Wednesday, December 11, 2019

Collateral Consequences Resource Center produces "Model Law on Non-Conviction Records"

I am please to see via this posting that the Collateral Consequences Resource Center (CCRC) has now officially published an important new model law on a topic that I suspect even many criminal justice actors do not realize is a big problem.  Specifically, CCRC has now produced a "Model Law on Non-Conviction Records," and the posting helps explain the background and why this is so timely and valuable:

An advisory group drawn from across the criminal justice system has completed work on a model law that recommends automatic expungement of most arrests and charges that do not result in conviction.  Margaret Love and David Schlussel of the Collateral Consequences Resource Center served as reporters for the model law.  It is available in PDF and HTML formats.

“Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination,” says Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia, and one of the advisors of the model law project.  “Over the years, my legal aid program has seen thousands of cases where non-convictions cost people jobs.”

In proposing broad restrictions on access to and use of non-conviction records, the project aims to contribute to conversations underway in legislatures across the country about how to improve opportunities for people with a criminal record.  Already in 2019, states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction.  The group regards its model as the first step in a broader law reform initiative that will address conviction records as well.

Law enforcement officials make over 10 million arrests each year, a substantial percentage of which do not lead to charges or conviction.  Records of these arrests have become widely available as a result of digitized records systems and a new commerce in background screening and data aggregation.  These checks often turn up an “open” arrest or charges without any final disposition, which may seem to an employer or landlord more ominous than a closed case.

Very few states have taken steps to deal with the high percentage of records in repositories and court systems with no final disposition indicated.  Paul McDonnell, Deputy Counsel for New York’s Office of Court Administration and a project advisor, noted: “Criminal records that include no final disposition make it appear to the untrained eye that an individual has an open, pending case, which can have serious results for that person. New York has recently made legislative progress in addressing this problem, though more can be done.”

Current state and federal laws restricting access to and use of non-conviction records have limited application and are hard to enforce.  Eligibility criteria tend to be either unclear or restrictive, and petition-based procedures tend to be burdensome, expensive, and intimidating.  In recent years, lawmakers and reform advocates have expressed a growing interest in curbing the widespread dissemination and use of non-convictions, leading some states to simplify and broaden eligibility for relief, reduce procedural and financial barriers to access, and in a handful of states to make relief automatic.

Rep. Mike Weissman, a Colorado State Representative and model law project advisor, noted that Colorado has recently overhauled its laws on criminal records with broad bipartisan support.  “It is heartening to see similar reforms underway in other states, both red and blue, as well.  I commend the practitioners and researchers who helped formulate the model law for illustrating avenues for further progress in reducing collateral consequences.”

The model law would take this wave of criminal record reforms to a new level.  It recommends that expungement be immediate and automatic where all charges are terminated in favor of an accused.  Uncharged arrests should also be automatically expunged after a brief waiting period, as should dismissed or acquitted charges in cases where other charges result in conviction.  Cases that indicate no final disposition should also be expunged, unless there is indication that they are in fact pending.

The model law also recommends that expunged non-conviction records should not be used against a person in a range of criminal justice decisions, including by law enforcement agencies.  It would prohibit commercial providers of criminal background checks from disseminating expunged and dated non-conviction records, and civil decision-makers from considering them....

The Collateral Consequences Resource Center organized this model law project.  An early draft of the model law was discussed at an August 2019 Roundtable conference at the University of Michigan that was supported by the Charles Koch Foundation.  The model law report was supported by Arnold Ventures.

December 11, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, November 26, 2019

"Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless, Sex-Offender Registrants"

The title of this post is the title of this new Yale Law Journal Forum piece authored by Allison Frankel. Here is its abstract:

Across New York, people are incarcerated for weeks, months, and even years after their prison release dates.  These individuals are not confined for violating prison disciplinary rules or committing new crimes. New York’s Department of Corrections and Community Supervision (DOCCS) detains them, instead, because they are homeless.  DOCCS refuses to release prisoners to community supervision without an approved address.  But for prisoners required to register as “sex offenders,” finding housing means navigating a web of restrictions that are levied exclusively on people convicted of sex crimes and that dramatically constrain housing options, particularly in densely populated New York City. These restrictions amount to effective banishment for registrants with disabilities, who face added obstacles to finding medically appropriate housing and are barred even from New York City’s homeless-shelter system.

As this Essay explores, the State of New York, and particularly New York City, pushes its poor, disabled sex-offender registrants into homelessness, and then prolongs registrants’ detention because of their homeless status.  This detention regime continues unabated, despite studies showing that sex-offender recidivism rates are actually relatively low and that residency restrictions do not demonstrably prevent sex offenses.  Rather, such laws consign registrants to homelessness, joblessness, and social isolation.  It does not have to be this way. This Essay suggests litigation strategies to challenge the prolonged detention of homeless registrants on statutory and constitutional grounds.  The Essay also offers policy solutions to improve New York City registrants’ access to housing and to untether an individual’s housing status from their access to liberty.  New York simply cannot and should not continue both to restrict registrants’ housing options and to detain individuals because they are homeless.

November 26, 2019 in Collateral consequences, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (2)

Thursday, November 21, 2019

Senators Cornyn and Whitehouse introduce RE-ENTER Act to enable federal judges to issue "Certificate of Rehabilitation" to former offenders

As detailed in this press release, "U.S. Senators Sheldon Whitehouse (D-RI) and John Cornyn (R-TX) today introduced the Recognizing Education, Employment, New Skills, and Treatment to Enable Reintegration (RE-ENTER) Act, which would allow federal judges to issue a Certificate of Rehabilitation to acknowledge an eligible offender who has successfully reintegrated into society." Here is more about this interesting legislative news via the release:

These certificates can help formerly incarcerated individuals find jobs and housing and help prospective employers or landlords determine whether an applicant has been rehabilitated. "Reformed offenders who have served their time have the best chance of staying out of trouble and becoming productive members of society if they can secure a foothold in a job and find housing," said Sen. Whitehouse. "Our bill would follow the successful example set by states that vet people with criminal records to determine whether they have earned a Certificate of Rehabilitation."

“Most incarcerated individuals will be released at some point, and we need to encourage them and give them every tool necessary to be productive members of society,” said Sen. Cornyn. “The housing benefits and job opportunities that these certificates can help make available to former inmates will help us ensure that those who get out of prison will stay out of prison.”

Background:

In at least 16 states and the District of Columbia, state court judges have the power to issue certificates of rehabilitation to address the impact of state convictions. These certificates signal that a recipient has successfully reintegrated into society and no longer poses a significant risk of reoffending. Just like with the First Step Act, Congress can learn from states’ success.

Additionally, this legislation would:

  • Allow eligible offenders to petition the appropriate district court for a certificate;
  • Direct courts to consider various factors to determine whether a certificate is appropriate, including the crime of conviction, activities and education, efforts at employment and restitution, and other current conditions;
  • Permit federal prosecutors to weigh in with the district court and allows courts to appoint federal public defenders to assist the petitioner;
  • Require federal agencies and courts to consider the certificate when making housing, benefits, and eligibility determinations for other programs;
  • And express the sense of Congress that a certificate should help former inmates with licensing, housing, and employment determinations, protect employers who hire recipients of certificates, and contribute to pardon and clemency efforts.
In addition to Senators Cornyn and Whitehouse, the bill is cosponsored by Senators Mike Lee (R-UT), Patrick Leahy (D-VT), Chuck Grassley (R-IA), Dick Durbin (D-IL), Thom Tillis (R-NC), Chris Coons (D-DE), Rob Portman (R-OH), Richard Blumenthal (D-CT), Mike Crapo (R-ID), and Joni Ernst (R-IA).
The bill is endorsed by Prison Fellowship, the National District Attorneys’ Association, #Cut50, Americans for Prosperity, Law Enforcement Leaders to Reduce Crime & Incarceration, and the Justice Action Network.

