Sunday, February 21, 2021

"Sex Offenders and the Free Exercise of Religion"

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

In a variety of ways, sex offenders in the United States find themselves in a difficult position.  One of the lesser-known ways relates to the free exercise of religion.  Sometimes by categorical statute, and sometimes by individualized parole, probation, or supervised-release condition, sex offenders can find themselves legally barred from places where children are present (or likely to be present).  Because children are usually present at religious services, sex offenders can find themselves unable to attend them altogether.  And this hardship has a bit of irony in it too.  Back in prison, sex offenders could worship freely with others; now ostensibly free, they can no longer do so.

This simple problem has real scope — tens (maybe hundreds) of thousands of people barred from essentially all religious services, sometimes for decades, sometimes for life.  Moreover, these prohibitions are often vague and overbroad — and so restrictive that low-level administrators (like sheriffs and probation officers) are often pushed into softening or waiving them.  But this ends up creating a kind of licensing scheme, whereby low-level government officials make — on their own, without any formal criteria — ad-hoc and practically unreviewable decisions about who gets to go to church and under what conditions.  Risks of selective enforcement, discrimination, and abuse are obvious.

These rules have come into being as if concerns about the free exercise of religion have no weight at all.  But this is not the case.  And, in fact, a robust body of law protects the free exercise of religion, requiring exemptions from religiously burdensome laws.  Now this does not mean that sex offenders should be universally exempt from any and all restrictions regarding church attendance.  There are probably some people who pose such a threat to children that they should be kept away from churches.  Courts will have to answer tricky questions — who should be barred, who should decide who is barred, and on what criteria? — that require nuanced and elaborate answers.  Yet informed by analogies from other areas of law (like freedom of speech) where courts have wrestled with similar issues, this Article offers some recommendations that are analytically rigorous, practically realizable, and judicially manageable.

February 21, 2021 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (1)

Thursday, February 18, 2021

"Rigging the jury: How each state reduces jury diversity by excluding people with criminal records"

The title of this post is the title of this notable new report from the folks at Prison Policy Initiative. Here are excerpts from the report's first part:

In courthouses throughout the country, defendants are routinely denied the promise of a "jury of their peers," thanks to a lack of racial diversity in jury boxes. One major reason for this lack of diversity is the constellation of laws prohibiting people convicted (or sometimes simply accused) of crimes from serving on juries. These laws bar more than twenty million people from jury service, reduce jury diversity by disproportionately excluding Black and Latinx people, and actually cause juries to deliberate less effectively. Such exclusionary practices exist in every state and often ban people from jury service forever....

As we have chronicled extensively, the criminal justice system disproportionately targets Black people and Latinx people — so when states bar people with criminal convictions from jury service, they disproportionately exclude individuals from these groups.  Of the approximately 19 million Americans with felony convictions in 2010, an estimated 36% (nearly 7 million people) were Black, despite the fact that Black people comprise 13% of the U.S. population.  Although data on the number of Latinx people with felony convictions is difficult to find (because information about Latinx heritage has not always been collected or reported accurately within the criminal justice system), we do know that Hispanic people are more likely to be incarcerated than non-Hispanic whites and are overrepresented at numerous stages of the criminal justice process.  It stands to reason, then, that Latinx populations are also disproportionately likely to have felony convictions.

As a result, jury exclusion statutes contribute to a lack of jury diversity across the country. A 2011 study found that in one county in Georgia, 34% of Black adults — and 63% of Black men — were excluded from juries because of criminal convictions. In New York State, approximately 33% of Black men are excluded from the jury pool because of the state’s felony disqualification law.  Nationwide, approximately one-third of Black men have a felony conviction; thus, in most places, many Black jurors (and many Black male jurors in particular) are barred by exclusion statutes long before any prosecutor can strike them in the courtroom.

February 18, 2021 in Collateral consequences, Who Sentences | Permalink | Comments (0)

Tuesday, February 16, 2021

Drug Policy Alliance launches "Uprooting the Drug War" to highlight myriad harms of drug criminalization

As detailed in this press release, "the Drug Policy Alliance announced the launch of a major new initiative — Uprooting the Drug War — with the release of a series of reports and interactive website that aim to expose the impact of the war on drugs beyond arrest and incarceration."  Here is more on this important effirt:

The project is designed to engage activists across sectors and issues in understanding and dismantling the ways in which the war on drugs has infiltrated and shaped many other systems people encounter in their daily lives — including education, employment, housing, child welfare, immigration, and public benefits.... 
 
The goal of the new initiative — a natural extension of DPA’s decriminalization advocacy work — is to collaborate with aligned movements and legislators through meetings, webinars, convenings, and organizing to explore the ways the drug war has infected the systems and institutions that are at the core of their policy advocacy and create momentum for concrete policy proposals that begin to end the drug war in all its forms.
 
The project, which lives at UprootingtheDrugWar.com, includes analysis of six different systems through first-hand stories, data spotlights, and reports that take a deep dive into how drug war policies have taken root and created grave harm in the fields of education, employment, housing, child welfare, immigration, and public benefits.  Each report explores the history of how the drug war is waged (or enforced) in each system, as well as the underlying assumptions of drug war policies, through an examination of federal and New York state law.  In addition to the reports, six ‘Snapshots’ provide a brief overview of how drug war punishment and logic show up in these systems at a national level and make policy recommendations that would begin to extract the drug war from these systems.  Finally, the site offers six ‘Advocacy Assessment Tools,’ which give partners and legislators the opportunity to evaluate drug war policies and practices in their own community so they can take action to uproot the drug war locally.

February 16, 2021 in Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, February 08, 2021

CCRC releases a "Reintegration Agenda for the 117th Congress"

The Collateral Consequences Resource Center has this notable new report titled "A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, & Employment." Here is its introduction:

The new Congress has an opportunity to make significant bipartisan progress on criminal justice reform, including reducing barriers to successful reintegration for people with a criminal record. This agenda recommends specific measures by which Congress can accomplish this.

During the wave of criminal record reform that began around 2013, every state legislature has taken some steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society.  Many states have entirely remade their record relief systems — authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or deferred adjudication — and limited the consideration of arrest and conviction records in employment and licensing.

Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020.  However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states.

During the pandemic, the need to access opportunities and resources is perhaps unprecedented. We therefore urge Congress and the Biden Administration to take an ambitious and bipartisan approach to criminal record reforms in the four areas described below:

  • Record relief: authorize federal courts to expunge certain records, grant certificates of relief, and increase use of deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; provide relief from firearms dispossession.
  • Federal public benefits: end record-related restrictions in small business relief, SNAP and TANF benefits, and student financial aid.
  • Employment & licensing: establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: allow voting in federal elections unless a person is serving a felony sentence in a correctional institution.

February 8, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Sunday, February 07, 2021

Lots of great coverage at CCRC of lots of great 2020 criminal record reform activity

I blogged here last month about this big report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel which reviewed all the criminal record reforms enacted by states in 2020.   I know see that CCRC has been highlighting particular reforms on particular issues in this recent series of posts:

Regular readers likely realize that marijuana expungements are a topic of particular interest to me.  Back in 2018 I wrote an article focused just on this topic, "Leveraging Marijuana Reform to Enhance Expungement Practices," and this past year I co-wrote another piece focused on Arizona reforms that made much of this issue, "Ensuring Marijuana Reform Is Effective Criminal Justice Reform."

February 7, 2021 in Collateral consequences, Sentences Reconsidered | Permalink | Comments (0)

Thursday, February 04, 2021

"After the Sentence, More Consequences: A National Report of Barriers to Work"

The title of this post is the title of this notable new report authored by Chidi Umez and Joshua Gaines of the Council for State Government Justice Center.  Here is its introduction:

The negative effects of a conviction rarely end when a person has completed their criminal sentence.  A complex web of local, state, and federal statutes and regulations—known as collateral consequences of conviction — can make it all but impossible for some people with criminal records to truly rebuild their lives.  While these consequences can affect everything from housing to public benefit eligibility, no area is more impacted than the ability to find and retain meaningful employment.  Some of these barriers to work may be responsive to legitimate public safety concerns, but many others pose unnecessary barriers to employment opportunities that are critical in reducing recidivism and supporting the long-term success of people in the justice system.

In this report, The Council of State Governments (CSG) Justice Center presents a national overview of the scope, features, and operation of the employment-related collateral consequences imposed by state and federal law.  The data were gathered from the National Inventory of Collateral Consequences of Conviction (NICCC), a searchable online database that catalogs these provisions across the country.  This analysis also provides a blueprint for policymakers seeking to mitigate the impact of these increasingly significant barriers to work.

February 4, 2021 in Collateral consequences, Recommended reading | Permalink | Comments (0)

Wednesday, January 20, 2021

Timely reminder that Congress has a critical role to play in reforming clemency conditions

Former US pardon attorney Margaret Colgate Love has this great new Washington Post piece highlighting that Congress can and should create statutory record relief mechanisms (as nearly all states have) in order to prevent clemency from serving as the only means for persons with federal criminal records to find relief.  I recommend the piece in full, and here are excerpts:

The core problem that has led to pardon’s abuse is that the justice system has relied too heavily on an authority that is inherently arbitrary and unfair.

Thus, the law makes the president exclusively responsible — through his pardon power — for shortening most federal prison sentences and relieving the collateral consequences of conviction — functions that in most states are now routinely performed by judges and agencies under statutory schemes.  For example, a presidential pardon is the only way a person convicted of a federal felony can qualify for many business and professional licenses, or regain the right to possess firearms.  Indeed, I have been told — and my own practice would confirm — that a desire to regain firearms rights accounts for nearly half of the pardon applications filed.  It is beyond absurd to make the president a one-person gun-licensing bureau for people convicted of nonviolent federal crimes who want to go hunting again....

I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power.  I hope it will restore at least the appearance of fairness and regularity to the way applications from ordinary people are considered (even if the process will continue to function, as it always has, more or less like a lottery)....

The alternative to systematic reliance on pardoning is what Daniel J. Freed described 20 years ago as “the more demanding road toward democratic reform.”  The incoming administration should urge Congress to offload many of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years....

In other words, Congress should enact laws to provide alternative ways of handling much of the routine business that is currently overwhelming the pardon process, ideally using the federal courts. It has already begun this work in the 2018 First Step Act, which gives federal prisoners the ability to go back to court to seek reduction of their sentences.

If the pardon process were not bogged down by thousands of petitions from people who simply want to restore lost rights or improve their employment prospects, the president would be free to use the constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches and to tell good news about its operation through stories of successful rehabilitation.

In the end, Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can pardon play the constructive role the Framers intended.

I sense that record relief reform has been a truly bipartisan endeavor in states from coast to coast in reent years. The Biden Administration and members of Congress on both sides of the aisle might be wise to start its criminal justice reform efforts here.

January 20, 2021 in Clemency and Pardons, Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Thursday, January 14, 2021

"The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020"

The title of this post is the title of this notable new report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel.  Here is part of this great report's "Overview":

Since 2013, every state legislature has taken at least some steps to chip away at the negative effects of a criminal record on the ability to earn a living, to access housing, education, and public benefits, and otherwise to fully reintegrate into society.  Some states have entirely remade their post-sentence relief systems.  Some state governors have also issued executive orders or class-wide pardons in support of this restoration effort.  Congress also has rather belatedly become interested in criminal records issues, limiting background checks in federal employment and contracting in 2019, and removing barriers to public benefits in 2020 spurred by the effects of the pandemic.

The past year saw a continuation of these legislative trends.  While fewer states enacted fewer laws in 2020 than in the preceding two years, evidently because of the disruptions caused by the pandemic, the fact that there was still considerable progress is testament to a genuine and enduring public commitment to a reintegration agenda.

In 2020, 32 states, the District of Columbia, and the federal government enacted 106 legislative bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a criminal record.

As in 2019, a majority of the new laws in 2020 involve what we have come to call “record relief,” measures that operate on the criminal record itself to reduce its negative effect.  Record relief may limit public access through expungement or sealing, vacate or pardon the conviction, or avoid a conviction record through diversion or deferral of judgment.  Other restoration laws regulate discretionary decisionmakers that control access to the workplace, public benefits, and education. Still others expand the franchise, and curb driver’s license suspensions based on unpaid court debt or grounds unrelated to dangerous driving.

Approaches to record reform continue to vary widely from state to state, with respect to the type of relief, the specifics of who is eligible for it, the mechanics of delivery, and its effect. Yet despite this variety it is clear that there has been no flagging in the lively national conversation about how best to limit unwarranted record-based discrimination.

January 14, 2021 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Monday, January 04, 2021

"Expunging Juvenile Records: Misconceptions, Collateral Consequences, and Emerging Practices"

The title of this post is the title of this notable new document authored by Andrea Coleman and recently released by Department of Justice's Office of Juvenile Justice and Delinquency Prevention. Here are the "Highlights" set forth in the first page of the document:

This bulletin discusses common misconceptions surrounding expungement.  It also provides information about the collateral consequences of juvenile records as well as federal, state, and local emerging practices. 

The key information and findings include the following:

  • Expungement, sealing, and confidentiality are three legally distinct methods for destroying or limiting access to juvenile records.  However, these methods may permit police, courts, or the public access to juvenile records, depending on state laws.

  • The public and impacted youth often erroneously believe that once police and courts expunge juvenile records they no longer exist. The handling of expunged juvenile records varies widely from state to state.

  • Youth with juvenile records frequently experience collateral consequences of their arrest or adjudication, which may include difficulty accessing educational services, obtaining employment, serving in the military, and finding and maintaining housing.

