Criminal Justice Section  


Criminal Justice Magazine
Fall 2001
Volume 16, Issue 3

The Mark of Cain

By Webb Hubbell

And the Lord put a mark on Cain, so that no one who came upon him would kill him.
Genesis 4:15.

I am an ex-con.

I spent 18 months in federal prison after pleading guilty in 1994 to tax and mail fraud charges resulting from the Whitewater investigation.

Before that, I practiced law in Arkansas, was elected mayor of Little Rock, and served as chief justice of the Arkansas Supreme Court. In 1993, I was appointed associate attorney general of the United States, the third-highest law enforcement official in the land.

I figured that, with those skills and experience—not to mention the support of my friends and family—I would be able to start over and renew my life as a contributing member of society once I had paid my debt to it and got out of prison.

I soon learned, as have millions of other Americans, that I carry a mark that keeps me behind bars, even on the outside. In the prison reform movement, it’s called the "mark of Cain," but contrary to the biblical injunction, God’s mercy isn’t attached. Rather, it shackles former offenders like me with restrictions barring us—often permanently—from the means to live a normal life. Legally, these restrictions are called "civil disabilities." More realistically, they are called "civil death," a condition that, for many of us, offers little option but to return whence we came: to prison.

Ex-felons are not typically high on most readers’ sympathy list. After all, we got what we deserved, right? But there are so many of us—approximately 2 million currently behind bars, 4.5 million under some sort of supervision, and 600,000 of us due to be turned out onto the streets this year alone. The majority of us will be rearrested and reincarcerated within three years of our release. It’s a vicious revolving door that increasing numbers of experts and policymakers realize must be changed.

"Once someone is punished, we have to figure out a way for the punishment to end and for them to get on with their lives," Raul Russi, New York City Mayor Rudolph Giuliani’s probation commissioner, told USA Today. Right now, said Russi, who also headed the New York state parole board, ex-cons have just two options: "Either they work or they go back to jail."

Among the opportunities closed to me as I walked out of Cumberland Federal Prison in Maryland: almost any job requiring a federal license. Had I possessed any, they would have been automatically revoked.

It is highly unlikely that I could ever obtain a custom broker’s license, an export license, a merchant marine license, or even a locomotive engineer’s license. (Somehow, it’s hard for me to understand how my driving a train, once every little boy’s dream, could be a menace to society.) I cannot become a director, officer, employee, or controlling stockholder of any federally insured institution such as a bank or a savings and loan. I cannot be an adviser, officer, or director of a labor organization for 13 years after my conviction. The Commodities Futures Trading Commission may refuse to register me as a broker, adviser, or commodities pool operator. The Securities and Exchange Commission prohibits me from becoming an investment adviser for 10 years. The Secretary of Health and Human Services can bar me from working in any aspect of health care if federal, state, or local dollars are involved. I couldn’t even sweep the floors of a nursing home.

State laws are a crazy quilt of disqualifications, although they have one thing in common: They are far more draconian than federal restrictions. Any job that requires a state license is probably out, unless one has the money to hire an expert who, just maybe, could guide you through a panoply of bureaucratic hoops. In California, with a marijuana possession conviction, you can probably kiss goodbye a career in teaching or real estate. With a conviction for income tax evasion, you’ll never be a doctor.

I lost my license to practice law in my home state of Arkansas forever. The chances of getting a license to practice in another state are remote. Other occupations most likely closed to me include: certified public accountant, physician, dentist, insurance agent, nurse, real estate broker, pharmacist, landscape architect, law enforcement officer, teacher, day care worker, veterinarian, bartender, dietitian, engineer, barber, cosmetologist, mortician, speech pathologist, social worker.

Getting on with one’s life also involves family and social obligations. In Virginia, I could not raise money for my church or for the nonprofit organization where I work because it violates an obscure state law regarding certain types of felons. One young woman from Pennsylvania who corresponded with me after she served time for a minor role in a drug operation had a hard time explaining to her daughter why she couldn’t attend a parent-teacher conference. It’s because some states, including California, have passed laws banning ex-felons from school grounds.

