifying for a vast range of public sector and some private sector employments. This posting provides background on European, and especially Spanish, mandatory CBED. Our next posting provides background and discussion on discretionary CBED by private employers. The great comparative law scholar, Mirjan Damaska, pointed out in a classic article published more than 40 years ago that countries vary significantly with respect to which professions and occupations they place off-limits to people with a criminal record.  However, they are most often ineligible to serve as judges, military officers, high-level executive branch officials and police officers of all ranks. This must reflect a consensus that persons who hold those powerful, responsible or prestigious positions must have impeccable honesty and integrity, and that people who have been proven to engage in criminal conduct are presumed to lack those qualities of good character. Of course, this does not explain why the employment bar extends far down the ranks of civil service positions. (In some countries even a gardener working for a government agency must be conviction-free.)  European countries also have laws applying categorical restrictions to certain private sector positions, for example, bank officials and private security and gambling enterprise licensees. In addition, some European countries have passed laws requiring criminal background checks for persons applying for jobs involving close contact with children or other vulnerable persons, presumably with the purpose of ruling certain people with a record out of consideration.  A recent E.U. framework decision [CITE] requires member states to empower their courts to include in a sex offense sentence an order prohibiting the defendant from working in any position requiring close contact with children. Spain, like many European countries, generally requires a conviction-free record for employment in “public administration”, roughly equivalent to U.S. civil service. Additionally, there are laws making a clean criminal record a prerequisite for obtaining certain occupational licenses. For example, only individuals who have never been convicted of a crime (technically – no unexpunged* conviction) can be licensed as a commercial driver, a taxi driver (in some cities), operate a gambling house, work in private security or manage a private school. Moreover, some non-governmental professional organizations that possess authority to license and discipline members (for example, lawyers and notaries), also make a conviction-free record a requirement. However, the impact of these employment bars is somewhat softened because some of them (e.g. civil servant, university professor, judge) only apply if the criminal court judge explicitly imposes them as part of the sentence. In a word, they apply only if imposed as direct and not collateral consequences of conviction. Furthermore, laws or court orders restricting employment based on previous conviction do not appear to be vigorously enforced. In order for mandatory CBED restrictions to be enforceable, employers and licensing authorities must know whether a job applicant has a previous conviction. In Spain, as in most European countries, access to conviction information is severely restricted. While some government agencies (e.g. police) are explicitly authorized to obtain criminal record information directly from the National Conviction Register (NCR), other agencies (e.g. public schools) must make do with asking the job applicant to sign a statement attesting to a clean conviction record. Of course, they also have the option of asking the job applicant to submit an certificate of no criminal convictions which can be obtained from the NCR. This posting draws on Larrauri & Jacobs, “A Spanish Window on Euopean Law & Policy on Employment Discrimination Based on Criminal Record,” in EUROPEAN ENOLOGY, eds, Tom Daems, Dirk van Zyl Smit and Sonja Snacken, available here. *We will offer a post on expungement in the near future. Read more

Michigan takes baby steps on criminal justice reform

Michigan spends one in five tax dollars on corrections so the state continues to explore strategies to safely reduce these costs.  In its most recent session, the legislature considered bold criminal justice reforms, but strenuous last minute objections from the Attorney General succeeded in halting much of the reform agenda. In the end, only a few reforms were implemented and most of them were passed in watered-down form. The new laws include (1) the establishment of a Criminal Justice Policy Commission; (2) narrow expansion of set-aside eligibility to victims of human trafficking; and (3) authorization for Certificates of Employability for prisoners who complete certain in-prison training programs.  A more ambitious (though still narrow) expansion of the set-aside law is currently on the Governor’s desk for signature.  