Why We Need Federal Expunctions

Do #BlackLivesMatter or do #BlueLivesMatter? They should be on the same side. Black Americans want safe neighborhoods, and they need the police for that. The police need to solve crimes, and they need cooperation for that. What is the solution? Expunctions.

Black Americans are forever locked out of the workforce because they got caught with weed, got into a fight once, or committed some minor offense and could not afford high-priced attorneys to fight for their rights. How do you persuade someone without a law degree that this is fair?

The problem

Police Officers and poor – often Black – Americans are treated massively differently by the government. As an attorney, I understand and agree that government employees need certain protections from arbitrary actions by their government employers. Arbitrary or political punishment of police officers is both unfair and bad for democracy. Unions and union lawyers work on the side of (often wrongfully) accused police officers to help ensure that discipline is fair and just. Sometimes police officers are cleared of wrongdoing or face only a reprimand following a “paid vacation” after using what the public sees as unnecessary violence against unarmed Black Americans.

Meanwhile, many Black Americans are forever locked out of the workforce because they got caught with weed, got into a fight once, or committed some minor offense and could not afford high-priced attorneys to fight for their rights. How do you persuade someone without a law degree that this is fair? Maybe you could convince one after a few hours but never thousands or millions of people who are already angry at you.

The solution

Be Public Servants

First of all, one side needs to start listening to the other, and I am sorry to say that it is the Blue side that needs to do the listening. A little while ago a police officer was refused service at a restaurant. What followed was the most massively tone-deaf reaction possible involving the Police Chief, the union, a boycott, national news, and a campaign to fire two low income restaurant employees who were trying (in an inappropriate way) to make a statement. It doesn’t matter if they used poor judgment and were wrong, the perception is that of a massive jack-booted campaign against two weak and voiceless members of a community for not knowing their place and getting uppity with a cop. Imagine the difference if instead the Police Chief said, “We understand that you hate us; tell us how we can be better,” and then listened. You will never persuade a man that killing his unarmed brother was fair because you followed policies and procedures, but by listening you can persuade him that he matters.

Remove Unequal Barriers to Employment through Expunctions

You will never persuade a man that killing his unarmed brother was fair because you followed policies and procedures, but by listening you can persuade him that he matters.

Second, something needs to be done to address the inequalities arguably created by our government and blamed on everyone else. To find the answer to that, we need to look no further than to the protections that the police enjoy for themselves. We cannot provide a high-priced lawyer to everyone accused of a crime, but we can give people their lives back after they have done their time. A program to remove criminal records from public view should be done now but temporarily at the Federal level under the Fourteenth Amendment. After a short time, the decision to continue the program and how to manage it should be left to the states.

Advantages

Of course there are both advantages and disadvantages to a federal expunction program. The main advantage is that thousands of people in crumbling Black communities could suddenly find themselves employable, reducing their burden on limited government resources and even adding their income to the tax base. In addition, more defendants would be willing to plea bargain since a criminal conviction would no longer be a death sentence for their careers and job prospects – potentially reducing both prosecution costs and incarceration costs. Finally, it will help to heal the Black Lives/Blue Lives divide because it returns some of the dignity the government has taken away from defendants for their crimes and returns it to the people, giving them hope and prospects they did not have before.

Disadvantages

The biggest disadvantage is the costs of implementing and managing of a federal expunction program. Participants would need to participate in services and petition the courts for admission into the programs, both of which will cost money. The costs could not be placed solely on the defendants because that would exclude the poorest defendants whom we most want involved. It is possible that the benefits will exceed the costs in the long run, but someone will have to figure out how to pay for it in the short term. The other problem is the loss of deterrence. One would expect to see a spike in expungable crimes, but that may also result in a reduction in non-expungable crimes which are presumably worse, and district attorneys can adjust for this with tougher plea-bargaining. At any rate, the program should be transferred to the states as soon as practicable so they can experiment and adjust for their own particular needs.

Obstacles

Absurdity does not mean the policy is not complicated enough, it means it is a bad policy.

The biggest obstacle is special interests which are likely to fight for exclusion of the people the expunction program is meant to help. There seems to be a special interest group for every crime – MADD and the various domestic violence organizations to name a few. A woman should not have her life and career ruined by the scarlet letter “A” for Assault Family Violence because she threw a remote control at her husband, and a kid’s life should not be ruined by a DWI because he took the wrong cold medication. Absurdity does not mean the policy is not complicated enough, it means it is a bad policy. Non-expungable crimes need to determined rationally by how much good they can do to communities – especially poor communities, and not by special interests pushing their agendas.

Conclusion

Make #BlackLivesMatter and #BlueLivesMatter, rebuild Black communities, and bring prosperity and safety back by giving people a second chance.

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