Rory Treanor

You served the time.

Why are you still doing the time?

Rory Treanor writes:

Removing convictions from people’s records is more important than giving employers free access to employee’s records.

Today is National Mandela Day. Long-term prisoner Mandela was an exceptional man in exceptional circumstances, but he is also a great reminder of how the label “criminal” tells you little or nothing about a person.

The Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016 allows for a person who is over the age of 18 at the time of the commission of a first offence, and; if seven years have passed since the conviction, and; who has completed their sentence, and; who has been of “good character” ever since, and; if the sentence was for less than 12 months; to consider that conviction to be “spent.”

This means the person doesn’t have to declare it to anyone other than a court.

That is fine, as far as it goes. It shouldn’t be the case that a person who does something wrong once has to carry that with them forever. But it is excessively simplistic and overly restrictive.

In the criminal justice system, there are four main reasons for punishing someone who commits a crime:

Retribution
Deterrence
Incapacitation
Rehabilitation

The socially conservative attitude to criminal punishment is that while a person might have served their sentence they will always be a criminal. This is admitting defeat. Such an attitude is saying that the state has no capacity to effectively rehabilitate.

The state fails to rehabilitate when the state fails to try. The more tools there are at the disposal of the state to promote rehabilitation, the better.

When a court imposes a custodial sentence it is common for it to be suspended, in whole or in part. This means that if a person is not of good behaviour then they will serve the whole of the sentence, the suspended part being reactivated.

People who enter prison gain remission, “time off for good behaviour.” It is an effective tool within prisons to maintain order.

But once a person emerges from prison they are still a criminal. The shame which is attached to a duty to disclose previous convictions deters seeking employment and so it increases poverty rates amongst offenders and so increases rates of repeat offending.

This is the antithesis of rehabilitation. The system is complicit in re-offending rates.

There is a significant problem with the 2016 Act as it does not ask the most important question: has the person chosen a better direction? Most people who stand to benefit from the Act were not going in any criminal “direction” at all. It was a once-off.

But if it is right in principle then it should be extended in practice.

It should not be limited to first-time offenders, it should not be limited to shorter sentences and it should not ignore the offence itself.

There are some offences that, due to their severity, might never be appropriate to be deemed “spent”, such as offences involving children, sexual offences and offences involving dishonesty.

But to say that a person, having committed an offence, is always a criminal, is damaging to the criminal justice system itself. This was acknowledged by the Children Act, 2001.

If a person is able to show their continued rehabilitation after completion of a sentence then a person should not be required to disclose the cause of their rehabilitation, in effect undermining those efforts.

When a judge is imposing a sentence, that judge should be entitled to fix a review date. At that time a person can apply to a court of equal jurisdiction to have their conviction declared “spent.”

As is the practice at present, the conviction still happened and may still be disclosed to a court. But that person will have better employment opportunities, better travel opportunities and be rewarded for their efforts since they were last convicted. They will lose that benefit if they offend again.

It will never be possible to put together hard statistics on who has benefited from the 2016 Act. This is because, while the state is content to label someone a criminal, the state has little concern for what happens to offenders further down the line.

Scientific evidence points to the conclusion that the human brain is still forming up to the age of 25. A person is more prone to engaging in risky behaviours and less likely to engage in long-term, strategic thinking below that age.

This means that young people, and men in particular, are more likely to go through a “wild” phase.

Laws are created by old people who have made it through that phase (relatively) unscathed. They literally do not think like the people who are going through that phase. People in that phase make up the vast majority of offenders.

Rory Treanor is a barrister, host of Brief Notes – the weekly legal podcast from Dublin City FM, and Social Democrats Local Area Rep for Pembroke-South Dock. Follow Rory on Twitter: @roryhtreanor

Pic: Garda.ie