Sentencing Law and Policy

A little commentary on the Third Circuit's big Second Amendment ruling in Range

Last week, as noted here, the fully Third Circuit again found the federal felon-in-possesion criminal ban to be unconstitutional as applied to Byran Range.  This outcome, as well as the 13-2 vote (with judges appointed by six different presidents supporting the outcome), seems like a pretty big deal for the future of Second Amendment jurisprudence.  But so far I have seen only a little discussion of the big ruling, no doubt in part due to its timing.  Here are a round up of the commentary I have seen:

From GunMag, "The Most Critical 2024 Second Amendment Case"

From Lisa Foundation, "A Good Day at the Range" 

From The Reload, "How Rahimi Made Two Judges Switch Sides on Non-Violent Felon Gun Rights"

From the Wall Street Journal, "The Second Amendment, Reawakened: An appeals court says a nonviolent misdemeanor doesn’t end gun rights."

From Washington Gun Law, "One of the Best Second Amendment Rulings in a Long Time"

"Governmental Authority to Compel the Carrying of Stigmatizing Documents"

A helpful reader alerted my to the formal publication of this new article in the latest issue of the Stanford Journal of Civil Rights & Civil Liberties that share the title of this post as is authored by Wayne Logan.  Here is its abstract:

Among the beliefs Americans hold most dear is that they have never been required to carry government-issued personal identification documents.  The belief, however, is incorrect.  Over time, select subpopulations have in fact been required to carry documents, including free-born and emancipated African Americans until after the Civil War. This article examines the targeting of yet another sub-population: individuals convicted of sex offenses.

Today, several states require that convicted sex offenders obtain and carry identification cards or driver’s licenses declaring their status.  Often, the branding is overt, such as a stamp of “SEXUAL PREDATOR” in brightly colored lettering.  At other times, it is more subtle, such as use of a “U,” denoting “Sexual Deviant” status.  The documents must be produced to police upon demand, under threat of punishment, as well as when requested by myriad individuals in daily life, such as bank tellers and pharmacy staff.  The federal government, for its part, requires that passports display a “unique identifier” stamped in a “conspicuous location,” which must be shown to airport and customs officials, as well as to various individuals during transactions when traveling abroad.

To date, the few courts addressing challenges have condoned branding in principle, yet required less graphic signifiers, based on First Amendment government-compelled speech grounds.  While important, the decisions have failed to address other constitutional concerns, such as the right of free association.  Even more important, the decisions have ignored the many troubling ramifications of governments forcing individuals to self-stigmatize and facilitate their own surveillance, perhaps for their lifetimes, which the article illuminates.

Split Nebraska Supreme Court orders Secretary of State to implement new state law enfranchising persons with felony convictions

As report in this NBC News article, the "Nebraska Supreme Court ruled that convicted felons who served their sentences are allowed to vote, after the state's top election official sought to keep them from casting ballots ahead of the Nov. 5 election." Here is more about this ruling:

Nebraska has historically restored the voting rights of former felons two years after they completed the terms of their sentences. Earlier this year, state legislators voted on a bipartisan basis to eliminate the two-year waiting period. Nebraska Attorney General Mike Hilgers later argued that only the state’s board of pardons could restore voting rights, and Nebraska Secretary of State Robert Evnen ordered local registrars to stop letting all people with previous felony convictions vote, arguing the laws enfranchising them were unconstitutional.

On Wednesday, Nebraska's top court disagreed, writing that state officials had not convinced them the law, known as L.B. 20, was unconstitutional. “The Secretary is ordered to remove any disqualification on registration he has imposed that is not contained within L.B. 20 and to comply in all respects with the provisions of L.B. 20,” the state’s high court wrote in an order.

The full ruling in State ex Rel. Spung v. Evnen, 317 Neb. 800 (Neb. Oct. 16, 2024) (available here), is quite lengthy, in part due to many concurring and dissenting opinions. Here is how the per curiam majority opinion for the court gets started:

The Nebraska Secretary of State (Secretary) announced in the summer of 2024 that he would not implement recent statutory amendments providing that individuals who have been convicted of felonies are eligible to vote as soon as they complete their sentences.  The Secretary took the position that the statutory amendments were unconstitutional. Individuals who were convicted of felonies and who had completed their sentences responded by filing this action in which they seek a writ of mandamus directing the Secretary and two named county election commissioners to implement the 2024 amendments and allow them to register to vote.  Because the requisite number of judges have not found that the statutory amendments are unconstitutional, we issue a peremptory writ of mandamus directing the Secretary and the election commissioners to implement the statutory amendments immediately.

The Sentencing Project releases "Locked Out 2024: Four Million Denied Voting Rights Due to a Felony Conviction"

The Sentencing Project has this timely new report on felon disenfranchisement. Here is the text of the report's "Overview":

Laws in 48 U.S. states ban people with felony convictions from voting. In 2024, an estimated 4 million Americans, representing 1.7% of the voting-age population, will be ineligible to vote due to these laws, many of which date back to the post-Reconstruction era. In this historic election year, questions persist about the stability of democratic institutions, election fairness, and voter suppression in marginalized communities. The systematic exclusion of millions with felony convictions should be front and center in these debates.

This report updates and expands upon a quarter century of work chronicling the scope and distribution of felony disenfranchisement in the United States. As in 2022, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latino populations impacted. This year, we also present state-level data on the degree of disenfranchisement among men and women. Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of U.S. felony disenfranchisement as of the November 2024 election.

Among the report’s key findings:

• An estimated 4 million people are disenfranchised due to a felony conviction, a figure that has declined by 31% since 2016, as more states enacted policies to curtail this practice and state prison, probation, and parole populations declined. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.6 million in 2000, 5.1 million in 2004, 5.7 million in 2010, 5.9 million in 2016, 4.9 million in 2020, and 4.4 million in 2022.
• One out of 59 adult citizens – 1.7% of the total U.S. voting eligible population – is disenfranchised due to a current or previous felony conviction.
• Seven out of 10 people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on felony probation or parole.
• In two states – Florida and Tennessee – more than 6% of the adult population, one of every 17 adults, is disenfranchised.
• Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 961,000 people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 730,000 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.
• One in 22 African Americans of voting age is disenfranchised, a rate more than triple that of non-African Americans. Among the adult African American population, 4.5% is disenfranchised compared to 1.3% of the adult non-African American population. In 15 states, 5% or more of the African American adult population is banned from voting due to a felony conviction.
• More than one in 10 African American adults is disenfranchised in five states – Arizona, Florida, Kentucky, South Dakota, and Tennessee.
• Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 495,000 Latino Americans or 1.5% of the voting eligible population are disenfranchised.
• Based on available correctional data that records an individual’s sex, approximately 764,000 women are disenfranchised, comprising about 0.6% of the female voting eligible population and approximately one-fifth of the total disenfranchised population.3 We estimate that approximately 3.2 million men or 2.7% of the male voting eligible population is disenfranchised, consistent with the overrepresentation of men in the criminal legal system.

Another federal ruling that aspects of Michigan's sex offender registry is unconstitutional

As detailed in this local article, in the past week a "federal judge in Detroit has ruled parts of Michigan’s Sex Offenders Registration Act are unconstitutional."  (Disclosure: I have worked with a group of law professors on amicus briefing in these matters.)  Here is more about yet another ruling finding various constitutional and other problems with Michigan’s law:

Last Friday, U.S. District Judge Mark Goldsmith ruled on a lawsuit the ACLU filed in February 2022 on behalf of several Michigan sex offenders over the state law, which was first passed in 1994 but changed in 2021. The suit named Gov. Gretchen Whitmer and then-Michigan State Police Commander Col. Joseph Gasper as defendants.

The 2022 lawsuit was the fourth time the organization challenged the state's sex offender registry in the past decade.  "This decision once again shows that Michigan’s sex offender registry is not only bloated, costly, and ineffective, but does not hold up to constitutional scrutiny and must be overhauled by state lawmakers," Miriam Aukerman, ACLU of Michigan senior staff attorney, said in a statement....

The ACLU of Michigan said when it filed its 2022 lawsuit that it was challenging the parts of the state's sex offender registry law that treat all registrants as high risks to public safety without consideration of the circumstances of their offense, the passage of time, their age, their rehabilitation, their health, or their cognitive and physical abilities.  It also said elements of the registry are being unconstitutionally applied retroactively, reporting requirements compel speech in violation of the First Amendment and that the system lacks individual risk assessment, which violates due process and equal protection.

On Monday, ACLU officials said Goldsmith agreed with them on several of its arguments in the suit, including:

∎ Retroactively extending registration terms from 25 years to life violates the Constitution;

∎ People who were not convicted of a sexual offense cannot be subjected to the law without a judicial hearing;

∎ Michigan cannot impose harsher registration requirements on people with out-of-state convictions than on people with state convictions;

∎ The law's requirements for registrants to report internet identifiers like email and social media accounts violate their First Amendment rights;

∎ Forcing registrants to attest that they understand the sex offenders registration act, even if they do not, is unconstitutional compelled speech.

The judge also ruled against the ACLU on three claims involving individualized review, opportunities to petition for removal, and reporting requirements, they said. The court also found that one claim was moot and another might require additional briefing.

More than 45,000 people are on the state's sex offender and the list is the fourth largest in the country, according to the ACLU.  Officials said under the court's decision, about 17,000 people will be removed after they complete 25 years on the registry without another registrable offense. In addition, more than 3,000 people with out-of-state convictions will be entitled to a judicial determination of their registration requirements.

They also said if the state seeks to keep about 300 people on the registry based on convictions for non-sex offenses, then a judicial hearing will be required.  Furthermore, the in-person reporting requirements will change for about 31,000 people and the internet reporting requirements will change for about 14,000 people, the group said.

The full 115-page ruling from the District Court is available at this link.

New report details that persons with felony records have brought most gun litigation after Bruen changed Second Amendment law

In my very first post after reporting on the Supreme Court's 2022 landmark Second Amendment case, Bruen, I wondered on this blog "Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?".  Two years later with lots and lots of lower court litigation and the follow-up SCOTUS case of Rahimi, it seems quite clear now the answer is "yes," felon-in-possession criminal gun prohibitions are "constitutional suspect," but the answer as to exactly whether and when they may be unconstitutional remains quite unclear.  The latest data point for these discussion comes from this new article from The Trace, fully headlined "More Than a Thousand Felons Have Challenged Their Gun Bans Since the Supreme Court’s Bruen Decision: The Trace reviewed more than 2,000 court cases that cited Bruen and found that no group has used the decision more often than people whose felony records bar them from possessing guns."  And here are some excerpts:

Bruen set off a wave of legal challenges to gun restrictions across the country, but no other group has taken to the courts as frequently as people with felony convictions, who are prohibited from possessing guns under a federal statute known as the felon gun ban.

The Trace reviewed more than 2,000 federal court decisions that cited Bruen over the past two years. More than 1,600 of them answered challenges to a wide variety of federal, state, and local gun laws — from assault weapons restrictions to bans on guns at the U.S. Post Office. The majority — some 1,100 — of the decisions included a challenge to the felon gun ban, making it the single most frequently contested statute by far.

At least 30 of the challenges to the felon gun ban have succeeded. While that ratio may seem small, it marks a stark departure from the past, when effectively none succeeded, and it shows that Bruen has cracked the longstanding consensus that people convicted of serious crimes may constitutionally be barred from gun ownership. 

Those decisions, albeit rare and frequently narrow, chart new legal pathways for other defendants and judges to follow, meaning that more people convicted of felonies could have their cases thrown out.  Over the past two years, judges have issued on average two Bruen-related rulings each working day, the majority of which have been on challenges to the felon gun ban. And the pace is increasing....

The sheer volume of Bruen challenges to the felon gun ban has the potential to gum up the legal system. Margaret Groban, a former federal prosecutor who focused on gun crimes and domestic violence cases, described the fallout as “a mess.”   “It does take up a lot of resources,” she said. “There are cases to prosecute, and then you spend all your time defending the cases that have already been prosecuted.”...

A felon in possession of a firearm is one of the most commonly charged federal crimes, according to the U.S. Sentencing Commission. In 2022 and 2023, more than 7,000 people with felony records were convicted of this crime — in the federal court system alone.  The majority of these defendants were Black....

“I represent a lot of kids who have never in their lives even fired a gun,” said Christopher Smith, a public defender in the Bronx. “But it’s a dangerous neighborhood.” His clients, he added, would rather be tried for carrying an illegal gun than killed for not having one to defend themselves. Bruen has shifted the legal strategy in gun possession cases, particularly for clients who had prior felony convictions, Smith said. “The biggest change is now we just write a different motion in gun cases, where we challenge on Second Amendment grounds.”

