Are We All Criminals?

Now to the ones that got away. In the US, one in four has a criminal record. They can be banned from many jobs, from housing, voting, even from owning a dog.

American lawyer Emily Baxter was working at an NGO trying to get a second chance for clients with a criminal history. She had to seek out employers, police, educators and so on, and, off the record, some ruefully confessed to their past criminal activities.

Emily Baxter is now a Fellow at the University of Minnesota Law School's Robina Institute. She wanted to pursue this idea of what it really means to be a criminal and created a project called We Are All Criminals. Hundreds of people—and it's growing daily—confessed on the website to a whole range of crimes.

Emily Baxter: A gentleman told me about a time when he was 17 years old. He and seven of his closest friends, so eight teenage boys, decided that they would break into a local liquor distribution plant. So they hatched out this plot, they had blueprints, they had walkie-talkies and a decoy van. They had waited for several months, ironing out all of the details before pulling off this heist. And late one night they broke into the building, got away with loads of beer, and schnapps for the girls, broke into a local cabin, stashed all of their loot and then sat on it for several months, waiting for the hubbub to die down. Once it did, they threw what he called an epic senior party. But he said what was the most interesting about all of that was that these were transferable skills. So the attention to detail, the plotting, the delayed gratification, even the interest in criminal activity, perhaps it's no surprise, he said, that two of us are chiefs of police, two of us are college professors, one is a victims' advocate, one is a nurse, and so on.

Now, I had a client at the time who at age 18 he had swiped a single bottle of Michelob Golden Light from a gas station refrigerator and he failed, a foolish attempt to impress a girl at a house party. He was charged with a misdemeanour theft, pleaded down to a petty, it's just a violation were you can pay a fine and he thought he was done with it. Now in his mid 30s he wants to become a cop, only to find that he is forever barred from being one because of the theft on his record. Too often decision-makers or the general public think of themselves as being something other, because they are able to contextualise their behaviour in the greater scheme of things. They know themselves not to be bad people.

Anita Barraud: Because often they will say, oh, I was young, I was stupid, I was in the wrong crowd…

Emily Baxter: Exactly: I was drunk, it wasn't my idea, I gave it back anyway. And because of that contextualisation they are able to mythologise their own past and determine that being a criminal doesn't fit in with their worldview or their self-view.

Anita Barraud: In a way you've created a kind of a secular confessional box and you ask; what have you had the luxury to forget?

Emily Baxter: Exactly. This project is an examination of the 75% of us who do not have criminal records and yet still have criminal histories. So in other words, those of us who got away with crime.

Anita Barraud: It does beg the question as to why there is such a stigma and life consequence attached to having a record considering a quarter of the population have it.

Emily Baxter: Because poor people and people of colour and American Indians are disproportionately impacted by our criminal and juvenile justice systems. Those are the populations that are most likely living with the burden of a criminal record.

Anita Barraud: The figures I read was that African Americans who represent just 12% of the US's population, they comprise 37% in federal prisons. And Hispanics are only 16% of the population, make up 35% of those incarcerated. So it's a huge disproportion of people of colour in prisons.

Emily Baxter: Without doubt. And once those individuals leave incarceration, they find themselves, although no longer locked up, now locked out from the likelihood of finding not just a gainful career but even menial labour. Losing the ability to care for your children, losing housing and the right to vote. It's difficult to date or be in a meaningful relationship when one of the first things that somebody does is Google your name and find a mug shot. There is a perpetual punishment. I mean, in many ways, once the sentence ends, that's when the punishment truly begins.

Anita Barraud: I understand it might even impact owning a dog.

Emily Baxter: It's true in some jurisdictions. The record doesn't actually have to have any sort of nexus to owning a dog, say for animal cruelty or something, it can just be any felony.

Anita Barraud: So can you describe some of the stories, people who've never got caught, some of the things that they revealed?

Emily Baxter: You will find a range of severity of activities. From fairly egregious, like aggravated robbery, to relatively innocuous, like vandalism. You'll also find a range in the recollections of reactions to past transgressions. So there's one gentleman, for instance, who recalled the time that he had taken his uncle's hunting rifle out to college with him. Drunk one night, he and his roommates decided to liberate the money within a double posted parking meter, letting loose $40 worth of quarters. He calls it his 40-buck shot, and he laughed throughout the entire interview. There were others who came to the interview with so much shame that they couldn't stop crying. There's one woman, for instance, who described a time when she was a barista:

Woman: I was 19 years old and I had just dropped out of school, so I became a barista. And so I wasn't making a tonne of money. We had a tip jar, but throughout the day we would cash in the change for dollar bills. And so it started out just I would take an extra 50c or something. And then after a few weeks I was taking an extra dollar every time or a couple of dollars. And then it got the point where I was…if we just endorsed our paycheques and wrote 'paid to the order of' then we could take the cash out of the till and leave the pay cheque in there, and so I started taking an extra $5 or $10. And the owner pulled me aside and confronted me about it. They had been watching me. She said that if I signed my cheque over to her right then and there, which was probably around $150, that she wouldn't call the police and that I'd obviously lose my job, but there would be no other consequences. So that's what I did. That was one of the lowest feelings that I had, was, you know…

Anita Barraud: You take photos too, don't you, not the person, but bits of their lives.

Emily Baxter: Yes, absolutely. They are stylised mugshots in some ways. These are really just photographs that I should hope relay some sort of personality and individuality, so that you can see that there's a real live human being behind this story, so that you can identify what that loss would be in society if they were suddenly taken out. So if this person couldn't be a doctor, if this one couldn't be a legislator, if this one couldn't be a professor or a retailer or a student or your neighbour.