Here is the full legislation and a one-pager for downloading:

November 21, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

"The Steep Costs of Criminal Justice Fees and Fines: A Fiscal Analysis of Three States and Ten Counties"

The title of this post is the title of this big new notable report published by the Brennan Center for Justice and "produced with research assistance from the Texas Public Policy Foundation and Right on Crime." Here is the first part of the 68-page report's executive summary:

The past decade has seen a troubling and well-documented increase in fees and fines imposed on defendants by criminal courts. Today, many states and localities rely on these fees and fines to fund their court systems or even basic government operations.

A wealth of evidence has already shown that this system works against the goal of rehabilitation and creates a major barrier to people reentering society after a conviction.  They are often unable to pay hundreds or thousands of dollars in accumulated court debt. When debt leads to incarceration or license suspension, it becomes even harder to find a job or housing or to pay child support. There’s also little evidence that imposing onerous fees and fines improves public safety.

Now, this first-of-its-kind analysis shows that in addition to thwarting rehabilitation and failing to improve public safety, criminal-court fees and fines also fail at efficiently raising revenue. The high costs of collection and enforcement are excluded from most assessments, meaning that actual revenues from fees and fines are far lower than what legislators expect. And because fees and fines are typically imposed without regard to a defendant’s ability to pay, jurisdictions have billions of dollars in unpaid court debt on the books that they are unlikely to ever collect. This debt hangs over the heads of defendants and grows every year.

This study examines 10 counties across Texas, Florida, and New Mexico, as well as statewide data for those three states.  The counties vary in their geographic, economic, political, and ethnic profiles, as well as in their practices for collecting and enforcing fees and fines.

November 21, 2019 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Recommended reading | Permalink | Comments (0)

Thursday, October 31, 2019

Federal court finds First Amendment violated by sheriff's plan to place signs of sex offender homes on Halloween

A helpful reader spotlighted a new notable federal court ruling dealing with one example of how some local law enforcement officials sometimes use the Halloween holiday to single out registered sex offenders.  This local newspaper story, headlined "Judge sides with sex offenders in ‘no trick-or-treating’ fight," reports on the basics:

A federal judge on Tuesday said a Georgia sheriff’s plan to post “no trick-or-treating” signs at sex offenders’ homes was unconstitutional.

The ruling comes after three registered sex offenders sued Butts County Sheriff Gary Long to stop his office from the practice, which began last year with deputies planting signs that urged Halloween revelers against stopping. Deputies put up some of the signs while others among the county’s 200 registered sex offenders were told to display one themselves or face unspecified trouble, according to the complaint.

U.S. District Court Judge Marc T. Treadwell’s order applies only to the three plaintiffs, meaning it wouldn’t stop the sheriff’s office from placing signs at other registered sex offenders’ homes. But the judge said Long’s legal authority to place the signs was “dubious at best.”

The sheriff disagreed with the ruling but said he’d abide by it. He said he had deputies put the signs up last year because a popular trick-or-treating event on the square in downtown Jackson was cancelled, leading to an increase in door-to-door visits.

“While the vast majority of us may disagree with the Judge’s ruling, I strongly encourage you to NOT take matters into your own hands this Halloween,” Long wrote on Facebook. “Unfortunately, there is no time to appeal before this Halloween.”

Treadwell said the three men who sued are “by all accounts” rehabilitated and living law-abiding lives.“Yet their Sheriff finds it necessary to post signs in front of their homes announcing to the public that their homes are dangerous for children,” the judge wrote. “The Sheriff’s decision is not based on any determination that the Plaintiffs are dangerous. Nor is the Sheriff’s sign-posting founded on Georgia law.”

The sheriff’s plan to place the signs “run afoul” of the First Amendment because it compels the men to display the message even though they disagree with it. The sheriff said he’d sought legal advice in 2018 before placing the signs and believed it was appropriate.

The full 25-page ruling is available at this link, and here is its introduction:

The Plaintiffs are sex offenders. That is because many years ago they committed offenses that fall within the State of Georgia’s definition of sex offenses.  Since then, they have served their terms of imprisonment and have, as far as the law is concerned, paid their debts to society.  But because they have been classified as sex offenders, they remain subject to Georgia’s lifelong requirement that they register with their local sheriff. But by all accounts, they are rehabilitated.  They live productive, lawabiding lives.  Two of the named Plaintiffs live with their parents; one has a six-year-old daughter living with him.  The State of Georgia, under its system for classifying sex offenders, has not determined that they pose an increased risk of again committing a sexual offense.

Yet their Sheriff finds it necessary to post signs in front of their homes announcing to the public that their homes are dangerous for children.  The Sheriff’s decision is not based on any determination that the Plaintiffs are dangerous. Nor is the Sheriff’s sign-posting founded on Georgia law.  Rather, the Sheriff’s decision is based solely on the fact that the Plaintiffs’ names remain on Georgia’s registry of sex offenders.  Further, Sheriff Long plans, as he has in the past, to ban the Plaintiffs from expressing their disagreement with the signs and the message the signs convey.

The Plaintiffs object and seek relief from this Court.  The question the Court must answer is not whether Sheriff Long’s plan is wise or moral, or whether it makes penological sense.  Rather, the question is whether Sheriff Long’s plan runs afoul of the First Amendment of the United States Constitution.  It does.

October 31, 2019 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, October 02, 2019

"Creating Model Legislative Relief For People With Past Convictions"

Download (26)The title of this post is the title of this notable recent report from the folks at the Alliance for Safety and Justice.  I highly recommend the report in full, and here is part of its executive summary:

Across the United States, popular support for criminal justice reform is at an all-time high. More and more Americans of all walks of life agree that the “tough-on-crime” era resulted in bloated, costly and ineffective corrections practices.  Today, everyday people and public officials across the political spectrum support a balanced approach to public safety — one that emphasizes crime prevention and rehabilitation to stop the cycle of crime.

As states re-examine their crime policies, it is critical to also review the lifetime impacts of criminal records in preventing full rehabilitation for millions of Americans.  Meaningful rehabilitation provides people that complete their sentences and remain crime-free redemption and full re-integration into the economy, our communities and civic society. Despite growing support for rehabilitation as a primary goal of corrections, few Americans will ever become rehabilitated because criminal records prevent inclusion.

More than 70 million Americans have a criminal record.  Long after they’ve paid their debts to society, many will find themselves caught in a labyrinth of legal prohibitions and barriers that have little to do with public safety.  These restrictions place undue burdens on millions of people and impose an invisible, life-long sentence that can make it difficult to get back to work, find housing, or support their families. These barriers can also make it harder—not easier—to stay out of the cycle of crime.

As a nation, we’ve only begun to grapple with the impacts of these barriers on our society.  These restrictions prevent, millions of people with past convictions from getting work, which in turn may lead to families in living in unstable housing or contribute to homelessness, and to millions of children growing up with parents that cannot fully contribute to their families, or our economy.

Some states have taken steps to limit the debilitating impacts of criminal records on economic productivity and family stability after a person’s time is served.  But most current law, policies and processes fall short of bringing widespread relief....

This brief offers guidelines for legislation that would begin to make rehabilitation meaningful and provide relief for people with past convictions so they can contribute to the economy and society as a whole....

The first step for policymakers interested in moving toward a more evidence-based, safety-centered legal model for removing the barriers imposed by past arrests or convictions is to ask key questions about how current laws, policies and practices are working.

October 2, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Thursday, September 26, 2019

Thoughtful commentary on the back-end realities and challenges of the criminal justice system

This week I have seen a number of important and thoughtful commentaries about important aspects of the back-end of modern criminal justice systems.  Here are two I recommend with brief excerpts:

From Joe Griffin and Arthur Rizer in the Tulsa World, "Probation and parole violations — often for technical offenses — are filling Oklahoma prisons, and it's time to do something about it":

A 2017 report drafted by the Council of State Governments shows roughly 24% of Oklahoma prison admissions were due to probation violations. That translates to roughly 3,000 people behind bars. Of those 3,000, more than half are in prison for a technical violation, such as staying out past curfew or missing a meeting. The annual cost to incarcerate these individuals is approximately $32 million.

If someone violates their terms of supervision, there should be consequences. Even more, if one poses a legitimate danger to the community, prison may be the best solution. But is sending a large number of individuals to prison who violate only the technical aspects of their supervision effective for public safety or fiscally responsible?