These “baby steps” leave lots of room for improvement, but constitute a blueprint for future reform efforts. Sentencing reforms – why reform was suggested and what was actually achieved In 2013, led by consultants from the Council of State Governments, Michigan undertook an in-depth study of its sentencing system for its impact on public safety, recidivism, and state and local spending. The study included analysis of 7.5 million data records, and over 300 in-person meetings and calls with stakeholders, such as law enforcement officials and legislators. The study concluded that (1) people throughout Michigan with similar criminal histories and convictions get significantly different sentences; (2) the time a person will actually serve in prison or under supervision cannot be predicted; (3) resources are not prioritized to reduce recidivism; (4) high rates of recidivism generate unnecessary costs and public safety risks, and current funding does not adequately fund reentry programs; and (5) there is no effective mechanism to track sentencing outcomes. Reformers responded.  Leading the charge was Representative Joseph Haveman, a Republican representing one of the most conservative districts in the state. His proposals would have reduced the discretion of judges and the parole board, created consistency in sentencing and supervision, allowed certain offenders to leave prison on parole earlier, decreased probation time, and established swift and predictable sanctions for probation violations. Opposition came from those who wanted to keep the current level of judicial and parole board discretion, and from sheriffs who worried about higher costs to local jails. The strongest opposition came from Michigan Attorney General Bill Schuette, who sent letters to lawmakers urging them to reject the bills, claiming that they were being rushed through Michigan’s “lame duck” session.  In the end, the House “gutted” the bills and they died in the Senate. One residual part of Haveman’s package, however, soared through both chambers:  a Criminal Justice Policy Commission was established to review the effectiveness of sentencing guidelines, release and supervision policies, and the use of prisons and jails. Expansion of set-aside authority A set-aside, frequently called “expungement,” makes criminal records unavailable to anyone other than courts, law enforcement agencies, and certain agencies.  Until recently, persons were eligible for set-aside under Michigan law only if they had fewer than two prior “minor offenses,” a term that was very narrowly defined.  See Mich. Comp. Laws 780.621.   Amendments to this provision signed into law by the governor on January 12, 2014, enlarge the category of priors a person may and still remain eligible for set-aside, from “minor offenses” to “misdemeanors.”  (A traffic offense would not constitute a misdemeanor, unless it had been for operating while intoxicated).  In addition, a person convicted of not more than two misdemeanors and no felonies may apply to have either or both of the misdemeanor convictions set aside.  As a result of amendments to 780.621 enacted in the fall of 2014, victims of human trafficking are now permitted to apply to set aside a conviction committed as a result of the trafficking. This new legislation allows more people to apply for a set-aside, but does not go as far as Minnesota’s new law, which extends expungement to a broader range of offenses, requires data-mining companies to honor expungements, addresses victimization and housing evictions, and protects landlords and employers.   [NOTE:  Another law enlarging the basic set-aside authority was signed by the governor in early 2015.  Under this bill, which has been in the works for years, a person who is convicted of not more than one felony offense and not more than two misdemeanors offenses may petition the court to set aside the felony offense.] Certificates of Employability Lastly, a bill authorizing a Certificate of Employability for certain persons currently serving a prison term in Michigan’s Department of Corrections provides some protection against liability for hiring or renting to the holder of a Certificate.  Under PA 360 of 2014, an employer or other person may introduce a Certificate as evidence of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with someone who has the Certificate, if the employer knew of the Certificate when hiring or otherwise engaging with its holder.  Like other states with similar employer protections–such as Ohio,[2] Tennessee,[3] and North Carolina,[4] and New York[5] — the Michigan law protects anyone who knows about the Certificate. However, in contrast with those states, most Michigan citizens with a criminal record are not eligible for a Certificate.[6]  The Michigan Chamber of Commerce, which opposes a ban-the-box proposal for job applications, supported the Certificate legislation. The Michigan Department of Corrections is authorized to issue Certificates only to incarcerated people no more than 30 days before release, and only if all of the following apply: (a) The prisoner successfully completed a career and technical education course; (b) The prisoner received no major misconducts during the two years preceding his or her release; (c) The prisoner received no more than three minor misconducts during the two years preceding his or her release; and (d) The prisoner received a “silver level” or better on his or her national work-readiness certificate, or a similar score as determined by the Department on an alternative job skills assessment test administered by the Department.  