Wednesday, September 13, 2017

"Erasing the Mark of a Criminal Past: Ex-Offenders’ Expectations and Experiences with Record Clearance"

The title of this post is the title of this paper recently posted to SSRN authored by Ericka Adams, Elsa Chen and Rosella Chapman. Here is its abstract:

Through the process of record clearance, ex-offenders can have certain minor convictions removed from their criminal record or designated as expunged.  This study analyzes data gathered from semi-structured interviews with 40 past offenders to examine the expectations of individuals who seek record clearance and the extent to which completion of the process facilitates efforts to reintegrate into society and desist from crime.

The analysis finds that record clearance benefits ex-offenders through external effects, such as the reduction of barriers to employment, and internal processes, such as the facilitation of cognitive transformation and the affirmation of a new identity.  These benefits accrue from both the outcomes of the record clearance process and from the process itself.  Increased availability of inexpensive or free opportunities for expungement can contribute to more successful reintegration of ex-offenders into the workforce, families, and communities.  Not only would this improve quality of life for the ex-offenders, but it could also increase public safety and reduce public spending.

September 13, 2017 in Collateral consequences, Reentry and community supervision | Permalink | Comments (4)

Tuesday, September 12, 2017

New op-ed and op-doc from New York Times takes on "A ‘Frightening’ Myth About Sex Offenders"

David Feige has a new op-ed and a short video documentary unpacking and attacking the notion that sex offender recidivism rates are extraordinarily high.  This op-ed is headlined "When Junk Science About Sex Offenders Infects the Supreme Court," and this op-doc is titled "A ‘Frightening’ Myth About Sex Offenders."  Here is how the op-ed starts and ends:

This month the Supreme Court will have a rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans.  Two cases that the court could review concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed upon them.

In Snyder v. Doe, the court could consider whether Michigan’s broad scheme of regulating sex offenders constitutes “punishment.”  The other case, Karsjens v. Piper, examines the constitutionality of Minnesota’s policy of detaining sex offenders forever — not for what they’ve done, but for what they might do.

And while the idea of indefinite preventive detention might sound un-American or something out of the film “Minority Report,” the larger problem is that “civil commitment,” like hundreds of other regulations imposed on those required to register, has been justified by assertions about the recidivism of sex offenders. But those assertions turn out to be entirely belied by science.

For the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program” conveniently located on the grounds of a maximum-security prison in Moose Lake.  The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.

But unlike prison, this “therapeutic” program, which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years, has no fixed end date. Rather, program administrators decide which patients are safe enough to release.  In the 24 years it has existed, not a single “patient” has ever been fully released.  There are now about 850 people in the Minnesota Sex Offender Program, some with no adult criminal record, and others who, despite having completed every single program ever offered at the facility, have remained civilly committed for over 20 years.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, politicians have become evermore inventive in dreaming up ways to corral and marginalize those forced to register — a category which itself has expanded radically and come to include those convicted of “sexting,” having consensual sex with non-minor teenagers or even urinating in public.

These sanctions include being forced to wear (and pay for) GPS monitoring and being banned from parks, and draconian residency restrictions that sometimes lead to homelessness.  In addition, punishments can include, on pain of re-incarceration, undergoing interrogations using a penile plethysmograph, a device used to measure sexual arousal.  They have also included requirements that those on the registry refrain from being alone with children (often including their own) and barred from holding certain jobs, like being a volunteer firefighter or driving an ice cream truck.

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.”  The problem is this: The 80 percent recidivism rate is an entirely invented number....

Now more than ever, Americans should be able to look to our highest court and expect decisions that are based on reason and grounded in science rather than fear.  The court must rule wisely and bravely, including being willing to acknowledge its mistake and finally correct the record.  More than 800,000 Americans have needlessly suffered humiliation, ostracism, banishment re-incarceration and civil commitment thanks to a judicial opinion grounded in an unsourced, unscientific study.  Simple decency and perhaps more important, intellectual honesty demands better.

A few prior recent related posts:

September 12, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6)

Monday, September 11, 2017

Notable accounting and review of federal collateral consequences facing nonviolent drug offenders

RId15_image2Last week the Government Accountability Office released this interesting new report titled "Nonviolent Drug Convictions: Stakeholders' Views on Potential Actions to Address Collateral Consequences." The 47-page report is worth a full read, and this highlights page provides these highlights (and the graphic reprinted here):

Collateral consequences are the penalties and disadvantages that can be imposed upon an individual with a criminal conviction, in addition to those directly associated with a sentence (such as a fine, prison, or community service). GAO’s review of the American Bar Association’s (ABA) National Inventory of the Collateral Consequences of Conviction (NICCC) found that, in federal laws and regulations, there are 641 collateral consequences that can be triggered by nonviolent drug convictions (NVDC).  For example, individuals with NVDC may be ineligible for certain professional licenses and federal housing assistance.  The NICCC data that GAO reviewed indicate that these 641 collateral consequences can limit many aspects of an individual’s life, such as employment, business licenses, education, and government benefits.  In addition, GAO also found that the NICCC identified that 497 (78 percent) of the 641 collateral consequences can potentially last a lifetime.

Of the 641 federal collateral consequences for NVDC, GAO found that the NICCC identified 131 (20 percent) as having a relief mechanism in a related law or regulation that prescribed how an individual could potentially obtain relief from the consequence.  For example, individuals may be relieved if they successfully complete a drug rehabilitation program or receive a pardon.

Thirteen of the 14 stakeholders GAO interviewed said the federal government should consider taking action to reduce the severity of (i.e., mitigate) federal collateral consequences for NVDC, such as conducting a comprehensive review of these collateral consequences and implementing a new relief mechanism.  Additional mitigation could, according to some stakeholders, help individuals with NVDC obtain employment, housing, or education; and almost all the stakeholders said mitigation could potentially reduce the likelihood of reoffending.  At the same time, federal collateral consequences can serve public safety functions and protect government interests.  Some stakeholders cautioned that federal action should strike the appropriate balance between preserving collateral consequences that provide a public safety benefit, and addressing consequences that can cause unnecessary burdens and potentially increase the likelihood that individuals with NVDC reoffend.

September 11, 2017 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing | Permalink | Comments (1)

Wednesday, September 06, 2017

Two of the latest remarkable variations on sex offender panics

These two headlines and stories about concerns about sex offenders caught my eye this afternoon:

I find both of these article both stunning and sad, and the bill discussed in the second article would seem, if I understand it right, to raise some serious constitutional issues.

September 6, 2017 in Collateral consequences, Sex Offender Sentencing | Permalink | Comments (8)

Friday, September 01, 2017

Federal district judge finds Colorado's Sex Offense Registration Act, as applied, amounts to unconstitutional punishment

A couple of helpful readers made sure I did not miss a notable extended opinion concerning application of Colorado's sex offender registration laws. The opinion in Millard v. Rankin, No. 1:13-cv-02406 (D. Colo. Aug. 31, 2017), which can be downloaded below, starts and ends this way:

Plaintiffs are registered sex offenders under the Colorado Sex Offender Registration Act (“SORA”), C.R.S. §§ 16-22-101, et seq. In this civil action brought pursuant to 42 U.S.C. § 1983 they seek declaratory and injunctive relief, claiming that continuing enforcement of the requirements of SORA against them violates their rights under the Eighth and Fourteenth Amendments to the United States Constitution. Defendant is the Director of the Colorado Bureau of Investigation (“CBI”), the state agency responsible for maintaining the centralized registry of sex offenders and providing information on a state web site....

Based on the foregoing, it is ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene Knight, and Arturo Vega, violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution; it is

FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiff Arturo Vega, violates procedural due process requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; it is

FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene Knight, and Arturo Vega, violates substantive due process requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and it is

FURTHER ORDERED that Plaintiffs as prevailing parties shall be entitled to an award reasonable attorney’s fees as part of the costs, to be determined by the Court pursuant to 42 U.S.C. § 1988(b).

Download 20170831 Millard Ruling re Sex Offender Registry

September 1, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (11)

Wednesday, August 30, 2017

Recent items of note from the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  So are some recent posts of note from CCRC:

August 30, 2017 in Clemency and Pardons, Collateral consequences | Permalink | Comments (1)

Monday, August 28, 2017

"Less Is More: How Reducing Probation Populations Can Improve Outcomes"

Download (3)The title of this post is the title of this notable new paper emerging from the Executive Session on Community Corrections at the Harvard Kennedy School.  Here is the paper's introduction:

This paper will argue that, similar to the growth in prisons that has resulted in our current state of mass incarceration, the tremendous growth in probation supervision in the United States over the past several decades should be reversed, and the entire system of probation significantly downsized.  Specifically, we argue here that while the number of people on probation supervision in the U.S. has declined over the past several years (as have the number of people incarcerated and crime rates), that decline should not only be sustained but significantly increased, with a goal of reducing the number of people under probation supervision by 50 percent over 10 years.  We then discuss New York City as an example of a jurisdiction that has successfully done this.

In many respects, the rationale for this argument mirrors the argument against mass incarceration.  In most jurisdictions, probation is a punitive system that attempts to elicit compliance from individuals primarily through the imposition of conditions, fines, and fees that in many cases cannot be met (Corbett, 2015; Klingele, 2013).  This is not only a poor use of scarce resources; it contributes to a revolving door in which individuals who cannot meet those obligations cycle back and forth between probation and incarceration without necessarily improving public safety.  In fact, the cycle of incarceration and supervision can actually threaten public safety, and it certainly has harmful and farreaching consequences for those who are caught up in it, including job loss, disconnection from family, and housing instability (Council of Economic Advisers, 2015).  Given this, along with national and local data and examples that clearly demonstrate that reducing “mass probation” can go hand in hand with a reduction in the number of people incarcerated and ongoing declines in national and local crime, it begs the question of why so many jurisdictions continue to promulgate this punitive approach.

Because probation is the most severely underfunded and the least politically powerful of all criminal justice agencies, there is no likelihood of any massive infusion of new resources into the field.  Thus, the limited resources saved from this downsizing may be used to invest in community-based programs that provide employment, substance abuse, and mental health treatment to the remaining population — those that pose the highest public safety risk — as a way to significantly reduce that risk and avoid unnecessary monitoring and supervision.  A portion of these savings should also substitute for the rampant use of probation fees used throughout the U.S. as a way to pay for a structurally underfunded system.  These fees are unjust, counter-productive, and antithetical to the legitimacy of any system of justice (Martin, Smith, and Still, 2017).

August 28, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Sunday, August 20, 2017

Is it important to have laws barring sex offenders from living anywhere near their victims?

The question in the title of this post is prompted by this new AP piece headlined "Sex offenders can live next door to victims in many states." Here are excerpts:

A convicted sex offender who molested his niece when she was 7 years old moved in next door to his victim nearly a dozen years after he was sent to prison for the crime. Outraged, the Oklahoma woman, now 21, called lawmakers, the police and advocacy groups to plead with them to take action.  Danyelle Dyer soon discovered that what Harold Dwayne English did in June is perfectly legal in the state — as well as in 44 others that don't specifically bar sex offenders from living near their victims, according to the National Conference of State Legislatures.

"I always felt safe in my home, but it made me feel like I couldn't go home, I couldn't have my safe space anymore," Dyer told The Associated Press, which typically doesn't identify victims of sexual assault, but is doing so in Dyer's case because she agreed to allow her named to be used in hopes of drawing attention to the issue.  "He would mow in between our houses.  Him moving in brought back a lot of those feelings."

Advocacy groups say the Oklahoma case appears to be among the first in the U.S. where a sex offender has exploited the loophole, which helps explain why dozens of other states have unknowingly allowed it to exist. "This is something that I would dare say was never envisioned would happen," said Richard Barajas, a retired Texas judge and executive director of the nonprofit National Organization for Victim Assistance.  "In all the years that I've been involved with the criminal justice system, I've never seen a case like this."

Alabama, Arkansas, Indiana, Tennessee and West Virginia have laws dictating how far away sex offenders must stay from their victims — 1,000 feet in Tennessee, for example, and 2,000 feet in Arkansas. Other states haven't addressed the issue, though like Oklahoma they have laws prohibiting sex offenders from living within a certain distance of a church, school, day care, park or other facility where children are present.

"You assume it can't happen and then realize there is no provision preventing it from happening," said one Oklahoma prosecutor, Rogers County District Attorney Matt Ballard, whose agency is responsible for keeping tabs on sex offenders in his area. "To have even the possibility of an offender living next to the victim is extremely troubling."

Arkansas passed its provision in 2007. State Sen. Jeremy Hutchinson, a former prosecutor, said lawmakers drafted the provision out of "common sense," not as a response to a situation like Dyer's. But Barajas, whose group discussed the loophole with attendees at its annual training event this past week, said support for such laws typically gain traction "when someone who was impacted steps up," like Dyer. "Legislation is never created in a vacuum," he said.

Oklahoma lawmakers have now drafted legislation to close the loophole, using Dyer as their champion.  "Of the 70,000 square miles in Oklahoma, this individual happened to choose a place next door to the victim," said state Rep. Kyle Hilbert, who represents Dyer's mostly rural district and is sponsoring the legislation....

Advocacy groups said most legislatures across the U.S. would be able to close the loophole in their laws relatively easily, and said such measures typically receive strong backing from victims, clergy, parents and police.  "I don't see any legal reason why those statutes cannot be amended to ensure that the actual victims are protected; it's no different than prohibiting sex offenders from living 1,000 feet from a church or school," Barajas said. "It's not that the legislation (already on the books) is anti-victim, it's just that we have lacked the voice. We certainly have a megaphone, but when you talk about victims of (sexual abuse), you can't have a megaphone big enough."

