Ex-cons should not be denied entrance into state bar associations

Another outstanding candidate was denied admission to the bar this past week because of an old criminal record. Reginald Dwayne Betts, an award-winning poet and memoirist and Yale Law School graduate who served time for a robbery conviction he incurred years ago as a juvenile, was denied admission to the bar of the State of Connecticut.

The same week, the ACLU of Washington, along with 48 additional organizations, 34 attorneys, and 20 law school faculty members filed an amici curiae brief on behalf of Tarra Simmons, a magna cum laude graduate of Seattle University School of Law who is appealing the Washington State Bar Association’s denial earlier this year of her application to take the bar exam. Simmons served time for drug crimes and was released from prison in 2013.

{mosads}Not allowing people with criminal records to sit for the bar exam or become attorneys strips the profession of the redemption and understanding it so sorely needs — and bestows upon itself.

All jurisdictions in the United States have a character and fitness requirement to become lawyers that asks aspiring attorneys to disclose any misconduct or criminal behavior in their past and any mental health diagnoses or addiction problems. In theory, the character and fitness requirement protects the public from individuals whose past conduct shows they might not be scrupulous lawyers.

But that screening method doesn’t necessarily work. If it did, we wouldn’t need attorney discipline agencies at all, and we clearly do.

The American Bar Association issues an annual report on attorney discipline and found that, for 2015, 116,175 complaints were filed against the country’s 1,403,258 lawyers, resulting in 2034 cases where sanctions were imposed, slightly lower than the 2077 sanctions on lawyers for 2014.

To be honest, it’s not just about regulation and quality control; the character and fitness requirement for bar admission protects the legal profession’s reputation and buffers it against the reality that not many people hold the profession in high regard anymore.

“There’s all sorts of trust that’s put into lawyers,” Jean McElroy, General Counsel of the Washington State Bar Association said in justification of Simmons’ denial, but she might be fibbing. A study from Princeton University found that lawyers are the second least trusted profession, after prostitutes, who, unlike attorneys, stop screwing you when you die, as the old lawyer joke goes.

Still, only three states — Kansas, Mississippi and Texas — ban felons from becoming lawyers because, at least in theory, the legal profession believes in second chances.

That’s why denying chances to Betts in Connecticut and Simmons in Washington seems incongruous.  Bar associations around the country understand that personal problems can bring on bad judgment and the punishment for that shouldn’t last forever, a conclusion probably arrived at because mental disorders (and their effects on work and behavior) are prevalent among attorneys.

According to an often cited Johns Hopkins University study of more than 100 occupations, researchers found that lawyers lead the nation with the highest incidence of depression.  In 1996, lawyers overtook dentists as the profession with the highest rate of suicide. The ABA estimates that 15-20 percent of all U.S. lawyers suffer from alcoholism or substance abuse.

Because they recognize the practical effects of having a record of misconduct can pose, at least 35 jurisdictions have diversion programs for attorneys whose conduct might have been degraded by mental health or substance abuse issues. They don’t want one their own to have a record that will follow them around for a lifetime, yet they allow Betts’ and Simmons’ records to precede them before the bar.

These statistics, of course, point out the larger problem is posed by conflating mental health and substance abuse disorders with character fitness; it sends a message that addiction and mental illness are moral failures instead of the medical conditions they are.

But more than that, it seems like the compassion and understanding lawyers extend to suffering people applies only once you’ve been admitted to the bar. Anyone like Betts or Simmons who gets their problems out of the way prior to admission doesn’t get the same consideration.

That’s not only unfair, it’s damaging to clients, the parties whom ultimately all of these professional responsibility guidelines are supposed to protect.

Preventing Betts and Simmons from becoming licensed attorneys is culling the best and most knowledgeable criminal defense minds from entering courtrooms. As someone who was a law student before serving six years in prison, I know how sorely needed these individuals are. No one knows a criminal courtroom and the collateral consequences of a conviction better than someone who was justice-involved.

The old adage that past behavior is the best predictor of future behavior isn’t necessarily true. The recidivism rates we lament all of the time are higher than we want at any number, but even the most discouraging rates reveal that a majority of people don’t reoffend.

A special few work so hard and succeed so brightly that they leave their mistakes so far behind that they prove what an aberration of their high character those acts were. Betts and Simmons are two of these people and the bar is cheating itself by not recognizing their redemption.

Chandra Bozelko is a 2017 John Jay/Harry Frank Guggenheim criminal justice reporting fellow. She served more than six years in the maximum-security York Correctional Institution, Connecticut’s only women’s prison for nonviolent crimes that remain on appeal. She is the author of Up The River: An Anthology. Her writing has appeared in the Wall Street Journal and the National Review.

The views expressed by contributors are their own and are not the views of The Hill.