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?

Speaking of politicians with a conviction history...

I know nothing about Jackson City, Tennessee or the laws of that state regarding political rights of people with conviction history.  According to an article in The Jackson Sun, however, "a state law [requires] felons to petition a circuit court for their citizenship rights to be restored before they can hold elected office."  A former Jackson City Councilman Johnny Dodd, who also worked as a substitute teacher with the Jackson-Madison County school system until very recently, is in trouble for giving what seems to be a false answer on his applications for the substitute teacher job, as well as for not having his citizenship rights restored before running for his City Councilman position.

In response to these revelations, the school district terminated Mr. Dodd's employment and changed their policy to "prohibit[] people with felony records from working in the district."

There are 2 separate issues here.  One is that of his "dishonest" answer.  Again, I know nothing about Tennessee laws, but I note that, if it were in California, Mr. Dodd would've been entitled to answer "no" to those questions regarding his convictions if he had set aside and dismissed under Cal. Pen. Code § 1203.4 or 1203.4a.  The other is the matter of his convictions themselves.  The articles linked to above refer to a 1987 felony conviction for grand larceny and a 1999 misdemeanor conviction for disorderly conduct.

The 1987 grand larceny conviction, according to one of the articles, stems from an accusation that he stole various items from the store he was working at, including "a basketball goal, a television, a VCR, and two radar detectors."  The 1999 disorderly conduct conviction involves an incident where he "told a crowd of 100 to 150 people to ignore police orders to disperse" at a night club where he was the disc jockey.

After this lengthy description of the facts as reported in the articles, I have a couple of thought.  The first is that the school district's policy change likely runs afoul of Title VII of the Civil Rights Act of 1964, which, according to EEOC, makes "an absolute bar to employment based on the mere fact that an individual has a conviction record... unlawful."  This particular jurisprudence on Title VII disparate impact theory mandates that an employer show "business necessity" for using a conviction record before making an adverse employment decision based on it.

The second point is more of a general observation--something I've noted before but bears repeating here--that a long history of rehabilitation seems to count for naught.  Granted, we have what appears to be an act of dishonesty on Mr. Dodd's part, if in fact it turns out that he really lied on his applications.  Even so, it is understandable why he would feel it necessary to deny his past convictions.  As Mr. Dodd himself put, "What do I have to do to put this behind me?"  The answer that the Jackson-Madison School District gave him is: there's nothing you can do.

I'll end this post with a statement from a former superintendent of the school district, Roy Weaver: "Weaver said Dodd's community activism, his work with the Boys and Girls Club, serving as a city councilman and his support of education made him a good role model for students. Dodd had served on the council since 1999."

Fear over reason, every time...?

Let's say that an employer kept in check her bias against people with criminal history and purposefully considered the 3-N's to make a reasonable decision whether to hire an applicant with an extensive criminal history. After careful consideration, the employer finds that, although a particular need justifies background check (say, because the position would require interaction with young children), the applicant's criminal history lacks the nexus to warrant denial of his employment.

For 15 years, the employee with a criminal history does a good job, obeys all laws, and is fully "rehabilitated" by any definition of that word. Not even a traffic ticket, as they say. One could even say that the employer's careful consideration 15 years ago has been proven right by the passage of time.

But what if someone else finds that the employee has a criminal history? The fifteen years of no recidivism is thrown out the window, and there is a public outcry of "We were so lucky that the criminal didn't hurt our children!"

It happened earlier this year in Los Angeles, when the LA Times' fear-mongering articles resulted in the massive firing of people with criminal records from the county hospital for no other reason than that they had decades-old convictions.

Today, St. Petersburg Times reports that a 60-year old man may lose his position on the board of a girls softball team because of the revelation that he had been convicted of crimes more than 15 years ago.

Les Miserables anyone?