Wednesday, May 01, 2013
New big Human Rights Watch report assails placing juve sex offenders on registriesAs reported in this new AP piece, Human Rights Watch today released a big report urging governments to stop placing juveniles on publicly accessible sex-offender registries. Here are parts of the AP account of the report and reactions thereto:
Human Rights Watch said its report, being released Wednesday, is the most comprehensive examination to date of the impact that registry laws have on juvenile sex offenders. "Of course anyone responsible for a sexual assault should be held accountable," says lawyer Nicole Pittman, the report's author. "But punishment should fit both the offense and the offender, and placing children who commit sex offenses on a public registry — often for life — can cause more harm than good."
The report says the laws, which require placing offenders' photographs and personal information on online registries, often make them targets for harassment and violence. In two cases cited in the report, youths were convicted of sex offenses at 12 and committed suicide at 17 due to what their mothers said was despair related to the registries. One of the boys, from Flint, Mich., killed himself even after being removed from the list....
The registry laws generally include restrictions that prohibit offenders from living within a designated distance of places where children gather, such as schools and playgrounds. "They often struggle to continue their education," Human Rights Watch said. "Many have a hard time finding — and keeping — a job, or a home."
According to Human Rights Watch, 747,000 adult and youth sex offenders were registered nationwide as of 2011. The organization said it was unable to quantify how many were juveniles, but it interviewed 281 youth sex offenders while preparing the report, as well as defense attorneys, prosecutors, judges, law enforcement officials and victims of child-on-child sexual assault....
Under a federal law, the Adam Walsh Act, states are required to include certain juvenile sex offenders as young as 14 on their registries. Some states have balked at complying with this requirement, even at the price of losing some federal criminal-justice funding. Other states have provisions tougher than the federal act, subjecting children younger than 14 to the possibility of 25-year or lifetime listings on public registries.
According to Pittman, it's fairly common in about 35 states for juveniles to be placed on public sex-offender registries. Other states take that step only for juveniles convicted of sex offenses in adult court, she said, while a few place juvenile sex offenders only on registries that are not accessible by the public.
The report recommends that all juveniles be exempted from the public registration laws, citing research suggesting they are less likely to reoffend than adult sex offenders. Short of a full exemption, the report says, registration policies for juveniles should be tailored to account for the nature of their offense, the risk they pose to public safety and their potential for rehabilitation....
Scott Burns, executive director of the National District Attorneys Association, said his organization would not support a blanket exemption of juveniles from the sex-offender registries. But he said prosecutors should have the discretion to require registration or not, based upon each case.
"If a 15-year-old 'sexted' a picture of him or herself, it is safe to say that prosecutors would take appropriate steps to ensure that person isn't required to become a registered sex offender for life," Burns said in an e-mail. "If a 17-year-old had committed multiple violent sex offenses against children, registration as a sex offender would most likely be recommended."...
Mai Fernandez, of the center for victims of crime, said the entire sex-offender system — covering both juveniles and adults — is flawed and needs an overhaul. "If you know a young person living in your neighborhood has raped someone, there are things that should kick in — tighter supervision, more services — to be sure that child doesn't commit that crime again," Fernandez said. "That's more important than the registry."
The full 111-page HRW report, which is titled "Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US," can be accessed via this link in both complete pdf and on-line form. Here is how that page describes the report:
This 111-page report details the harm public registration laws cause for youth sex offenders. The laws, which can apply for decades or even a lifetime and are layered on top of time in prison or juvenile detention, require placing offenders’ personal information on online registries, often making them targets for harassment, humiliation, and even violence. The laws also severely restrict where, and with whom, youth sex offenders may live, work, attend school, or even spend time.
May 1, 2013 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack
Monday, April 22, 2013
"Defensible Disenfranchisement"The title of this post is the title of this newly posted article by Mary Sigler now available via SSRN. Here is the abstract:
As many commentators have noted, the practice of felon disenfranchisement — denying the right to vote to some or all of those convicted of a felony — is widespread and familiar, but, at least in the modern context, also short of defenders. Indeed, apart from a handful of vocal public officials, a case for disenfranchisement is rarely articulated at all. Instead, critics have occupied the field largely unchallenged, arguing that felon disenfranchisement is illiberal and undemocratic, counterproductive, racist, and, in the United States, unconstitutional.
Against these claims, this paper outlines a form of felon disenfranchisement that is consistent with liberal-democratic values. In particular, I argue that felon disenfranchisement is best conceptualized not as a form or aspect of punishment but as a means of regulating electoral eligibility. On this view, felons render themselves liable to disenfranchisement because they have violated the civic trust that makes liberal democracy possible. Although the long history of disenfranchisement features extreme forms of exclusion and reflects a range of odious and unconvincing rationales, a more defensible version, grounded in the liberal and republican values of the Anglo-American tradition, would apply to a narrower range of offenders and include a meaningful opportunity for restoration. In this way, the temporary exclusion of serious offenders from the electorate has the potential to affirm, rather than betray, our commitment to liberal-democratic community.
Thursday, March 14, 2013
Third Circuit panel discusses at length all the problems with SORNAThe start of the Third Circuit panel's lengthy opinion today in US v. Reynolds, No. 08-4747 (3d Cir. Mar. 14, 2013) (available here), explains the current mess that is certain federal sex offender registration laws better than I could. Here goes (with footnotes removed):
This case returns to us after the Supreme Court’s review in Reynolds v. United States, 132 S. Ct. 975 (2012). Remand requires that we reach the merits of Reynolds’s claim that the regulatory rule upon which his indictment was based was promulgated in violation of the Administrative Procedure Act (“APA”). This claim gives rise to three questions: (1) What is the appropriate standard of review of an agency’s assertion of good cause in waiving the APA’s notice and comment requirements? (2) Did the Attorney General have good cause to waive these requirements in promulgating a rule governing the retroactivity of the Sex Offender and Registration Notification Act’s (“SORNA”) registration requirements? (3) If the Attorney General lacked good cause to waive the requirements, was Reynolds prejudiced by the failure to comply with the APA’s notice and comment requirements?
The courts of appeals are divided on each of these questions. On the first question, the Fifth and Eleventh Circuits have determined that the arbitrary and capricious standard is the appropriate standard for reviewing the Attorney General’s actions, the Fourth and Sixth Circuits have not stated a standard but appear to use de novo review, and the Ninth Circuit has explicitly avoided the question. On the second question, the Fourth and Eleventh Circuits have held that the Attorney General had good cause to waive notice and comment, while the Fifth, Sixth, and Ninth Circuits have held that he did not. On the final question, the Fifth Circuit has held that the Attorney General’s lack of good cause does not prejudice defendants, while the Sixth Circuit has held that it is prejudicial.
We conclude that we need not decide the appropriate standard of review today because the Attorney General’s assertion of good cause cannot withstand review even under the most deferential standard available. We also conclude that the Attorney General’s lack of good cause is prejudicial to Reynolds. Accordingly, we will vacate Reynolds’ conviction.
Wednesday, February 20, 2013
Does Chaidez expand the reach of Padilla even while rejecting its retroactive application?As noted in this prior post, the Supreme Court handed down four criminal justice decisions today. The most notable and potentially consequential ruling came in Chaidez v. US (available here) in which the Court, per Justice Kagan representing seven votes and speaking for six Justices (with Justice Thomas concurring separately), ruled that the Supreme Court's 2010 decision Sixth Amendment decision in Padilla is not to be applied retroactively to cases which were final when Padilla was handed down.
Upon first blush, this ruling might seem a big loss for defendants, and it is for those like petitioner Roselva Chaidez, who hoped to undo her guilty plea because long ago she was poorly advised by her lawyer concerning the immigration consequences of her conviction. But for those in the defense bar eager to see the Padilla Sixth Amendment rule expanded to cover other forms of collateral consequences, I think there more to like than dislike in Chaidez. Throughout her opinion for the Court, Justice Kagan seems careful to avoid stating or even suggesting that Padilla is only about the unique "collateral consequence" of deportation. Especially notable in this regard is a phrase on pp. 10-11 of the slip opinion which seems to state that "Padilla’s holding [is that] the failure to advise about a non-criminal consequence could violate the Sixth Amendment" (my emphasis added).
Though I have not followed closely the application of Padilla in lower courts, my sense is that at least a few courts have been keen to hold or suggest that the Padilla Sixth Amendment rule applies only to the unique collateral consequence of deportation. After Chaidez, it should be at least a bit harder for lower courts to limit Padilla's prospective application to only immigration consequences.
SCOTUS decides Padilla ruling on IAC claims is not retroactive in Chaidez (and lots of other CJ stuff)Sentencing and habeas fans have some important SCOTUS action today (after yesterday's Fourth Amendment fun). Most significantly, as reported effectively via SCOTUSblog:
We have [an] opinion ... in Chaidez v. U.S. The opinion is by Kagan. Seventh Circuit is affirmed. The Court's decision in Padilla v. KY is not retroactive for cases pending on direct review when Padilla was decided. It is seven to two. Justice Thomas concurs in the judgment only. Justice Sotomayor dissents, joined by Ginsburg....
Padilla required defense attorneys to inform defendants about the possible effects of a guilty plea on their immigration status. The Chaidez opinion can be found here. So Padilla does not apply retroactively to cases that are already final on direct review.
There are lots more criminal ruling coming over the wire this morning as well, and here are snippets (and links) to the other criminal justice decisions handed down by SCOTUS today:
As the headline to this post suggests, for sentencing fans, I believe Chaidez is the most notable and consequential of the quartet of criminal justice rulings from SCOTUS this morning. But, after I likely spend much of the day reading all of these opinions, I will report on anything I find within this big batch of mixed results that might change my view.
The second case is Evans v. Michigan. Decision is by Justice Sotomayor, vote is eight to one, with Alito dissenting. Michigan Supreme Court is reversed. Double Jeopardy Clause bars retrial for Evans's crime. The judge had directed a verdict of not guilty during the trial based on a legal error. That kind of acquittal, the Court says today, bars retrial. The opinion in Evans is up here....
We have the third opinion, in Johnson v. Williams. The opinion is by Justice Alito. The result is unanimous, although Scalia concurs in judgment only. The Ninth Circuit is reversed. Here is the holding: Under the habeas statute, when a state court rules against a defendant in an opinion that rejects some of the claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Read Johnson v. Williams here.
We have the fourth opinion, in Henderson v. United States. Justice Breyer has the opinion. The decision of the Fifth Circuit is reversed. The vote is six to three; Scalia dissents, joined by Thomas and Alito. The Court holds that regardless of whether a legal question was settled or unsettled at the time of trial, an error is plain within the meaning of the federal rules as long as the error was plain at the time of appellate review. The Henderson opinion is here.
Wednesday, January 23, 2013
Seventh Circuit finds unconstitutional Indiana statute prohibiting sex offenders from social mediaThe Seventh Circuit today handed down a significant new media and sex offender First Amendment ruling in Doe v. Prosecutor, Marion County, Indiana, No. 12-2512 (7th Cir. Jan 23, 2013) (available here). Here is how the 20-page unanimous panel ruling gets started:
A recent Indiana statute prohibits most registered sex offenders from using social networking websites,instant messaging services, and chat programs. John Doe, on behalf of a class of similarly situated sex offenders, challenges this law on First Amendment grounds. We reverse the district court and hold that the law as drafted is unconstitutional. Though content neutral, we conclude that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.