Dyer, who is attending the University of Central Oklahoma in the Oklahoma City suburb of Edmond, said she hopes her story will help other victims who may think they're trapped in similar situations. "I think a lot of people feel like they are alone and that nobody cares," Dyer said. "The biggest thing is that they're not alone."

I fully understand the desire and need to protect victims from those who criminally victimized them, not only in sex offense cases but also in other settings.  But if the problem highlighted in this article is rare, I would urge legislatures to be cautious before passing broad new laws that would impact a broad swath of offenders.  With research suggesting that broad sex offender residency restrictions may be doing much more harm than good, I worry about one disconcerting case prompting states to embrace more broad collateral consequences that could create some unexpected consequences.

August 20, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (14)

Thursday, August 17, 2017

"Do Criminal Defendants Have Web Rights?"

The title of this post is the headline of this new piece at The Crime Report authored by James Trusty.  The piece provides a review of the Supreme Court's First Amendment work in Packingham v. North Carolina and its possible impact.  Here are excerpts:

Court-imposed web restrictions applied to criminal defendants may be going the way of dial-up internet service. In June, the Supreme Court issued a unanimous ruling in Packingham v. North Carolina that invalidated a state law banning registered sex offenders from accessing websites that could facilitate direct communications with minors.

While the majority opinion and concurrence seems grounded in — and specific to — sex offender restrictions, the evolving communications technology that operates in cyberspace today suggests that the ruling will have an impact on attempts to restrict web access for all criminal defendants in state or federal courts....

Lester Packingham ... [was] convicted of violating a North Carolina statute that prohibits convicted sex offenders from using social-networking websites, such as Facebook and Twitter. The unanimous Supreme Court opinion, written by Justice Anthony Kennedy, reversed the conviction on First Amendment free speech grounds. According to Kennedy, the North Carolina statute was too broad, in that it effectively prevented sex offenders from accessing the “vast democratic forums of the Internet” that serve as principal sources of information on employment opportunities, current events, and opinions or ideas that have no connection to criminal plans or the potential victimization of children.

Justice Samuel Alito agreed, pointing out that the statute’s definition of social networking sites would in effect encompass even Amazon, the Washington Post, and WebMD — all of whom provide opportunities for visitors to connect with other users. In his concurrence, he noted that states were entitled to draft narrower, and constitutionally valid, restrictions because of their legitimate interest in thwarting recidivist sex offenders.

But it’s not at all clear that a state legislature can follow Justice Alito’s guidance and sufficiently narrow its sights on offender/child communication to the point where the law has its intended effect, while still passing constitutional muster.  There may undoubtedly be pedophiliac versions of Tinder or Match.com which could fit the definitions of sites where access can be restricted without harm to First Amendment protections. But today’s internet does not lend itself easily to such narrow definitions.  Even mainstream sites like The Washington Post or Amazon could be considered portals that might be compromised by criminal behavior.  Such sites encourage the kind of user engagement that, while they may not be fairly called a “chat room,” is close enough to a “bulletin board” to bring us right back into the perils of North Carolina’s now-invalidated law.

And what of the defendants facing internet restrictions for reasons other than molestation or child pornography violations?  There are numerous defendants who are bounced off the internet as a condition of probation or supervised release because the internet was an instrumentality for their crimes.  For instance, internet-based fraud, identity theft, or using pro-terrorism websites to construct weapons or murderous plans, are all offenses that have led judges to impose some form of web restriction on defendants.

Web restrictions for these defendants are now also in play in a post-Packingham world. The intention of the judges seeking to restrict web access in these cases is understandable.  They want to remove potential tools of victimization from the hands of convicted criminals.  But the Supreme Court’s recognition of the vast, evolving and multi-purpose nature of today’s internet has brought legitimate First Amendment considerations into almost every web-limiting decision.

We may soon see that the only web restrictions that are lawful and practically enforceable are ones stemming from the defendant volunteering to withdraw from the net — likely because of the perceived trade-off between more time in jail and the judge’s comfort level as to assurances that re-victimization by internet will not occur when the defendant is returned to the community.

In the meantime, Packingham may shape the battlefield when web-restricted defendants are alleged to have violated parole or probation by visiting websites. Judges facing considerably more ominous violations than Lester’s on-line celebration of beating a traffic ticket may find that website-messaging technology and powerful First Amendment concerns leave them with little recourse but to ban outright all attempts to restrict access.  To some, this may be an uncomfortably high price to pay for web freedom.

On a practical level, technology has largely out-paced the now-antiquated view that the Internet can be surgically sliced into “safe” websites and “unsafe” ones, and the unanimity of Packingham suggests that the Court did not struggle much with its rationale.  While the absence of web-restrictions would lead to the release of offenders to the community with an unavoidable dose of discomfort with their access to computers, it may also result in judges finding themselves increasingly satisfied with lengthy prison terms because of the lack of a satisfactory, less-restrictive condition of supervised release....

Perhaps the safer bet here is on technology — that some program, some application, or some web-alternative pops up in the future and revitalizes the possibility of judges restricting web access without violating First Amendment rights. 

August 17, 2017 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Technocorrections | Permalink | Comments (3)

Sunday, August 13, 2017

Making a case against sex offender registries

Newsweek has posted this new opinion piece authored by Professor Trevor Hoppe under the headlined "Are Sex Offender Registries Too Strict?." As evidenced by these excerpts, it seems the author believes the answer to this question is yes:

In my work on sex offender registries, I have found that black men in the U.S. were registered at rates twice that of white men—resembling disparities found in the criminal justice system at large. However, these findings speak to the scope of the problem of American sex offender registries, as approximately 1 percent of black men in the U.S. are now registered sex offenders.  My research suggests that inequality is deeply tied to sex offender policies....

Imagine being punished for something you did three decades ago.  You served your time and thought it was in the past. Under American sex offender laws, moving on is nearly impossible: Most state policies are retroactive, meaning they apply to offenders who committed offenses before these laws were put in place.  While these laws are the subject of several ongoing court battles, most remain in effect.

Offenders are subject to extensive public notification requirements, which include state-run search engine listings that feature their address, mugshot, criminal history and demographic information. In some cases, offenders are also required to publicly post flyers with their pictures or run newspaper notices advertising their residency.  Some states, such as Louisiana, stamp “SEX OFFENDER” in large red script on driver’s licenses.

Having a mugshot disseminated across internet search engines is only the tip of the iceberg; once registered, offenders are subject to a wide array of housing and employment restrictions.  In many places in the U.S., sex offenders are effectively zoned out of cities and towns because there are no residential areas that satisfy all of the numerous regulations. For example, offenders may be prohibited from living within a certain number of feet from a playground. They are often left with no choice but to live under highways or in improvised communities, such as the one in Pahokee, Florida depicted in the New York Times 2013 short film, “Sex Offender Village.”...

Lawmakers ... argue that more invasive policies are necessary because sex offenders are highly likely to commit future crimes. In their view, informing the public of their criminal history will offer protection.  But as the U.S. federal government’s Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking notes, sex offender registration requirements “have been implemented in the absence of empirical evidence regarding their effectiveness.”

Now that all 50 U.S. states and Washington, D.C. have developed such registries, the evidence testing the effectiveness of sex offender registries is beginning to mount. It is mixed, at best.

One study followed sex offenders who were labeled “high-risk” for reoffending and who were released from Wisconsin prisons in the late 1990s. That study compared offenders who were subjected to limited public notification requirements with those who were subjected to extensive requirements.  The researchers found no significant difference in the average time between release and a future offense.  In other words, extensive public notification did not deter future offenses.

However, another study evaluated the likelihood of reoffending for sexual offenders labeled “high risk” released from Minnesota state correctional facilities. Here researchers found that offenders subject to community notification were somewhat less likely to commit another sexual offense.

Finally, a recent study found that sex offenders released in Florida between 1990 and 2010 had lower rates of recidivism than offenders of other types of crime -- 6.5 percent for sex offenses, as compared to 8.3 percent for nonsexual assaults and 29.8 percent for drug offenses.  Moreover, that study found that recidivism rates increased after the state legislature implemented sex offender registration requirements in 1997.

While the evidence is mixed that these policies are effective at deterring crime, the evidence of their collateral consequences is more consistent.  Several studies of registered sex offenders have revealed how registries reinforce class inequality by creating patterned experiences of unemployment, harassment and homelessness.

From a public safety perspective, scholars note that registries provide the public with a false sense of security: While the existence of sex offender registries reinforces a myth of “stranger danger,” most offenders in reality are acquaintances or family members.  Balancing the thin support of the registries’ effectiveness against the more robust evidence of their negative effects, one scholar recently concluded these policies do more harm than good.

My research suggests there is also a racialized dimension to the war on sex offenders that complicates arguments in their favor. The evidence does not strongly suggest registries are effective at deterring crime. Rather, their most lasting impact may be their exacerbation of inequalities based on race, class and gender.

August 13, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

Friday, August 11, 2017

"Certain Certiorari: The Digital Privacy Rights of Probationers"

The title of this post is the title of this new paper available via SSRN authored by Daniel Yeager. Here is the abstract:

In a recent oral argument, a judge on the California Court of Appeal told me they had “at least 50” pending cases on the constitutionality of probation conditions authorizing suspicionless searches of digital devices.  As counsel of record in three of the cases, I feel positioned to comment on this hot topic within criminal law.  My intention here is less to reconcile California’s cases on suspicionless searches of probationers’ digital devices than to locate them within the precedents of the United States Supreme Court, which is bound before long to pick up a case for the same purpose.

Specifically, the Court is bound to hear whether Riley v. California — its 2014 ruling excluding content found on digital devices in warrantless searches of arrestees’ grab-area — applies to probationers.  David Riley’s case arose out of his 2009 arrest by San Diego police, who had lawfully found firearms under the hood of his car.  Incident to Riley’s arrest, police found evidence of his gang membership in a search of his cell phone, which placed itself at an unsolved shooting.  Riley’s subsequent convictions were based on that evidence, which he sought without success to exclude until the Supreme Court reversed in Chief Justice Roberts’s hommage to cell phones — life-altering instruments which a “visitor from Mars might conclude were an important feature of human anatomy.”  Riley has since been cited over 3,000 times as a Fourth Amendment tract that privileges the “privacies of life” over the “often competitive enterprise of ferreting out crime.”

But what, exactly, are Riley’s implications? Is it just a technical ruling on the privacy interests only of arrestees, with no specific applicability to post-conviction phases of criminal cases?  Because the Court’s most on-point precedents — one involving a probationer (United States v. Knights), the other a parolee (Samson v. California) — indicate no stance on Riley’s applicability beyond the arrest context, California courts improvidently consider those precedents legal non-events.  One way or another, the Court will inevitably settle the matter itself, almost certainly within one of the seven electronics-conditions cases now on review in the California Supreme Court.  This Essay details why and how.

August 11, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Tuesday, August 01, 2017

"Prosecutors’ Dilemma: Will Conviction Lead to ‘Life Sentence of Deportation’?"

The title of this post is the headline of this intriguing New York Times front-page article which indirectly highlights the realities and uncertainties of prosecutorial discretion and collateral consequences.  Here are excerpts:

Now that President Trump’s hard line has made deportation a keener threat, a growing number of district attorneys are coming to the same reckoning, concluding that prosecutors should consider potential repercussions for immigrants before closing a plea deal. At the same time, cities and states are reshaping how the criminal justice system treats immigrants, hoping to hopscotch around any unintended immigration pitfalls.

These shifts may inaugurate yet another local-versus-federal conflict with the Trump administration, which is already tussling with many liberal cities over other protections for immigrants. For prosecutors, such policies are also stretching, if not bursting, the bounds of the profession. Justice is supposed to be blind to the identity of a defendant. But, the argument goes, the stakes might warrant a peek.

“There’s certainly a line of argument that says, ‘Nope, we’re not going to consider all your individual circumstances, we want to treat everybody the same,’” said Dan Satterberg, the prosecuting attorney for Seattle and a longtime Republican, who instituted an immigration-consequences policy last year and strengthened it after the presidential election. “But more and more, my eyes are open that treating people the same means that there isn’t a life sentence of deportation that might accompany that conviction.”...

But many prosecutors remain wary, hesitant to meddle in what they regard as the federal government’s business and even more reluctant to depart from what they say is a bedrock principle of the system. “There’s probably hundreds if not thousands of issues that I suppose we could take into consideration,” said Brian McIntyre, the county attorney in Cochise County, Ariz., “and when we do that, we necessarily wind up not being as fair to someone else.”... If he made accommodations for an immigrant, Mr. McIntyre said, he felt that he would also owe a citizen in similar circumstances the same option, “because is he not being, essentially, negatively impacted by his U.S. citizenry?”

A criminal record often has different stakes for an immigrant than it does for a citizen. It can mean losing a green card or being barred from citizenship. Those who lack legal status can lose any chance to gain it. Those with legal status, as well as those without, can face automatic deportation.

In many cases, the city-and-state-level changes dovetail with broader criminal justice reforms that were already underway before Mr. Trump took office. But to the administration, policies that help noncitizens duck immigration penalties are tantamount to an assault on the rule of law. “It troubles me that we’ve seen district attorneys openly brag about not charging cases appropriately under the laws of our country,” Attorney General Jeff Sessions said in April.

The local efforts to help immigrants may not always work. The Trump administration has made clear that anyone without legal status may be deported, regardless of whether they have been convicted of a crime. But reducing criminal penalties can help immigrants by keeping them out of jail, which can make it more difficult for Immigration and Customs Enforcement to find them, or by preserving their options in immigration court....