Prison Policy Initiative briefing discusses "10 ways that mass incarceration is an engine of economic injustice"

The quoted portion of this post title is the title of this new briefing published by the Prison Policy authored by Eric Seligman and Brian Nam-Sonenstein. Here is how the discussion starts:

Money is power in the United States, and mass incarceration plays a major role in determining who can wield power and who can’t.  As we’ve noted repeatedly over the years, it is no coincidence that the poorest and most vulnerable communities are also the most policed.  The criminal legal system erects significant barriers to employment and the ballot box, economically and politically weakening entire communities.  Importantly, this arrangement impacts all workers: employers use this massive class of disadvantaged people to threaten all workers with replacement and increasingly risky unemployment if they dare to demand better wages and conditions.  Mass incarceration also weaves a narrative that pits people with similar economic interests against one another, reducing systemic inequality to matters of individual choice.  Fortunately, understanding mass incarceration as the wealthy’s preferred economic policy clarifies that ending it is necessary for all movements for justice and equality — all working people benefit from solidarity with criminalized people.

In this briefing, we compile ten examples of how mass incarceration blocks progress toward economic justice.  We argue that our massive system of criminalization is not an isolated issue, nor is it someone else’s problem; it is an engine of inequality that traps people in poverty, weakens worker power, and undermines political organizing toward a more prosperous future for the vast majority of people.

"State Legislatures and the Uptake Puzzle in Expungement of Criminal Records"

The title of this post is the title of this recent paper available via SSRN and authored by Jessica Steinberg and Elenore Wade. Here is its abstract:

Expungement has an uptake problem.  A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only 1 to 6 percent of eligible people avail themselves of the remedy.  Expungement is a powerful policy tool that promotes social and economic reintegration.  It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes.  One might assume people would rush to court to clear their records.  That the opposite is occurring — and new laws are idling on the books —suggests that rights-creation in this space has not been efficacious.  This demands a hard look at the mechanics of expungement to ferret out possible reasons for the stagnation of the most sprawling and ambitious policy attempt in recent history to address the collateral consequences of mass criminalization.

This article tackles the uptake puzzle in expungement of criminal records.  Employing an access-to-justice framework and drawing from the literature on administrative burden, the article presents findings from a study that identifies uptake barriers embedded in the workings of formal law and institutions.  We systematically analyzed the law and procedure governing expungement of felony convictions in all thirty-two states that allow for it.  We then developed six metrics to study, all within the control of the formal institutions responsible for creating or administering expungement policy.  These metrics investigated access to the expungement remedy in light of the unique legal regime in each state and allowed us to create a state-by-state comparison of whether and to what extent courts and legislatures developed the conditions necessary for a person seeking felony expungement to complete the process successfully.  Our study uncovered access barriers to expungement uptake across three domains: informational, procedural, and financial.  These barriers reflect governmental decisions to shift uptake burdens to ordinary people and enshrine those burdens in formal law.  The article provides rich qualitative analysis of these access barriers as one way to account for the uptake puzzle.  With these findings, we elevate access challenges as both central to the efficacy of expungement policy and as eminently avoidable.

In addition, the article offers two broad implications from our research that point the road forward on reform.  First, we find that legislatures play a surprisingly dominant role in restricting access to the expungement remedy.  By probing the under explored role of legislatures, we surface a more complex treatment of how access barriers are layered across institutions to keep the expungement remedy out of reach.  Second, we suggest that each state has developed a de facto “access policy” that serves an adjunctive role to substantive expungement policy. Without exception, these access policies are haphazard in their expression and work at cross-purposes with the stated goals of expungement.  We call on legislatures to leverage their substantial convening power to study the real-world circumstances of expungement applicants.  We also call on states to draw on the pluralistic access landscape we depict in this Article to turn toward access-promoting choices that increase uptake.

Ninth Circuit grants en banc rehearing of panel ruling that federal felon-in-possession criminal law is unconstitutional

As discussed in this post, a couple months ago, a split Ninth Circuit panel handed down a major Second Amendment ruling in US v. Duarte, No. 22-50048 (9th Cir. May 9, 2024) (available here), finding that the Supreme Court's Bruen ruling renders unconstitutional federal law's criminal prohibition on gun possession by nonviolent felons.  Now, as set forth here, yesterday a "vote of a majority of nonrecused active judges ... ordered that this case be reheard en banc."  Judge VanDyke issued a 12-page dissent from the grant of rehearing en banc that is worth a full read.  Here is an excerpt:

Nothing in the Supreme Court’s recent Rahimi decision controls or even provides much new guidance for these [felon-in-possession] cases, which is undoubtedly why the federal government took the unusual step of asking the Court to review one or more of these pending cases immediately after Rahimi instead of following the Court’s usual practice of GVRing (granting, vacating, and remanding) related cases.  It’s also why the original panel in this case, after careful consideration, saw no reason to modify our opinion after Rahimi came down.  But the Supreme Court rejected the government’s request and kicked the can down the road, GVRing all the pending Section 922(g)(1) decisions and instructing the lower courts to take another look at them in light of Rahimi.

The Supreme Court’s docket this next term is no doubt full of important issues to decide, and this delay-the-inevitable approach to pressing Second Amendment questions would be just fine if the circuit courts were populated with judges committed to faithfully applying the considerable instruction already provided to us by the Court.  But that is clearly not the case.  In this circuit, you could say that roughly two-fifths of our judges are interested in faithfully applying the totality of the Supreme Court’s Second Amendment precedent when analyzing new issues that have not yet been directly addressed by the Court.  The other 17/29ths of our bench is doing its best to avoid the Court’s guidance and subvert its approach to the Second Amendment.  That is patently obvious to anyone paying attention. To say it out loud is shocking only because judges rarely say such things out loud.... 

Section 922(g)(1) applies to anyone “who has been convicted in any court of[] a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(g)(1).  This applies to the many felons whose crime or conduct show they pose a “clear threat of physical violence to another.” Rahimi, 144 S. Ct. at 1901.  But it equally applies to felons who have no history of or expected propensity towards violence, like Martha Stewart.  When assessing the burden on the Second Amendment right imposed by the surety and affray laws, the Court in Rahimi found it key that the laws “involved judicial determinations of whether a particular defendant likely would threaten or had threatened another with a weapon.” Id. at 1902.  This tracks the view of scholars who have linked these historical laws to a principle of disarming those who pose a threat of physical violence to another.  Here the government not only failed to show that Duarte “likely would threaten or had threatened another with a weapon.” Id.  It conceded he has no history of violence.  Duarte, 101 F.4th at 663 n.1. 

En banc Fifth Circuit rejects claim Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

As noted in this prior post, last year a split Fifth Circuit panel ruled in Hopkins v. Hosemann,,  No. 19-60662 (5th Cir. Aug. 4, 2023) (available here), that Mississippi's disenfranchisement for life of persons with certain felony convictions "is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment."  In that post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and that very predictable outcomes because a reality today with an opinion in Hopkins v. Watson,  No. 19-60662 (5th Cir. July 17, 2024) (available here).  Here are excerpts from the start of the majority opinion:

This en banc court convened to reconsider a panel decision holding that Section 241 of the Mississippi Constitution, which disenfranchises those convicted of certain felony offenses,1 fails the test of the Eighth Amendment, as incorporated by the Fourteenth Amendment’s Due Process Clause.2 We reject that result because the United States Constitution cannot properly be so interpreted.  The Supreme Court, in Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655 (1974), reaffirmed a body of constitutional law expressly permitting States to enact felon disenfranchisement. And even if modern jurisprudence under the Eighth Amendment is applicable, which it is not, the case law cannot be stretched to outlaw Section 241....

Laws like Mississippi’s Section 241 have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar States from permanently disenfranchising felons, it dispensed some advice to the losing parties:

We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them. . . . But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people . . . . will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument. Richardson v. Ramirez, 418 U.S. at 55, 94 S. Ct. at 2671.

In other words: go and convince the State legislatures.  Do the hard work of persuading your fellow citizens that the law should change.  The paramount lesson of the Constitution and Richardson is that the changes sought by Plaintiffs here can and must be achieved through public consensus effectuated in the legislative process, not by judicial fiat.  

The dissent begins this way:

The right to vote is the essence of a democratic society and “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Yet Article XII, Section 241, of the Mississippi Constitution of 1890 mandates permanent, lifetime disenfranchisement of a person convicted of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.”  Disenfranchisement extends to free people who have completed all terms of their sentences.  The Plaintiffs, representing a class of persons who have been convicted of Section 241’s crimes and have completed the terms of their sentences, challenge the constitutionality of Section 241. The Plaintiffs are both Black and White, and their Eighth Amendment argument is independent of the “invidious” discrimination that originated Section 241.  Rather, the Plaintiffs argue permanent disenfranchisement of free persons who have completed all terms of their sentences constitutes cruel and unusual punishment in violation of the Eighth Amendment.  Under well-settled principles of Eighth Amendment jurisprudence, the Plaintiffs have met their burden. A national consensus to this effect has now formed among a large majority of the states. 

Prior related posts:

• Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment
• Finding broader Eighth Amendment echoes from Fifth Circuit's ruling that lifetime felon disenfranchisement is unconstitutional 
• En banc Fifth Circuit to review panel ruling that lifetime felon disenfranchisement is unconstitutional under Eighth Amendment 

"Out of Step: U.S. Policy on Voting Rights in Global Perspective"

The title of this post is the title of this new report from The Sentencing Project, Human Rights Watch, and the American Civil Liberties Union which focuses on the significant numbers of US citizens denied the right to vote in the US based on criminal convictions.  Here is the start of the report's executive summary:

The United States is an outlier nation in that it strips voting rights from millions of citizens solely on the basis of a criminal conviction.  As of 2022, over 4.4 million people in the United States were disenfranchised due to a felony conviction.  This is due in part to over 50 years of U.S. mass incarceration, wherein the U.S. incarcerated population increased from about 360,000 people in the early 1970s to nearly 2 million in 2022.  While many U.S. states have scaled back their disenfranchisement provisions, a trend that has accelerated since 2017, the United States still lags behind most of the world in protecting the right to vote for people with criminal convictions.

The right to vote is a cornerstone of democratic, representative government that reflects the will of the people.  The international consensus on the importance of this right is demonstrated in part by the fact that it is protected in international human rights law.  A majority of the world’s nations either do not deny people the right to vote due to criminal convictions or deny the right only in relatively narrow and rare circumstances.

This report highlights key findings since 2006:

• The United States remains out of step with the rest of the world in disenfranchising large numbers of people based on criminal convictions.  In part, this is due to a punitive criminal legal system resulting in one of the world’s highest incarceration rates.  As noted above, the country has disenfranchised, due to a felony conviction, over 4.4 million people who would otherwise be legally eligible to vote. This is also due to the laws in many US states that provide for broad disenfranchisement based on convictions.  For this report we examined the laws of the 136 countries around the world with populations of 1.5 million and above, and found the majority — 73 of the 136—never or rarely deny a person’s right to vote because of a conviction.  We also found that, even when it comes to the other 63 countries, where laws deny the right in broader sets of circumstances, the US is toward the restrictive end of the spectrum and disenfranchises, largely through US state law, a wider swath of people on the whole.

• The United States continues to disenfranchise a wider swath of its citizens based on a felony conviction than most other countries, many U.S. jurisdictions have worked to expand voting rights to persons with criminal convictions since 2006.  Reforms in some jurisdictions within the United States and other countries have limited the loss of voting rights due to a criminal conviction. Among other types of reforms, most U.S. states no longer disenfranchise individuals permanently for life and many no longer disenfranchise individuals upon release from incarceration.  These reforms have occurred through a combination of legislative change, amendments to state constitutions, court victories, and executive action. In some cases, however, as in Florida, expansion of rights restoration has been met with subsequent retrenchment. 

CCRC releases "Positive Credentials That Limit Risk: A Report on Certificates of Relief"

The Collateral Consequences Resource Center today released this new report by Margaret Love titled "Positive Credentials That Limit Risk: A Report on Certificates of Relief. Here is the start of the report's executive summary:

This report deals with a form of relief from the collateral consequences of a criminal conviction that is less far-reaching than expungement or other forms of record clearing, but is potentially available to more people at an earlier point in time.  These so-called “certificates of relief” do not limit public access to a person’s record, but they may be effective in reducing many conviction-related disadvantages in the workplace, including by providing employers and others with protection against the risk of being sued for negligence.

At least as long as expungement and sealing remain unavailable to many people with a felony conviction record, or are available only after lengthy waiting periods, certificates of relief can provide an important addition to a state’s reentry scheme, and serve as a bridge to more thorough forms of record relief like expungement.  We believe that, rather than competing as alternative forms of relief, certificates and expungement can operate as complementary parts of a structured system of serially available criminal record relief.

