Tag Archives: Expungement

Unring-ing the Bell

A recent news report tells us that Georgia lawmakers are once again looking at the way the state deals with criminal records, especially those that have been expunged.  The problem is that even when a criminal record is expunged it often ends up on someone’s radar.  Once that happens, there is very little that can be done to repair the damage done to the person’s reputation and prospects for employment or some other opportunity.  As they say in the law, you cannot “unring the bell”.

What caught my attention from this news report, however, is the following remark made by a state senator here in Georgia as to the reason why he decided to look into the expungment law in the first place:

“As a conservative I believe once somebody has paid their debt to society for a crime they’ve committed–they’ve been punished–then what I want that person to do is climb the economic ladder of success, become a productive citizen, pay taxes like all of us do and not go back to a life of crime,” McKoon explained. “[It’s] hard to do that if we place these barriers to employment.”

There are many troubling assumptions that are contained in this statement.  The senator, like most folks in the U.S., equates productivity with economic output so that a person who makes more money is considered more productive than the person who makes less money.  This, of course, is untrue. There are endless examples of why this is so.  Professional athletes are but one such example, investment bankers, another.  That most Americans  subscribe to the theory espoused by the senator  is one reason why income inequality in this country continues to worsen over time.  Along the same lines is the myth, implicit in the above statement, that everyone has a fair shot at “economic success” regardless of his or her background or circumstances.  This is also untrue.  And again, endless examples abound.  Indeed, one need look no further than the expungement “problem” where individuals with expunged criminal records are routinely denied employment and other opportunities.  It is no coincidence that these individuals are generally minorities who have led  hardscrabble lives.  The criminal record is just the hook on which the employer needs to hang his hat before he shows his applicant the door.  Finally, there is the assumption that a person who commits a crime is hardwired for this kind of activity and that this person will change only if we show him the way (i.e., climbing the economic ladder of success).  It is true that the majority of individuals who commit crimes do so because they need to not because they want to, but this “need” is borne from one’s circumstances not from one’s genetic makeup.

I do not mean to suggest that there is no room for advancement in the United States or other countries that share the general belief that one’s worth is measured in dollars or pounds.  But that room is far smaller than what we are often led to believe is the case.  And the sooner we realize that, the sooner we can make the case that present state of affairs cannot be sustained over the long term and must be changed.

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Odds and Ends (Post-Chaidez edition)

  • We have what might be our first guide on how to seek Padilla-based postconviction relief in the wake of Chaidez.  This “advisory” was co-authored by the Immigrant Defense Project and the National Immigration Project and can be downloaded here.  While the advisory is detailed and well-researched, it is still an advisory, and should not be a substitute for independent research and an individualized assessment of the case at issue.  
  •  The Sentencing Law and Policy blog picked up on an interesting law review article entitled Deporting the Pardoned which discusses and criticizes the lack of deference given by immigration laws in the deportation context to individuals who have had their convictions pardoned.  You can download the article here.  
  • The 11th Circuit today released its decision in the case of Chadrick Calvin Cole v. U.S. Attorney General, in which it held that a conviction under South Carolina’s Youthful Offender Act is a conviction for immigration/deportation purposes, even where the law gives the defendant the ability to expunge his conviction at some later date.  You can download the decision here.

Returning the Favor

Over at my law practice, I get a lot of inquiries about expungements.  Most if not all of the persons who ask about expungements do so because their criminal convictions have prevented them from applying for or maintaining a job.  Unfortunately, there is only so much a lawyer like myself can do in these situations; you either qualify for an expungement or you don’t.  There is rarely ever any gray area in seeking an expungement where the advocacy of an attorney would make a difference.  There are exceptions of this, of course, but they are few and far between.

These inquiries, and there are a lot of them, bring to fore the more sobering and practical aspects of a criminal conviction, and, in some cases, a past arrest.  The value and importance of employment cannot be overstated, especially for those who are looking to re-establish themselves in the free world after having been removed from it for some time.  It’s necessary from a day-to-day, pay the bills, perspective.  But it’s also important for one’s spirit and psychological well-being.