From J.J. Prescott and Sonja Starr in the Detroit News, "Clean-slate legislation strengthens Michigan":

For years, Michigan has offered certain offenders a chance to set aside their criminal records through expungement. But this path has been long, narrow and rocky at best, so few people have been able to take advantage of it. Now, the state Legislature is considering adopting a package of new bills to expand set-aside access. We strongly urge it to do so.

We recently conducted a major study of the effects of Michigan’s set-aside procedure. We found that while very few people with records get set-asides, those who do have great outcomes. In particular, we find that expungement is associated with large improvements in employment opportunities. Wages increase by close to 25% in just a year as people who had been unemployed became able to find stable work.

We also find nothing to suggest that granting someone a set-aside puts the public at risk, as skeptics have sometimes suggested. Those who receive set-asides are less likely to commit a new crime than the general adult population of Michigan. The rate of serious or violent re-offending is almost zero.

UPDATE: I just saw this AP article in this same vein headlined "Prosecutor aims to help people clear records of drug crimes." It starts this way:

Thousands of people in Utah’s largest county would be able to clear their records of drug crimes under a push announced Tuesday that advocates say goes further than many similar efforts around the nation.

The move by Salt Lake County District Attorney Sim Gill, which is expected to be approved by a judge, could make about 12,000 people eligible to expunge their records and remove obstacles to getting jobs, housing and education, he said. “Having a criminal record is the modern-day equivalent of being forced to wear a scarlet letter,” Gill said. “If we’re going to have any meaningful reform, we must first make sure when you have paid your debt to society these barriers are eliminated.”

The push comes amid a wave of criminal justice reforms in the U.S. A number of states and cities have moved to allow people with marijuana-related convictions to clear their records in places where the drug has been legalized.

In Utah, one of the most conservative states in the country, the GOP-dominated Legislature has passed a law allowing many misdemeanor crimes to be automatically expunged for people who stay out of trouble for a set period.

The move by Gill, a Democrat, would turn thousands of felony convictions into misdemeanors, allowing them to be automatically wiped away when the new state law goes into effect next year.

The plan goes further than many reforms elsewhere in the country because it includes a wide range of drug-related convictions, some dating back two decades, said Miriam Krinsky, executive director of the group Fair and Just Prosecution, which works with prosecutors around the country on criminal justice reform. The Utah effort is extraordinary, she said. Gill’s office sorted through drug-related convictions from 1997 through 2015, looking for people with misdemeanors and low-level drug possession felonies who had stayed out of trouble for at least five years.

September 26, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (1)

Tuesday, September 24, 2019

How many have lost their right to vote due to the war on drugs?

Today, Tuesday, September 24, 2019, marks National Voter Registration Day.  This website provides this account of this notable special day:

National Voter Registration Day is a national holiday celebrating our democracy. It was first observed in 2012 and has been growing in popularity every year since.... The holiday has been endorsed by the National Association of Secretaries of State (NASS). It is further supported by the National Association of State Election Directors (NASED), the U.S. Election Assistance Commission (EAC), and the National Association of Election Officials (The Election Center).

Every year millions of Americans find themselves unable to vote because they miss a registration deadline, don’t update their registration, or aren’t sure how to register. National Voter Registration Day wants to make sure everyone has the opportunity to vote. On Tuesday September 24, 2019 volunteers and organizations from all over the country will “hit the streets” in a single day of coordinated field, technology and media efforts. National Voter Registration Day seeks to create broad awareness of voter registration opportunities to reach tens of thousands of voters who may not register otherwise....

What It Will Accomplish

  • Registering Voters: In 2018 over 800,000 voters used National Voter Registration Day to register to vote across all 50 states.
  • Mobilizing Volunteers: Each year the holiday’s growing number of local partners engage upwards to 10,000 local volunteers.
  • Educating Voters: Millions of voters need to register and re-register every year. By utilizing new technology and leveraging partners, we’ll educate Americans in all 50 states about how to register, sign up for election reminders, check their registration online, get mail ballots, learn about early voting and more.
  • Uniting for a Common Purpose: National Voter Registration Day is a day of civic unity. It’s an opportunity to set aside differences and celebrate democracy and the rights and opportunities we all share as Americans.

Though I am ever eager to "celebrate democracy and the rights and opportunities we all share as Americans," I never want to lose sight of the unfortunate reality that not all adult Americans share in the rights and opportunities of voting because of widespread felon disenfranchisement laws.

The Sentencing Project recent published this helpful primer on felony disenfranchisement, which includes these disconcerting statistics:

As of 2016, 6.1 million Americans were prohibited from voting due to laws that disenfranchise citizens convicted of felony offenses....  An estimated 3.1 million people are disenfranchised due to state laws that restrict voting rights even after completion of sentences....

Felony disenfranchisement policies have a disproportionate impact on communities of color.  Black Americans of voting age are more than four times more likely to lose their voting rights than the rest of the adult population, with one of every 13 black adults disenfranchised nationally.  As of 2016, in four states — Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) — more than one in five black adults was disenfranchised. In total, 2.2 million black citizens are banned from voting.

Because I view any and all forms of felony disenfranchisement to be inconsistent with a robust commitment to democracy, I generally oppose any and all forms of felony disenfranchisement.  But, as the question in the title of this post indicates, I found myself recently thinking and wondering about just how many votes have been lost as a result of the modern drug war.  Though only about 20% of all incarcerated persons are imprisoned for a drug offense, I suspect that a higher proportion of those disenfranchised for a felony may be drug offenders.  Calculating an exact number of disenfranchised persons with a drug felony wold be quite hard, but it is easy to be concerned that robust American voting "rights and opportunities" are another casualty of the modern drug war.

September 24, 2019 in Collateral consequences | Permalink | Comments (3)

Saturday, September 21, 2019

Honoring the second annual "National Expungement Week"

NEW2019_Flyer_No_Citiesv1_Square1080Today begins, as detailed here, the second annual "National Expungement Week" running until September 28.  I have been excited and proud to play a small role in these important activities by helping identify law students to participate in a local record sealing clinic.  (Applicable law in Ohio allows for only a very few types of criminal convictions to be expunged, but a much larger number of convictions are subject to sealing.) 

Notably, Columbus is not shown among the more than two dozen localities listed here as having expungement week events; I suspect and sincerely hope  there may be many other places with expungement-related activities taking place this week.  This Forbes article, headlined "Second Annual National Expungement Week (N.E.W.) Helps People Clear Criminal Records," provides these additional details:

A coalition of more than three dozen organizations working at the intersection of the cannabis industry, racial equity, and reparative justice, led by Equity First Alliance and Cage-Free Repair, conceived the week to highlight the need to fully integrate those disenfranchised by the war on drugs within their respective communities.

Events to be featured throughout the week include free clinics to help remove, seal, or reclassify eligible convictions from criminal records (depending on local legislation), as well as provide expungement education workshops and complimentary services.

N.E.W. events have inspired teams of attorneys, organizers, and activists nationwide to continue to increase expungement opportunities where possible, with over 40 events scheduled to take place throughout the week.

Cities featuring participating events have nearly doubled from 16 in 2018 to 30, including major hubs such as Atlanta, Boston, Chicago, Denver, Detroit, Honolulu, Los Angeles, New York, Newark, Philadelphia, San Francisco, and Washington, DC.

And this Rolling Stone article, headlined "Seth Rogen Details How to Clear Your Criminal Record in New PSA," highlights a notable celebrity contributing to the effort.

Long-time readers should recall my old article, titled "Leveraging Marijuana Reform to Enhance Expungement Practices," which includes discussion of various legal and practical barriers that can often unduly limit the ability of individuals to break away from the collateral consequences of long-ago minor criminal convictions.  I call this article "old" because, though published less than 18 months ago, there has been dramatic improvement in the efforts of marijuana reform states to foster the erasure of past marijuana convictions.

That said, my old article still includes a new and novel proposal: the creation of new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.  Special private-actor programming in the form of "National Expungement Week" can do great things, but the undue burdens of a criminal convictions are fundamentally a public problem in need of a public institutional solution.

