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When is enough punishment enough?

Defendants appearing before the criminal courts, particularly for the first time, frequently plead for an opportunity to avoid a formal conviction, on the basis of the impact such a criminal record might have on their life. 

An Garda Síochána recently issued strong warnings to young people regarding the dangers about getting involved – even unwittingly – with organised crime groups by agreeing to become so-called ‘money mules’ for those criminals. ‘Money mules’ are paid to allow their legitimate bank accounts to be used for illegal money-laundering. 

Those Garda warnings emphasised the potential impact on a young person’s life prospects, specifically as a result of having a criminal conviction, and especially one related to money-laundering. Such warnings to people young or old, regarding the impact of criminal convictions on their lives, are valid and all too real. 

While the fact of having a criminal conviction in the first instance is damaging in itself, the real long-term damage to an individual arises from the fact that their criminal record will continue to ‘haunt’ them, and negatively impact their lives, for years to come, in many cases, for the rest of their lives. 

A criminal record can impact one’s right to travel, and access to education, employment or insurance cover, among other things. 

It is not suggested here that offending should go unpunished. The question however is: how long should that punishment go on for? When should someone’s punishment be finished? When is enough punishment enough?

Last month, Justice Minister, Helen McEntee TD, announced an initiative to expunge around 600 previous convictions for ‘sale of sex,’ historically described as ‘prostitution.’ The Minister’s accompanying statement asserted that the “initiative will support victims of trafficking and exploitation in rebuilding their lives,” adding that “for those who have succeeded in exiting prostitution, previous convictions can be a significant obstacle as they attempt to move on with their lives.” 

Review of ‘Spent Convictions’ legislation

This is all indeed true, and Ms McEntee’s initiative is to be applauded and welcomed, if for no other reason than that it will enable those, for whom an element of their past has thus far been an obstacle, to move on with their lives. Minister McEntee’s Department is also currently undertaking a wider review of our ‘Spent Convictions’ legislation. 

The existing (2016) legislation limits the convictions that can become ‘spent’ after a period of time to those that involved a custodial sentence of up to 12 months, or a non-custodial (e.g. suspended) sentence of up to 24 months. A 2018 Bill, currently before the Oireachtas, would increase the custodial sentence limit to 24 months and the non-custodial to 48. 

The Bill also proposes to increase the maximum number of offences that can be expunged from one to two. While the 2016 legislation was itself very restrictive, the measures proposed in the newer Bill are welcome but unfortunately do not go nearly far enough.

It is estimated that one in four of the population in the USA has a criminal conviction. We do not have comparable statistics for this country but if the same percentages were applied, that would mean that over one million people in Ireland have a criminal record of some sort. 

That’s a lot of people with some form of criminal conviction, whether ‘serious’ or ‘minor.’ Many people with convictions, including for relatively minor misdemeanours for example, and those whose convictions were very long ago but who have since been models of good behaviour, can be deeply frustrated where their own efforts to be rehabilitated are not matched by an openness on the part of society at large, to facilitate their reintegration into the community.

Any sort of criminal record – even a ‘one-off’ foolish or reckless act, can stick with us for a very long time, and potentially impact our lives forever. Clearly, some offences and some types of offending are worse than others. 

Some criminal convictions should remain on a person’s record. Nevertheless, if we are to be serious about rehabilitating those who have offended, we as a society have to take our responsibility to advance offender rehabilitation, as much as the person who has offended has a responsibility to do so.

International examples

Dara Robinson Senior Counsel and solicitor Aoife McNicholl have written an insightful article on this issue in the ‘Law Society Gazette.’ They describe the situation in Ireland regarding spent convictions as lagging shamefully behind our European (and other) counterparts and highlighted specific legislative steps that should be taken to improve things, so that “a person who has committed crimes… can become fully rehabilitated and… be allowed to move on from past behaviours to education and gainful employment.” 

The Minister and Department of Justice have shown a willingness to improve the current legislation, as demonstrated by the review process currently underway. The question is: how far will any new reforms go? 

Dara Robinson and Aoife McNicholl have signposted a well-argued legal basis for an evidence-informed transformation of current provisions. Other jurisdictions have shown what can be done. 

In Germany, for example, there is no limit on the number of convictions that may become spent after a period of time. In Norway, there is an enshrined Reintegration Guarantee, incorporating a commitment from all Government Ministries, providing all ex-offenders with practical opportunities to become responsible citizens. Germany and the Netherlands provide for ex-offenders to apply for a ‘certificate of good conduct,’ or in the USA for a certificate of employability or rehabilitation.

If we are to maximise the possibilities for offender rehabilitation and reintegration in our communities, it is essential that, in line with the suggestions made by Robinson and McNicholl, we should:

  • Accept that people can change and can be rehabilitated;
  • Introduce a real commitment to remove structural, legal and other obstacles to rehabilitation – effectively a ‘Reintegration Guarantee’ for ex-offenders;
  • Work from the ‘default’ position that most, if not all, criminal convictions will become expunged after a specified length of time, while allowing for specific exceptions (e.g. very serious offending);
  • Ensure that ‘spent convictions’ are in fact removed from a person’s record;
  • Consider introducing systems similar to other jurisdictions whereby ex-offenders can apply to appropriate authorities for certificates of rehabilitation;
  • Incorporate an additional right of appeal, whereby any ex-offender can apply to a court to have outstanding convictions expunged, if they can demonstrate positive, pro-social conduct over an extended period of time.

Each of us is better than the worst thing we have ever done, and it is in everyone’s interests, including victims, that offenders are rehabilitated and reintegrated, and that re-offending is thereby reduced. The fact that criminal records follow ex-offenders for so long is a significant roadblock to rehabilitation and so makes us all worse off. 

The announcement by Minister McEntee to expunge the 600 convictions for offences related to the sale of sex is a bold and creative step forward. It is to be hoped that the same boldness and creativity will be demonstrated in the outcome of the ongoing, wider review of the spent convictions legislation. 

It is in all our interests.

Vivian Geiran is Adjunct Assistant Professor, TCD School of Social Work and Social Policy, Board Member, Irish Association of Social Workers (IASW) and former Probation Service Director

Original article can be found here: https://www.irishexaminer.com/opinion/commentanalysis/arid-40300367.html