Clean Slate: Expanding Expungements and Pardons for Non-Violent Federal Offenders

Abstract

Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states. The “tough on crime” rhetoric of the 1980s and 1990s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, “truth in sentencing” laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population. However, unlike the states the federal government does not have a legal mechanism in place adequately reintegrating federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism. This is a price tag the United States can no longer afford to pay. This Article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to rid their slates of their criminal histories. Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders. First, this Article examines post-conviction penalties and contemporary recidivism trends. Second, this Article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for nonviolent offenders to re-enter mainstream society. This Article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not practically or politically feasible. Moreover, the two existing federal post-conviction remedies — pardons and judicial expungements — are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities. Using state post-conviction mechanisms as examples, this Article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (U.S.S.C.) create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions. With a Second Chance Advisory group, the U.S.S.C. could be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs.