Sunday, January 26, 2014

"Sex offender fights registry by registering his registerers"

The title of this post is the headline of this interesting Washington Post article discussing an efforts of, and challenges facing, one registered sex offender seeking to showcase the realities of being a registered person.  Here are excerpts:

If nothing else, Dennis Sobin is not your typical ex-con.

At first glance, he looks like the model returning citizen: After serving more than a decade in prison, Sobin, 70, returned to the District, started a gallery for prison art and ran for mayor. His nonprofit organizations have received grants from George Soros’s Open Society Institute and the National Endowment for the Arts and, in 2010, he appeared on the cover of the Washington City Paper .

But Sobin is also sex offender. A former pornographer who’s appeared on “The Sally Jesse Raphael Show” and “Geraldo,” Sobin was convicted of sexual performance using a minor in 1992 in Florida. So, every 90 days, Sobin must report to D.C.’s Court Services and Offender Supervision Agency (CSOSA), and his photo appears on D.C.’s public registry.

Sobin thinks it’s unfair. So, for his latest act, Sobin has decided to protest his treatment by creating his own online data base and registering the people who monitor him at the sex offender registry. Now, in an unusual case that will be heard on Tuesday, a D.C. Superior Court judge will decide whether a court employee can file a civil protection order to prevent Sobin from posting her photo on his anti-registry registry, www.idiotsregistry.info, and distributing her photograph on fliers.

“Here at www.IdiotsRegistry.info you will find the names of politicians and public figures who have encouraged the creation of, or have refused to denounce, government registration websites that target citizens for harassment,” Sobin’s site reads. “In the tradition of Nazi registration of Jews and Gypsies and the Salem lists of alleged witches, modern government registries are unfair and un-American.”

Stephanie Gray, who works for CSOSA, is asking the court to force Sobin to remove her picture from the site. Sobin, who was under Gray’s supervision until she got another position at the agency, did not mince words when criticizing Gray. “Face of Evil: ‘Registry Specialist’ Stephanie Gray shoots icy stare,” Sobin posted under a photo of Gray. “Gray requested and received a transfer due to the guilt she felt in her loathsome job.”

Sobin said his action was inspired by Supreme Court rulings which hold that sex offender registries are not punitive and do not constitute double jeopardy. “If it’s not punishment to be on a list, we thought we’d put the people who do the registering on a list,” he said.

Gray took another view. “He writes derogatory information about me,” Gray wrote in her request for a protection order. “I have been move[d] from the Sex Offender Registry and he continues to trash the bldg. where I am with pictures he has taken of me without me knowing.”

Should Sobin prevail,“It would send a message to all sex offenders in the District of Columbia,” according to a petition filed by Gray’s attorneys which accused Sobin of stalking. “Convicted criminals required to report to CSOSA could harass them with impunity under the guise of protected political speech.” Gray, through her attorneys, declined comment, as did CSOSA.

Sobin has found an ally: the American Civil Liberties Union, which filed an amicus brief on his behalf. “We think there are some significant First Amendment issues,” said Art Spitzer, legal director of ACLU’s D.C. office, who pointed out that Gray is not alleging physical harm. “Domestic violence laws are supposed to protect people from crimes, but not hurt feelings. . . . People are allowed to embarrass each other and make each other feel bad when making a political point.”...

Should Sobin win, Gray’s civil protection request will be denied, but D.C.’s sex offender registry will not be affected. But, Sobin said, he’ll have struck a blow for free speech and shown the flawed logic behind the registry — even if there’s collateral damage.

“Ms. Gray happens to be a very sensitive, compassionate individual who is on the registration list,” Sobin said. “It’s a war. . . . They’re involved in this registration thing and unless they move themselves out, we’re going to oppose them.”

January 26, 2014 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Thursday, January 16, 2014

Orange County DA hoping California high court will rescue local sex offender park ban

As reported in this local article, headlined "D.A. will take sex-offenders fight to state Supreme Court," a California prosecutor is planning to seek review in the Supreme Court of a lower state appellate court ruling that struck down local laws banning sex offenders from parks.  Here are the details:

The Orange County District Attorney's Office plans to go to the California Supreme Court to defend local ordinances that ban registered sex offenders from city parks.  A state appeals court on Friday struck down an Irvine law that barred registered sex offenders from city parks without written permission from police, a ruling that will become legal precedent. The court also struck down a similar Orange County law.

About a dozen other Orange County cities passed similar ordinances banning sex offenders from parks at the urging of District Attorney Tony Rackauckas.  Rackauckas helped craft Orange County's law with county Supervisor Shawn Nelson. “Protecting children from dangerous sex offenders is an ongoing war, and we believe that it's one of the most important jobs we have at the D.A.'s (office),” said Susan Kang Schroeder, Rackauckas' chief of staff.

Janice Bellucci, president of California Reform Sex Offender Laws, said of the pending appeal. “I think they're foolish to do it. They're wasting taxpayer money.”  Bellucci said her organization will urge Orange County cities that adopted similar legislation to pull the laws off their books or face a lawsuit.  

Opponents criticize the ordinances as overly broad and an infringement on civil rights.  They are “unenforceable,” Bellucci said.  “These ordinances give a false sense of security to parents. They don't really protect their children from those who are most likely to assault their children,” Bellucci said....

The Orange County ordinance, which became a model for local cities, made it a misdemeanor for any registered sex offender to enter a county park, beach or other recreational area without permission from the Orange County Sheriff's Department. Those convicted would face six months in jail or a $500 fine.

In Friday's ruling, a panel of judges said state laws regulating sex offenders pre-empt any local ordinances.  State law has long overseen sex-offender registration, the opinion said. State law already regulates where sex offenders may live and also identifies certain sex offenders who must be monitored by law-enforcement via GPS.

Offenders whose victims were younger than 14 may only enter parks where children gather with permission from their parole agents. The laws create a comprehensive system regulating sex offenders' daily lives, the court said.  No outright ban on sex offenders in parks is included in state law, an omission that “manifests a legislative determination that such a ban is not warranted,” the court said. Any such local laws undermine the decisions of the Legislature, the court said.

January 16, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, January 10, 2014

"A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service?"

The title of this post is the title of this very interesting new empirical paper by James Michael Binnall now available via SSRN. Here is the abstract:

In the United States, a vast majority of jurisdictions statutorily exclude convicted felons from jury service. Justifying these exclusions, lawmakers and courts often cite the inherent bias rationale, which holds that convicted felons harbor a prodefense/antiprosecution pretrial bias that would jeopardize the impartiality of the jury process. The inherent bias rationale has never been the subject of empirical analysis. Instead, authorities seemingly accept the logic of the rationale unconditionally.