Prosecutors who take immigration status into account say this consideration will not be extended to serious or violent crimes. They argue that showing flexibility in nonviolent, minor cases will help build trust with immigrants in their communities, making them more likely to report crimes and serve as witnesses. The acting Brooklyn district attorney, Eric Gonzalez, went further than most in April, when he announced that his prosecutors would begin notifying defense lawyers about the potential immigration fallout of their clients’ cases and that he would hire two in-house immigration lawyers to consult on prosecutions.

Days later, the state’s attorney for Baltimore, Marilyn J. Mosby, said she had told her staff members to use their discretion when it came to cases with an immigration factor, considering defendants’ prior records and community ties. “There’s no set standard,” she said. “You have to base it on everything that’s in front of you.”

It is not yet clear what that will look like in Baltimore or Brooklyn. But in Santa Clara County, Calif., whose district attorney was among the first to outline an official policy, prosecutors often allow a noncitizen to plead guilty to a lesser charge in exchange for more jail time or probation. “If we’re giving something, we’re going to get something,” said the district attorney, Jeff Rosen.

California law now requires immigration consequences to be factored into criminal cases. The state has also passed a law allowing people to erase or revise old convictions if they successfully argue that they were not advised at the time that a guilty or no-contest plea would endanger their immigration status.

August 1, 2017 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

Eighth Circuit affirms exclusion of juve who moved from Nebraska's sex offender registry

As noted in this prior post last year, a federal judge has blocked Nebraska from putting a 13-year-old boy who moved to the state from Minnesota on its public sex offender registry. Yesterday, an Eighth Circuit panel affirmed this ruling via this opinion which starts this way:

The State of Nebraska, along with the Nebraska State Patrol (NSP) and various state officials (collectively, the State), appeals the district court's grant of summary judgment to A.W. and A.W.'s guardians, John and Jane Doe, enjoining it from applying to A.W. a provision of Nebraska's Sex Offender Registration Act (SORA).  That provision, Neb. Rev. Stat. § 29-4003(1)(a)(iv), applies SORA to any person who, on or after January 1, 1997, "[e]nters the state and is required to register as a sex offender under the laws of another village, town, city, state, territory, commonwealth, or other jurisdiction of the United States."  We hold that this provision does not apply to appellant A.W. and, accordingly, affirm the district court.

The full panel ruling is interesting for how it applied Nebraska's sex offender registry law, but a final footnote highlights some broader constitutional questions the panel saw implicated in the case. Here are excerpts from the footnote:

We note that even if we found "sex offender" to be ambiguous, leaving us with the choice of selecting between two reasonable constructions, one requiring conviction and one not, we would be strongly inclined to affirm the district court.  We believe the application of SORA and its public notification requirement to juveniles adjudicated delinquent in other jurisdictions but not in Nebraska raises serious constitutional concerns under the rights to travel and to equal protection of the laws.  Of the events triggering application of SORA under NSP regulations -- residency, employment, carrying on a vocation, or attending school in Nebraska, 272 Neb. Admin. Code ch. 19 § 003.02 -- it is highly likely a juvenile would be subject to SORA due to residency. This raises troubling implications under the third prong of the right to travel, arising from the Privileges and Immunities and the Privileges or Immunities Clauses of the U.S. Constitution..., as well as under the Equal Protection Clause.  Further, to the extent the purpose of § 29-4003(1)(a)(iv) is to prevent migration into the state of undesirable citizens, application of SORA to A.W. under that provision may raise other constitutional concerns as well. Saenz, 526 U.S. at 503 ("The states have not now, if they ever had, any power to restrict their citizenship to any classes or persons." (quoting Slaughter-House Cases, 83 U.S. 36, 112 (1872) (Bradley, J., dissenting))). Given the choice between two reasonable constructions, we will generally avoid a construction that raises "grave and doubtful constitutional questions." Union Pac. R.R. Co. v. United States Dep't of Homeland Sec., 738 F.3d 885, 892 (8th Cir. 2013).

August 1, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

Thursday, July 27, 2017

Some notable coverage of felon disenfranchisement via Take Care blog

The Take Care blog continues to be a must-read for anyone eager to get a range of law professor perspectives on a range of legal issues related to activities by the Trump Administration and other topics of the era.  And, thanks to a comment by Joe, I just saw that Nancy Leong has recently been covering the issue of felon disenfranchisement there via these teo postings:

Here is an excerpt from the latter of these posts:

Investigators have found a correlation between voting behavior and likelihood of recidivism. In one study, former felons who voted in 1996 were only half as likely to be rearrested during the years 1997-2000 as those who did not vote. Of course, correlation is not causation, and the study neither proves nor disproves that voting caused the rehabilitation of felons who voted. But this information does suggest that voting forms part of an overall pattern of behavior that, collectively, may help to prevent former felons from reoffending. The researchers who conducted the study acknowledged that “the single behavioral act of casting a ballot is unlikely to be the single factor that turns felons’ lives around,” yet also suggest that “it is likely the act of voting is tapping something real, such as a desire to participate as a law-abiding stakeholder in a larger society.”

Other researchers concur. Criminologist Shadd Maruna explains that “ex-offenders who desist seem to find some larger cause that brings them a sense of purpose,” which might include involvement in public affairs. He argues that re-enfranchisement can serve as a “reintegration ritual” that helps a former offender become part of law-abiding society. In a similar vein, legal scholars Guy Padriac Hamilton-Smith and Matt Vogel reason as follows: “if ex-offenders are not deserving of the protections of the law, then there is even less reason for them to abide by it.”

July 27, 2017 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1)

Sunday, July 23, 2017

Reduced jail time in Tennessee for inmates who ... agree to vasectomy or birth control implant!?!?!

This local story out of Tennessee is hard to believe, but it does not appear to be fake news.  The story is headlined "White County Inmates Given Reduced Jail Time If They Get Vasectomy," and here are excerpts:

Inmates in White County, Tennessee have been given credit for their jail time if they voluntarily agree to have a vasectomy or birth control implant, a popular new program that is being called “unconstitutional” by the ACLU.

On May 15, 2017 General Sessions Judge Sam Benningfield signed a standing order that allows inmates to receive 30 days credit toward jail time if they undergo a birth control procedure. Women who volunteer to participate in the program are given a free Nexplanon implant in their arm, the implant helps prevent pregnancies for up to four years. Men who volunteer to participate are given a vasectomy, free of charge, by the Tennessee Department of Health.

County officials said that since the program began a few months ago 32 women have gotten the Nexplananon implant and 38 men were waiting to have the vasectomy procedure performed.

Judge Benningfield told NewsChannel 5 that he was trying to break a vicious cycle of repeat offenders who constantly come into his courtroom on drug related charges, subsequently can’t afford child support and have trouble finding jobs. “I hope to encourage them to take personal responsibility and give them a chance, when they do get out, to not to be burdened with children. This gives them a chance to get on their feet and make something of themselves,” Judge Benningfield said in an interview.

First elected in 1998, Judge Benningfield decided to implement the program after speaking with officials at the Tennessee Department of Health. “I understand it won’t be entirely successful but if you reach two or three people, maybe that’s two or three kids not being born under the influence of drugs. I see it as a win, win,” he added.

Inmates in the White County jail were also given two days credit toward their jail sentence if they complete a State of Tennessee, Department of Health Neonatal Syndrome Education Program. The class aimed to educate those who are incarcerated about the dangers of having children while under the influence of drugs. “Hopefully while they’re staying here we rehabilitate them so they never come back,” the judge said.

District Attorney Bryant Dunaway, who oversees prosecution of cases in White County is worried the program may be unethical and possibly illegal. “It’s concerning to me, my office doesn’t support this order,” Dunaway said....

On Wednesday, the ACLU released this statement on the program: "Offering a so-called 'choice' between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community – overseeing individuals’ childbearing capacity should not be part of that role."

There are many thing so very remarkable about this story, but I am especially struck by how many jail inmates are willing to undergo a life-changing procedure simply to avoid 30 days in jail. Anyone who doubts the coercive pressures of even a short jail stay (say because of an inability to make bail) should be shown this story.

July 23, 2017 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (19)

Saturday, July 08, 2017

DOJ urges SCOTUS not to review Sixth Circuit panel decision finding retroactive application of Michigan sex offender law unconstitutional

As reported in this post from last summer, a Sixth Circuit panel concluded in Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016) (available here), that Michigan's amendments to its Sex Offender Registration Act (SORA) "imposes punishment" and thus the state violates the US Constitution when applying these SORA provisions retroactively.  Michigan  appealed this decision to the US Supreme Court, and SCOTUS in March asked for the US Acting Solicitor General to express its views on the case.

Yesterday, the Acting SG filed this brief with SCOTUS stating that in "the view of the United States, the petition for a writ of certiorari should be denied." The discussion section of the brief begins this way:

Michigan’s sex-offender-registration scheme contains a variety of features that go beyond the baseline requirements set forth in federal law and differ from those of most other States.  After applying the multi-factor framework set out in Smith v. Doe, 538 U.S. 84 (2003), the court of appeals concluded that the cumulative effect of SORA’s challenged provisions is punitive for ex post facto purposes.  While lower courts have reached different conclusions in analyzing particular features of various state sex-offender-registration schemes, the court of appeals’ analysis of the distinctive features of Michigan’s law does not conflict with any of those decisions, nor does it conflict with this Court’s holding in Smith.  Every court of appeals that has considered an ex post facto challenge to a sex-offender-registry statutory scheme has applied the same Smith framework to determine whether the aggregate effects of the challenged aspects of that scheme are punitive.  And although most state sex-offender-registry schemes share similar features, they vary widely in their form and combination of those features.  Accordingly, to the extent the courts of appeals have reached different outcomes in state sexoffender-registry cases, those outcomes reflect differences in the statutory schemes rather than any divergence in the legal framework.  Finally, petitioners’ concern (Pet. 26-29) that the court of appeals’ decision will prevent the State from receiving some federal funding does not warrant review.  That concern is premature, as it may well be the case that Michigan can continue to receive federal funds notwithstanding this decision.  And the decision does not prevent the State from implementing a sex-offender-registration scheme that is consistent with federal law.  Further review is therefore not warranted.

July 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Wednesday, June 28, 2017

Impressive refreshment of Restoration of Rights Project

CcrcIn this post nearly five years ago, I noted the creation by the National Association of Criminal Defense Lawyers (NACDL) of a terrific on-line resource profiling the law and practice in each US jurisdiction relating to relief from the numerous civil rights and other consequences of criminal conviction.  Now, as detailed in this news release, this resource has gotten an impressive new update. Here are the details via the release:

The Collateral Consequences Resource Center and its partner organizations, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the National HIRE Network, are pleased to announce the launch of the newly expanded and fully updated Restoration of Rights Project.

The Restoration of Rights Project is an online resource that offers state-by-state analyses of the law and practice in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction.  Jurisdictional "profiles" cover areas such as loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing. Each jurisdiction's information is separately summarized for quick reference.

In addition to the jurisdictional profiles, a set of 50-state comparison charts summarizes the law and illustrates national patterns in restoration laws and policies.  We expect to supplement these resources in weeks to come with jurisdiction-specific information about organizations that may be able to assist individuals in securing relief, and information on other third-party resources.

The resources that comprise the Restoration of Rights Project were originally published in 2006 by CCRC Executive Director Margaret Love, and the profiles and comparison charts have expanded over the years to broaden their scope and to account for the many changes in this complex area of the law.  The project has recently been hosted by CCRC and NACDL, and its resources have been published in the treatise on collateral consequences published jointly by NACDL and Thompson Reuters (West).

Project resources have now been re-organized into a unified online platform that makes them easier to access, use, and understand.  The short "postcard" summaries of the law in each state -- which serve as a gateway to more detailed information -- have also been reviewed and revised to provide a more current and accurate snapshot of applicable law in each state.

The Project is intended as a resource for practitioners in all phases of the criminal justice system, for courts, for civil practitioners assisting clients whose court-imposed sentence has exposed them to additional civil penalties, for policymakers and advocates interested in reentry and reintegration of convicted persons, and for the millions of Americans with a criminal record who are seeking to put their past behind them.

The Restoration of Rights Project is available now at: http://restoration.ccresourcecenter.org

June 28, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Thursday, June 15, 2017

Collateral Consequences Resource Center creates Compilation of Federal Collateral Consequences

Cfcc-logo-1As detailed via this new post at the Collateral Consequences Resource Center, titled "Introducing the Compilation of Federal Collateral Consequences," the folks at CCRC have launched another terrific new resource. Here is more background about this important work via the CCRC posting:

The CCRC is pleased to announce the launch of its Compilation of Federal Collateral Consequences (CFCC), a searchable online database of the restrictions and disqualifications imposed by federal statutes and regulations because of an individual’s criminal record. Included in the CFCC are laws authorizing or requiring criminal background checks as a condition of accessing specific federal benefits or opportunities.

This newly developed tool allows individuals to identify federal collateral consequences based on the people, activities or rights affected; to access complete and current statutory and regulatory text detailing the operation of each consequence; and, to explore the relationship between consequences and their implementing regulations, and among different consequences.  This is a product that has been many months in the making, and we hope it will serve as an important resource for practitioners, researchers, and policymakers, as well as individuals with criminal records. 

The CFCC data is derived from the National Inventory of the Collateral Consequences of Conviction (NICCC), a database originally compiled by the American Bar Association under a grant from the National Institute of Justice pursuant to the Court Security Act of 2007.  The NICCC itself is currently hosted by the Council of State Governments on the website of the National Reentry Resource Center.

