Thirteen years ago, New York federal Judge John Gleeson sentenced a woman to 15 months in prison for insurance fraud. She served her time, but in a court filing last year, seeking an expungement of the conviction, she said she had been unable to maintain employment in her nursing field ever since her release because of her criminal record. Judge Gleeson could not grant the expungement request because of the stringent requirements associated with this relief, so, on March 7, two days before his retirement, he took the remarkable and unprecedented step of inventing and issuing his own "certificate of rehabilitation" to the woman, saying he believed it could "significantly alleviate the collateral effects of a criminal record by emitting a powerful signal that the same system that found a person deserving of punishment has now found that individual fit to fully rejoin the community."
According to Justice Department statistics, each year, more than 600,000 individuals are released from state and federal prisons, and over 11 million people cycle through local jails. There are just under 20 million individuals in this country with a felony conviction on their record, representing almost 9 percent of the total adult population. Putting aside the shameful lack of meaningful resources to assist those who are released after serving long periods, the fact of conviction or arrest is a substantial barrier to basic liberties like employment, housing, education and sometimes health and child care. Indeed, some unscrupulous employers take advantage of employees with a prior record by paying them lower wages or subjecting them to harsh conditions.
As noted by Judge Gleeson and others, there are two general approaches to limiting the collateral consequences of convictions. There is the "forgetting" model in which the criminal record is expunged and thereby forgotten; and the "forgiveness" model, which still acknowledges the conviction, but uses a certificate of rehabilitation to recognize society's forgiveness of the underlying criminal conduct. The certificates can take many forms and apply to various types of employment areas, including those that require an occupational license issued by the state.
There are many advantages to implementing a system for the issuance of such certificates. First, it satisfies the concerns of law enforcement and employers who oppose expungement because they need to know about an individual's prior record in the event he or she is arrested again or applying for work connected to the nature of the original offense. Second, a certificate that is the result of exhaustive and thorough analysis by a state-sanctioned authority provides an imprimatur of authenticity and completeness that would, ideally, provide the necessary assurance to employers, landlords and education administrators that the applicant is rehabilitated. The resources to fund such a comprehensive evaluation already exist, in part, through funding available for local governments under the federal "Second Chance" program. Further cost savings would be realized from the early release of inmates and their economic contribution to society once gainfully employed.
Judge Gleeson noted that most prospective employers do not have the time, resources or inclination to conduct a comprehensive background evaluation of a potential employee. So, in this one woman's case, he did it for them, reviewing her trial transcript, presentence report, probation report and other documents to obtain a holistic view of her character and behavior since her release, and he found that there was no relationship between her conviction and her fitness to be a nurse. His finding gives her, like other rehabilitated offenders, a strong incentive to do well by providing a pathway to return to society and become self-supporting.
The Model Penal Code and the American Bar Association have strongly endorsed these programs. And a growing list of states (currently 14, including Illinois, where then-State Sen. Barack Obama introduced the enabling bill) and the District of Columbia have enacted legislation to create a mechanism for the issuance of certificates of rehabilitation after an investigation and review — which may include an opportunity for prosecutors or victims to oppose — by either the sentencing court, the probation department or a designated governmental agency. Language creating a certificate of rehabilitation for Maryland was part of the original Justice Reinvestment Act introduced in Annapolis earlier this year, but subsequent amendments watered down its impact to include only individuals who are seeking a professional license. Whether even this small step survives the final bill remains to be seen.
Elected officials and candidates who advocate for a need to reduce our prison population must give serious consideration to how best to reintegrate these individuals into society. The certificate of rehabilitation sends a clear message that the original sentence of imprisonment has had its desired impact, the individual has been rehabilitated, and there is no longer any need to deprive him or her of liberty interests. We all gain when those who have paid their debt to society are given a second chance to be productive and live a meaningful life.
Gregg Bernstein was Baltimore's state's attorney from 2010 to 2014 and is a partner at Zuckerman Spaeder LLP; his email is firstname.lastname@example.org.