Yet it appears that certificates have been largely ignored in many states by courts that are empowered to dispense them, as well as by the advocacy community whose clients might benefit from them. State court systems have failed to collect, track, or aggregate basic data like the number of certificate applications, grants, and denials, a failure that makes it almost impossible to evaluate a certificate’s effectiveness in a given state.

At the same time, in a promising development, certificates are being used by prison and parole agencies to facilitate reentry for those exiting prison or completing supervision.

Given the perceived limits of record clearing as a comprehensive reentry strategy, social science researchers have become interested in studying the effect of laws that aim to increase the positive information about individuals with a criminal record to counter the negative effect of the record itself. This report is intended to support these research efforts by describing the state of the law relating to certificates of relief in the 21 states that now offer them. A follow-up study will look at the state of executive pardoning.

After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden?

For criminal law practitioners, as well as for those who take constitutional gun rights seriously, the provision of federal criminal gun control that was upheld by the Supreme Court in US v. Rahimi, 18 USC § 922(g)(8) (basics here), is not really a matter of frequent concern.  As noted in this new Quick Facts publication from the US Sentencing Commission, the vast majority of federal criminal gun control prosecutions involve persons who "were convicted under 18 U.S.C. § 922(g) because of a prior felony conviction."  Of just over 8000 persons sentenced in federal court for illegally posessing a gun in Fiscal Year 2023, well over 7000 were in violation of federal 18 USC § 922(g)(1) for having a firearm after having "been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."

Of course, just in the last few months, a couple of high profile individuals have "been convicted [of] a crime punishable by imprisonment for a term exceeding one year."  Because both former President Donald Trump and son-of-the-current-President Hunter Biden have now both been convicted of felonies, they would be committing a new federal felony crime if they now or in the future were to "possess ... any firearm or ammunition."  (There is perhaps an irony that one of Hunter Biden's felony convictions involves another different (suspect?) provision of 18 USC § 922(g), but he also was convicted of two other crimes that trigger the criminal gun possession prohibition of § 922(g)(1).)   So, to comply with federal statutory criminal law, Donald Trump and Hunter Biden should make sure they do not now or in the future posssess any firearm or ammunition. 

But what about their Second Amendment rights?  Notably, at least two circuit courts and a number of district courts have read the Supreme Court's landmark Bruen opinion to lead to the conclusion that the federal criminal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offenders.  Both Donald Trump and Hunter Biden could surely make a claim that they are nonviolent, nondangerous offenders, so can they also claim they have a constitutional legal right to possess a gun regardless of federal statutory law? 

Of course, this past Friday, the Supreme Court in Rahimi explained how Second Amendment law is now supposed to work, and so Donald Trump and Hunter Biden (and their legal teams) have new guidance as to the scope and limits of their gun rights.  But, from my read of key language in Rahimi, I am still scratching my head on this important front.  Here, I believe, is much of the key operative language from the Court's Rahimi opinion:

Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms....   From the earliest days of the common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others....

Taken together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed....

While we do not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, see Heller, 554 U. S., at 626, we note that Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another....

Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home.  In fact, our opinion stated that many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.”...

Section 922(g)(8) ... presumes, like the surety laws before it, that the Second Amendment right may only be burdened once a defendant has been found to pose a credible threat to the physical safety of others.... [O]ur Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not....  Our tradition of firearm regulation allows the Government to disarm individuals who present a credible threat to the physical safety of others....

Finally, in holding that Section 922(g)(8) is constitutional as applied to Rahimi, we reject the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.” Brief for United States 6; see Tr. of Oral Arg. 8–11. “Responsible” is a vague term. It is unclear what such a rule would entail. Nor does such a line derive from our case law....

[W]e conclude only this: An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.

I do not believe Donald Trump or Hunter Biden "poses a clear threat of physical violence to another," and § 922(g)(1) notably serves to permanently disarm anyone with a felony conviction.  Further, the federal government has, since Bruen, generally argued for the constitutionality of 922(g)(1) based on the notion that only "responsible" individuals have Second Amendment rights.  The Rahimi court directly and expressly rejected that notion.  But still, as we saw before in Second Amendment cases like Heller and McDonald, the Court in the Rahimi seems to still embrace dicta that can be read to suggest that the very broad criminal prohibition set forth in 18 USC § 922(g)(1) is still constitutional.  

So, to repeat the question in the title of this post: After Rahimi, can Donald Trump legally possess a gun? How about Hunter Biden? 

"Positive Credentials That Limit Risk: A Report on Certificates of Relief"

The title of this post is the title of this notable new report produced by the Collateral Consequences Resource Centerand authored by Margaret Love and Nick Sibilla.  Here is the start of the report's abstract:

This report deals with a form of relief from the collateral consequences of a conviction that is less far-reaching than expungement or other forms of record clearing, but is potentially available to more people at an earlier point in time. These so-called “certificates of relief” do not limit public access to a person’s record, but they may be effective in reducing many conviction-related disadvantages in the workplace, including by providing employers and others with protection against the risk of being sued for negligence.

At least as long as expungement and sealing remain unavailable to many people with a felony conviction record, or are available only after lengthy waiting periods, certificates of relief can provide an important boost to a state’s reentry scheme, and serve as a bridge to more thorough forms of record relief.  Yet it appears that certificates have been largely ignored in many states by the courts that are empowered to dispense them, as well as by the advocacy community whose clients might benefit from them.  At the same time, they are beginning to be widely used by prison and parole agencies to encourage employment opportunities and otherwise facilitate reentry for those exiting prison or completing supervision.

Given the limits many perceive in record clearing as a comprehensive reentry strategy, social science researchers have become interested in studying the effect of laws that aim to increase the positive information about individuals with a criminal record to counter the negative effect of the record itself.  This report is intended to support these research efforts by describing the state of the law relating to certificates of relief in the 21 states that now offer them.  A follow-up study will look at pardons. We hope to stimulate interest in a type of criminal record relief that has been neglected in recent years as background screening has become widespread.

We hope that this report will stimulate public interest in a type of relief that has been neglected in recent years as background screening has become widespread, and suggest ways to make it more widely available. Our goal is to encourage a view of certificates and expungement as complementary parts of a single structured system of serially available criminal record relief.

"Donald Trump can still be president, but he could be barred from being a bartender, car salesman — or real estate developer"

The title of this post is the title of this new Prison Policy Initiative briefing authored by Brian Nam-Sonenstein. The subtitle of the briefing captures its themes: "The former president’s conviction spotlights how state policies make it hard for people with felony convictions to find good jobs." Here is how it starts:

Last week, former President Donald Trump was convicted of 34 felonies in New York — becoming the first former (and perhaps future) president to be convicted of a felony.  While the conviction will not prevent him from pursuing the presidency, he nonetheless joins over 19 million people in America with felony convictions.  Unlike the vast majority of people with this status, Trump’s immense wealth and power will likely insulate him from the struggles most will face in securing much less prestigious jobs.  That’s because many states permit if not outright facilitate bias against hiring people with records — especially roles that require professional licenses.

Could Donald Trump, as felon dispossessed of guns, (further) impact Second Amendment jurisprudence?

I believe Donald Trump does not formally become a convicted felon until judgment is entered following his sentencing next month.  But it is not too early to think about some of the collateral consequences of his conviction.   Today I got to thinking about the fact that Trump, as a convicted felon, needs to soon become dispossessed of any firearms due to federal law (and also state laws) making it a serious crime for a felon to possess a gun.  This HuffPost piece, headlined "Donald Trump, Convicted Felon, Just Lost His Gun Rights," discusses these issues, and it notes that Trump has said that he owns and carries guns:

Trump rarely discusses his personal use of firearms.  But in a 2012 interview, he told The Washington Times that he held a concealed carry license in New York and owned two handguns — a .45-caliber H&K and a .38-caliber Smith & Wesson. Trump told French Magazine Valeurs Actuelles four years later, “I always carry a weapon on me.”

Not discussed by HuffPost piece is the fact that two federal circuit courts and some federal district courts have decided that the federal felon-in-possession criminal law, 18 USC § 922(g)(1), is unconstitutional as applied to non-violent offenders after the Supreme Court's landmark Second Amendment Bruen ruling.  And, of course, the Supreme Court is actively considering the reach and application of its Bruen ruling in the Rahimi cases concerning another § 922(g) prohibition on certain justice-involved persons possessing guns.  But it is unlikley the Rahimi case will clearly resolve the constitutionality of § 922(g)(1).

Donald Trump has already had a profound impact on Second Amendment jurosprudence because he appointed three Justices to the Supreme Court who had a key role in the Court's 2022 Bruen ruling.  But I cannot help but wonder if Trump's status as a non-violent felon subject to § 922(g)(1) might possibly add momentum to the developing Second Amendment jurisprudence that limits who can be forever dispossessed of firearms.  (A notable 2009 article on these issues, titled "Why Can't Martha Stewart Have a Gun?," detailed the lack of longstanding constitutional history supporting a ban on non-violent felons possessing firearms.  Perhaps it is time for an updated new title for this work:"Why Can't Donald Trump Have a Gun?".)

Prior recent related posts:

• Some sentencing basics after former President Donald Trump's convictions on 34 felony New York counts 
• Will Donald Trump make a statement on his behalf at his upcoming sentencing?

"Padilla's Broken Promise: Pennsylvania Case Study"

The title of this post is the title of this new article authored by Mikaela Wolf-Sorokin, Liz Bradley and Whitney Viets (which caught my eye, in part, because I am in the Keystone state today for this event). Here is its abstract:

In 2010, the Supreme Court held in Padilla v. Kentucky that criminal defense attorneys have a constitutional obligation to advise noncitizen clients of the immigration consequences of a guilty plea in criminal court proceedings.  Though it has been over a decade since the decision, little research has been done regarding Padilla’s implementation by defense counsel on a statewide level.  This Article provides findings from a case study on Padilla advising in Pennsylvania. Pennsylvania is unique because its state courts have interpreted Padilla narrowly and permit immigration advisals that would be deemed constitutionally deficient in other jurisdictions.  Pennsylvania also does not have a state-funded public defense system, which means standards for indigent representation vary by county.

Interviews with public defenders and prosecutors in Pennsylvania reveal significant variation in the scope of advice provided to noncitizens in criminal court proceedings and the willingness of district attorney offices to consider immigration status during plea negotiations.  Each Pennsylvania county has an individual method of identifying noncitizen clients, analyzing immigration consequences, warning clients of these adverse consequences, and negotiating with district attorneys.  The scope of advice provided to noncitizens and counsel’s understanding of their Padilla obligations vary considerably in both content and scope.  Counties suffer from Pennsylvania’s systemic failure to provide adequate funding to public defense offices to ensure that they can effectively comply with Padilla — a problem that is especially salient in a state with limited postconviction remedies for those who receive deficient advice. Based on these findings, this Article offers various policy recommendations that would improve the criminal defense representation of noncitizens in Pennsylvania.  While these findings and recommendations are specific to Pennsylvania, they are relevant to nationwide research on Padilla’s impact and what can be done to promote immigration-conscious criminal defense advocacy.

Rounding up some new and older marijuana record relief scholarship for 4/20 reading

I tend to find extreme affinity for 420 as a kind of marijuana holiday to be a bit silly.  But I am not so much of a scrooge that I will eschew a marijuana-themed post on this day.  Inspired in part by a great new paper from researchers at the Drug Enforcement and Policy Center (the listed first below), I figured I woud round up an array of pieces from SSRN focused on the intersection of marijuana reform and record relief.  I have only collected pieces on was able to find quickly on SSRN, so what is linked here is surely just an abridged accounting of work in this space:  

"Automatic Record Relief in Ohio: Recommendations for Minimizing Implementation Challenges and Maximizing Impact"

"Marijuana Legalization and Record Clearing in 2022"

"Marijuana Legalization and Expungement in Early 2021"

"Erasing Evidence of Historic Injustice: The Cannabis Criminal Records Expungement Paradox"

"Ensuring Marijuana Reform Is Effective Criminal Justice Reform"

"High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Marijuana Laws"

"Leveraging Marijuana Reform to Enhance Expungement Practices"

A second chance to celebrate Second Chance Month by registering for "Relief in the Making" conference starting tomorrow!