In developing the CFCC we streamlined and restructured the NICCC data, reorganizing it into keyword categories for easier user access, and combining overlapping and duplicative entries. We omitted potentially misleading interpretations and lengthy textual excerpts in favor of links to the full current version of the law or rule.  At the same time, we updated the NICCC data to reflect laws enacted and rules adopted in the past two years.

The most important new feature of the CFCC is the addition of a comprehensive set of searchable “Keywords” that allow users to zero in on consequences of interest with a high degree of precision and accuracy.

The result is a tool for practitioners and researchers that we believe will be more useful, easier to operate and understand, and more current and reliable.

The CFCC represents just the beginning of what we envision as a much larger project.  We are currently developing state-specific compilations using the same platform and will be rolling those out as they are completed.  Our Wisconsin compilation is already available through the Wisconsin State Public Defender’s website.  A similar database developed for the Vermont Attorney General is scheduled to launch this summer. 

June 15, 2017 in Collateral consequences | Permalink | Comments (2)

Friday, June 02, 2017

Considering the unique housing challenges for aging sex offenders

This new Atlantic article explores the questions that now attend an ever-growing and ever-aging sex offender population.  The piece is headlined "The Puzzle of Housing Aging Sex Offenders: States are grappling with how to care for a growing population of registered offenders in long-term care facilities."  Here are excerpts:

When state officials finally released William Cubbage from the Iowa Mental Health Institute in 2010, they predicted he was too sick to hurt anyone again. But the octogenarian only became an even more notorious sex offender....

And while Cubbage’s case is extreme, he’s symptomatic of a larger puzzle in America’s long-term care facilities that no one’s managed to solve.  As lawmakers in Oklahoma and Ohio have found, isolating aging sex offenders is easier planned than achieved.

“The problem is that you’re talking about a project that’s uniquely difficult when it comes to structural needs and safety,” says Amy McCoy, a public-information officer with the Iowa Department of Human Services. “You’re talking about things like hallways without corners. You’re also talking about building a place that isn’t a prison. It’s something entirely different from a traditional care facility. You want people in the least restrictive setting, but you also want to be able to respond if something does happen.”

Local lawmakers have been sounding alarms for at least a decade whenever sex offenders strike.  With no federal regulations dictating how long-term care centers should handle offenders, solutions vary state to state. In 2012, Iowa’s Governor pushed a bill requiring nursing homes to notify residents if an offender moved in, but it died in the legislature.  California’s Department of Corrections notifies nursing homes if anyone on the sex-offender registry applies for residency, and the nursing homes are required to notify residents and employees.  Illinois facilities forbid offenders from having roommates and tests them for any special care needs before sending the results to local police and the Department of Public Health. (Requests to interview multiple nursing homes in Iowa, Ohio, and Illinois for this story went unanswered.)

Just as Iowa’s now considering, Oklahoma passed law in 2008 to create a specialized nursing home for offenders.  But not a single bid to construct the property was submitted.  A contractor’s reluctance to be involved with such a property could be due to its specialized requirements, but in the view of the sex-offender advocate Derek Logue, it’s just as likely another case of people not wanting any connection to the registry. Logue is the founder of Once Fallen, which calls itself the “leading reference & resource site for Registered Citizens.” A Cincinnati resident, Logue himself is registered in Ohio for a 2001 conviction of First Degree Sexual Abuse against an underage girl. At age 40, he calls himself “one of the younger guys”; most offenders who call for help finding a place to live or a job are in their 50s or 60s.

“If you look at the nursing homes that do take registered citizens, they tend to have below-average grades,” Logue says. “It’s the same issue [offenders] face when they’re trying to find a place to live.  You’ll never be anywhere decent, you always end up with some landlord who doesn’t care about the property.  We don’t exactly get quality service.”

Logue knows you won’t cry over his failure to score a luxury penthouse, but he counters that he’s served his time.  And it’s his tribe’s pariah statues, he says, that makes registered offenders likely to need extra medical attention in their declining years.  Beyond the Gordian knot that is the ongoing argument over the sex-offender registry’s effectiveness, constitutionality, and methods of inclusion, offenders are less likely to be employed, more likely to live in poverty if they do have full-time work, and subsequently less likely to have access to preventive care.

It’s also hard to gauge exactly how much of a danger they pose as seniors. Sexual assaults are already underreported crimes, and recidivism rates among all ages vary from study by study. Karl Hanson and Kelly Morton-Bourgon, a pair of sex-crimes researchers who work for the Canadian government, estimate that the average rate is likely around 13.7 percent. Meanwhile, multiple recent studies suggest recidivism rates seem to decline among the elderly....

Another blind spot is that almost no one is counting how many sex offenders require end-of-life care. Back in 2006, the U.S. Government Accountability Office counted 700 registered sex offenders living in nursing homes or intermediate care facilities. More recent numbers among the nation’s 15,600 long-term care facilities and their 1.4 million residents are hard to come by.

June 2, 2017 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Tuesday, May 30, 2017

Australia working on a novel travel ban for certain sex offenders ... to keep them in the country

This new AP article, Headlined "Australia plans to ban pedophiles from traveling overseas," reports on a kind of travel ban being discussed down under that is quite distinct from the one now being litigated here in the US.  Here are the details:

Australia plans to ban convicted pedophiles from traveling overseas in what the government said Tuesday is a world-first move to protect vulnerable children in Southeast Asia from exploitation.  Australian pedophiles are notorious for taking inexpensive vacations to nearby Southeast Asian and Pacific island countries to abuse children there.

Foreign Minister Julie Bishop said she would cancel the passports of around 20,000 pedophiles on the national child sex offender register under legislation that will be introduced to Parliament soon.  "There has been increasing community concern about sexual exploitation of vulnerable children and community concern is justified," she told reporters.

Almost 800 registered child sex offenders travelled overseas from Australia last year and about half went to Southeast Asian destinations, she said.  "There will be new legislation which will make Australia a world leader in protecting vulnerable children in our region from child sex tourism," Bishop said.

Justice Minister Michael Keenan said no country has such a travel ban.  He said 2,500 new convicted pedophiles would be added to the sex offender register each year and would also lose their passports.

The register contains 3,200 serious offenders who will be banned from travel for life.  Less serious offenders drop off the register after several years of complying with reporting conditions and would become eligible to have their passports renewed.

Independent Senator Derryn Hinch, who was molested as a child and was jailed twice as a radio broadcaster for naming pedophiles in contravention of court orders, took credit for the government initiative. Hinch said he had not known that convicted pedophiles were allowed to travel before he received a letter from Australian actress and children's rights campaigner Rachel Griffiths soon after he was elected to the Senate last year. "If we can take a passport from a bankrupt, why can't we stop our pedophiles from traveling to Myanmar?" Griffiths wrote. Under Australian law, a bankrupt person cannot travel overseas without a trustee's permission.

Hinch, who was involved in drafting the legislation, said temporary passports could be provided to pedophiles who need to travel for legitimate business or family reasons, and for pedophiles living overseas who need to return to Australia as their visas expire. "This will not apply to a teenager who has been caught sexting to his 15-year-old girlfriend," said Hinch, referring to sexual phone communications. "I know sometimes, I think unfairly, they go on registers, but we're trying to work it out so they don't," he added....

Australia has attempted to crack down on Australian child sex tourists by adding a new criminal offense punishable by up to 25 years in prison for Australian citizens or residents who molest children overseas.

May 30, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Sunday, May 21, 2017

"Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses"

The title of this post is the title of this notable paper authored by Neil Sobol and now available via SSRN.  Here is the abstract:

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem.  On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees.  The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in jail merely because they are unable to afford bail.

Criminal justice debt, also known as legal financial obligations (LFOs), impacts not only those incarcerated but also millions of others who receive economic sanctions for low-level offenses, including misdemeanors and ordinance violations. LFOs, which include bail, fines, and fees, are imposed at every stage in the justice process, including pre-conviction, sentencing, incarceration, and post-release supervision.

For those who are unable to pay criminal justice debt, “poverty penalties” are often added in the form of charges for interest, payment plans, late payments, and collection.  As incarceration rates and local budgetary concerns have increased, so too has the imposition of LFOs. Moreover, while authorities are trying to reduce incarceration, criminal justice debt may become an even greater concern, as one popular alternative is decriminalization and the imposition of monetary charges.

Often the financial charges are unrelated to the traditional notions of punishment or protection of public safety and instead, reflect a desire to maximize revenue collection. Many municipalities outsource services to private probation companies and collectors, which are often unsupervised and use collection procedures not authorized for private parties.  Moreover, new technologies allow for additional collection abuses.

To date, states and municipalities have been ineffective in preventing abuses associated with criminal justice debt. Relying on the approach used for consumer debt collection, I propose a federal solution.  The Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Bureau (CFPB) provide the foundation for a federal framework for addressing problems with the collection of consumer debts. I contend that the justifications that supported the federal statutory and administrative solution for consumer debts are at least as significant, if not greater, for a similar framework to combat abusive criminal justice debt practices.

Not only do individuals with criminal justice debt encounter the same abuses and consequences that consumer debtors face — including harassment, negative credit reports, and the adverse impact on financing and employment prospects — but they also face denial of welfare benefits, suspension of driver’s’ licenses, arrest, and incarceration.  In practice, the imposition of criminal justice debt reflects actual discrimination and creates distrust in the system. Accordingly, I advocate the adoption of a federal act and the use of the DOJ to coordinate enforcement and outreach activities to attack abuses in the collection of criminal justice debt.

May 21, 2017 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Friday, May 19, 2017

US Commission on Civil Rights conducting big hearing on collateral consequences

As detailed in this official meeting notice, the United States Commission on Civil Rights is having a big public "briefing" focused on "Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities." The event in DC begins at 9:30 am and will be live-streamed at this link. Here is the scheduled run-down of the panels and speakers:

Panel One: Overview of Collateral Consequences of Incarceration:

National experts provide an overview of the long-lasting effects of incarceration after a prison sentence has ended. Panelists will discuss how these continuing barriers impact recidivism and particular communities. Speakers’ Remarks:

  • Margaret Love, Executive Director, Collateral Consequences Resource Center
  • Vikrant Reddy, Senior Research Fellow, Charles Koch Institute
  • Traci Burch, Associate Professor of Political Science, Northwestern University
  • John Malcolm, Vice President of the Institute for Constitutional Government, Heritage Foundation
  • Naomi Goldberg, Policy and Research Director, Movement Advancement Project

Panel Two: Access to Civil Participation after Incarceration:

National experts and professors discuss the barriers to civil participation following incarceration, specifically focusing on the right to vote and jury participation. Speakers’ Remarks:

  • Marc Mauer, Executive Director, The Sentencing Project
  • Hans von Spakovsky, Senior Legal Fellow, Meese Center for Legal and Judicial Studies, Heritage Foundation
  • James Binnall, Assistant Professor of Law, Criminology, and Criminal Justice, California State University at Long Beach
  • Anna Roberts, Assistant Professor, Seattle University School of Law and Faculty Fellow, Fred T. Korematsu Center for Law and Equality

Panel Three: Access to Self-Sufficiency and Meeting Basic Needs:

National experts discuss the barriers to self-sufficiency and meeting basic needs after incarceration. Panelists will focus on employment, housing and access to public benefits. Speakers’ Remarks:

  • Maurice Emsellem, Program Director, National Employment Law Project
  • Kate Walz, Director of Housing Justice, Sargent Shriver National Center on Poverty Law
  • Amy Hirsch, Managing Attorney, North Philadelphia Law Center; Welfare, Aging and Disabilities Units, Community Legal Services
  • Marc Levin, Director, Center for Effective Justice; Texas Public Policy Foundation; Right on Crime

May 19, 2017 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Tuesday, May 16, 2017

New lifetime GPS tracking for old sex offenders raising concerns in Missouri

This lengthy local article, headlined "Hundreds of Missouri sex offenders now required to wear GPS monitoring devices for life," reports on a new sex offender monitoring law that is causing consternation. Here are excerpts:

A sex offender from St. Charles County thought he had moved on with his life after successfully completing five years of probation for sending webcam photographs of his genitals to an undercover police officer posing as a 13-year-old girl.  Now he’s among hundreds of people in Missouri who are learning they must attach GPS monitoring systems to their ankles for life, even though such a requirement wasn’t part of their sentencing agreement.

The devices send out alerts if an offender lingers near a school or a park.  Cut the wide black strap and the waterproof device will tell on them. It beeps to prompt a verbal command from state officials, say to make a payment or report to probation officers immediately.

The retroactive requirements are part of a revised state criminal code that went into effect Jan. 1.  Offenders either found guilty or who pleaded guilty to 13 various sex crimes in question based on an act committed on or after Aug. 28, 2006, are subject to the added security measures.  Previously, the monitoring technology was used for a more limited class of high-risk offenders.

The St. Charles man is among several sex offenders who are suing and challenging the state. In the lawsuit, in which he is named only as D.G., the 40-year-old argues that the law didn’t exist when he pleaded guilty.  He claims he’s no longer “legally subject” to the jurisdiction of state prison authorities. He argues that he shouldn’t be required to pay monthly supervision fees for decades, nor have travel or residency restricted for life.

“I don’t think a lawyer can make a straight-faced argument that it’s constitutional,” said Clayton-based attorney Matt Fry, who is suing the state on behalf of D.G. and has many other plaintiffs in the wings.

A March 29 “Dear Sir/Madam” letter from chief state supervisor Julie Kempker lays out the law, including threat of a class D felony if conditions are violated.  “We understand that this change may be unexpected,” Kempker said in the letter.  “Rather than being detracted by the lifetime supervision requirements, you are encouraged to remain focused on your daily supervision responsibilities and to do those things that improve your life and positively impact your family and the community in which you live.”

