This article by former Maryland Governor and Right on Crime signatory Robert Ehrlich originally appeared in Washington Examiner August 9, 2018.
It’s the great “purple” issue of our hyper-partisan era. The Left has agitated for it, and the intellectual Right has devoted considerable resources to selling it to a distrustful base.
No other issue besides criminal justice reform could bring George Soros and the Koch brothers together in common cause.
But before everyone gets too chummy, a word of warning: The universe of criminal justice reform is complicated and politically challenging. The issue includes essentially four related but distinct elements of sentencing, incarceration, re-entry, and collateral consequences.
Sentencing reform will ideally look at our federal and state sentencing statutes, particularly those 1980s-era “war on crime” laws that replaced trial judges’ sentencing discretion with mandatory minimum sentences. These also “waived” thousands of youthful offenders to adult court and adult prisons.
America’s resulting incarceration rate of 860 per 100,000 remains the highest in the world. In response, the states and the federal government have been aggressively implementing nonincarceration reforms — typically to bipartisan applause.
The issue of incarceration includes emotional issues such as solitary confinement, religious freedom in prison, and capital punishment. Here, progress is (unfortunately) measured more by consent decrees and precedent-setting court decisions than by lawmaking.
Re-entry is a “hot” topic within the halls of Congress and at the White House, because it’s where the rubber meets the road for offenders returning to the “real world.” How do we discourage recidivism? It is here that the paradigm is changing from punishment to rehabilitation, a process that reformers wish to commence at the very beginning of a criminal sentence. Accordingly, terms such as “pre-entry” have entered the lexicon — referring to a process focused on turning lives around while doing time in some of the more dangerous places on Earth.
A balance must be struck: The system should provide skills training, GED programs, drug rehabilitation services, and faith-based options — but there is still a punishment element that should not be ignored.
All of which leads to the more complex fourth element: how to deal with collateral consequences. In laymen’s terms, what can and should be done to restore rights once lost through conviction, but now (potentially) available again because an offender has completed his sentence.
Much of the debate centers on employment opportunities. After all, how can society expect an ex-offender to resume employment (let alone a career) when the scarlet letter of “ex-con” is forever a part of his resume? The states in particular have found numerous ways around this canard, including but not limited to “banning” the box on employment applications, so that ex-cons at least get a chance to make a good impression in person; judicially approved expurgation of criminal records; judicially approved “certifications of rehabilitation”; executive pardons; and sealing of some records. These and similar remedies for primarily nonviolent offenses are becoming popular. Often, the relief will include restoration of a professional license.
The bottom line to all this is a clear record — a fresh start. But two significant issues emerge. The first concerns where to draw the line in order to protect prospective employers. A minor check kiting charge from twenty years ago should not be an obstacle to employment, but what if the open position is a bank teller? The “inform/don’t inform” line is usually drawn by legislatures, and that’s no easy task.
The second issue deals with restoration of other rights and privileges: voting; access to public housing; and access to other government benefits. Again, the question of how long to wear the scarlet letter once time has been served.
Fortunately, there is federal momentum on this front. Jared Kushner’s “Office of American Innovation” is wholly invested in this important issue. President Trump has issued an executive order creating an interagency council devoted to identifying re-entry best practices. The administration has also endorsed the Cornyn-Collins “Second Chance” bill in the Senate — a bill that gives prisoners incentives to enroll in drug treatment, education, and skills training in order to earn early halfway house or home confinement status prior to their official release date.
With the media fully engaged with immigration reform, North Korea negotiations, and FBI scandals, it is easy to lose sight of important developments on issues that are closer to home. Accordingly, all interested parties should be on the lookout for additional initiatives from an administration that really is intent on infusing more “justice”