  • States, localities, and the federal government have implemented promising practices to decrease collateral consequences, including “ban the box” legislation and expungement clinics (Avery and Hernandez, 2018; Radice, 2017; Shah, Fine, and Gullen, 2014; Shah and Strout, 2016).

January 4, 2021 in Collateral consequences, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Saturday, January 02, 2021

REMINDER of DEPC and OJPC and CCRC drafting contest: "Re-Imagining 'Second Chances': Improving Ohio’s Re-Entry Provisions"

Download (8)A few weeks ago in this post I noted the on-going drafting contest sponsored by a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law, the Ohio Justice & Policy Center (OJPC), and the Collateral Consequences Resource Center (CCRC).  Here are the basic details draft from this web page (where you can find this longer official announcement):

About the Contest

With the goal of furthering the ongoing debate of how “second chance” mechanisms can be improved in Ohio, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law, the Ohio Justice & Policy Center (OJPC), and the Collateral Consequences Resource Center are sponsoring a contest for law students and recent law-school graduates.  Specifically, entrants are encouraged to submit a proposal and accompanying commentary suggesting changes to Ohio’s existing statutory provisions that would help people obtain relief from collateral consequences.

Proposals should address both substance (e.g., when and to whom would it apply) and procedure (e.g., how would it function).  Additionally, proposals can, but need not be, drafted as proposed legislative text; a “policy paper” or other like submission is acceptable, though any submission must include an actionable proposal for reform of Ohio laws. The proposal might include concrete suggestions for making existing tools more broadly and easily accessible, but it could also advocate for wholesale changes to the mechanism and means for relief in Ohio.

Contest Timeline and Awards

Submissions are due January 11, 2021.  The winning submission will receive a prize of $1,500, and one runner-up prize of $500 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the group’s members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full winning proposals may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

January 2, 2021 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Wednesday, December 30, 2020

Still more great new Politico Magazine coverage now on "Justice Reform: Reentry"

Earlier this year I noted in posts here and here that the Politico Magazine had produced a terrific collection of original articles on criminal justice reform issues under the headings "Justice Reform: The Decarceration Issue" and "Justice Reform: Prison Conditions."   Those article are still collected at this link, but they are now topped by another great new set of pieces under the heading "Justice Reform: Reentry."  Here are the great-looking new pieces under this heading with their full headlines:

How Thousands of American Laws Keep People ‘Imprisoned’ Long After They’re Released: Across the country, people with felony convictions face a daunting web of small obstacles to rebuilding normal lives. What will it take to fix?

5 New Policy Ideas for Fixing Life After Prison: Ex-prisoners can face a whole second sentence when they try to reenter society. Business, governments and nonprofits have ideas for how to make it easier.

A Journalist Who Spent Time Behind Bars Dishes on How He Rebuilt His Life: A revealing Q&A conversation about life after prison — by a journalist still serving time at Sullivan Correctional Facility.

Prior related posts:

December 30, 2020 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Monday, December 28, 2020

Reviewing remarkable recent criminal justice reforms in the state of Michigan

Ohio and Michigan have a long-standing rivalry on a number of fronts, but this local article highlights why I do not think any state could rival the state of up north with regard to its recent achievements in criminal justice reform.  This piece, headlined "Michigan lawmakers made big inroads on criminal justice reform, but advocates say there’s more to be done," merits a full read, and here is how it gets started:

In a legislative session dominated by disagreements over how best to handle the COVID-19 pandemic, there was one policy arena that united conservatives and progressives alike — criminal justice reform.  Over the course of two years, lawmakers were able to see through several criminal justice policy changes that have eluded previous legislatures for years, as well as several new recommendations made by a task force that had buy-in from experts, advocates, law enforcement, business groups, Gov. Gretchen Whitmer’s administration and Michigan Supreme Court Chief Justice Bridget Mary McCormack.

Those who worked closely on the reforms are quick to say the work isn’t over.  But soon, thousands of people with old criminal convictions on their records will be able to apply to seal those records from public view — and in a couple of years, some of those records will be expunged automatically if they don’t commit any new crimes.  Others who might otherwise have served a stint in county jail may not have to in the future due to legislation decriminalizing many traffic offenses and providing alternatives to jail time for low-level crimes.

“There will be effects that we don’t see right now...we will only see decades later,” outgoing House Speaker Lee Chatfield — who has credited his father’s work in jail ministry to his longstanding interest in making changes to the criminal justice system — said in his farewell speech on the House floor.  “We gave people a second chance,” he continued. “We gave people a fresh start, we gave people the opportunity to now be contributing members of society.”

Some of the major criminal justice legislation passed by both chambers with bipartisan support this session include:

  • Civil asset forfeiture bills requiring a person be convicted of a crime prior to permanent property seizure by law enforcement in most cases. The concept was introduced as a top priority in both legislative chambers in early 2019, and Whitmer signed the legislation in May of that year.

  • Legislation to raise the age of people automatically charged as adults in Michigan’s criminal justice system from 17 to 18. Michigan was one of the few remaining states where 17-year-olds are automatically tried, sentenced and incarcerated as adults if they’re charged with or convicted of a crime.  Whitmer signed the bills in October 2019, and they take effect in October 2021.

  • “Clean Slate” legislation designed to simplify and expand expungement options for people who have gone several years without committing another offense.  The package, signed by Whitmer in October, opens up the expungement process to low-level marijuana convictions and many traffic offenses, increases the overall number of expungements a person can receive and allows consolidations of multiple convictions that occurred in the same 24-hour time period.  Lawmakers included a two-year window for the state to set up a system for processing automatic expungement, and other bills in the package are written to take effect 180 days after they’re enacted.

  • Additional expungement-related bills passed in the legislature’s “lame duck” session, including adding first-time drunken-driving convictions and certain crimes committed by minors to the list of what could be wiped from criminal records.  Another bill sent to the governor’s desk this month directs $24 million from the Marihuana Registry Fund to the Michigan Set Aside Fund.

  • A House package redefining the term “good moral character” in state law to remove barriers to obtaining many occupational licenses for people with a prior criminal conviction. Under existing law, any criminal conviction can be taken into consideration by a licensing board when determining a person’s fitness for a profession — under the bill package, only serious crimes that posed a threat to public safety or were directly related to the occupation in question could be taken into consideration.

  • House legislation reducing penalties for a number of low-level offenses from misdemeanors to civil infractions, including driving on a suspended license.  Other related bills would limit driver’s license suspensions to offenses related specifically to dangerous driving and eliminate mandatory sentencing for a variety of offenses.

  • Senate legislation expanding law enforcement discretion to issue citations for most misdemeanors in lieu of arrest and creating a presumption of a sentence other than jail for most misdemeanors and certain felonies.  Other bills would ensure summonses are used for most first-time failure to appear in court and reforms the state’s probation and parole policies, capping jail sanctions for technical probation violations and allowing more discretion to assess risks and needs.

  • A Senate bill lifting a ban on food assistance for people with more than one drug-related felony on their record.

December 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, December 22, 2020

Exciting DEPC and OJPC and CCRC drafting contest: "Re-Imagining 'Second Chances': Improving Ohio’s Re-Entry Provisions"

Second-Chance-Contest_for-socialRegular readers likely recall may regular reminders in the first half of 2020 of this drafting contest that emerged from a partnership of the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center (OJPC) and centered around imaging a comprehensive "second-look sentencing provision" for Ohio law.  This competition proved a great success, and I fear I have been slow to note the great ongoing follow-up contest, which this time also includes the involvement of the Collateral Consequences Resource Center (CCRC).  Here are the basic details from this web page (where you can find this longer official announcement):

About the Contest

With the goal of furthering the ongoing debate of how “second chance” mechanisms can be improved in Ohio, the Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law, the Ohio Justice & Policy Center (OJPC), and the Collateral Consequences Resource Center are sponsoring a contest for law students and recent law-school graduates.  Specifically, entrants are encouraged to submit a proposal and accompanying commentary suggesting changes to Ohio’s existing statutory provisions that would help people obtain relief from collateral consequences.

Proposals should address both substance (e.g., when and to whom would it apply) and procedure (e.g., how would it function).  Additionally, proposals can, but need not be, drafted as proposed legislative text; a “policy paper” or other like submission is acceptable, though any submission must include an actionable proposal for reform of Ohio laws. The proposal might include concrete suggestions for making existing tools more broadly and easily accessible, but it could also advocate for wholesale changes to the mechanism and means for relief in Ohio.

Contest Timeline and Awards

Submissions are due January 11, 2021.  The winning submission will receive a prize of $1,500, and one runner-up prize of $500 will also be awarded.  If a group submission is awarded prize money, it will be divided equally among the group’s members.  All winning submissions will be published via DEPC and OJPC’s websites.  The full winning proposals may be used in DEPC and OJPC’s ongoing efforts to advocate for improvements in Ohio law.

December 22, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, November 21, 2020

Terrific coverage at CCRC as "Marijuana expungement accelerates across the country"

Long-time readers here and at my other blog know I have long been interested in how marijuana reform can advance criminal justice reform.  My 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," called for much greater efforts to ensure marijuana reforms advance criminal record expungement efforts.  Happily, my 2018 article now already feels a bit dated because there has recently been a much greater emphasis on record relief in many marijuana reforms proposed and passed over the last couple of years. 

These recent realities have been effectively documented at the Collateral Consequences Resource Center.  CCRC Deputy Director David Schlussel first highlighted these developments in March 2020, via this posting and resource under the title "Legalizing marijuana and expunging records across the country."  That detailed posting began this way:  "As the legalization or decriminalization of marijuana has now reached a majority of the states, the expungement of criminal records has finally attained a prominent role in the marijuana reform agenda."  Wonderfully, this new follow-up posting provides the lastest detailed post-election accounting and gets started this way:

In November’s election, four more states legalized marijuana at the ballot box: Arizona, Montana, New Jersey, and South Dakota. The measures in Arizona and Montana included provisions for expunging the record of convictions for certain marijuana arrests or convictions.  During this year’s presidential campaign, President-elect Joseph R. Biden called for decriminalizing marijuana use and automatically expunging all marijuana use convictions.

As legalization continues to advance, the expungement of criminal records has finally attained a prominent role in marijuana reform, a development we documented in March.  Laws to facilitate marijuana expungement and other forms of record relief, such as sealing and set-aside, have now been enacted in 23 states and D.C.

Until very recently, most such laws extended to very minor offenses involving small amounts of marijuana and required individuals to file petitions in court to obtain relief.  Now, a growing number of states have authorized marijuana record relief that covers more offenses and either does away with petition requirements or streamlines procedures.

With these developments, we have again updated our chart providing a 50-state snapshot of:

(1) laws legalizing and decriminalizing marijuana;

(2) laws that specifically provide relief for past marijuana arrests and convictions, including but not limited to conduct that has been legalized or decriminalized; and

(3) pardon programs specific to marijuana offenses.

November 21, 2020 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision | Permalink | Comments (0)

Tuesday, November 10, 2020

Noticing marijuana reform as criminal justice reform in Arizona after passage of Prop 207

Regular readers, particularly those who also keep up with my work over at Marijuana Law, Policy & Reform, know that I strongly believe that marijuana reform can and should always be a form of criminal justice reform.  This local article, headlined "Prop 207 could have huge impact on criminal justice reform in Arizona," details part of this story in one state one week after its big reform vote:

We are learning more about how Proposition 207 will impact our criminal justice system. The proposition legalizes recreational marijuana in Arizona and will become official when election results are certified in about a month.

Steven Scharboneau, Jr. is an attorney with the Rosenstein Law Group. “Arizona is one of the only states where a drug conviction for marijuana is a felony conviction, so it has life-lasting implications," Scharboneau said....

Adam Trenk is a Rose Law Group partner and director of the firm’s cannabis law department. “I think it’s really a big deal and a really big step for our state," Trenk said. Trenk said Prop 207 is really the first of its kind. “Historically we would, we being the state’s court systems, would seal records, but they wouldn’t necessarily expunge records," Trenk said.

Starting July 12, 2021, people previously convicted of select marijuana offenses can petition to have their records expunged. Essentially, this will give people a clean slate, which is what Scharboneau said his work is all about. “If we really work hard to make the laws more fair so people can actually have a fair chance at that second chance," Scharboneau said....

Rebecca Fealk, the Legislative Policy Coordinator there, said the group is working to get the word out about this measure and the impact it will have on criminal justice reform. “If somebody had a marijuana conviction, they were often denied food stamps, they were denied Pell Grants to be able go to college and do these things that allowed them to be part of our community," she said. “And so by having the opportunity to remove those, we are allowing people to be more successful and remove the harm the criminal justice system has done."

I believe that the Montana marijuana legalization ballot initiative also included some remedial criminal justice provisions, but that such reforms will require follow-up legislative action in other states.  Still, I sense there is continuing and growing momentum in marijuana reform quarters to ensure any and all reforms come with remedial provisions.  When I wrote an article on this topic a few years ago, "Leveraging Marijuana Reform to Enhance Expungement Practices," I was eager to see these intersecting issues get more attention, and I am now quite happy that they are.

UPDATE: I just saw this official press release from yesterday that details an immediate and tangible criminal justice impact from the passage of Prop 207 in Arizona. The release is titled "MCAO to Dismiss All Pending and Unfiled Charges of Possession of Marijuana," and here is the full text:

With the passage of Proposition 207, the Maricopa County Attorney’s Office (MCAO) will be dismissing all pending and unfiled charges of possession of marijuana and any associated paraphernalia charges that are before this office. Instead of continuing to spend resources on these cases, this office will begin implementing the will of the voters immediately.

