A new brand of progressive legislation is making the rounds in state legislatures.
Intended to help ex-felons get a fresh start and fair shake in society, it would shield their records from public view. Employers, landlords, and the public wouldn’t know whether someone had spent years in prison.
These laws don’t erase records, they only seal them. Important details can vary, such as whether people who served prison time are covered, and whether offenders must apply for sealing of their records or it happens automatically. Typically, sex offenders aren’t eligible, and certain agencies and entities — law enforcement, courts, and schools — can still access sealed records some purposes.
California, Pennsylvania, Utah, California, Michigan, Virginia, Delaware, Colorado, and Michigan have already signed up. The California legislature just passed legislation to extend that state’s so-called “Clean Slate” law to offenders who served prison time, and would allow those guilty of violent crimes to petition for sealing, which would be handled on a case-by-case basis. (See story here.)
The idea makes sense to a point. Doing something as a stupid kid like stealing liquor shouldn’t necessarily hound someone decades later. Nor should b.s. offenses like smoking pot when it was criminalized. But I’m skeptical of hiding significant criminal offenses from employers, landlords, and others with an interest in knowing whether someone has had run-ins with the law or serious character issues.
It makes more sense for one-time offenders; repeat offenders obviously shouldn’t be eligible. And the public should absolutely know whether dangerous people are living among them.
There’s another factor, too. Let’s say someone’s nervous about a neighbor or co-worker who, it so happens, is guilty of nothing. If there’s no way to find out, the suspicion will linger, and innocent people will be branded as possible threats. People will discriminate based on rumors, gossip, and profiling, and proving innocence will become impossible. Studies have shown, for example, that “employers were actually more likely to discriminate based on race” where these laws are in effect.
At this point, let me interject that clearing the records of wrongly arrested or exonerated individuals is a no-brainer, but that’s a separate issue and different laws address that. As state laws vary, some of those laws may be deficient; for example, they may cover wrongful arrests but not exonerations (Arizona is an example). There’s no reason for a person who didn’t commit a crime to have a record, and all states should meet that standard. But that’s different from sealing criminal records of those who did commit crimes.
In this less-than-perfect world, it’s too simplistic to say, “Don’t commit the crime, and you won’t have a problem.” People aren’t perfect, and 70 to 100 million Americans of a 330 million population have made mistakes that got them a record. They’re not all the same degree of risk to society, but trying to guess someone’s future behavior is extraordinarily difficult, and past behavior is what we rely on for lack of anything better.
God gave us brains to think and exercise judgment with, although obviously some are better at this than others. If someone stuck up a gas station at age 19 and served 3 years in prison for it, and now years later they admit they made a mistake, are honest about their past, and have a clean record since, I’m open to that person convincing me they’ve learned and grown from it and can be trusted now. But I still want to know about that history.
Many years ago as a law student I participated in what’s called a “moot court” exercise. This is trial practice, not a real trial, but using a real case that has gone through the court system, and using real witnesses (who volunteered to participate). My witness was an ex-felon, and my task was to get a jury of high school civics class students to believe him. My first question to him on the witness stand was whether he’d been in prison. He replied that he served 10 years for an armed robbery he committed in his early twenties. Then I asked him about what he did now, and he described his job and family. I won that mock trial.
I’m also reminded of a possibly apocryphal story about a business executive who made a mistake that cost his company millions. He was summoned to the CEO’s office and given an ass-chewing that lasted for over an hour, followed by a stony silence. The manager finally asked, “Well?” The CEO replied, “Well what?” The next question was, “Well, aren’t you going to fire me?” The CEO said, “I can’t afford to fire you. I just invested millions in your education.”
People will give someone a break if they’re honest and forthright about what they’ve done, admit to being wrong, and learned from it. That’s what inspires confidence they won’t make the same mistake again, or commit other serious mistakes. That’s how we use our God-given brains to gauge risks in this imperfect world where nobody is perfect and nothing is risk-free. But to do that I need more, not less, information.
So I’m suspicious of efforts to hide crucial information and force me to judge people blindly, just because someone’s afraid I won’t judge fairly and might discriminate unfairly against someone who deserves a break. I want to make that decision myself. If I’m an employer, landlord, concerned neighbor, or voter, these laws take my ability to judge whether I can trust someone away from me.
In theory, punishment is supposed to end when a person has paid their debt to society, and it’s not our role to keep on punishing them. And mindless discrimination is neither fair nor productive. But human nature is human nature, so you get a push for laws like these by well-meaning advocates who want to neutralize the lesser angels of our nature. But is that the right way to deal with the failings of human nature in this instance?