When the Punishment Doesn't Fit the Crime: Reinventing Forgiveness in Unforgiving Times

Vol. 38 No. 3

By

Margaret Colgate Love chaired the Drafting Task Force of the ABA Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons (2001–04) and serves as ABA liaison to the Uniform Law Commission’s collateral consequences project. She represents applicants for executive clemency.

People who commit a crime and are brought before a court to be sentenced expect to face a prison term or at least probation, and perhaps a fine. If this is their first brush with the justice system, they have a general sense that they will experience a degree of social opprobrium, the so-called stigma of conviction. But it is an article of faith for most Americans that people who violate the law will in time pay their debt to society and be welcomed back to its good graces.

President George W. Bush called us the “land of second chance,” and President Barack Obama famously congratulated the Philadelphia Eagles for letting Michael Vick walk from prison back into the team’s starting line-up. But the reality for people of ordinary abilities is very different. The following story (drawn from my article in the spring 2011 Howard Law Journal) illustrates the new normal in American punishment, in which the so-called collateral consequences of conviction are numerous, severe, and very hard to avoid or mitigate.

A Second-Chance Story

At the time Darrell Langdon came to public attention in the summer of 2010, he had just been turned down for a job as a boiler-room engineer with the Chicago Public Schools (CPS) under a state law barring anyone with a drug conviction from working in the public school system. Langdon’s conviction for drug possession was minor and dated, and he had gotten a court order relieving the legal impediment. Still, CPS refused to give him a chance. It was Langdon’s good fortune that a reporter from the Chicago Tribune took an interest in his story: “Darrell Langdon made a mistake more than two decades ago. A Cook County judge believes Langdon deserves a second chance. Until Monday, Chicago Public Schools officials didn’t—but, in response to my questions, they’re taking a second look.” Dawn Turner Trice, CPS: Good Conduct Certificate Not Good Enough, Chi. Trib., July 29, 2010, at 10.

What made Darrell Langdon’s case unusual was that he had worked successfully for CPS years before. In fact, he had been employed by CPS in 1985 when he was caught with a half gram of cocaine and sentenced to six months’ probation. He had kept his job then but struggled with his addiction. Finally, in 1988, CPS sent him to its employee assistance program for drug treatment. It was a turning point. Langdon later reported, “I did so well that I was eventually called on to tell my story and help others with their addictions.”

Langdon’s recovery was remarkable, and he became a responsible family man and well-respected member of his community. In 1995, he left CPS to work in real estate, but thirteen years later the market downturn led him to reapply for his old job with the school system. By that time he had been sober for two decades, raised two sons as a single parent, and mentored many others through Alcoholics Anonymous. CPS interviewed him three times over a sixteen-month period, gave him various tests to determine his engineering aptitude and skills, and finally offered him the job. Then came the background check. There would be no possibility of hiring him with his record.

Determined to get his old job back, Langdon sought help from Cabrini Green Legal Aid, where he found an advocate who was familiar with various relief provisions in Illinois law. Beth Johnson advised him against trying for a governor’s pardon because it would take too long to get his request considered. While he was eligible to have his record sealed, that would not benefit him in applying for school employment. But the Illinois courts had recently been authorized to issue a Certificate of Good Conduct that lifted statutory barriers to employment, including those applicable to employment at CPS, for someone determined by a court to be “a law-abiding citizen and . . . fully rehabilitated.” With only one conviction so long ago and a strong record of rehabilitation, Langdon was an excellent candidate for this relief.

Johnson filed a petition in Cook County Circuit Court, attaching letters attesting to Langdon’s two decades of sobriety and dedicated service to others in recovery, his steadfast commitment as a parent despite many difficulties, the respect and affection of his neighbors and business associates, and even his talents as a cook. At a hearing before Judge Paul Biebel, Langdon spoke movingly about his journey to sobriety in the 1980s, and how he had maintained his sobriety over the years. Judge Biebel, satisfied that he met the statutory standard, issued him the certificate.

This should have been the end of Langdon’s story because CPS was no longer legally barred from hiring him. But he ran into that bureaucratic aversion to risk that people with a criminal record frequently encounter. A CPS official explained to the Chicago Tribune: “We have to ensure we’re hiring people who won’t put our children in jeopardy.” A policy of blanket rejection was safe and easy to administer. But the media attention provided the necessary encouragement for CPS to consider Langdon’s application more seriously, and eventually he was offered his old job back under a new hiring policy developed with his case in mind.

