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.