So when a prospective employer rejects a job application because the applicant has a prior criminal record, he or she is also sending a message: you may have served your time and paid your debt to society, but you are still unwelcome here. What, it might be asked, should an ex-inmate make of such a message?  On the first few occasions, not much.  He or she would probably hope for a better more humane reception from a different audience.  However, when it gets to the fifth or sixth time the welcome mat is pulled from underneath one’s feet, the feelings of despair and hopelessness start to kick in.  This leads almost inevitably to the place from where the inmate first started: jail.

On July 26th, the EEOC convened a public meeting on this very subject.  The testimony of the panelists and a complete video of the meeting can be found here.  I conclude this post by quoting  from the testimony of one of the panelists, Michael Curtin, the head of D.C. Central Kitchen, an organization, which, according to its website, “turns leftover food into millions of meals for thousands of at-risk individuals while offering nationally recognized culinary job training to once homeless and hungry adults”:

Let me finish by telling you about just one of our graduates, Dawain Arrington.

I’d like to tell you briefly about one of our graduates who spent over 17 years of his life in prison – starting when he was 11, living in SE, and was locked up for stealing food to feed his brothers while his dad was locked up for dealing drugs and his mom, a drug abuser, was out on a bender. This started a tragic but very predictable spiral into drugs, violence and gangs that landed him in jail again for what was supposed to be a 35 year sentence.

During that last stay, he realized that he couldn’t continue this lifestyle. He did exactly what we told him to. He got his GED, he got a dry wall certificate, a welding certificate and a masonry certificate. With a great deal of luck, he was released after 13 years thinking he would now be able to start over. The only thing he did for two months was apply for posted jobs requiring the skills he had learned in prison. The only thing he got was doors slammed in his face because of his record.

He told his case worker that he might as well send him back to prison now because without a job and with no prospects, he would have to turn to the life he knew that would either see him dead or back in prison. Instead, that case worker sent him to DC Central Kitchen. Now, this is not intended to be a commercial for DC Central Kitchen. He just happened to come to us because we had recruited at his halfway house and that case worker knew about our program.

Dawain wasn’t a model student from day one, but he got himself into shape and did an excellent job. We had an opening in our catering department when he graduated in 2005, and we hired him. He has been with us ever since and is now a supervisor in charge of putting out the 4800 meals we produce for the City’s shelters, half-way houses, transitional homes and other social service programs in our community. He also now has a daughter who will never have the expectation he did when he was eleven years of old: “If I live to be 21, which I probably won’t, I’ll be in prison.”

That is what a job can do. As a community, we’ve spent close to a million dollars keeping Dawain locked up. Don’t get me wrong – he did some bad things and deserved to be locked up. The chances are very good that if had not come to the Kitchen and not gotten a job, he would be costing us all money today. Instead he is putting money into our economy, helping others while he’s doing that and, perhaps most importantly, changing the expectations of the next generation and those to follow. Saving us all millions along the way.

I realize that talking about victories 15, 20, 30 years down the road is tough to calculate and maybe even harder to sell politically. The beauty of it is, it starts paying today and keeps paying well beyond tomorrow.

As I said, I have been in the hospitality business for over two decades. I can say with confidence that I have never felt more confident of and comfortable with any staff I have ever had than the staff we have at DC Central Kitchen. While we are certainly not without our issues, I trust this staff and depend on them. I honestly feel that the men and women working at the Kitchen not only see a higher purpose in our work, but they understand the value of the job. On many occasions, I have been told by members of our team that this job not only saved their lives but is the one thing that is keeping them from going back to prison or winding up dead on the streets.

I am honored and grateful to be able to be here today and I would ask the EEOC to use its authority and help remove the barriers to employment that ex-offenders face not just because it is the right or the good thing to do but because it is also the smart thing to do. Every single day I see people who have committed to changing their lives and the lives of their families. The only thing we are asking is that these individuals are given a fighting chance and are not blindly discriminated against because of mistakes they have made in the past.