I am pretty sure this is the first significant circuit court constitutional ruling on this kind of state sex offender internet prohibition, and a quick skim suggests that this Doe ruling is a fairly thorough and thoughtful review of the challenging legal and policy issues raised in this setting. I would guess that Indiana will seriously consider seeking en banc review and/or a cert petition in an effort to preserve its statute, but I would also predict that the Justice may think these issues ought to percolate more before granting review.
UPDATE: This Politco piece about the Doe ruling provides some information about similar rulings and a statement from the Indiana AG in reaction to the decision:
A similar law in Louisiana was thrown out in February of last year, though the state then passed a revised law requiring sex offenders to disclose their status on social networks, and a Nebraska judge in 2009 blocked parts of a sex offender law that restricted Internet access.
Indiana officials did not know Wednesday whether they would appeal the decision. “The Indiana Legislature made a policy decision in 2008 that the state’s reasonable interests in protecting children from predators outweighed the interest of allowing convicted sex offenders to troll social media for information. We have worked with county sheriffs and prosecutors in our defense of the legal challenges to these protections of our children, and we will need to review this 7th circuit ruling to determine the state’s next steps,” Indiana Attorney General Greg Zoeller said in a statement.
Monday, December 10, 2012
Distinguishing Padilla, Pennsylvania Supreme Court finds no Sixth Amendment problem with lack of pension plea adviceAn interesting case involving a plea that led to the loss of a pension for a school teacher has now led to an interesting set of opinions from the Pennsylvania Supreme Court in Commonwealth v. Abraham, No. 36 WAP 2010 (Pa. Dec. 10, 2012) (links to majority opinion, concurrence one and two, and dissent). Here is the set up via the start of the majority opinion:
Joseph Abraham was a high school teacher in the Pittsburgh public school system. In 2008, one of his students alleged he offered her $300 to have sex with him and touched her buttocks; she further stated he gave her one of his business cards and wrote his private cell phone number on it. After these allegations surfaced, appellee, who was 67 years old, retired from teaching and began receiving pension payments of $1,500 per month. Shortly after appellee retired, he was charged for the above incident. Pursuant to a negotiated agreement, appellee pled guilty to corruption of a minor and indecent assault of a person less than 16 years of age. He was sentenced to probation; no direct appeal was filed.
Because the crime of indecent assault of a person less than 16 years of age is one of the enumerated offenses in the Public Employee Pension Forfeiture Act (PEPFA), 43 P.S. §§ 1311-1315, appellee forfeited his pension when he pled guilty to this charge. He filed a motion to withdraw his plea nunc pro tunc, alleging he was not informed of his right to seek withdrawal of his plea or of the possible sentences he faced. The trial court denied the motion.
Appellee filed a timely PCRA petition alleging plea counsel was ineffective for failing to inform him he would forfeit his pension upon pleading guilty. The PCRA court, after giving the required notice pursuant to Pa.R.Crim.P. 907(1), dismissed the petition without a hearing. In its Pa.R.A.P. 1925(a) opinion, the PCRA court stated the loss of appellee’s pension was an issue collateral to the plea; thus, under Commonwealth v. Frometa, 555 A.2d 92, 93 (Pa. 1989), plea counsel’s failure to explain this consequence to appellee was not relevant to whether his plea was knowing and voluntary. Accordingly, the PCRA court held counsel was not ineffective.
On appeal, the Superior Court reversed, holding a recent United States Supreme Court decision, Padilla v. Kentucky, 130 S.Ct. 1473, 1483 (2010), abrogated Frometa, which held deportation was collateral consequence of a guilty plea and therefore did not need to be explained to the defendant. The Superior Court noted Padilla, which also dealt with deportation following entry of a guilty plea, held such consequences were so intimately connected with the criminal process that a direct versus collateral consequences analysis was ill suited to evaluate an ineffectiveness claim arising in this context. Commonwealth v. Abraham, 996 A.2d 1090, 1092 (Pa. Super. 2010)....
We granted the Commonwealth’s Petition for Allowance of Appeal to determine:
(1) Whether, in light of Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473 (2010), the distinction in Pennsylvania between direct and collateral consequences to define the scope of constitutionally “reasonable and professional assistance” required under Strickland v. Washington, 486 U.S. 668 (1984) is appropriate?
(2) If so, whether the forfeiture of a pension that stems from a public school teacher’s negotiated plea to crimes committed in the scope of his employment is a collateral consequence of a criminal conviction which relieves counsel from any affirmative duty to investigate and advise?
The various opinions reach various in Abraham reach various conclusions on these questions, but here is the heart of the analysis of the majority:
Not getting money as a consequence of breaching an employment contract cannot be equated with being forced to leave the country. Based on PEPFA’s aim, procedure, and consequences, we cannot conclude forfeiture of an employment benefit is so enmeshed in the criminal process that it cannot be subjected to a direct versus collateral consequences analysis. Accordingly, we hold Padilla did not abrogate application of such analysis in cases that do not involve deportation...
Our assessment of the above factors leads us to conclude PEPFA’s pension forfeiture provisions are not so punitive in force or effect as to negate the legislative intent that it be a civil, remedial provision. PEPFA is not punitive, and is thus a collateral consequence of appellee’s guilty plea.
Because counsel cannot be deemed ineffective for failing to advise a defendant regarding the collateral consequences of a plea, appellee’s ineffectiveness claim fails. Therefore, we reverse the order of the Superior Court granting appellee a PCRA hearing on the issue of prejudice, and we remand for reinstatement of the PCRA court’s order denying appellee relief.