We are instructing Deputy County Attorneys to file a motion to dismiss any charge covered by Proposition 207. If those charges make up the entirety of the charges of the case, the entire case will be dismissed. If there are other felony charges the case will remain pending, but we will file motions to dismiss the charges covered by Proposition 207. This will include all cases pending in Early Disposition Court, those currently in diversion or pending trial, and those set for sentencing or probation violation hearings.

Priority will be given to cases with court dates and those in custody. The office will also be filing motions to dismiss bench warrant cases where all the charges are covered by Proposition 207.

November 10, 2020 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Saturday, November 07, 2020

"Promoting Expungements to Minimize the Adverse Impact of Substance Use Disorder Criminalization"

The title of this post is the title of this notable new article authored by Brittany Kelly, John Heinz, Anthony Singer and Aila Hoss now available via SSRN.  Here is its abstract:

Research has already documented the irreparable harm of the criminalization of drugs.  In the United States, these policies have led to disproportionate rates of incarceration of black men, separated children from their parents in foster care and custody proceedings, and often left people unable to secure employment and housing.  Criminalization has also had harmful impacts from a public health perspective.  Substance use disorder is a medical condition with established criteria for diagnosis.  Criminalizing SUD instead of treating it often leaves people without access to treatment for their condition.  Criminalization of drug paraphernalia possession has also undermined the efficacy of public health strategies, such as overdose immunity laws and syringe service programs.

Many advocates and scholars across human rights, public health, and other disciplines argue that decriminalization and legalization of drugs is necessary.  While some states and localities have begun to decriminalize and legalize drugs, most do not.  And, in many jurisdictions, this would be unrealistic in the near future.  Indiana law, for example, makes possession of drug paraphernalia a misdemeanor offense.  The state legislature in fact elevated syringe possession to a felony in 2015.  What other legal strategies are available when decriminalization and legalization are not?

This article explores expungement as a tool in mitigating the harmful impacts of criminalizing substance use disorder.  It discusses the inadequacies of current criminal-based strategies for responding to the SUD crisis and the public health impacts of criminalization and describes expungement law generally and provides an in-depth summary of Indiana’s expungement laws.  Given the substantial nuances within expungement law, this article provides analysis on how they can be best structured to promote their use.  It argues that Indiana could implement a variety of strategies to promote expungement laws and thereby support individuals with substance use disorder.

November 7, 2020 in Collateral consequences, Drug Offense Sentencing | Permalink | Comments (0)

Saturday, October 31, 2020

Effective PPI review of how "technical violations" contribute to incarceration in DC

The Prison Policy Initiative has this notable new detailed briefing about so-called "technical violations" in Washington DC that helps highlight the various was mass supervision contributes to mass incarceration.  The briefing's full title set out its coverage: "Technical difficulties: D.C. data shows how minor supervision violations contribute to excessive jailing; Using D.C. as a case study, we explain how much non-criminal — and often drug related — 'technical' violations of probation and parole contribute to unnecessary jail incarceration." I recommend the piece in full, and here are excerpts:

Parole and probation violations are among the main drivers of excessive incarceration in the U.S., but are often overlooked policy targets for reducing prison and jail populations. Nationally, 45% of annual prison admissions are due to supervision violations, and 25% are the result of “technical violations” — noncompliant but non-criminal behaviors, like missing meetings with a parole officer.  The sheer number of people held in jail for mere violations of supervision exemplifies the gross overuse and misuse of incarceration in the U.S.

Despite their impact on local jail and state prison populations, technical violations are not well understood, often appearing in the data simply as “violations” without any description of the underlying behavior.  However, Washington, D.C. stands out by publishing a wealth of local jail data as well as contextual data from federal agencies like the Court Services and Offender Supervision Agency (CSOSA), which offers a fuller story of what happens to people on supervision....

When people serving a sentence from D.C. Superior Court are released from jail or prison, many remain under supervision of some form — either supervised release or parole. Each person under supervision must comply with certain conditions, which are monitored by a Community Supervision Officer (CSO).  The same is true of those sentenced by a court to probation, another form of supervision, instead of a period of incarceration.  The Robina Institute estimates that people on probation must comply with 18 to 20 requirements a day; the list of requirements in D.C. illustrates how easy it can be to “violate” these many conditions...

In D.C., the second most common “most serious offense” for men in jail is a parole violation, just behind assault and ahead of weapons violations, drug offenses, property crime, burglary and robbery, and other violations of law.  Among women, parole violations are the third most common “most serious offense.”  The D.C. Department of Corrections (DOC) reported that, as of April 2020, 8.5% of women and 14.3% of men in jails were held on charges that included a parole violation or had a “Parole Violator” status.

For context, we previously found that in both New York and Texas, parole violations made up just over 8% of those in jails statewide.  In comparison to those states, D.C.’s jails hold a larger proportion of people on parole violations.  However, when compared to the share of people held for supervision violations in other large cities like Philadelphia (58%), New York City (27%), and New Orleans (22%), D.C.’s incarceration for violations (about 14%) appears consistent with — or even more modest than — other cities’....

People in jail for technical violations — things that are not criminal offenses for people not under supervision – exemplify the overuse and misuse of incarceration. D.C. is just one criminal legal system among over 50 more in every state and territory.  Dismantling mass incarceration is impossible without also addressing the systems that latch on to people involved in the criminal legal system and refuse to let go.  To get the full picture, politicians, advocates, and scientists must take hard look at the many Americans under supervision and the ways that they are continuously churned through our massive criminal legal system. It is time to end these cycles of criminalization and find solutions that free people from the enormous reach of supervision.

October 31, 2020 in Collateral consequences, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (3)

Thursday, October 22, 2020

"Felony Disenfranchisement and the Nineteenth Amendment"

The title of this post is the title of this interesting essay just recently posted to SSRN and authored by Michael Gentithes. Here is its abstract:

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier.  Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails.  Both argue that some potential votes are somehow less worthy than others, and thus the authors of those votes ought to be excluded from the marketplace of political ideas.  And both assert a distinction between the votes of some citizens thought to be of higher political value, and those thought unworthy of having their voices counted in the political arena.

This Article examines the historical response to those arguments and suggests that they can be applied forcefully in the contemporary debate over felony disenfranchisement. Suffragists raised two arguments in response to coverture-based contentions against women enfranchisement: first, that men simply did not represent women’s interests in politics, instead subordinating them ever further both in family structures and the public sphere; and second, that women had something important to add to the political conversation that would be missing as long as they were excluded from the debate.  Similarly, felony disenfranchisement laws are based upon the fiction that there is a distinction between good votes of most citizens and bad votes of criminals, and therefore excluding former felons’ voices from the political arena is acceptable because their interests will be sufficiently served by the good votes of others.  But the voices of former felons should be heard, both because of the perspective those voices will bring to modern problems caused by growing incarceration rates, and because those voices may add important and worthy ideas to the political marketplace that would be absent if their contributions are excluded.

October 22, 2020 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Wednesday, October 21, 2020

Louisiana Supreme Court declares state statute requiring persons to carry ID branded with "SEX OFFENDER" violative of First Amendment

I am grateful to a reader for making sure I did not miss the ruling yesterday of the Supreme Court of Louisiana in Louisiana v. Hill, No. 2020-KA-00323 (La. Oct. 20, 2020) (available here). The start of the majority opinion captures its essence:

This case involves the constitutionality of a statutory requirement that persons convicted of sex offenses carry an identification card branded with the words “SEX OFFENDER.” This obligation is included as part of a comprehensive set of registration and notification requirements imposed on sex offenders in Louisiana.  Other states (and the federal government) have enacted similar collections of laws.  However, the specific requirement to carry a branded identification card distinguishes Louisiana from the rest of the country.  Forty-one other states do not require any designation on the identification cards of sex offenders.

For the reasons below, we find that this requirement constitutes compelled speech and does not survive a First Amendment strict scrutiny analysis.  Thus, we uphold the trial court’s ruling striking this specific requirement as unconstitutional and quashing the prosecution of defendant for altering his identification card to conceal the “SEX OFFENDER” designation.

The lone dissenting vote was by Justice Crain, who wrote a short dissenting opinion that starts this way:

The majority finds it unconstitutional to require a convicted sex offender to be identified as such on a government-issued identification card.  Louisiana Revised Statutes 40:1321J requires a registered sex offender to procure a special identification card that includes the words “sex offender” in all capital, orange letters.  That phrase is the speech at issue. It is not First Amendment protected speech.  The speaker is the government: the words are stamped by a governmental agency on a government-issued identification card in accordance with a government-enacted statute.  This is the embodiment of government speech.

October 21, 2020 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (5)

Wednesday, October 14, 2020

The Sentencing Project releases new disenfranchisement report, "Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction"

Via email this afternoon I received news of this notable new Sentencing Project report titled "Locked Out 2020: Estimates of People Denied Voting Rights Due to a Felony Conviction." Here is part of its "overview":

In the past 25 years, half the states have changed their laws and practices to expand voting access to people with felony convictions.  Despite these important reforms, 5.2 million Americans remain disenfranchised, 2.3 percent of the voting age population.

In this presidential election year, the question of voting restrictions, and their disproportionate impact on Black and Brown communities, should receive greater public attention....

For the first time, we present estimates of the percentage of the Latinx population disenfranchised due to felony convictions.  Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2020 election.  Our key findings include the following:

• As of 2020, an estimated 5.17 million people are disenfranchised due to a felony conviction, a figure that has declined by almost 15 percent since 2016, as states enacted new policies to curtail this practice.  There were an estimated 1.17 million people disenfranchised in 1976, 3.34 million in 1996, 5.85 million in 2010, and 6.11 million in 2016.

• One out of 44 adults — 2.27 percent of the total U.S. voting eligible population — is disenfranchised due to a current or previous felony conviction.

• Individuals who have completed their sentences in the eleven states that disenfranchise at least some people post-sentence make up most (43 percent) of the entire disenfranchised population, totaling 2.23 million people.

• Rates of disenfranchisement vary dramatically by state due to broad variations in voting prohibitions.  In three states — Alabama, Mississippi, and Tennessee more than 8 percent of the adult population, one of every thirteen people, is disenfranchised.

• We estimate that nearly 900,000 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.  Florida thus remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting — often because they cannot afford to pay court-ordered monetary sanctions or because the state is not obligated to tell them the amount of their sanction.

• One in 16 African Americans of voting age is disenfranchised, a rate 3.7 times greater than that of non-African Americans.  Over 6.2 percent of the adult African American population is disenfranchised compared to 1.7 percent of the non-African American population.

• African American disenfranchisement rates vary significantly by state.  In seven states — Alabama, Florida, Kentucky, Mississippi, Tennessee, Virginia, and Wyoming — more than one in seven African Americans is disenfranchised, twice the national average for African Americans.

• Although data on ethnicity in correctional populations are still unevenly reported, we can conservatively estimate that over 560,000 Latinx Americans or over 2 percent of the voting eligible population are disenfranchised.

• Approximately 1.2 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.

October 14, 2020 in Collateral consequences, Data on sentencing, Race, Class, and Gender | Permalink | Comments (2)

Monday, October 12, 2020

Broad Michigan expungement bill signed into law (time to step up Ohio)

As reported in this local article, headlined "Gov. Whitmer signs bills expanding criminal record expungement in Michigan," notable record relief reform has now become law in the Wolverine State.  Here are the details:

Gov. Gretchen Whitmer signed legislation Monday that will automatically clear certain criminal convictions from public view in Michigan while also making more people eligible for expungement through the application process.

The changes are expected to help hundreds of thousands of Michiganders by removing a barrier to employment, housing and other opportunities after people have rehabilitated themselves.

During a news conference with Whitmer in Detroit, lawmakers and advocates held up Michigan as a national leader in expungement reform.  The automatic record-clearing legislation is the "most expansive version of this law in the country," said John Cooper, executive director of Safe & Just Michigan, one of the organizations that advocated for the bills.

Whitmer called it a "historic" day for Michigan.  “These bipartisan bills are going to be a game changer,” she said.  “They will ensure a clean slate for hundreds of thousands of people.  And they will help us grow our workforce and expand access to education and skills training."

State Rep. Graham Filler, a DeWitt Republican who chairs the House Judiciary Committee and joined in announcing the bipartisan bills in Detroit last fall, said the reform will directly increase public safety.  "You're in your community, you're invested in your community, you're spending time with your family, you're working, you're accessing housing," he said. "We have less recidivism, less victims. This is what happens when you access expungement."

Crime survivors who support the legislation agreed.  "For many crime survivors, the most important thing ... is what happened it us, we don’t want it to happen again to anyone," Aswad Thomas, a survivor of gun violence, told the Free Press.  Thomas is managing director of Crime Survivors for Safety and Justice, a national network with chapters in Michigan.  "And passing reforms like the Clean Slate bill, when people are able to get access to a job, people are able to get access to education, people are able to get access to employment, it actually increases public safety."

A coalition of groups that pushed for the reform over the last few years say Michigan's process to seal a conviction so that it doesn't appear on a background check has long been costly and complicated, and the restrictions unduly narrow.  Only 6.5% of people who qualify for expungement in Michigan have their records cleared within five years of becoming eligible, according to a study out of the University of Michigan Law School.  The study found that people who get their records expunged see higher earnings and low recidivism rates.