Many sex offenders panicked and started calling lawyers. Some are confused: for instance, those no longer on supervision who moved away from Missouri.

A 41-year-old sex offender from south St. Louis County said he sees the changes as unlawful, too costly and ineffective.  “Lifetime. For the rest of your life. I can’t even comprehend it,” said the man, who didn’t want to be identified to avoid bringing more unwanted attention to himself.

According to court records, he pleaded guilty in 2012 to first-degree child molestation for touching the genitalia of a friend’s 7-year-old daughter.  The first-time offender was sentenced to 10 years in prison. He spent four months behind bars before he was let out to undergo treatment in the community. So long as he did well, he’d be done with state supervision after five years on probation, not including registering as a sex offender for life.  But during a monthly visit to his probation officer in April, he found out about being subject to the added layer of oversight.

He said he argued that lifetime GPS monitoring wasn’t part of his sentencing agreement. Still, the device was attached April 26.  He’s still getting used to wearing it. He said the device puts his job stocking snack machines in jeopardy and that he’s too embarrassed to wear shorts in public . He said it seemed like extra punishment added after the fact.

Kim Kilgore, the St. Louis County prosecutor who handled his case, disagreed. “It’s a collateral consequence of his plea,” Kilgore said. “The legislature has spoken that, in the interest to the public, he should be required to wear this. Mind you, his victim was 7 years old.”

She said sex offenses are a public health issue and should be handled accordingly, similar to people with a contagious disease who are quarantined. “Think of the burden that my victim suffers every day of her life for something he chose to do,” she said.

Officials have tried to notify at least 432 sex offenders like the man from south St. Louis County about the new monitoring requirements, according to the Department of Corrections, which oversees the division of probation and parole.  At the end of April, 364 of them had been placed on GPS monitoring.  They were already on state supervision. About 800 prison inmates are on deck. So are 500 people who already completed their sentences and are considered free.

May 16, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (25)

Three new CCRC posts highlighting how collateral consequences have become a focal point for modern criminal justice reform

Regular readers should recall me highlighting all the great work being done regularly over at the Collateral Consequences Resource Center, and three recent postings at CCRC struck me as worth a special mention because they each in distinct ways showcase the heightened attention and concern for collateral consequences in modern criminal justice reform conversations.  (At the risk of being cheeky, one might say collateral consequences are no longer being treated as collateral by serious advocates for criminal justice reform.  

Here are these three posts that caught my eye as highlighting distinct and distinctly important institutional players paying close attention to collateral consequences:

May 16, 2017 in Collateral consequences, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (1)

Sunday, May 14, 2017

Notable review of Colorado's recent experiences and concerns with polygraph testing of sex offenders

The Denver Post has this interesting article about the monitoring and testing of sex offenders in the Centennial State.  The piece is headlined "Colorado’s pricey polygraph testing of sex offenders under fire as critics target accuracy, expense: Psychologist calls state’s $5 million polygraph program 'grossly excessive' as state legislature examines cost."  Here are some excerpts from the extended piece:

Colorado has spent more than $5 million to administer polygraphs on convicted sex offenders over the last seven years despite concerns that the tests are so unreliable they can’t be used as evidence during civil or criminal trials.

Polygraphs help officials decide which prisoners convicted of sex offenses are suited for release from prison by probing their sexual history, attitudes about their crimes and whether they are committing new offenses.  They also guide how offenders on parole or probation are supervised.  “The polygraph really gives useful information,” said Lenny Woodson, administrator for the Colorado Department of Corrections’ Sex Offender Treatment and Monitoring Program. “And we’ve made it clear in our standards that it isn’t to be used in isolation. We’re using as many avenues as possible to make treatment decisions.”

But a bipartisan cross-section of legislators and a retired judge have joined with offenders and their families to question the validity of the tests.  They contend too much weight is placed on what they argue is little more than junk science.  Flawed polygraphs can complicate efforts for low-risk sex offenders to get paroled and lead to new restrictions for parolees or probationers, critics say.  Failure to take the tests can lead to sanctions, including eventual revocation to prison.

Studies show that up to 70 percent of U.S. states polygraph sex offenders, but experts have testified that Colorado uses the tests aggressively, even polygraphing juvenile offenders for consensual sexting.  Critics contend an entrenched and profitable cottage industry, rife with conflicts of interests, has grown up around polygraphing sex offenders in Colorado.  “To me, there is no question that it borders on a scam,” said Senate President pro tem Jerry Sonnenberg, R-Sterling.  “We incentivize the people who give the polygraph tests to have inconclusive results so an offender has to go back and pay for another one on a more regular basis.”

Colorado’s polygraphing is “grossly excessive,” said Deirdre D’Orazio, a psychologist who serves as an expert on a high-risk sex-offender task force in California, during testimony in federal court in Denver in 2015.  D’Orazio led a team of consultants that issued a report for the Colorado department of corrections in 2013 blasting how it manages sex offenders and how it uses polygraphs.  She returned to the state to testify for Howard Alt, then 51, who a decade earlier was convicted for having sex with a 15-year-old girl and possessing nude computer images of teenage girls.

After his release from prison, Alt had taken 28 polygraphs, often with competing results.  The treatment provider that tested Alt had a “fiduciary incentive conflict” to fail him, D’Orazio said.  The firm was “making money on outcomes that are not in the offender client’s favor” by requiring him to pay for more tests and treatment, she said.

A deceptive finding on one sex-history polygraph had prompted supervision officials to bar Alt, a former software developer, from accepting a job that would raise his salary from $60,000 to $200,000 annually.  Months later, the polygrapher found Alt to be truthful on the same questions even though he did not change his answers, showing the sanction against him was unwarranted, D’Orazio said.  “It is not a scientifically valid procedure,” D’Orazio testified.  “It has a high false-positive rate, which means misclassifying people who are telling the truth as being deceitful. So there is a lot of controversy about using the polygraph in high-stakes decisions.”...

The state of Colorado, relying on court fees paid by those convicted of sex crimes, picks up the tab of the polygraphs for those who are in prison and also often for the indigent who are out on parole or probation.  But when the state fund that pays for the tests runs out of money, parolees and probationers who don’t have the money to pay for them risk running afoul of their supervision requirements.  Revocation to prison can occur for refusing to take the polygraphs, defense lawyers say....

In addition to the legislators, C. Dennis Maes, former chief judge of Pueblo District Court, has criticized the use of polygraphs in Colorado.  He has written to the chief judges of all judicial districts in the state and to Nancy Rice, chief justice of the Colorado Supreme Court, urging a halt to polygraphing sex offenders, pointing out the results can’t be admitted as evidence during civil or criminal trails.  After his retirement, he represented a sex offender on probation, and was shocked when the results of his polygraph were admitted as evidence during a court hearing.

“The Constitution applies to everyone,” Maes said.  “It doesn’t apply to everyone except sex offenders.  The Constitution was designed to protect those that might be the most easily attacked by the government, even sex offenders.  You don’t see polygraphs in any other area of the law.  You can be the most prolific bad-check writer ever and you don’t have to take them, but you do if you’re a sex offender.”

The Denver Post has this companion article headlined "Professional polygrapher holds position of power on state’s sex-offender treatment board: Jeff Jenks’ firm will receive $1.9 million to test sex offenders in Colorado prisons as he sits on the Colorado Sex Offender Management Board"

May 14, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

Friday, May 05, 2017

"Mass Monitoring"

The title of this post is the title of this notable new paper authored by Avlana Eisenberg and now available via SSRN. Here is the abstract:

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry.  Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes — a phenomenon which this Article terms “mass monitoring” — is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment.  It finds that the origins and history of EM as a progressive alternative to incarceration — a punitive sanction — support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories.  Yet new uses of EM have complicated this narrative.  The Article draws attention to the expansion of EM both as a substitute for incarceration and as an added sanction, highlighting the analytic importance of what it terms the “substitution/addition distinction.”  The Article argues that, as a punitive sanction, EM can be justified when used as a substitute for incarceration, but that its use as an added sanction may result in excessive punishment and raises significant constitutional and policy concerns.

The Article’s findings have crucial implications for hotly contested questions over whether monitoring can be imposed retroactively and whether pretrial house arrest plus monitoring (which resembles the post-conviction use of monitoring as a substitute for incarceration) should count toward time served.  The Article provides a framework for addressing these questions and, at the same time, offers practical policy guidance that will enable courts and policymakers to ensure that EM programs are genuinely a cost-saving, progressive substitute for incarceration rather than another destructive expansion of government control.

May 5, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (4)

Thursday, May 04, 2017

South Carolina Supreme Court rejects constitutional challenge to juve sex offender's mandatory lifetime registration/monitoring

Yesterday the South Carolina Supreme Court handed down an opinion in In the Interest of Justin B., No. 27716 (S. Ct. May 3, 2017) (available here), unanimously rejecting the contention that "mandatory imposition of lifetime registration and electronic monitoring on juveniles is unconstitutional."  The relatively short opinion is a bit curious because, after reviewing a bunch of previous rulings in which it had "upheld the constitutionality of the mandatory lifetime sex offender registry requirement with electronic monitoring for adults and juveniles," the opinion does not discuss Graham or Miller but does confront and reject the juvenile's assertion that the constitutional analysis should "yield a different result under the reasoning of Roper v. Simmons."

Roper is, indisputably, a relevant precedent if and when a juvenile offender is arguing against mandatory imposition of lifetime registration and electronic monitoring.  But, in my view, the more recent precedents of Graham and Miller are even more critical and central to mounting an Eighth Amendment argument against any mandatory lifetime sanction for a juvenile offender. (As noted in this prior post, more than five years ago the Ohio Supreme Court relied heavily on Graham to find unconstitutional a mandatory lifetime registration requirement for juvenile sex offenders.)

In the end, I do not think engagement with Graham and Miller would have made any real difference to the South Carolina Supreme Court.  As this conclusion to the opinion highlights, that court has long deemed registration and monitoring to be civil non-punitive provisions that are not really subject to traditional constitutional limits on punishment:

The requirement that adults and juveniles who commit criminal sexual conduct must register as a sex offender and wear an electronic monitor is not a punitive measure, and the requirement bears a rational relationship to the Legislature's purpose in the Sex Offender Registry Act to protect our citizens — including children — from repeat sex offenders.  The requirement, therefore, is not unconstitutional.  If the requirement that juvenile sex offenders must register and must wear an electronic monitor is in need of change, that decision is to be made by the Legislature — not the courts.  The decision of the family court to follow the mandatory, statutory requirement to impose lifetime sex offender registration and electronic monitoring on Justin B. is AFFIRMED

May 4, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

Thursday, April 27, 2017

"Criminal Law as Family Law"

The title of this post is the title of this new paper now available via SSRN authored by Andrea Dennis. Here is the abstract:

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life.  This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families.  Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice.

This Article explores the gap in literature in two respects.  First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families.  Second, the Article examines the depth of criminal justice interference in family life and autonomy through analysis of the impact of community supervision on families.  These explorations reveal that community supervision, and criminal justice more broadly, operate as a de facto family law regime, negatively restructuring Black family autonomy, stability and loyalty, all of which family law seeks to promote.  The Article recommends that the practice of community supervision return to its roots in human services and calls on legal scholars to focus critical attention on criminal law’s creation of disparate and unequal family law systems.

April 27, 2017 in Collateral consequences, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (3)

Tuesday, April 04, 2017

"Criminal Employment Law"

The title of this post is the title of this new article authored by Benjamin Levin available via SSRN. Here is the abstract:

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law.

This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal justice system.  But private employers act without constitutional or significant structural checks.  Therefore, I argue that the criminal justice system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment.  Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market.  And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers.

April 4, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Spotlighting new research and realities at the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  In addition, I have noted lately an uptick of important empirical research and scholarly analysis of issues related to collateral consequences, and CCRC is effectively covering this important and encouraging new trend.  Against that backdrop, here is a sampling of some recent posts of note from CCRC:

April 4, 2017 in Collateral consequences, Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

Sunday, April 02, 2017

"Briefing the Supreme Court: Promoting Science or Myth?"

The title of this post is the title of this new timely essay authored by Melissa Hamilton now available via SSRN. Here is the abstract:

The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders.  An issue that has arisen in the case is the state’s justification for the ban.  North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes.  The collective states contend that these three claims are supported by scientific evidence and common sense.  This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.

April 2, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Science, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, March 28, 2017

"Statistical (and Racial) Discrimination, 'Banning the Box', and Crime Rates"

The title of this post is the title of this notable new paper authored by Murat Mungan now available via SSRN.  Here is the abstract:

This article presents law enforcement models where employers engage in statistical discrimination, and the visibility of criminal records can be adjusted through policies (such as ban the box campaigns).  I show that statistical discrimination leads to an increase in crime rates under plausible conditions.  This suggests that societies in which membership to disadvantaged groups is salient (e.g. through greater racial or religious heterogeneity) are, ceteris paribus, likely to have higher crime rates.  Attempting to fix the negative impacts of statistical discrimination through policies that reduce the visibility of criminal records increases crime rates further.  Moreover, such policies cause a greater negative effect for law abiding members of the disadvantaged group than members of the statistically favored group.

March 28, 2017 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1)

Sunday, March 26, 2017

"Recognizing Redemption: Old Criminal Records and Employment Outcomes"

The title of this post is the title of this new essay authored by Peter Leasure and Tia Stevens Andersen available via SSRN. Here is the abstract:

Upon completion of their sentences and when attempting to ‘reenter’ society, offenders face large barriers, often referred to as the ‘collateral consequences’ of conviction.  One of the largest barriers, given the stigma of a criminal record, is finding employment.  The problem primarily arises because of increases in the use of background checks by employers and the use of a criminal record to eliminate candidates.  Such a practice is partly understandable for employers, as a recent conviction is one of the best predictors of future criminal activity.