In many ways, Darrell Langdon’s story is fairly typical in terms of the difficulties faced by people with a criminal record seeking employment: Even where there are no disqualifying legal barriers, and even with convincing evidence of ability and good character, they may be excluded without rational explanation. In other ways, Langdon’s story is happily atypical: He had a skilled advocate for his cause, a legal system that was well-suited to his particular need, and a sympathetic and determined reporter to tell his story and to shame a risk-averse employer into doing the right thing. Most people are not so lucky.

Langdon’s fight to regain his old job with CPS shows how hard it is these days to overcome a criminal record, even one that is dated and minor. And if the law poses no obstacle to advancement, there remains the fear and loathing that a criminal record inspires. But Langdon’s story also shows that the system is capable of change. The following discussion puts the story into a larger context.

Modern Civil Death

From colonial times, the American legal system has recognized the reduced status of a convicted criminal, derived from the ancient Greek concept of “infamia,” or “outlawry,” among the Germanic tribes. The idea that criminals should be separated from the rest of society led to “civil death” in the Middle Ages, and to exile by transportation in the Enlightenment. A half century ago, Chief Justice Earl Warren observed that “[c]onviction of a felony imposes a status upon a person which not only makes him vulnerable to future sanctions through new civil disability statutes, but which also seriously affects his reputation and economic opportunities.” It is this semi-outlaw status more than any prison term or fine that is frequently a criminal defendant’s most serious punishment.

In 1960, the phenomenon that Nora Demleitner has described as “internal exile” had a limited impact on American society because conviction was comparatively rare, criminal records were hard to access, and official forgiveness was relatively easy to obtain. Chief executives still treated pardoning as an integral part of their job, and the Model Penal Code reflected the new fascination with judicial restoration of rights through vacatur or expungement. The reformers of the era thought permanent branding inhumane and inefficient.

In 1967, the President’s Crime Commission called for the wholesale reform of “the system of disabilities and disqualifications that has grown up” because it interfered with rehabilitative efforts. Other reform groups, including the American Bar Association (ABA), called for the abolition of mandatory status-generated sanctions, favoring “an informed and restrained exercise of discretion.” As late as 1981, the ABA confidently predicted that “collateral consequences” were on their way to extinction: “As the number of disabilities diminishes and their imposition becomes more rationally based and restricted in coverage, the need for expungement and nullification statutes decreases.” We will see just how wrong that prediction was.

The modern era of escalating prison populations that began in the mid-1980s saw a retreat from the forgiving spirit of the earlier period. In the past two decades, the status imposed by conviction has become increasingly public, the sanctions generated by it have become ever more severe and hard to mitigate, and the number of people trapped in that status—usually for life—has ballooned. Promulgated indiscriminately over three decades in the War on Crime, and administered rigidly in the risk-averse post-9/11 environment, collateral sanctions now mandate exclusion of people with a criminal record from a wide range of benefits and opportunities.

A minor drug conviction like Darrell Langdon’s, for instance, can make a person ineligible for welfare benefits, public housing, a driver’s license, student loans, insurance, voting, government employment, and hundreds of different types of jobs requiring a license. It can also lead to mandatory deportation for a noncitizen. Sex offenders may be effectively barred from living in urban areas because they cannot reside near schools, playgrounds, or even bus stops where children congregate. Repeat offenses can result in designation as a “career criminal” and harsh recidivist or three-strikes sentences. In August 2010, as part of a federally funded study, the ABA Criminal Justice Section identified 38,000 laws and regulations imposing collateral penalties.

Beyond legal obstacles, there is social stigma. A recent study of online job ads posted on Craigslist in five major cities noted widespread use of blanket policies excluding from consideration anyone with any type of conviction in entry-level jobs such as warehouse workers, delivery drivers, and sales clerks. People of means are not exempt from this chill, as government procurement officials and private insurance companies steer clear of businesses that employ people with a record. Law firms and human resource consultants counsel their clients (“just to be safe”) against hiring anyone whose background includes any brush with the law.

As collateral penalties have proliferated in legal codes and administrative rules, the mechanisms for overcoming them (such as executive pardon) have atrophied. Background checks are routine even for volunteer jobs in the community, and criminal records are available online for as little as $15. (It is now surprisingly easy to delve anonymously into someone’s past: A Google name search may bring up an unsolicited offer from a private screening company to do a criminal background check on a neighbor, coworker, or teacher for a nominal fee.)

