Tuesday, December 06, 2016
Clemency and Collateral Consequences
Back in May, a Loyola Law School student and I submitted a clemency petition to the Office of the Pardon Attorney (OPA) as part of President Obama's Clemency Initiative. Our client had received a 30 year sentence for a non-violent cocaine offense that would, today, likely come with a 10-12 year sentence. Our client had already served 19 years of the sentence. At the end of October, I received the amazing phone call from the OPA informing me that the President was signing the petition, and that our client's sentence was to be commuted, and would expire in Feb. 2017, sparing him 6-11 additional years in prison.
That Obama should sign thousands more such petitions before he hands over the Executive Office to an individual who does not believe in the redemption of anyone other than himself is an imperative of justice. Yet, despite this tremendous victory, the challenge that awaited our client upon release was not lost on him. He was now 52 years old, he possesses few 21st-century labor market skills, and--perhaps most daunting of all--he would still carry his criminal record with him wherever he went.
Malcolm Feeley famously wrote three decades ago that, when it comes to criminal justice, the process is the punishment. In today’s increasingly efficient, assembly-line criminal justice system, the process may no longer extract such a damaging toll (though it certainly inflicts unnecessary harm). Rather, as James Jacobs has written in his recent book on criminal records, The Eternal Criminal Record, today “the basic punishment meted out in criminal cases is a conviction record that exposes the record-subject to discrimination, disabilities, and disqualifications.”
I ignored the advice of wise colleagues and prawfsblawg commenters about writing a book review pre-tenure and reviewed Jacobs' important book. [I loved doing so, and would do it again, whatever tenure points it was or wasn't worth.] In it, I noted three aspects of American Criminal Record Exceptionalism: that in the United States, criminal records are exceptionally public, exceptionally punitive, and exceptionally permanent. The mixed feelings I have on behalf of my clemency client are most related to the exceptional permanence of his criminal record. As he sets out as a 52-year-old man, whose days of offending should be long behind him, to find work and housing, to access public benefits and vote for representatives and on legislation that will govern his community, he will too often find that his punishment continues because his criminal record decides his fate.
A commutation is not forgiveness in the way that a pardon is. As the DoJ FAQ on clemency makes clear, a commutation "does not change the fact of conviction, imply innocence, or remove civil disabilities that apply to the convicted person as a result of the criminal conviction." Yet a commutation suggests that a sufficient amount of punishment has already been inflicted on the offender. For reasons explored briefly in my book review and more fully in other articles I've written about criminal convictions and access to citizenship and the criminal records of youth, I think it is worth serious consideration whether there should be a statutory sunset on the collateral consequences of criminal records. Decarceration and penal moderation deserve the policy momentum they have today, and they should be joined by further efforts to minimize the unjustifiably long shadow of criminal convictions.
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