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The Importance of Second Chances

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It could be your niece or nephew. Or even your son or daughter. It might even have been you, many years ago. Good people make dumb mistakes, especially when they're young. Maybe a neighbor's mailbox is intentionally damaged. Maybe an item is stolen from a high-end department store. Maybe a small quantity of marijuana is shared among a group of college students. Any of these situations can result in the filing of criminal charges. The convicted offender may be sentenced to pay fines, perform community service, complete a term of supervised probation, or even serve jail time. Society's debt must be paid, but at some point all aspects of the court matter are finished and the person is expected to re-enter productive life. It isn't so easy.

It is now estimated that more than one out of every three Americans passes through the criminal justice system. Since 2002, the United States has had the highest incarceration rate in the world. Over ten million children have parents who were imprisoned at some point in the children's lives. And prison terms are lengthening: for example, those released from state prisons in 2009 served sentences an average of 36 percent longer than those released in 1990 - costing state taxpayers an extra $10 billion, mostly for non-violent offenders. A burgeoning for-profit prison industry has arisen, for which human bodies are the inventory that keeps the dollars flowing.

The vast majority of convicted folks will one day reenter society. But as many people are finding out, a criminal conviction can close doors on getting a job, going to school, voting, getting loans or licenses, or securing a place to live. Here in New York, up to 60 percent of people with criminal records remain unemployed one year later. Blocking workers with criminal records from getting jobs hurts the economy and reduces public safety by turning potentially productive citizens into taxpayer burdens ... or into recidivists who slip back into crime to earn a living for themselves and their families. Nearly nine out of ten New Yorkers who violated probation or parole were unemployed at the time.

There is no provision for expungement - the removal or sealing of a criminal record - in the federal courts. A federal conviction involving any type of crime, however non-violent or out-of-character, will dog you until the day you die. There is a growing national recognition that something must be done to help people re-enter productive society after a conviction. The National Association of Criminal Defense Lawyers (NACDL) has created a Task Force on Restoration of Rights and Status After Conviction. I recently attended the Task Force's hearings in New York City in which numerous witnesses testified as to the collateral consequences of criminal convictions and the need for remedies.

For convictions in the state courts, hope for a second chance depends on the state of your conviction. Some states allow criminal records to be expunged or sealed, and some don't. Here in New York, for example, there is no expungement or sealing law applicable to adults who are convicted of crimes (other than in the limited instance of defendants convicted of a drug crime or certain specified offenses who complete specific drug diversion programs). A conviction typically follows an ex-offender to the grave.

If you're in a state like New York, you're out of luck - for now. Two years ago, the Criminal Justice Section of the New York State Bar Association formed a committee to study the issue of sealing criminal records for ex-offenders. I was honored to be appointed as Co-Chair. Our Committee Report and Recommendations urged changing the law to allow record sealing of certain deserving, non-violent ex-offenders. More recently, I was appointed to a New York State Bar Special Committee on Re-entry to further investigate and advise on needed policies regarding juveniles.

Everyone - including reformed ex-offenders who have paid their debt to society and are working hard to recover from mistakes made early on in their lives - is deserving of a second chance to become a productive, valued member of our society. The enactment of sealing or expungement laws in all 50 states would help ensure that end. I will continue working hard to move the initiative forward here in New York, and assisting the NACDL in any way possible (follow the blog at www.cmgesq.com for updates).