In this post a few weeks ago, I flagged the President's "Proclamation on Second Chance Month, 2024" and its call for "all the people of the United States to observe this month with appropriate programs, ceremonies, and activities."  In so doing, I highlighted this exciting event taking place here at The Ohio State University Moritz College of Law titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws." Here are the essentials:

The Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law will host a symposium titled "Relief in the Making: The Policy, Implementation, and Impact of Rights Restoration Laws" on April 11-12, 2024 in Drinko Hall at The Ohio State University in Columbus, Ohio. The symposium aims to examine and assess, from a variety of perspectives and with the help of a variety of voices, recent legal and policy developments regarding collateral consequences, record relief efforts, and broader concerns of justice and fairness for individuals and communities with criminal justice system involvement.

This is a free event which now is just a day away (though the full series of public panels takes place on Friday).  Folks can register at this link, and here is the full program link, and here is a bit more background from this event page: 

For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years. Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas. 

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

"Reevaluating Felon-in-Possession Laws After Bruen and the War on Drugs"

The title of this post is the title of this new article now available via SSRN authored by Laura Ginsberg Abelson.  Here is its abstract:

The legal landscape surrounding firearm possession is evolving rapidly.  In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle and Pistol Association v. Bruen.  Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with one notable exception: felon-in-possession laws.  This paper examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior, possession of a firearm, that is constitutionally protected for everyone else.

I argue that as the Second Amendment expands to protect more and more firearm possession, a dichotomy has arisen in which those who live in the communities most heavily targeted by the war on drugs of the 1980s and 1990s are increasingly becoming virtually the only Americans for whom firearm possession is illegal.  I examine the history and development of felon-in-possession statutes to show that they were not enacted with a clear purpose, and are not narrowly tailored to criminalize the most dangerous behavior. Further, I show how existing federal enforcement priorities and the structure of the United States Sentencing Guidelines compound the harms of the war on drugs by punishing individuals with prior drug offenses most harshly, even when there is limited evidence to suggest that they pose the greatest danger from firearm possession.

The Supreme Court is currently considering how to assess the question of danger in relation to the Second Amendment in United States v. Rahimi.  I argue that as Second Amendment jurisprudence evolves, prosecutors and legislators must be cognizant of the lasting effects of the war on drugs, and question the assumption that a prior felony conviction is an accurate proxy for dangerousness.

"The problem with criminal records: Discrepancies between state reports and private-sector background checks"

The title of this post is the title of this new article just published in Criminology and authored by Sarah Lageson and Robert Stewart. Here is its abstract:

Criminal records are routinely used by employers and other institutional decision-makers who rely on their presumed fidelity to evaluate applicants.  We analyze criminal records for a sample of 101 people, comparing official state reports, two sources of private-sector background checks (one regulated and one unregulated by federal law), and qualitative interviews. 

Based on our analysis, private-sector background checks are laden with false-positive and false-negative errors: 60 percent and 50 percent of participants had at least one false-positive error on their regulated and unregulated background checks, and nearly all (90 percent and 92 percent of participants, respectively) had at least one false-negative error. 

We define specific problems with private-sector criminal records: mismatched data that create false negatives, missing case dispositions that create incomplete and misleading criminal records, and incorrect data that create false positives.  Accompanying qualitative interviews show how errors in background checks limit access to social opportunities ranging from employment to education to housing and violate basic principles of fairness in the legal system.

No criminal law opinions from SCOTUS on day of oral argument over constitutional collateral consequences

Though many SCOTUS watchers are understandably focused on today's oral argument in Trump v. Anderson, I flagged earlier this week in this post that I was hoping the Pulsifer case dealing with a sentencing provision of the FIRST STEP Act would be handed down this morning.  But, as I had predicted and feared, we today only got from the Justices two opinions in civil cases, both of which were relatively short and unanimous (though one ruling, in Murray v. UBS Securities, engages a kind of mens rea issue under the whistleblower provision of the Sarbanes-Oxley Act.)

But while reflecting on today's SCOTUS activities, I got to thinking about whether it might be fair and perhaps even useful to describe the issue before the Court in Trump v. Anderson as concerning what might be called a distinctive "constitutional collateral consequence."  Specifically, Section 3 of the 14th Amendment provides that certain persons who "have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof" shall not be allowed to hold certain government jobs.  And, notably, this Section also provide a means of "record relief": "Congress may by a vote of two-thirds of each House, remove such disability."

I have only vaguely followed all the debates and discussions surrounding the proper interpretation of Section 3, and I am glad lots of other folks are far more engaged by all the historical, doctrinal and pragmatic issues to consider in this matter.  How SCOTUS discusses this provision during oral argument today and in its ultimate ruling will certainly serve to define just how Section 3 is viewed and framed in this election year and beyond.  But I wonder if others think it useful or perhaps silly to view of this part of the 14th Amendment as a kind of "constitutional collateral consequence."

Valuable reminder that Prez pardons are not the same as expungements

In this post from October 2022 following up Prez Biden's first major (but still minor) decision to grant pardons to federal marijuana possession offenders, I lamented that he missed an important opportunity to prod Congress to follow the lead of so many states in expanding mechanisms to seal or expunge past convictions.  At the federal level, no general record relief laws are in place (though a number of bills have been proposed to remedy this legal gap), and that means many thousands of low-level federal offenders can only hope for a presidental pardon and, even if getting an act of clemency, such relief does not formally operate to expunge their  convictions.

That old post came to mind upon seeing this new piece at Marijuana Moment by Kyle Jaeger headlined "  Biden Falsely Suggests Marijuana Pardons ‘Expunged’ Records And Released Prisoners While Campaigning On ‘Promises Kept’."  Here are excerpts (with links from the original):

President Joe Biden is again inflating the impact of his pardons for marijuana offenses, falsely suggesting that his act of clemency “expunged” records and that people were released from prison.  “A promise made and a promise kept,” he said during a campaign speech in South Carolina on Saturday.  “I keep my promises when I said no one — no one — should be in prison for merely possessing marijuana or using it, and their records should be expunged,” Biden said.

The president has routinely framed the mass cannabis pardon as an example of him fulfilling campaign pledges, but he’s also frequently misstated the practical effects of the action.  A presidential pardon represents formal forgiveness from the government, but it does not expunge the record.

Several thousands of people have received the pardon for federal marijuana possession offenses under a pair of proclamations issued in 2022 and last month. The Justice Department has been distributing certificates to eligible people who apply for the largely symbolic document.   “The pardon means that you’re forgiven, but you still have a criminal record,” the certificate says.

Also, of those thousands who earned the clemency, no one was released from prison as a result, despite Biden insinuating as much. Federal prosecutions for possession alone are very rare.  Advocates have pointed out, however, that there are still people in federal prison over other non-violent marijuana offenses....

But by repeatedly touting his mass cannabis pardon, it seems Biden is aware of the political popularity of marijuana reform. And a recent poll suggests he stands to gain significantly in terms of favorability if his scheduling directive results in a reclassification under federal law.  It found that voters’ impression of the president jumped a net 11 points after hearing about the possible implications of the rescheduling review — and that includes an 11-point favorability swing among young voters 18-25 who will be critical to his reelection bid.

Unsurprisingly, en banc Fifth Circuit seeming chilly toward notion that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

As noted in this prior post, last summer a split Fifht Circuit panel ruled in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here), that Mississippi's disenfranchisement for life of persons with certain felony convictions "is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment."  In that post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and this Bloomberg Law report on today's en banc oral argument certainly does not change my prediction:

Conservatives on the US Court of Appeals for the Fifth Circuit seemed skeptical of ruling for convicted felons seeking to declare a lifetime voting ban in Mississippi cruel and unusual punishment under the US Constitution.  Republican appointees on the New Orleans-based court at the en banc argument on Tuesday raised the implications of finding that permanent disenfranchisement of the right to vote is cruel and unusual, and how it could create issues in other contexts.

And some judges suggested that the issue is one for legislators, not the court.  Judge Kyle Duncan, a Donald Trump appointee, said that if the same arguments were presented to the Mississippi Legislature, they may “have a lot of purchase, but we are a court of law.”

Judge Edith Jones, a Ronald Reagan appointee who was the lone dissenting vote on the circuit panel whose ruling was reviewed en banc, asked about people convicted of crimes like murder and rape regaining the right to vote.

Judge James Ho, another Trump appointee, asked how far a ruling finding a deprivation of the right to vote is a cruel and unusual punishment could stretch into other issues. Ho suggested that a court ruling that found depriving someone of the right to vote falls under the Eighth Amendment could be raised in other contexts, like a felon’s right to possess a gun or challenges to prison sentences. “If it’s cruel and unusual to deprive felons of one right, it could apply to other rights,” Ho said.

The Mississippi Constitution states that certain felons can’t vote for the rest of their lives, unless two-thirds of each house of the Legislature reinstates the right on an individual basis. A trial court in Mississippi rejected most of the claims by felons, who had completed their sentences, in a pair of class action suits challenging the ban, but said one claim challenging the process to restore voting rights could go to trial. The divided three-judge Fifth Circuit panel ruled in August that the plaintiffs lacked standing to challenge the way voting rights are restored, but that permanently depriving felons of the right to vote was a “cruel and unusual punishment.”

Judge Stephen Higginson, appointed by Barack Obama, questioned Mississippi Solicitor General Scott Stewart about whether the provision is a qualification to vote, or a punishment. Stewart said “nothing on the face” of the provision itself “shows a punitive intent.” Stewart said that voting is “not just a right, it’s a responsibility.” He said that the Supreme Court has already found that states can disenfranchise felons, and that Mississippi had determined that people convicted of certain crimes should not be able to make governing decisions for other citizens....

The en banc Fifth Circuit in 2022 rejected another challenge to the Mississippi voting ban, that alleged it violated the U.S. Constitution’s Equal Protection Clause.

Prior related posts:

• Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment
• Finding broader Eighth Amendment echoes from Fifth Circuit's ruling that lifetime felon disenfranchisement is unconstitutional 
• En banc Fifth Circuit to review panel ruling that lifetime felon disenfranchisement is unconstitutional under Eighth Amendment 

The Sentencing Project releases final report on racial disparities, "One in Five: How Mass Incarceration Deepens Inequality and Harms Public Safety"

As noted in this October post, The Sentencing Project has been producing what it describes as "a series of four reports examining both the narrowing and persistence of racial injustice in the criminal legal system, as well as highlighting promising reforms."  Today, The Sentencing Project released this latest and last report in this series, titled "One in Five: How Mass Incarceration Deepens Inequality and Harms Public Safety."  Here is a starting part of this new report's executive summary:

The previous installment of the One in Five series examined three drivers of racial disparity from within the criminal legal system: disparate racial impact of laws and policies, racial bias in the discretion of criminal legal professionals, and resource allocation decisions that disadvantage low-income people.6 This final installment of the series presents a fourth driver of disparity in imprisonment which relates to the damaging consequences of criminal legal contact—contact that is disproportionately experienced by communities of color.

Specifically, this report explores laws and policies that exacerbate socioeconomic inequalities by 1) imposing financial burdens and collateral consequences on people with criminal convictions and 2) diverting public resources from effective interventions to promote public safety.

Prior related posts:

• Sentencing Project releases first in series of reports on the "narrowing and persistence" of racial disparities CJ system
• The Sentencing Project releases latest report on racial disparities, “One in Five: Disparities in Crime and Policing”
• The Sentencing Project releases latest report on racial disparities, "One in Five: Racial Disparity in Imprisonment - Causes and Remedies"

"Refining the Dangerousness Standard in Felon Disarmament"

The title of this post is the title of this essay recently posted to SSRN and authored by Jamie G. McWilliam. Here is its abstract:

For a regulation of the Second Amendment right to be upheld, Bruen requires a showing of historically analogous laws.  In the context of felon disarmament, the primary group of laws that the government has put forward involve disarming classes that the government deemed dangerous, such as Loyalists, Catholics, and Blacks.  While the theme of dangerousness within these laws is strong, their prejudicial nature is concerning.  How can a court rely on them without implicitly importing a prejudicial analysis?

This essay argues that the takeaway from these historical analogues should be a broad theme of dangerousness, rather than the particular conceptions embodied therein.  Instead, to determine the scope of the dangerousness standard, courts should look to the principles embodies by the Second Amendment itself — in particular, defense against immediate personal violence.  Ultimately, this essay suggests that only those who have actually created the kind of danger that the amendment was meant to protect against — i.e., who have perpetrated physical violence — should be disarmed.  This standard may defend against potentially prejudicial discretion, while simultaneously upholding Second Amendment rights and protecting our community.

"Resetting the Record: The Facts on Hiring People with Criminal Histories"

The title of this post is the title of this short research brief authored by Shawn Bushway and published by RAND.  A couple of introductory paragraphs note the goals of the document:

Misperceptions can keep employers from hiring people who have criminal records. A growing body of RAND Corporation research counters some prevailing myths about risks of reoffending and provides hiring managers, policymakers, and citizens facts that support better-informed hiring decisions.