This study (1) explores the prevalence, strength, and direction of convicted felons' pretrial biases; (2) compares the group‐level pretrial biases of convicted felons, nonfelon eligible jurors, and nonfelon law students; and (3) examines if and how a felony conviction shapes pretrial biases. The results of this study indicate that a majority of convicted felons harbor a prodefense/antiprosecution bias and, in this way, differ from eligible jurors generally. Yet, the results of this study also show that many convicted felons are neutral or harbor a proprosecution pretrial bias, and that the strength and direction of convicted felons' group‐level pretrial biases are similar to those of other groups of nonfelon jurors. In sum, this study suggests that while felon jury exclusion does not offend applicable constitutional standards, it is an imprecise and perhaps unnecessary practice that may come at substantial costs.

January 10, 2014 in Collateral consequences, Who Sentences? | Permalink | Comments (13) | TrackBack

Thursday, January 09, 2014

"Are there no limits on Second Amendment rights?"

The title of this post is the title of this new entry by Lyle Denniston at the "Constitution Daily" blog of the National Constitution Center.  After I reprint some excerpts, I will explain why I see more limits on Second Amendment rights than any other right in the Constitution:

In only one place in the Constitution’s Bill of Rights is there a provision that flatly bars the government from regulating one of the protected rights. That is in the First Amendment, declaring that “Congress shall make no law respecting” the rights listed in that Amendment. The “right to keep and bear arms” is not one of those rights; it is contained in the Second Amendment.

The Second Amendment’s text, of course, does say that the right it protects “shall not be infringed.” Is that the same thing as saying that government may pass “no law respecting” gun rights?...

The only place that Americans can look for a binding interpretation of what the Constitution’s words mean – other than to the people acting through the amendment process to make a new constitutional declaration – are the decisions of the U.S. Supreme Court....

Over the time since 1791, when the Bill if Rights was ratified, the Supreme Court has given its blessing to an entire governing edifice that regulates First Amendment rights: the laws of libel and defamation, limits on publishing secret military strategy, regulation of “obscene” and “indecent” expression, and limits on “hate speech.” Famously, the court has said that one has no right to shout “Fire!” in a crowded theater. Even the right to worship freely sometimes is curbed by laws that regulate conduct that has religious meaning.

In contrast to the First Amendment, there is very little constitutional history about the meaning of the Second Amendment. In fact, until just five years ago, the “right to keep and bear arms” was not generally understand as a personal right to have a gun, even for self-defense. It was only in 2008 that the Supreme Court declared that such a personal right does, indeed, exist.

That decision, in the case of District of Columbia v. Heller, is – so far – the most important decision the court has ever issued on the scope of the “right to keep and bear arms.” But in that very ruling, the Court said explicitly: “Like most rights, the right secured by the Second Amendment is not unlimited.” It went on to say just as clearly that it was not barring the government from imposing “reasonable regulation” on that right.

Is a “reasonable regulation” of gun rights, then, an “infringement” on those rights? If the word “infringement” means to encroach on something, as one does when one “trespasses” on someone else’s private property, that does not support the idea that Second Amendment rights are absolutes. Government can “trespass” on private property to put out a fire, for example....

The Supreme Court, of course, could re-enter into that national debate if it felt a need to clarify just what kind of “regulation” of gun rights is allowed without being found to violate the Second Amendment. Up to now, however, the Court does not seem to sense that need. It has issued only one significant gun rights decision since the 2008 ruling, and that 2010 decision in McDonald v. Chicago expanded the personal right to a gun to exist at the state and local level, as well as at the federal level. The court did not go further to explain what it would allow in gun regulation by state and local governments.

It has been asked, every year since then, to take on a variety of new cases, to answer some of the lingering questions: does the personal right to have a gun extend beyond one’s own home, who can be forbidden to have a gun at all, when can a gun be carried in public in a concealed way, what types of guns or ammunition can be regulated or even banned, what places in a community are too sensitive or too prone to violence to allow guns in them, how can the government trace a gun that has been used in a violent incident, how freely should gun shows be allowed to operate?

However, the Court has resisted giving an answer to any follow-up questions. And what that has meant, in the national conversation over gun rights, is that anyone’s argument about the extent of those rights is just as good as anyone else’s, and neither side needs to listen to the arguments that the other side makes.

As regular readers know, I have long highlighted (and lamented) that so far the Second Amendment has been interpreted by lower courts to mean that, if an American ever does one bad thing once (a felony or certain misdemeanors), she can forever be subject to a criminal convction for exercising Second Amendment rights. I know of no other express right set forth in the Bill of Rights that a person forever forfeits based on a single prior bad act. Thus, from my perspective, the Second Amendment is subject to many more rigid limits than any other constitutional right.

January 9, 2014 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, January 06, 2014

"Sex offender seeks admission to Kentucky bar"

The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures.  Here are the details, followed by a bit of commentary: 

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.  In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.

Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.

But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.

After disclosing the conviction and sex offender status on his applications, Chase Law School at Northern Kentucky University and Brandeis Law School at the University of Louisville both rejected him in 2008. But the University of Kentucky College of Law accepted him in 2008 and he graduated in 2011. Hamilton-Smith later competed on the National Trial Team and National Moot Court Team, and he had a piece published in the Berkeley La Raza Law Journal through the University of California law school.

Since graduating in 2011, Hamilton-Smith has held a non-lawyer position for Baldani, Rowland and Richardson. The Lexington firm has filed letters in support of Hamilton-Smith taking the bar exam, White said. But Hamilton-Smith still has not been cleared by the Kentucky Office of Bar Admissions to take the exam that would allow him to practice law.

White called Hamilton-Smith “a classic sex addict.”

“The classic example is somebody who just downloads buckets of pornography,” White said. “In that download, there just happened to be child pornography.” In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.

White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct. “He just hasn’t let it define him,” White said....

For the justices, the nature of the crime defines someone lacking in the “requisite character and fitness” to be admitted to the bar.  “Indeed, our certification could significantly mislead the public into believing that we vouch for (Hamilton-Smith’s) good character,” Minton wrote.  “Consequently, a client’s subsequent discovery of the registry listing could then justifiably lead him to question the value of this court’s certification of the good character of those who are permitted to take the bar examination.”