"This is bigger than criminal justice reform," Lt. Gov. Garlin Gilchrist said. "This is about economic opportunity and full participation in our economy and our society."

The state follows Pennsylvania, Utah and California in adopting an automated system to wipe clean certain convictions from public records after a period of time. Michigan's law will apply retroactively and is the first to automatically clear prior low-level felonies.

Under the automatic record-clearing law, misdemeanors will be expunged seven years after sentencing.  Felonies will be cleared 10 years after sentencing or the person's release from incarceration, whichever comes last.  Up to two felonies and four misdemeanors can be automatically cleared.

Not eligible for automatic expungement are assaultive crimes, serious misdemeanors, "crimes of dishonesty" (such as forgery and counterfeiting), offenses punishable by 10 or more years in prison and crimes that involve a minor, a vulnerable adult, injury or serious impairment, death or human trafficking.  Assaultive crimes are defined as offenses such as assault, homicide, manslaughter, assaults against pregnant women, kidnapping, rape, armed robbery, terrorism, and violations involving bombs and explosives, according to the House Fiscal Agency.

The legislation gives the state two years to implement the automatic expungement process.  The remaining legislation in the seven-bill package will take effect in 180 days.  The bills expand eligibility for expungement through the application process, which is handled by a judge.

As the parenthesis in my post title highlights, I am hopeful that Ohio's long-standing rivalry with its neighbor up north might lead the Buckeye State to try to keep up on the record relief front.  And, coincidentally, the latest new drafting contest from a partnership of the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law and the Ohio Justice & Policy Center and the Collateral Consequences Resource Center is focused on suggesting changes to Ohio’s existing statutory record relief provisions. The details on this contest, titled "Re-Imagining 'Second Chances': Improving Ohio’s Re-Entry Provisions," are available here on the DEPC website.

October 12, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Tuesday, October 06, 2020

Collateral Consequences Resource Center releases "The Reintegration Report Card"

The title of this post is the title of this notable new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center.  Here is this detailed report's introduction:

This Report Card supplements our recently published 50-state report, “The Many Roads to Reintegration,” a survey of U.S. laws aimed at restoring rights and opportunities after arrest or conviction.  That report includes topical essays covering voting and firearms rights, an array of record relief remedies, and consideration of criminal record in employment and occupational licensing.

The “Many Roads” report assigned to each state, D.C., and the federal system a grade for nine different types of restoration laws:

  1. loss and restoration of voting rights
  2. pardon
  3. felony expungement, sealing & set-aside (“felony relief”)
  4. misdemeanor expungement, sealing & set-aside (“misdemeanor relief”)
  5. non-conviction relief
  6. deferred adjudication
  7. judicial certificates of relief
  8. employment
  9. occupational licensing.

Using these grades, we produced an overall ranking of the states and D.C. In this Report Card we provide the grades and rankings in an easily digestible form.

We also provide a brief narrative summary of how each state’s law stacks up in the different categories.  Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its ranking. An appendix collects all the grades and rankings.

Finally, we emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries.  We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them.  In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

For more details and legal citations for each state, see the Restoration of Rights Project.  For essays surveying each topic, consult “The Many Roads to Reintegration.”

October 6, 2020 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, October 04, 2020

"Eligible, but excluded: A guide to removing the barriers to jail voting"

The title of this post is the title of this notable new report released on Friday by the Prison Policy Initiative and the Rainbow PUSH Coalition.  Here is its starting paragraph: 

Most people in jail are legally eligible to vote, but in practice, they can’t.  This “de facto disenfranchisement” stems from numerous factors, including widespread misinformation about eligibility, myriad barriers to voter registration, and challenges to casting a ballot.  Below, we explain who in jail is eligible to vote (state by state), discuss the barriers that keep them from voting, and offer recommendations for advocates, policymakers, election officials, and sheriffs to ensure that people in jail are able to vote.

This AP article discusses the report and provides additional context under the headline "Voting nearly impossible for eligible voters behind bars." Here is an excerpt from the AP piece:

Most of the three-quarters of a million people held in U.S. jails have the right to vote. But many of them are unable to, stymied by misinformation, limited access to registration and ballots and confusion from the officials in charge. The result is widespread voter disenfranchisement, say experts with the Prison Policy Initiative. The advocacy organization released a report detailing voting access for jail inmates with Rainbow PUSH Coalition, a civil rights advocacy group formed by the Rev. Jesse Jackson, on Friday....

[M]ost people in jail haven’t been convicted, but instead are awaiting trial on the charges for which they are being held. While those convicted of a felony lose their right to vote in most states for at least the time they are incarcerated, many of the people serving time in jail are serving time for misdemeanors, and most states allow people with misdemeanor convictions to vote. Very few get to actually exercise that right, the study found. Confusion, logistical barriers and timing issues abound.

October 4, 2020 in Collateral consequences, Prisons and prisoners | Permalink | Comments (1)

Thursday, September 17, 2020

"Public opinion and the politics of collateral consequence policies"

The title of this post is the title of this notable new article authored by Travis Johnston and Kevin Wozniak recently published in Punishment & Society.  Here is its abstract:

We analyze data from a national sample of the U.S. population to assess public support for policies that deny former offenders’ access to job training programs, food stamps, and public housing. We find that Americans generally oppose benefit restrictions, though support for these policies is higher among Republicans and people with higher levels of racial resentment.  We also find that a legislator’s criminal justice reform positions generally do not significantly affect voters’ evaluation of him or her, and even voters with more punitive attitudes toward collateral consequence policies support legislators who advance particular kinds of reform proposals.  These findings provide little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies. We discuss the implications of these findings for American and comparative studies of the politics of punishment.

September 17, 2020 in Collateral consequences, Criminal Sentences Alternatives, Elections and sentencing issues in political debates, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, September 08, 2020

"The Many Roads to Reintegration: A 50-State Report on Laws Restoring Rights and Opportunities After Arrest or Conviction"

Many-Roads-Cover-1-768x994The title of this post is the title of this big new report by Margaret Love and David Schlussel of the Collateral Consequences Resource Center. The report, among other valuable elements, provides a "National Ranking of Restoration Laws" for all states and DC. Here is part of the 100+ page report's executive summary:

This report sets out to describe the present landscape of laws in the United States aimed at restoring rights and opportunities after an arrest or conviction. This is an update and refresh of our previous national survey, Forgiving and Forgetting in American Justice, last revised in 2018.  Much of the material in this report is drawn from our flagship resource, the Restoration of Rights Project.  We are heartened by the progress that has been made toward neutralizing the effect of a criminal record since the present reform era got underway in a serious fashion less than a decade ago, especially in the last two years.

This report considers remedies for three of the four main types of collateral consequences: loss of civil rights, dissemination of damaging record information, and loss of opportunities and benefits, notably in the workplace.

Its first chapter finds that the trend toward restoring the vote to those living in the community — a long-time goal of national reform organizations and advocates — has accelerated in recent years.  Further reforms may be inspired by the high-profile litigation over Florida’s “pay-to-vote” system, which shines a national spotlight on financial barriers to the franchise.  This chapter also finds that systems for restoring firearms rights are considerably more varied, with many states providing relief through the courts but others requiring a full pardon.

The second chapter deals with laws intended to revise or supplement criminal records, an issue that has attracted the most attention in legislatures but that has benefited the least from national guidance. It is divided into several parts, based on the type of record affected (conviction or nonconviction) and the type of relief offered (e.g. pardon, expungement, set-aside, certificates, diversion, etc.).  The wide variety in eligibility, process, and effect of these record relief laws speaks volumes about how far the Nation is from common ground.

The third chapter concerns the area in which perhaps the most dramatic progress has been made just since 2018: the regulation of how criminal record is considered by public employers and occupational licensing agencies.  Legislatures have been guided and encouraged by helpful model laws and policies proposed by two national organizations with differing regulatory philosophies: The Institute of Justice, a libertarian public interest law firm, and the National Employment Law Project, a workers’ rights research and advocacy group.  Regulation of private employment has also been influenced by national models, although to a lesser extent and more needs to be done in this area.

This report makes clear that substantial progress that has been made in the past several years toward devising and implementing an effective and functional system for restoring rights and status after arrest or conviction.  The greatest headway has been made in restoring rights of citizenship and broadening workplace opportunities controlled by the state. The area where there is least consensus, and that remains most challenging to reformers, is managing dissemination of damaging criminal record information.  Time will tell how the goal of a workable and effective relief system is achieved in our laboratories of democracy.

September 8, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Tuesday, September 01, 2020

More great resources from the Collateral Consequences Resource Center

Last week in this post, I highlighted that folks at the Collateral Consequences Resource Center were producing series of posts drawn from a forthcoming huge report surveying mechanisms for restoring rights and opportunities following arrest or conviction.  Since then, the CCRC folks have these three more new postings:

September 1, 2020 in Collateral consequences, Sentences Reconsidered | Permalink | Comments (0)

Effective and timely review of the state of disenfranchisement for those with criminal convictions

This lengthy new Stateline piece, headlined "More People With Felony Convictions Can Vote, but Roadblocks Remain," provides an effective review of the realities of felon disenfranchisement circa 2020. I recommend the full piece and here are excerpts:

In every state except Maine and Vermont, people convicted of felonies are stripped of their voting rights while in prison. In most states, that ban extends to those on probation or parole, while some states have additional time and fee requirements, disenfranchising millions of people.

[Iowa Gov Kim] Reynolds restored automatic voting rights to most people with felony records after they complete their sentence, including parole or probation; the exceptions are people with homicide convictions, who must file an application.  Under the order, an estimated 60,000 additional people now are eligible to vote in the Hawkeye State.

They join the ranks of hundreds of thousands of others with felony convictions who are newly eligible to vote in the general election this year.  Since the 2016 election, Colorado, Florida, Kentucky, Louisiana, Nevada, New Jersey, New York and Virginia also have implemented or expanded voting rights for some people convicted of felonies.

The political stakes are up for debate.  Roughly 630,000 people with felony convictions can vote this year in Florida, nearly six times the 113,000 vote-margin by which Donald Trump beat Hillary Clinton in the state.  But research has shown that like other voters, people convicted of felonies who are registered don’t necessarily vote.

Still, groups ranging from liberal political organizations to the nonpartisan League of Women Voters are working furiously to find these newly eligible voters as registration deadlines approach.  But the pandemic is complicating in-person registration drives, as are the uncertainties around mail-in voting.  And eight states explicitly require people with felony records to pay some form of court costs and fees before registering.

In 2016, an estimated 6.1 million people or 1 in 40 adults were unable to vote because of a felony conviction, according to the Sentencing Project, a Washington, D.C.-based research and advocacy organization. The project found that Black people were the most likely to be disenfranchised: More than 7 percent of the adult African American population, or 1 in 13 people, could not vote because of a felony conviction....

In Kentucky, an estimated 170,000 people with felony records were given voting rights in December under an order from Democratic Gov. Andy Beshear. As in Iowa, the order doesn’t automatically apply to people convicted of certain violent offenses. Grassroots advocacy organization Kentuckians for the Commonwealth has been working for years on expanding voting rights. Since Beshear’s order, and with the help of other organizations, it has put together a list of more than 60,000 names and contact information for people who now can register to vote....

In 2018, 65 percent of Florida voters supported a constitutional amendment to give voting rights to people with felony records who had completed parole or probation, with the exception of those convicted of murder or sexual offenses. But the GOP-controlled legislature last year passed a measure to require that restitution, fines and fees be paid before voting rights are restored. Over half of the estimated 1.4 million people convicted of felonies in the state have outstanding court costs or restitution, according to the Brennan Center for Justice at the New York University Law School.

Lawsuits have ensued over the constitutionality of the law, which opponents liken to a poll tax.  A federal judge in May found the requirement to be unconstitutional. But Republican Gov. Ron DeSantis appealed to the 11th U.S. Circuit Court of Appeals, which ruled in his favor.  Voting rights groups asked the U.S. Supreme Court to weigh in; the court in July left in place the appeals court’s order.  The issue remains before the appeals court, which heard arguments in the case Aug. 18.

Florida is known for close elections, and some political observers think a majority of the new voters would vote Democratic.  But Sean Morales-Doyle, deputy director of voting rights and elections in the Brennan Center’s Democracy Project, dismisses the notion that politics drive enfranchisement efforts.  “The decisions about who has the right to vote should never be based on an assessment of how we think someone is going to vote,” he said.  “We should be for or against voting rights restoration because of the merits of the policy, not the politics.”...

Beyond the push toward the November elections, voting rights activists eventually want to extend voting to people on probation or parole and people in prison.  “Residents who are required to pay taxes, be good citizens, they should also have a role in determining who governs them,” said Nicole Porter, advocacy director of state and local policy for the Sentencing Project.

A referendum on the ballot in California in November would give parolees voting rights.  Efforts are ongoing in other states, including Connecticut, where legislation proposed by Secretary of the State Denise Merrill, a Democrat, to extend voting rights to people on parole died this year.