September 21, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Wednesday, September 04, 2019

Major coverage of the major challenges faced by those previously incarcerated

In the last day, I have seen a couple of notable articles in some major news outlets focused on the varied significant challenges facing formerly incarcerated persons as they seek to enter society.   Here they are with too-short excerpts:

From the New York Times, "Next Arena for Criminal Justice Reform: A Roof Over Their Heads":

Bipartisan efforts to overhaul the criminal justice system, backed by President Trump, have so far focused on getting people out of prisons and thinning the largest population of incarcerated people in the world.... But once released, some formerly incarcerated people struggle simply to find a place to live.  Public housing authorities and private landlords refuse to rent to them, labeling them public safety risks, sending them to the streets, to homelessness — and often back to prison, for offenses like sleeping in public spaces and panhandling....

The issue has even reached the 2020 presidential race. Senator Kamala Harris, Democratic of California and a White House hopeful, and Representative Alexandria Ocasio-Cortez, Democrat of New York, released the Fair Chance at Housing Act, which would require public housing authorities and owners to consider all mitigating circumstances when making screening determinations based on criminal activity.

Senator Elizabeth Warren, Democrat of Massachusetts, who is also running for president, has proposed criminal justice measures that would help reduce the “collateral consequences that hamper re-entry to formerly incarcerated people who have served their time — from restrictions to occupational licensing to housing to the disenfranchisement of over three million returning citizens.”

From the Washington Post, "After prison, more punishment: They did their time. But as the formerly incarcerated reenter the workforce, will their past be held against them?":

Across the country, more than 10,000 regulations restrict people with criminal records from obtaining occupational licenses, according to a database developed by the American Bar Association. The restrictions are defended as a way to protect the public.  But [Meko] Lincoln and others point out that the rules are often arbitrary and ambiguous. Licensing boards in Rhode Island can withhold licenses for crimes committed decades ago, by citing a requirement that people display “good moral character,” without taking into account individual circumstances or efforts toward rehabilitation.

Such restrictions make it challenging for the formerly incarcerated to enter or move up in fast-growing industries such as health care, human services and some mechanical trades, according to civil liberties lawyers and economists. These include the very jobs they’ve trained for in prison or in reentry programs like Lincoln’s.  And without jobs, many of those released could end up back in jail, experts say.

September 4, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Thursday, August 29, 2019

"The Gendered Burdens of Conviction and Collateral Consequences on Employment"

The title of this post is the title of this notable new paper recently posted to SSRN and authored by Joni Hersch and Erin Meyers.  Here is its abstract:

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living.  This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men.  This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record.  In addition, women have access to far fewer vocational programs while incarcerated.

Further exacerbating this burden is that women involved in the criminal justice system tend to be a more vulnerable population and are more likely to be responsible for children than their male counterparts, making legal restrictions on access to public assistance that would support employment more burdensome for women.  We propose programs and policies that may ameliorate these gendered income burdens of criminal conviction, including reforms to occupational licensing, improved access to public assistance, reforms to prison labor opportunities, improvements in labor market information sharing, and expanded employer liability protection.

August 29, 2019 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (3)

Monday, August 26, 2019

Making the case for the Fair Chance Act of 2019

John Malcolm and Brett Tolman have this notable new Daily Signal commentary under the headline "A Bill to Give Former Inmates a Second Chance." The lengthy piece is worth the full read, and here are excerpts:

Congress is currently considering the Fair Chance Act of 2019, a bill designed to increase the odds that formerly-incarcerated individuals can get jobs upon their release and prove to the world that they’ve turned a new leaf and are prepared to be law-abiding, productive citizens.  Although hardly a panacea, the bill has a lot of merit and is worthy of serious consideration by Congress....

It is, of course, incredibly important to provide people with the skills they need to become productive workers and to stay on the straight and narrow upon release from prison. But it may all be for naught if no employer will give those formerly-incarcerated individuals a job.  Gainful employment is a key factor for reducing recidivism, as numerous studies have shown.

That’s what led the president to launch his Second Chance Hiring initiative back in June. The president noted that “[t]oo often, former inmates are not considered for jobs even if they’re qualified, rehabilitated, and ready to work.”  He went on to announce the administration was “taking crucial steps to encourage business to expand second chance hiring practices.”  In similar fashion, it is this very issue that the Fair Chance Act seeks to address.

Just how bad is the problem?  Extremely bad.  In 2014, the FBI estimated that 77.7 million individuals — nearly one-third of the people living in this country — had a criminal record, with 10,000 to 12,000 names being added each day, according to the Wall Street Journal.  Even this startling statistic might understate the extent of the problem.  A 2012 study by the Bureau of Justice Statistics of state criminal records determined that over 100 million people living in the United States and its protectorates have a criminal record.

Moreover, the unemployment rate for those with a criminal record is particularly high.  In 2008 (the last year for which such data is available), the unemployment rate for formerly incarcerated individuals was 27.3% — over five times the unemployment rate for the general population.

No doubt, others with arrest records or who were convicted of crimes but never incarcerated struggle to find jobs, too. A 2009 study by Princeton and Harvard researchers indicated that those who check the box on a job application indicating they have a criminal record are 50% less likely to receive a callback than those who do not check the box.

That’s where the Fair Chance Act comes in.  With certain exceptions, the bill would require the federal government and federal contractors to “ban the box” as part of their hiring practices.  This would prevent a prospective employer from conducting a criminal background check or otherwise inquiring about an applicant’s criminal record until such time as a conditional job offer is extended.  Once an offer is made, the employer can then conduct the criminal background check as needed....

The purpose of “ban the box” policies is not to prevent an employer from making the ultimate decision about whether to hire somebody with a criminal record.  The point of such policies is to give someone with a criminal record the opportunity to get a foot in the door and impress a would-be employer with his or her job-related skills during the interview process.  Presumably, if the employer is impressed enough to extend a conditional job offer, the employer will be more likely to engage in a productive conversation with the applicant and ultimately hire him upon learning that he has a criminal history.

Too often, the applications of those who check the criminal record box are immediately discarded, despite the fact that many such applicants may genuinely be contrite about what they have done and be prepared to work exceptionally hard to prove to their employers and to the rest of the world that they deserve another chance.

Many states and localities have already adopted “ban the box” hiring procedures, as have some of the nation’s largest employers, such as Home Depot, Walmart, Starbucks, Target, and Koch Industries.

There are some potential concerns with the bill, however.  While banning the box may be a good idea from a moral perspective and even a business strategy, we generally disfavor imposing new requirements on private employers.  Admittedly, the bill would apply only to employers who seek to become government contractors. And again, there’s nothing in the bill that would prevent would-be employers, including those seeking to become government contractors, from ultimately obtaining the criminal history of applicants and deciding whether to go forward and hire an individual with a criminal record.

The Fair Chance Act is by no means a cure-all.  For instance, out of the nearly 45,000 collateral consequences identified by the Council of State Governments that are frequently imposed on individuals who have been convicted of a crime, a substantial majority of them are employment related.  These collateral consequences can pose a significant impediment to formerly incarcerated individuals — as if they didn’t have enough impediments already—when it comes to obtaining gainful employment.

Moreover, a multitude of other occupational licensing laws explicitly or implicitly exclude formerly incarcerated individuals from obtaining licenses to enter certain professions because they are deemed to lack “good moral character.”  The Fair Chance Act would do nothing to ameliorate this problem.... Nonetheless, there are many positives to consider in the Fair Chance Act, and it is good to see Congress looking for ways to address this serious problem.

The bottom line is that people cannot be permanently marginalized and made to feel like second-class citizens.  Released offenders have a difficult enough time as it is.  If people are pushed into the corner and denied opportunities for gainful employment for too long, they will have little choice but to recidivate, which means wasted lives, ruined families, and more crime.  That is not in anybody’s best interests.

