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Forgiving vs. Forgetting

For offenders seeking a new life, a new redemption tool.

In February of 2003, a much younger Barack Obama rose before the Illinois State Senate to introduce a new piece of legislation that, he said, contained a compromise. The bill would help job-seekers who had long ago been convicted of a nonviolent crime (or two, at most) overcome the barriers to employment that came with having a criminal history. But the bill would do so without expunging their records.

Instead, Obama’s bill would create a final, years-later stage on the timeline of these ex-offenders' cases. They had already completed the stages of arrest, booking, indictment, plea bargaining or trial, sentencing, incarceration and/or probation. Now, ex-felons who had stayed crime-free for a few years would be eligible to come back to court and, in a full-blown hearing before a judge, attempt to “prove” that they had been rehabilitated.

Any ex-offender who succeeded in doing so, Obama announced, would be granted one of two new legal documents, the Certificate of Good Conduct or the Certificate of Relief from Disabilities. The certificate would represent an official assurance to employers – though, again, short of full expungement – that the ex-offender should no longer be judged for his or her crimes. More concretely, the good conduct certificate would make the ex-offender eligible for a range of municipal jobs, including in the public schools, the transit system, and the parks; the certificate of relief would remove barriers to a range of licenses, from real estate to barbering, cosmetology, and mortician’s licenses. Finally, any private employer who hired the now officially rehabilitated ex-offender would be insulated from liability suits claiming negligent hiring.

Obama’s bill was passed and went into effect one year later. Ever since, the granting of so-called Certificates of Rehabilitation has become an increasingly popular compromise version of full expungement in courts around the country. Between 2009 and 2014, nine states and Washington, D.C. began issuing the documents, also called certificates of relief, recovery, achievement, or employability.

certificates of reliefHere is a list of the 14 states (and Washington, D.C.) in total that now offer certificates of rehabilitation: Arizona, Arkansas, California, Connecticut, the District of Columbia, Georgia, Illinois, Nevada, New York, New Jersey, North Carolina, Ohio, Rhode Island, Tennessee and Vermont.

“These certificates are a remarkably dynamic new option,” says Kari Hamel, a civil legal aid attorney in North Carolina who is working to make the certificates – available in that state since 2011 – more accessible to more people with criminal records. “It’s a way of showing employers that the crime someone committed probably wasn’t committed yesterday. It makes what has happened since the crime a fully official part of that person’s record, for all employers to see.”

“That’s the key,” she adds. “Rehabilitation is absolutely a part of a person’s history of trouble with the law, it’s just the second part, the positive part.”

Paul Biebel, the presiding judge for Chicago's criminal court, agrees that the certificates are a promising new option. "Only over the last few years have we seen more of these coming through the court," he says of the certificates, "but I feel very strongly that they are an additional tool in a judge's toolbox to evaluate people. We judges are prepared to send people to prison. But now, if the evidence proves rehabilitation, we also have a tool for redeeming people."

The new certificates have burst onto the scene amid emerging bipartisan consensus that the consequences for committing low-level nonviolent crimes – including the collateral consequences, such as difficulty getting a job1 years later – should not be interminable. The Redeem Act, a bill sponsored by Senators Cory Booker and Rand Paul that would expand expungement for crimes committed as a juvenile, has picked up steam in Congress. President Obama, meanwhile, has highlighted the issue of the long-term impact of criminal records, particularly through his My Brother’s Keeper2 initiative.

difficulty getting a job1Over 80 percent of employers run criminal background checks, according to the Society for Human Resource Management.

My Brother’s Keeper2The My Brother's Keeper initiative is a collaboration between the White House and local businesses, foundations, and cities, aimed at creating more jobs and civic opportunities for young men of color.

This consensus is rooted in the fact that between 70 and 100 million Americans have an arrest, charge or conviction in their pasts. And, with the rise of the Internet, even a minor run-in with the law has been transformed from a temporary experience into a permanent one. This does not mesh well with the American ideal of self-reinvention.

Yet despite the emerging agreement that many ex-offenders deserve second chances, not everyone agrees that these new certificates are the best way to go about providing redemption.

Sharon Dietrich is one such critic. Dietrich is a civil legal aid attorney in Philadelphia and the author of “One Strike and You’re Out,” a report on the collateral consequences of criminal records, and she believes full expungement is always preferable to certificates. "Forgetting," she says, "either by expunging someone’s record altogether or by permanently sealing it, is a much better solution than forgiving, which is what these certificates claim to do.” The certificates are a "weak compromise," she adds, because they “rely on employers to do the right thing. But most employers will ignore the document that says you’ve been rehabilitated, and focus instead on the part about how you were arrested.”

Supporters of the certificates argue that “forgetting” is a pipe dream. For one thing, law enforcement agencies often resist expungement, because it purges the record of information that might be useful in future investigations.