I find this matter interesting for lots of reasons, especially because I suspect that Hamilton-Smith's personal background and recent professional challenges are likely to make him a much better lawyer to serve the (ever-growing) legal needs of the (ever-growing) sex offender population.  Indeed, were I running a law firm that often dealt with sex offense cases and offenders, I would be very eager to hire Hamilton-Smith to help me serve this client population whether or not he ever gets admitted to the bar.

That said, it is quite possible (even likely?) that Hamilton-Smith is eager to develop a legal practice that has nothing to do with sex offenders.  If that is true, I cannot help but wonder and worry that his status as a registered sex offender may always serve as a problematic disability in the competitive legal marketplace: I fear Hamilton-Smith's adversaries may be inclined (even perhaps eager) to use the modern stigma associated with sex offenders to harmfully impact both Hamilton-Smith and his clients.

More broadly, if the goal of the barring process was only to ensure that only those capable of being a competent lawyer served in this profession, it would be clear that Hamilton-Smith should be allowed to sit for the bar exam.  Conversely, if the goal the barring process was only to ensure that nobody with a blemished past could become a lawyer, it would be clear that Hamilton-Smith should not be allowed to sit for the bar exam.  But because it seems the goal of the barring process is a little of both, this is an interesting case.

Cross-posted at PrawfsBlawg

January 6, 2014 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (21) | TrackBack

Friday, December 20, 2013

Should elected officials be subject to drug tests? And then forced to resign if they fail?

The questions in the title of this post are prompted by this new Politico article headlined "Trey Radel likely won’t resign after leaving rehab." Here are excerpts:

Despite an eventful two months that saw an undercover cocaine bust and a stint in drug rehab, Florida Rep. Trey Radel (R) doesn’t sound like a man who is going to resign.

On the same day he walked out of a Naples, Fla., drug rehabilitation clinic, the freshman congressman — who pleaded guilty to possessing cocaine in November — said he is wrestling with what he describes as a problem with alcohol, and added that he loves “serving” his southwest Florida constituents.  “I’m excited to begin this process of rebuilding your trust and doing what you elected me to do,” Radel said at the news conference.

Radel, a freshman member of the House, was caught buying cocaine from an undercover federal agent near Dupont Circle in October. Radel bought what’s commonly known as an “eight ball” of cocaine from a federal agent, according to court records.  When he realized he was purchasing the drug from a federal agent, he tried to throw it away, the records detail.  When those agents entered his D.C. apartment, Radel handed over more cocaine. He pleaded guilty to possessing the drug in D.C. court in November, and entered a rehabilitation facility on Nov. 21.  He has been on leave from the House.

Radel pledged to answer all questions at the news conference, but declined to detail the timeline of his cocaine use, or answer questions about why he waited nearly a month between getting caught buying cocaine and revealing it to the public.  Radel said he was not with any other member of Congress when he was caught buying cocaine, and said elected officials should be subject to drug tests.  He said he only used cocaine a handful of times.

The court of public opinion isn’t his only judge. The House Ethics Committee is investigating the incident. Radel pledged to “cooperate” with that inquest “in every absolute possible way that I can.”

December 20, 2013 in Celebrity sentencings, Collateral consequences, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (8) | TrackBack

Wednesday, December 11, 2013

Massachusetts Supreme Judicial Court suggests gender is important consideration for placement on state sex offender registry

This AP article, headlined "Mass. court overturns escort's sex offender label," reports on a very interesting ruling today by the top state court in Massachusetts.  Here are the basics:

The state’s highest court on Wednesday overturned the classification of a former escort service manager as a low-level sex offender, finding that the state’s Sex Offender Registry Board should have considered research showing women are less likely than men to commit new sex offenses.

The woman, who wasn’t identified in the court’s ruling, pleaded guilty in 2006 to federal charges stemming from her management of an escort service from 2000 to 2002, including one count of transporting a minor to engage in prostitution and one count of sex trafficking of children. She served 17 months in prison while awaiting trial before pleading guilty.

In 2008, the woman requested funds to hire an expert witness, arguing that the board’s guidelines didn’t encompass scientific research on female sex offenders. Her request was rejected by the board. A hearing officer eventually found that she should be classified as a level one sex offender, the lowest level of offender, considered the least likely to reoffend and the least dangerous....

In its ruling Wednesday, the SJC agreed with the woman that the hearing examiner abused his discretion by denying her request for funds for an expert witness who could testify on the subject of how infrequently female sex offenders commit new crimes when compared with men. "We conclude that it was arbitrary and capricious for (the board) to classify Doe’s risk of re-offense and degree of dangerousness without considering the substantial evidence presented at the hearing concerning the effect of gender on recidivism," Justice Barbara Lenk wrote for the court....

The court also said the board is required to ensure that its guidelines are based on "the available literature."

"We do not purport to suggest a frequency with which the guidelines must be updated, but caution that guidelines that fail to heed growing scientific consensus in an area may undercut the individualized nature of the hearing to which a sex offender is entitled, an important due process right," Lenk wrote.

I was able to access the full text of the opinion in Doe v. Sex Offender Registry Board, No. SJC-11328 (Mass. Dec. 11, 2013), at this link.

December 11, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (18) | TrackBack

Tuesday, November 26, 2013

Intermediate NJ appeals panel upholds broad restriction on released sex offender access to social media websites

As reported in this AP article, headlined "NJ panel: Sex offenders can be kept off Facebook," a New Jersey appeals panel handed down today a notable opinion upholding a notable restriction on computer use by released sex offenders. Here are the basics:

A New Jersey appeals court has ruled that paroled sex offenders can be barred from Facebook, LinkedIn and other online social networks.

Two offenders had gone to court to challenge that restriction, saying social networks are important ways to get news, information and find business opportunities.

However, a three-judge panel ruled Tuesday that the offenders can be kept off social network as a term of parole. The judges said they agree that the networks are an important facet of modern life, but said there is a good reason to keep convicted sex offenders off them. "The provisions are legitimately aimed at restricting such offenders from participating in unwholesome interactive discussions on the Internet with children or strangers who might fall prey to their potential recidivist behavior," Judge Jack Sabatino said in his opinion. He noted that the parolees can still get news and buy products online.

The ruling referenced in this article is partially available at this link, and here are excerpts from the start of the opinion:

Appellants J.B., L.A., B.M., and W.M. are individuals who have been convicted of sexual offenses, have completed their respective prison terms, and are now being monitored by respondent New Jersey State Parole Board (the "Parole Board") as of fenders who are subject to either parole supervision for life ("PSL") or its statutory predecessor, community supervision for life ("CSL"). Represented by the same attorney, appellants challenge the constitutionality of certain terms of supervision the Parole Board has imposed upon them. Similar conditions have been imposed on other offenders subject to CSL or PSL, although appellants have not filed a class action.

