Give Martha Stewart her guns and Steve Bannon his vote: The case for federal expungement

The Justice Department’s new rule reviving a process for restoring certain rights to people with nonviolent felony convictions rightly recognizes that, instead of lifetime scarlet letters, we must narrowly tailor the collateral consequences of a conviction. Starting Monday, Americans with a nonviolent federal conviction can avail themselves of this process. Although the Second Amendment is at issue, the principle it illustrates is far broader: People who have served their time in prison and demonstrated years of law-abiding conduct deserve a real path back to full citizenship. To fully deliver on this principle, legislation going well beyond this rule change will be necessary. The rule corrects a three-decade anomaly created in 1992, when Congress defunded the rights restoration process and left a statute on the books that no agency could implement. At the direction of Attorney General Todd Blanche, the department has built an application process with reasonable eligibility rules and case-by-case review that keeps violent offenders and sex-offender registrants outside its reach. Yet the only comprehensive fix is a congressionally enacted expungement law, which unlocks not just Second Amendment protections but other constitutional rights and full access to employment and housing.Beyond incarceration, a conviction’s fallout strips individuals of the right to vote in many states, closes the door on federal employment and most professional licenses, makes it difficult to find housing and private-sector jobs, bars jury service, and prohibits gun possession for life under federal law and the law of nearly every state. The new DOJ rule addresses only the last, and even there, the impact is modest. The process lifts only the federal firearms prohibition, not the parallel state ban that exists in every state except Vermont. An analysis found that most state restoration procedures do not apply when the underlying offense is federal. Residents in California, New York, or Illinois can complete DOJ’s process, receive a formal restoration letter, and still face state prosecution the moment they take custody of a firearm. Nonetheless, removing the federal bar reduces exposure to mandatory minimums that state prosecutors cannot match, including a mandatory floor of 15 years for a second federal gun possession conviction. But relief under this rule, or even a federal pardon, does not erase a conviction from someone’s record, leaving them subject to myriad collateral consequences. The comprehensive solution here is for the federal government to join most states in adopting a general expungement statute. Such a law would allow people with nonviolent federal felony convictions to petition, after a substantial waiting period and with proof of law-abiding conduct, to have their federal records expunged. The eligibility rules can be as tight as those enumerated in DOJ’s rule: nonviolent offenses only, waiting periods, court review, opportunity for prosecutorial objection.Research shows that after roughly seven years of law-abiding conduct, the arrest risk of someone with a prior conviction approaches the baseline for the general population. Federal Bureau of Justice Statistics data show that 90% of prisoners who used a firearm in their offense obtained it outside the regulated retail system. The channels this rule reopens are not where gun crime originates, and those willing to submit to federal review and prosecutorial objection are self-selecting out of the population inclined to reoffend.A federal expungement statute would reach far beyond what the DOJ rule touches. Because most private employers, landlords, and licensing boards run background checks against federal sources, expunging the federal record clears it from most screening for jobs, leases, and licenses. It would restore voting rights, federal jury service, and eligibility to hold federal office. And it would establish in law a principle most Americans already accept: that people are not defined forever by the worst thing they have done.Here is where the politics ought to line up. Restoring voting rights to people who have completed their sentences is catnip for progressives. Fully restoring Second Amendment rights to people who pose no physical danger, whether that is Martha Stewart or Steve Bannon, appeals to the conservative constituencies that pushed the DOJ rule across the finish line. Both sides want relief for people whose records still shape their lives, and combining the two could form a bipartisan majority.TRUMP, DON’T INVADE HAVANA — GIVE NICARAGUA’S DICTATOR THE MADURO TREATMENTPermanent prohibition without regard to individual dangerousness cannot be squared with the Constitution or with basic ideas about redemption. A federal expungement statute is the answer: Only that kind of comprehensive restoration delivers a second chance that works in every state, for every right. The DOJ has fired the opening salvo. Congress needs to supply the ammunition.Marc Levin is chief policy counsel at the Council on Criminal Justice. Khalil Cumberbatch is director of strategic partnerships at the Council on Criminal Justice; he was previously incarcerated and is a nationally recognized advocate for criminal justice reform.