The Certificate is only valid for 4 years after issuance. Because nearly 80% of Michigan felony offenders since 1999 have been sentenced to community-based sanctions, the vast majority of Michiganders with a felony record will not be eligible for a Certificate. Also ineligible are those who are no longer incarcerated, so that the 163,861 people who have moved from the Department of Corrections to parole since 2000 will be unable to qualify, and neither will people with federal convictions or convictions from other jurisdictions. Finally, people currently at MDOC will be eligible only if they have access to education and training programs, which vary by facility throughout the state. Still, to those who are currently incarcerated by the Department of Corrections, receive education, get training, and are awarded a work-readiness certificate, the Employability Certificate may be helpful – if only for 4 years. Heather Garretson is a Scholar in Residence at City University of New York Law School, the premier public interest law school in the country.  She is a former federal prosecutor, defense attorney, and Professor of Law at Western Michigan University Cooley Law School in Grand Rapids, Michigan. [1] House Bill 5025, MCL 780.621,amended [2] Ohio Rev. Code Ann § 2953.25(G). [3] Tenn. Code Ann § 40-29-107(n)(1). [4] N.C. Gen. Stat. § 15A-173.5 [5] N.Y. Exec. Law § 296(15) [6] Iowa and Ohio have certificates that are similarly limited to prisoners, but neither of them include protections against negligent hiring. See Iowa Code § 906.19(2), Ohio Rev. Code Ann. §§ 2961.21.     Read more

States “rethinking” collateral consequences? Vera Institute jumps the gun

The Vera Institute has published a new report that claims states are “rethinking” collateral consequences through enactment of laws intended to mitigate their impact.  The report (Relief in Sight? States Rethink the Collateral Consequences of Criminal Conviction, 2009-2014) includes an excellent introduction to the issues, helpfully categorizes different types of relief measures, and makes a number of useful recommendations for future reform. However, the report seems unduly sanguine in suggesting that wholesale dismantling of the regime of collateral penalties is just around the corner, or that reforms of the past five years augur a sea change in public attitudes.  Of greater practical concern, the report has methodological shortcomings that limit its usefulness as a research and advocacy tool. Optimistic conclusions  The authors of the Vera report have mined legislative records between 2009 and 2014 to identify 155 separate pieces of legislation, enacted in 41 states and the District of Columbia, that it claims limit the application of conviction-related legal penalties.  An accompanying “infographic” leaves a strong visual impression that reform is widespread across the land.  There is cautionary language in the report’s introduction and notably in its summary about the limited nature of many of these new laws.  But the report’s emphasis on the sheer volume of recent legislative activity sends a different signal. A closer look at the specific laws described in the text of the report shows that it is at best premature to conclude that states are “rethinking collateral consequences” as a general matter, or that relief is “in sight” for most people with criminal records.  Few of the laws identified actually limit or repeal conviction-based penalties, and most only nibble at the margins of their application.  Our own research shows that, during the five-year period studied by the Vera report, dozens of new legal and regulatory restrictions were enacted for every new relief measure.  Moreover, the relief reforms are incremental rather than what the Table of Contents describes as “new approaches” (Vermont’s Uniform Act is one of the few exceptions), and most people with criminal records will not benefit from them. It doesn’t take a cynic to conclude that even if the reforms identified in the report “collectively . . . indicate a criminal justice system on the cusp of embracing reentry and reintegration as guiding principles,” this is because of concerns about recidivism and public safety, not because society as a whole is ready to “accept[] people with criminal records as full members capable of contributing to their families and communities.”  (Report at p. 43.) We may have turned a corner, but we are still a long way from home. Methodological flaws The report’s overly optimistic view of national trends is forgivable.  Its methodological shortcomings are less so, particularly from as eminent a research organization as the Vera Institute. To begin with, the report is difficult to use as a research tool, particularly for lawyers, because it identifies new laws only by bill number and not by code citation.  In order to determine exactly what a particular enactment provides, one has to go to the relevant legislature’s website and hunt for the right bill, then wade through what are frequently many irrelevant provisions in order to identify the one that attracted Vera’s attention.  Perhaps the report was not intended primarily as a legal research tool, but it is nonetheless frustrating for anyone trying to use it as such. In addition to inconveniencing researchers, working from bill texts as opposed to codified laws invites mistake and misunderstanding.  