However, recent evidence suggests that an offender’s risk of reoffending decreases over time and can eventually come “close enough” to that of one who has never offended, even becoming lower than that risk for a random person within the general population.  However, no study has examined whether such knowledge has reached potential employers.  Our study sought to determine whether knowledge such as this has reached potential employers and asked whether there are employment outcome differences for hypothetical applicants with older criminal records.  Results indicate that those possessing older criminal records still face barriers when seeking employment.  Based on these findings, we present policy considerations.

March 26, 2017 in Collateral consequences, Reentry and community supervision, Who Sentences? | Permalink | Comments (13)

Wednesday, March 22, 2017

Unanimous New Jersey Supreme Court rejects "categorical Internet blackout" for sex offender

As reported in this local article, headlined "N.J. Supreme Court tosses 'total' internet ban for sex offender," the top court in the Garden State issued a significant ruling yesterday concerning on-line restrictions on sex offenders. Here are the very basics from the press report:

New Jersey's highest court on Tuesday threw out a state-sanctioned ban on internet use for a convicted sex offender, finding it was an arbitrary infringement on the man's rights.

In a unanimous decision, the state Supreme Court found the state Parole Board had improperly issued a "near-total" internet ban for the man, identified only by the initials J.I., who was subject to lifetime supervision after pleading guilty to charges he sexually abused his three daughters.

Calling internet access a "basic need" of modern life, the justices ruled that state authorities could only revoke it after holding a formal hearing to determine if there was a legitimate public safety reason to do so.

The lengthy ruling in J.I. v. New Jersey State Parole Board, No. A-29-15 (N.J. March 21, 2017) (available here), gets started this way:

Today, the Internet plays an essential role in the daily lives of most people -- in how they communicate, access news, purchase goods, seek employment, perform their jobs, enjoy entertainment, and function in countless other ways.

Sex offenders on community supervision for life (CSL) may be subject to restrictive Internet conditions at the discretion of the New Jersey State Parole Board (the Parole Board), provided the conditions promote public safety and/or the rehabilitation of the offender.  In this case, the first issue is whether a total Internet ban imposed on a CSL offender was unnecessarily overbroad and oppressive and whether it served any rational penological purpose.  The second issue is whether the Parole Board improperly denied J.I. a hearing to challenge the Internet restrictions that he claims were arbitrarily imposed.

J.I. is a sex offender subject to community supervision for life. After his release from confinement, J.I. was allowed full access to the Internet, with one exception: he could not visit an Internet social networking site without the approval of his District Parole Supervisor.

After J.I. had served thirteen months on community supervision for life without incident, his District Parole Supervisor totally banned his access to the Internet except for employment purposes.  The District Parole Supervisor justified the ban based not on J.I.’s conduct while on community supervision for life, but rather on his conduct years earlier -- the accessing of pornography sites and the possession of pornography -- that led to a violation of his parole.  A Parole Board panel affirmed, apparently with no input from J.I.

Following imposition of that near-total Internet ban, J.I. accessed several benign websites, such as those of his church and therapist, after repeated warnings not to do so. As a result, the parole authorities completely banned J.I. from possessing any Internet-capable device.  The Parole Board upheld that determination and denied J.I. a hearing.  The Appellate Division affirmed.

We now reverse and remand to the Parole Board. Conditions imposed on CSL offenders -- like those imposed on regular parolees -- are intended to promote public safety, reduce recidivism, and foster the offender’s reintegration into society.  Arbitrarily imposed Internet restrictions that are not tethered to those objectives are inconsistent with the administrative regime governing CSL offenders.  We agree with the position taken by federal courts that Internet conditions attached to the supervised release of sex offenders should not be more restrictive than necessary.

The sheer breadth of the initial near-total Internet ban, after J.I.’s thirteen months of good behavior, cannot be easily justified, particularly given the availability of less restrictive options, including software monitoring devices and unannounced inspections of J.I.’s computer.  After the imposition of the total ban for J.I.’s Internet violations, J.I. should have been granted a hearing before the Parole Board to allow him to challenge the categorical Internet blackout.  The complete denial of access to the Internet implicates a liberty interest, which in turn triggers due process concerns.

Accordingly, we remand to the full Parole Board for a hearing consistent with this opinion.  The Board must determine whether the current total computer and Internet ban imposed on J.I. serves any public-safety, rehabilitative, or other penological goal.

March 22, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Friday, March 10, 2017

Collateral Consequences Resource Center provides updated 50-state accounting of judicial sealing and expungement laws

As detailed via this new post at the Collateral Consequences Resource Center, titled "Restrictions on access to criminal records: A national survey," the folks at CCRC have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement." Here is more background about this important work for the CCRC posting:

This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records. The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004. We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials....

A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life.  Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse.  In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety.  One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.”  Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.

At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions.  The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.

March 10, 2017 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Thursday, March 09, 2017

"Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation"

2378_regThe title of this post is the title of this notable new book authored by Michael Perlin and Heather Ellis Cucolo which provides a fitting follow-up to prior posts in this space this week concerning problems with sex offender recidivism data and expanding use of crime registries. Via the publisher's website, here is a summary of the book's coverage:

Convicted sexually violent predators are more vilified, more subject to media misrepresentation, and more likely to be denied basic human rights than any other population. Shaming the Constitution authors Michael Perlin and Heather Cucolo question the intentions of sex offender laws, offering new approaches to this most complex (and controversial) area of law and social policy.

The authors assert that sex offender laws and policies are unconstitutional and counter-productive. The legislation largely fails to add to public safety-even ruining lives for what are, in some cases, trivial infractions. Shaming the Constitution draws on law, behavioral sciences, and other disciplines to show that many of the "solutions" to penalizing sexually violent predators are "wrong," as they create the most repressive and useless laws.

In addition to tracing the history of sex offender laws, the authors address the case of Jesse Timmendequas, whose crime begat "Megan's Law;" the media's role in creating a "moral panic;" recidivism statistics and treatments, as well as international human rights laws. Ultimately, they call attention to the flaws in the system so we can find solutions that contribute to public safety in ways that do not mock Constitutional principles.

March 9, 2017 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (21)

"The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms: An Experimental Study"

The title of this post is the title of this paper recently posted to SSRN authored by Peter Leasure and Tia Stevens Andersen. Here is the abstract:

Obtaining employment is difficult for ex-offenders due to the stigma of having a criminal record.  In recognition of this difficulty, some state legislatures have created certificates of relief (also known as certificates of recovery), which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure that employment decisions about certificate holders are made on a case-by-case basis.

The current study, which examines Ohio’s program for certificates of relief, presents the results of the first empirical test of the effectiveness of such certificates.  This test indicates that having a certificate of relief increases the likelihood of receiving an interview invitation or job offer more than threefold.  Importantly, certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer.  These promising preliminary results suggest certificates of relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.

March 9, 2017 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (1)

Wednesday, March 08, 2017

"Public Crime Registries Rarely Work, So Why Do They Continue to Grow?"

The question in the title of this post is the headline of this new Pacific Standard commentary authored by Emmanuel Felton. Here are excerpts: 

[T]he idea of making information about offenders public has proven immensely popular. A 2005 Gallup poll showed that virtually all Americans  —  94 percent  — supported public sex offender registries and about two-thirds of those surveyed said they weren’t even somewhat concerned about how the public nature of registries affected those forced to sign up. With the Internet providing states with a cheap and easy way to get information into the hands of citizens, lawmakers soon found registries to be a relatively inexpensive solution to complex problems, says Amanda Agan, a Rutgers University professor who studies the economics of crime.

“These policies were well intentioned and they sounded like they might work. And on top of that they are relatively low cost,” Agan says. “But now we have all of this evidence that they just don’t work, but the problem is it’s very difficult to start pulling back. There would be a public outcry.”

The Murderer and Violent Offender Against Youth Registry started off as a fix for a legislature-made problem. In the mid-1990s, at the height of the tough-on-crime movement, Illinois added a host of offenses against children to their sex offender rolls, including first-degree murder, kidnapping, and child abduction, regardless of whether the crime involved a sex offense. Responding to concerns that it was unfair to include those offenders  —  take, for example, the case of a 13-year-old girl who stabbed her older brother with a kitchen knife after a fight over a shower cap  —  on the sex crime list, the state created this new violent offender registry. That created a registry for people convicted of a set of violent crimes against children. That list was later expanded to include murderers like Armstrong, whose crimes didn’t involve children, when, in 2011, state lawmakers passed Andrea’s Law, named for a college student strangled to death by her ex-boyfriend.

While Illinois lawmakers may be the most zealous employers of public registries  —  the state also maintains an online list of those convicted of making methamphetamine  —  the state is far from alone. Oklahoma also has a violent crime registry similar to Illinois’ and Kansas has a meth registry like Illinois’. Indiana, Kansas, and Montana still have combined sex and violent offender registries. Florida, on the other hand, makes folks convicted of three violent felonies sign up for a public registry. Tennessee also had a meth registry, before expanding it into a much more encompassing drug offender registry. And among the more original uses, Tennessee also has an animal abuser registry and Utah recently launched a registry for people convicted of certain white-collar crimes.

While there isn’t much research about the effectiveness of newer crime registries like those for murderers, there has been a lot of research into sex offender registries. Jill Levenson, a professor of social work at Barry University, says that research has been conclusive: those registries simply haven’t reduced sex crimes. She says that’s because they obscure the real threat to children, being abused by someone close to them, and greatly overemphasize the incredibly rare occurrences of children being abducted by people they don’t know.

“Stranger abductions of children happen just 115 times a year in this country,” says Levenson, who studies the effectiveness of policies that aim to reduce sexual violence. “While there’s no question that that’s 115 too many, there are 80 million children in this country. The problem with sex offender registries is they obscure the real threat — over 90 percent of children who are sexually abused are abused by people they know.”

St. Louis University Law School professor Molly Wilson says the concept of cognitive availability helps explain why threats like stranger danger remain so prominent in the making of our criminal codes. Cognitive availability describes a logical fallacy where decision-makers tend to overemphasize the importance of examples that quickly come to mind. That leads people to overestimate threats with really salacious details, Wilson says. “When you ask someone to estimate how serious a threat is, they search their minds,” says Wilson, who also holds a doctorate degree in psychology. “What they come to first is what is cognitively available, and that’s these really vivid examples that from an empirical standpoint are pretty rare. The human mind is designed to think of the sensory cases that imprint details — an image of the bicycle that a girl was riding sticking out of the bushes.”

Cognitive availability is a particularly compelling explanation for why many registries quickly expanded to murderers despite the fact that just 1 percent of murderers kill again. Similarly, just 6 percent of people convicted of rape or sexual assault repeated in the five-year follow-up period covered by a recent Bureau of Justice Statistics report. That’s compared to a 13 percent same-crime recidivism rate for robbers and a 34 percent rate for those convicted of assault. Despite repeated attempts by researchers to link lower sex offender recidivism rates with the passage of registration laws, there’s been no conclusive evidence supporting that hypothesis. In fact, there is some evidence that these laws actually increase recidivism as they effectively act as anti-re-entry programs.

Arthur Lurigio, a clinical psychologist and a professor of criminal justice and psychology at Loyola University Chicago, says the rise of registries underscores a central failure of America’s criminal justice system: “ We are failing to recognize the possibility of human change.”...

Wayne Logan — whose 2009 book, Knowledge as Power: Criminal Registration and Community Notification Laws in America, charts the rise of crime registries over 75 years — says there has been some relaxing of registration rules for sex offenders in recent years. He points to California’s public registry, which no longer includes those caught soliciting prostitutes and so-called Romeo and Juliet offenses—those are the cases where there’s consensual sex between teenagers, one of whom is a minor. “You see some unwinding,” says Logan, a professor of law at Florida State University. “But the overall trend is expansion. It’s a very flexible technology, it can work for arsonists or meth makers or white-collar criminals. It’s social control on the cheap.”

March 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Sunday, March 05, 2017

Continuing efforts to unwind felon disenfranchisement in some states

The Wall Street Journal has this notable new article headlined "States Ease Restrictions on Voting by Felons: Florida proposal to lift its lifetime ban would add to a nationwide trend." Here are excerpts:

Mr. Meade is among an estimated 6.1 million felons who have served their time and lost their right to vote, of whom about 1.7 million live in Florida. Virginia, Kentucky and Iowa are the only other states with lifetime voting bans, which can be lifted only through the clemency process. Other states impose waiting periods or require felons to complete parole or probation requirements.

Mr. Meade plans to be in the courtroom Monday when the Florida Supreme Court reviews a proposed constitutional amendment to allow felons, except for murderers and sex offenders, to vote after they finish their sentences, parole and probation. The court will decide whether the measure meets standards to go before voters, provided it gets enough signatures; Mr. Meade, as head of Floridians for a Fair Democracy, is leading the petition drive to put the amendment on the 2018 ballot.

“To be shut out of the democratic process is like a perpetual punishment and slap in the face saying you’re never going to be a citizen,” said Mr. Meade, a 49-year-old father of five. “I paid my debt to society and served my time. Now I should have the opportunity to have my voice heard.”

Since 1997, 23 states have made it easier for people with felony convictions to vote again, according to the Sentencing Project, which advocates an overhaul of crime laws. This year, Nebraska is considering a bill that would eliminate a two-year waiting period.