Wednesday, November 07, 2012
California voters approve new sex offender law, parts of which get swiftly blocked by federal judgeI have not closely followed the particulars of Proposition 35 in California, a human trafficking ballot initiative which generated limited debate or controversy before election day. But, as reported in this new piece from Wired, the initiative received overwhleming support yesterday and today was partially block by a federal judge. Here are the details:
Immediately following the passage of a California proposition that would dramatically curtail the online, First Amendment rights of registered sex offenders, two civil rights groups filed a lawsuit to block parts of the overwhelmingly approved measure.
Proposition 35, which passed with 81 percent of the vote Tuesday, would require that anyone who is a registered sex offender — including people with misdemeanor offenses such as indecent exposure and whose offenses were not related to activity on the internet — would have to turn over to law enforcement a list of all identifiers they use online as well as a list of service providers they use.
The Californians Against Sexual Exploitation Act would force sex offenders to fork over to law enforcement their e-mail addresses, user and screen names, or any other identifier they used for instant messaging, for social networking sites or at online forums and in internet chat rooms.
The American Civil Liberties Union and the Electronic Frontier Foundation, which filed their suit (.pdf) on behalf of two registered sex offenders, say that although the measure is vaguely worded, in practice it likely means that registered sex offenders would have to provide user and screen names that they use for participation in online political discussion groups, forums about medical conditions, and even the comment sections of online newspapers and blogs....
The lawsuit, filed in San Francisco federal court, is demanding that a judge immediately block the measure’s internet-reporting provisions.... Michael Risher, an ACLU attorney, said Californians should be concerned that even though the bill only affects registered sex offenders now, the law creates a slippery slope for the same requirements to be applied to others.
He points, for example, to a California DNA-collection law that has expanded dramatically beyond the people it first targeted. Initially, the law required only those convicted of sex offenses and serious felonies to provide authorities with a DNA sample to be included in a state and federal database. But in 2004, this expanded to anyone convicted of a felony, and in 2009, to anyone simply arrested for a felony....
The measure would currently affect some 73,000 sex offenders registered in California, but the law also requires those convicted of human trafficking to register as sex offenders, thus widening the pool of people affected.
UPDATE: Citing First Amendment concerns, U.S. District Judge Thelton Henderson in San Francisco agreed with the plaintiffs, and late Wednesday tentatively blocked enforcement of the measure (.pdf) pending further litigation.
Sunday, November 04, 2012
Timely New York Times piece on felon disenfranchisementToday's New York Times, the last one before the latest "most important election ever," has this effective editorial headlined "Wrongly Turning Away Ex-Offenders." Here are excerpts:
The United States maintains a shortsighted and punitive set of laws, some of them dating back to Reconstruction, denying the vote to people who have committed felonies. They will bar about 5.85 million people from voting in this year’s election.
In the states with the most draconian policies — including Alabama, Florida, Kentucky, Mississippi and Virginia — more than 7 percent of the adult population is barred from the polls, sometimes for life. Nationally, nearly half of those affected have completed their sentences, including parole or probation.
Policies that deny voting rights to people who have paid their debt to society offend fundamental tenets of democracy. But the problem is made even worse by state and local election officials so poorly informed about the law that they misinform or turn away people who have a legal right to vote....
A 2005 study by the Sentencing Project, a Washington research and advocacy group, found that 37 percent of public officials surveyed in 10 states either misstated a central provision of the voter eligibility law or were unsure about what the law said. Disenfranchisement and restoration policies represent a kind of “crazy quilt” of strictures that differ not just among states, but among counties, cities and towns as well. Some states even ban people convicted of misdemeanors from voting. With so much confusion among those who administer the laws, it is no surprise that people who are legally entitled to vote either don’t try out of fear that they would be committing a crime or are wrongly turned away.
Wednesday, October 31, 2012
Split federal court ruling on local Halloween sex offender ordinance in CaliforniaAs reported in this local article, headlined "Judge temporarily blocks part of Simi Valley Halloween sex offender law," a notable constitutional lawsuit resulted in a split outcome in California federal court. Here are the details:
A federal judge Monday temporarily blocked enforcement of a key provision of Simi Valley's new Halloween sex offender law but left the rest of the ordinance intact. U.S. District Judge Percy Anderson's ruling came days before the holiday on Wednesday.
Anderson temporarily blocked the city from requiring its several dozen convicted child sex offenders listed on the Megan's Law website to post signs on their front doors on Halloween saying: "No candy or treats at this residence."
But Anderson let stand requirements that the offenders refrain from opening their doors to trick-or-treating children and decorating the outside of their homes or front lawns with Halloween ornaments. The convicts also must turn off outdoor lighting on their properties from 5 p.m. to midnight Wednesday.
Attorney Janice Bellucci, who last month filed a lawsuit saying the law was unconstitutional, said she was pleased with the ruling even though she had sought to have enforcement of the entire ordinance temporarily blocked pending the outcome of the lawsuit.
Simi Valley City Attorney Marjorie Baxter said the ruling was "a big victory on the majority of the ordinance." The Simi Valley City Council on Sept. 10 enacted the law — the only one of its kind in Ventura County — to try to prevent sex offenders from having contact with trick-or-treating children. It was championed by Mayor Bob Huber, a lawyer who is seeking re-election Nov. 6.
Bellucci, president of the board of a group called California Reform Sex Offender Laws, filed the suit Sept. 28 on behalf of five registered sex offenders, three of their spouses and two of their children, all Simi Valley residents. It says the law violates the First and 14th Amendments of the Constitution because it "suppresses and unduly chills protected speech and expression."
Private attorneys representing the city in the lawsuit disagree. "Convicted child molesters have no constitutionally protected right to hand out candy at Halloween," they said in court papers. "Children, on the other hand, do have a constitutionally protected right to be safe from sexual assault."
I find intriguing the city's assertion that children have a "constitutionally protected right to be safe from sexual assault," in part because taking that claim seriously could subject the city to liability if and whenever the city failed to keep children safe from sexual assault in other settings.