And, of course, more and more people are caught up in the dragnet of the criminal justice system. Most don’t go to prison, but all face a modern civil death, in law and in fact. That people of color are disproportionately branded and ostracized is particular cause for alarm. That was the new reality facing Darrell Langdon when he tried to get his old job back.

Today there are more than 90 million Americans with a criminal record who cannot hope to pay their debt to society. If we still like to imagine our country as the “land of second chance,” and rejoice at Michael Vick’s redemption, as a practical matter, our laws and attitudes point in the opposite direction.

Countervailing Trends and Influences

There are the beginnings of resistance to a regime of exclusionary laws and policies, as policymakers understand that degraded status and lost opportunities exact a high price in public safety and taxpayer burden, quite apart from considerations of fair play for the individuals affected. When people returning from prison are barred from jobs and housing, they are more likely to slip back into a life of crime. It is the goal of reentry programs to see that this doesn’t happen. When people like Darrell Langdon continue to experience discrimination decades after their rehabilitation is secure, they may reasonably ask what the point was in trying.

The Supreme Court has been an unexpected change agent, giving lawyers and judges new reason to concern themselves with how collateral sanctions are imposed and how they may be avoided. In its groundbreaking decision in Padilla v. Kentucky (130 S. Ct. 1473 (2010)), the Court held that a criminal defense lawyer was constitutionally required to advise his noncitizen client considering a guilty plea that he was almost certain to be deported as a result. Characterized by the concurring justices as a “major upheaval in Sixth Amendment law,” Padilla’s rationale is hard to confine to deportation consequences alone but potentially extends to other status-generated penalties that are sufficiently important to a criminal defendant to influence his willingness to plead guilty.

Because of Padilla, competent defense lawyers will now advise their clients about collateral penalties and incorporate them into negotiations over the disposition of criminal charges. Judicious prosecutors will take steps to protect against post-conviction challenges based on consequences no one was aware of and may be more open to alternative dispositions that do not result in a conviction record. And courts will no longer declare collateral consequences to be “none of our business” just because they do not control their imposition.

The Padilla decision suggests that forgiveness has a constitutional dimension as well. In finding a constitutional obligation to warn, the Court emphasized that deportation is a “virtually inevitable” consequence of a guilty plea because Congress has eliminated judicial and administrative mechanisms for discretionary relief. Lower courts have held that the availability of relief from collateral sanctions in post-conviction proceedings is relevant in constitutional challenges to the imposition of these sanctions in the first instance, under the ex post facto and due process clauses.

Competent lawyers therefore need to know not only what collateral sanctions will apply to their clients upon conviction, but also how to avoid or mitigate them, including at sentencing itself. Prosecutors and judges need this information too in order to understand their own obligations to core principles of proportionality and fairness—principles that must now be understood to apply not just to the court-imposed sentence, but to collateral penalties affecting significant private interests that otherwise will last a lifetime.

In one case now pending in the Pennsylvania Supreme Court, a long-time school teacher unwittingly lost his pension after pleading guilty to a misdemeanor involving one of his students. Fairness is a particularly relevant concern where such penalties bear little or no relationship to the underlying criminal conduct, or where the passage of time has attenuated any relationship that might once have existed. It is not farfetched to suggest that the dispensation provided by the Certificate of Good Conduct in Darrell Langdon’s case was constitutionally required.

Finally, in making and enforcing laws, government officials need to consider whether status-generated sanctions are a form of reasonable regulation or simply additional punishment that impairs the ability for self-support in the legitimate economy and perpetuates social alienation. Social science research suggests the latter may be closer to the truth.

Alfred Blumstein and Kiminori Nakamura have shown that “some point in time is reached when a person with a criminal record, who remained free of further contact with the criminal justice system, is of no greater risk than a counterpart of the same age—an indication of redemption from the mark of crime.” It is something of an embarrassment that the law, supposedly the manifestation of society’s most enlightened values, should lag behind cold science in recognizing the virtues of forgiveness.

If forgiveness for those convicted of crime finds support in both public policy and emerging legal doctrine, it remains to consider how it can best be packaged for a modern audience.

Reinventing Pardon

In The Federalist No. 74, Alexander Hamilton argued that “humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed.” He spoke of the “necessary severity” of the criminal code that required “an easy access to exceptions in favor of unfortunate guilt.” As Hamilton expected, pardon functioned as a fully operational part of the justice system from the earliest days of the Republic. Pardon was useful not only to cut short mandatory prison sentences, but also to remove legal disabilities and signify an individual’s good character. Until quite recently, the routine availability of pardon after service of sentence meant that a convicted person could look forward to a full and early reintegration into free society—with the same benefits and opportunities available to any other member of the general public—free of unwarranted collateral penalties and the stigma of conviction. Expungement and set-aside statutes, enacted as a substitute for pardon, relieved minor offenders of the need to report their convictions.

