Criminal Justice Reform Must Include Civil Legal Aid

12/02/2015 02:46 pm ET Updated Dec 02, 2016
In this photo taken Thursday, Feb. 20, 2014, carrying his  belongings and blanket Derek Martinez, 37, waits to enter a his as
In this photo taken Thursday, Feb. 20, 2014, carrying his belongings and blanket Derek Martinez, 37, waits to enter a his assigned cell block after his arrival at the Deuel Vocational Institution in Tracy Calif. Martinez, a second strike offender from Shasta County, has been serving a life term with the possibility of parole for first degree murder since 2007. California counties are thwarting the state's efforts to comply with a federal court order to reduce it's inmate population by sending state prisons far more convicts than anticipated including a record number of second-strikers. The state is trying to comply with a landmark restructuring of its criminal justice system through a nearly 3-year-old law pushed by Gov. Jerry Brown that keeps lower-level felons in county jails while reserving scarce state prison cells for serious, violent and sexual offenders.(AP Photo/Rich Pedroncelli)

Last month, Massachusetts Governor Charlie Baker and legislative leaders announced the formation of a bipartisan working group that will partner with the Council of State Governments (CSG) to review our criminal justice system in order to reduce recidivism and incarceration rates. The CSG's Justice Center has been working with states across the country to apply its Justice Reinvestment model to analyze criminal justice data and help policymakers pinpoint what is driving recidivism, so that they may craft cost-effective solutions.

The effort is part of a nationwide trend toward dramatically reducing our country's bloated prison population, which includes a long-awaited, bipartisan federal criminal justice reform bill. As our country moves toward reversing decades of overly harsh sentences for non-violent crimes and mandatory "three strikes" life sentences, criminal justice reform packages must also incorporate civil legal assistance for those newly released from prison.

Civil legal assistance is necessary to help avoid the stigma associated with having a criminal record, which can be devastating to people trying to rebuild their lives after a period of incarceration; it's well known that having a criminal record is a serious obstacle to employment. Background checks are sometimes necessary for the safety and security of the workplace, but many employers refuse to consider anyone with a criminal record (even though such blanket practices violate civil rights laws). Worse, those in Boston affected most by these policies come from the city's communities of color, where rates of incarceration―as they are nationwide―are much higher than among white populations. Meanwhile, the existence of a criminal record can mask existing racism by giving employers an excuse not to hire an otherwise qualified applicant.

Civil legal aid can help those with a criminal record navigate the complicated process of expunging or sealing their records. Expunging a record means that the record is destroyed and, for all intents and purposes, never existed in the first place. If someone has been the victim of identity theft and a criminal record exists with their name, a judge may order that the record be changed so that their name is replaced with "Jane Doe" or "John Doe." Juvenile arrest records that are kept by police, and abuse prevention orders obtained under fraudulent circumstances are also eligible for expungement.

Sealing a record does not eliminate it, but it makes it much harder for a potential employer to access the record, and it also means that for offenses that occurred many years ago, you can legally answer the question of whether you have ever been convicted of a crime with the answer, "No." Cases that are eligible to be sealed include convictions of misdemeanors that are at least five years old and certain felony convictions that are at least 10 years old. Other cases include charges that were ultimately dismissed or resulted in a verdict of not guilty.

It is now easier to seal a criminal record in Massachusetts thanks to the work of Greater Boston Legal Services. Last year, the civil legal aid organization won an appeal before the Massachusetts Supreme Judicial Court that resulted in lowering the standard for sealing a criminal record from having to prove that the reason to seal a record outweighed the public's First Amendment right to see this information to merely proving that there is a "good cause" to seal the record. Examples of "good cause" range from the number of years between the filing of the original charge and the present time; a long period of sobriety and other successful efforts at rehabilitation and self-improvement; and having been denied employment solely on the basis of a past criminal charge or conviction that has no bearing on the prospective job.

There are other important ways in which civil legal aid can assist people re-entering society after serving prison time. A driver's license is a critical for many people in finding and maintaining a job; a legal aid attorney can help navigate a relicensing hearing. Those who are seeking to start new lives outside prison walls need assistance with financial considerations and obligations which are areas of concern for many former inmates. They may need legal assistance to untangle fines and court costs imposed at sentencing and to resolve conflicting payment obligations. For younger offenders being released from a juvenile facility, civil legal aid representation can assist with reinstatement into school and the formulation of an appropriate education plan. Legal aid can also help a former inmate address improper public housing authority eviction proceedings and file fair housing complaints.

As a potent anti-poverty and social justice tool, civil legal aid ameliorates the conditions that might lead to incarceration in the first place such as unemployment; housing instability or homelessness; and crushing debt. As our lawmakers consider ways to make our criminal justice system more effective, humane, and less financially burdensome, civil legal aid needs to be part of any discussion about the continuum of re-entry programs we provide to former inmates. For some of them, being able to get civil legal aid could mean the difference between becoming a contributing member of society again or returning to life behind bars.