September 1, 2020 in Collateral consequences, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Thursday, August 20, 2020

Amazing resources and insights from the Collateral Consequences Resource Center

Regular readers are used to my regular reminders to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a terrific series of posts drawn from a forthcoming report surveying mechanisms for restoring rights and opportunities following arrest or conviction.  Here are posts from this series:

In addition, the CCRC's website also has recently published these commentary posts on cutting edge topics:

August 20, 2020 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

"Labeled For Life: A Review of Youth Sex Offender Registration Laws"

The title of this post is the title of this notable new report from the Juvenile Law Center. Here is an excerpt:

Over 200,000 individuals are on sex offender registries for offenses committed when they were children.  Registration can be life-long and can be imposed without any inquiry into the child’s individual circumstances or progress in treatment. Some states require community notification in addition to registration and reporting requirements.  Many young people face registration as a consequence of developmentally normal behavior, including playing doctor, streaking, sexting, and consensual teen romances.  While some youth commit serious sexual harm and should be held accountable for this conduct, they also need support and effective interventions to change their behavior; the vast majority of youth who act out sexually do not recidivate.  A meta-analysis reviewing 107 studies found that across behavior type, over 97% of children charged with sexual offenses never harm sexually again.  Moreover, after almost 30 years of placing children on registries, empirical research concludes that the practice does not prevent or reduce sexual violence. Rather, placing young people on registries fuels cycles of homelessness, incarceration, and trauma, for both the registrant and survivors.

Children on the registry — including some as young as 8 years old — face residency and employment restrictions as well as barriers to education; suffer the stigmatization of being labeled a sex offender; and can face possible incarceration for failing to meet onerous registration and reporting requirements.  A 2013 Human Rights Watch report examined the grave consequences befalling registered youth.  Over 85% of these youth reported serious mental health issues or suicidal ideation.  A 2017 study revealed that registered children are nearly twice as likely to have experienced an unwanted sexual assault that involved contact or penetration in the past year when compared to nonregistered children who have also engaged in harmful or illegal sexual behaviors.  They are also five times more likely to report having been approached by an adult for sex in the past year.  Children on sex offender registries are four times more likely to report a recent suicide attempt than non-registered children who have engaged in harmful or illegal sexual behavior.  Many registered youth also experience vigilantism in their communities, with 52% reporting harassment and physical violence directed at them.  Accessing and maintaining housing is also a major barrier for both registered youth and their families.  Over 44% of children experienced homelessness as a result of the restrictions placed on their housing due to registration.  Almost all registered individuals face financial challenges and barriers to employment.  In some states, registration fees are so prohibitive that many fall out of compliance and face incarceration....

Although some states have improved youth registration requirements through legislation, the consequence of registration for any period of time is severe. Leading researchers that have studied the impact of registration on young people have empirical data demonstrating the harm caused by registration.  Legislative advocacy is needed — in coordination with litigation — to eradicate youth registration. This statutory review demonstrates that regional differences and nuances of state youth registration laws preclude a “one size fits all” approach to reform. Strategies and research must be based on best practices for both incremental reform and efforts to completely abolish youth registration nationwide.  In addition, a federal legislative strategy will be a necessary and fundamental component of these efforts, as many states continue to be constrained by stringent requirements imposed by the Adam Walsh Act.  Moreover, states continue to look toward the federal government and changing federal youth registration law would be one way to inspire and lead states to do the same.  Most states that require juvenile registration do so without regard to either changing United States Supreme Court caselaw or the emergent research on its effectiveness at promoting public safety or the harm it causes children.  Against this backdrop, the time is now to set a targeted policy reform agenda to roll back these harsh registration laws.

August 20, 2020 in Collateral consequences, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

Thursday, August 13, 2020

ABA adopts resolution urging jurisdictions to repeal all felon disenfranchisement laws

I was pleased to see news of the American Bar Association passing a resolution calling for the repeal laws that disenfranchise persons based upon criminal conviction.  The full resolution is bold and broad and reads as follows:

RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal governments to:

  a.  repeal laws that disenfranchise persons based upon criminal conviction;

  b.  restore voting rights to those currently and formerly incarcerated, including those on probation, parole, or any other community-based correctional program;

  c.  assure that no person convicted of crime is disenfranchised because of nonpayment of a fine, court costs, restitution or other financial obligations imposed as a result of a criminal conviction.

FURTHER RESOLVED, That the American Bar Association amends the Criminal Justice Standards on Collateral Sanctions and Discretionary Disqualification of Convicted Persons (3d Edition, 2004) as follows:

  Standards 19-2.6 Prohibited collateral sanctions Jurisdictions should not impose the following collateral sanctions: (a) deprivation of the right to vote.

August 13, 2020 in Collateral consequences, Who Sentences | Permalink | Comments (4)

Wednesday, August 12, 2020

"Blanket Exclusions, Animus, and the False Policies They Promote"

The title of this post is the title of this new paper authored by Catherine Carpenter now available via SSRN.  Here is its abstract:

Saying something is true does not make it so. A nd saying it louder does not make it truer.  But such is the legislative posture behind modern day sex offense registration laws that punish those who commit sex crimes because of entrenched myths that overstate the laws’ positive impact on public safety and exaggerate recidivism rates of offenders.  And it is not only registration schemes themselves that have been scaffold-ed by these myths, but numerous ancillary laws that exclude benefits to offenders strictly because they have committed sex offenses.

Sadly, this sticky, but false, narrative has provided the animus that galvanized implementation of registration and notification regimes. And in its most recent chapter, the narrative has been formalized into blanket exclusions — or what this article calls “all except for” provisions — that have inserted into a myriad of criminal justice reform efforts without much notoriety.

The effect?  Registrants and their families have been prohibited from broad-based and important ameliorative changes to the carceral state, many to which they should be entitled, and to which they are denied only because of their status as registrants.  Indeed, within comprehensive legislation covering numerous crime and sentencing reforms, these ubiquitous blanket exclusions have the markings of boilerplate language that have been introduced even where the new legislation has no rational relationship to the protection of the public’s safety or the prior sex offense conviction.

This article examines the moral panic and false data used to buttress blanket exclusion provisions — their inflated importance obvious. It concludes that these measures, which are un-tethered to public safety concerns, and only supported by governmental and community animus, violate fourteenth amendment protections.

August 12, 2020 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (2)

Wednesday, August 05, 2020

Iowa Gov, via executive order, restores voting rights to thousands with felony convictions

As reported in this lengthy local article, headlined "Gov. Kim Reynolds signs executive order restoring felon voting rights, removing Iowa's last-in-the-nation status," fans of democracy has some good news to celebrate today out of the great state of Iowa.  Here are the details:

Thousands of Iowans with felony convictions who have served their sentences can now participate in November's presidential election after Gov. Kim Reynolds signed an executive order Wednesday restoring their voting rights.

Reynolds, a Republican, signed the executive order Wednesday morning in her office at the Iowa Capitol, flanked by a group of local leaders and legislators.  "Quite simply, when someone serves their sentence and pays the price our justice system has set for their crimes, they should have their right to vote restored, automatically, plain and simple," she said.

Iowa was the last state in the nation that still banned all people with felony convictions from voting — even after the completion of their sentences — unless they applied individually to the governor's office to have their rights restored.

Reynolds has spent the past two years advocating for the Iowa Legislature to pass a constitutional amendment that would restore voting rights but had resisted calls to sign an executive order, saying she believes a constitutional amendment is the best solution because it can't be changed by a future governor.  This summer, after Republicans in the Iowa Senate did not pass the amendment and after George Floyd's death prompted increased advocacy on racial justice issues, she announced she would sign the order.

Iowa's felon voting ban was estimated to affect tens of thousands of people.  The Iowa Department of Corrections has discharged an average of 5,000 people with felony convictions annually in recent years, according to Sam Langholz, the governor's legal counsel.  A 2016 report from The Sentencing Project found that the ban affected nearly one in 10 African-American adults....

Reynolds' order states that felons must have discharged their sentence, including any parole and probation, before their voting rights will be restored.  Anyone still serving a prison sentence for a felony conviction will not be able to vote.

The order does not automatically grant voting rights to people convicted of felonies outlined in Iowa Code chapter 707, which includes murder and manslaughter.  People convicted of serious sexual abuse crimes will need to complete any special sentences before their voting rights are restored.  Those special sentences last either 10 years or for life, depending on the crime, meaning people convicted of the most serious sexual crimes will never automatically regain their voting rights. Those whose voting rights are not automatically restored under the order can still petition the governor individually to have them restored.

The executive order does not require people with felony convictions to fully pay back any restitution payments owed to their victims before regaining their rights, as was included in a bill introduced by Republicans in the Iowa Senate earlier this year. But the order does not relieve them from making their payments.  Nearly one in four Iowa felony convictions in the last two years came with a judgment ordering restitution to be paid to victims.  The average tab for those nearly 4,000 convictions is $11,607....

Matthew Bruce, an organizer with Des Moines Black Lives Matter, said he didn't agree with how the executive order prevents automatic restoration for people on probation or parole.  But he said he was encouraged to see that the order doesn't require payment of restitution.  "I was very glad about the restitution piece, and I thought that was the biggest victory out of all of this," he said.

In her remarks, Reynolds again emphasized her commitment to eventually restoring voting rights through a constitutional amendment. “Let me be clear, an executive order is at best a temporary solution,” she said.  “It can be changed with the stroke of a pen by the next governor, which is not good enough.  Something that is fundamentally right should not be based on the benevolence of a single elected official.”

August 5, 2020 in Collateral consequences, Who Sentences | Permalink | Comments (1)

Friday, July 31, 2020

Big new ACLU and HRW report details "How Probation and Parole Feed Mass Incarceration in the United States"

The quoted portion of the title of this post is part of the title of this huge new report by Human Rights Watch and the American Civil Liberties Union fully titled "Revoked: How Probation and Parole Feed Mass Incarceration in the United States." This important 200+ page report includes these passages in its "summary":

Probation, parole, and other forms of supervision are marketed as alternatives to incarceration in the United States. Supervision, it is claimed, will keep people out of prison and help them get back on their feet.

Throughout the past 50 years, the use of probation (a sentence often imposed just after conviction) and parole (served after incarceration) has soared alongside jail and prison populations. As of 2016, the last year for which supervision data is available, 2.2 million people were incarcerated in United States jails and prisons, but more than twice as many, 4.5 million people — or one in every 55 — were under supervision.  Supervision rates vary vastly by state, from one in every 168 people in New Hampshire, to one in every 18 in Georgia.

Over the past several decades,arbitrary and overly harsh supervision regimes have led people back into US jails and prisons — feeding mass incarceration.  According to the Bureau of Justice Statistics (BJS), in the late 1970s, 16 percent of US state and federal prison admissions stemmed from violations of parole and some types of probation.  This number climbed to a high of 36 percent in 2008, and, in 2018, the last year for which data is available, was 28 percent.  A different set of data for the previous year from the Council of State Governments, which includes all types of probation violations — but is limited to state prison populations — shows that 45 percent of all US state prison admissions stemmed from probation and parole violations.  These figures do not include people locked up for supervision violations in jails, for which there is little nationwide data.  Black and brown people are both disproportionately subjected to supervision and incarcerated for violations.

This report documents how and why supervision winds up landing many people in jail and prison — feeding mass incarceration rather than curtailing it.  The extent of the problem varies among states, and in recent years multiple jurisdictions have enacted reforms to limit incarceration for supervision violations.  This report focuses on three states where our initial research indicated that — despite some reforms — the issue remains particularly acute: Georgia, Pennsylvania, and Wisconsin.

Drawing on data provided by or obtained from these states, presented here for the first time, and interviews with 164 people incarcerated for supervision violations, family members, government officials, practitioners, advocates, and experts, we document the tripwires in these states leading to incarceration.  These include burdensome conditions imposed without providing resources; violations for minor slip-ups; lengthy incarceration while alleged violations are adjudicated; flawed procedures; and disproportionately harsh sentences for violations.  The report shows that, nationwide,most people locked up for supervision violations were not convicted of new offenses — rather, they were incarcerated for breaking the rules of their supervision, such as for using drugs or alcohol, failing to report address changes, or not following the rules of supervision-mandated programs.  Of those who were incarcerated for new offenses, in our focus states, many were for conduct like possessing drugs; public order offenses such as disorderly conduct or resisting arrest; misdemeanor assaultive conduct; or shoplifting....

The root causes of these violations, the report documents, are often a lack of resources and services, unmet health needs, and racial bias.The report also draws attention to marked racial disparities in who is subjected to supervision and how authorities enforce it. In practice, supervision in many parts of the US has become a system to control and warehouse people who are struggling with an array of economic and health-related challenges, without offering meaningful solutions to those underlying problems.

July 31, 2020 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, July 16, 2020

Via 6-3 vote, SCOTUS refuses to vacate Eleventh Circuit stay that prevents certain persons with felony convictions from registering to vote

As reported in this CNBC piece, headlined "Supreme Court leaves in place Florida ‘pay-to-vote’ law aimed at felons," the Court this afternoon left in operation "a Florida law requiring those with felony convictions to pay fines before they may vote, potentially blocking about three-quarters of a million otherwise-eligible voters from the polls."  Here is more of the legal essentials: 

The case concerned an a 2018 ballot initiative in which voters in the state ended the permanent disenfranchisement of felons who had completed “all terms of sentence including parole or probation.”  The legislature defined the phrase the following year to include fines, restitution and other fees. Gov. Ron DeSantis, a Republican, signed the bill in June 2019. 

After civil rights groups challenged the legislature’s move, a federal judge blocked the law from going into effect, but that decision was halted by the 11th U.S. Circuit Court of Appeals, which is continuing to consider the matter.

The American Civil Liberties Union, the Southern Poverty Law Center, and Campaign Legal Center asked the top court to reverse the 11th Circuit’s decision.  The groups argued in court papers that most of the 750,000 potential voters could not afford what they owed, and that many had no way of knowing how much they were required to pay.  In court papers, they urged the justices to block the law so that the August and November elections would not be “undermined by chaos and disenfranchisement.”