Recent related posts:
- Sex offenders claim First Amendment violated by local Halloween ordinance targeting them
- More on sex offenders' First Amendment challenge to local halloween challenge in California
Thursday, October 25, 2012
The most (unsurprisingly) ignored potential voting group: former felonsThis Reuters article, headlined "U.S. felons a potentially powerful yet shunned voting bloc," spotlights that there is one notable group of voters who have not gotten any love or attention this election season. Here are excerpts from this piece:
Felons could account for up to 10 percent of the roughly 130 million Americans expected to vote in the November 6 election, more than enough to affect the razor-thin margins that could determine the outcome. But as in years past, neither Democrats nor Republicans are doing much to reach out to them.
"Criminals are not a popular constituency," says James Hamm, 64, who spent 17 years in prison in Arizona for a drug-related homicide and now heads an inmate advocacy group with his wife, a retired judge. "Politicians don't want to say, 'Hey, I have the backing of people who committed crimes.'"
Still, both presidential campaigns have reason to be attentive to the estimated 13.4 million felons who are eligible to vote.
Felons traditionally vote Democratic, says Christopher Uggen, a University of Minnesota sociologist, who co-authored a 2006 book, "Locked Out: Felony Disenfranchisement and American Democracy." That is because felons come disproportionately from groups that align with Democrats, such as minorities, the poor and urban residents. In this group, Uggen says, "you aren't going to find too many Mitt Romney supporters."
A 2010 study that Uggen participated in found that just one in five felons who are eligible to vote actually do so, most mistakenly believing they are not. Myriad state laws that take different approaches to restoring felons' voting rights contribute to the confusion....In 38 states, most felons automatically regain the right to vote once they complete their sentences, according to the National Conference of State Legislatures. Felons in others states must not only complete their sentences but wait a certain amount of time before they can again cast ballots. In Maine and Vermont, felons never forfeit their right to vote. In Florida, Iowa, Kentucky and Virginia, felons are barred from voting unless the governor decides otherwise....
"Studies show that the recidivism rate for felons goes down significantly when they are given back their basic civil rights, including the right to vote," said Ron Bilbao of the ACLU in Florida. "The governor went in the wrong direction."
Marc Mauer, executive director of the Sentencing Project, a nonprofit advocacy group for criminal justice, said ex-inmates are generally ignored when it comes to voting. "There simply isn't a lot of encouragement for them to even register," said Mauer. "If we believe everyone should vote, we shouldn't put character conditions on it."
Wednesday, October 24, 2012
NACDL launches extraordinary new resource: on-line state-by-state "Restoration of Rights Database"As detailed in this news release, the National Association of Criminal Defense Lawyers (NACDL) has rolled out a amazing new on-line resource. I will let part of the text of the release explain:
I have now already spent more than an hour clicking around these NACDL pages to discover a stunning amount of valuable and user-friendly materials assembled via this project. Kudos to everyone involved in this important and productive endeavor.
NACDL is pleased to offer as both a resource for its members and as a service to the general public, a collection of individual downloadable documents that profile the law and practice in each U.S. jurisdiction relating to relief from the numerous civil rights and other consequences of criminal conviction. NACDL today launches this new section of its online Resource Center to house NACDL member and former U.S. Pardon Attorney (1990-97) Margaret Colgate Love’s comprehensive work on this topic in a user-friendly format. It promises to be an indispensable guide for defense lawyers as well as members of the public affected by the collateral consequences of a conviction and those re-entering society or the workforce after a conviction.
As a result of the twin crises of overcriminalization and mass imprisonment in the United States, the population that can be served by this tremendous new resource is, sadly, enormous.... [because] is reported that some 65 million people, or one in four Americans, have an arrest or conviction record.
This new resource offers free assistance to those tens of millions of people and their lawyers, offering an interactive map with individual profiles summarizing the law and practice in each U.S. jurisdiction and the federal system regarding relief from the collateral consequences of conviction, including obtaining a pardon, expungement and the restoration of civil rights. Click on a jurisdiction and you will get a short summary and a full profile detailing that jurisdiction’s law relating to both the loss and restoration of civil rights and firearms privileges and discussing any provisions on non-discrimination in employment and licensing. These materials will be an enormous aid to lawyers in minimizing the collateral consequences suffered by clients and in restoring their rights and privileges.
In addition to the jurisdictional profiles, there is a set of charts covering all 50 states plus territories and the federal system, that provide a side by side comparison that makes it possible to see national patterns in restoration laws and policies....
A team of pro bono attorneys at the firm of Crowell & Moring LLP, led by partner Harry P. Cohen, provided significant assistance with this project, as did a number of law students from the Washington College of Law at American University and the University of Toledo School of law. Detailed acknowledgements are provided on the project’s home page, which is now live and publicly available at www.nacdl.org/rightsrestoration.
October 24, 2012 in Clemency and Pardons, Collateral consequences, Data on sentencing, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (7) | TrackBack
Saturday, October 06, 2012
New California sex offender lawsuit challenges local restrictions on access to public parks and beachesAs reported in this new Los Angeles Times article, it is not just local Halloween ordinances being subject to constitutional attack by sex offenders in California (details on the Halloween suit are here and here). This article, headlined "Four Orange County cities sued over sex offender laws," reports on a new and different federal lawsuit going after another popular restriction on sex offender activities. Here are the details of this distinct lawsuit:
A registered sex offender has filed suit against four Orange County cities, challenging the constitutionality of a law that bans sex offenders from using public parks, beaches and even some roadways. The suit is aimed at Costa Mesa, Huntington Beach, Seal Beach and Lake Forest, which have all modeled local ordinances on the county's sex offender law, which bans offenders from entering county parks and other public facilities. It is considered one of the most aggressive sex offender laws in California.