Ah, yes, drugs. The mark of Cain extends here, too, even to the most minor offenses. Under pressure from the Bush administration to enforce a law passed during the Clinton presidency, college campuses are denying loans to students with misdemeanor drug convictions. This could have devastating consequences. Last year, 9,200 student applicants were denied aid because of an admitted drug conviction. Under Bush administration rules, any student who refuses to answer the question about a drug conviction will also be denied aid. Last year, 279,000 students left that question blank.

An editorial in the Pittsburgh Post-Gazette noted, "During his campaign for the presidency, George W. Bush refused to answer questions about whether he used drugs in his youth, but a similar demurral by student-aid applicants will not be tolerated."

Such hard-line policies can only make an already disastrous situation worse. Of the 145,000 inmates in federal prison, according to Fortune magazine, 58 percent are in for drug offenses, compared to 25 percent in 1980. How much higher would the administration like that percentage to go?

President Bush, who has admitted to "youthful indiscretions," is lucky. He lives in the White House, while others caught in similar indiscretions are barred from public housing. The president commands our armed forces; others who were caught are barred from serving in the military. The president will retire to a life of federal benefits and service on corporate boards and charitable foundations. Those less lucky may never be allowed inside a corporate boardroom. Perhaps his own daughters’ recent brushes with the law will prompt some rethinking by the president.

Ironically, the founding fathers did not prohibit felons from holding elected office. Aside from a few statutory disqualifications, a felony conviction does not disqualify a person from federal employment. I could conceivably run for president or even work again in the Justice Department (though I’m not waiting for Attorney General John Ashcroft to call). California and 35 other states (with the notable exception, as we know, of Florida) return the right to vote to felons once their debt is paid.

For most of the nonwhite, poorly educated inmates who make up the majority of America’s prison population, running for president is not a high priority. For those who want to go straight—and in my experience as an inmate and a counselor, the majority do—the question is whether they will be given that chance or whether the growing number of barriers will shackle them permanently to the lowest rung of the American ladder. Yet, for the most part, rehabilitation remains a dirty word.

Perhaps it’s time to remove the mark of Cain.

The Justice Department has made a tentative start, backing pilot "reentry partnership" programs in eight states, including Nevada, which bring together corrections institutions, local police, businesses, faith-based and community organizations to help ex-offenders re-enter society. There are additional pilot programs—also backed by the Justice Department—involving "re-entry courts" (modeled after drug courts) that work with ex-offenders. These courts have the power to lift various restrictions so long as the ex-offender stays with the program. Unfortunately, the courts cannot override state or federal laws that restrict employment opportunities.

We need to make these restrictions part of a judge’s discretion, which he or she could impose—or not. Further, restrictions should be tailored to the actual crime. For example, an individual found guilty of bank fraud might incur a five-year ban from working in a financial institution, but not lose his right, once out of prison, to work in other fields.

What would be appropriate for me under this scenario? I think it would be right for the judge to bar me from practicing law for at least five years, while insisting that I take some ethics courses. Were I to return to the profession, it would be under some form of supervision for a period of time. My hypothetical judge would prohibit me from acting in a fiduciary capacity for a period of years, as well. I think he would have agreed with the further orders in my actual case: to make restitution to the law firm from which I stole, to amend all my tax returns—thus incurring substantial indebtedness to the IRS in past-due taxes, interest, and penalties. In addition to requiring that I speak to inmates in Arkansas prisons for a year, at my expense, my hypothetical judge would mandate an additional period of community service. All these obligations would be appropriate in return for the removal of the mark of Cain.

It is important that American society protect itself with appropriate punishments for both violent and white-collar criminals. It is also important that we don’t extinguish the hopes for a second chance held by hundreds of thousands of fellow Americans who leave our prisons every year. Without that hope, and the means to realize it, what do we expect these people to do?

Editor’s Note: This is reprinted with the permission of the author. It first appeared in the June 10, 2001, issue of the San Francisco Chronicle .


Webb Hubbell , former associate attorney general of the United States, is a senior research fellow at the National Center on Institutions and Alternatives in Alexandria, Virginia.

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