Attorney General Eric Holder made national headlines last week when he announced the Department of Justice's proposed change in clemency guidelines -- allowing selected prisoners to be considered for early release. The announcement, followed by the DOJ's official release of the new guidelines a few days later, was applauded by many as an important move toward helping those sentenced under harsh and outdated drug laws which warehouse non-violent prisoners far longer than is fair, productive, or cost-efficient. As Deputy Attorney General James Cole said when announcing the new guidelines, "These older, stringent punishments that are out of line with sentences imposed under today's laws erode people's confidence in our criminal justice system."
As one who has seen the process of the "sausages being made" in our criminal justice system firsthand from both sides -- prosecution and defense -- I view Holder's initiative as a step in the right direction. Some career criminals and violent predators deserve a life behind bars. But most non-violent offenders do not. Our prisons are far too full of non-violent offenders. We have the highest per capita prison population on earth -- a sad distinction in which we should take no pride. But as well-intentioned as Holder's clemency plan is, it falls short. That's because releasing prisoners back into society where they are forced to live out the remainder of their lives as convicted felons is a recipe for failure.
A felony conviction is a major impediment to getting a job, going back to school, renting an apartment, getting a loan, or securing a mortgage. A criminal conviction can be a bar to more than 100 licensed professions. These "collateral consequences" of a criminal conviction can follow an ex-offender throughout his or her entire life and serve as a permanent roadblock to successful reintegration into society. Countless reformed ex-offenders have been denied jobs simply due to past low-level felony convictions, even those dating back decades. Finding a job these days is hard enough -- and for someone with a criminal record, it often becomes impossible. In New York, up to 60 percent of people with criminal records remain unemployed one year after being released from prison. Some ex-offenders will eventually slip back into criminal conduct or survive on tax-payer funded public assistance simply because of the lack of opportunities.
If we truly want to help non-violent ex-offenders, tax-payers, and society at large, granting clemency is only half the equation. The other half is to change our laws to help ex-offenders successfully reintegrate back into the productive community. The way to do this is with "second chance" laws. These laws, enacted in most states, permit certain ex-offenders to seal or expunge their records after a period of time passes during which they abide by the law and strive toward productivity. These laws can be written so that only truly deserving ex-offenders will qualify, and only certain non-violent crimes would be eligible. Most importantly, the record sealing can be conditioned upon continued law-abiding behavior - effectively imposing a lifetime of private probation, but without a loss of opportunities. This is precisely the plan for New York State -- one of the minority of states without a broad sealing or expungement law -- currently proposed by the Chief Judge of its Court of Appeals and by its State Bar Association.
Sadly, as in New York, there is currently no federal second chance law. We have already created a burgeoning population of federal ex-prisoners who face major roadblocks in jobs, education and housing. The beneficiaries of Holder's clemency initiative will join this growing throng of second-class citizens, unemployed or under-employed, and forever denied their chance to pursue the American Dream due to their never-ending stigma as past convicted felons.
The Administration's new clemency guidelines are definitely a move in the right direction, but without a federal sealing or expungement law, the policy will only create an even larger population of disenfranchised Americans unable to support themselves or their families. We can give these Americans a chance to contribute to society, rather than being a burden to it. It's time for common sense to take the reins of our criminal justice system on this issue. And it's time for those who have paid their debt to society to have the opportunity to successfully re-enter and reintegrate back into the community with the chance for a fresh start. Now more than ever, we need a federal sealing or expungement law.