Attorneys for DeSantis argued that states were “under no obligation to reenfranchise felons at all.” They argued that “all Floridians will be irreparably harmed” if the court allowed “hundreds of thousands of ineligible voters to take part in the upcoming elections.”

Paul Smithvice president of the Campaign Legal Center, said in a statement on Thursday that the Supreme Court’s order was “deeply disappointing.”

“Florida’s voters spoke loud and clear when nearly two-thirds of them supported rights restoration at the ballot box in 2018,” Smith said. “The Supreme Court stood by as the Eleventh Circuit prevented hundreds of thousands of otherwise eligible voters from participating in Florida’s primary election simply because they can’t afford to pay fines and fees.”

Technically, all that SCOTUS did today via this order was turn down an application to vacate the stay that the Eleventh Circuit had put in place. This order was via 6-3 vote, with Justice Sotomayor authoring a dissent joined by Justices Ginsburg and Kagan that starts and ends this way:

This Court’s order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.  And it allows the Court of Appeals for the Eleventh Circuit to disrupt Florida’s election process just days before the July 20 voter-registration deadline for the August primary, even though a preliminary injunction had been in place for nearly a year and a Federal District Court had found the State’s pay-to-vote scheme unconstitutional after an 8-day trial.  I would grant the application to vacate the Eleventh Circuit’s stay....

This Court’s inaction continues a trend of condoning disfranchisement.  Ironically, this Court has wielded Purcell as a reason to forbid courts to make voting safer during a pandemic, overriding two federal courts because any safety-related changes supposedly came too close to election day.  See Republican National Committee v. Democratic National Committee, 589 U.S. ___ (2020) (per curiam).  Now, faced with an appellate court stay that disrupts a legal status quo and risks immense disfranchisement — a situation that Purcell sought to avoid — the Court balks.

July 16, 2020 in Collateral consequences, Fines, Restitution and Other Economic Sanctions, Who Sentences | Permalink | Comments (4)

Sunday, June 07, 2020

An initial list of federal sentencing reforms to advance greater equity and justice for congressional consideration

According to this recent Hill article, headlined "Pelosi: Democrats to unveil sweeping criminal justice proposal Monday," a federal criminal justice bill is in the works that may go beyond police reforms.  Here are the basics:

Democrats on Monday will introduce wide-ranging legislation designed to combat racial inequities in the criminal justice system, Speaker Nancy Pelosi (D-Calif.) announced Thursday.  The much awaited package, currently being crafted by members of the Congressional Black Caucus (CBC), will feature provisions designed to eliminate racial profiling, rein in the excessive use of police force and repeal the so-called qualified immunity doctrine for law enforcers, which protects individual officers from lawsuits over actions they perform while on duty.

"We will not relent until that is secured — that justice is secured," Pelosi told reporters in the Capitol.  Yet the package will go far beyond that, Pelosi suggested.... Aside from the criminal justice elements of the Democrats' legislation, Pelosi said the package would also include provisions designed to raise the status of African Americans outside of the criminal justice system as well. "It is about other injustices, too. It's about health disparities, it's about environmental injustice, it's about economic injustice, it's about educational injustice," Pelosi said. 

This Politico piece suggests the developing bill is primarily focused on police reforms.  But if Congress has an interest, as I think it should, in broader criminal justice reforms to advance greater equity and justice, I have many suggestions.  Let's get started with some basic federal sentencing reforms:

1. Equalize crack and powder cocaine sentencing (finally!) Based on data showing huge unfair disparities, the US Sentencing Commission in 1995 (a full quarter century ago!) sent to Congress proposed guidelines changes to fix the 100:1 crack/powder cocaine disparity by adopting a 1:1 quantity ratio at the powder cocaine level.  But Congress passed, and President Bill Clinton signed, legislation rejecting the USSC’s proposed guideline changes (see basics here and here), thereby ensuring decades of disproportionately severe crack sentences and extreme racial inequities in cocaine offense punishments.

Barack Obama gave a 2007 campaign speech assailing the crack/powder disparity, and in 2009 the Obama Justice Department advocated for "Congress to completely eliminate the crack/powder disparity."  Sadly, despite strong DOJ advocacy for a 1:1 ratio in April 2009, it still took Congress more than a year to enact any reform to the 100:1 crack/powder cocaine disparity, and then it only could muster a partial reduction in crack sentences rather than the parity advocated by the USSC in 1995 and by DOJ in 2009.  Specifically, the Fair Sentencing Act enshrined a bew 18:1 crack/powder quantity disparity ratio into federal drug sentencing statutes and guidelines, and even this modest reform did not become fully retroactive until eight years later with the FIRST STEP Act.

As the USSC said in 1995 and as DOJ recognized in 2009, crack cocaine and powder cocaine are functionally the same drug save for the fact that Blacks are far more likely to be prosecuted federally for the former.  The crack/powder cocaine sentencing disparity has long been the most tangible and consequential example of structural sentencing racism, and the Minnesota Supreme Court decades ago found a lesser disparity to be unconstitutional under its state constitution.  This ugly stain still impacting thousands of Black federal defendants needs to be wiped out once and for all.

2. Repeal federal mandatory minimumsEven before its important work highlighting racial biases in the application of federal cocaine penalties, the USSC began noting the racial inequities in the application of federal mandatory minimum statutes.  In its 1991 report, the USSC noted early data showing "disparate application of mandatory minimum sentences [which] appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum."  In its 2011 report, the USSC again documented with copious data the various ways that the effects of severe mandatory minimum sentencing provisions "fall on Black offenders to a greater degree than on offenders in other racial groups."

One need not rely on USSC data to see clear evidence of racial disparities in the application of federal mandatory minimum.  M. Marit Rehavi and Sonja B. Starr found that federal prosecutors are almost twice as likely to file charges carrying mandatory minimum sentences against Black defendants.  Similarly, Crystal Yang found that "Black offenders are far more likely to be charged with mandatory minimums than similar white offenders, and after Booker, black defendants are significantly more likely to face mandatory minimums that exceed their Guidelines minimum compared to white defendants."

Critically, mandatory minimums have all sorts of flaws, both in theory and in practice, that justify their repeal on a number of bases beyond advancing greater racial equity.  But, as is too often the case throughout criminal justice systems, a bad law for everyone often gets applied in a way that is especially inequitable and unjust for people of color.  All federal mandatory minimums ought to be repealed.

3. Create a federal expungement statute. Having a criminal record severely limits access to employment, education, housing, civic engagement, and public assistance.  As highlighted by a recent US Commission on Civil Rights report on collateral consequences, "People of color are more likely to be arrested, convicted, and sentenced more harshly than are white people, which amplifies the impact of collateral consequences on this population."

An encouraging recent study by Sonja B. Starr and J.J. Prescott involving expungements in Michigan over the course of decades found that expungement recipients had extremely low subsequent crime rates and saw a sharp upturn in wages and employment levels.  Sounds like a win-win, and ever more states are each year expanding and enhancing mechanisms for record relief.  But there is currently no general federal expungement or record sealing statute, and federal courts have no inherent authority to expunge records.  Congress should again follow the wise lead of the states by creating a robust expungement statute ASAP.

Critically, these three suggestions are really just low-hanging fruit for criminal justice reforms in the sentencing space that would obviously and easily advance greater equity and justice for all.  There are plenty of other important structural changes I would also like to see in the name of racial justice ranging from eliminating all felon disenfranchisement to decriminalizing or legalizing marijuana and lots more in between.  Indeed, any kind of wise criminal justice reform is likely to serve as a kind of racial justice reform given the consistently biased operation of our justice systems.  But for now, I will be content to advocate for these three reforms and encourage others to use the comments to indicate what they consider the most urgent forms of reform in this arena.

June 7, 2020 in Collateral consequences, Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences | Permalink | Comments (3)

Wednesday, June 03, 2020

"Retributive Expungement"

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

Expungement relief was introduced in the mid-twentieth century to reward and incentivize rehabilitation for arrestees and ex-offenders and to protect their privacy.  Recently, many states have broadened their expungement remedies, and those remedies remain useful given the negative effects of public criminal records on reentry.  But recent scholarship has suggested an “uptake gap,” meaning many who are eligible never obtain relief.  Despite broadening eligibility, petitioners face substantial obstacles to filing, pre-hearing hurdles, waiting periods, and difficult standards of review without the assistance of counsel.  And even when expungement is granted, the recipients are basically left on their own to guarantee the efficacy of the remedy.  Some of these attributes of expungement were originally conceived as features, designed to ensure only the most rehabilitated received relief, allowing the state to continue to pursue public safety objectives with public criminal records.  But the cold reality of expungement procedure leaves many petitioners facing insurmountable obstacles that amplify the effects of the punishment originally imposed.

In exploring this reality, this Article illustrates that expungement procedure is stuck in a rehabilitative and privacy-centric paradigm.  While this framework inspired the creation of expungement remedies and recent reforms, it also has justified onerous procedural obstacles and the placing of the burden of persuasion on the petitioner rather than the state.  Outside of automated expungement, which is still relatively rare and restricted to only certain types of petitions, most expungement regimes in substance or through procedure invert what should be the state’s burden to justify retention of criminal records that enable extra punishment by state and private actors.  An alternative theoretical basis for expungement is necessary to convince policymakers and decision-makers of the need for broader substantive and procedural reform.

This Article suggests a different paradigm: retributive based expungement.  It proposes that incorporating retributive constraints that already underlie the criminal system can benefit petitioners.  Plenty of arrestees do not deserve stigma and ex-offenders have done their time, meaning punitive stigma from public criminal records can amount to unwarranted punishment.  A retributive-minded expungement procedure would all but guarantee expungement in the case of arrests, where the desert basis is questionable, and would place the burden of proof on the state for convictions once desert has been satisfied.  As such, this approach can supplement the case for broader eligibility, automated expungement, and favorable pre-hearing procedures that limit the uptake gap.  It also has legal and political viability given that many states already maintain retributivist constraints on sentencing and given that huge swaths of the public perceive desert as a crucial component of any criminal justice issue.  In fact, some states are already moving in this direction and can serve as a model for the rest of the country.  In short, retributivist constraints can trim procedural overgrowth to supplement substantive reforms that already recognize the disproportionate effects of a public criminal record.

June 3, 2020 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (0)

Friday, May 29, 2020

"Not Letting Felons Vote Damages Democracy for All Citizens"

The title of this post is the headline of this new Verdict commentary authored by Austin Sarat.  Here are excerpts:

On Sunday, a Florida federal district court struck down a state law requiring people with serious criminal convictions to pay court fines and fees before they can register to vote.  The court found that such a requirement would amount to a poll tax and discriminate against those who cannot afford to pay.  That decision is the latest salvo in two battles: Florida’s recent effort to restore voting rights to felons, and America’s long history of using disenfranchisement as a collateral consequence of criminal punishment.

The latter has a shameful history.  This nation’s longstanding hostility toward criminals and convicts bubbles over in an 1871 Virginia court decision that described prisoners as “slaves of the state.”  As a consequence of his crime, a prisoner has “not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him.”

In 2018 the Florida electorate voted to repudiate that history when 65% of the voters supported a proposal to amend the state constitution so that convicted felons who complete “all terms of sentence” could vote. Several months later, the heavily Republican state legislature tried to limit the impact of that amendment. It passed a bill saying that “all terms of sentence” included the discharge of financial obligations such as fines, fees and restitution.  Sunday’s court decision enjoined the application of that law....

Because of the current racial composition of America’s prisons and jails, felony disenfranchisement has had a much greater impact on the democratic participation of citizens of color than that of white citizens.  Yet, in 2002, a different federal court in Florida dismissed a lawsuit claiming that felony disenfranchisement was racially discriminatory....

Florida’s long history of felony disenfranchisement is hardly unique.  The practice of removing voting rights from people convicted of crimes can be traced back to the colonial practice of treating criminals as civilly dead.  And soon after the American Revolution, felony disenfranchisement was written into the law of many of the newly formed states.

Debates about slavery and the aftermath of the Civil War gave added impetus to this practice.  States passed laws in the late 1860s to disenfranchise felons and, in so doing, test the meaning of the Fifteenth Amendment’s extension of voting rights. In the post-war South, white southern Democrats used felony disenfranchisement to deny those rights, invoking historical similarities between the legal statuses of slaves and convicts as justification.

Today, according to a report by the Sentencing Project, nearly 40% of the 6.1 million people disenfranchised by a felony conviction are black....  Currently 48 states and the District of Columbia do not allow felons to vote while they are serving time in prison.  Thirty-one states prevent people on parole or probation from casting ballots.  Four states permanently bar ex-inmates from voting and do not allow restoration of that right, while eight others disenfranchise only people who have committed particularly egregious kinds of crimes.

Sunday’s court decision striking down new barriers erected to limit the number of Florida’s previously disenfranchised population from voting is admirable, but much more needs to be done to ensure that those who commit serious crimes can exercise one of the essential rights of citizenship — the right to vote....  Moreover, if this nation wants prisoners, when they leave  confinement, to return to be productive, well-integrated members of society, it should make sure they have a stake in that society.  Voting gives them that stake.  Ending felony disenfranchisement also would help break the legacy of slavery which continues to haunt imprisonment in the U.S.

