Op-Ed: Should a shoplifting conviction be an indelible scarlet letter? Not in California
What exactly is the appropriate punishment for someone who commits a low-level, nonviolent crime? Should a conviction for minor drug possession, shoplifting or writing a bad check result in a lifetime of stigma and denied opportunities, or do people with criminal records deserve a second chance?
In November, California voters took a clear stand on these issues when they passed Proposition 47 and reclassified eight nonviolent felonies to misdemeanors for people without prior serious convictions. Proposition 47 allows for the resentencing of many who have been convicted of such crimes, reducing the amount of time they serve, lowering state and county incarceration costs and chipping away at decades of overly punitive criminal-justice policies. But this common sense reform alone won’t necessarily change the lifelong punishment experienced by many people with a criminal record.
Today, a criminal record — even for a low-level misdemeanor or infraction — acts like an indelible scarlet letter. Until relatively recently, employers, landlords and others rarely requested criminal records, which could be accessed only by sifting through physical files in a local courthouse. With the post-9/11 push for more background checks, the advent of online databases and the steep increase in the number of people with convictions, criminal records have become a serious barrier to employment, housing, education and other forms of civic participation for millions of Californians.
New fair-chance hiring laws help reduce discrimination against people with criminal records by removing conviction history questions from initial job applications and postponing background checks until later in the process. But California has an additional remedy. Laws long on the books allow judges to dismiss old convictions, a recognition that people who have successfully completed their sentences should be free to rejoin society without disabling consequences. The dismissal remedy doesn’t erase the record completely, and it is not available in all cases, but it can restore rights and reduce barriers for many people.
These dismissal laws, however, are obscure and complex. The process can require a lot of paperwork and a court appearance, or even multiple appearances in more than one county. As a result, far too many Californians remain saddled with convictions that are otherwise eligible for dismissal.
The East Bay Community Law Center, a teaching law office affiliated with UC Berkeley School of Law, tries to address these problems. Since establishing its Clean Slate Clinic a decade ago, the center has helped several thousand people obtain record-clearing remedies with the aim of reducing the collateral consequences of convictions and lowering the risk of recidivism.
Under the supervision of attorneys, law students interview the clinic’s clients, draft their declarations, prepare them for court hearings and, if necessary, later represent them in civil and administrative proceedings to redress unlawful discrimination in employment, housing and professional licensing. The process can be long and emotional. People with criminal records are grappling with painful episodes from the past and hopeful aspirations for the future. But the results can be equally rewarding.
While Berkeley law students have been serving clean-slate clients, University of California researchers have been studying the results. We already know that clean-slate interventions increase a person’s ability to get a job and provide him or her with a profound sense of relief: No more skeletons in the closet.
But the benefits go far beyond that: In surveys, focus groups and in-depth interviews, people who’ve had their records cleared express a sense of accomplishment (increased confidence and self-esteem), a sense of hope (a focus on the future) and a sense of agency (control over their lives). Significantly, the clean-slate process itself — not just the outcome — appears to create a kind of status enhancement ritual, or rite of passage, helping people move from their old life into a new one.
Proposition 47 takes an important step toward addressing the consequences of mass incarceration in California. Tens of thousands of people will benefit from it. The Legislative Analyst’s Office estimates that the state and counties will each save hundreds of millions of dollars annually as a result of lower incarceration rates.
But rebuilding lives and communities will not flow automatically from the new law. As we take additional measures to reverse the most damaging effects of our tough-on-crime policies, we will need to invest time and resources in clean-slate programs that help people with criminal records go through the challenging process of re-integrating into our families, communities and society.
Keramet Reiter is an assistant professor in the UC Irvine School of Social Ecology and the School of Law. Jeffrey Selbin is a clinical professor of law at the UC Berkeley School of Law, and faculty director of the East Bay Community Law Center. Eliza Hersh is director of the East Bay Community Law Center’s Clean Slate Clinic.
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