In the past thirty years, the old routes to official forgiveness have become impassable. Pardon has come to be regarded as a bothersome and politically dangerous anachronism. Relief premised on concealment has become increasingly unreliable and unpopular in the face of technological advances and a public appetite for full disclosure. Systemic efforts to avoid threshold rejection, like “ban-the-box” legislation or limits on pre-employment inquiries, have driven discretion underground.

Yet, as we have seen, the idea of official forgiveness finds new policy support in efforts to reduce recidivism through reentry programming and new legal support in the reasoning of the Padilla decision. If the pardon power cannot be reinvigorated, as Supreme Court Justice Anthony Kennedy urged at the 2003 ABA Annual Meeting, perhaps it can be reinvented.

It happened that just two days after Justice Kennedy delivered his now-iconic speech, the ABA House adopted a set of standards that proposed a new template for limiting and rationalizing the collateral consequences of conviction. Among other things, the Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification proposed that forgiveness should be an important responsibility of the court that imposes punishment. Borrowing the framework proposed some forty years earlier in § 306.6 of the Model Penal Code, the ABA Standards provided that “timely and effective” relief from mandatory collateral sanctions should be available as early as sentencing itself, to alleviate impediments to successful rehabilitation. The preferable dispenser of forgiveness is the sentencing court. There should also be a later opportunity for a fuller restoration of legal rights and social status, also from the sentencing court (though a specialized administrative agency might serve as well).

Six years later, the Uniform Collateral Consequences of Conviction Act (UCCCA) adopted the two-tiered relief scheme of the ABA Standards, adding protections against negligence liability for anyone willing to take a risk on a person deemed rehabilitated. The idea of this relief is to remove mandatory legal barriers and allow a decision maker to consider an individual fairly on the merits. Conviction should be grounds for disqualification only if the criminal conduct is reasonably and substantially related to the benefit or opportunity at issue.

The need for a back-end pardoning mechanism will diminish by virtue of other provisions of the ABA Standards and the UCCCA that introduce a degree of transparency into the process by which collateral sanctions and disqualifications are imposed in the first instance. If it turns out that there are really 38,000 such laws and rules, as the aforementioned federally funded study indicates, perhaps the shock will result in some retrenching. In addition, the fuller integration of collateral sanctions into plea negotiations and sentencing hastened by the Padilla decision will in time lead away from the punitive model of collateral penalties that has developed over the past three decades. If (as both the ABA Standards and the UCCCA require) courts must ensure that defendants are informed about applicable collateral sanctions before they accept a guilty plea, excessive severity may disrupt a system of negotiations on which the criminal justice system has come to depend. When prosecutors find it harder to craft acceptable plea offers because of collateral sanctions, when defendants are willing to risk going to trial to avoid them, and when judges are moved to set pleas aside because the agreed-upon deal later seems unfair, the system of collateral consequences that traps so many in a degraded social status must change. As Stephanos Bibas has argued respecting the impact of the Padilla decision on the procedural aspects of the plea process, the move toward a consumer protection model now seems inevitable. The result will be a fairer, safer, and more efficient justice system.

Conclusion

Collateral sanctions have been recognized as an impediment to successful reentry and reintegration of persons with a conviction record, but very few jurisdictions have developed an effective way of avoiding or mitigating them. Many years after conviction, these legal barriers frequently serve only as irrational punishment, not reasonable regulation. Even if a convicted person is not legally barred from eligibility for some benefit or opportunity, decision makers are frequently reluctant to take a chance on someone with a criminal record, even with evidence that conviction is a poor predictor of future criminality after an extended period of law-abiding conduct.

The law provides little by way of encouragement or support for those otherwise willing to recognize redemption. This is as systemically short-sighted as it is unfair to the individuals involved. That is why, so many years later, Hamilton’s observation about the conspiracy of humanity and good policy still rings true. Unless we as a society are comfortable living with a growing class of “internal exiles” who have no way to pay their debt to society and return to its good graces, with its attendant public safety risks and moral dilemmas, we should be looking for a more effective way of giving convicted individuals a fair chance to become fully productive members of society. As lawyers, it is our job to make the law forgiving.

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