Most everyone who’s ever taken a serious English literature course has read Nathaniel Hawthorne’s historical-fiction novel The Scarlet Letter.
Published in 1850, but set more than 200 years earlier, in the 1640s, it tells the story of one Hester Prynne, a young woman in Puritan-era Boston who conceives a daughter as a result of an extramarital affair. The punishment for her scandalous behavior is to be publicly stigmatized by being required to wear a scarlet “A” — for adultery — on her dress.
Today, those who break the law bear a different sort of “scarlet letter” — economic stigmatization — but often do so long after they’ve paid their debt to society. Consequently, many of the 6,000 federal inmates scheduled for release between Oct. 30 and Nov. 2 due to revised sentencing guidelines are likely to struggle, despite that most of them are low-level, nonviolent offenders.
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Depending on the state and the severity of the crime, the consequences can vary from being denied employment opportunities and driver’s licenses, and losing the right to vote and parental rights, to being refused student loans and a variety of public benefits. Metaphorically, it’s like being forced to wear a scarlet letter long after they exit the prison gates.
Unfortunately, that’s a recipe for recidivism, and a perverse incentive to return to a life of crime.
From an economic perspective, some estimates put the cost to the gross domestic product of employment losses among people with criminal records at as high as $65 billion a year. Then, there’s the $80 billion in taxpayer dollars spent annually on incarceration in jails and prisons.
That’s why the Sentencing Reform and Corrections Act, introduced in the Senate on Oct. 1, includes a first step in the right direction at combatting these collateral consequences.
Supported by a surprisingly broad, bipartisan coalition of senators, ranging from conservative stalwart Mike Lee, R-Utah. to liberal lion Patrick Leahy, D-Vt., the SRCA addresses the issue of recidivism in that it would allow juvenile, nonviolent offenders who were tried in federal criminal court to have their records expunged. It’s a “clean slate” measure that would make it easier for them to find gainful employment after serving their time. As Lee put it at the Aspen Institute’s Washington Ideas Forum, the goal is to be “tough on crime by being smart on crime.”
“People know about losing the right to vote for some period of time after being convicted of a felony,” says Margaret Love, former director of the American Bar Association’s National Inventory of the Collateral Consequences of Conviction project, “but once you get past that, there are a surprising number of laws and rules that restrict opportunities based on a criminal history.”
The Inventory’s database shows that most states’ laws and regulations related to collateral consequences number in the high hundreds. As such, even the primary players in the justice system — defendants, lawyers, prosecutors and even judges — often don’t have a full grasp of what’s at stake when a plea is bargained or when the sentence is meted out. In most cases, even the ex-offender doesn’t find out till after he’s done his time.
“As a former prosecutor, I believe there should be serious consequences for criminal activity,” said Leahy, at the formal launch of the Inventory back in 2012. “I also know well that most of those convicted of crimes will return to our communities, and we should be doing everything we can to give them the skills and opportunities they need to reintegrate successfully, rather than returning to a life of crime.”
The aforementioned reforms, at both the federal and state levels, are good first steps in putting the “just” back in criminal justice. In The Scarlet Letter, Prynne struggles to create a new life of repentance and dignity. Today’s real-life ex-offenders also deserve a second chance.
Holly Harris is executive director of the U.S. Justice Action Network. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