August 26, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1)

Sunday, August 18, 2019

North Carolina Supreme Court holds mandatory lifetime GPS monitoring for some sex offenders violates Fourth Amendment

Four+ years ago as noted in this post, the US Supreme Court issued a short per curiam summary reversals in Grady v. North Carolina, No. 14-593 (S. Ct. March 30, 2015) (available here), in which the Court clarified and confirmed that the Fourth Amendment is applicable to sex offender monitoring.  That case was remanded back to the state courts, and late last week there was a major ruling by the Supreme Court of North Carolina in North Carolina v. Grady, No. 179A14-3 (N.C. Aug 16, 2019) (available here).  This split ruling establishes that persons other than Torrey Grady will benefit from the application of the Fourth Amendment in this setting.  Here is part of the start of the majority opinion (authored by Justice Earls) in this latest version of Grady:

The United States Supreme Court has determined that North Carolina’s satellite-based monitoring (SBM) of sex offenders, which involves attaching an ankle monitor “to a person’s body, without consent, for the purpose of tracking that individual’s movements,” constitutes a search within the meaning of the Fourth Amendment.  Grady v. North Carolina, 135 S. Ct. 1368, 1370 (2015) (per curiam). The Supreme Court remanded the case for an examination of “whether the State’s monitoring program is reasonable — when properly viewed as a search.” Id. at 1371....

In accordance with this decision, this case was ultimately remanded to the superior court, which entered an order determining the SBM program to be constitutional.  The Court of Appeals reversed, but only as to Mr. Grady individually.  We conclude that the Court of Appeals erroneously limited its holding to the constitutionality of the program as applied only to Mr. Grady, when our analysis of the reasonableness of the search applies equally to anyone in Mr. Grady’s circumstances.  Cf. Graham v. Florida, 560 U.S. 48, 82 (2010) (holding that state statutes mandating a sentence of life imprisonment without the possibility of parole are unconstitutional as applied to a specific group, namely juveniles who did not commit homicide).

In North Carolina, “SBM’s enrollment population consists of (1) offenders on parole or probation who are subject to State supervision, (2) unsupervised offenders who remain under SBM by court order for a designated number of months or years, and (3) unsupervised offenders subject to SBM for life, who are also known as ‘lifetime trackers.’ ” State v. Bowditch, 364 N.C. 335, 338, 700 S.E.2d 1, 3 (2010).  Mr. Grady is in the third of these categories in that he is subject to SBM for life and is unsupervised by the State through probation, parole, or post-release supervision.  Additionally, Mr. Grady is a “recidivist,” which makes lifetime SBM mandatory as to him without any individualized determination of the reasonableness of this search.  Because we conclude that the relevant portions of N.C.G.S. §§ 14-208.40A(c) and 14- 208.40B(c) are unconstitutional as applied to all individuals who, like Mr. Grady, are in the third Bowditch category and who are subject to mandatory lifetime SBM based solely on their status as a “recidivist,” we modify and affirm the opinion of the Court of Appeals.

And here is a paragraph from the start of the dissenting opinion authored by Justice Newby:

Using the remand as an opportunity to make a broad policy statement, the majority, though saying it addresses only one statutory classification, recidivist, applies an unbridled analysis which understates the crimes, overstates repeat sex offenders’ legitimate expectations of privacy, and minimizes the need to protect society from this limited class of dangerous sex offenders.  The majority’s sweeping opinion could be used to strike down every category of lifetime monitoring under the SBM statute.

August 18, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (0)

Friday, August 09, 2019

Bold effort by reform advocates to get federal Fair Chance Act enacted via defense bill

This piece from The Hill, headlined "Advocates ramp up pressure on criminal justice measure," explains how and why criminal justice reform advocates have a bold strategy to get additional federal reforms into law expeditiously.  Here are the interesting details:

A coalition of advocacy groups is ramping up pressure on lawmakers to include criminal justice legislation in a must-pass defense bill. The push comes as staffers and lawmakers are expected to informally start merging the House and Senate National Defense Authorization Acts (NDAAs) during the August recess.

The House-passed NDAA includes the Fair Chance Act, which prohibits the federal government and federal contractors from asking about a job applicant's criminal history before making a conditional offer of employment. The Senate's defense bill doesn't include the legislation.

Supporters are rolling out a new poll, obtained exclusively by The Hill ahead of its release, showing most Americans support the ideas behind the Fair Chance Act.

The poll — conducted by GOP polling firm Public Opinion Strategies on behalf of the Justice Action Network, a coalition of outside groups supporting the bill — found that 83 percent of voters say they would support a proposal that allows employers to conduct background checks "but not until after applicants have had a chance to share their skills and qualifications."...

"We've shown overwhelming public support, the administration has shown its support, and now we just need the Senate to include the amendment," said Holly Harris, the executive director of Justice Action Network. She added that she's "really hopeful that the leaders and those negotiating the bill will see both the policy value and the political value."...

The push to include the legislation in the NDAA comes as lawmakers are out of Washington until September. When they return, they'll have a packed floor schedule, including funding the government by Oct. 1 to prevent a second shutdown.

Jason Pye, the vice president of legislative affairs at FreedomWorks, noted that putting the criminal justice measure in the mammoth defense bill prevents it from having to compete with other items on the Senate's agenda. Senate Majority Leader Mitch McConnell (R-Ky.) is likely to prioritize nominations and appropriations when making decisions about the chamber's limited floor time in the fall. "The House could pass Fair Chance and send it over to the Senate and absent the White House saying 'hey McConnell, please take up this bill,' he's not going to do it," Pye said.

Neither the House nor Senate have named which senators will be on the conference committee that will ultimately sign off on the final version of the defense bill. In one potential hurdle to the Fair Chance Act, Sens. Rick Scott (R-Fla.) and Josh Hawley (R-Mo.) both asked to be recorded as "no" on the measure when it passed the Senate Homeland Security and Governmental Affairs Committee earlier this year. They are both members of the Armed Services Committee, making it possible that they end up on the NDAA conference committee.

The criminal justice bill comes after Congress passed long-stalled sentencing and prison reform legislation in late 2018. The bill had wide bipartisan support, but had stalled for years until President Trump threw his support behind it and publicly urged McConnell to give it a vote.

Rep. Doug Collins (R-Ga.), who is sponsoring the Fair Chance Act in the House along with Rep. Elijah Cummings (D-Md.), said he hopes the Fair Chance Act makes it into the NDAA. "The Fair Chance Act builds off the success of the First Step Act and goes one step further by helping rehabilitated men and women gain meaningful employment nationwide," he said. "This bill has the potential change lives and help communities everywhere by reducing recidivism and bringing hope to families from coast to coast.”

August 9, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, July 26, 2019

"Retributivist Reform of Collateral Consequences"

The title of this post is the title of this notable article authored by Brian Murray just posted to SSRN.  Here is its abstract:

This Article applies retributivist principles to discussions about collateral consequences reform.  Retributivist ideas relating to agency and responsibility, proportionality, personal and communal restoration, and the obligations and duties of the state, as well as the broader community, suggest suspicion of an expansive collateral consequences regime.  A retributivist assessment, cognizant of realities within the criminal system, reveals that many are overly punitive and disruptive of social order.

Legislatures that prioritize retribution as a justification for and constraint on punishment should think clearly about whether existing collateral consequences result in disproportionate suffering and, if so, reconsider them.  This includes the outsourcing of punishment to private actors.  Committed retributivist decision-makers within the system, such as line prosecutors, should consider how to approach the imposition of collateral consequences when acting during various phases of a prosecution.  Finally, retributivist constraints can inform whether the maintenance of criminal records by the state is justified, and for how long, as well as the scope of second-chance remedies like expungement.  These limitations could allow for robust procedural protections for petitioners for relief, shifting the burden of persuasion to the state. In short, retributive principles can be a useful tool for reform, helping to restore to ex-offenders what they deserve.

July 26, 2019 in Collateral consequences, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, July 11, 2019

"Criminal Convictions, Incarceration, and the Right to Vote in South Carolina"

The title of this post is the title of this interesting study just recently posted to SSRN and authored by multiple persons. Here is part of its abstract:

Because of questions about the rationale for felon disenfranchisement, many jurisdictions have begun to re-examine laws that restrict the voting rights of persons with criminal convictions.  In the last twenty years, in particular, a number of states have made legal and administrative changes aimed both at expanding the voting rights of ex-offenders and at assuring that ex-offenders whose voting rights have been restored are not excluded from the franchise by misinformation or unnecessary administrative hurdles.

