While the subject of mass incarceration was briefly mentioned by a few during the 2016 campaign season, the topic was largely ignored by most political candidates. Still, the issue has garnered some high level bipartisan attention.
Recently there has been cooperation by the likes of Rand Paul, the Koch brothers, Newt Gingrich, the ACLU and Cory Booker. At the grassroots level, conversations about the direction of criminal justice are taking place.
The time has come for Michigan to enact sensible legislation which would mark a clearer end to the now indefinite employment barriers faced by those who once erred but who have since chosen to head in a positive direction. The criteria for expungement should be expanded.
Around 68 million Americans are living with criminal records, a figure roughly equal to those with a four-year college degree in the U.S. Put differently, the number of Americans with criminal records is equal to the population of France.
It is well known that having a criminal record significantly limits a person’s ability to find meaningful work, and it is not only felons who face this barrier. According to one survey, while between 74 and 96 percent of employers rank felony convictions as a significant factor in their hiring decisions, between 26 and 60 percent also give weight to misdemeanor convictions.
There is an erroneous perception about what exactly is indicated by a criminal record. While conventional wisdom holds that past behavior is the best predictor of future behavior, this is not entirely accurate. While an offender is more likely to offend in the initial post-release period, this tendency diminishes with time. Generally, the risk of recidivism drops sharply after three years.
In spite of their limits, companies continue to rely on background checks without regard for these nuances. On the one hand, employers have a right to know the risks associated with hiring an individual. On the other hand, old convictions, if followed by a period of lawfulness, are not indicative of significant risk. Because these older convictions are not useful in reliably predicting the occurrence of future crimes, their only remaining function is to hinder employment and to restrict offender reintegration. Ironically, gainful employment actually further reduces the likelihood of recidivism.
For some, expungement is an option. Michigan law allows expungement for up to one felony and two misdemeanor convictions. While this is an improvement upon the old law (which allowed expungement for only a single conviction) the current policy remains too narrow.
This issue can be fixed legislatively, if there is sufficient political will to do so. One solution would be to adopt a policy of automatic expungement for most offenses once five years has passed from the date of jurisdictional discharge, so long as the ex-offender remains free of any new convictions. Expungements granted as a matter of course would greatly incentivize personal responsibility and reward lawful behavior by giving the offender a clear and attainable goal toward which to strive.
People want to work. Ex-cons are not immune from dreaming the American dream, and those individuals who have remained conviction-free have demonstrated their tenacity and ability to overcome great odds. It requires strength of character for a former offender to turn things around. The path to redemption should be defined and broadened.
Robert W. VanSumeren is a student at Wayne State University Law School.