Criminal history background checks can provide hiring managers with important information about a job candidate. That said, employers risk making uninformed decisions that exclude good workers if they do not know which factors in the background check actually help predict an individual’s risk of reoffending.  The RAND Corporation’s Resetting the Record body of research presents evidence-based findings that could help employers make better, fact-driven decisions about hiring people with criminal records.  Exploring the research cited in this brief and sharing it with hiring managers may help create a triple win: companies get the employees they need, people with records get jobs, and society benefits.

CCRC releases latest annual review, "Advancing Second Chances: Clean Slate and Other Record Reforms in 2023"

Over at the Collaterial Consequence Resource Center, the CCRC staff have this new post noting the release of the latest annual report reviewing new state record relief laws.  This new publication, authored this year by Margaret Love and Nick Sibilla, is titled "Advancing Second Chances: Clean Slate and Other Record Reforms in 2023."  Here is how the introductory post gets started:

At the beginning of each year since 2016, CCRC has issued a report on legislative enactments in the year just ended, describing and evaluating new laws aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. This year’s report, “Advancing Second Chances: Clean Slate and Other Record Reforms in 2023,” is now available.

Our annual legislative reports have documented the steady progress of what we characterized three years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. Between 2018 and 2022, more than 500 new record reforms were enacted by all but two states.  

Last year we reported that the legislative momentum had slowed somewhat, and this year it has slowed still further.  Only a handful of states enacted significant new record reforms in 2023, most in the form of new record-clearing schemes. We attribute this slowdown in part to how much has been accomplished in legislatures across the country in the past seven years. For example, more than half the states now allow people with a felony conviction to vote unless they are actually incarcerated, a number that has doubled since 2016.  In addition, most states have also taken steps to limit public access to some criminal records, and to ensure that employers and licensing agencies do not discriminate against people with a criminal history. Many have extended diversionary dispositions well beyond the class of first offenders who were uniquely eligible for non-conviction relief a decade ago. 

In 2023, 20 states, the District of Columbia, and the federal government enacted 36 separate pieces of legislation and took executive action to restore rights and opportunities to people with an arrest or conviction history.

As in past years, more than half of the new laws in 2023 involved individual record clearing. Because of the significant progress on this front in recent years, many of the laws enacted in 2022 represent measured changes to existing record relief schemes rather than radical new reforms. Nonetheless, three states enacted major new automatic “clean slate” record schemes while others expanded eligibility for petition-based sealing. A handful of states continued to remove marijuana convictions from public view, and still other states trimmed barriers to relief by automating the application process, reducing waiting periods, or eliminating obstacles represented by outstanding court debt (fines and fees).

In addition, many of the new laws limited consideration of criminal records in economic settings, regulating employment and occupational licensing, or removing barriers to restoring a driver’s license.  The U.S. Small Business Administration took important steps toward eliminating restrictions in federally guaranteed loans.

Our sixth annual legislative report card (Reintegration Awards for 2023, reprinted below) recognizes the most productive legislatures in 2023, and notes that there are now only two states that have enacted no record reforms since our reporting began in 2016. As in the past, the state legislatures that have enacted the most significant reforms span the political spectrum, from Minnesota and New York to Louisiana and South Carolina.

"Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws"

The title of this post is the title of this notable new report produced by the Collateral Consequences Resource Center and authored by Margaret Love and Nick Sibilla. Here are parts of the report's introduction:

This report offers a comprehensive and up-to-date picture of the differing ways states have responded to the 1996 federal ban on access to SNAP and TANF benefits for those with a felony drug conviction, either by opting out of the ban or by modifying it, and includes illustrative maps and relevant sections of statutory text to facilitate analysis and comparison.

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) imposed a lifetime ban on federal food assistance benefits (SNAP) and Temporary Assistance for Needy Families (TANF) for anyone with a drug felony conviction obtained after passage of the Act. PRWORA allowed states to opt out of the ban or to modify it, and over the years all but one state has opted out of the ban or modified it for at least one of the two benefit programs. That said, fully half the states remain committed in some fashion to this outdated artifact of the War on Drugs.

Over the years there have been numerous reports critical of the policy underpinnings of the categorical ban on public welfare benefits imposed by PRWORA, and researchers have generally concluded that the ban is counterproductive even in modified form, including in criminal justice terms. Indeed, a recent empirical study of modified versions of the SNAP/TANF bans concluded that by “introducing greater state scrutiny of recipients’ conformity to state-sanctioned behavioral norms,” modified bans are “not inherently less punitive” than full bans.

We do not intend to dwell on the policy arguments against the PRWORA ban in this report. Rather, our purpose here is the more modest one of providing a detailed description of state laws that currently modify participation in the SNAP/TANF bans, for use by policymakers and advocates seeking further reforms. Surprisingly, this has not been done in the more than 25 years since PRWORA’s enactment. Two recent private sector studies have identified the extent of state participation in one or both of the PRWORA bans, but their conclusions are not consistent with one another or, in all cases, with our own research. Notably, neither of these studies documents the specific features of modified bans, which can vary widely from state to state in scope and effect.

Significantly, no previous report on the SNAP/TANF bans has included statutory text that would permit analysis of the ways various states have modified them, and comparisons between and among states. Our report attempts to remedy this shortcoming. We illustrate the national landscape of participation in the SNAP/TANF bans through a set of maps: one map shows the national landscape of participation in the PRWORA ban for all 50 states, and two additional maps show how states have modified the ban for each of the two benefit programs. A 30-page Appendix includes the text and an analysis of each state’s relevant law(s), providing additional detail about how access to benefits may be controlled differently even within the same general category of modification.

We hope that advocates in states that have not yet fully opted out of both the PRWORA bans will find this unique collection of research tools helpful as they work to complete this important law reform project.

"High fees, long waits cast shadow over new criminal expungement laws"

The title of this post is the headline of this notable new Stateline piece highlighting some challenges of implementing record relief laws. I recommend the full piece, and here are excerpts:

More states are making it easier for residents to clear or seal their criminal records. The effort has drawn bipartisan support, as lawmakers across the political spectrum say it will help people find jobs and housing, in turn boosting local economies and reducing reliance on social services....

But the shift has created some new concerns.  The surge in applications after lawmakers eased rules created a major backlog in several states. Some residents struggle to pay the required fees.  And some prosecutors and legislators worry that people who commit additional crimes after their records are expunged may not be held fully accountable.

At least four states — Louisiana, Maryland, Minnesota and New York — passed legislation this year that would make clearing or sealing one’s criminal record easier. Michigan and Ohio also had similar laws go into effect this year.

Expungement removes arrests and convictions from a criminal record as if they never existed, while record sealing hides records from the public but allows access by court officials and some law enforcement agencies. Almost every state has some form of expungement or record sealing policy. Though they can vary widely, most policies require individuals to be crime-free for a set amount of time, usually tied to how serious their conviction was....

Over the past five years, more states have moved to offer automatic expungement or sealing, which generally uses a computer system to wipe or shield people’s criminal records when they become eligible.  At least 26 states and the District of Columbia have an automatic system already in place or in the works....

Some state Republicans have “abandoned this mentality of tough on crime,” according to Nino Marchese, the director of criminal justice and civil justice at the American Legislative Exchange Council, a conservative nonprofit membership organization that drafts model legislation. Marchese said state legislators in the group are increasingly inclined toward evidence-based policymaking, which typically involves analyzing research and data, to draft criminal justice policies.

But some residents haven’t been able to get their records expunged because of the fees and large backlogs.... Some critics argue that broadening eligibility for expungements or the sealing of criminal records will put the public at risk by cloaking violent crimes.

Some of many prior related posts:

• "Is Expanding Eligibility Enough?: Improving Record Sealing Access and Transparency in Ohio Courts" 
• "Criminal Justice Record Clearing: An Analysis from Two States" 
• Reminders of how states keep moving forward, while feds fail to do so, on record relief mechanisms 

After Rahimi(?): mapping out the next big Second Amendment cases

After the Supreme Court in Heller in 2008 (and McDonald in 2010) first established an enforceable individual Second Amendment right, we all had to wait another dozen years until the Supreme Court in Bruen explained more fully how that right is supposed to be applied.   But, perhaps unsurprisingly, with the more individual-right-friendly Second Amendment standard created by Bruen leading to more individuals prevailing on Second Amendment claims in federal criminal cases, it now seems quite likely that the Justices will be taking up a number of Second Amendment gun cases in the coming Terms.  Of course, the Court already has the notable Rahimi case pending, but a few recent major articles from major papers are already flagging what might be the next big Second Amendment cases.  Consider:

From the New York Times: "The Supreme Court’s Search for a More Attractive Gun Rights Case"

    Subhead: "The next big Second Amendment case, after one on domestic violence, could be about whether the government can disarm a man who lied to get food stamps."

From USA Today, "This man fudged his income to put his family on food stamps. Should he be denied a gun?"

    Subhead: "Second Amendment appeals are arriving at a moment of uncertainty over just how far the Supreme Court's conservative majority is willing to go to roll over gun laws."

Of course, regular readers know these issues have been percolating in lower courts in the roughly 17 months since the Bruen ruling. Indeed, as spelled out in the posts below, I have been flagging these issues since the hours after Bruen was handed down:

• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen?
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen?

Applying Range, federal judge rules 922(g)(1) violates Second Amendment as applied to person with old DUI conviction

Over at Reason, Jacob Sullum has this effective account of yet another federal district court ruling that a federal criminal gun prohibition violates the Second Amendment.  Here is how Sullum's discussion starts (with links from the original):

The federal ban on gun possession by people with certain kinds of criminal records is often described as applying to "felons," but that shorthand is misleading.  The provision, 18 USC 922(g)(1), actually covers anyone convicted of "a crime punishable by imprisonment for a term exceeding one year."  That is why Pennsylvania resident Edward A. Williams lost his right to own a gun after he was convicted of driving under the influence, a misdemeanor, in 2005.  Had Williams defied Section 922(g)(1) by possessing a firearm, he would have been committing a federal felony punishable by up to 15 years in prison.

That consequence violated Williams' Second Amendment rights, a federal judge ruled on Tuesday.  U.S. District Judge John Milton Younge's decision in Williams v. Garland tracks the logic of a June ruling by the U.S. Court of Appeals for the 3rd Circuit, which includes Pennsylvania. The latter case, Range v. Attorney General, involved a Pennsylvania man who likewise was convicted of a nonviolent misdemeanor: food stamp fraud. Both cases illustrate the breadth of this "prohibited person" category, which includes many Americans with no history of violence.

The full 11-page ruling in Williams v. Garland is available at this link.

Just some (of many) prior related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender
• Eighth Circuit panel rejects constitutional challenge to federal felon-in-possession prohibition
• US District Court concludes Second Amendment requires dismissal of federal felon-in-possession prosecution 
• Are many district courts ordering Second Amendment briefing in felon-in-possession cases (and are charges and sentencings being impacted)? 
• Dissenting from denial of en banc review, Eighth Circuit judges make case that blanket felon disarmament violates the Second Amendment
• Federal court rules Second Amendment precludes felon-in-possession prosecution for defendant facing 15-year ACCA mandatory minimum

New Clean Slate Act signed into law in New York with an estimated five million criminal records to be sealed

As reported in this New York Times piece, "roughly two million people convicted of crimes in New York may be eligible to have their records sealed as part of a broad criminal justice initiative that was signed into law on Thursday by Gov. Kathy Hochul."  Here is more:

Under the so-called Clean Slate Act, people who complete their sentences and remain out of trouble for a set period — three years for misdemeanors, eight for eligible felonies — will have their convictions sealed.  The most serious crimes, including sex crimes, murder and most other class A felonies, will not be eligible for automatic sealing.

New York is now one of a dozen states that have enacted such laws, which are aimed at interrupting the cycle of recidivism by enabling formerly incarcerated people to access jobs and housing. The law will go into effect a year from now, though it will take three more years to clear the records of those currently waiting.

Ms. Hochul said that she was proud to sign the legislation, which she said would provide economic opportunities while protecting public safety. “The best crime-fighting tool is a good-paying job,” she said.

The bill’s signing is a victory for criminal justice advocates who spent years lobbying stakeholders on behalf of the measure. By the time it passed New York’s Democrat-dominated Legislature earlier this year, it boasted an impressive coalition of business, labor, government and advocacy groups who preached of its economic, moral and public safety benefits.

Indeed, one of the biggest ostensible hurdles was Ms. Hochul herself, who over her two years in power has split with progressives over some criminal justice measures, citing public safety concerns.  While Ms. Hochul was supportive of the general concept of the initiative, and included a scaled-back version in her legislative agenda last year, she expressed concern over the scope of the initial bill.