For example, the report notes (p. 24) that Delaware’s new ban-the-box law prohibits consideration of felony or misdemeanor convictions “if more than ten or five years, respectively, have elapsed since release from custody (or from the sentencing date if there was no incarceration).”  But this progressive language was stripped out of the bill prior to enactment, leaving only a limited prohibition on inquiry and general standards. Provisions enacted prior to 2013 in Ohio (p. 14) and Indiana (p. 24) turn out to have been amended or repealed by later enactments.  Laws not examined in context are easily misinterpreted, as evidenced by the description of California’s modest amendments to its pre-existing set-aside law (p. 14). But we believe the report’s most serious methodological flaw is its presentation of comprehensive legislation in piecemeal fashion.  Cannibalizing integrated schemes to supply parts for prearranged categories obscures the significance of the handful of genuinely important reform measures enacted in the past two years.  It also makes it next to impossible for the casual reader to distinguish major new enactments from minor “tweaks” to existing law.  Examples of this phenomenon are Vermont’s 2014 Uniform Collateral Consequences of Conviction Act (mentioned only for its inventory provision), and the sweeping expungement schemes enacted in 2013 by Indiana (mentioned only for limitations on employer inquiry and minor “fixes” enacted the following year) and in 2014 by Minnesota (mentioned only for deferred adjudication and negligent hiring protections). Colorado’s set of interconnected reforms enacted between 2011 and 2013 is disaggregated and given only passing mention in several batches of comparatively trivial enactments. The text of the report fails even to mention several very important new relief authorities, leaving it up to the curious reader to comb through dozens of bills identified only by general category of reform.  Examples of this are Arkansas’ Comprehensive Criminal Record Sealing Act of 2013, Tennessee’s 2014 Certificate of Employability and 2012 expungement authority, and the impressive new Chapter 34 of the Louisiana Code of Criminal Procedure. California’s 2014 Proposition 47, which extends set-aside relief to a large new class, is not even cited, though it probably represents as bold a “rethinking” as any other law mentioned in the report. In summary, while we are grateful for Vera’s attention to the subject of collateral consequences, we regret its decision to emphasize quantity of law-making over quality. At least as reported, the new enactments do not warrant the overall conclusion that “relief is in sight.”  Vera would have found more support for its optimistic prognoses, and better focused its call for further reforms, if it had chosen to present in their entirety the half-dozen genuinely significant legislative achievements of the past two years.  As it is, in choosing to present these comprehensive schemes in scattered and undifferentiated form, or not at all, the report misses a golden opportunity to highlight what may turn out to be the vanguard of genuine collateral consequences reform.   Read more

The need to eliminate barriers to diversifying police departments

The shootings and beatings of unarmed black men, boys, women and girls by police officers are sickeningly repetitive.  Also repetitive are the calls in response to diversify police departments by hiring officers who better reflect the communities and neighborhoods they would patrol.  These issues have surfaced starkly in Ferguson, Missouri, where three out of 53 officers are black. There, efforts to diversify the police department have been non-existent. Similarly in Cleveland, where twelve-year old Tamir Rice was killed by an officer while playing in a park, black residents make up 53 percent of the population but black officers comprise only 27 percent of the police force. In Baltimore, the racial composition of the police force more closely approximates the city’s population.  Nevertheless, the city has paid $5.7 million since 2011 in court judgments and settlements of police brutality claims.   In 2013, 70 percent of Baltimore’s police officers lived outside the city.   Thus, racial diversity alone is not a solution. In response to the events in Ferguson, Cleveland, Staten Island and Brooklyn, several reform measures have been offered to help effectuate improved relationships between police departments and communities of color, including diversifying departments and training officers on implicit bias.  The need to hire more black and Latino/a officers who come from and reside in communities across the United States that are like Ferguson and Cleveland is urgent.  To gain the trust of residents, officers cannot see the communities they patrol as “the other”; they cannot, as Officer Darren Wilson testified to the grand jury, simplistically and stereotypically believe that entire communities are not “very well-liked” and are “antipolice.” The killing of Michael Brown put the deeply rooted distrust between Ferguson’s residents and their police department on international display.  We have learned of the intense and intimate relationship between Ferguson’s majority black residents, law enforcement and the criminal justice system.   