Eleven Kinds of Evidence That Can Prove a License Applicant with Criminal History is Rehabilitated that can
Below are the main evidentiary factors that have been proposed to the Supreme Court in Glass as probative evidence of rehabilitation. These are mined from a careful analysis of the briefs submitted to the Court by both applicant Glass and the State Bar in opposition.
First and most important:
1. A lengthy period of exemplary conduct.
Important: "exemplary" is defined by Glass litigants as "beyond the ordinary," outstanding; the rehabilitated person must "do more than live an acceptable life and lifestyle; he must be proactive and attempt to correct the wrongs that he imposed on others."
Timing is everything...
2. Did the applicant come clean from the time conduct is first called into question? Initial "lying and denying" is inconsistent with claims of rehabilitation. Consideration of claims of rehabilitation will begin with the time after the applicant has admitted the conduct and taken responsibility for the consequences.
Applicant must make good on the harm to the extent possible...
3. There is no full rehabilitation without full disclosure to assist authorities in identifying all victims, damages, and consequences of the offender's conduct.
Remorse must be demonstrated, not just claimed...
Unsolicited, unconditional and sincere apologies to all identifiable victims are essential. Apologies and admissions must not be self-serving or provide any benefit or advantage to the offender. Skill in timing, mode of outreach and content of the apology (apologies) are essential.
Say it and then do it...
Full restitution to all identifiable victims. No matter how long it takes.
... and keep doing it; reject all benefits and windfall from the offense.
Complete disgorgment of all profits, benefits, monies from all acts of wrong-doing. If reimbursement to victims is not possible, then the recompense should take the form of donation to a charity or to a segment of the community that is subject-matter related to the offender conduct.
A visible bright-line between mode of conduct, then and now...
"Web of lies and deceit" must be discernibly and measurably ended. The specific visible end point in time is the earliest point from which rehabilitation efforts will be recognized, measured, and credited.
Rehabilitation is not fast, or easy, or even private...
Extended course (years) of acts of community service and appropriate charitable efforts and participation, The highest degrees of recognition and credit are afforded where the charitable and community acts are tailored to the segment of the community affected by the offenses, or where the contribution is intended to address or prevent others from engaging in similar offenses. Also sound are efforts to address the kind of harms caused by the offender's conduct. Most credit is given for public explications: lectures to authorities, professional associations, youth.
Experts' opinions can be determinative...
Professional assessments and opinions by qualified psychiatrists and mental health professionals re lack of sociopathic traits and potential for re-offending can be the most potent evidence. The State will never have evidence to refute this kind of evidence and it will be admitted. Un-refuted evidence in administrative law matters is often the ball-game. Expert evidence should specifically and pre-emptively address the chronic suspicion of the State that, in reaching the opinion, the expert was gulled by the applicant's "soft-pedaled" accounts of the critical misconduct.
Making the expensive expert opinion credible and irrefutable...
If the offender conduct was serious, chronic and/or protracted, it is critical that the applicant demonstrate voluntary participation in an extended course of psychotherapy or counseling leading to the correction of arrested maturation and the development of insight into motivations for misconduct and tools for dealing with self-destructive behavior. Psychotherapy/counseling is the way that offenders develop responsible judgment, the ability to handle frustration, and a fully-developed moral sense.
... and keep saying it...
Multiple and consistent expressions of remorse evidencing a shift in values and ability to accept responsibility for past misconduct are essential. Take every opportunity: the narrative that accompanies the initial application, the interview before denial of the license application, the appeals doc, and repeatedly during the fair hearing. The offender cannot say it too often or with too much emotion and detail.
Undisputed legal principles re Proving Rehabilitation By Applicants for State License
1. The degree of evidentiary proof of rehabilitation necessary for a successful appeal against a denial of professional license increases with the severity and scope of the underlying offense.
2. The relevant time frame for measuring the period of time in which rehabilitation can be claimed runs from the last act of misconduct to the time when the evidence shows the applicant first intended to seek a benefit requiring a moral character determination (often, first action commencing course of sitting for a professional exam).
3. Specific amounts of time sufficient to demonstrate rehabilitation in specific offenses: rape, 9 years; evading payment of civil judgment: 9 and a half years. Go figure.
We'll talk more after the Glass decision comes out in February.
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