Ultimately, the governor was able to extract concessions from its sponsors before its passage, including an extended waiting period and liability protections for businesses that hire people who have criminal records.  Records will remain visible to law enforcement and court personnel, as well as certain sensitive employers.  Unlike previous iterations of the bill, the final version makes all class A felonies, except those related to drug possession, ineligible for sealing.

The concessions helped to quiet opposition, including from law enforcement groups.  While the major sheriffs', police and prosecutors’ associations have not backed the measure, they have refrained from publicly criticizing it.

An analysis from the Division of Criminal Justice Services showed that roughly 1 million felonies and up to 4 million misdemeanor convictions would be eligible for sealing....

Many Republicans still oppose the legislation, saying it may seal records that they believe ought to remain public.  They point to the existing process for sealing records, in which a judge approves each request.

Senate Minority Leader Robert Ortt, who represents the Niagara Falls area, said he was disappointed in Ms. Hochul’s decision and skeptical of the law’s projected economic benefits.  “I do not think this is going to solve the employee shortage that our employers are seeing here,” he said.  “We continue to pass legislation like this that is really geared toward those who have broken the law, the criminal class, and not those who might be victims,” he lamented.

New Prison Policy Initiative briefing covers "When parole and probation rules disrupt support systems"

Leah Wag of the Prison Policy Initiative has this new briefing titled "Guilty by association: When parole and probation rules disrupt support systems."  Here is how it begins (with links from the original):

For the 3.7 million people on parole or probation in the United States, the very people who can best support their success are often unable to help because of supervision conditions that prohibit them from being in contact.  Individuals reentering their communities on probation or parole often rely on support networks of family and peers who have been through similar reentry experiences.  Though research supports the unique benefits of these social connections, many states actually prohibit people on supervision from this contact, under the false assumption that it will lead people into criminalized behaviors. These “association” restrictions — sometimes called “no-association conditions” — are isolating and costly to those on supervision.  And the stakes are high: Failure to follow association restrictions can result in incarceration.

In prior work on probation and parole, we’ve referred to more widely known, difficult-to-satisfy supervision conditions — like securing employment and paying relentless fees— as examples of why supervision doesn’t “work” for so many people and too often results in incarceration for “technical” violations. In this briefing, we add to this work by compiling the most thorough research and data on association restrictions to date.  We show that, despite their illogical foundations and documented harms, they are imposed on hundreds of thousands of people (and impact many others) at any given time. If states and local jurisdictions truly want people on supervision to succeed, they should acknowledge and ultimately abandon association restrictions.

Research suggests that association-related release conditions are common in parole and probation. These restrictions are relics of antiquated supervision systems that required people under their control to live virtuous lives, “be good,” and associate with “good people.”  They generally prohibit interactions between people on supervision and large swaths of the population, such as those with felony convictions or others on probation or parole.  As a result, people must steer clear of certain places altogether, producing a complex web of prohibited activities and relationships that make it even harder to find housing and work, arrange for transportation, participate in treatment programs, or otherwise succeed in reentry.

Nearly final Call for Papers: "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws"

It is not quite November, so there is time for me to highlight once again the call for papers relating to an exciting event to take place at OSU next year, "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws."  Here is the call, which is available in full at this link: 

The Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law will host a symposium titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws" on  April 11-12, 2024 in Drinko Hall at The Ohio State University in Columbus, Ohio.  The symposium aims to examine and assess, from a variety of perspectives and with the help of a variety of voices, recent legal and policy developments regarding collateral consequences, record relief efforts, and broader concerns of justice and fairness for individuals and communities with criminal justice system involvement.

Background

For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years. Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas.

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication, in the spring of 2025.

Proposed abstracts of no more than 300 words are due on November 1, 2023.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1 @ osu.edu.  Accepted researchers will be notified by November 17, 2023.

Download the full call for papers here.

"Original Understanding, Punishment, and Collateral Consequences"

The title of this post is the title of this notable new article authored by Brian Murray and now available via SSRN.  Here is its abstract:

Can Founding-era understandings of punishment limit the reach of punitive state activity, specifically with respect to automatic collateral consequences?  This Article begins to tackle that question.  For over a century, the Supreme Court has struggled to define the boundaries of crime and punishment.  Under current doctrine, a deprivation constitutes punishment when it furthers a legislatively assigned penal purpose.  A retributive purpose is sufficient, whereas traditionally instrumentalist purposes, such as deterrence, rehabilitation, or incapacitation, are not.  Scholars have criticized this framework for several reasons, highlighting its jurisprudential assumptions, philosophical confusion, historical inconsistency, unworkability, complexity, and failure to reflect the essentially punitive nature of many, if not most, of the “collateral consequences” that flow from a conviction.

This Article offers a different critique along methodological grounds, arguing that existing doctrine is divorced from core jurisprudential premises in the broader constitutional tradition and the original meaning and understanding of crime and punishment.  First, while the American Constitution and legal tradition permit legislative determination of new types of crimes and the quantity of punishment, the understanding of crime and punishment at the time of the Founding was much simpler than the understanding reflected by existing doctrine.  Current law mistakenly defers to legislative judgment for resolving the definitional question, all but guaranteeing legislative overreach.  Second, the Court’s precedents have restricted the only sufficient penal purpose to retribution despite significant philosophical and legal history suggesting early American thinkers, reformers, and the Framers considered other purposes to be punitive.  Founding era attitudes relating to the justifications for and purposes of punishment, and the types of deprivations carried out by the state in the wake of conviction, suggest a thicker understanding of punishment that contemplates both retributive and instrumentalist purposes.

Put simply, there is ample evidence that Founding-era thinkers understood punishment to include state-imposed suffering that served retributive and non-retributive purposes.  The meaning of punishment was informed by an array of philosophical concepts, historical practices, and an understanding of criminal law and its enforcement built from liberal premises that also are instrumentalist.  Many early punishments had stigmatic, incapacitative, or rehabilitative purposes, and reformers often pointed to instrumentalist purposes to justify modification of punishment practices, leaving room for the punishment label to apply to more state-sanctioned deprivations than are currently classified as punishment.  By contrast, existing doctrine narrowly conceives the meaning of the term “punishment”.  If “purpose” is the lodestar, then the definition of punishment should be broader based on the historical evidence.  In an era of overwhelming collateral consequences, lawmakers and judges who take the original meaning of terms seriously for purposes of constitutional interpretation should take note when either classifying or adjudicating the character of a deprivation carried out by the government.  These findings furnish grounds for questioning the modern classification of many automatic collateral consequences as non-punitive measures, providing potential limits that are consistent with Founding-era conceptions of punishment.

Federal court rules Second Amendment precludes denial of gun permit based on multiple arrests and dozens of traffic violation and license suspensions

Way back in 2008 when the US Supreme Court first recognized in Heller that the Second Amendment protected an an individual "right of law-abiding, responsible citizens to use arms in defense of hearth and home," I started speculating about whether and how jurisdictions might try to build new gun regulations about this vague "law-abiding" descriptor from Heller.  Could and would governments claim that persons with only misdemeanor convictions had no Second Amendment rights?  How about persons with only traffic tickets or who have only been arrested but not convicted?   Given that most Americans, in my experience, are guilty at some time of speeding or illegal parking or jaywalking or some other public order nuance, taking this "law-abiding" label very seriously might dramatically limit who has Second Amendment rights.

Of course, after Heller, the reach of the Second Amendment was litigated a lot in lower courts in a lot of setting.  But this litigation has taken on a whole new chapter after last year's Bruen ruling by SCOTUS clarified that text, history and tradition provided the proper test for sorting through the Second Amendment's proper application.  Notably, though, the Bruen ruling used the adjective "law-abiding" nearly two dozen times in the course of its reorientation of Second Amendment doctrine.  Thus, Bruen arguably makes understanding this term in this context even more important for the future of constitutional gun rights.

In a couple of weeks, the Supreme Court  will hear oral argument in US v. Rahimi, which will address (at least) one aspect of how the landmark Bruen Second Amendment case applies to federal firearm possession criminalization based on the individual asserting gun rights.  But a helpful reader made sure I did not miss a federal district court ruling from New York's federal courts earlier this week that may put traffic scofflaws who love their guns at ease.  This New York Times article, headlined "Traffic Tickets Are No Bar to Owning a Gun in New York City, Judge Rules," provides a useful summary of the ruling and broader context:

The New York Police Department wrongly denied a Brooklyn man a firearm license because of his many traffic violations, a federal judge ruled Tuesday, a decision that could stop the city from considering moral character when deciding whether someone can have a gun.

The case in the Southern District of New York centered on Joseph Srour, a Brooklyn man rejected twice after he applied in 2018 to keep rifles, guns and shotguns in his home for protection. Mr. Srour challenged the department’s decision to reject his application based on the city’s administrative code, which allows a licensing agency, in this case the Police Department, to deny a firearm permit if it determines that an applicant lacks “good moral character” or for “other good cause.”

In his decision, Judge John Cronan, nominated to the bench in 2019 by then President Donald Trump, wrote that the department used “broad and unrestrained” standards when considering Mr. Srour’s case. “Because that unconstitutional exercise of discretion occurs every time a licensing official applies or has applied these provisions, they each are facially unconstitutional,” he wrote, referring to the “good moral character” condition cited by the Police Department....

The ruling by Judge Cronan, which is likely to be heard by the appeals court, could allow people with more serious records than Mr. Srour’s to own a gun if it stands, said David Pucino, legal director of the Giffords Law Center to Prevent Gun Violence. “It would be serious problem,” he said. “These kinds of decisions have the potential to cripple the ability of law enforcement and other regulating authorities to enforce the laws that are on the books. This is an attack on that.”...

Mr. Srour had no criminal convictions, but the New York police twice denied his application to keep firearms in his home based in part on his two arrests, 28 traffic violations, 24 license suspensions and six driver's license revocations. He also had two criminal court summonses for creating a wake while operating a personal watercraft, according to the lawsuit he filed in 2022.

The circumstances surrounding Mr. Srour’s arrests, his failure to disclose them on his application and his poor driving history “portray a lack of good moral character and disregard for the law,” the city wrote in its notice rejecting Mr. Srour’s application. Judge Cronan wrote that those communications were not “models of clarity in explaining the precise legal grounds for denying his applications to possess firearms” and reflected “unfettered discretion.”

“Without doubt, the very notions of ‘good moral character’ and ‘good cause’ are inherently exceedingly broad and discretionary,” he wrote. “Someone may be deemed to have good moral character by one person, yet a very morally flawed character by another.”

Mr. Srour, 49, who sells baby cribs and mattresses, declined to comment on the decision because the case is still pending. His lawyer, Amy Bellantoni, called the ruling “well reasoned and legally sound.”

The full 48-page ruling in Srour v. NYC is available at this link.

Jenna Ellis latest attorney to plead guilty (and avoid jail time) in Georgia election case

Serious students of the modern criminal justice system know that many, many more criminal charges get resolved through plea deals than through full trials, and the high-profile Georgia election fraud case is now showcasing this reality in recent weeks.  Specifically, after three other recent guilty pleas to reduced charges, this new AP article reports on another plea from another lawyer.  Here are some details:

Attorney and prominent conservative media figure Jenna Ellis pleaded guilty on Tuesday to a reduced charge over efforts to overturn Donald Trump’s 2020 election loss in Georgia, tearfully telling the judge she looks back on that time with “deep remorse.”

Ellis, the fourth defendant in the case to enter into a plea deal with prosecutors, was a vocal part of Trump’s reelection campaign in the last presidential cycle and was charged alongside the Republican former president and 17 others with violating the state’s anti-racketeering law.

Ellis pleaded guilty to a felony count of aiding and abetting false statements and writings.  She had been facing charges of violating Georgia’s Racketeer Influenced and Corrupt Organizations Act and soliciting the violation of oath by a public officer.

She rose to speak after pleading guilty, fighting back tears as she said she would have not have represented Trump after the 2020 election if she knew then what she knows now, claiming that she she relied on lawyers with much more experience than her and failed to verify the things they told her.  “What I did not do but should have done, Your Honor, was to make sure that the facts the other lawyers alleged to be true were in fact true,” the 38-year-old Ellis said.

The guilty plea from Ellis comes just days after two other defendants, fellow attorneys Sidney Powell and Kenneth Chesebro, entered guilty pleas.  That means three high-profile people responsible for pushing baseless legal challenges to Democrat Joe Biden’s 2020 election victory have agreed to accept responsibility for their roles rather than take their chances before a jury.

She was sentenced to five years of probation along with $5,000 in restitution, 100 hours of community service, writing an apology letter to the people of Georgia and testifying truthfully in trials related to this case.

