Excerpted from an article in The Atlantic by Mark O’Brien
Sixteen years ago, during my last semester of law school, I caused a drunk-driving crash that killed my girlfriend. I pleaded guilty to negligent manslaughter and faced up to a decade in prison, but thanks to my girlfriend’s family’s forgiveness and whatever unearned sympathy I received as a middle-class white man, my sentence amounted to a few months in jail followed by several years on probation. Considering the sentences faced by many, I’d been very lucky.
Ever since, I’ve been among the 80 million Americans living with a criminal record and all its consequences. I’ve fantasized about what my life would be like if my record simply vanished. Not long ago, it sort of did—one more instance of a system that’s not just unjust but also capricious and poorly administered.
Given how common plea bargains are, a criminal record is not an especially accurate indicator of guilt, nor is it necessarily an indicator of what kind of person someone is, particularly years after what may have been the worst deed of their life. Collateral consequences—legal and regulatory restrictions and discrimination that apply to people with criminal histories—persist even after a person has completed their sentence, sometimes for life. And although some of the consequences people like me face make sense, especially when they’re related to specific safety concerns connected to specific types of crimes, these penalties have become so pervasive that we are practically living under a different legal system than everyone else.
The National Inventory of Collateral Consequences of Conviction has identified more than 40,000 federal and state laws cutting us off from employment and professional licenses, education, housing, public benefits, and even constitutional rights such as those to vote or to bear arms. Outside of the United States, other countries may forbid us from visiting. And even when we’re not legally barred, those of us with records often find ourselves excluded from basic parts of life most people take for granted.
After I got out of jail, in 2009, my criminal record seemed to close every door I tried to open. Looking for a job? Have you ever been convicted of a felony? Applying for bar membership? Out of the question. Purchasing life insurance? You’re too risky. I was able, eventually, to get a job helping people find work and navigate the complexities of life after incarceration, which grew into a career working on criminal-justice reform, addiction policy, and trauma-informed care.
I’ve dedicated myself to honoring my girlfriend’s memory and making amends for what I did through work that saves and rebuilds lives, helping dozens of communities come together to address recidivism, addiction, and overdose. Even now, I’m routinely asked to explain my history. In just the past few years, I’ve been asked about my criminal record as part of applying to graduate school, filling out health screenings and discussing my health history with my doctor, seeking a home-improvement loan, and volunteering at my children’s elementary and middle schools: One allows me to chaperone, and the other says I can accompany my own children on field trips but can’t be trusted to supervise other people’s children.
Think of the most shameful, painful experience you’ve ever had. Now imagine having to explain it to strangers over and over for the rest of your life to convince them you’re more than your worst mistake: That’s what it’s like to have a criminal record.
Then, in the spring of 2023, the impossible happened. I was getting fingerprinted for an FBI criminal-background check, part of a 100-page application to visit Canada for a work conference. Canada typically doesn’t allow Americans with criminal records in, but I’d been invited to present my research on post-traumatic growth, the topic of my recent memoir and an area of professional focus inspired by the pain of the car crash I caused. Knowing I would need special permission to enter the country, I’d compiled volumes of documentation showing my rehabilitation, hoping to overcome the stigma of the past that would be revealed by my background check.
Moments after having my fingers scanned, I was shocked by the email from the FBI that arrived in my inbox: “No criminal history record.” I read it more closely, searching for the part I must have missed or the error in the information they used to identify me. How could neither the FBI nor Maryland, the state that convicted and incarcerated me, know I was guilty of homicide? But they’d searched all the potential variations of my name, even using alternate spellings, and found nothing.
A few days later, when the official report arrived in the mail, I figured it would be updated and corrected. After all, these are the records used for professional licenses, to work in hospitals and schools, for gun background checks, and in law enforcement. But when I opened the envelope, the information was the same: no criminal record.
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