Smart Stuff: Seeking Law’s Mercy

January 30, 2015

Smart Stuff is Life of the Law’s column featuring scholarly commentary by members of our advisory panel, and by guest scholars writing on the law in our lives. 

Law’s mercy is most commonly on display, as my colleague Austin Sarat so compellingly details in his book, Mercy on Trial, in the power of the executive to commute the sentence or pardon an individual’s criminal record. In the latter case, in the last day of his term as Illinois Governor, Pat Quinn issued one hundred pardons. Former Governor of Pennsylvania, Ed Rendell pardoned the criminal records of over 1,000 Pennsylvanians. Yet pardons remain rare, and the mark of a criminal record has never been as stigmatizing as it is today in America’s post-911 surveillance society. Today, such records are readily obtainable and, indeed, misinterpreted. (James Jacobs compellingly argues this in his important book The Eternal Criminal Record, which is an almost encyclopedic investigation of the policy consequences of having at least 60 million Americans marked.)

Because criminal records may be produced after an arrest, many individuals who never been convicted of any offense are tarred with the algorithmic equivalent of a scarlet letter. Indeed, extensive background checks are part of a multi-million dollar industry run by companies such as Equifax and Experian. This says nothing, of course, of the numerous problems states have in keeping accurate records.

Against this backdrop, I recently set out to learn about the experiences of individuals seeking law’s mercy. My exploration began with  Advancement through Pardons and Expungement (APEX), an organization created by the Delaware Departments of Social Services and Labor’s Vocational Rehabilitation. APEX was kind enough to provide me access into the little known legal world of pardon seeking.

Last spring, after a crash course in videography I set out in my car to conduct interviews with Delawareans recommended for a pardon. I shot hundreds of hours of video. In a word, the impact of a criminal record on these folks — even decades after their last arrest — was astonishing. One woman I interviewed, Tonya, who had not been arrested in more than twenty years, struggled to maintain steady employment and go to college. Despite these hardships, she immersed herself in community activism and eventually received both undergraduate and graduate degrees. Yet before receiving a pardon last year, she described an immensely stressful life of constantly looking over her shoulder. Another woman, Rosemarie, a former registered nurse, crippled by a single arrest that resulted in unemployment and debilitating health problems, begins to rebuild her life as a middle-age technical school student.

These interviews are documented in this video that Rachel Morenoff and I created for APEX. While the video only features a handful of APEX’s more than two hundred clients, the stories of successful pardon seekers presents a stark contrast to popular representations of Americans with criminal records. Beyond the remorseless, chronically unemployed recidivist, these folks are invariably hardworking and goal-oriented.

Most recently, with the assistance of APEX program developer Matthew Rosen, my exploration of hundreds of pardon seeker applications provides strong support for the message of resiliency, hard work, and dedication demonstrated by the five successful pardon seekers presented in the video. While these findings may not be representative, given the fact that most Americans have criminal records characterized by arrests for misdemeanors, we suspect they are strongly suggestive of experiences that are not anomalous to Delaware.

The majority of APEX pardon seekers are high school educated, employed or had a history of employment at the time they decided to seek a pardon. They sought a pardon because of years of frustration over a lack of upward employment mobility. Pardon seekers describe the stigma of a criminal record as akin to an insurmountable barrier to the American dream of economic self-sufficiency. More than a source of individual frustration, the modern equivalent of the scarlet letter has kept them and their family members relegated to the ranks of the working poor.

Michelle Alexander documents the legal discriminations of low-level drug felonies in her now classic book The New Jim Crow. And yet the stigma goes far beyond the mass incarceration of poor African-American, low-level drug felons. Indeed, most of the tens of millions of Americans with criminal records have never done time behind bars. More than four decades of an unprecedented commitment to harsh and unforgiving law enforcement and sentencing regimes in the U.S. may more accurately be described as the new totalitarianism. In a very real way, America’s criminal justice system criminalizes whole populations of individuals under a policy of what Issa Kohler-Hausman terms “mass misdemeanor” arrests that rarely result in conviction. At the same time, we know that the pains of mass incarceration make the transition into civil society uniquely daunting.

The reach of a criminal record in post-911 America is a story of a largely silent but an incredibly harsh and, indeed, merciless criminal justice regime. Criminal records are produced at arrest and when applicable more records are produced after conviction and during parole and probation. Yet our digital surveillance infrastructure enables these records to live on, Jacobs rightfully describes, eternally. This is especially so as, unlike other countries, the U.S. provides no protection from the dissemination of rap sheets, even when the individual has never been convicted of a crime.

The optimism of the successful pardon seekers in the APEX video is inspiring. Yet it would be misleading not to conclude on a more sobering note. While the majority of the clients we are currently studying are employed, most do not work in steady jobs.  Indeed, many are (barely) holding on in temporary employment and close to 30% were unemployed when they began the pardon process. Documenting success stories is important at the least because it highlights law’s mercy at a human level. The broader challenges of reform in an aggressive online surveillance society, on the other hand, are enormous.