Journal of Leadership and the Law

Applying the Restorative Justice Framework to the Criminal Justice System: The Role of Expungements and Leadership in the Reintegration Process

By Merima Mustafic

I. Introduction

The prison and jail populations have exploded in the United States over the last several decades.  According to the U.S. Bureau of Justice Statistics, more than 1.5 million Americans were incarcerated in state and federal prisons at the end of 20141, a figure that has quintupled since 1980.2  Adding in jails, the number of people who are incarcerated rises to 2.2 million.3  One in three U.S. adults has been arrested by age 23.4  As a result, between 70 million and 100 million—or as many as one in three Americans—have some type of criminal record.5  In Throwing Away the Key, Salim Muwakkil states, “Our nation’s penal system is a grotesque charade that has abandoned all pretense of penitence or any notion of rehabilitation.  It has become instead, an apartheid system used to warehouse surplus populations that society has forsaken”.6  Indeed, the high rate of incarceration, combined with the likelihood of recidivism, should lead people to consider reforms and other criminal justice models.  Restorative justice is a means for a community to examine its justice system and create policies that work to solve the root of crimes, rather than simply deter them.

II. The Restorative Justice Framework

Restorative justice is a theory of justice that emphasizes repairing the harm caused or revealed by criminal behavior.  It is best accomplished through cooperative processes that include all stakeholders–the offender, the victim, and the community.  According to Harold Zehr, one of the fathers of restorative justice, this philosophy is “a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible”.7

An important goal in applying this restorative justice framework is that it seeks to restore victims and offenders to whole, contributing members of society.  Reintegration of offenders back into their communities, therefore, is one of the core values in restorative justice.8  The reintegration of ex-offenders directly involves and affects all the parties traditionally considered by restorative justice as stakeholders in the crime.  It provides an opportunity to execute restorative practices aimed at ensuring a healthy reintegration and repairing the harm induced by the offense and its punishment.

III. Re-Entry and Re-Integration

Nearly all inmates re-enter their communities upon release from prison, but many are unable to reintegrate into society.  Reentry is defined as “the process by which individuals return to communities from prison or jail custody”.9  Reintegration, on the other hand, refers to the ability of former inmates to become productive and functioning members of their communities.10  From a restorative justice approach, reintegration is what is aimed to be achieved.

A Bureau of Justice Statistics study on recidivism of prisoners released in thirty state shows that the years in jail have not corrected the behavior of many of the 404,638 prisoners in the study; more than a third were arrested in six months after release.11  The percentage of those arrested increased each year until it reached 76.6 percent within five years.12  The study found that prisoners twenty-four and younger had a higher re-arrest rate of 84.1 percent.  The rate was 69.2 percent for those forty and older.13

Studies have shown that recidivism is directly linked to lack of economic opportunity.14  In addition to the stigma of a criminal conviction, many lack vocational skills and have obvious gaps in work history due to incarceration.15  When ex-offenders have no jobs, no stable residence, and no family or friends to provide even temporary housing, they have little stake in the well being of their communities and are more likely to engage in anti-social behavior.16  Obstacles to reintegration remain in an offender’s life indefinitely, making it much more difficult to obtain employment, to become financially stable, to secure housing, and to reclaim the basic rights of citizenship.

The Vera Institute of Justice followed a group of forty-nine adults released from New York state prisons and city jails for thirty days, interviewing them on seven separate occasions to learn about the major challenges facing returning prisoners during this period.17  The study sought to gain insight into returning prisoners’ expectations, the release experience, reunions with family and friends, attempts to find work, and parole supervision experiences.18  The study indicates that the initial period following release from prison is critical.19  Although the small sample size limits the broader applicability of the findings, the patterns found can help enrich our understanding of the experience and challenges of reentry and reintegration from the perspective of the returning offender.  The study documented a few key hurdles to successful reintegration—namely, finding a job, finding housing, and getting access to needed health care services.20  Most returning prisoners who found a job within the first month following their release were either re-hired by former employers or had help from family or friends.21  Relatively few found new jobs on their own, often because they lacked the skills to conduct an effective job search or could not find employers who would hire ex-offenders.22