The early pleas and the favorable punishment — probation rather than jail — could foreshadow similar outcomes for additional defendants who may see an admission of guilt and cooperation as their best hope for leniency....

Before her plea, Ellis, who lives in Florida, was defiant, posting in August on X, the social media platform formerly known as Twitter, “The Democrats and the Fulton County DA are criminalizing the practice of law. I am resolved to trust the Lord.” But she has been more critical of Trump since then, saying on conservative radio in September that she wouldn’t vote for him again, citing his “malignant, narcissistic tendency to simply say that he’s never done anything wrong.”...

Powell pleaded guilty to six misdemeanors accusing her of conspiring to intentionally interfere with the performance of election duties.  Powell will serve six years of probation, will be fined $6,000 and has to write an apology letter to Georgia and its residents.

Chesebro pleaded guilty to one felony charge of conspiracy to commit filing false documents just as jury selection was getting underway in his trial.  He was sentenced to five years’ probation and 100 hours of community service and was ordered to pay $5,000 in restitution, write an apology letter to Georgia’s residents and testify truthfully at any related future trial.

A lower-profile defendant in the case, bail bondsman Scott Graham Hall, pleaded guilty last month to five misdemeanor charges.  He was sentenced to five years of probation and agreed to testify in further proceedings.

Because I do not know Georgia law well, I am unsure if it means much that Ellis and Cheseboro pleaded guilty to felonies, while Powell and Hall pleaded guilty to multiple misdemeanors.  For the attorney criminals, one concern has to be whether they might lose their law licenses (though I am unsure where any of these lawyers are barred).

In addition to law licenses, I cannot help but wonder about the full range of collateral consequences — both formal and informal — that these particular convicted individual now face.  As a matter of federal law, I do know that the felony/misdemeanor distinction is quite important with respect to gun rights: under federal criminal statute 18 USC 922(g)(1), felons are forever prohibited from possessing a firearm (or ammunition).  So Ellis and Cheseboro have now lost forever any and all gun rights (except maybe in the Third Circuit given its Second Amendment Range ruling), whereas Powell and Hall can keep their gun under federal law.

"Non-State Punishment"

The title of this post is the title of this new article now on SSRN and authored by Colleen Murphy and Lesley Wexler.  Here is its abstract:

How should we think about the Jewish community’s punishment of Jewish kapos, councilmembers, and police officers after the Holocaust?  Or of Americans who fire, divorce, or shun participants in the January 6 attempted auto-coup?  In the American context, the invocation of ‘cancel culture’ or ‘wokeness’ reflects concern about the defensibility of non-state practices of accountability.  Setting aside for our purposes an analysis of the political uses and abuses of these terms, we focus here on a presumption underlying these complaints: actors are impermissibly, illegitimately, and disproportionately being held to account by non-state actors.

Citizens, corporations, and civil society organizations are vocally and visibly taking accountability for wrongdoing into their own hands.  Such non-state accountability practices are particularly fraught because they raise fundamental questions about the proper regulatory role of the state and of law with respect to private responses to wrongdoing. Theories of criminal punishment currently explain why the state can and ought to respond to certain categories of criminal wrongdoing and the unique standing of the state to punish in the form of incarceration.  However, such theories do not provide straightforward guidance for non-state punishment as regards: who has the standing to engage in punishment; what would constitute adequate due process; and how to assess proportionality.

To begin to address the range of issues non-state punishment raises, we argue it is a mistake to lump into a single normative category all practices of non-state punishment.  This paper provides a conceptual map of four categories of punishment: ordinary state punishment, ordinary non-state punishment, transitional state punishment, and transitional non-state punishment.  The map distinguishes punishment along two dimensions, which affect the specific questions of standing and justifiability to which a given instance of punishment gives rise.  The first dimensions is the type of justice punishment promotes (ordinary justice or transitional justice).  The second dimension is the agent meting out punishment (state actors or non-state actors).  Each category of punishment faces distinct questions of standing and justifiability.

Our conceptual map makes four contributions.  First, it adds to a burgeoning discussion in legal theory and philosophy grounded in a recognition that the state does not have a monopoly over punishment.  Second, it supplements an ongoing discussion in transitional justice literature and practice that emphasizes the problems with placing the state as the focal point of transitional justice.  Our third contribution is to provide a framework for understanding and assessing American ‘cancel culture.’  For the universe of cancel culture cases that count as punishment, some cases are cases of ordinary non-state punishment, while others are cases of non-state transitional punishment.  As we discuss, some push back on so called American cancel culture is category confusion or contestation about the need for transitional rather than ordinary justice and disagreement about which type of punishment is in fact occurring.  Our framework also provides resources for the critical evaluation of defenses or critiques advanced of particular cases of non-state punishment.  Fourth, our analysis of punishment provides a model that can be used to conceptualize other processes of accountability pursued by state and non-state actors, including reparations and truth telling.

Sentencing Project releases new report on felony disenfranchisement reform

Via email this morning, I learned that The Sentencing Project has just published this notable new report titled "Expanding the Vote: State Felony Disenfranchisement Reform, 1997-2023." Here is part of the "overview" from the report:

Voting eligibility and a person’s involvement in the criminal legal system have a historical but unnatural association in the United States. Some state laws dating back over 100 years, and motivated by racist ideology, permanently ban people convicted of a felony from voting, and almost all states have long prevented voting by people in prison.  Over the last 50 years the country’s investment in mass incarceration not only staggeringly increased the prison population and the community of people with a criminal record but increased the number of people banned from voting due to a felony conviction.  As a result, over 4.6 million Americans with a felony conviction were disenfranchised as of 2022, disproportionately impacting Black and Latinx residents.

Despite the stark consequences of mass incarceration and voter disenfranchisement, the advocacy of incarcerated and formerly incarcerated activists, organizers, legislative champions, and others have successfully fought to pass reforms to expand voting rights to justice-impacted individuals.  These changes, both administrative and statutory in recent decades, coupled by recent modest declines in the population of incarcerated people and those under community supervision reduced the total number of people disenfranchised by 24% since reaching its peak in 2016.

Understanding the origins of this progress to restore voting rights is beneficial for democracy and justice.  This report provides a state-by-state accounting of the changes to voting rights for people with felony convictions and measures its impact.  Since 1997, 26 states and the District of Columbia have expanded voting rights to people living with felony convictions or amended policies to guarantee ballot access.  These reforms were achieved through various mechanisms, including legislative reform, executive action, and ballot measures....

Over 2 million Americans have regained the right to vote since 1997.  These changes to expand and guarantee voting rights demonstrate national momentum to reform the nation’s restrictive and racially discriminatory voting laws.

Calling again for papers: "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws"

Since I am on the road and online less this week, it seems like a great time to highlight again the call for papers relating to an exciting event to take place at OSU next year, "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws."  Here is the call, which is available in full at this link:

The Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law will host a symposium titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws" on April 11-12, 2024 in Drinko Hall at The Ohio State University in Columbus, Ohio. The symposium aims to examine and assess, from a variety of perspectives and with the help of a variety of voices, recent legal and policy developments regarding collateral consequences, record relief efforts, and broader concerns of justice and fairness for individuals and communities with criminal justice system involvement.

Background

For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years.  Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas.

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication, in the spring of 2025.

Proposed abstracts of no more than 300 words are due on November 1, 2023.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1 @ osu.edu.  Accepted researchers will be notified by November 17, 2023.

Download the full call for papers here.

Last Prisoner Project releases big new report on "The State of Cannabis Justice"

The Last Prisoner Project, a marijuana reform group, has today releases a set of state report cards as part of a big new report titled "The State of Cannabis Justice." This LPP website shows the state-by-state grades that are explained more fully in this 70-page report. Here is the report's executive summary:

A deeper look into the status of cannabis justice policy throughout the nation reveals that cannabis justice policy is rapidly progressing and has situated itself at the center of policy priorities.

As of 2023, 23 states have enacted adult-use cannabis legalization, 24 states have enacted cannabis-specific record clearance laws, and 10 states have enacted cannabis-specific resentencing laws.  Importantly, these criminal justice policies have become commonplace in recent legislation.  In fact, since 2018, 100% of the 13 states that have legalized cannabis have included record clearance policies and since 2021, they have all been state-initiated.  While resentencing policies have been slower to take hold, they are also growing in importance and have been included in more than half of the legalization bills since 2020.  The increasing inclusion of these policies speaks to the importance of providing relief for individuals harmed by the historically unjust War on Drugs.

Unfortunately, the report also shows that, despite the country’s progress in the breadth and depth of cannabis justice policy, we are still far behind.  While more and more states are working to include retroactive relief for cannabis related offenses, the policy lags behind in every single state.

While states such as California, Minnesota, Maryland, and New Mexico have strong statutory language, they have all fallen behind in actually offering relief to impacted individuals. In California, the deadline to effectuate record clearance has passed, yet, over 20,000 individuals are still without relief.  In Minnesota, the structure of a separate review board has caused significant delays, leaving the state yet to appoint the board despite the instructed start date already passing.  In Maryland, it is unknown if the state has begun to enact the criminal justice provisions. In New Mexico, the state has faced rollback efforts to limit the impact of retroactive provisions throughout the past two years.

These implementation struggles make it clear that statutory language is only a start to effective change, and this report only touches the surface in evaluating the accessibility of relief.  The progress of cannabis justice policy is promising, but an evaluation of their status shows that there is still much to be done.

En banc Fifth Circuit to review panel ruling that lifetime felon disenfranchisement is unconstitutional under Eighth Amendment

As noted in this Reuters article, the full Fifth Circuit has decided to review the notable split panel ruling last month in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here).  That ruling declared that Mississippi's disenfranchisement for life under of persons with certain felony convictions "is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment."  In my prior post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and here is a bit more context from the Reuters piece: 

A federal appeals court on Thursday agreed to reconsider a ruling by three of its judges that struck down part of Mississippi's state constitution that strips the right to vote from thousands of convicts after they complete their sentences.

The decision by the 5th U.S. Circuit Court of Appeals to hold a so-called en banc rehearing of the case before all 16 of its active judges automatically voids, for now, last month's 2-1 panel ruling finding the provision was a "cruel and unusual punishment" that disproportionately affected Black people....

The disputed part of the state constitution mandates lifetime disenfranchisement for people convicted of a set of crimes including murder, rape and theft. A group of convicts sued the state in 2018 to regain their right to vote.

U.S. Circuit Judge James Dennis wrote for the majority last month that the provision, which he said was adopted in 1890 after the U.S. Civil War to "ensure the political supremacy of the white race," violated the U.S. Constitution's Eighth Amendment, which bars cruel and unusual punishments.

The provision, whose list of disqualifying crimes had been amended twice, remained effective in achieving its "racially discriminatory aim," Dennis said. Of the nearly 29,000 Mississippians convicted of disenfranchising offenses who had completed their sentences from 1994 to 2017, 58% were Black, he said. According to the 2020 census, just under 38% of Mississippi residents are Black.

Prior related posts:

• Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment
• Finding broader Eighth Amendment echoes from Fifth Circuit's ruling that lifetime felon disenfranchisement is unconstitutional 

Reminder of Call for Papers for "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws"

Especially because the dates for the symposium have shifted (but not the call for papers), I wanted to highlight anew the call for papers relating to an exciting event I am helping to plan, "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws."  Here is the call, which is available in full at this link:

The Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law will host a symposium titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws" on April 11-12, 2024 in Drinko Hall at The Ohio State University in Columbus, Ohio. The symposium aims to examine and assess, from a variety of perspectives and with the help of a variety of voices, recent legal and policy developments regarding collateral consequences, record relief efforts, and broader concerns of justice and fairness for individuals and communities with criminal justice system involvement.

Background

For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years.  Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas.

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication, in the spring of 2025.

Proposed abstracts of no more than 300 words are due on November 1, 2023.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1 @ osu.edu.  Accepted researchers will be notified by November 17, 2023.

Download the full call for papers here.

US Pardon Attorney event: "The Case for Second Chances: A Conversation About Criminal Justice, Collateral Consequences, and Clemency"

I am pleased to see (and promote) a notable event scheduled for this Friday at 10am (September 22, 2023) by the Office of the US Pardon Attorney.  This event is called "The Case for Second Chances: A Conversation About Criminal Justice, Collateral Consequences, and Clemency," and it is described on this event page this way:

Join the Office of the Pardon Attorney for this special event addressing the collateral consequences of incarceration and the role of record-clearing and clemency. Associate Attorney General Vanita Gupta will provide opening remarks, followed by a panel discussion featuring the following justice-impacted advocates and experts:

• Ames Grawert, Brennan Center for Justice
• Sheena Meade, The Clean Slate Initiative
• Amy Ralston Povah, Can-Do Clemency
• Robert Richardson, Clemency Recipient & Author
• Tony Lewis, Jr. Activist & Author

This even will be livestreamed at this link.