The entire country should follow the examples of Maine and Vermont, the only two states that allow people to vote from behind bars and after they are released.  They have done so for more than two hundred years. Canada, Denmark, Spain, and 13 other democracies also permit felons to exercise the franchise even when they are serving time.  They recognize that voting is a right of adult citizens, not a privilege accorded only to some.  Last year legislators in Massachusetts, Hawaii, New Mexico, and Virginia introduced bills to allow all prisoners to vote, a position endorsed by Senator Bernie Sanders during his presidential campaign.

Dissenting in the Richardson case, Justice Thurgood Marshall wisely noted that there is no reason to believe that “felons have any less interest in the democratic process than any other citizen. Like everyone else, their daily lives are deeply affected and changed by the decisions of government.”  And, Justice Marshall was right to remind all of us that the right to vote “is the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

May 29, 2020 in Collateral consequences, Race, Class, and Gender, Who Sentences | Permalink | Comments (2)

Sunday, May 24, 2020

Federal judge strikes down Florida's "unconstitutional pay-to-vote system" for former offenders

This Politico article reports on a big new ruling from Florida under the headline "Federal judge strikes down restrictions on Florida felon voting." Here are the basics:

A federal judge on Sunday dismantled Florida’s restrictive felon voting rights law in a ruling that could open the door to hundreds of thousands of new voters being added to rolls just ahead of the 2020 presidential election.  U.S. District Judge Robert Hinkle declared key portions of the state’s felon voting law unconstitutional, ordering the state to put in place a new process that would help people register to vote in the state.

Throughout his 125-page ruling, Hinkle chided the state for a “pay-to-vote” system that he said was Byzantine because, in some instances, former felons could not even figure how much money they owed.  “This pay-to-vote system would be universally decried as unconstitutional but for one thing: each citizen at issue was convicted, at some point in the past, of a felony offense,” the judge wrote.  “A state may disenfranchise felons and impose conditions on their reenfranchisement. But the conditions must pass constitutional scrutiny. Whatever might be said of a rationally constructed system, this one falls short in substantial respects,” he said.

Hinkle’s ruling could lead to a major addition to the state’s voting rolls just months before the election in the battleground state. President Donald Trump, who narrowly won the state four years ago, has made winning Florida a key part of his reelection strategy.  One study done by Daniel Smith, a University of Florida political professor, found that nearly 775,000 people with felony convictions have some sort of outstanding legal financial obligation.

The decision comes nearly a year after the Republican-controlled Florida Legislature passed the law that requires people with felony convictions to pay all outstanding court debts in order be eligible to vote.  Legislators passed the bill after voters approved Amendment 4 to the state constitution, which aimed to end the state’s lifetime ban on voting for most ex-felons.

Hinkle’s ruling did not completely strike down the law, but the judge asserted that requiring people with felony convictions to pay off costs and fees violated the U.S. Constitution’s ban on poll taxes.

The full 125-page ruling is available at this link, and here is how it gets started:

The State of Florida has adopted a system under which nearly a million otherwise-eligible citizens will be allowed to vote only if they pay an amount of money.  Most of the citizens lack the financial resources to make the required payment.  Many do not know, and some will not be able to find out, how much they must pay.  For most, the required payment will consist only of charges the State imposed to fund government operations — taxes in substance though not in name.

The State is on pace to complete its initial screening of the citizens by 2026, or perhaps later, and only then will have an initial opinion about which citizens must pay, and how much they must pay, to be allowed to vote.  In the meantime, year after year, federal and state elections will pass.  The uncertainty will cause some citizens who are eligible to vote, even on the State’s own view of the law, not to vote, lest they risk criminal prosecution.

This pay-to-vote system would be universally decried as unconstitutional but for one thing: each citizen at issue was convicted, at some point in the past, of a felony offense.  A state may disenfranchise felons and impose conditions on their reenfranchisement. But the conditions must pass constitutional scrutiny. Whatever might be said of a rationally constructed system, this one falls short in substantial respects.

The United States Court of Appeals for the Eleventh Circuit has already ruled, in affirming a preliminary injunction in this very case, that the State cannot condition voting on payment of an amount a person is genuinely unable to pay.  See Jones v. Governor of Fla., 950 F.3d 795 (11th Cir. 2020).  Now, after a full trial on the merits, the plaintiffs’ evidence has grown stronger.  This order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs.  This order puts in place administrative procedures that comport with the Constitution and are less burdensome, on both the State and the citizens, than those the State is currently using to administer the unconstitutional pay-to-vote system.

May 24, 2020 in Collateral consequences | Permalink | Comments (1)

Saturday, May 23, 2020

"Boxed Into a Corner: The Fight to Ban Employers from Boxing out Deserving Job Applicants on the Basis of Criminal Record"

The title of this post is the title of this new paper recently posted to SSRN and authored by Mariah L. Daly, a recent graduate The Ohio State University Moritz College of Law.  This paper is part of a student paper series supported by the Drug Enforcement and Policy Center.  Most of the papers in this series have come from the marijuana seminar I teach, and I blog about these papers in posts like this over at my Marijuana Law, Policy & Reform blog.  But this paper emerged from my sentencing class last fall, and the topic remains so timely and important.  Here is this paper's abstract:

Between 70 and 100 million adults have a criminal record of some kind that are revealed by criminal background checks.  One of the most severe and pervasive collateral consequences is difficulty securing gainful employment.  Ban-the-Box reform is crucial as a starting point for fair chance hiring, especially in the age of rapidly developing technology and the largely unfettered ability to get information.  The availability of criminal records has functioned less as a “public safety” precaution and more like a scarlet letter branded on the chest of millions Americans.  Demanding unnecessary disclose of criminal records before a conditional job offer hinders reintegration, increases recidivism, jeopardizes public safety, sabotages the economy, affronts human dignity, and causes devastating harm to society overall.

This paper argues that Ban-the-Box laws should be expanded and made uniform across jurisdictions to help prevent against unjust discrimination based on criminal record.  The vast differences in the levels of protection provided across Ban-the-Box jurisdictions and their shortcomings are analyzed and model Ban-the-Box legislation that incorporates concepts from the most protective existing laws is proposed.

May 23, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Thursday, May 07, 2020

"Voting in Jails"

The title of this post is the title of this notable new report by Nicole Porter at The Sentencing Project. Here is the report's overview:

Felony disenfranchisement laws bar millions of Americans from voting due to their felony conviction.  Among those excluded are persons in prison, those serving felony probation or parole, and, in 11 states, some or all persons who have completed their sentence.  While these disenfranchisement laws have been closely documented for years by advocacy organizations, academics, and lawmakers, the de facto disenfranchisement of people legally eligible to vote in jails has received less attention.

In local jails the vast majority of persons are eligible to vote because they are not currently serving a sentence for a felony conviction.  Generally, persons are incarcerated in jail pretrial, sentenced to misdemeanor offenses, or are sentenced and awaiting transfer to state prison.  Of the 745,0001 individuals incarcerated in jail as of 2017 nearly two-thirds (64.7%), or 482,000, were being held pretrial because they had not been able to post bail.  Of the 263,000 who were serving a sentence, the vast majority had been convicted of a misdemeanor offense that does not result in disenfranchisement.

Despite the fact that most persons detained in jail are eligible to vote, very few actually do.  Jail administrators often lack knowledge about voting laws, and bureaucratic obstacles to establishing a voting process within institutions contribute significantly to limited voter participation. Indeed, acquiring voter registration forms or an absentee ballot while incarcerated is challenging when someone cannot use the internet or easily contact the Board of Elections in their community.  In addition, many persons in jail do not know they maintain the right to vote while incarcerated, and there are few programs to guarantee voting access.

Problems with voting in jail disproportionately impact communities of color since almost half (48%) of persons in jail nationally are African American or Latino.  Other racial groups, including Native Americans and Asians, comprise about 2% of the jail population, or 13,000 persons as of 2017.

In recent years, some jurisdictions have adopted policies and practices to ensure voting access for persons incarcerated in local jails because of initiatives developed by jail leadership and advocacy organizations.  This report examines six programs designed to expand voting access for eligible incarcerated citizens.  The success and expansion of these efforts will improve democracy.

May 7, 2020 in Campaign 2020 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Prisons and prisoners | Permalink | Comments (0)

Tuesday, April 28, 2020

"Policy Reforms Can Strengthen Community Supervision: A framework to improve probation and parole"

Figure1_650The title of this post is the title of this lengthy new report produced by The Pew Charitable Trusts Public Safety Performance Project. Here are excerpts from the report's "Overview":

Since 1980, the nation’s community supervision population has ballooned by almost 240 percent. As of 2016, 1 in 55 U.S. adults (nearly 4.5 million people) are on probation or parole, more than twice the number incarcerated in state and federal prisons and local jails. Historically, probation and parole were intended to provide a less punitive, more constructive alternative to incarceration, but a growing body of evidence suggests that a frequent emphasis on surveillance and monitoring of people under supervision rather than on promoting their success, along with the resource demands of ever-larger caseloads, has transformed community supervision into a primary driver of incarceration. This shift has produced an array of troubling consequences, not only for individuals on probation and parole but for taxpayers and communities as well.

In recent years, a growing body of evidence on what works in community supervision has revealed a set of key challenges that undermine the system’s effectiveness and merit attention from policymakers:

• Community supervision is a leading driver of incarceration....

• Excessive rules can present barriers to successful completion of supervision....

• Agencies often inappropriately supervise low-risk individuals....

• Overextended supervision officers have less time to devote to high-risk, high-need individuals....

• Many people with substance use or mental health disorders do not receive treatment.... 

To address these problems, some supervision agencies have begun to embrace evidence-based practices that have been shown to improve outcomes and reduce recidivism. These include the use of research-based assessment tools to identify an individual’s level of risk for reoffending, graduated sanctions, such as increased reporting or short-term incarceration, to respond to violations of supervision rules, and incentives to encourage rule compliance.  As a result of these and other policy changes, 37 states have experienced simultaneous reductions in crime and community supervision rates.

Although those results are encouraging, states and agencies need time to analyze their systems and enact reforms on a much larger scale to ensure that probation and parole function more effectively.  To help states meet this challenge, The Pew Charitable Trusts, in partnership with Arnold Ventures, established the Advisory Council on Community Supervision to develop a policy framework for state lawmakers, court officers, and community corrections personnel. The council featured a diverse group of representatives from probation and parole agencies, the courts, law enforcement, affected communities, the behavioral health field, and academia. Drawing on its members’ extensive experience and knowledge, the council agreed on three broad goals for the next generation of community supervision: better outcomes for people on supervision, their families, and communities; a smaller system with fewer people on supervision; and less use of incarceration as a sanction for supervision violations, particularly breaches of the rules.

With those goals in mind, the council developed a menu of policies that state decision-makers and supervision administrators can use to reshape community supervision. Arnold Ventures supported the Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota to examine the research underlying the policies and practices identified by the council, and where such an evidence base exists, it is summarized and cited in this framework. The recommendations are arranged according to seven broad objectives:

• Enact alternatives to arrest, incarceration, and supervision....

• Implement evidence-based policies centered on risks and needs....

• Adopt shorter supervision sentences and focus on goals and incentives....

• Establish effective and appropriate supervision conditions....

• Develop individualized conditions for payment of legal financial obligations....

• Reduce use of and pathways to incarceration.... 

• Support community supervision agencies.... 

April 28, 2020 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

Sunday, April 19, 2020

Advocates pushing back on SBA disqualifying people with any record from business relief

Last week in this post, I noted the effective coverage by Collateral Consequences Resource Center of the U.S. Small Business Administration disqualifying people for small business loans based on any past criminal record during the COVID-19 pandemic.   Now CCRC has this new post, "Bipartisan coalition calls on SBA to roll back record-related restrictions in COVID-19 small business loan programs," and it starts this way:

On April 17 a diverse bipartisan group of civil rights, advocacy, and business organizations, including CCRC, sent a letter to Treasury Secretary Mnuchin and SBA Administrator Carranza expressing concern over the restrictions imposed by the SBA on people with a record of arrest or conviction under two programs recently authorized by Congress in response to the COVID-19 crisis.  The letter points out that these unwarranted restrictions on loan programs intended to aid small businesses and non-profits will have a significant and detrimental impact in communities across the country, and a particularly harsh effect on minority business owners and employees who are disproportionately affected by the criminal legal system as a result of institutional discrimination.  It urges that federal relief be made equitably accessible to all who need it.

The letter, which is available here, includes an appendix detailing how the new rules and policies governing the Payroll Protection Program are more restrictive than those which normally are applied by the SBA.

Prior related post:

April 19, 2020 in Collateral consequences, Impact of the coronavirus on criminal justice, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Sunday, April 12, 2020

Great coverage of the awful work of SBA disqualifying people with any record from CARES small business loans

The Collateral Consequences Resource Center is doing its usual bang-up job covering the misguided new business problems for people who are burdened with any kind of criminal record.  The context these days, of course, is COVID-related, and here is how the CCRC explains the issue in a recent post:

In the past two weeks we have written at length about the U.S. Small Business Administration (SBA)’s “bumpy guidance on criminal history requirements” for small business financial relief during the COVID-19 pandemic (see also “Applying for an SBA loan with a criminal record“)....  Before the pandemic, the SBA didn’t automatically disqualify people for small business loans based on a past criminal record, and we can’t understand why it would suddenly decide to do so now, when small businesses across the country are struggling to stay afloat.   (Preexisting policy, described here, disqualifies a business if it has a principal who is incarcerated, is under supervision, is facing charges, or lacks “good character.”)  The new SBA policy — which automatically disqualifies even certain people who have completed a diversionary program and were never convicted — seems entirely at odds with the wave of recent state and federal law reforms aimed at encouraging reintegration.