The terms of supervision mainly being challenged in these related appeals are (1) the Parole Board's restrictions on appellants' access to social media or other comparable web sites on the Internet; and (2) the Parole Board's authority to compel them to submit to periodic polygraph examinations....

For the reasons that follow, we reject appellants' facial challenges to the Internet access restrictions, subject to their right to bring future "as-applied" challenges should they avail themselves of the Parole Board's procedures for requesting specific permission for more expanded Internet access and are then denied such permission.

I expect the defendants here may be eager to appeal this matter to the NJ Supreme Court and maybe even the US Supreme Court, especially since it appears that the internet use restrictions upheld here are set to last a lifetime.  And though this case might not be the best vehicle, I suspect that SCOTUS will eventually have to consider what restrictions can be poperly place on internet access for released offenders.

November 26, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, November 18, 2013

Ninth Circuit rejects Second Amendment attack on federal crime of gun possession by certain misdemeanants

In a lengthy panel opinion coupled with a notable concurrence, the Ninth Circuit today in US v. Chovan, No. 11-50107 (9th Cir. Nov. 18, 2013) (available here), rejects a defendant's Second Amendment challenge to the federal statute criminalizing gun possession by persons convicted of domestic violence misdemeanors. Here is how the majority opinion starts:

Following the entry of a conditional guilty plea, Daniel Chovan appeals the district court’s denial of his motion to dismiss an indictment against him for violation of 18 U.S.C. § 922(g)(9).  Section 922(g)(9) prohibits persons convicted of domestic violence misdemeanors from possessing firearms for life.  Chovan contends that § 922(g)(9) is unconstitutional both on its face and as applied to him because it violates his Second Amendment right to bear arms.  In the alternative, he argues that § 922(g)(9) does not apply to him because his civil rights have been restored within the meaning of 18 U.S.C. § 921(a)(33)(B)(ii).  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We reject Chovan’s “civil rights restored” argument, hold that intermediate scrutiny applies to his Second Amendment claim, and uphold § 922(g)(9) under intermediate scrutiny.

In a lengthy concurrence, Judge Bea explains why he thinks strict scrutiny is the right way to scrutinize the federal gun crime at issue here, and his opinion concludes this way:

The Heller opinion did not provide lower courts with explicit guidance on how to analyze challenges to statutes under the Second Amendment. If we are to apply the familiar tiers of scrutiny analysis in Second Amendment cases, instead of a pure textual, historical, and structural analysis, however, history and precedent still dictate a more stringent examination of these issues than the majority allow. Strict scrutiny has become an integral aspect of much of our constitutional jurisprudence. See Fallon, supra, at 1268 (ranking strict scrutiny “among the most important doctrinal elements in constitutional law”). After applying strict scrutiny to § 922(g)(9), I come to the same conclusion as do the majority, and uphold the law. The close look afforded by strict scrutiny, however, ensures that the law truly is narrowly tailored to further a compelling governmental interest, and ensures that the Second Amendment’s contours are drawn by the Constitution, and not by Congress.

November 18, 2013 in Collateral consequences, Gun policy and sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1) | TrackBack

Friday, November 08, 2013

"Informal Collateral Consequences"

The title of this post is the title of this notable new piece available via SSRN by Wayne Logan. Here is the abstract:

This essay fills an important gap in the national discussion now taking place with regard to collateral consequences, the broad array of non-penal disabilities attaching to criminal convictions. In the wake of the Supreme Court’s landmark 2010 decision in Padilla v. Kentucky, efforts are now underway to inventory collateral consequences imposed by state, local, and federal law.  Only when the full gamut of such consequences is known, law reformers urge, can criminal defendants understand the actual impact of their decision to plead guilty.

The increased concern over collateral consequences, while surely welcome and important, has however been lacking in a key respect: it has ignored the many adverse social, medical and economic consequences of conviction, experienced by individuals independent of formal operation of law.  This essay augments the consciousness-raising effort now under way and makes the case that informal, and not just formal collateral consequences of conviction, should figure in post-Padilla policy efforts to achieve a fairer and more transparent criminal justice system.

November 8, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Thursday, November 07, 2013

State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional

As reported in this local article, "a York County judge has ruled unconstitutional a two-year-old Pennsylvania law that imposes lifetime registration requirements on juvenile sex offenders."  Here is more:

Senior Judge John C. Uhler issued his ruling against the juvenile registration provisions of the Sexual Offender Registration and Notification Act while weighing the cases of seven county teens adjudicated as having committed serious sex crimes.

Uhler found that the registration mandate "unconstitutionally forecloses a court's considerations of the many unique attributes of youth and juvenile offenders" under age 18 and improperly treats them the same as adult sex offenders. SORNA, as the act is known, also doesn't take into account the greater capacity juvenile offenders have to reform, he noted.

The state law was passed by the Legislature in late 2011 to comply with a federal law, the Adam Walsh Act. The state faced a loss of federal funding if it didn't adopt a measure compatible with the Walsh Act.

Uhler's ruling is in reply to a challenge mounted on behalf of the seven York County youths by the county public defender's office, the Juvenile Law Center and the Defender Association of Philadelphia. The children involved were subject to registration after being found to have committed crimes including rape, involuntary deviate sexual intercourse and aggravated indecent assault. They were ages 14 to 17 when the offenses occurred.

In a statement issued Thursday, officials of the Juvenile Law Center and the defender association called Uhler's decision a "landmark ruling."

"It is our hope that this decision will result in similar findings across the commonwealth," said Riya Saha Shah, a staff attorney with the law center. "To impose this (registration) punishment on children is to set them up for failure."

County Chief Deputy Prosecutor Tim Barker said his office is reviewing Uhler's decision for a possible appeal to the state Supreme Court. A decision is expected next week, he said. "We're thoroughly going through everything," Barker said.

Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorney's Association, predicted an appeal is likely. Prosecutors are well aware of arguments for and against the juvenile sex offender registration requirement, he said. "I'm not surprised that the judge would rule this way," Freed said. "We'll see what happens in the appeals courts."

The full 40+ page ruling reference here is available at this link, which I found via this helpful page from the helpful folks at the Juvenile Law Center.