A Huffington Post article, entitled Recidivism Hard to Shake for Ex-Offenders Returning Home to Dim Prospects, quotes Glenn E. Martin, a vice president at the Fortune Society, a New York-based organization that helps formerly incarcerated people and their families, as saying, “It’s really easy to commit crime when you can persuade yourself that no one else out there is convinced of your rehabilitation”.23   According to the article, “Martin, an ex-offender who served six years in prison, says the ‘tremendous amount of hope’ with which people come out of prison is often buoyed, ‘with a tremendous amount of fear of failure.’  There’s just enough time to get smacked in the face with, ‘I’m out of prison but I’m in this proverbial prison of stigma and all of these other barriers that society has created for me,’ . . . And in some areas the barriers are especially steep”.24

IV. Expungement as a Necessary Tool for Re-Integration

The barriers to employment for those with criminal records–and particularly for those with criminal convictions–are indeed especially steep.  A 2012 survey by the Society for Human Resource Management, found that 86 percent of employers use criminal background checks on at least some candidates, with the majority (69 percent) checking all candidates.25   In a similar 2010 survey by the same group, 31 percent of respondents said an arrest without conviction would at least be “somewhat influential” in their hiring decision.26  Of course, convictions are even worse for job applicants.  A 2009 Department of Justice study found that a past criminal conviction of any sort reduced the likelihood of a job offer by 50 percent.27  Moreover, the negative effect of having a conviction in their criminal history was found to be twice as large for black job seekers as compared to their white counterparts.28

The fallout of convictions experienced by individuals, families, and communities has the potential to be ameliorated by post-conviction legal remedies, such as record expungements.  Therefore, expungement is crucial in making the restorative justice model effective in practice.  Expungement would not, however, destroy law enforcement accessibility.29  Maintaining such records for an extended period of time is in the interest of public safety.  The purpose behind expungement is to wipe the proverbial slate clean, allowing formerly convicted citizens to return to their communities without a lifelong struggle with collateral consequences.  In the context of crime and recidivism, expungement could be a tool to integrate ex-offenders into the community through an incentive structure.  Once the offender discharges his debt to society, further collection on that debt, in the form of life-long collateral consequences, should be barred.

V. Reducing Recidivism by Building Community Through Employment Opportunities

Through the restorative justice framework, offenders have the potential to view themselves and be viewed by those around them as community assets and resources rather than as liabilities or threats.  For the offender, the restorative justice framework requires accountability in the form of obligations to repair the harm to individual victims and victimized communities, and it provides opportunities for the offender to develop new competencies and the capacity to avoid future crime.30  The ability to find a stable and adequate source of income upon release from prison is an important factor in an individual’s reintegration into the community, as it reduces the gap between the community members and ex-offenders.

The fundamental point is that having a legitimate source of employment decreases the likelihood of being involved in criminal activity.  The restorative justice framework is centered, in part, on the idea of healing the harms caused to the offender.  By being punished through collateral consequences, he continues to lose connections with the community and is stigmatized in a way that makes it even more difficult to regain what he once had.  It is thus tremendously important from the offender’s perspective at the moment of release that the difficult process of reintegrating back into society is feasible.  Giving ex-offenders the opportunity of presenting themselves to potential employers as human beings with useful skills, rather than focusing on their past offenses, is a value in and of itself.  Furthermore, if positive results are reached, the power of healing the offender’s harms is boosted even more.  He will be actively accepted into the community, his work will be valued and his income will allow him to confront all the other barriers he might be dealing with, such as access to housing and health treatment.

