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Barriers to Re-entry Hurt Society as a Whole

| July 25, 2017

The United States Supreme Court recently entered an opinion in Packingham v. North Carolina. 2017. _ U.S. _ (June). In a roundabout way, it touched on the merits of state laws that obstruct an individual’s successful re-entry into society. I submit that the real impact of the holding is the underlying acknowledgement that the system which governs a convicted criminal’s re-entry into society should not place unnecessary barriers to those who “seek to reform and to pursue lawful and rewarding lives.”

In Packingham, a unanimous court agreed to invalidate a North Carolina law that prohibited sex offenders from accessing any social media platforms, including – as Justice Alito noted in his concurring opinion – websites such as Amazon, the Washington Post, and WebMD. The court held that the law “suppress[ed] lawful speech as the means to suppress unlawful speech” in violation of the First Amendment.

The potential reach of the Packingham opinion goes well beyond whether or not a sex offender has the right to join Facebook or sign up for Amazon Prime. This is because the court delved a little further, recognizing “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system” even though this was “not an issue before the court.”

There was no question that the state has a legitimate interest in preventing sex offenders from interacting with children online, and that “the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime.”  As the majority opinion explained, “North Carolina with one broad stroke,” actually, “bars access to what for many are the principal sources for knowing cur­rent events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

The idea that there are public safety benefits to be derived from a court opinion protecting the First Amendment rights of sex offenders may be counterintuitive.  However, by addressing, albeit indirectly, the need to examine laws that hinder successful re-entry into society, it makes sense to also conclude that such laws also increase the likelihood that a person re-enters a life of crime.

Fully 95% of those currently incarcerated will eventually be released back into society. Ideally these offenders get a fair shot at becoming a productive member of the society, and will ultimately become law abiding, tax-paying citizens. However, as the Packingham opinion aptly points out, what often happens when a person is released after paying their debt to society is they are met with onerous and unnecessary governmental laws and regulations that make it difficult to secure employment -and even housing. Consistent with the conservative principle that excessive government regulations trade hinders free markets and harms its citizens, these consequences are only exacerbated when a citizen has a criminal record.

The Packingham opinion challenges us to examine whether laws or regulations such as these are really serving a state interest or merely acting as an obstacle for those seeking to reform their criminal histories. Many states, including Kentucky, have taken significant steps toward removing re-entry barriers through occupational licensing reforms. It is certainly in the public’s best interest for lawmakers and government officials to examine their own policies with an aim toward ensuring that the system invites everyone, including those with a criminal history who have served their sentence, to flourish as productive members of a free society.

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JULIE WARREN is a graduate of Marshall University and of Regent University School of Law. She also attended Georgetown Law Center as a visiting student. While in law school, she clerked on the Senate Judiciary Committee. Julie served four years at the U.S. Department of Justice in Washington, D.C. After a few years in private practice as a civil defense litigator, Julie returned to public service and began her work in the Office of the West Virginia Attorney General where she primarily served as an appellate advocate for the State of West Virginia and as legislative counsel to the Attorney General.

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