South Carolina, however, has not revisited the issue since the current law was adopted in the early 1980’s.  That law, in turn, was hurriedly adopted to replace a Jim Crow-era statute that had been challenged on equal protection grounds. Nor has implementation of the current disenfranchisement statute been carefully examined to assure that restoration of voting rights following the period of disenfranchisement is actual and not merely theoretical.

As a class project, Professor Elizabeth Patterson’s spring 2018 Voting Rights Seminar at the University of South Carolina School of Law undertook a wide-ranging study of law, policy, and practice affecting the voting rights of South Carolinians who have been convicted of crimes, or who are otherwise incarcerated.  Based on interviews with state and local officials and other interested persons, examination of state statutes from all 50 states, and review of a wide range of published material, the class identified three issues that should be addressed in order to assure that the voting rights of persons who have been convicted of crimes or are otherwise incarcerated are limited no more than is necessary to serve legitimate policy goals.

The three issues, which are discussed more fully in the report that follows, are:

1. The scope of disenfranchisement under current law. Conclusion: The scope of disenfranchisement under current South Carolina law is broader than can be justified by legitimate policy goals, impedes successful re-entry and rehabilitation of ex-offenders, and has an unacceptable disproportionate effect on black voting rights.  The state should consider relieving probationers, parolees, and misdemeanants (other than those convicted of election offenses) of the burden of disenfranchisement.

2. Practical and administrative obstacles to ex-offenders’ participation in the electorate following restoration of voting rights. Conclusion: Substantial misunderstanding and misinformation concerning ex-offenders’ voting rights exist among both ex-offenders themselves and among local election officials.  Restoration of voting rights as provided for by South Carolina law will not be a reality without more intensive efforts to inform affected persons of their voting rights and how to exercise the, together with full implementation of the system of guidance and oversight for county boards of voter registration and elections mandated in the 2014 Election Reform Act.

3. Whether the voting rights of eligible voters who are incarcerated are adequately protected.  Conclusion: The state has a duty to assure that inmates who retain the right to vote are provided with information and assistance necessary to exercise that right.

July 11, 2019 in Collateral consequences | Permalink | Comments (0)

Wednesday, July 10, 2019

Of note of late from the Collateral Consequences Resource Center

Regular readers know I regularly urge folks to regularly check out the work and commentary over at the Collateral Consequences Resource Center, and the last few weeks have brought a number of notable posts that seemed valuable to flag here:

July 10, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Tuesday, July 02, 2019

"The Gendered Burdens of Conviction and Collateral Consequences on Employment"

The title of this post is the title of this notable paper recently posted to SSRN and authored by Joni Hersch and Erin Meyers.  Here is its abstract:

Ex-offenders are subject to a wide range of employment restrictions that limit the ability of individuals with a criminal background to earn a living.  This Article argues that women involved in the criminal justice system likely suffer a greater income-related burden from criminal conviction than do men.  This disproportionate burden arises in occupations that women typically pursue, both through formal pathways, such as restrictions on occupational licensing, and through informal pathways, such as employers’ unwillingness to hire those with a criminal record.

In addition, women have access to far fewer vocational programs while incarcerated.  Further exacerbating this burden is that women involved in the criminal justice system tend to be a more vulnerable population and are more likely to be responsible for children than their male counterparts, making legal restrictions on access to public assistance that would support employment more burdensome for women.  We propose programs and policies that may ameliorate these gendered income burdens of criminal conviction, including reforms to occupational licensing, improved access to public assistance, reforms to prison labor opportunities, improvements in labor market information sharing, and expanded employer liability protection.

July 2, 2019 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (0)

Sunday, June 16, 2019

Alaska Supreme Court finds due process flaw in state's sex offender registry scheme

Last Friday, the Alaska Supreme Court in Doe v. Alaska Department of Public Safety, No. 7375  (Alaska June 14, 2019) (available here) decided that part of its state’s Sexual Offender Registration Act violates due process.  Here is how the majority opinion starts and concludes:

&This appeal presentstwo questions concerning theAlaska SexualOffender Registration Act (ASORA). The first is whether ASORA’s registration requirements may be imposed on sex offenders who have moved to the state of Alaska after committing sex offenses elsewhere. The second iswhetherASORAviolates due process by requiring all sex offenders to register without providing a procedure for them to establish that they do not represent a threat to the public. We conclude that ASORA’s registration requirements can constitutionally be applied to out-of-state offenders. We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness....

The superior court correctly concluded that Doe must register under ASORA. ASORA has effects that are both punitive and regulatory in nature. The former prevent retroactive application of the act under the ex post facto clause of the Alaska Constitution,but they do not preclude imposing registration duties on out-of-state offenders who are present in the state.

The superior court also correctly recognized that registration may seriously affect Doe’s liberty interests. But the court did not strike a proper balance between Doe’s liberty interests and ASORA’s public safety purposes when it concluded that ASORA may be applied to Doe without affording him the right to a hearing to show that he does not pose a risk to the public sufficient to require continued registration. Doe’s affected liberty interests are fundamental and thus protected from infringement by state action except under a narrowly drawn statute reasonably designed to achieve a compelling state interest. If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad.

The flaw in ASORA identified in this case is that it does not provide Doe with an opportunity to be heard. This can best be cured by providing him with such an opportunity.

June 16, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3)

Thursday, June 13, 2019

US Commission on Civil Rights releases big report on "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities"

Download (29)The US Commission on Civil Rights has today released this huge new report titled "Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities."  The report runs over 150 pages and provide a comprehensive modern accounting of collateral consequences along with reform recommendations.  The introductory letter from the Commission Chair at the outset of the report provide this summary:

This report provides an overview of the relevant data and arguments for and against the imposition of collateral consequences on people with criminal records.  Each year, federal and state prisons release more than 620,000 people to return to their communities.  While these individuals have often completely exited criminal supervision (for example, through a prison sentence or probation), individuals with criminal records still face potentially thousands of collateral consequences upon reentering society.  These collateral consequences are sanctions, restrictions, or disqualifications that attach to a person because of the person’s criminal history.  For example, individuals with criminal histories can face barriers to voting, jury service, holding public office, securing employment, obtaining housing, receiving public assistance, owning a firearm, getting a driver’s license, qualifying for financial aid and college admission, qualifying for military service, and maintaining legal status as an immigrant.  The reach of each collateral consequence extends past people with criminal records to affect families and communities.

The Commission majority (six Commissioners in favor, one Commissioner in opposition) approved key findings including the following: Collateral consequences exacerbate punishment beyond the criminal conviction after an individual completes the court-imposed sentence.  Valid public safety bases support some collateral consequences, such as limitations on working with children for people convicted of particular dangerous crimes.  Many collateral consequences, however, are unrelated either to the underlying crime for which a person has been convicted or to a public safety purpose. When the collateral consequences are unrelated in this way, their imposition generally negatively affects public safety and the public good.

Evidence shows harsh collateral consequences unrelated to public safety increase recidivism by limiting or by completely barring formerly incarcerated persons’ access to personal and family support.  In addition, the general public, attorneys, and the courts often lack knowledge of what the totality of the collateral consequences are in their jurisdiction, how long they last, and whether they are discretionary or mandatory, or even if they are relevant to public safety or merely an extended punishment beyond a criminal sentence.  This absence of public and judicial awareness of collateral consequences of conviction undermines any deterrent effect that might flow from attaching such consequences, separate and apart from the punishment itself, to criminal convictions.  The processes people must undertake to restore rights, for example through applications for pardon or for judicial record sealing, are often complicated, opaque, and difficult to access.

The Commission majority voted for key recommendations, including the following: Collateral consequences should be tailored to serve public safety.  Policymakers should avoid punitive mandatory consequences that do not serve public safety, bear no rational relationship to the offense committed, and impede people convicted of crimes from safely reentering and becoming contributing members of society.  Jurisdictions that impose collateral consequences should periodically review the consequences imposed by law or regulation to evaluate whether they are necessary to protect public safety and if they are related to the underlying offenses.

