Crime, Kids

Criminally Yours: Pardoning Youths

If we're going to start pardoning, then let's do it across the board with perimeters not based on age but on present-day characteristics of the applicant.

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Having a criminal record, even something as innocuous as a misdemeanor, can carry life-long consequences. (See my earlier column, “Don’t Plead Guilty.”)

Among the collateral damage are a host of disqualifications — disqualification from certain jobs, student loans, federal and state housing, food stamps, and certain licensing and certifications.

Some of this is discretionary and thus difficult to predict with certainty; some of it is codified. (i.e., pick up a drug possession crime and lose your NYCHA housing.)

While President Obama promotes “banning the box” — the box that must be checked on employment applications regarding prior convictions — an employer can still inquire about criminal history at a later point in the job-interviewing process and choose to hire someone else because of it.

Unfortunately, most states and the federal government do not provide a mechanism for expunging a criminal record. Wiping your record clean does not exist. So a person’s bad choices, no matter how distant, will likely haunt him the rest of his life. He might have paid his debt to society by serving a prison term, doing community service, or paying restitution — it simply doesn’t matter.

New York Governor Andrew Cuomo (traditionally one of the most stingy governors when it comes to giving out pardons or commuting sentences), recently agreed to a mild change in this approach by approving the pardoning of a very narrow group of offenders — people with criminal convictions committed when they were 16 or 17 years old.

A pardon is different than expungement. First, the crime is not erased, it merely comes along with a letter you can submit to a potential employer saying, the Governor officially pardoned me. Next, there’s an application process with a number of hurdles: the crime must be non-violent; it must have been committed at least 10 years prior to the pardon request; the applicant must be a productive member of society, defined as either working or in school; it cannot be a sex offense; and the applicant must be up to date with taxes.

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Seems reasonable, seems fair — but it’s not enough.

First, why limit pardoning only to 16 and 17 year olds? In many states, kids this age charged with crimes aren’t tried in adult court in the first place. Even in New York, people in this age group most likely receive what’s called youthful offender treatment, automatically sealing their record and enabling the conviction not to count.

The New York Times reported that some 10,000 people will be impacted by the governor’s plan. But that’s only because there’s such a backlog of youths who’ve been convicted of non-violent crime. Once the backlog is cleared, there will only be an estimated 350 or so people impacted per year.

So why not broaden the pardon system. Let’s make any former offender, no matter his age when the crime was committed, be eligible. Set up as many hurdles as needed — X-years of clean living; showing a hardship due to the conviction; proof of a job or schooling — but let’s not limit the benefit just because the crime was committed at, say, age 20, or 25, or even 45.

If, culturally, our country believes people can be reformed and that it’s a good thing to bringing ex-offenders from the margins of society back to the mainstream so they can more easily find jobs and places to live, then let’s open the pardon doors to everyone, not just kids.

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Next, why not include even violent offenders. Violent as used in criminal law is a term of art. Many crimes stamped as violent involve no use of violence in the colloquial sense.

For example, a kid who grabs a cell phone from someone’s pocket and rips the pocket during the theft is guilty of robbery — a violent crime. Going into a restaurant to steal a wallet becomes violent if the restaurant is considered a residence because it happens to be on the ground floor of an apartment building. Any injury to a police officer during an arrest, even if incidental (a bruised shin) or by accident, is a violent crime, even if the arrestee himself was getting the stuff beaten out of him.

I’m not saying these crimes should be treated lightly, but no crime should dog a person the rest of his life if enough time has passed and the person has proven to be pardon-worthy.

A pardon is not a carte blanche. It’s a way of saying, yes, this person committed a crime a long time ago, but that crime alone should not define his life and potential.

Even if pardoned, a conviction can be seen and used by prosecutors and police should the person commit another crime down the road.

If we’re going to start pardoning, then let’s do it across the board with perimeters not based on age but on present-day characteristics of the applicant. With such safeguards in mind, why are we so afraid to acknowledge that people make mistakes, and after being punished for them, deserve the chance to be forgiven and move on with their lives?

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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