The lawsuit, filed in U.S. District Court, claims the local laws that ban the plaintiff, a registered sex offender, from entering city parks or visiting beaches violate the Constitution and his protected rights under the law. The San Francisco law firm representing the man, identified only as "John Doe" in the lawsuit, said the ban violates his 1st, 5th and 14th Amendment rights.
The lawsuit alleges that the plaintiff, by being banned from entering public property, is unable to peaceably assemble, speak freely, travel via some public roads, receive information and petition the government. The ban also deprives him of his liberties without a fair hearing and prevents him from judicial access, the lawsuit said.
Susan Kang Schroeder, chief of staff to the Orange County district attorney, defended the local laws as constitutional. Fourteen cities in Orange County have now adopted sex offender rules at the urging of the district attorney. "Protecting children from sexual predators, I believe, is one of the most important duties of government," Schroeder said....
The lawsuit asks the courts to permanently stop the four cities from enforcing their bans and declare the laws unconstitutional. The plaintiff was convicted more than 15 years ago, the suit said, and has long since served his sentence and been treated and is now employed and married with children.
Wednesday, October 03, 2012
More on sex offenders' First Amendment challenge to local halloween challenge in CaliforniaIn this post a few days ago, I reported on a notable (and groundbreaking?) legal action against a common local law this time of year being brought in California. Thanks to this new local article, headlined "Calif. Sex Offenders Sue to Overturn Halloween Restrictions," I can provide more information about this intriguing litigation:
An attorney representing five sex offenders who sued a southern Californian city over limits to their Halloween activities said the lawsuit will be the first of several she expects to file over such restrictions. Lawyer Janice Bellucci heads the 18-month-old advocacy group California Reform Sex Offender Laws. On Friday, she filed a lawsuit in federal court claiming that Simi Valley's ordinance violates her clients' First Amendment rights.
The suit seeks a judge's order prohibiting enforcement of the ordinance in Simi Valley, which has 119 registered sex offenders, according to a city report. Bellucci is representing five unnamed sex offenders, three of their spouses and two minor children, she said.
The ordinance, adopted Sept. 10, prohibits registered sex offenders in the Ventura County city of about 125,000 from displaying Halloween decorations, answering the door to trick-or-treaters or having outside lighting after dark on Oct. 31. Simi Valley councilman and LAPD officer Mike Judge said the law is modeled after similar Halloween laws enforced in other California cities, and is meant to protect children....
Registered sex offenders are also required to post signs with on their front doors reading, in 1-inch letters, "No candy or treats at this residence." Those offenders visible to the public on the state's Megan's Law website and convicted of a crime against a child are required to post the sign.
Sixty-seven of the city's offenders are listed on the website, according to a city report; the rest are convicted of misdemeanors and don't have their names on the public list.
Bellucci said the sign-posting requirement was "particularly egregious." "We consider that to be a violation of the U.S. Constitution," Bellucci said Tuesday.
The ordinance both imposes "forced speech" – the sign – and restricts speech by prohibiting Halloween celebrations, she said. "It's similar to Jews in Nazi Germany who had to wear the yellow star on their clothing," Bellucci said.... Her organization intends to begin filing lawsuits to challenge other statutes, she said.
The office of Simi Valley City Attorney Marjorie Baxter said the city had not been served with Bellucci's complaint, so it had no comment as of Tuesday afternoon. Baxter was quoted in the Ventura County Star, which first reported on the lawsuit, as saying: "We thoroughly researched the ordinance and I don't feel the lawsuit has any merit, and we will defend it vigorously."
Those who are convicted of violating the ordinance would be guilty of a misdemeanor and subject to a fine of up to $1,000 and/or up to six months in county jail, according to a city staff report. California residents who have been convicted of or pleaded no contest or guilty to a sex-related offense must register with local public safety authorities. Offenders are listed on the registry for life.
Recent related post:
Thursday, September 20, 2012
ABA and NIJ unveil new on-line resource on collateral consequencesAs effectively reported in this post at The BLT, the "American Bar Association and a Justice Department unit have launched a new website [here] that allows users to search federal and state laws that hinder people with criminal records from being able to do basic things — like finding work and obtaining housing — to be able to reenter society successfully." Here is more:
This Project Description from the website concludes with this explanation of the resource:
The website, run by the ABA and DOJ's National Institute of Justice, is meant to be a resource that allows users to search the collateral consequences they can face in their own state.
Margaret Colgate Love, a Washington-based lawyer and director of the ABA National Inventory of the Collateral Consequences of Conviction, used the example of a fictitious young man from Texas who wants to become an electrician. But the man is considering a guilty plea for a small drug crime. A search on the website shows that he is ineligible for an apprentice electrician license with any felony or misdemeanor conviction on his record.
For now, the website includes information on state laws in Vermont, Minnesota, Iowa, Nevada, Texas, Wisconsin, South Carolina and New York. The rest of the states will be entered over the next 18 months, administrators say.
Through the National Inventory [of the Collateral Consequences of Conviction (NICCC)], each jurisdiction’s collateral consequences will be made accessible to the public through a website that can be searched and sorted by categories and keywords. The website will make it possible for criminal and civil lawyers to determine which collateral consequences are triggered by particular categories of offenses, for affected individuals to understand the limits on their rights and opportunities, and for lawmakers and policy advocates to understand the full measure of a jurisdiction’s sanctions and disqualifications. It will also be possible through the website to perform inter-jurisdictional comparisons and national analyses.
The User Guide posted on the Inventory website contains a set of “frequently asked questions” intended to explain the protocols used in constructing the National Inventory, and the analytical principles and coding conventions used in sorting laws and rules into various categories. A disclaimer states that the information available through the Inventory does not constitute legal advice, that the construction of the database has not included an examination of judicial interpretations, and that it generally describes collateral consequences conservatively, in the sense that ambiguous provisions are interpreted to impose more severe rather than less severe penalties.
