The small, bipartisan step Missouri should take for formerly incarcerated people

“Man, don’t let them put you back in there.” 

Oshoosi Size is living with his older brother, Ogun, after being released from prison.

Ogun wants his little brother to get his life together and stay out of trouble. That’s not easy to do with a criminal record — even if you don’t do anything wrong.

The Brothers Size, running at the St. Louis Repertory Theater, is a funny, beautiful, painful play about young men trying to get by. It feels innovative and urgent, despite being written 20 years ago by Tarell Alvin McCraney, Academy Award-winning writer of Moonlight. It’s set in the Louisiana bayou, but all I could think about was Missouri.

Too little has changed for formerly incarcerated people since the play was written. There was a moment during the first Trump administration when Republicans, Democrats and faith leaders worked together on criminal justice reform. That moment ended without a true reckoning on mass incarceration in this country and its terrible ripple effects. 

Now, we’ve entered a “tough on crime” era where anything and anyone can be criminalized. Still, there are bipartisan, achievable steps that we can take to make things a little bit better at the state level.

Sandra Keely is the founder of 3 Daughters and 1,000 Sons, a St. Louis organization that runs free legal clinics and connects people with low-cost legal services to get their criminal records expunged. Keely also works on criminal justice reform in Missouri more broadly, inspired by her brother’s incarceration.

“When one person is in jail, the whole family is in jail,” she says.

Keely never went to law school, but she’s an expert in Missouri law. 

“Poverty has its benefits,” she told me of her self-acquired legal education. “Because I had poverty, I couldn’t afford an attorney. I looked for any way to glean information.”

Keely can tell you how to navigate the Missouri court system, specifically, how to represent yourself pro se (that is, without a lawyer). She can tell you how to handle a divorce or real estate issue pro se, but her focus is on criminal justice. Her organization is named for the fact that she’s the mother of three daughters, but also considers herself mother to thousands of men in the criminal justice system. She wants them to have a real chance at a new life when they get out.

Having a record of a conviction, or even an arrest that never led to charges, can keep a person  from finding work, housing or accessing food benefits. Those kinds of obstacles increase recidivism. If you can’t take care of yourself or your family, you’re more likely to commit further crimes, especially crimes of poverty.

Jerika White’s brother was convicted of multiple felonies as a teenager because he was in possession of a gun when his friend shoplifted. White is now the criminal justice policy manager at Empower Missouri, where she leads the campaign to pass Clean Slate legislation, which would automate the process for eligible individuals to have their records expunged. 

Clean Slate has had bipartisan bill sponsors and support. But it hasn’t made it across the finish line in the last several legislative sessions. It’s a pretty small ask — the bill doesn’t expand who is eligible for expungement, a group limited to those who have committed particular non-violent and non-sexual offenses, who have completed their sentences and not re-offended for a set number of years.

It doesn’t help people whose records are on paper, rather than electronic. It doesn’t help people convicted of multiple felonies, though it’s typical to charge multiple felonies for one incident. 

What the bill would do is take what is already a right on paper in Missouri and make it a reality. There are over half a million Missourians who qualify for expungement under our current law, but only an estimated 1% of them succeed in having their records cleared. The petition process is complicated and lawyers are expensive.  

It makes more sense for the state to use the information it already possesses to automatically clear eligible records than to expect half a million people, many of them living in poverty, to hire lawyers in order to have the second chances they are entitled to under the law.

The only objections to the bill have involved concerns about administrability. This is a concern I take seriously given Missouri’s ongoing failure to administer public benefits in accordance with the law. But the bill that will be re-introduced this session allocates funding for technology upgrades and has generous implementation deadlines.

They teach you in criminal law 101 that there are four reasons we incarcerate people: incapacitation, deterrence, rehabilitation and retribution. We are currently taking people who aren’t dangerous and don’t need to be incapacitated, who have every reason to be deterred by their past excessive punishments, and we are making their rehabilitation impossible. 

The ball and chain that we force formerly incarcerated people who have served their time to carry is ongoing and unjustifiable retribution.

The Brothers Size is not a play about the law. It’s about the bond between siblings. But the plot turns on a brother’s assumption that his former felon brother will not be treated fairly. 

It’s a fair assumption. 

In Missouri, we can take a step towards letting people who have done their time truly have a chance to be free.

The Brothers Size runs from Oct. 26 to Nov. 16. Tickets are available at repstl.org. I’ll be moderating a post-show discussion with advocates from Empower Missouri, 3 Daughters, 1,000 Sons, Prison Performing Arts and Concordance after the Nov. 2 matinee.