The 'Scarlet Letter': One Mistake Shouldn't Ruin a Life


Philadelphia Mayor Michael Nutter once suggested that Philadelphians who have served their time in prison will no longer be referred to as “ex-offenders”—they will be called “returning citizens.”

The executive director of the Office of Re-Integration Services told the Philadelphia Inquirer, at the time, that he hoped the new term would have a “cognitive effect” on those returning from prison.

That is sort of like saying we're going to call cancer “silly cells” and hope that patients will think they're not sick.

The problem isn't that people being released from prison are called “ex-offenders”; the problem is that we've made it so difficult for ex-offenders to find jobs, homes and opportunity that society almost guarantees failure.

A 2010 survey by the Society for Human Resource Management found that 92 percent of their members, which are mostly large employers, perform criminal background checks on some or all job candidates.

In another study, Harvard criminologists Bruce Western, Devah Pager and Naomi Sugi found that a criminal record reduces the likelihood of a job callback, or offer, by nearly 50 percent.

An estimated 65 million U.S. adults have criminal records. They often confront barriers that prevent even the most qualified from securing employment, according to the National Employment Law Project.

A single criminal conviction should not tarnish a life otherwise spent abiding the law. A criminal record should disappear over time, and there is research to support that proposition.

If an offender has a history of criminal conduct that stretches over time, then the record should be preserved and used to enhance penalties and warn employers, the public and law enforcement that this individual is potentially dangerous and definitely a criminal nuisance.

On the other hand, an offender who has gone crime-free for a period of time should have his criminal record removed.

In 2009, Alfred Blumstein and Kiminori Nakamura of Carnegie Mellon University wrote in Redemption in the Presence of Widespread Criminal Background Checks that there comes a time after a period of crime-free behavior when an ex-offender is no more likely to commit a crime than the general population.

Their analysis was based on a statistical concept called the “hazard rate.” The hazard rate is the probability, over time, that someone who has stayed clean will be rearrested. For a person who has been arrested in the past, the hazard rate declines the longer the former offender remains arrest free.

The Blumentstein-Nakamura study examined the hazard rate for 18-year-olds when they were arrested for a first offense of one of three crimes: robbery, burglary and aggravated assault. For robbery, the hazard rate declined to the same arrest rate for the general population of same aged individuals at age 25.7 or 7.7 years after the robbery arrest. After that point, the probability that the convicted individual would commit another crime was less than the probability of other same aged individuals in the general population.

The study also examined the effect of the arrestee’s age at the time of his first arrest. The researchers examined the hazard rates for three ages of people in the study group—16, 18 and 20-years-olds—who were arrested for robbery.

In contrast to the findings with regard to 18-year-olds cited above, those whose first arrest occurred at age 16 drew even with same-aged individuals in the general population 8.5 years later. Individuals who were first arrested at age 20 caught up with the general population 4.4 years after their first arrest.

The analysis showed that the younger an offender was when he committed robbery, the longer he had to stay arrest-free to reach the same arrest rate as people his same age in the general population. The researchers found similar results for first offense burglary and aggravated assault.

Why shouldn't an ex-offender, crime-free for 10 years, have his or her criminal record purged?

In Pennsylvania, a second DUI more than 10 years after a first DUI is not compounded for purposes of sentencing. The state legislature felt that convictions so far apart were not indicative of a pattern of alcohol abuse and driving. In addition, the DUI offender's record can be expunged.

However, if a person gets arrested for theft, and is crime-free for 15 years, he still has a criminal record. Although, that offense will not enhance the potential penalties if there is a subsequent offense, it will follow the offender like a scarlet letter.

A 20-year-old college student who enters a fraternity house and breaks some windows as part of an alcohol-fueled prank, gets convicted of burglary—and struggles with that label for the rest of his life. In Pennsylvania, nothing short of a governor's pardon will clear his record.

It is time to rethink how, and to what extent, we punish in this country.

Punishment should not be a stigma that attaches and never let's go. Science tells us there is a better way, and policymakers should take heed.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino). He welcomes comments from readers.

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