November 7, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

New Michigan law adds to number of states requiring registered sex offenders to pay yearly fee

This local article report on yet another notable extra bit of punishment now for sex offenders in Michigan.  The piece is headlined "Sex Offenders Will Have To Pay To Live In Michigan Under Bill Signed By Gov. Snyder," and here are the details:

Gov. Rick Snyder has signed legislation requiring registered sex offenders living in Michigan to pay an annual $50 fee. The bill, sponsored by Republican Sen. Rick Jones, replaces the system under which sex offenders paid a one-time $50 fee. Snyder signed the bill into law on Tuesday.

The measure only applies to registered sex offenders who are out of prison. Officials say $20 of each fee would go to local law enforcement and $30 would go to the state. If offenders don’t pay the annual fee, they face misdemeanor charges.

Offenders who can’t afford the fee would have the chance to make their case and receive a 90-day waiver. To do that, offenders would either have to prove in court that they are indigent, are receiving food assistance from the state, or are living under the federal poverty level.

Snyder said the law brings Michigan in line with neighboring states that require sex offenders to pay for the operating cost of sex offender websites. He said Indiana charges $50 per year, while Illinois and Ohio charge offenders $100 per year. The state said the move could bring in about $540,000 more in revenue each year.

But not everybody is on board with the new law. Opponents, which include the American Civil Liberties Union, say it’s merely a feel-good measure that ignores experiences in other states where the promise of more revenue falls well short of expectations and is an overly burdensome cost for registered sex offenders who already struggle to find housing and jobs.

“They have paid their dues … this is a burden that we just keep piling on,” said Shelli Weisberg, legislative liaison for ACLU of Michigan. She argues that the state is not asking offenders to pay for something that benefits them, but something that is intended to protect citizens. Therefore, the state should pay for it.

November 7, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (80) | TrackBack

Wednesday, October 23, 2013

Should Congress tell all states and localities they many never employ certain ex-offenders in their public schools?

The question in the title of this post is prompted by this new AP story headlined "House Votes for School Checks for Sex Offenders." Here are is the backstory:

Public schools would be barred from employing teachers and other workers convicted of sexual offenses against children or other violent crimes under a bill the House approved Tuesday.

The measure would require school systems to check state and federal criminal records for employees with unsupervised access to elementary and secondary school students, and for people seeking those jobs. Workers refusing to submit to the checks would not be allowed to have school positions.

A 2010 report by the Government Accountability Office, the auditing arm of Congress, cited one estimate that there are 620,000 convicted sex offenders in the U.S. It also found that state laws on the employment of sex offenders in schools vary.  Some require less stringent background checks than others, and they differ on how people with past convictions are treated, such as whether they are fired or lose their teaching license.

The bill has run into objections from major teachers' unions like the National Education Association and the American Federation of Teachers.  In letters to lawmakers, their criticisms included concerns that the measure might jeopardize workers' protections under union contracts.  In addition, the NEA wrote that criminal background checks "often have a huge, racially disparate impact" — a reference to critics' complaints that minorities make up a disproportionately high proportion of people convicted of crimes.

Despite those concerns, the House approved the measure by voice vote. "Keeping children safe is not a partisan issue," said the chief sponsor, Rep. George Miller, D-Calif. "It's a moral obligation."

"Every school employee, from the cafeteria workers to the administrators, to janitors to the teachers, principals and librarians, that every one" is subject to background checks including the FBI fingerprint indentification system to the national sex offender registry, said Rep. Todd Rokita, R-Ind.

No one said they opposed the bill.  But Rep. Keith Ellison, D-Minn., said that by imposing lifetime bans and ignoring the ability of people to overcome criminal backgrounds, "We do run the risk of doing a good thing, but doing too much of a thing." He said he'd continue seeking changes in the measure as it moves through Congress....

The bill would forbid public schools to employ people convicted of crimes against children including pornography, or of felonies including murder, rape, spousal abuse or kidnapping. It would bar school districts and state education agencies from transferring workers who have engaged in sexual misconduct with minors to another location.  The measure would also apply to contractors who work at schools.

Especially as this bill moves to the Senate, I wonder how tea party conservatives like Senators Cruz and Lee and Paul are likely to look at this seemingly significant intrusion by the federal government into state and local education and employment authority. If applied broadly, it sounds as though this bill would preclude someone convicted decades earlier of public indecency or child abuse from serving as a janitor or construction worker in any public school in any state. Whatever one might think about a state adopting such a rule for its own schools, but it seems like quite an intrusion into state authority for the feds to require this rule for all states and localities nationwide.

October 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, October 22, 2013

Lamenting sex offender fear-mongering around Halloween

Writing over at Huffington Post, Emily Horowitz has this notable new commentary headlined "Manufacturing Fear: Halloween Laws for Sex Offenders."   Here is how the piece starts and ends:

In North Carolina, a sheriff tells parents to check the online sex offender registry before allowing children to trick-or-treat.  In Montana, a town offers a "trunk-or-treat" event where kids can get Halloween candy from trunks of cars in a parking lot to avoid potential danger.  In New York, "Operation Halloween: Zero Tolerance" prohibits sex offenders from wearing masks or costumes or answering their doors on Halloween, and, as a parole source says, "There is certainly nothing more frightening than the thought of one of these men opening their door to innocent children."  In Oklahoma, a city council is considering an ordinance forbidding sex offenders from decorating their homes or passing out candy on Halloween. In Orange, California, sex offenders can't answer their door or have outside lighting on Halloween, but an additional ordinance requiring window signs saying, "No candy or treats at this residence" was recently revoked after attorneys argued it was a form of cruel and unusual punishment.

Why worry about sex offenders on Halloween?  Research shows no evidence of increased child sex abuse on Halloween and no evidence that a child was ever a victim of sexual abuse by a stranger while out trick-or-treating. This makes perfect sense, because government data shows the vast majority (about 93%) of sex crimes against children are not committed by strangers but by family members or acquaintances....

The false dichotomy of evil adults and innocent children and families prevents children from meeting their neighbors and becoming part of a community.  Sex offenders are subject to more post-punishment restrictions than any other ex-offenders, and have lower recidivism rates.  Halloween sex offender laws, and rampant media coverage of the threat of sex offenders on Halloween and throughout the year, is creating a neurotic and fearful generation of kids who grow up thinking they are helpless prey facing threats from real monsters. Children are safest when they know their neighbors, and Halloween is a good opportunity to meet others in the community.  There are some actual threats to child safety on Halloween -- like an increase in pedestrian car accidents -- but sex offenders and poisoned candy aren't among them.