James Jacobs, a professor of law at New York University and the author of “The Eternal Criminal Record,” says that even if expungement were more available, it would be a kind of “fraud” in the age of the Internet. “Expungement is not amnesia,” he says. “The information remains out there on the Internet. These private background check companies [such as HireRight and First Advantage] have no incentive to remove expunged or out-of-date information.” Background checks on job applicants are frequently inaccurate3 even without expungement, he said.

frequently inaccurate3In 2012, 600,000 job applicants received inaccurate FBI background checks.

For these reasons, Jacobs argues, ex-offenders are better off if they are equipped with an affirmative document, like a certificate, with which they can respond when employers inevitably find something damning on the Internet.

Then again, certificates are not useful at all if ex-offenders – and employers – do not know about them, or do not know who is eligible. And even once ex-offenders know about the option, the process of affirmatively filing for a certificate is extremely complex. The burden to prove rehabilitation is on the applicant, not the prosecution. To be successful requires gathering documents from multiple agencies, letters of support from community members, and proof of sobriety, then arranging all of it into a narrative that demonstrates "rehabilitation."

In other words, the success of these certificates depends heavily on local lawyers, primarily from civil legal aid4 organizations, taking a grassroots approach to informing people about what certificates are available and how to file for them.

civil legal aid4The right to counsel is not guaranteed when there is no active criminal prosecution, which is why civil legal aid lawyers, not criminal defenders, are responsible for helping people with these certificates.

In New York, for instance, one of the few states to begin offering the certificates before Illinois, an average of only 261 per year were issued between 1995 and 2005. Between 2007 and 2010, as civil legal aid organizations started educating ex-offenders about the certificates, that number shot up to 2,040 per year.

More recently, two of the most robust approaches to making these new certificates more accessible and understandable are underway in Illinois and North Carolina.

In Chicago, Cabrini-Green Legal Aid has led the effort to inform people about the certificates. CGLA operates a Help Desk at the downtown Chicago courthouse, as well as a dial-in hotline, to educate ex-offenders about the certificates and get them started with the application process. And, according to Cynthia Cornelius, CGLA's director of client and community services, the organization has recently begun to meet with and educate local employers. "None of this works unless employers know what these certificates are," she says, "and why they should respect job applicants who have earned the certificates."

But making the certificates a useful option is not only about education, it is also about representation. So, in a statewide effort called Second Chances5, sixteen of the Illinois' largest law firms have partnered with CGLA, supplying hundreds of pro bono lawyers to help process petitions for certificates.

Second Chances5The Second Chances program is part of the nationwide IMPACT Project, a project inspired by Vice President Joe Biden to encourage pro bono lawyers to work more closely with legal aid lawyers.

Down in North Carolina, the first step was to make the certificates available under the law, as Obama did in Illinois. Despite the anti-progressive climate in the state legislature, says Bill Rowe, chief counsel of the North Carolina Justice Center, securing "certificate legislation" was politically feasible.

"Democrat or Republican, we all know someone here in North Carolina with a minor mistake holding them back," says Rowe, "and minor mistakes are the types of mistakes we're talking about forgiving with these certificates, not major mistakes. It's not a 'them' issue, like some of the other divisive issues in the legislature; it's an 'us' issue."

With the certificates in place, the next step was getting the word out. Hamel, the civil legal aid attorney, explains that Legal Aid of North Carolina operates mobile legal clinics deep in the Blue Ridge mountains, informing the people there about the certificates. Before each clinic, Hamel notifies the local newspapers in the towns where she is headed, asks the radio stations to broadcast PSAs, and contacts local domestic violence shelters and V.A. centers to get people to come out for the clinic.

To bring employers on board, Hamel has help from Ben David, a local D.A. in Wilmington, North Carolina, who has convened the Hometown Hires program. David meets regularly with hundreds of the top employers in southeastern North Carolina to convince them to hire people with criminal records, especially people who have these certificates.

"This is about working on criminal records," David says, "which takes a lot of time, because it's about the long-term, not just the open-and-shut part of the case. But as a D.A., I feel I should take active steps to stop prosecuting folks who are just trying to get jobs, and these certificates and the other new options, I think, are a way of stopping the endless prosecution of job seekers."

But in the end, says Jacobs, even with robust information campaigns, certificates are “not a magic bullet.”

“If everyone gets a certificate,” he says, “then the certificate has no credibility, and employers won’t respect it. So we can’t give certificates to people who don’t deserve one.” But the hard truth, Jacobs says, is that a considerable fraction of people with criminal histories do not deserve a certificate, because they “are still struggling with drug addiction, mental illness, and tremendous deficits. They are not rehabilitated to the point of deserving a certificate, but they do deserve our help.”

In other words, rehabilitation for most ex-offenders requires actually working with them while they are being rehabilitated, not just rewarding them afterward if they can do it on their own.

“Finding a route back to where some of these people have never been,” says Jacobs: “That requires more than just a certificate.”