Anita Barraud: I saw one set of photos which was pretty revealing, there's a woman's torso, she is holding a blackboard saying 'shoplifter', and then it's another picture underneath of the same woman with a blackboard saying 'mayor's prize for leadership'. Let's hear from that woman. She was never caught shoplifting.

Woman: When I was 15 my mother died. And what I found myself doing was leaving school and going over to the shopping mall that was across the street and trying on clothes and stealing them. I remember in particular a white tennis stress. I did not play tennis. That was a period of probably six months or so where that was a release, frankly, I realise now. And fortunately I was never caught. It could have been the beginning of a whole different life. I'm happily married, I have two brilliant kids, I work as a healthcare consultant and work as a neighbourhood activist.

Emily Baxter: For that woman in particular, her criminal activity occurred before her brain was even fully developed. It was her way of working through the loss of her mother, it was her cry for help. And practising in juvenile law, I've certainly seen that time and again.

Anita Barraud: Looking at, say…there is a bank teller's story, you've contrasted a story of a young college woman stealing a purse in a student union bathroom and she spends the money on beer and peanut butter I think. And in the purse there are tickets to the Clash too, which she couldn't use, which she felt bad about. And then she ends up as a bank teller.

Emily Baxter: Right, exactly, and she finds that had she been caught for that, that she would have been locked out of her chosen profession. And in fact there was something that hit national news around the time that I interviewed this woman, a gentleman…when he was a teen I believe had stuffed a wooden nickel in a laundromat machine. So a wooden nickel, that gives you an idea of how long ago it was.

Anita Barraud: And he got sacked from his job in a bank, didn't he.

Emily Baxter: It's federal regulation, he wasn't able to keep his job after his record had surfaced.

Anita Barraud: There is a very sobering story too of a teenage boy who moved town to a dodgy neighbourhood, and to survive he had to join a gang. Can you tell me about that story?

Emily Baxter: Right. He was just 15, and the first few weeks he found himself mugged and beaten several times. Soon he noticed that when he hung around a certain group of guys, the beatings stopped. So he did what any logical teenager would do and he joined the gang. It came at a cost, and that was exacted one Saturday day. He was told that if he did not participate in the beating of another boy, a 15-year-old who looked a lot like him, that he would be the one beaten. He opted for something that he said he regrets every day of his life, he picked up the pipe and he hit the kid. Had he been caught he would have likely been charged with a first-degree assault for the benefit of a gang. He likely would have been certified to stand trial as an adult. He likely would have been convicted, and once convicted he likely would have entered that cycle of in prison, out of prison, in prison, out of prison that is far too common in the United States.

Anita Barraud: Instead he now has a PhD in biophysics.

Emily Baxter: Precisely.

Anita Barraud: The thing though, it has to be said, the victim in this, another 15-year-old boy, would have been profoundly affected too. I mean, this was a serious assault.

Emily Baxter: Without doubt, and that gentleman…and certainly I am not attempting in any way to forget or belittle the egregious harm, the unconscionable harm…however, what I am saying is that when we are constructing consequences, those policies, they must be constructed with ration and with reason and with proportionality, and there must be compassion and mercy built in, and there absolutely has to be hope. There has to be an end to the punishment.

Anita Barraud: So from the project so far, what are the demographics of those who have confessed to these past crimes and misdemeanours?

Emily Baxter: By and large the participants are white and middle to upper middle class.

Anita Barraud: Which is very telling, isn't it.

Emily Baxter: Absolutely, yes.

Man: I've got a lot of, like, drunk driving stories I guess. A lot of my stories involve drinking. I mean, I was a functional alcoholic, yeah. I felt really bad about that, I mean, I still do.

Emily Baxter: So the aim is for through that process of recollection to recognise the context that they've allowed themselves. As you said: I was young, I was drunk, I was stupid, I was in a bad relationship, I gave it back anyway, no one got hurt, it wasn't my idea. And then recognise that that context may have existed for somebody who was caught as well. It may not be an excuse, but it is an opportunity to recognise a common humanity, which is so key to this project. Yes, we are all criminals, but much more importantly we are all human, and some of us may be in need of a second chance.

Anita Barraud: And the idea of the criminal, has that expanded? Because I understand the Minnesota criminal code in the 1960s was about 35 pages, now it's 135 pages. So the kinds of crimes that people are committing perhaps weren't crimes so much in the '60s.

Emily Baxter: Without doubt, not just here but throughout the United States. We are living in an era of mass criminalisation where activity that we find not just an abhorrent but abnormal or just inconvenient is made unlawful.

Anita Barraud: Are there are examples of that?

Emily Baxter: Many of the public disorder crimes, for example, public urination, that can land people in jail for extended periods of time, and even in some jurisdictions land them on public registries, is one great example of it.

Anita Barraud: What about pardons? Would they have an effect of expunging records, for crimes that were done as misspent youth?

Emily Baxter: Some jurisdictions, those expungements, those pardons, those set-asides, if available…and, by the way, they are not available in far too many jurisdictions throughout the United States…too often they are illusory remedies. In other words, they don't relieve those sanctions, they don't relieve the social stigma. This is an age, it's the data age, where scarlet letters are stamped permanently upon the ether, and no amount of scrubbing can clean that. I think that we need to look back, while still enacting pardons and expungements and set-asides, I think we also at the same time need to be looking at how we can put fewer people in jails and prisons to begin with, how we can stop that deluge of defendants in the criminal justice system in general, how we can disrupt the school-to-prison pipelines.

Emily Baxter, director of the We Are All Criminals project, and also a Fellow at the University of Minnesota Law School's Robina Institute of Criminal Law and Criminal Justice.

Thanks to Anita Barraud, producer is Matthew Crawford, and technical producer is Angie Grant. Talk to you next week with more law.

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