The direct consequences of a criminal conviction are devastating: imprisonment and/or probation. The former means being taken from everything you know, including family. Both mean being disenfranchised from your civil rights. A criminal sentence lays out the direct punishment a citizen will receive for their crime: terms and conditions they must fulfil that are meant to punish but also ultimately to return the individual to a law-abiding life. These terms and conditions are largely the result of negotiated plea bargains between defense counsel and the prosecutor or a determination by a judge after a careful review of the facts of the case. What the parties don’t negotiate is the impact a conviction can have long after the terms and conditions have been satisfied: “Even when the sentence has been completely served, the fact that a man has been convicted of a felony pursues him like Nemesis.”(1)

I do not argue that an individual should not be prosecuted, convicted and punished for committing a crime. Rather, I call for the criminal justice system and society as a whole to recognize that the long-term effects of a criminal conviction can sometimes cause greater damage to society than the actual criminal conduct itself did. How? The disenfranchisement of legions of citizens creates a class of unemployable or underemployable individuals who continue to be burdened by conduct that occurred years prior. Are high recidivism rates any surprise when a past conviction denies them the ability to meaningfully participate in society even after they have satisfied all of the terms and conditions our criminal justice system has imposed? The silent punishment of a prior criminal conviction lasts far longer than the criminal justice system’s punishment. Indeed, it is often a life sentence.

Recent initiatives such as California Assembly Bill 1008 have sought to address the un-employability effect of old convictions and arrests. This “ban the box” initiative seeks to preclude employers from asking a potential employee about their criminal history prior to making them a conditional job offer. If an employer discovers a criminal history after the conditional offer, the bill, which became law January 1, 2018, requires an employer to “make an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” Gov. Code § 12592 (d)(1)(A) It also prohibits the consideration of older convictions, arrests without conviction and certain other circumstances, including sealed records. Gov. Code § 12592 (a)(3)

Assembly Bill 1008 is a good start. However its most direct effect is only to preclude the employer from asking about a conviction prior to a job offer. After an offer is made the employer can still deny the potential employee a job as long as they follow the process outlined in the statute. Interestingly, the statute directs an employer to provide examples to a potential employee of mitigation or rehabilitation evidence that the applicant could voluntarily provide. The California legislature needs to create a companion piece of legislation where a person who was been convicted of a crime and successfully completed their sentence is automatically deemed rehabilitated. Of course, certain offenses such as sex crimes and certain violent crimes could be exempt from this, but the majority of misdemeanors and less serious felonies should be eligible upon successful completion of sentence/probation for an automatic certificate proving rehabilitation which would then deny an employer the ability to consider the old conviction at all.

As society slowly seems to be realizing, even the direct costs of our criminal justice system are unsustainable. It is a disgrace that California has built more prisons than schools in the last 30 years. To a large degree, recent criminal justice reform has focused on redirecting individuals away from these prisons because of the sheer magnitude of the costs. What has not been addressed in a meaningful way is what to do about the masses of individuals who have been convicted of a crime, paid their debt to society through imprisonment, restitution, probation and otherwise fulfilling their sentences but cannot rejoin productive society because of the mere fact of their conviction. Many of these individuals are unemployable, unpromotable, unable to gain citizenship, unable even to secure housing.

As AB 1008 begins to acknowledge, conviction for a crime can have a long tail, or half-life, haunting the convicted for years after he or she serves time and finishes probation successfully. Media archives, such as newspapers, that were formerly stored in physical format are now stored electronically online. An arrest or prosecution for a crime now becomes part of a person’s digital life. A Google search of a potential employee or even a new friend retrieves decades-old newspaper articles that mention an arrest or allegation that was later dropped or even disproved. News sources do not necessarily publish a story to inform readers that the allegation was false, the charges were dropped, or the civil complaint was dismissed.

Like the rumors perpetuated across town in Harper Lee’s To Kill a Mockingbird, rumors are perpetuated in internet archives and private background check databases that have not been cleaned over time. Scout describes Boo Radley to the reader: “Inside the house lived a malevolent phantom. People said he existed, but Jem and I had never seen him. People said he went out at night . . . . Any stealthy small crimes committed in Maycomb were his work.” Even once the culprit was found, “people still looked at the Radley Place, unwilling to discard their initial suspicions.” (p. 9)

When information beyond what the legislature comprehended or envisioned regarding criminal convictions is accessible years later, it destroys the proportionality of the punishment to the crime and creates a more severe punishment than was originally envisioned. Proportionality between the seriousness of the offense and severity of the criminal sanction is “a bedrock principle of our sentencing jurisprudence.” (2) While AB 1008 starts to address this problem in the employment arena, it does not go far enough. California must provide its individuals convicted of a criminal offense a comprehensive way to clear their records once they have served their original sentence and rehabilitated themselves from their criminal past. The current structure of post-conviction relief available to individuals who wish to clean their records is woefully insufficient in the modern age of digital records and online access to Court records. One suggestion would be to allow an individual convicted of a crime to petition to the sentencing court for a certificate of successful completion of sentence and a finding of rehabilitation which would officially seal the court file related to their conviction. Another would be automatically vacate a conviction once an individual has successfully completed their sentence and not violated their term of probation. California needs to find additional ways to address the lifelong impact in all areas of a person’s life of criminal convictions; the current system creates punishment disproportionate to the crime.

Research and editorial assistance provided by Jonathon Kathrien J.D.

(1) Travis, Jeremy, “Invisible Punishment: An Instrument of Social Exclusion,” published in Invisible Punishment: The Collateral Consequences of Mass Imprisonment, page 19; quoting the National Council on Crime and Delinquency
(2) Ib., page 35