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June 24, 2010

"Clean Slate: Expanding Expungements & Pardons For Non-Violent Federal Offenders"

The title of this post is the title of this new article by Lahny Silva now available via SSRN. Here is the abstract:

Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states.  The "tough on crime" rhetoric of the 80s and 90s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, "truth in sentencing" laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population.  Unlike the states however, the federal government does not have a legal mechanism in place that adequately reintegrates federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism.  This is a price tag the United States can no longer afford to pay.

This article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to clear their slates of their criminal histories.  Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders.  The first parts of this article examine post-conviction penalties and contemporary recidivism trends. Second, this article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for non-violent offenders to re-enter mainstream society . This article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not feasible practically or politically. Moreover, the two existing federal post-conviction remedies-pardons and judicial expungements are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities.  Using state post-conviction mechanisms as examples, this article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (hereinafter "U.S.S.C.") create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions.  With a Second Chance Advisory group, the U.S.S.C. may be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs.

June 24, 2010 at 08:39 AM | Permalink


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In the computer age, expungement does not ameliorate the collateral consequences of criminal convictions. You can seal all of official records of conviction you want. The problem is that the unofficial records are never sealed. They live on electronic data bases and the internet forever. Expungement is now illusory.

Posted by: k | Jun 24, 2010 11:56:39 AM

Because most sentences result from plea bargaining, the original charge should be used to categorize the charge as violent or non-violent. Inherent in plea bargaining is the lessening of the charge for which the prosecutor has evidence.

Unless people are counting original charges and not the formal charges landing the defendant in prison, calling a prisoner non-violent is misleading.

Posted by: Supremacy Claus | Jun 24, 2010 5:17:37 PM

Congressman Steve Cohen of Tennessee along with 17 co-sponsors and thousands of supporters of his recently introduced H.R.5492 seem to be in agreement with the findings outlined in the article above. Congressman Cohen is trying to do something about this situation right now. It is long past time for first time, non-violent offenders to be given the opportunity to seek relief from the lifetime stigma and collateral consequences including, in effect, a civil death sentence that results from a federal felony conviction. This legislation will allow certain first time non-violent offenders to petition the original sentencing court for expungement of their criminal record.

This bill has replaced, for all practical purposes, Congressman Charles Rangel's bill, H.R.1529. In fact, Rangel is one of the co-sponsors of H.R.5492. Unlike the Rangel's legislation which only applied to federal offenses, H.R.5492 also provides monetary incentives for the individual states to reform their expungement policies to more closely follow the federal approach outlined in this bill. H.R.5492 of itself, grants nothing but an opportunity for an ex-offender who must have completed all terms of sentencing to include any period of incarceration, probation, fines and restitution, to petition the original sentencing court for consideration.

The comment by the poster "k" may be correct regarding the availability of information in the computer age. However, there is a section in this legislation titled "Punishment for Improper Disclosure" This section provides that " Whoever intentionally makes or attempts to make a disclosure, other than a disclosure authorized under subsection (c), of any record or reference that is expunged under this subchapter shall be fined under this title or imprisoned not more than one year, or both."

The full text of H.R.5492 may be read at the Library of Congress web site "Thomas" @ http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.5492:

Posted by: Thomas Kinney | Jun 24, 2010 10:14:30 PM

that's nice but considering under our constitution the burden of proof is on the state. it should be automatic. shoulnd't have to find the money to get a lawyer then pray a judge let's you off who may very well be in the middle of an election.

Except for ACTUAL VIOLENT crimes you know the ones where REAL VIOLENCE occured it should all be sealed once you complete your court ordered sentence. No one but lawenforcment should have access.

Posted by: rodsmith3510 | Jun 25, 2010 5:00:31 PM

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