The Commission majority specifically calls on Congress to limit discretion of public housing providers to prevent them from categorically barring people with criminal convictions from access to public housing; lift restrictions on access to student loans based on criminal convictions, except for convictions related to financial fraud; eliminate restrictions on TANF and SNAP benefits based on criminal convictions; and require federal courts to give comprehensive notice of federal restrictions on individuals’ rights before guilty plea entry, upon conviction, and upon release from incarceration.

June 13, 2019 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, June 07, 2019

"Invisible Stripes: The Problem of Youth Criminal Records"

The title of this post is the title of this paper recently posted to SSRN and authored by Judith McMullen. Here is its abstract:

It is common knowledge in American society that persons who have criminal records will have a more difficult path to obtaining legitimate employment.  Similarly, conventional wisdom acknowledges the unfortunate fact that young people, on average, are more prone to engage in risky, impulsive, and other ill-advised behavior that might result in brushes with law enforcement authorities.  This article addresses the difficult situation faced by people whose now disabling criminal records were attained while they were under the age of 21.  Not only do such individuals face stigma and possible discrimination from potential employers, the efforts of today’s young people to “go straight” are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.

This article examines the broad scope and troubling effects of the intersection between policies attempting to “reform” youthful offenders, and policies giving any curious citizen access to records about a person’s youthful indiscretions, no matter how minor.  The article concludes that current practices are inconsistent with what we know about the development of young people, are inconsistent with developing U.S. Supreme Court jurisdiction, and are undermining the social goal of rehabilitating youthful offenders, and suggests that we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.

June 7, 2019 in Collateral consequences, Offender Characteristics, Reentry and community supervision | Permalink | Comments (0)

Thursday, June 06, 2019

"Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity"

C1_2019_Collateral_Consequences_Report_05172019_102_with_outline_RGBThe title of this post is the title of this notable new report from the National Association of Criminal Defense Lawyers (NACDL). Here is the report's executive summary:

On August 23–25, 2018, NACDL hosted its 17th Annual State Criminal Justice Network Conference and Presidential Summit in Atlanta, Georgia.  The Conference — Shattering the Shackles of Collateral Consequences: Exploring Moral Principles and Economic Innovations to Restore Rights and Opportunity — examined the destructive effect that a vast network of penalties, debarments, and disabilities following a criminal conviction has on the millions of people who have come in contact with the criminal justice system. The Conference also explored the disparate impact that these collateral consequences have on communities of color.  At the same time, the Conference highlighted the groundbreaking work that is helping people break free from the shackles while providing a roadmap for national reform.

NACDL’s Executive Director, Norman L. Reimer, described the path to reform as following the emerging consensus that we must restore humanity to our criminal justice system. In pursuit of that goal, the Conference included more than just criminal defense lawyers; it brought together a community of prosecutors, judges, formerly incarcerated people, probation officers, social workers, and activists.  The 60th President of NACDL, Drew Findling, welcomed this diverse group of Conference participants and attendees to “an incredible congregation of people [who] all care about one thing: justice.”  These common grounds of justice and humanity formed the basis and set the tone for the entire Conference.

To facilitate the human narrative of justice through shared stories and lived experiences, every panel at the Conference included at least one person who was previously incarcerated in America.  Most panels included more than one formerly incarcerated person, and a few panels consisted entirely of formerly incarcerated people.  While there was some disagreement about the best terminology, resources, and methods to use in the fight against collateral consequences, the Conference represented an inclusive, humanistic approach to discussing the difficult topics of racism, morality, and social responsibility within the criminal justice system and the public at large.  Some of the broad recommendations for reducing the impact of collateral consequences included:

• Building up resources in communities of color

• Funding better education systems

• Protecting and asserting the right to vote

• Increasing awareness of mental health issues

• Reforming law enforcement education to foster improved community relations

• Building coalitions at the local, state, and national levels

• Rehabilitating and educating people while they are incarcerated

• Making prisons and prosecutions more transparent

• Banning the box on employment applications that asks about prior criminal records

• Providing more employment opportunities for people getting out of prison

• Sharing success stories and changing the narrative about people who have been incarcerated

This report is intended to facilitate more discussion and to inspire further action on these issues so that anyone — not just the Conference attendees and participants — can work to shatter the shackles of collateral consequences.

June 6, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Sunday, June 02, 2019

New Illinois marijuana legalization legislation gives particular attention to criminal justice concerns

As some readers know from my repeated mention of my article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I am especially interested in how marijuana reform can and should intersect with criminal justice concerns and should advance criminal justice reform efforts.  Consequently, I am especially pleased and intrigued that the new (soon to be official) Illinois marijuana legalization legislation gives particular attention to criminal justice matters.  This USA Today article, headlined "Illinois posed to legalize marijuana sales, expunge criminal records for pot crimes," provides some of the particulars:

Illinois is poised to legalize marijuana sales with sweeping legislation that would also automatically expunge the criminal records of people convicted of minor pot possession.

State lawmakers gave final approval to the bill Friday and Gov. JB Pritzker said he will sign the measure, which make Illinois the first state to legalize marijuana sales via its legislature.  Most other states that have legalized cannabis did so via a ballot initiative process.  Vermont's legislature legalized cannabis but prohibited commercial sales.

"This will have a transformational impact on our state, creating opportunity in the communities that need it most and giving so many a second chance," Pritzker said in a statement. "In the interest of equity and criminal justice reform, I look forward to signing this monumental legislation."...

Prizker's office didn't give a timeframe for when he might sign the law, which would go into effect Jan. 1, 2020.  Under the system, adults could buy and possess up to 30 grams of cannabis "flower," along with marijuana-infused foods known as edibles, and small amounts of highly concentrated extracts. Non-residents could buy half the amount.

The law also establishes a system for taxing and regulating marijuana, and consumers would pay up to 34.75% tax on their purchases, depending on potency.  Regulators would give preference points to members of minority groups seeking to get business licenses, and state-certified labs would test products for potency and contaminants, a growing concern among users.  Backers say the measure will create jobs in communities around the state, an argument made by Canadian officials when they legalized marijuana nationally last year.

Money raised by the new taxes would first be dedicated to expunging an estimated 770,000 minor cannabis-related cases, according to the bill's language.  Expungement has long been a goal of marijuana-legalization advocates, who argued the federal government's so-called War on Drugs disproportionately targeted minorities.  Other states have similar provisions, usually added after the fact, but Illinois' law is the first to contain such a sweeping expungement provision from the start.

Any tax money left over after would be used to support drug-treatment and enforcement programs, improve mental health counseling access, and bolster the state's general fund.

"Cannabis was at the heart of our nation's disastrous War on Drugs.  This is a measure that will improve people's lives on a level commensurate with the devastation wrought by prohibition," said Steve Hawkins, executive director for the pro-legalization Marijuana Policy Project, which worked with lawmakers and Pritzker to write the law.  "Illinois is on the brink of replacing a shameful, destructive policy with the most far-reaching cannabis law ever enacted."

In my 2018 article, "Leveraging Marijuana Reform to Enhance Expungement Practices," I urged states to utilize tax revenues gained from marijuana legalization to advance expungement efforts, and am so pleased to see Illinois make expungment efforts its very first funding priority.  In my article, I also urged the creation of administrative infrastructure to support this work in the form of what I call a "Commission on Justice Restoration."  I do not believe the Illinois legislation goes this far, but maybe future reforms in that state or elsewhere will. 

In the meantime, I realize I am way behind in providing here a round up of some posts from my blogging at Marijuana Law, Policy and Reform that highlight the intersections of marijuana reform and criminal justice issues.  So:

June 2, 2019 in Collateral consequences, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, May 27, 2019

Three years after Michigan sex offender law deemed punitive and unconstitutional for retroactive application, law's application and revision still uncertain

This recent local article, (imperfectly) headlined "Michigan lawmakers ordered to revise the Sex Offender Registry Act," highlights persistent challenges in the implementation of the Sixth Circuit's big 2016 ruling in Does v. Snyder finding constitutionally problematic the retroactive application of Michigan's severe sex offender laws.  Here are the details, with links from the original:

A U.S. district court judge is giving Michigan lawmakers 90 days to change the state's sex offender registry law, almost three years after it was first ruled unconstitutional by federal appeals court.   U.S. District Judge Robert H. Cleland issued an order that the law must be changed on Thursday. 

