A Second Chance: Rebiography as Just Compensation

Abstract

Once upon a time, reinvention was an integral part of the myth of the American Dream. As the story went, one could leave the old country or old neighborhood, without looking back -- fashioning one's own second chance by stepping into a newer, better identity, crafting a redesigned life story out of whole cloth if necessary. As one legal historian noted, "American culture and law put enormous emphasis on second chances." For most of the 20th Century, this notion of the second chance was also alive and well in the American criminal justice system, as rehabilitation was considered its primary goal. My earlier article, "A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History," couched the need for rebiography upon reentry in terms of the ongoing reputational damage suffered by the previously convicted. Then, regulatory takings analysis was applied to that reputational damage. In doing so, it analyzed the critical property-like characteristics of reputation, concluding that reputation is a form of "status property" and that such continued stigma attachment and reputational damage constitutes a "taking" without just compensation. Finally, it was argued that rebiography can serve as "just compensation" for this type of taking. Rebiography as "just compensation" for the reputational taking suffered by the previously convicted leaves open two questions: First, does the takings analysis have the same outcome regardless of the offender? In other words, does an offender have to try to use her reputation in a positive manner and be prevented from doing so in order to have a takings claim, or is it enough to say that requiring disclosure of criminal history is a taking across the board that always requires just compensation? Secondly, what is the relationship between "rebiography" and "privacy"? In "A Good Name," an established continued stigma attachment was shown as a governmental taking. Now, it is offered in a way to show that "just compensation" is owed to the previously convicted and that the way to provide it is through establishing a "rebiography right," stemming from the taking of a constitutionally cognizable property right. Part I of this new article provides the introduction, giving general definitions of rebiography and “just compensation.” In Part II, there are reviews of the application of the Takings Clause to the reputational damage suffered by the previously convicted and apply this analysis to actual cases. In Part III, it is further explained as to why rebiography is necessary given statistics on the previously convicted's employment prospects and recidivism. The article goes on to examine legislative and judicial options for rebiography.

Keywords: Rebiography, just compensation, criminal history, convicted, reinvention, second chances, privacy, stigma, reputation, regulatory takings, reputational damage, Takings Clause, American Dream