Work on the NICCC commenced in early 2012, and it was launched in September 2012 with the collateral consequences from nine states and the federal system. Additional states are being entered into the Inventory database and uploaded to the website as their laws and rules are identified and analyzed. The initial coding effort has a completion date of December 2013, and plans are in the works to secure the Inventory's ongoing maintenance.
Thursday, August 30, 2012
Media request for personal stories from those strugging with collateral consequencesI received this evening a request to help identify persons struggling with the negative collateral consequences of a criminal conviction. The request came from Catherine Day, a producer at HuffPost Live, a new online broadcast network and expansion of the Huffington Post community, and here are the specifics she provided:
On Tuesday, as part of our coverage of the DNC Shadow Convention we will be hosting a live discussion called "Opportunity Lost: Affirmative Access" which will be about how people convicted of nonviolent crimes, such as drug felons are not able to break the negative cycles in their lives due to the loss of access they have to student loans and federal housing.
We need to find guests who would like to share their personal story about how their criminal conviction has made it nearly impossible for them to improve their life due to the inability to afford schooling or housing. In order to participate in this discussion, each guest needs to be able to have access to a webcam with a strong internet connection on Tuesday at approximately 1:30 PM EST. We would need to do a camera test in advance at the same computer and in the same location that the guest would be for the segment to make sure everything works alright.
If you would like to share your story, and be a part of this very important discussion on this broken part of our country, please email me at Catherine.Day@huffingtonpost.com.
Wednesday, August 15, 2012
Divided Fourth Circuit decides sex offender restrictions are not "custody" for habeas purposes
A Fourth Circuit panel has a fascinating set of opinions concerning a fascinting habeas issue in Wilson v. Flaherty, No. 11-6919 (4th Cir. Aug. 15, 2012) (available here). Here are the players and their roles in this ruling: "Judge Niemeyer wrote the opinion, in which Judge Davis joined. Judge Davis wrote a separate concurring opinion. Judge Wynn wrote a dissenting opinion." And here is how the majority opinion starts:
Five years after Eric Wilson fully served his sentence for a Virginia state rape conviction, he filed this habeas corpus petition under 28 U.S.C. § 2254, challenging his conviction. To satisfy § 2254’s jurisdictional requirement that he be "in custody" at the time he filed his petition, see 28 U.S.C. § 2254(a) (granting jurisdiction to the district courts to entertain "an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" (emphasis added)), Wilson alleged that the sex offender registration requirements of Virginia and Texas law impose sufficiently substantial restraints on his liberty so as to amount to custody.
The district court dismissed Wilson’s petition for lack of jurisdiction, holding that because Wilson had fully served the sentence for his rape conviction, he was no longer "in custody," as required by § 2254(a).
We affirm. While it appears that Wilson has mounted a serious constitutional challenge to his conviction, in which he vigorously asserts his innocence, we conclude that the sex offender registration requirements of Virginia and Texas are collateral consequences of his conviction that are independently imposed on him because of his status as a convicted sex offender and not as part of his sentence. We also note that the sex offender registration requirements and related consequences do not impose sufficiently substantial restraints on Wilson’s liberty so as to justify a finding that he is in the custody of state officials.
Monday, August 13, 2012
"The New Civil Death: Rethinking Punishment in the Era of Mass Conviction"
The title of this post is the title of this important new piece now up on SSRN authored by Gabriel ("Jack") Chin. Here is the abstract:
Most people convicted of felonies are not sentenced to prison; a majority receive straight probation, or probation with a jail term. However, this hardly means that the conviction is inconsequential. Tens of thousands of federal, state, and local laws, regulations, and ordinances restrict the civil rights, employment, eligibility for public benefits, residence and other aspects of the status of convicted persons.
Accordingly, for many, the most serious and long-lasting effects of conviction flow from the status of being convicted and the concomitant lifetime subjection to collateral consequences. However, courts generally treat collateral consequences as non-punitive civil regulations, and therefore not subject to constitutional limitations on criminal punishment.
This treatment of collateral consequences is surprising. In cases like Weems v. United States and Trop v. Dulles, the Supreme Court understood systematic loss of status not only to be punishment, but to be cruel and unusual punishment.
Further, collateral consequences have practically revived the traditional punishment of civil death. Civil death deprived offenders of civil rights, such as the right to sue, and other aspects of legal status. Most civil death statutes were repealed in the Twentieth Century, but its equivalent has been reproduced through systematic collateral consequences. Instead of losing rights immediately, convicted people now hold their rights at sufferance, subject to limitation and restriction at the discretion of the government.
The new civil death, loss of equal legal status and susceptibility to a network of collateral consequences, should be understood as constitutional punishment. In the era of the regulatory state, collateral consequences may now be more significant than was civil death in past decades. The actions of judges, defense attorneys, and prosecutors should attend to what is really at stake in criminal prosecutions.
Wednesday, August 01, 2012
"Why Does The Government Want To Shut Up Bryan Epis?"
In this recent prior post, I reported on a remarkable resolution to a remarkable federal criminal justice matter involving Bryan Epis, a California cannabis club operator. I became aware of this story via Epis's attorney John Balazs, whom I invited to contribute additional thoughts about the case via a guest blog post. John Balazs sent me a commentary with the heading that appears in the title of this post, and here is the interesting information and ideas that followed:
Bryan James Epis is a well-known medical marijuana activist who is believed to be the first person to be tried in federal court for cultivating marijuana for medical purposes after the 1996 ballot initiative that legalized medical marijuana in California. Although only 458 plants were found at his residence, the government extrapolated from a disputed spreadsheet to project that his “conspiracy” to grow marijuana was for at least 1,000 plants, the threshold to trigger a mandatory minimum 10-year sentence. Epis was found guilty at a jury trial of conspiracy to grow more than 1,000 plants and of producing more than 100 plants. He was sentenced to 10 years imprisonment, a $15,000 fine, and 10 years of supervised release. After multiple post-trial evidentiary hearings and extensive litigation, his conviction and sentence were upheld on appeal.