Here is all of CCRC's recent posting on this topic:

April 12, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Monday, April 06, 2020

SCOTUS upholds, by vote of 8-1, traffic stop after run of vehicle plate shows revoked driver's license

The Supreme Court this morning handed down its opinion in Kansas v. Glover, No. 16-556 (S. Ct. Apr. 6, 2020) (available here). Justice Thomas delivered the opinion of the Court, which start this way:

This case presents the question whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license.  We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable.

The short majority opinion is sure at the end to reiterate that "the ultimate touchstone of the Fourth Amendment is reasonableness;" the Court makes sure to "emphasize the narrow scope of our holding" by stressing "the presence of additional facts might dispel reasonable suspicion." Ergo, keep litigating.

A five-page concurrence authored by Justice Kagan and joined by Justice Ginsburg makes an interest collateral consequences point. Here is an excerpt (with cites removed):

I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws.  Consider, for example, if Kansas had suspended rather than revoked Glover’s license.  Along with many other States, Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.  Indeed, several studies have found that most license suspensions do not relate to driving at all; what they most relate to is being poor. So the good reason the Court gives for thinking that someone with a revoked license will keep driving — that he has a history of disregarding driving rules — would no longer apply.

A lengthy concurrence authored by Justice Sotomayor gets started and ends this way:

In upholding routine stops of vehicles whose owners have revoked licenses, the Court ignores key foundations of our reasonable-suspicion jurisprudence and impermissibly and unnecessarily reduces the State’s burden of proof. I therefore dissent....

Vehicle stops “interfere with freedom of movement, are inconvenient, and consume time.” Prouse, 440 U. S., at 657.  Worse still, they “may create substantial anxiety” through an “unsettling show of authority.” Ibid.  Before subjecting motorists to this type of investigation, the State must possess articulable facts and officer inferences to form suspicion. The State below left unexplained key components of the reasonable-suspicion inquiry.  In an effort to uphold the conviction, the Court destroys Fourth Amendment jurisprudence that requires individualized suspicion.  I respectfully dissent.

April 6, 2020 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, March 03, 2020

"Going Back to Jail When You Haven’t Committed a Crime: Early Findings From a Multi-State Trial"

The title of this post is the title of this new report from the Institute for Justice Research and Development (IJRD) prepared by Carrie Pettus-Davis and Stephanie Kennedy. This report is part of a series of quarterly reports designed to provide real-time results of a multistate study on prisoner reentry currently being conducted in over 100 correctional facilities and 21 urban and rural counties in 7 states.  The full report itself is a reader-friendly 17 pages, and there is also this one-pager with key takeaways.  Here are excerpts from the one-pager:

Although the general public often thinks about recidivism as individuals leaving incarceration and committing new crimes, technical violations contribute to the strikingly high rates of recidivism reported for individuals released from prisons and jails across the United States....

• Research suggests that 45% of the more than 600,000 annual state prison admissions across the nation are due to probation or parole revocations.

• While probation or parole can be revoked for committing new crimes, 26% of new prison admissions are due solely to technical violations. Unpaid fines and fees also contribute to technical violations and may lead individuals back to incarceration.

• Our goal was to explore the circumstance of re-arrest among our study participants.  At this early point in the study, data are incomplete or unavailable.

• This report examines the reasons for re-arrest provided by study participants as these data were the most complete.  They describe a range of technical violations for expected events — missing check-ins with supervising officers and violating curfew — and unexpected events – being arrested, having one’s charges dropped, and returning to jail for coming into contact with law enforcement. Though not the focus of this report, other common technical violations were related to substance use, carrying guns, and reengagement in crime. We will have more complete data on these rates in the future.

• The 35 individuals highlighted in this report were re-arrested for non-drug related, non-criminal technical violations.

• We ask stakeholders to consider whether current policy and practices are meeting the stated purpose and goals of conditional release.  Are the non-criminal behaviors described in this report reason enough to send someone to jail?  Is it worth the financial costs and associated social costs?

March 3, 2020 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Saturday, February 29, 2020

"Why Shouldn't Prisoners Be Voters?"

The question in the title of this post is the headline of this New Yorker piece by Daniel Gross. The lengthy piece, which is part of the magazine's The Future of Democracy series, is worth a full read.  The subheading captures the piece's themes: "Americans take for granted that they have a right to vote. The situation of people in prison suggests otherwise."  Here is an excerpt:

Two centuries ago, only Connecticut barred citizens with criminal convictions from voting. The state’s constitution, which was ratified in 1818, declared that a man’s right to vote could be “forfeited by a conviction of bribery, forgery, perjury, duelling, fraudulent bankruptcy, theft, or other offence for which an infamous punishment is inflicted.”  In the years before the Civil War, seventeen states joined Connecticut in passing some form of felony disenfranchisement. Then, in the decade after the abolition of slavery, while the national movement for black suffrage was building momentum, ten more states, mostly in the South, quickly adopted them.  The same period saw a sharp increase, in many states, in the incarceration of African-Americans. (Although the vast majority of people in prison cannot vote, the census counts them as living where they are incarcerated, shifting political representation to the places that have prisons.)

Many state lawmakers were explicit about the racist motivations for these changes. In 1901, Alabama Democrats, who had a history of election tampering, called a convention to rewrite the state constitution. “The justification for whatever manipulation of the ballot box that has occurred in this State has been the menace of negro domination,” John B. Knox, the president of the convention, said in his opening remarks. “If we should have white supremacy, we must establish it by law—not by force or fraud.” The resulting constitution named twenty convictions, from robbery to forgery to vagrancy, that would strip men of their right to vote. The same document discriminated against black voters with poll taxes and literacy tests.

Felony-disenfranchisement laws spread across the country: by the nineteen-seventies, forty-six states had them. Massachusetts was the last state to join the group, passing a constitutional amendment in 2000 with more than sixty per cent of the vote.  (The Prison Policy Initiative observed that it was “the first time that the Massachusetts constitution has been amended to take away rights from a group of people.”)  Three years later, three researchers published a paper in the American Journal of Sociology showing that the most stringent of these laws were to be found in states with many potential voters of color.  In Tennessee, where citizens lose the franchise for life if they are convicted of crimes such as forgery, sodomy, or receiving stolen property, a fifth of African-Americans are barred from voting, according to the Sentencing Project.  (The same was true in Virginia and Alabama until recently, when the Democratic governors of those states restored the franchise to large numbers of citizens.)

Vermont and Maine, the only states that have never disenfranchised prisoners, are also the whitest states in the nation. Less than four per cent of Vermonters, and less than five per cent of Mainers, are people of color. “I do think that it’s not a coincidence that it’s only Maine and Vermont that allow inmate voting,” Emily Tredeau, a supervising attorney at the Vermont Prisoners’ Rights Office, told me.  “White voters will give pause before they disenfranchise other white people.” Joseph Jackson, a formerly incarcerated activist, added, “Mainers look at Maine folks that are incarcerated as though they are not other.”  (While the prison population in Maine is mostly white, it is significantly less white than the state as a whole: nearly twenty per cent of those incarcerated in Maine are people of color.)

February 29, 2020 in Collateral consequences, Prisons and prisoners | Permalink | Comments (2)

Monday, February 17, 2020

"Pathways to Reintegration: Criminal Record Reforms in 2019"

The title of this post is the title of this terrific new report from the Collateral Consequences Resource Center authored by Margaret Love and David Schlussel. (I noted in this post a few weeks ago the series of reviews of new laws in place in 2019 on a range of collateral-consequences-related concerns, and I believe this new report brings all of this important material together.)  Here is part of this report's introduction:  

In 2019, 43 states, the District of Columbia, and the federal government enacted an extraordinary 152 laws aimed at reducing barriers faced by people with criminal records in the workplace, at the ballot box, and in many other areas of daily life.  This prolific legislative track record, augmented by one important executive order, reflects a lively national conversation about how best to limit unwarranted record-based discrimination and to promote reintegration.

Last year, we reported what was then an unprecedented number of new record reform laws: 32 states enacted 57 new laws in 2018. In terms of the number of new laws enacted and their importance, 2019 breaks every record set in 2018.  Lawmakers across the country took major actions to restore voting and other civil rights; authorize expungement and other forms of record relief; expand diversion programs to avoid conviction; limit the use of criminal records in occupational licensing, employment, and housing; alleviate immigration consequences; and curb driver’s license penalties unrelated to driving offenses. Approaches to relief varied widely from state to state, with respect to the type of relief, the specifics of who is eligible for it, the mechanics of delivery, and its effect.

This report on 2019 criminal record reforms continues CCRC’s efforts to document an extraordinarily fruitful period of law reform in the United States, one that began around 2013 and has continued to gather steam into 2020.  The overall purpose of this law reform movement has been to advance a public policy of promoting reintegration for people with a criminal record.  In the seven-year period in which CCRC has been following the trend, every state legislature and the federal government has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in society.

This introduction highlights key developments from this past year.  A Report Card, new this year, grades the progess of the most (and least) productive state legislatures in 2019. The body of the report provides topical discussions of reform measures, and is followed by an appendix that organizes the laws enacted by jurisdiction.  A link to the text of each law is included, as well as a statutory citation where available.  More detailed information about each state’s laws is available in the CCRC Restoration of Rights Project.

February 17, 2020 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, February 12, 2020

"Laying the Groundwork: How States Can Improve Access to Continued Education for People in the Criminal Justice System"

DownloadThe title of this post is the title of this notable new report from the Council of State Governments Justice Center that was released yesterday.  This webpage provides context and overview about the report, and here are excerpts:

New data from a 50-state report ... reveals how state policies fail to support, and often restrict, incarcerated people from accessing continued education, despite research showing that such education can significantly reduce reoffending and increase employment rates.  The report, Laying the Groundwork: How States Can Improve Access to Continued Education for People in the Criminal Justice System, shows that only 10 states allow all people behind bars to access college and employment certification courses, while the rest prohibit certain segments of the incarcerated population from participating....  

Laying the Groundwork also reveals that barriers to education aren’t confined to correctional facilities, but follow people after they’re released: half of all public universities in the U.S. require applicants for admission to disclose their criminal history.  This practice has been shown to discourage potential students from even completing their applications. 

Most states can’t attribute these challenges to a lack of resources. Only three states use all of the federal funding available specifically to support postsecondary education for people in prison; the rest leave taxpayer money on the table.  And two-thirds of states restrict state-based financial aid for currently and formerly incarcerated students, adding another barrier to continued education.

Laying the Groundwork is based on data collected through original surveys of all 50 state correctional agency education directors and parole-granting agencies, as well as extensive online research on state statutes, regulations, and administrative policies, and university application processes....  

The report outlines four essential building blocks states must have in place to make postsecondary education accessible to people impacted by the criminal justice system: making use of available funding, offering a variety of programming aligned with local employer needs, eliminating restrictions on participation, and providing incentives and supports to encourage participation and completion.  Currently, no state has all four of these basic elements in place. And less than half of states meet the criteria for each one of the building blocks, demonstrating that while states may recognize the importance of continued education, they can do much more to ensure that currently and formerly incarcerated people can access it.

To help states make continued education more effective and attainable, Laying the Groundwork includes checklists of best practices that can inform efforts to improve state statute, administrative policy, and funding practices. States can use these checklists to ensure that they are doing all they can to make their communities safer by providing people in correctional facilities and who have a criminal record the opportunity to continue their education.

The report was developed by The Council of State Governments Justice Center and funded by Lumina Foundation.  Read the full report and find every state’s factsheet here.

February 12, 2020 in Collateral consequences, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Friday, February 07, 2020

Great coverage of new and notable 2019 laws at Collateral Consequences Resource Center

Regular readers are used to my regularly reminder to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a terrific on-going series of reviews of new laws in place in 2019 on a range of collateral-consequences-related concerns.  Here are the first four post in the series now available:

New 2019 laws restore voting rights in 11 states

New 2019 laws reduce workplace barriers for people with a criminal record

Record-breaking number of new expungement laws enacted in 2019

New 2019 laws on diversion and other non-conviction dispositions

UPDATE: The fine CCRC folks have now posted "the fifth and final comment on new 2019 laws restoring rights or delivering record relief":

New 2019 laws on immigration consequences and driver’s license suspension

February 7, 2020 in Collateral consequences, Criminal Sentences Alternatives, Who Sentences | Permalink | Comments (0)

Wednesday, January 29, 2020

"The Criminal Class and the Right to Be Subjected to Unreasonable Searches and Seizures"

The title of this post is the title of this new paper now available on SSRN authored by Matthew Greife and Ryan Hull. Here is its abstract:

People that are on parole have been lumped into what is called the criminal class by the courts.  Being in the criminal class has many consequences.  One such consequence is the loss of individual Fourth Amendment rights to be free from unreasonable searches and seizures.  While on parole an individual and their property can be searched with only reasonable suspicion rather than probable cause.  The justification for a lower standard is that those in the criminal class pose a greater threat to the community and are in need of greater control because of their propensity to commit crimes at higher rates than the average citizen.  However, these beliefs may be founded on misinterpretations of data and inaccurate cultural beliefs.  In this article we investigate the “social threat” presumption courts relied upon to lessen parolees Fourth Amendment protections.  Specifically, we interview parolees in Colorado to understand why they violate their parole terms and are re-incarcerated.  Generally, we find that the presumptions about parolees posing a greater threat to society than the average citizen is unsupportable and therefore unconstitutional.

January 29, 2020 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)