Breaking the Cycle of Incarceration

Bipartisan reform of the criminal justice system hopes to reduce recidivism and help nonviolent offenders reenter society.

Photo by Wally Gobetz (Flickr)

Two United States Senators from opposite sides of the aisle have decided to work together to fix the nation’s criminal justice system.  Earlier this summer, Senators Cory Booker (D-New Jersey) and Rand Paul (R-Kentucky) introduced the bipartisan Record Expungement Designed to Enhance Employment, or as it is better known the REDEEM Act.

The Act is a comprehensive overhaul of the nation’s criminal justice system that its sponsors say will cut government spending while making it easier for nonviolent criminals to secure a job.  The twin goals of the bill are to provide citizens convicted of nonviolent offenses, including drug offenses, a second chance, and to divert teenagers out of the adult criminal justice system.

“Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration.”

“Reducing the recidivism rate and keeping kids from a life of crime will improve economic output, save money by driving down incarceration rates, and make our communities safer,” Booker stated.

The Act’s sponsors attribute the nation’s high recidivism and prison rates to the difficulty individuals who have committed a crime have finding a job after they complete their sentence.  Incarceration and recidivism trends have also created racial and socio-economic injustices.

“The biggest impediment to civil rights and employment in our country is a criminal record,” said Paul. “Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration.  Many of these young people could escape this trap if criminal justice were reformed, if records were expunged after time served, and if nonviolent crimes did not become a permanent blot preventing employment.”

The REDEEM Act is designed to remove barriers faced by nonviolent offenders to reenter society and secure a job.

Expunction is the legal process by which an individual’s prior criminal record is destroyed through a court order.  Although an expunction mechanism does exist, it is difficult for many prior offenders to take advantage of this process.  Individuals can file for an expunction on their own, but the process often proves confusing without the assistance of an attorney.  Hiring an attorney can prove to be financially challenging while in the middle of a job search.

The provisions of the REDEEM Act provide potential solutions that are designed to remove barriers faced by nonviolent offenders to reenter society and secure a job.  These include the automatic sealing and in some cases, expungement of criminal records that will ease the process for former offenders.  It provides incentives to states that increase the age of adult criminal culpability to eighteen, which will prevent many young people from ever entering the adult system.  These actions would help eliminate many of the collateral consequences offenders face, thereby helping them return to society as productive citizens.

The United States currently has the highest incarceration rate in the world, with 500 prisoners per 10,000 residents.  Men make up ninety percent of the prison population.  These men are overwhelmingly young with incarceration rates at their highest for those in their twenties and early thirties.  Incarceration rates are also significantly higher for African Americans and Latinos.  Since 1990, state and federal prisons have released an average of 590,400 inmates each year, and an estimated three quarters of these ex-offenders are rearrested within five years of their release.

Record expungement may be the difference between transitioning back into society or returning to prison.

The REEDEM Act seeks to fix these problems through broad reforms that would provide certain adult offenders the opportunity to expunge their records, allow drug offenders who have completed prison sentences to become eligible for benefits they are currently denied, divert juvenile offenders from adult courts, and improve the conditions for juvenile offenders.

The Act puts forth several provisions designed to bring about change in the Criminal Justice System:

Encourage states to increase the age of adult criminal responsibility to eighteen: Some states try seventeen- and sometimes even sixteen-year-olds as adults by default.  The REDEEM Act provides incentives that reward states that raise their age for adult criminal responsibility to eighteen.  In return these states will receive preference when they apply for federally funded Community Oriented Policing Services (COPS) grants.

Automatically sealing and, in some cases, expunging juvenile records: This would provide for the automatic expungement of nonviolent juvenile federal offenses committed before a juvenile turns fifteen and the automatic sealing of nonviolent juvenile offenses that occur after age fifteen.  The REDEEM Act also provides an incentive for states to do the same by giving preference to COPS applications that come from states that have enacted similar or stronger juvenile confidentiality, sealing and expungement provisions.

Restricts use of solitary confinement for juveniles: The Act also seeks to ban the use of solitary confinement for discipline, punishment, retaliation, staffing shortages, or administrative convenience.  Solitary confinement for juveniles may only be used as a temporary response to behavior that poses a serious and immediate risk of physical harm to the juvenile or others at the facility.  COPS application preference is also available to states that have enacted similar or stronger confinement provisions.

Provides adults with a way to seal non-violent criminal records: The REDEEM Act would create the first federal pathway to sealing adult criminal records.  Non-violent offenders may petition a court to seal their records, increasing chances of employment and helping the offender to reenter society.  Petitioners who have successfully sealed their records may lawfully state that their records do not exist.  COPS application preference is also available to states that have enacted similar or stronger adult sealing provisions.

Lifts the lifetime ban on TANF and SNAP benefits for non-violent drug offenders: Federal law currently prohibits those convicted of a non-violent drug offense from receiving assistance under the Supplemental Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF) program.  Due to this ban, individuals recently released from jail may not be able to support their families as they search for a job.  The REEDEM Act lifts the ban for those who have completed their sentence for drug use and possession crimes.  It also provides individuals convicted of drug distribution felonies that are rationally related to a substance abuse disorder with the opportunity to restore their benefit eligibility if they enroll in a substance abuse treatment program.

Improves the accuracy of FBI background checks: Provisions to improve the background check system will ensure that employers requesting such background checks will get only relevant and accurate information — thereby protecting job applicants.

The REDEEM Act is not the only recent proposal designed to protect former offenders who have turned their lives around.  A “ban the box” statute in New Jersey makes it illegal for an employer to ask about a potential employee’s criminal activities until after they have conducted an in-person interview.  Also, judges in Oklahoma have passed down a judgment making expungement proceedings in that state closed to the public.  These are all seen as steps taken to protect low-level, non-violent, drug-related offenders as they search for a job.

Both the Bureau of Justice Statistics and the National Institute of Justice have researched recidivism rates and the effects of criminal records on the job hunt.  A study by the National Institute of Justice examined how criminal records affected people looking for work. They found that the chances for a call back for a job interview was lowered by nearly fifty percent if the applicant was found to have a criminal record. Record expungement can be critical for these individuals and may be the difference between transitioning back into society or returning to prison.

Hannah Emory, Associate Editor
About Hannah Emory, Associate Editor (15 Articles)
Hannah Emory is a Campbell Law graduate and served as an Associate Editor for the Campbell Law Observer for the 2015-2016 academic year. She is originally from Dunn, North Carolina and graduated from the University of North Carolina at Chapel Hill in 2013 with a Bachelor of Arts in Political Science and History. Following her first year of law school, Hannah interned at the North Carolina Office of the Juvenile Defender.
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