Is "criminal justice reform" really now a "corporate priority"?

The question in the title of this post is prompted by this article in the September issue of D CEO magazine headlined "How Criminal Justice Reform Is Becoming a Corporate Priority." Here are some excerpts from an extended piece:

Research shows that 70 to 100 million Americans have a criminal record, around one in three working-age adults. Sixty percent of them are unemployed a year after leaving prison. This group is underutilized and bypassed for the millions of jobs that remain open across all industries, but the winds are shifting.

Justice-impacted individuals face several challenges to reentering the workforce and staying out of trouble. These barriers, imposed by legislation, law enforcement, employers, and society, make it more likely that they’ll run afoul of the law again. But several businesses are taking the bold step to be the leading edge of the movement to put this group of people to work....

The Responsible Business Initiative for Justice compiled data to show that justice-impacted individuals compare well to the average employee. A survey of human resource professionals and managers found that 83 percent rated the job performance of justice-impacted individuals to be as good or better than the average worker, and about three-fourths found that justice-impacted workers are as or more dependable than the average employee. Seventy percent said job retention was also better for justice-impacted individuals....

This potential labor force faces many barriers, experts say. First, employers must be willing to take a chance on justice-impacted applicants. Second, those individuals need access to various services to help them get up to speed and become stable and ready to enter the workforce. And lastly, policies need to be updated to help people transition. Success will require progress in all three areas....

Advocacy can take many forms for corporations. On one end are organizations like JPMorgan Chase & Co., whose chairman and CEO Jamie Dimon penned an op-ed in The New York Times about second-chance hiring. The financial services giant has been a leader in the space, advocating in Texas for clean slate legislation that would automatically seal criminal records where individuals had met time and good behavior requirements, so people don’t have to hire a lawyer to get it done....

JPMorgan ... is a member of the Second Chance Business Coalition, which also includes North Texas companies such as Vistra and American Airlines.  Together, they work with community partners to train and hire justice-impacted individuals and advocate for changes to laws that would help them more easily re-integrate into society. In addition to clean slate initiatives, many organizations (including the conservative-leaning Texas Public Policy Foundation) advocate for ending debt-based driver’s license restrictions....

Becoming involved with criminal justice reform looks different for every business. Some companies will have jobs that fit nearly every justice-involved individual well. In contrast, others might be limited because of size or regulatory issues that don’t allow them to hire people directly after incarceration. Connecting to an advocacy organization can help pave the way, as will speaking with peer companies and becoming more informed about opportunities.

I think this article would have be headlined more accurately if is was titled "Why Reentry Reform Should Become a Corporate Priority," since the piece is primarily making the case for why businesses should give more attention to so-called "second-chance" hiring and reentry issues.  Still, I found it notable to see this article in a Dallas business magazine, and also notable that it ends with this link to another long piece which details the "personal criminal justice reform stories of three North Texas business leaders."

"Collusive Prosecution"

The title of this post is the title of this recent article I just came across via SSRN and authored by Ben McJunkin and J.J. Prescott. Here is its abstract:

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining.  Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations.  In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification.  Both parties arguably benefit: Prosecutors can leverage collateral consequences to extract greater punishments and defendants can avoid consequences they view as particularly burdensome. But these benefits can come at a cost to others who are not at the bargaining table.

We contend that “collusive prosecution” of this sort can be pernicious, as may be the case when sex-offender registration and notification laws are in play, but it also has potential to be socially attractive.  Accordingly, we sketch a normative framework for evaluating collusive prosecution as a matter of prosecutorial ethics.  We draw on the emerging field of public fiduciary theory to characterize prosecutors’ ethical duties to varied — and often conflicting — beneficiaries.  We suggest that programmatic uses of collusive prosecution may be fair and reasonable in a common immigration context, but collusive prosecution designed to relocate sex-offense registrants likely fail these conditions. Ultimately, we offer a suite of reforms that may be useful for policing collusive prosecution without banning the practice outright.

Dissenting from denial of en banc review, Eighth Circuit judges make case that blanket felon disarmament violates the Second Amendment

Yesterday in this lengthy dissent from the denial of rehearing en banc in US v. Jackson, Eighth Circuit Judge Stras make a full-throated case that the broad criminal prohibition under federal law precluding persons with felony records from possessing a gun is constitutionally suspect after Bruen.   This opinion, which is joined by Judges Erickson, Grasz, and Kobes, starts this way:

By cutting off as-applied challenges to the federal felon-in-possession statute, see 18 U.S.C. § 922(g)(1), Jackson and Cunningham give “second-class” treatment to the Second Amendment. N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2156 (2022) (quoting McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion)).  Even worse, they create a group of second-class citizens: felons who, for the rest of their lives, cannot touch a firearm, no matter the crime they committed or how long ago it happened. See United States v. Cunningham, 70 F.4th 502, 506 (8th Cir. 2023); United States v. Jackson, 69 F.4th 495, 501–02 (8th Cir. 2023). I dissent from the decision to deny rehearing en banc.

The full opinion is a must-read for anyone following Second Amendment jurisprudence, and here is a flavor of the opinion:

Practices shortly after the Founding are consistent with the dangerousness rationale. See Bruen, 142 S. Ct. at 2136–37 (discussing the concept of “liquidation”). Of the states that protected the right to keep and bear arms, none disarmed non-dangerous felons. Cf. Handbook on the National Conference of Commissioners on Uniform State Laws and Proceedings of the Thirty-Fifth Annual Meeting 862–63 (1925) (cataloging the earliest felon-in-possession laws in the states). You read that right, none.

Even violent felons, as a class, were not disarmed until the early 20th century, nearly 150 years later. See Federal Firearms Act, ch. 850, §§ 1(6), 2(e), 2(f), 52 Stat. 1250, 1250–51 (1938). And it was only in 1961, just 62 years ago, that the federal government finally abandoned dangerousness as the litmus test for disarmament in enacting § 922(g)(1)’s predecessor. See An Act to Strengthen the Federal Firearms Act, Pub. L. No. 87-342, 75 Stat. 757 (1961); see also Range, 69 F.4th at 104. There is nothing about felon-dispossession laws that is longstanding, unless six decades is long enough to establish a “historical tradition” of the type contemplated by Bruen. Spoiler alert: it is not. See Bruen, 142 S. Ct. at 2156 (holding unconstitutional a century-old licensing regime).

In sum, the decades surrounding the ratification of the Second Amendment showed a steady and consistent practice. People considered dangerous lost their arms. But being a criminal had little to do with it....

Disarmament is about dangerousness, not virtue. We know that because colonial and post-ratification gun laws targeted rebellion and insurrection, not criminality. There have always been criminals, but there is no suggestion in any “historical analogue” that criminality alone, unaccompanied by dangerousness, was reason enough to disarm someone. Bruen, 142 S. Ct. at 2133 (emphasis omitted). And history certainly does not support Jackson’s unbending rule that felons can never win an as-applied challenge, no matter how non-violent their crimes may be or how long ago they happened.

Call for Papers: "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws"

I am pleased to highlight a new call for papers relating to an exciting event I am excited to be involved in helping to plan, "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws."  Here is the call, which is available in full at this link:

The Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law will host a symposium titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws" on March 28-29, 2024 in Drinko Hall at The Ohio State University in Columbus, Ohio.  The symposium aims to examine and assess, from a variety of perspectives and with the help of a variety of voices, recent legal and policy developments regarding collateral consequences, record relief efforts, and broader concerns of justice and fairness for individuals and communities with criminal justice system involvement.

Background

For years, advocates spoke about the “invisible punishment” flowing from the legal restrictions and societal stigmas that burden people with any criminal record long after involvement with the justice system.  But the many concerns surrounding so-called “collateral consequences” have become more visible in legal and policy circles in recent years. Over the past decade, dozens of states have enacted laws seeking to reduce the barriers people with a criminal record face in the workplace, in housing, at the ballot box, and many other areas.

These developments have been characterized by the Collateral Consequences Resource Center as “a full-fledged law reform movement aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system.”  But the import and impact of this modern reform movement remains unclear, in part because record relief laws and practices differ widely across jurisdictions.  Some states have made only modest reforms to their record sealing laws, while other states have enacted ambitious automatic record relief systems.  And the practical impact of record relief reforms vary dramatically depending on not just the reach of the laws, but also the resources that are devoted to implementing these laws. Intriguingly, as record relief efforts have spread at the state level, federal record relief continues to languish.

Call for Papers

The symposium is soliciting papers from researchers to be included in the scholarship workshop.  Each paper will be assigned a discussant to provide feedback during the workshop.  The papers will be gathered and published in a symposium edition of the Ohio State Journal of Criminal Law, a peer-reviewed publication, in the spring of 2025.

Proposed abstracts of no more than 300 words are due on November 1, 2023.  Abstracts can be submitted to Jana Hrdinova at hrdinova.1 @ osu.edu.  Accepted researchers will be notified by November 17, 2023.

Download the full call for papers here.

Split Fifth Circuit panel rules that Mississippi's lifetime felon disenfranchisement violates Eighth Amendment

This past Friday, a split panel of the Fifth Circuit handed down a remarkable ruling in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here). Here are excerpts from the start and conclusion of the 50-page majority opinion:

In this class action, Plaintiffs, representing persons who have been convicted of certain crimes and have completed the terms of their sentences, challenge their disenfranchisement by two provisions of Article XII of the Mississippi Constitution of 1890....

For the reasons explained below, we hold that Plaintiffs are entitled to prevail on their claim that, as applied to their class, disenfranchisement for life under Section 241 is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment.  In the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society.  Today, thirty-five states plus the District of Columbia disavow the practice embodied in Section 241, a supermajority whose size is dispositive under controlling Supreme Court precedent.  Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement.  And in our independent judgment — a judgment under the Eighth Amendment that the Supreme Court requires we make — Section 241’s permanent disenfranchisement serves no legitimate penological purpose.  By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society.  It is thus a cruel and unusual punishment....

“No right is more precious in a free country” than the right to vote.  Wesberry v. Sanders, 376 U.S. 1, 17 (1964). “Other rights, even the most basic, are illusory if the right to vote is undermined.” Id.  This right is not only fundamental to the democratic ordering of our society, it is also expressive of the dignity of American citizenship — that each person is an equal participant in charting our nation’s course. Reynolds, 377 U.S. at 533; Bush v. Gore, 531 U.S. 98, 104 (2000) (“[O]ne source of [the right to vote’s] fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.”).

Mississippi denies this precious right to a large class of its citizens, automatically, mechanically, and with no thought given to whether it is proportionate as punishment for an amorphous and partial list of crimes.  In so excluding former offenders from a basic aspect of democratic life, often long after their sentences have been served, Mississippi inflicts a disproportionate punishment that has been rejected by a majority of the states and, in the independent judgment of this court informed by our precedents, is at odds with society’s evolving standards of decency.  Section 241 therefore exacts a cruel and unusual punishment on Plaintiffs.  Accordingly, we REVERSE the district court’s grant of summary judgment to the Secretary on Plaintiffs’ Eighth Amendment claim and RENDER judgment for Plaintiffs on that claim.

Judge Edith Jones authored a dissent, and here are excerpts from the start and conclusion of her 15-page majority opinion:

Laws like this one have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar states from permanently disenfranchising felons, it dispensed some advice to the losing parties [that stated roughly]: go and convince the state legislatures. Do the hard work of persuading your fellow citizens that the law should change.

Today, the court turns that advice on its head.  No need to change the law through a laborious political process.  The court will do it for you, so long as you rely on the Due Process Clause, rather than the Equal Protection Clause.  With respect, this is not a road that the Constitution — or precedent — allows us to travel. I dissent....

Today’s ruling disregards text, precedent, and common sense to secure its preferred outcome. This end-justifies-means analysis has no place in constitutional law. I respectfully dissent.

These opinions are certainly not the last words on this matter.  This Washington Post article about the ruling reports that Mississippi is sure to appeal this ruling: "Mississippi 'expects to seek further review,' wrote Debbee Hancock, a spokeswoman for Mississippi Attorney General Lynn Fitch."

I suspect "further review" will first focus on seeking en banc consideration of this matter from the full Fifth Circuit.  But maybe Mississippi will seek to go directly to the Supreme Court for review.  For a variety of reasons, I am inclined to guess that neither the full Fifth Circuit nor the Supreme Court will find the majority opinion here compelling.