Who deserves second chances?

It’s common to hear rhetoric about second chances in conversations about criminal justice and prison reform. But there’s a social distance between those who need second chances and those who don’t that complicates this calculus. The regular Joe’s in society who don’t break the law may feel a natural disapprobation for the criminal Joe’s who deviate from law abiding behavior. Further, there seems to be an additional hurdle to the discussion of second chances that manifests in the types of offenses that may qualify or disqualify an individual from a fresh start. CA & America would still be the global leaders in human caging even if we were to immediately release all the non-violent/drug offenders in our prisons. Any conversation about second chances therefore must begin with the more difficult position of reckoning with the destiny of violent offenders.

Former President Barack Obama proclaimed America a “Nation of second chances.” This is a pleasant thought, but digging deeper into this sentiment brings about some unsettling conclusions. The premise that America is built on second chances begs the questions of why is there such a widespread need for second chances in the first place? If there weren’t such drastic inequalities in society there wouldn’t be such an urgent need to build upon this rationale of second chances. If everyone were on the same playing field right off the bat instead of, say, a social system in which upward mobility and autonomy in life is dependent on one’s zip code, the landscape of second chances would look quite different.

Operating within the existing social realities unlocks different quandaries to ponder. Life in the ghetto presents an exceptional amount of barriers that it could be said individuals in these communities never even had a first chance in life. This simple truth is magnified by the defining hallmark of this era of mass incarceration — minority over representation. Brown and black bodies fill CA prisons at astonishingly disproportionate rates. Mass incarceration (aka mass extermination) is the legacy of slavery, plain and simple. Any discussion of second chances that glosses over this point is miscalibrated.

Perhaps even more common than hearing about second chances is the idea that our criminal justice system is broken. It is not broken, it is functioning just as it was designed to. Rounding up young bodies from oppressed communities and relegating them to a life that positions them even further on the fringes of society has been the M.O. of the criminal justice system since inception in CA. The more radical these ideas sound serves as a litmus test for one’s understanding of the historical role prisons have played in CA society. While it’s no longer acceptable to explicitly use the criminal justice system as a vehicle to perpetuate a caste-based society, this enduring mission persists. The definitions have evolved (violent offenders being the new term of choice), but the same tactics are still recycled. Round up young bodies, brand them with the mark of the criminal justice system, and confine their life arches.

Distinguishing structural injustices from self-inflicted harms is the ultimate intersection of this notion of second chances. For those who succumb to the ensnaring nature of the ‘hood, should they be granted clemency after serving a considerable amount of their sentence as a recognition of the conditions that initially lead them to lawless behavior? Or, do those of us who’ve never needed a second chance urge our criminal justice system to continue to throw the book at these offenders to set an example? Sentencing guidelines aren’t conceptualized with the idea of second chances in mind, so if they are to be changed, second chances as a form of reparations must move to the forefront of reform-based conversations.

To further complicate this delicate balancing act, let’s consider the different types of offenders that may or may not deserve second chances. Perhaps more so than any other group of offenders, sexual offenders assault our moral sense of wrongdoing. But, rather shockingly, this group has repeatedly been demonstrated to have the lowest recidivism rate across the board. If we believe that those who are the least likely to re-offend deserve second chances the most, empirical data leads us to the conclusion that these type of offenders are most deserving of second chances. This position is difficult to defend, but offers a perplexing glimpse into the amorphous nature of second chances.

Integrating holistic approaches to better understand the factors that led individuals to break the law offers an intriguing potential to humanize the criminal justice system. To flesh this concept out, let’s consider a few different scenarios. Bobby has a history of petty shoplifting charges. Upon his most recent arrest, the judge adjudicates Bobby to a minor jail stint. On the surface, this standard story doesn’t seem to cause any issues for society. Bobby has repeatedly committed the same crime, received a proportional sentence, and now will hopefully have time to reflect on his mistakes in a correctional facility. But what if Bobby is stealing food from his local grocery store because his family is food insecure and his little sister is starving? Most observers would most likely follow Bobby’s actions, and wouldn’t have any moral issues with the thefts. Yes, stealing is against the law, but in the face of watching your little sister suffer from starvation, the theft pales in comparison. Or, consider the story of Willy. Willy sells bootleg copies of movies in his neighborhood, but he doesn’t know that copyright infringement is a crime. Ignorance of the law is not a successful legal argument in the courtroom, but should Willy still receive a criminal sentence for his non-violent actions?

The obvious challenge to this holistic approach to considering second chances is volume. There are simply far too many cases to break down each one to a human level and consider all the relevant factors at play. The dark horse in these conversations about second chances is the role prosecutors play. Prosecutors are elected officials who seldom run on a platform of leniency and compassion. Less than 10% of criminal cases go to trial, a full 90% conclude in the plea bargaining stage. There is virtually no publicly accessible information about prosecutorial behavior, but again the issue of volume plays a significant role in guiding their actions. If a prosecutor has a dozen different cases to get through on any given day, there is not enough time to sit down and get to know the suspect on a human level to understand their criminal behavior. When we consider the role racial tropes play in criminal proceedings, it’s fair to assume when a prosecutor sees another brown or black suspect, their biases (implicit or explicit) becoming a driving force.

We’ve yet to examine the current second chance climate that recently released inmates face. The post-release environment in CA is replete with over 40,000 legal discriminatory barriers. From voting restrictions, to housing discrimination, to withholding educational grants, life on the outside for convicted felons is nearly impossible to navigate. One mistake can alter the trajectory of someone’s life until the grave. The Kantian retributivist may be satisfied with this dynamic, but who among us hasn’t committed a crime at some point in our lives? Maybe it was something minor like jaywalking or rolling through a stop sign, or more substantial like property infractions or instances of physical violence. The only difference between us citizens on the outside and our fellow incarcerated Californians is that we didn’t get caught. Or, for those of us who enjoy certain privileges in life, the only difference is that we didn’t have to break the law to meet our basic needs in life — or, if we did break the law, we were immediately granted a second chance and not formally charged.

Second chances … well, what about first chances?

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