October 22, 2013 in Collateral consequences, Sex Offender Sentencing | Permalink | Comments (23) | TrackBack

Monday, October 21, 2013

Alabama legislators proposing adult day-care "clusters" for sex offenders

As reported in this local article, headlined "Bill Proposes Licensed Residential Sex Offender Clusters," legislators in Alabama are considering a new innovation in the monitoring of sex offenders. Here are the details:

Some Alabama State Representatives are hoping a proposed bill will change the laws surrounding where convicted sexual predators are able to live together. Representatives Kurt Wallace and Paul Beckman are sponsoring the proposal that would make it against the law for sexual predators to live together unless it’s in what they’re calling a licensed, regulated residential sex offender cluster.

The proposed bill is similar to a bill passed into law earlier this year by the Alabama State Legislature. Alabama State Senator Arthur Orr is the sponsor of that bill. It encompasses Morgan County, while the proposed bill will cover the entire state.

In part Senator Orr’s bill made it against the law for convicted sex offenders to live in the same house. ”Studies show that if that is the situation there is much more proclivity for them to sexually offend others in the surrounding area,” Senator Orr says. He says his bill was met with agreement from the Alabama Legislature and Morgan County residents. “Certainly the constituents who had small children who were living near this group sexual offender home, and they certainly wanted something done.”

The proposed bill by Representatives Wallace and Beckman would create what lawmakers call residential sex offenders clusters. The bill spells out what that means. A residential sex offender cluster would be a tract of land where registered sex offenders could live together. An on-site monitor would also be required to live there to supervise the offenders. The clusters would have to be licensed and it would authorize the Department of Mental Health to make rules regulating the clusters.

If passed this proposed bill would require any sex offenders who wanted to live together to live in one of the clusters. It’s proposed if they violated that, it would be punishable by a felony charge. Already Alabama has laws preventing convicted sex offenders from living near a school or their victims. Some officials argue it’s already hard enough for them to find a place to live and this proposed bill would make it even harder....

Lawmakers say the proposed bill would promote public safety, health and confidence. They are expected to take this proposed bill up in the 2014 regular session.

October 21, 2013 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (32) | TrackBack

Thursday, October 10, 2013

Please welcome (and often visit) the new Civil Rights Law & Policy Blog

It is with great joy and pleasure that I get to promote a great new blog just started by a great former student of mine, Andrew Ironside.  Andrew explains in this first post, some of his primary plans and aspirations for his new Civil Rights Law & Policy Blog:

CRL&P’s goal is to provide an open space for discussion of civil rights and constitutional law issues.  CRL&P’s analyses will focus on contemporary civil rights debates and the concomitant coverage of these conflicts by the press and the academy.  Further, CRL&P will also highlight historical examples of civil rights disputes as they relate to our current understanding of these issues.

CRL&P also hopes to serve as a resource for anyone interested in learning more about this robust and important area of the law.  In particular, CRL&P will provide daily news rundowns; and, it will highlight forthcoming, newly-released, and generally interesting scholarly works relevant to CRL&P’s areas of inquiry.  Visitors are encouraged to visit CRL&P’s resource page.

CRL&P also welcomes debate — comments and criticisms are encouraged, and responses to both specific CRL&P posts and the blog as a whole are appreciated.

Additionally, CRL&P will consider submissions for guest posts. While the scope of civil rights and civil liberties provides virtually limitless opportunities for inquiry, potential guest contributors are encouraged to consider CRL&P’s goals before sending submissions. Similarly, there is no limit to the length of guest posts. But, potential guest contributors ought to consider the blog format before clicking “send.”  Submissions should be sent here.

The editor is Andrew M. Ironside, a graduate of The Ohio State University Moritz College of Law.  Ironside’s academic interests include civil rights law, election law, the First Amendment, and the right to vote. Currently, with support from the new Institute for the Study of Democracy at Ohio State, his research focuses on the right to vote as protected First Amendment speech (more forthcoming).

I have had the pleasure to work with Andrew on a variety of projects, and his prior work history in journalism as well as his interest in the intersection of civil rights and criminal justice leads me to urge fans of SL&P to make regular visits over his new Civil Rights Law & Policy Blog.  Indeed, here are just a small sampling of the many interesting posts one will find at that space already:

October 10, 2013 in Collateral consequences, On blogging, Recommended reading | Permalink | Comments (9) | TrackBack

Thursday, October 03, 2013

Should downloading a few pics of child porn result in attorney's disbarment?

The question in the title of this post concerning a notable collateral consequence of some convictions is prompted by this fascinating cover story from the October 2013 issue of the California Lawyer magazine. (Hat tip: How Appealing.) The story is headlined "Unfit to Practice? The state Supreme Court must decide whether a lawyer's possession of child pornography requires summary disbarment," and here is how the piece begins:

Gary Douglass Grant is a lawyer with a big problem. In 2007 the civil litigator and former captain in the Army Reserves, now 56, was a JAG lawyer assigned to Los Alamitos Army Airfield when an Immigration and Customs Enforcement (ICE) operation in Virginia tracked hits on approximately 18 commercial child pornography websites. ICE agents in Project Flicker, as it was known, located a number of active and retired military members, civilians, and contractor employees - several of whom had Top Secret or higher clearances - who allegedly used their military email addresses to register for PayPal accounts to access the images.

One of the 16 individuals identified that summer was Gary Grant. A search of computers at his Aliso Viejo home revealed that he had sent over the Internet an image depicting minors engaged in sexually explicit conduct; Orange County sheriff's deputies arrested him a year later. Investigators had found that between 2001 and 2007 Grant accumulated more than 100,000 digital pornographic images, much of it legal adult material. But mingled among those images were pornographic pictures of children. An analyst who examined the seized files found 19 photos and a videotape of youths who appeared to be between 14 and 16 years old - "possibly minors."

The Orange County District Attorney charged Grant with three counts of California Penal Code section 311.11(a), possession of obscene matter of a minor in a sexual act. Prosecutors gave Grant and his lawyer a CD with at least 100 sexual images of children retrieved from Grant's computers.

From the outset, Grant gave specific orders to his criminal defense attorney: "Defend this to the nth degree, because no way, no how, did I knowingly possess child pornography."

Ultimately, though, Grant conceded there were sexual images of underage girls on his computer. He said he had found the photos repugnant and deleted them. But even deleted images may remain on a hard drive, and that's where forensic computer analysts in this case located them. In April 2009 Grant admitted he had temporarily possessed two "unsolicited electronic images" of children, received by email while he was downloading other pornography. He pleaded guilty to one count of felony possession; prosecutors agreed to drop the other two charges. The judge sentenced Grant to 90 days in jail and three years of probation, and ordered him to register as a sex offender for the rest of his life. He did not appeal his conviction or sentence.

