Fresh Start for Incarcerated Americans? States Push to Give Americans with Criminal Records Fresh Start. The President Should Do the Same.
The World Prison Brief puts the U.S. at number one at incarcerating the most people in the world. With over 2 million Americans incarcerated in U.S. prisons and jails, approximately 70 million are left with criminal records, raising the question as to whether there is a fresh start for incarcerated Americans.
Vox’s Senior Policy Reporter, Rachel M. Cohen, expressed that job applicants with criminal records are half as likely as those without them to get a callback or job offer. Moreover, Sen. Maria Elena Durazo found “about 75 percent of formerly incarcerated individuals are still unemployed after a year of their release.” These views are consistent with Gabriel Chin’s research, who found that a conviction can restrict one’s ability to live in public housing, to obtain government licenses and permits, and to receive other benefits. The denial of employment and housing opportunities, and the deprivation of privileges and rights due to a past criminal conviction is often referred to as collateral consequences. That is to say, collateral consequences are legal disabilities imposed by law as a result of a criminal conviction, regardless of whether a convicted individual serves any time incarcerated.
“One of things I’ve never been accused of is not caring about people.” Joe Biden
The secret nature of collateral consequences, as Chin asserts in Reforming Criminal Justice: Punishment, Incarceration, and Release, has resulted in a criminal justice system that is arbitrary, unpredictable, costly, unfair, and in some ways counterproductive.” For example, dozens of sites who publish booking photos in the U.S. are demanding payment for their removal. Third party individuals are also republishing the mugshots to cyberbully and shame those who were previously incarcerated. Although the alleged owners were eventually arrested on charges of extortion, money laundering, and identity theft in 2016, similar websites remain accessible online without constraint.
While mugshots are not considered public records at a federal level, the government’s position has precluded Americans from successfully claiming infringements on their private life against private media reportings. To illustrate this point, one need only refer to the government’s statement in Google Spain, where it ridiculed the European Court of Justice’s recognition of the right to be forgotten, arguing that such right remains inapplicable in the nation. It is worth stating at this point that the judicial branch has held collateral consequences are not punishment. Therefore, collateral consequences do not come within the gambit of the Eighth Amendment prohibition on cruel and unusual punishments, or the Fifth Amendment prohibition against double jeopardy.
When previously incarcerated Americans (“PIAs”) cannot reintegrate into society, they are likely to recidivate to support themselves and their families. That is why, in my opinion, President Joe Biden should use his executive power to expand automatic sealing eligibility for PIAs. How would this look? An examination of Durazo’s bill, if passed, would give all ex-offenders, except registered sex offenders, the opportunity to have their convictions sealed. PIAs with violent, serious felony records would not be offered the automatic “clean slate.” However, they could petition to have their records sealed too.
It cannot be denied that the respect of one’s private life finds no explicit direct protection in the U.S. Constitution. Be that as it may, it is settled law amongst human rights courts that even individuals with criminal convictions have a right to privacy, and the right to be left alone. The state of California has created a template; the only action for the Biden administration to take is directing federal officials and administrative agencies to expand automatic sealing eligibility for PIAs.
If one weighs the pros and the cons, one soon realizes that collateral consequences and the shaming of American citizens by publicizing their mugshots only compounds the problem. It is for this reason that President Biden should alleviate the expenditure of energy used to help PIAs reintegrate by making use of his Executive power to seal their felony convictions. This executive action will show both, the U.S. and other nations, that the administration truly cares about its people.