In January 2011, Epis filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. §2255, the federal equivalent of habeas corpus action to challenge a state conviction. The motion included a number of claims for relief, including that Epis’s trial attorneys were ineffective in advising him concerning a plea offer and that the government committed misconduct in misrepresenting the nature of the spreadsheet. The motion was supported by a 51-page Memorandum of Points and Authorities and numerous other documents. I was Epis’s attorney in his § 2255 litigation.
Last month, the district court signed off on a rare settlement agreement in which Epis’s conviction on the conspiracy count was vacated and he was resentenced to 90 months on his conviction of growing more than 100 marijuana plants within 1,000 feet of a school. With the time he has already served, the agreement results in his remaining sentence cut by more than half. Speaking for myself only, this blog is to comment on a couple of the more unusual and significant aspects of the settlement.
This case is one of the first after the Supreme Court’s decision in March in Lafler v. Cooper, 132 S.Ct. 1376 (2012), where a defendant obtained relief on a ground that was upheld in Lafler, i.e., that his trial attorneys rendered ineffective assistance in violation of the Sixth Amendment by providing deficient advice that resulted in him turning down a government plea offer and receiving a harsher sentence. Before the settlement, the parties deposed Epis’s trial attorneys, who did not refute the basis of Epis’s claim as neither could sufficiently recall their legal advice to Epis regarding the government’s offer. Given a likely evidentiary hearing, additional briefing, a potential appeal, and significant litigation risk on both sides, the settlement made sense for everyone. Although the essential agreement was reached quickly after the deposition concluded and Lafler was decided, the case was delayed while the government sought guidance from the Department of Justice in D.C. concerning how to deal with the Lafler claim. Ultimately, I was told that the DOJ would not be issuing any policy memo to U.S. Attorneys on Lafler claims and that each office should deal with such claims as appropriate on a case-by-case basis.
When the final agreement was ironed out, the government insisted on a condition barring Epis from advocating with respect to marijuana during his imprisonment and supervised release. While courts have upheld conditions of supervised release that limit First Amendment rights when reasonably related to the protection of the public, e.g., United States v. Ross, 476 F.3d 719 (9th Cir. 2007) (upholding condition barring association with neo-Nazi/white supremacy groups), I cannot comprehend what legitimate interest the government has in requiring a broad First Amendment restriction that bars lawful advocacy for the reform of our marijuana laws. The condition itself is vague and it’s unclear what actions are prohibited. Is Epis now barred from writing his Congressperson to ask that our country’s federal drug laws be amended to allow individual states to permit its residents to use marijuana for medical purposes? And, even if the government could lawfully bar Epis from any advocacy to change our marijuana laws (which I doubt), why does it want to do so? Putting aside the doubtful constitutional validity of a broad, no-advocacy condition, prohibiting U.S. citizens from lawfully advocating to reform our laws — on marijuana or otherwise — is bad policy and bad precedent.
Recent related posts:
August 1, 2012 in Collateral consequences, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack
Tuesday, July 31, 2012
Chief Justice Roberts says DNA collection from arrestees will soon get SCOTUS review (and perhaps approval)
As reported in this New York Times article, Chief Justice John Roberts yesterday officially granted a stay of a Maryland decision blocking state officials from collecting DNA samples from people charged with certain felonies. The short opinion explaining the ruling by Chief Justice Roberts includes these notable passages:
Maryland’s DNA Collection Act, Md. Pub. Saf. Code Ann. §2–501 et seq. (Lexis 2011), authorizes law enforcement officials to collect DNA samples from individuals charged with but not yet convicted of certain crimes, mainly violent crimes and first-degree burglary. In 2009, police arrested Alonzo Jay King, Jr., for first-degree assault. When personnel at the booking facility collected his DNA, they found it matched DNA evidence from a rape committed in 2003. Relying on the match, the State charged and successfully convicted King of, among other things, first-degree rape. A divided Maryland Court of Appeals overturned King’s conviction, holding the collection of his DNA violated the Fourth Amendment because his expectation of privacy outweighed the State’s interests. 425 Md. 550, 42 A.3d 549 (2012). Maryland now applies for a stay of that judgment pending this Court’s disposition of its petition for a writ of certiorari....
Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act....
The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government.... Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government. These factors make it reasonably probable that the Court will grant certiorari to resolve the split on the question presented. In addition, given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.
And, in somewhat related news, Ted Gest in this post at The Crime Report provides a notable report on another official's views on DNA collection practices, which gets started this way:
New Mexico Gov. Susana Martinez, who served as a prosecutor for 25 years, gave a spirited pitch to criminal justice officials from around the U.S. yesterday to push for collecting DNA samples from everyone arrested for a felony.
New Mexico has been a leader in state passage of "Katie's Laws," named for Katie Sepich, who was murdered in New Mexico in 2003. Sepich's assailant, Gabriel Avila, was charged with the crime three years later --- although he had been arrested in the meantime for other offenses, and a Sepich DNA sample was available.
Martinez, who prosecuted the case, said he could have been charged with the crime much sooner had the law been in effect. She spoke to the National Criminal Justice Association's annual national forum, which is being held near Albuquerque, N.M.
New Mexico passed a law in 2006 requiring those arrested for violent felonies to yield DNA samples. The law was expanded last year to collect samples from all accused felons.