Critics of automatic restoration of voting rights argue that voting is a responsibility, not a right, and that felons should have to take steps to earn that right after leaving prison. President Donald Trump attacked Democratic Virginia Gov. Terry McAuliffe for using executive orders to restore voting rights to felons after release from prison. “He’s letting criminals cancel out the votes of law-abiding citizens,” Mr. Trump told a rally in Leesburg, Va., the day before his election.

The efforts in Florida and Virginia reflect a nationwide push by criminal-justice activists to alleviate what they call “collateral consequences” of incarceration. In many states, felons released from prison are barred from getting certain occupational licenses, public housing, food stamps and other government assistance. That makes it harder for ex-inmates to get back on their feet, some criminal-justice experts say....

In 2007, then-Gov. Charlie Crist of Florida, and his cabinet, relaxed the rules to make it easier for felons to vote after leaving prison. During the former Republican’s one term, more than 155,000 felons regained their voting rights. Mr. Crist is now a Democratic member of Congress.

Beginning in 2011, under current Gov. Rick Scott, with support from state Attorney General Pam Bondi, felons had to wait at least five law-abiding years before applying to a clemency board. Applications for clemency plunged after the board, which includes Mr. Scott and Ms. Bondi, implemented the new wait time. Since Mr. Scott’s election in 2010, 2,487 people with felony convictions have regained access to the polls....

In Kentucky and Iowa, efforts by Democratic governors to make it easier for felons to vote were reversed by their Republican successors.  Many Republicans see restoration of voting rights as a strategy by Democrats to add more African-Americans, who make up a disproportionate share of the prison population, to the voting rolls; Democrats see GOP opposition as tantamount to suppressing the black vote.

Rep. Carlos Curbelo (R., Fla.), one of the only GOP officials to sign the petition supporting the constitutional amendment, said the issue should transcend partisanship.  After the court decides whether it qualifies for the ballot, the amendment would need roughly 750,000 signatures; to take effect, it needs approval from 60% of voters. “If you can’t give people a way to get back on their feet and become fully active citizens once they’ve served their time, then it’s only a matter of time before they end up back behind bars,” Mr. Curbelo said.

March 5, 2017 in Collateral consequences | Permalink | Comments (5)

Thursday, March 02, 2017

"First, They Came for the Sex Offenders … "

The title of this post is the headline of this Slate commentary authored by Perry Grosssman that discusses Packingham v. North Carolina, the First Amendment case heard by the Supreme Court earlier this week (basics here).  The sub-headline summarizes the piece's themes: "We must speak up for the rights of those on the fringes of society. The Supreme Court’s ruling on sex offenders’ First Amendment rights will signal how much protection we can all expect."  Here are excerpts from the ends of an extended discussion of the case and its context: 

Looming in the background of the court’s consideration of this case are the Trump administration’s recent attacks on the First Amendment, minority rights, judicial independence, and the rule of law itself.  Though it’s a much different First Amendment context, President Trump’s executive order restricting travel by Muslims from seven countries is also a grossly overbroad restriction on a politically vulnerable minority that was enacted thanks to fearmongering, not evidence.  As lower federal courts enjoined the executive order, President Trump attacked the legitimacy of those judges — who then received threats to their safety — while members of his administration implied that the courts had no right to question the president’s judgment on matters of national security.  Factor in Trump’s claim that he was championing free speech when he threatened to withhold federal funds from UC–Berkeley after it canceled an event featuring Milo Yiannopoulos, and his promise to “open up our libel laws” to permit more lawsuits against the press, and it’s clear that the president’s guiding mode of constitutional interpretation is not originalism, but solipsism.  The president thinks the First Amendment protects speech and beliefs he likes, but not those he doesn’t.  This case thus provides an opportunity for the Supreme Court to brace the judiciary for its upcoming battles with the Trump administration and to provide a nervous country with some assurance that the protections of the First Amendment remain as robust as ever and available to all.

Go to any protest these days and you’re sure to see a sign invoking the words of Martin Niemöller, a Lutheran pastor who opposed the Nazis during the Second World War by famously stating, “First they came for the Socialists, and I did not speak out—Because I was not a Socialist.”  The message is simple but powerful: Speak up for the rights of those on the margins of society or you might yourself on the other side.

Court battles over the First Amendment have been frequently fought on behalf of unpopular groups as a means of preventing encroachment upon the rights of the rest.  Justice Stephen Breyer recalled this heritage during argument when he pointed to criminal laws directed at prohibiting communists from advocating for the overthrow of the United States government that had been struck down 60 years ago.  It is difficult to imagine a less popular group than registered sex offenders.  But speaking up for their rights now is critical at a time when the administration has shown its eagerness to brand people with whom it disagrees as “enemies” and to strip rights from politically vulnerable groups like transgender students.  And it has the fringe benefit of being a good strategy for making sure “they” don’t come for you too.

March 2, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (10)

Monday, February 27, 2017

"How Trump's Twitter use could help bring down NC sex offender law"

The title of this post is the catchy headline of this news article providing a summary of today's Supreme Court oral argument in Packingham v. North Carolina, which involves a First Amendment challenge to a North Carolina law a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites.  Here are excerpts from the press account:

A Supreme Court justice pointed to President Trump's use of Twitter during arguments in a challenge to a North Carolina law that forbids registered sex offenders from using social media.

The law, Justice Elena Kagan said, makes it illegal for a group of people to communicate with the president using his favored form of communication. "This has become a crucially important channel of communication," Kagan said.

The justices heard oral arguments Monday in Packingham v. North Carolina.  Lester Packingham is a registered sex offender who posted a statement on Facebook celebrating the dismissal of a traffic ticket.  Police in Durham, N.C., indicted him for breaking the state's 2008 law that bans sex offenders from using social media that allows children to be members, including Facebook, Twitter and Instagram....

Questions from Kagan and the three other liberal justices suggested they are concerned the law overly restricts free speech. It "forecloses some of the most important channels of communication in our society," Justice Sonia Sotomayor said.

Kagan said in addition to blocking a channel of communication with President Trump, the ban also restricts how sex offenders interact with lawmakers and with religious groups. "These sites have become embedded in our culture as a way to exercise constitutional rights," Kagan said.

Senior Deputy Attorney General Robert Montgomery for North Carolina said sex offenders have alternative ways to express their first amendment rights. The law, he said, is a protection for children against sex offenders who have a high rate of repeat offenses....

Conservatives on the court asked few questions.  Chief Justice John Roberts noted the lack of precedent in a case dealing with social media. Justice Samuel Alito said perhaps the law could be narrowed to impact fewer websites.

Amy Howe at SCOTUSblog here has a more fulsome account of the argument under the heading "Justices skeptical about social media restrictions for sex offenders."  This full transcript of the SCOTUS oral argument is available here.

February 27, 2017 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Sunday, February 26, 2017

SCOTUS considering cases involving sentencing and collateral consequences in coming days

This coming week the Supreme Court hears arguments in three cases that ought to be over interest to sentencing fans. Here are the basics of the cases in the order they are to be consider in the next two days, with descriptions and links to argument previews via SCOTUSblog:

Packingham v. North Carolina

Issue: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites — including Facebook, YouTube, and nytimes.com — that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”

Argument preview: Court to consider social media access for sex offenders 

Esquivel-Quintana v. Sessions

Issue: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act — and therefore constitutes grounds for mandatory removal.

Argument preview: Removal of an immigrant for “sexual abuse of a minor” 

Dean v. United States

Issue: Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcher and related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court's discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.

Argument preview: Justices to consider limits of sentencing discretion under advisory guidelines

For all sorts of reasons, Packingham seems likely to get the most attention of this bunch. But Dean could provide to be a sleeper post-Booker case for federal sentencing fans.

February 26, 2017 in Booker in district courts, Collateral consequences, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Saturday, February 25, 2017

Disconcerting review of modern America highlighting impacts of opioid epidemic and mass criminal enforcement

March_2017_CoverA helpful reader highlighted to me this extended article from Commentary by Nicholas Eberstadt that covers a lot of (depressing) ground about modern realities in the United States.  The full title of the piece highlights its themes: "Our Miserable 21st Century: From work to income to health to social mobility, the year 2000 marked the beginning of what has become a distressing era for the United States." I recommend the full article for lots of reasons (especially for those still struggling to figure out why so many folks were inclined to vote for Prez Trump), and here snippets of passages that struck me as particularly interesting for those concerned with modern opioid problem and broader criminal justice realities:

The opioid epidemic of pain pills and heroin that has been ravaging and shortening lives from coast to coast is a new plague for our new century. The terrifying novelty of this particular drug epidemic, of course, is that it has gone (so to speak) “mainstream” this time, effecting breakout from disadvantaged minority communities to Main Street White America. By 2013, according to a 2015 report by the Drug Enforcement Administration, more Americans died from drug overdoses (largely but not wholly opioid abuse) than from either traffic fatalities or guns. The dimensions of the opioid epidemic in the real America are still not fully appreciated within the bubble, where drug use tends to be more carefully limited and recreational. In Dreamland, his harrowing and magisterial account of modern America’s opioid explosion, the journalist Sam Quinones notes in passing that “in one three-month period” just a few years ago, according to the Ohio Department of Health, “fully 11 percent of all Ohioans were prescribed opiates.” And of course many Americans self-medicate with licit or illicit painkillers without doctors’ orders.

In the fall of 2016, Alan Krueger, former chairman of the President’s Council of Economic Advisers, released a study that further refined the picture of the real existing opioid epidemic in America: According to his work, nearly half of all prime working-age male labor-force dropouts — an army now totaling roughly 7 million men — currently take pain medication on a daily basis....

But how did so many millions of un-working men, whose incomes are limited, manage en masse to afford a constant supply of pain medication? Oxycontin is not cheap. As Dreamland carefully explains, one main mechanism today has been the welfare state: more specifically, Medicaid, Uncle Sam’s means-tested health-benefits program.... In 21st-century America, “dependence on government” has thus come to take on an entirely new meaning....

The drop in crime over the past generation has done great things for the general quality of life in much of America. There is one complication from this drama, however, that inhabitants of the bubble may not be aware of, even though it is all too well known to a great many residents of the real America. This is the extraordinary expansion of what some have termed America’s “criminal class” — the population sentenced to prison or convicted of felony offenses — in recent decades. This trend did not begin in our century, but it has taken on breathtaking enormity since the year 2000.

Most well-informed readers know that the U.S. currently has a higher share of its populace in jail or prison than almost any other country on earth, that Barack Obama and others talk of our criminal-justice process as “mass incarceration,” and know that well over 2 million men were in prison or jail in recent years. But only a tiny fraction of all living Americans ever convicted of a felony is actually incarcerated at this very moment. Quite the contrary: Maybe 90 percent of all sentenced felons today are out of confinement and living more or less among us. The reason: the basic arithmetic of sentencing and incarceration in America today. Correctional release and sentenced community supervision (probation and parole) guarantee a steady annual “flow” of convicted felons back into society to augment the very considerable “stock” of felons and ex-felons already there. And this “stock” is by now truly enormous.

One forthcoming demographic study by Sarah Shannon and five other researchers estimates that the cohort of current and former felons in America very nearly reached 20 million by the year 2010. If its estimates are roughly accurate, and if America’s felon population has continued to grow at more or less the same tempo traced out for the years leading up to 2010, we would expect it to surpass 23 million persons by the end of 2016 at the latest. Very rough calculations might therefore suggest that at this writing, America’s population of non-institutionalized adults with a felony conviction somewhere in their past has almost certainly broken the 20 million mark by the end of 2016. A little more rough arithmetic suggests that about 17 million men in our general population have a felony conviction somewhere in their CV. That works out to one of every eight adult males in America today.

We have to use rough estimates here, rather than precise official numbers, because the government does not collect any data at all on the size or socioeconomic circumstances of this population of 20 million, and never has. Amazing as this may sound and scandalous though it may be, America has, at least to date, effectively banished this huge group—a group roughly twice the total size of our illegal-immigrant population and an adult population larger than that in any state but California—to a near-total and seemingly unending statistical invisibility. Our ex-cons are, so to speak, statistical outcasts who live in a darkness our polity does not care enough to illuminate—beyond the scope or interest of public policy, unless and until they next run afoul of the law.

Thus we cannot describe with any precision or certainty what has become of those who make up our “criminal class” after their (latest) sentencing or release. In the most stylized terms, however, we might guess that their odds in the real America are not all that favorable. And when we consider some of the other trends we have already mentioned — employment, health, addiction, welfare dependence — we can see the emergence of a malign new nationwide undertow, pulling downward against social mobility.

February 25, 2017 in Collateral consequences, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (3)

Wednesday, January 25, 2017

"Following the Money of Mass Incarceration"

Money2017

The title of this post is the title of this notable new report and infographic from the folks at the Prison Policy Initiative.  Here is part of the text of the report: 

The cost of imprisonment — including who benefits and who pays — is a major part of the national discussion around criminal justice policy. But prisons and jails are just one piece of the criminal justice system and the amount of media and policy attention that the various players get is not necessarily proportional to their influence.

In this first-of-its-kind report, we find that the system of mass incarceration costs the government and families of justice-involved people at least $182 billion every year. In this report:

• we provide the significant1 costs of our globally unprecedented system of mass incarceration and over-criminalization,

• we give the relative importance of the various parts,

• we highlight some of the under-discussed yet costly parts of the system, and then

• we share all of our sources so that journalists and advocates can build upon our work.

Our goal with this report is to give a hint as to how the criminal justice system works by identifying some of the key stakeholders and quantifying their “stake” in the status quo. Our visualization shows how wide and how deep mass incarceration and over-criminalization have spread into our economy. We find:

• Almost half of the money spent on running the correctional system goes to paying staff. This group is an influential lobby that sometimes prevents reform and whose influence is often protected even when prison populations drop.