For instance, of the 5,384 traffic stops by the Ferguson Police Department in 2013, 4,632 were of black drivers.   During those stops, black drivers were twice as likely to be searched and arrested as white drivers.   These statistics, while numbing, are reflective of cities, big and small, across the United States.   They find similarities in the legacy of New York City Police Department’s stop and frisk practice and its relationship to “quality of life” policing, which, fused with race, were the undercurrents that led to Eric Garner’s death. However, one barrier to truly diversifying police departments in ways that reflect the communities they patrol is the broad and reflexive use of criminal records to disqualify potential candidates.   As is true of other public as well as private employers, police departments use criminal background checks to exclude candidates from joining their ranks.  But police departments are particularly rigid and inflexible when it comes to criminal records.   (The NYPD famously resisted letting war hero Osvaldo Hernandez join the force even after Governor Paterson pardoned him.)  Thus, efforts to diversify will be compromised if departments do not broaden their perspectives on officer qualifications. Across the United States, poor individuals of color are disproportionately represented at each stage of the criminal justice system and, as a result, are particularly burdened by criminal records.  For far too many individuals, the effects of a criminal record are vast and often permanent. The most significant barrier is the inability to secure a job.  This is particularly true for black men, whose criminal records exacerbate the stereotypes and stigma that attach to race.  The Equal Opportunity Employment Commission forbids the blanket use of criminal records to exclude individuals from job opportunities precisely because the indiscriminate use of these records disproportionately affects black and Latino/a job applicants.  The EEOC has a range of factors to guide employers when considering applicants with criminal records, including the nature of the crime, the length of time that has passed since the crime and the relationship between the crime and the job sought. To help address the undue impact of criminal records on job prospects, 13 states and approximately 95 cities and counties have enacted ban-the-box laws.  These laws delay inquiry into a job applicant’s criminal record until later in the job application process, after the applicant has interviewed and, in some instances, been deemed qualified for the position.   The laws allow individuals to be assessed based on their qualifications, rather than shut out of the process automatically at the outset because of their records. However, police departments, as law enforcement agencies, are largely exempted from the EEOC and ban-the-box requirements.   As a result, departments have the authority to use overly broad disqualifications to bar candidates with criminal records.   These rigid restrictions disproportionately impact black and Latino/a candidates and stand in the way of advancing police departments in ways that are reflective of the communities they protect and serve.   As important, these restrictions are short-sighted.   Police officers who have had an experience with the criminal justice system can actually benefit communities, as they have a deeper, richer appreciation of the full bearing of the criminal justice system.  They understand the true significance of being charged with a crime as well as the obstacles to moving past that circumstance. As a result, a criminal record—for instance, a record involving a long-ago misdemeanor or minor offense, or some felony offenses— should not, by itself, be an automatic bar to a career in law enforcement.   Some, probably many, feel reflexively that that a prior criminal record should be a disqualifier for joining the police force.   However, departments should assess the record—and the candidate—using the factors the EEOC requires.  Wise discretion and appreciation of context impact all aspects of police work, from earning and maintaining trust, to deciding when to initiate a full-blown encounter versus giving a warning (or saying nothing at all), to what to say during any interaction and the words used to convey the message.    Perspective, experience, understanding, appreciation, respect, tone and investment—in individuals and communities—are all crucially important aspects of police work.   Officers should understand that issuing a citation to a mother because her toddler son was eating a banana while exiting a subway (a court case that I observed recently in Baltimore City, for the crime of eating on the subway) can be as impactful and life-altering as arresting an individual for any other criminal act. Lives are often forever changed as a result of interactions with police officers and the criminal justice system, regardless of the reasons or the circumstances.   Officers who have lived these interactions can bring particular sensitivity to the range of feelings, life experiences and issues that are plaguing relationships between law enforcement and the individuals, families and communities they have sworn to protect and serve.     Read more