Grant joined a twelve-step fellowship known as Sex and Love Addicts Anonymous. But by autumn he had violated the terms of his probation by downloading adult pornography to his computer and by "sex-texting" two former girlfriends. The violations brought Grant an additional 183 days of jail time - more than twice his original sentence.

Based on the felony conviction, the State Bar of California automatically placed Grant on interim suspension pending further disciplinary proceedings. A State Bar Court trial judge later recommended that Grant be disbarred because his felony involved moral turpitude. His lawyer challenged that characterization, and the severity of the discipline. When the Review Department recommended only a suspension, the prosecutors appealed. Now Grant's case is pending before the state Supreme Court, where it has been fully briefed and awaits oral argument. (In re Grant, No. S197503 (Cal. Sup. Ct).)

At issue is the State Bar's ability to exact the ultimate sanction - disbarment - pursuant to a summary procedure that permits neither consideration of mitigating factors nor whether that sanction is appropriate. What began as one man's compulsion to accumulate pornography has become a challenge to the moral-turpitude-per-se standard, and the State Bar's procedures associated with it. Ultimately the Grant case could result in changes to disciplinary proceedings that affect hundreds of matters.

October 3, 2013 in Collateral consequences, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Monday, September 23, 2013

Litigation prompting California city to give up Halloween sex offender posting law

As reported in this Los Angeles Times piece, headlined "O.C. city likely to drop Halloween law aimed at sex offenders: A lawsuit challenges a city of Orange law requiring sex offenders to post signs to discourage trick-or-treaters," it appears that just the filing of a constitutional lawsuit is prompting reform of a local ordinance. Here are the basics:

An Orange County city will probably toss out a law requiring registered sex offenders to post a sign in front of their homes on Halloween to discourage trick-or-treaters after it was hit with a federal lawsuit alleging the practice is unconstitutional.

Registered sex offenders in the city of Orange are legally required to post a sign on Halloween, no smaller than 12 by 24 inches, that reads, "No candy or treats at this residence." Violators face a $1,000 fine or up to a year in jail. The lawsuit, filed Wednesday on behalf of an individual identified only as "John Doe," alleges the law violates the 1st Amendment rights of registered sex offenders and puts them, and anyone living with them, at risk of physical and emotional harm.

"If you think about it, a lot of older kids go out to trick rather than treat," said Janice Bellucci, an attorney and president of the California Reform Sex Offender Laws group. "All you have to do is look for the house with the sign."...

Bellucci filed a similar lawsuit last year to strike down a Simi Valley ordinance that also required people convicted of sex crimes to post a sign. That law also banned them from putting up Halloween displays and outside lighting on Oct. 31. But the day before the Simi Valley law went into effect, federal court Judge Perry Anderson issued a temporary restraining order barring the city from enforcing the sign provision.

The judge let stand provisions of the ordinance that keep sex offenders from turning on outside lights, decorating their homes and answering their doors to trick-or-treaters....

In Orange, no registered sex offenders have been cited since the ordinance was adopted, said City Atty. Wayne Winthers. When the city passed the law in February 2010 officials counted 81 registered sex offenders, with 81% of them having convictions involving minors, according to city records.

There was no need for the group to file the lawsuit, he said, since the city had been in contact with Bellucci and the City Council was expected to discuss the issue next week in closed session. "I read the district court's [Simi Valley] ruling and I don't see any reason why the court would look at ours any differently," said Winthers, who said he intended to ask the council to remove the sign requirement from the Halloween ordinance. "Our intent wasn't to bring any unnecessary harm or scrutiny to any particular individual," Winthers said. "We just wanted to protect children."

September 23, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack

Monday, September 16, 2013

Senator Rand Paul talking up restoring voting and gun rights for felons, as well as sentencing reform

I-love-randMy (unhealthy? appropriate?) bromance with U.S. Senator Rand Paul has reached a whole new level based on this notable new article from Kentucky.  The piece is headlined "Sen. Rand Paul calls for restoring felons' voting, gun rights," and here are excerpts:

U.S. Sen. Rand Paul told a largely black audience Monday in Louisville that he will push to restore the voting and gun-ownership rights of felons who have completed their sentences — and he will urge state Senate Republicans to follow his lead. Currently in Kentucky, felons must petition the governor to get their voting rights restored.

“I am in favor of letting people get their rights back, the right to vote ... Second Amendment rights, all your rights to come back,” he said. “I know of one man who 30-some-odd years ago had pot plants in his closet in college, got a felony conviction in college, still can’t vote, and it’s plagued him his whole life trying to get work.”

The Republican’s comments came at the Plymouth Community Renewal Center in western Louisville as he spoke with community leaders about issues that affect African Americans. Additionally, as he has done in the past, he called for doing away with mandatory minimum sentences in the federal criminal justice system, saying they are often too harsh.

The Rev. Patrick Delahanty, the executive director of the Catholic Conference of Kentucky and who was not at the meeting, applauded Paul’s stance on restoring voting rights in a later interview. He said Paul’s comments could help advance the issue during the next session of the General Assembly....

Paul said during the meeting in western Louisville that he believes felons should have their rights restored automatically — either immediately after completing their sentences or at some specified point after the sentences are served. He said he plans to talk to leaders in the Kentucky Senate about their opposition and would be willing to travel to Frankfort to testify in favor of legislation to restore voting rights....

The League of Women Voters found in a 2006 study that nearly one in four African Americans is banned from the polls because of a felony conviction, compared with 1 in 17 Kentuckians overall.

Paul, who has said he is considering running for president in 2016, has been meeting with African-American groups in an effort to bridge the gap between blacks and the Republican Party. Paul also met this year with students at the historically black Howard University in Washington, D.C., and then later with students at historically black Simmons College in Louisville.

During an hourlong discussion Monday, Paul listened as black leaders talked about issues that hinder African Americans’ ability to get a leg up and fully participate in the community. Much of their concern centered around helping black men who committed crimes but have turned their lives around.

This AP article about Senator Paul's comments today also contributes to my man-love for this GOP leader:

U.S. Sen. Rand Paul drew a favorable response Monday in a mostly black Louisville neighborhood as the tea party favorite promoted the ideas of giving judges more sentencing flexibility, restoring voting rights for felons and offering tax breaks to lure businesses into struggling communities....