• The criminal justice system is overwhelmingly a public system, with private prison companies acting only as extensions of the public system. The government payroll for corrections employees is over 100 times higher than the private prison industry’s profits.

• Despite the fact that the Constitution requires counsel to be appointed for defendants unable to afford legal representation, the system only spends $4.5 billion on this right. And over the last decade, states have been reducing this figure even as caseloads have grown.

• Private companies that supply goods to the prison commissary or provide telephone service for correctional facilities bring in almost as much money ($2.9 billion) as governments pay private companies ($3.9 billion) to operate private prisons.

• Feeding and providing health care for 2.3 million people — a population larger than that of 15 different states — is expensive.

This report and infographic are a first step toward better understanding who benefits from mass incarceration and who might be resistant to reform. We have no doubt that we missed some costs, and we did not include some costs because they are relatively small in the big picture or are currently unknowable. But, by following the money, one can see that private prison corporations aren’t the only ones who benefit from mass incarceration.

Some of the lesser-known major players in the system of mass incarceration and over-criminalization are:

• Bail bond companies that collect $1.4 billion in nonrefundable fees from defendants and their families. The industry also actively works to block reforms that threaten its profits, even if reforms could prevent people from being detained in jail because of their poverty.

• Specialized phone companies that win monopoly contracts and charge families up to $24.95 for a 15-minute phone call.

• Commissary vendors that sell goods to incarcerated people — who rely largely on money sent by loved ones — is an even larger industry that brings in $1.6 billion a year.

A graphic like this shows the relative economic cost of different parts of mass incarceration, but it can also obscure the fact that we don’t have a single monolithic system. Instead, we have a federal system, 50 state systems, and thousands of local government systems. Sometimes these systems work together, although often they do not; and looking at just the national picture can obscure the importance of state and local policy decisions. For example, while state government spending makes up the majority (57%) of corrections costs, local governments make up almost a third (32%). Local governments are largely enforcing state law, and local discretionary arrest and bail policies can have tremendous influence on both the state budget and justice outcomes. For example, more than half ($13.6 billion) of the cost of running local jails is spent detaining people who have not been convicted.

To be sure, there are ideological as well as economic reasons for mass incarceration and over-criminalization.  But at this moment, when crime is near record lows and there is increasing attention to the role of privatization in the justice system, we need a far more expansive view of how our criminal justice system works, whom it hurts, and whom it really serves.  If we are to make our society safer and stronger, we’ll need to be making far smarter investments than we are today.

January 25, 2017 in Collateral consequences, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Tuesday, December 20, 2016

"Free the Vote: Unlocking Democracy in the Cells and on the Streets"

The title of this post is the title of this new short publication from the NAACP Legal Defense and Educational Fund, Inc. (LDF) and The Sentencing Project.  This webpage review the publication's contents and mission:

The NAACP Legal Defense and Educational Fund, Inc. (LDF) and The Sentencing Project have issued Free the Vote: Unlocking Democracy in the Cells and on the Streets, reporting on the racially discriminatory and ever-growing problem of felony disenfranchisement. The denial or abridgement of the right to vote for 6.1 million people with felony criminal convictions is a stain on our democracy.

The millions of Americans who are currently prevented from voting due to felony convictions are more than twice the difference of the popular vote in the contentious 2016 presidential election. Particularly striking is that one in 13 Black Americans of voting age is disenfranchised because of a felony conviction—a rate four times greater than non-Black Americans.

The issue is compounded by the fact that often, for redistricting purposes, incarcerated people are counted as residents of largely white rural areas where prisons are predominately located (i.e., prison-based gerrymandering). Thus, Black urban communities, from which the incarcerated population disproportionately comes, lose the critical voices of persons with felony convictions, who not only are denied a fundamental stake in the democratic process, but also who could provide insight into issues of criminal justice reform, employment, and educational opportunities.

“Felony disenfranchisement laws are shamefully nothing new,” said Leah Aden, Senior Counsel at LDF. “In the era following slavery disenfranchisement laws were tailored to limit the political power of newly-freed Black people. These racially discriminatory laws gained steam in recent decades as the failed ‘war on drugs’ and “tough on crime” policies incarcerated millions of Black and Latino Americans, continuing to weaken the voting power of communities of color.”

“Disenfranchisement policies are fundamentally at odds both with democracy and with the need to support individuals in their reentry from prison,” says Marc Mauer, Executive Director of The Sentencing Project. “By extending the right to vote to people in prison and with criminal records, we can both build a more inclusive democracy and make our communities safer.”

Among its findings, Free the Vote highlights:

◾ The impact of felony disenfranchisement laws on Black voting strength at the state level. In Florida, for example, more people with felony convictions are disenfranchised than in any other state, with Black disenfranchisement rates exceeding a fifth (21%) of the adult Black voting age population. Similar data comes out of other states such as Kentucky, Tennessee, and Virginia.

◾ Prison-based gerrymandering exacerbates the negative effects of felony disenfranchisement. In the city of Anamosa, Iowa, a councilman from a prison community was elected to office from a ward which, per the Census, had almost 1,400 residents—about the same as the other three wards in town. But 1,300 of these “residents” were prisoners in the Anamosa State Penitentiary. Once those prisoners were subtracted, the ward had fewer than 60 actual residents.

◾ Only Maine and Vermont do not restrict voting based on a felony conviction. Both states allow individuals to vote from prison via absentee ballot. Recently, there have been successful efforts to reform felony disenfranchisement policies in Maryland, Virginia, and California.

◾ Following the historic and substantial participation of people of color in the 2008 and 2012 elections, felony disenfranchisement laws that curb voting power remain a barrier to expanding America’s voting population. These laws discourage future generations from exercising the learned behavior of voting and receiving the benefits of having their voices reflected in the political process.

LDF and The Sentencing Project aim to not only ameliorate felony disfranchisement laws, but also to eradicate them. Together, we can free the vote for people who have been made vulnerable by harmful and discriminatory laws and in turn, strengthen our collective democracy.

December 20, 2016 in Collateral consequences, Elections and sentencing issues in political debates, Prisons and prisoners, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

Thursday, December 01, 2016

Fourth Circuit panel rejects North Carolina's efforts to defend constitutionally hinky provisions of state sex offender rules

The Fourth Circuit handed down a notable opinion yesterday in Doe #1 v. Cooper, No. 16-6026 (4th Cir. Nov. 30, 2016) (available here).  In this ruling, the panel rejects arguments made on appeal by the state of North Carolina to try to overturn a district court's ruling about the unconstitutionality of key provisions of the state's sex offender laws.  Here is how the unanimous opinion gets started:

The State of North Carolina requires persons convicted of certain reportable sex offenses to register as “sex offenders.”  See N.C. Gen. Stat. § 14-208.6(4); id. § 14-208.7(a). For persons convicted of a subset of those reportable sex offenses, North Carolina restricts their movement relative to certain locations where minors may be present. See id. § 14-208.18(a) (2015).

John Does #1 through #5 (collectively, the “Does”) challenged these statutory restrictions as either overbroad, under the First Amendment to the United States Constitution, or unconstitutionally vague, under the Fourteenth Amendment.  The district court agreed with the Does as to two subsections of the statute and permanently enjoined enforcement of section 14- 208.18(a)(2) and section 14-208.18(a)(3).  For the reasons set out below, we affirm the judgment of the district court.

Among many notable passages in this opinion, I found especially telling some of the discussion of the state's failure to provide any serious data or other evidence to support the broad restrictions on sex offender movements enacted into NC laws:

The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with a renewed appeal to anecdotal case law, as well as to “logic and common sense.” Appellants’ Suppl. Opening Br. 11.  But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof....

In fact, the State’s own evidence belies its appeal to “common sense” as an appropriate substitute for evidence.  In its brief, the State cites three North Carolina cases... [but] the State fails to explain how three cases, representing three individuals -- out of more than 20,000 registered North Carolina sex offenders -- provide a sufficient basis to justify subsection (a)(2)’s sweeping restrictions.

December 1, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

Sunday, November 13, 2016

"Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?"

The title of this post is the title of this notable new essay authored by Nora Demleitner. Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York.  With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start.  The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities.  A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime.  These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment.  Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration.  They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children.  They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country.  On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them.  The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision.  Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

November 13, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Tuesday, November 08, 2016

"How Do You Vote in Prison and Jail? For the most part, you don’t."

The title of this post is the headline of this new Slate article which serves as a fitting final Election Day post before I gear up to post about Election Day results.  Here are excerpts:

People who are incarcerated find creative ways to do things the rest of us don’t have to think much about.... But how do they vote in elections?

Well, they mostly don’t. In almost every state, the law states that incarcerated people are not allowed to cast ballots. In fact, most states even impose voting restrictions on former prisoners who are out on parole, and a few states — Kentucky, Florida, Iowa, and Virginia — have lifetime disenfranchisement laws for anyone who has ever been to prison. These laws combine to prohibit an estimated 6.1 million Americans from voting, per one October 2016 estimation.  There is a movement among criminal justice advocates to restore voting rights for felons, but the politics of reform on this issue are notoriously complicated and again, vary state by state.

There are two states that currently afford prison inmates the right to vote while in confinement: Maine and Vermont.  Inmates in both states vote through absentee ballots rather than on-site polling places. Utah, New Hampshire, and Massachusetts also used to allow prisoners to vote, but they don’t anymore. In Massachusetts the change came after a group of inmates tried to form a political action committee in 1997 pressing for better health care and less expensive phone calls, leading then-Gov. Paul Cellucci to propose a constitutional amendment to prohibit inmate voting that passed in 2000.

So that’s prisons.  Local jails are a different story, because most of the people confined in them on any given day are in pretrial detention — meaning they haven’t yet been convicted of whatever crime they’ve been arrested for — or they’ve been convicted of misdemeanors. While there are a handful of states that ban people serving time for misdemeanors from voting, it’s fair to say that most jail inmates and detainees — roughly 750,000 Americans at any given time — are legally allowed to cast ballots as long as they are otherwise eligible. (They will also most likely do so via absentee ballots, though it’s technically possible for jails to have polling places on-site.)

That doesn’t mean a lot of them end up actually doing it, though there are jails around the country that make a special effort to encourage inmates to exercise their right. In the Cook County facility in Chicago, the largest jail in America, a voter drive effort organized this year by lawyer Michelle Mbekeani-Wiley has resulted in about 1,000 new registered voters and 1,600 absentee ballots cast....

Other jails that are known for helping inmates exercise their right to vote include those in Washington, D.C., Philadelphia, and San Francisco. In Suffolk County, Massachusetts, volunteers from the League of Women Voters this year helped register about 300 inmates (out of a total jail population of about 1,600); in New York, jail officials distributed voter registration forms and informational fliers in the facilities’ public areas, including law libraries and barber shops. Such efforts are outliers, however, and typically depend on the initiative of outside advocacy groups.

November 8, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (1)

Monday, November 07, 2016

"Global Overview of Sex Offender Registration and Notification Systems"

A helpful reader altered me to this interesting publication with the same title as this post.  The publication was produced by the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (known as SMART). Here is its introduction:

Sex offender registration and notification systems have proliferated around the world over the last twenty years. After the United States’ first national-level sex offender registration law was passed in 1994, 29 additional countries have enacted sex offender registration laws.  A handful of these systems are more analogous to what would be considered a CHRI (criminal history record information) database as opposed to a ‘registry’, but are included in this overview for the sake of thoroughness.

The following countries have laws governing sex offender registration systems at the national and/or provincial level: Argentina, Australia, Bahamas, Canada, Chile, Cyprus, France, Germany, India, the Republic of Ireland, Jamaica, Kenya, Maldives, Malta, New Zealand, Nigeria, Portugal, South Africa, South Korea, Spain, Taiwan, Trinidad & Tobago, United Kingdom and Commonwealth Nations (Bermuda, Gibraltar, Guernsey, Isle of Man, Jersey, and the Pitcairn Islands), and the United States.

The following countries have considered or are considering sex offender registration and notification laws, but such laws have not yet passed: Austria, Barbados, Belgium, Belize, Cayman Islands, Fiji, Finland, Hong Kong, Israel, Malaysia, Poland, Samoa, St. Lucia, Switzerland, United Arab Emirates, and Zimbabwe.

What follows in this SMART Summary is a brief snapshot of the sex offender registration and notification laws in each of the countries that have enacted such provisions, sequenced in chronological order of the first country in a continent or region to implement such laws.  Statutory references, where available, are provided. In addition, the footnotes contain additional references which might assist the reader in finding out more detailed information about the countries’ sex offender registration and notification provisions.

As this is a rapidly developing area of the law, and many statutes have not been officially translated into English, the reader is encouraged to check for the current versions of any nation’s provisions and consult official translations, rather than relying solely on this SMART Summary.

November 7, 2016 in Collateral consequences, Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (6)

Saturday, November 05, 2016

"Disenfranchisement and Over-Incarceration"

The title of this post is the title of this new short article authored by Murat Mungan and now available via SSRN. Here is the abstract:

Disenfranchisement laws in many states prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group. In particular, disenfranchisement laws may cause the political process to push the sentences for criminal offenses upwards.

In this article, I construct a simple model with elected law enforcers who propose sentences to maximize their likelihood of election. I show, with the help of the median voter theorem, that even without disenfranchisement, elections typically generate over-incarceration, i.e. longer than optimal sentences.

Disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people's criminal tendencies, i.e. when criminals vote less frequently than non-criminals.

November 5, 2016 in Collateral consequences, Elections and sentencing issues in political debates | Permalink | Comments (1)