Through the transformative justice framework, the ex-offender should be able to create connections and build positive relationships with the community.  In a working environment, working and professional relationships will necessarily be created and it will be up to the ex-offender to maintain them.  The interaction of all stakeholders–offender, victim, and community–reinforce the feelings of belonging, acceptance, and usefulness that are critical in the restorative justice framework.  Rather than a purely punitive model, a program that focuses on employment as an influential component on the recidivism of ex-offenders that re-enter the community has the double function of ensuring justice for the victim and community affected while at the same time confronting the problem of delinquency by reducing the recidivism rates.

FOOTNOTES

1.) Department of Justice, Bureau of Justice Statistics, Prisoners in 2014 (September 2015), available at http://www.bjs.gov/content/pub/pdf/p14.pdf.
2.) The Sentencing Project, Trends in U.S. Corrections (November 2015), available at http://sentencingproject.org/doc/publications/inc_Trends_in_Corrections_Fact_sheet.pdf
3.) Id.
4.) Id.
5.) Id.
6.) Salim Muwakkil, Throwing Away the Key, In These Times, April 29, 2003, http://inthesetimes.com/article/444/throwing_away_the_key.
7.) Howard Zehr, The Little Book of Restorative Justice 37 (2002).
8.) What is Restorative Justice?, Centre for Justice & Reconciliation, http://restorativejustice.org/restorative-justice/about-restorative-justice/tutorial-intro-to-restorative-justice/lesson-1-what-is-restorative-justice/.
9.) Anthony C. Thompson, Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics 1 (2008).
10.) See, What is Restorative Justice?, supra note 8.
11.) U.S. Department of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (April 2014), available at http://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf.
12.) Id.
13.) Id.
14.) See, e.g., Christy A. Visher, Laura Winterfield, & Mark B. Coggeshall, Ex-Offender Employment Programs and Recidivism: A Meta-Analysis, 1 J. Experimental Criminology 295 (2005).
15.) See Jennifer Fahey, Cheryl Roberts, & Len Engel, Employment of Ex-Offenders: Employer Perspectives, Crime and Justice Institute (October 2006), available at http://www.antoniocasella.eu/nume/Fahey_2006.pdf.
16.) See Joan Petresilia, Prisoner Reentry: Public Safety and Reintegration Challenges, 81 The Prison J. 360 (2001).
17.) Marta Nelson, Perry Deess, & Charlotte Allen, The First Month Out: Post-Incarceration Experiences in New York City, Vera Institute of Justice (1999), available at http://www.vera.org/sites/default/files/resources/downloads/first_month_out.pdf.
18.) Id.
19.) Id.
20.) Id.
21.) Id.
22.) Id.
23.) Trymaine Lee, Recidivism Hard to Shake for Ex-Offenders Returning Home to Dim Prospects, Huffington Post (June 9, 2012), http://www.huffingtonpost.com/2012/06/09/recidivism-harlem-convicts_n_1578935.html.
24.) Id.
25.) Society for Human Resource Management, Background Checking: The use of Criminal Background Checks in Hiring Decisions (July 19, 2012), https://www.shrm.org/research/surveyfindings/articles/pages/criminalbackgroundcheck.aspx.
26.) Society for Human Resource Management, Background Checking: Conducting Criminal Background Checks SHRM Poll (Jan. 22, 2010), https://www.shrm.org/research/surveyfindings/articles/pages/backgroundcheckcriminalchecks.aspx.
27.) Devah Pager & Bruce Western, Investigating Prisoner Reentry: The Impact of Conviction Status on the Employment Prospects of Young Men (October 2009), available at https://www.ncjrs.gov/pdffiles1/nij/grants/228584.pdf
28.) Id.
29.) For purposes of the arguments presented here, an expungement is thought of as the removal of the record of criminal conviction and related documents from public purview and general public accessibility.  It is also important to understand that this Article focuses only on the non-violent offender.
30.) See Gordon Bazemore, Three Paradigms for Juvenile Justice, in Restorative Justice: International Perspectives (B. Galaway and J. Hudson eds., 1996). U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, A Comparison of Four Restorative Conferencing Models (February 2001), available at https://www.ncjrs.gov/pdffiles1/ojjdp/184738.pdf.