Paul spoke with a group of ministers and community activists during a meeting that lasted more than an hour. The senator told the group at the Plymouth Community Renewal Center that the "War on Drugs" unfairly targeted blacks. "We went crazy on the 'War on Drugs,'" the libertarian-leaning senator said. "Drugs aren't good. We should have some laws. ... We have to figure out how to go forward, so changing those laws is important."

Paul criticized federal mandatory minimum penalties that he said have clogged prisons with non-violent drug offenders. Blacks make up a disproportionately high number of those inmates, he said. "We have people in jail for life for non-violent drug crimes," he said. "I think this is a crime, in and of itself."

The first-term senator is a leading sponsor behind legislation that would give federal judges greater flexibility in sentencing. The measure is scheduled to be reviewed at a Senate Judiciary Committee hearing later this week.

"Mandatory minimums have trapped a lot of people, made them felons, made it hard for them to get jobs, for non-violent crimes," Paul said. "I would just as soon take some of these non-violent crimes and make them misdemeanors so you don't get in that trap."

Paul said he's also considering legislation that would restore voting rights for non-violent felons of federal crimes. The bill is still in draft form, he said, but the restoration of rights would apply to non-violent offenders who haven't committed other crimes for perhaps five years.

Paul said such a bill would especially be aimed at people who committed drug offenses as young adults — which he referred to as a "youthful mistake." Such offenders pay for those indiscretions for decades to come, he said. "I think the biggest problem right now with voting rights is ... not being allowed to vote because the law says you can never vote," he said.

Some recent and older related posts:

September 16, 2013 in Collateral consequences, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Second Amendment issues, Who Sentences? | Permalink | Comments (16) | TrackBack

Thursday, September 05, 2013

Effective review of history and modern realities of felon disenfranchisement

0613_issuecover_0I just came across this effective recent article in the American Prospect which discusses the history of felony disenfranchisement laws in the United States and their continued impact and import. The piece is titled "The Ex-Con Factor: Felony-disenfranchisement laws suppress black turnout enough to swing elections, and the future of reform is murky," and here are just a few passages that caught my eye:

Virginia is one of four states — along with Florida, Iowa, and Kentucky — that strip voting rights from felons for life.  The U.S. is the world’s only democracy that permits permanent disenfranchisement.  While most states have some restrictions on felons voting, it takes a decree from the governor or a clemency board to restore voting rights in the four states with lifetime bans.  In Virginia alone, 450,000 residents are disenfranchised.  In Florida, the total is an astonishing 1.5 million....

All but two states, Vermont and Maine, disenfranchise felons for some period of time. Thirteen states strip voting rights only for the period of incarceration.  Most have waiting periods with various requirements, like paying fines and completing special applications. Seven states — Alabama, Arizona, Delaware, Mississippi, Nevada, Tennessee, and Wyoming — have lifetime bans for particular crimes or repeat felony offenders.  They aren’t the strictest laws, but they affect enough potential voters to sway statewide elections.  In Alabama, more than 260,000 residents are stripped of their voting rights; more than half, just over 137,000, are African American.  In Mississippi, blacks account for nearly 60 percent of the 182,000 disenfranchised citizens.

When you add it all up, the numbers are startling.  More than five million Americans are currently disenfranchised because of felony convictions — an increase of some 270,000 over the past decade.  Nearly 1.4 million are ... black men. They represent 24 percent of the total disenfranchised population and a whopping 13 percent of all voting-age African American men.

Black men’s overrepresentation is no accident.  Felony disenfranchisement laws trace back to the post-Reconstruction era when former Confederates and white Southern Democrats rolled back the political gains made by free slaves after the war.  The whole point of these laws was the mass exclusion of black men from mainstream civic life.  It still is.

You can see the effects most clearly in black turnout rates.  The nation’s 27 million African American voters are concentrated in the South and in Northern urban centers.  Almost two-thirds — 66 percent — voted in last year’s presidential election, giving African Americans higher turnout than any other racial group.  But unlike with other groups, there was an odd gender gap: While more than 70 percent of black women voted, only 60 percent of black men went to the polls.  The difference, according to Bernard Fraga of Harvard University, is explained entirely by the huge number of black men who are disenfranchised....

From the start, criminal disenfranchisement laws were part of the white Democrats’ Redemption campaign.  They were written as race-neutral but were racist in their effects, as Middle Tennessee State University history professor Pippa Holloway documents in her book Living in Infamy: Felon Disenfranchisement and the History of American Citizenship. In just the period between 1874 and 1882, every Southern state but Texas found ways to disenfranchise those convicted of minor crimes like petty theft.  “Some Southern states changed their laws to upgrade misdemeanor property crimes to felonies,” Holloway explains, “and finally, Southern courts interpreted existing laws to include misdemeanors as disenfranchising crimes.”...

For those who want to end this last vestige of Jim Crow, the past two decades have brought decidedly mixed news.  On the one hand, nine states — including the South’s two largest — have repealed or amended lifetime disenfranchisement laws since the late 1990s. In 1997, the Texas Legislature — under Governor George W. Bush — ended its two-year waiting period for regaining eligibility after release, restoring rights to 317,000 citizens.  Seven years later, in 2004, another Governor Bush — Jeb — ordered the state clemency board to simplify Florida’s procedure, leading to the restoration of voting rights for 152,000 people.

But after the Tea Party wave election of 2010, Republicans in several states began to call again for stricter disenfranchisement.  In Florida, Republican Governor Rick Scott reversed the reforms that had smoothed the process for ex-felons and added a five-year period for rights restoration for nonviolent felonies, and a seven-year period for violent ones and other serious crimes.  One in ten voting-age Floridians now lacks voting rights as a result of past crimes.  Florida’s harsh disenfranchisement laws are reflected in another stark statistic — more than 25 percent of all disenfranchised Americans reside in the state.

In North Carolina, where ex-felons are granted voting rights after completing parole or probation, Republican lawmakers began pushing one of the nation’s toughest laws this spring.  It would impose a five-year waiting period and then require the ex-felons to present affidavits from two registered voters vouching for their “upstanding moral character” and win unanimous approval from their local board of elections.  The bill’s primary sponsor, state Senator E.S. “Buck” Newton, told Raleigh’s News & Observer that he considered it a lenient measure, because “the vast majority of people I have spoken to regarding election laws think convicted felons should not be able to vote at all.”

Some recent and older related posts:

September 5, 2013 in Collateral consequences, Who Sentences? | Permalink | Comments (15) | TrackBack