Second Chances for Ex-Offenders

May 26th, 2017 by Leave a Comment

By John G. Malcolm and John-Michael Seibler 

A simple adjustment in federal law would provide much greater opportunities for young individuals who made some bad life choices but atoned to reintegrate into society successfully and to become productive, law-abiding citizens capable of supporting themselves, their families and their communities.

Reps. Trey Gowdy (R-SC), and Hakeem Jeffries, (D-NY), introduced a bill Wednesday, the Renew Act of 2017 (H.R. 2617), with one goal in mind: Increase the age of eligibility for first-time offenders who were charged with simple misdemeanor drug possession to have their record – including any record of their arrest, charge, or disposition – erased, a process known as “expungement.”

Under current federal law (18 U.S.C. § 3607), a court may place an individual who has been convicted for the first time of simple misdemeanor drug possession (not those convicted of possession with intent to distribute) on probation for up to one year without entering a judgment of conviction. Upon successful completion of the probationary period, the court must dismiss the charges.

If the individual violates the terms of his probation in any way, the court must enter a judgment of conviction and sentence the offender accordingly.

If the offender was under 21 years of age at the time of the offense and successfully completes the probationary period, he or she may apply to the court for a nondiscretionary order of expungement, which would wipe out any record of the underlying arrest, proceedings, and disposition of the case, thereby enabling the individual to start over with a clean slate.

The Renew Act would simply raise the age of eligibility for such an expungement order from 21 to 25.

People with any kind of a criminal record, even in cases in which the charges are minor or are eventually dismissed, often encounter difficulties finding jobs and are treated as second-class citizens. In a dissenting opinion in Chaunt v. United States (1960), U.S. Supreme Court Justice Tom Clark expressed a view shared by many would-be employers that the mere incident of arrest is “highly pertinent to the issue of satisfactory moral character, the sine qua non of good citizenship.”

According to the Justice Department’s National Institute of Justice, “nearly one-third of American adults have been arrested by age 23” and that arrest can become the sine qua non of unemployment.

Research shows that being arrested by age 23 is correlated with adverse outcomes in income, education, and home ownership. In short, an arrest record can follow a person for life.

As we discuss in a recent Heritage Foundation report, individuals denied enough opportunities to work and reintegrate into civil society due to their criminal record often end up committing new crimes. But stable employment contributes to lower repeat offense rates and thereby improves public safety.

Former Secretary of Labor Hilda L. Solis said in January that focusing on employment for those with a criminal record “makes sense for local communities and our economy as a whole.”

Age 25, unlike many numbers that pop up in Congress, is not arbitrary. The Massachusetts Institute of Technology’s Young Adult Development Project reports that “‘the rental car companies have it right.’ The brain isn’t fully mature at 16, when we are allowed to drive, or at 18, when we are allowed to vote, or at 21, when we are allowed to drink, but closer to 25, when we are allowed to rent a car.”

MIT researchers say this is true of the prefrontal cortex, which is associated with “calibration of risk and reward, problem-solving, prioritizing, thinking ahead, self-evaluation, long-term planning, and regulation of emotion.”

In other words, as common sense tells us, young people are capable of making rash mistakes.

Craig DeRoche, a senior vice president at the faith-based nonprofit Prison Fellowship, argues, “There is no such thing as a throwaway person and by granting second chances to those who have earned them, we will be contributing to the restoration of families, communities, and our nation.”

The Renew Act of 2017 is a narrow, commonsense proposal to give young, first-time offenders caught possessing drugs (and let’s face it, there are many of them) the opportunity to learn from their mistakes, to demonstrate that they have done so by complying with the terms of their probation for an appropriate period of time, and then to move on with their lives without carrying the burden of a criminal record. That is a reform worthy of consideration.


John G. Malcolm, a former board member of the Georgia Public Policy Foundation, is director of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies and John-Michael Seibler is a legal fellow in the Center. The Georgia Public Policy Foundation is an independent, nonpartisan, nonprofit think tank that proposes market-oriented approaches to public policy to improve the lives of Georgians. Nothing written here is to be construed as necessarily reflecting the view of the Georgia Public Policy Foundation or as an attempt to aid or hinder the passage of any bill before the U.S. Congress or the Georgia Legislature.

© Georgia Public Policy Foundation (May 26, 2017). Permission to reprint in whole or in part is hereby granted, provided the authors and their affiliations are cited.

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