In the interests of justice

Yesterday, I was in court for an expungement hearing for a client of mine, who sobered up and turned his life around in early 2010.  He's been able to find odd jobs here and there, but studies suggest that right now is a crucial period in his rehabilitation efforts.  See, e.g.,Tripodi, Kim & Bender, Relationship Between Employment and Crime Is Employment Associated With Reduced Recidivism?: The Complex Relationship Between Employment and Crime, 54 Int'l J. Offender Therapy & Comp. Crim. 706 (2010)

The study cited above makes an important (though somewhat common-sense) observation--namely, that obtaining employment within the first year after one's release from prison (1) increases his/her motivation to desist from crime and (2) leads to a change in behavior that marks an important milestone in the process of rehabilitation.

This is where the interest for "public safety" collides head-on with the interest for "reentry."  On one hand, the interest for public safety demands that we wait a long period of time before giving a person with a conviction history an equal employment opportunity.  Who knows when that person will re-offend?  A long passage of time without another contact with the criminal justice system is a common-sense (and well-researched) evidence to show that the person poses no additional risk to the safety of people and property.  On the other hand, the interest for reentry demands that we use employment as a means to motivate people with conviction history, especially in the first few months after their release, to help them commit to the long process of rehabilitation.

Where does "expungement" fall in the balance of these competing interests?  This isn't mere idle speculation.  Under California's "expungement" law, Cal. Pen. Code § 1203.4, a court, "in its discretion and the interests of justice," may grant a petition to expunge a conviction.  And "the interests of justice" analysis calls for precisely this balancing of competing interests.

If you were at yesterday's hearing for my client, you would've seen and heard these competing interests collide head-on.  I, of course, was emphasizing the interest of the State (and of my client) in rehabilitation.  The Court was very emphatic, however, about the fact that (1) my client suffered subsequent convictions and that (2) those convictions were very recent (in 1/2010).  In other words, too soon.  Not enough time has passed.  Come back later.  Public safety comes first.

I hope that my client's motivation for turning his life around perseveres through these difficult times.  Without stable employment, without people giving him a chance, without the forgiving acceptance from the society at large, he has his work cut out for him.  I wouldn't be surprised if he succeeds against all odds.  Then again, I wouldn't be surprised if he fails.  His life hangs on the balance, and it may fall either way.  It is clear, though, that our insistence on "public safety" tips it in one direction.  And that is just tragic.

Going to law school with a conviction

ABA Journal reported a few weeks ago that Mr. David Powers, one of the top students at St. John's University School of Law, was let go from the school, because his disclosure of an expunged 1999 conviction for drug possession did not include the original charge of sales.  How did the school find out?  When he asked them for a letter of support to pass the NY Bar's moral character examination.  According to a comment (#26) following the story, the school's application asks:

Have you ever, either as an adult or juvenile, been cited, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to the commission of any felony or misdemeanor, or the violation of any law, except minor parking violations, or been the subject of any juvenile delinquency or youthful offender proceeding?  If yes, please explain.  Please note: although a conviction may have been expunged or sealed by an order of a court, it nevertheless should be disclosed.

It starts out as a yes/no question.  Presumably, Mr. Powers answered it in the affirmative.  Presumably, he then indicated that he had an expunged drug possession conviction from 1999, as a way of explaining.  Mr. Powers, I'm sure, thought that this was sufficient to satisfy the call of the question.  The school, on the other hand, did not.

The traditional narrative about "a reformed criminal" says that, once a person truly reforms, s/he will freely and fully own up to his/her past mistake and be completely open about it with others.  The reality is less straightforward than that.  Sure, some will be completely open with others.  But, almost to the last one, they do so because they have since integrated their criminal past into their identity: "I am a reformed ex-felon."  They wear the stigma of a criminal conviction as a badge of experience and wisdom--and a sign of hope--as I do my identity as a former drug addict.  I hit the rock bottom, fell right through it, and then somehow, by the grace of God, made it out alive.  And, invariably, when we're sharing our stories, our audience is those that are fast approaching the bottom themselves.  And, invariably, the message is the same: Brother/sister, I hope you too make it out alive as I have.

But we don't always own up to our past mistakes.  Complete and utter transparency, i.e. surrender of privacy regarding one's past mistake, isn't a prerequisite to true rehabilitation.  Time and time again, in this line of work, I meet people who keep their darkest secrets even from their family and closest friends.  One of my first clients, when we first met, had a 40-year old murder conviction that even his wife did not know about.  Yet, ever since his release from prison, he led an exemplary life, serving others and providing for his family.  He was only the first.  Most of my clients hide their past convictions from just about everyone.  For Pete's sake, haven't we all watched Les Miserables and know the story of Jean Valjean?