The ruling stems from an August 2016 decision by the U.S. 6th Circuit Court of Appeals in Cincinnati which found that Michigan's Sex Offender Registry Act was unconstitutional.

Under Michigan's law:

  • Offenders have been prohibited from living, working or even standing within 1,000 feet of a school.
  • They must immediately register email address or vehicles, plus report to the police as often as four times a year.
  • The rules currently apply to all offenders on the registry — even if they've gone decades without committing and crimes. 

The appeals court found the law in violation of constitutional protections against increasing penalties for a crime after its commission and adjudication.  The state appealed to the U.S. Supreme Court, which declined to hear the case — effectively upholding the 6th Circuit ruling. 

But the state has kept the law in place. It argued that the rulings only applied to the specific plaintiffs who brought them — because the appeals court decision came in civil cases instead of class-action lawsuits.  In essence, whether or not offenders needed to completely comply with the act depended on if they'd been able to successfully plead for their individual case in court.

The ACLU, the University of Michigan Clinical Law Program and the Oliver Law Group filed a class-action lawsuit last June that asked that the appeals court to apply the ruling to all Michigan registrants....  In a news release, the ACLU of Michigan said research shows sexual violence and the harm it causes are effectively reduced by prevention programs.  “The Legislature now has both the opportunity and the obligation to use evidence-based research to get this right and provide truly effective tools that enable law enforcement to carry out their work," Shelli Weisberg, ACLU Political Director said in a statement.

Sen. Peter J. Lucido (R-Shelby Township), chairman of the Judiciary and Public Safety Committee told the Free Press discussions with the state police, as well as the ACLU of Michigan have been ongoing, and he sees this as an opportunity to take another look at whether or not SORA is doing the job it was intended to do....

Attorney General Dana Nessel echoed these sentiments in a statement shared with the Free Press Friday afternoon.  “For months now many individuals have been offering input into possible revisions to Michigan’s SORA.  That valuable work is now on a timetable.  In my view, these revisions are long overdue and will bring justice to many who have suffered significant burdens imposed by the obligations and requirements of this bloated registration scheme, which is out of touch with practical ramifications, with the needs of law enforcement, and with a more reasoned understanding of recidivism," Nessel said. 

Clicking through to the federal court order reveals that the district judge has not ordered the Michigan legislature to do anything, but rather the on-going implementation litigation has been put on hold for 90 days because the "parties believe that the Michigan Legislature should be given a further opportunity to revise the statute before this Court addresses the Plaintiffs’ request for injunctive relief on the ex post facto claim, or the parties litigate the other claims."  

Some prior related posts:

May 27, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, May 21, 2019

Two notable new publications on how criminal justice contacts impact schooling and employment realities

I just recent came across two new interesting publications from the Institute for Research on Labor and Employment concerning the intersection of criminal justice realities and labor, schooling and employment realities.  Here are titles, links and overview/abstracts from the papers:

"Finding Employment After Contact with the Carceral System" by Lisa McCorkell and Sara Hinkley

High rates of unemployment among the formerly incarcerated serve to extend punishment long after time has been served.  Much of the difficulty in finding a job comes from institutional exclusion, but the search methods jobseekers employ also pose obstacles to their success.  UC Berkeley sociologist Sandra Susan Smith has found that the system-involved are less likely to search for jobs, and those who do use less effective search methods.  Policies that might improve these outcomes include creating resource guides on best practices for employment as well as expanding post-release employment programs.  Expanding expungement, Ban the Box/Fair Chance legislation, and employer hiring incentives can also help overcome institutional barriers to employment for those exiting the carceral system.

"Does Locked Up Mean Locked Out? The Effects of the Anti-Drug Act of 1986 on Black Male Students’ College Enrollment" by Tolani Britton

This paper explores one reason for the educational gaps experienced by Black men.  Using variation in state marijuana possession and distribution laws, this paper examines whether the Anti-Drug Act of 1986, which increased the disproportionate incarceration of Black males, also led to differences in college enrollment rates.  The results suggest that Black males had a 2.2% point decrease in the relative probability of college enrollment after the passage of the Anti-Drug Abuse Act of 1986.  There is some evidence that laws around crack cocaine, and not marijuana, led to this decrease in the probability of enrollment.

May 21, 2019 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (0)

Friday, May 17, 2019

"Incorporating Collateral Consequences into Criminal Procedure"

The title of this post is the title of this notable new paper now available on SSRN authored by Paul Crane. Here is its abstract:

A curious relationship currently exists between collateral consequences and criminal procedures.  It is now widely accepted that collateral consequences are an integral component of the American criminal justice system.  Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants.  Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process.  Specifically, a conviction’s collateral consequences, no matter how severe, are typically treated as irrelevant when determining whether a defendant is entitled to a particular procedural protection.

This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure.  Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines.  After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial.

May 17, 2019 in Collateral consequences, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, May 07, 2019

Latest issue of ABA Journal focuses on addressing collateral consequences

0519CVR-250pxI just received my hard copy of the latest issue of the ABA Journal, and I was pleased to discover that its cover has the phrase "Ending mass incarceration won’t succeed without giving people a second chance."  That phrase also serves as the headline for this lead article, which includes these passages:

People like Steve Price — poor, African-American, a high school dropout, raised by a single mom, forced to hustle on the street to survive — fall into a pattern.  They get arrested, go to prison and are released with little or no preparation, counseling or drug treatment.  Most have no job skills, and few employers are willing to hire them because they have a criminal record.  So they wind up going back.  Recidivism is a problem that for decades has continued to spin the revolving door of mass incarceration.

While the United States has consistently put more people in prison than any other country, it has come up short in helping rebuild their lives once they’re released.  More than 600,000 people leave the nation’s prisons every year with little more than a bus ticket and 50 bucks. Within five years, more than half of former state inmates are back inside.

While there’s been a growing bipartisan movement to end mass incarceration, such efforts still must grapple with the increasing number of “decarcerated” individuals.  The national First Step Act, a major criminal justice reform initiative signed by President Donald Trump in December, offers some hope.  It includes reforms that reduce sentences for federal drug crimes and funding for programs to reduce recidivism.  The president in April announced plans for a “Second Step Act” in his fiscal 2020 budget that will focus on re-entry and reducing unemployment for this with criminal records.  But these programs apply only to those convicted of federal crimes.  Most incarcerated people are in state prisons and county jails.  To complicate matters, state and local governments have thousands of laws, regulations and policies that create barriers that even the most determined people have trouble scaling when trying to get a second chance.

Drew Findling, president of the National Association of Criminal Defense Lawyers, has seen this firsthand in 30 years of representing criminal defendants.  “Someone can leave prison, but in many ways, they remain imprisoned.  They can’t get the job that pays a living wage.  They can’t get into an apartment.  They can’t get the loan for a home, they can’t even feel what it’s like to be a normal citizen,” Findling says.  “You realize there are all these punitive measures the government takes that, while it doesn’t keep you caged, it does, in many ways emotionally and professionally and socially, keep you caged.”

According to the National Inventory of Collateral Consequences of Conviction, there are nearly 45,000 measures that can stand in the way of a person with a criminal record seeking to lead a normal, productive life.  These restrictions cover employment, licensing, housing, education, public benefits, credit, loans, immigration status, parental rights, interstate travel and more....

Margaret Love, a Washington, D.C.-based attorney who was the first director of the NICCC, and is now executive director of the Collateral Consequences Resource Center, recalled that what she found was distressing.  “The phenomenon of collateral consequences is, in a sense, a part of the sentence,” she says.  “People get tarred with a criminal record, whether they go to prison or not, and that can be disabling for their entire life.  Until recently, there have been fewer and fewer ways for people to get out from under the cloud of a criminal record.  The fact is that even arrests come up on rap sheets, and they are frequently used to disqualify people.”

While the number of such consequences remains high, efforts to reduce them have been successful.  According to the resource center, 32 states, the District of Columbia and the U.S. Virgin Islands enacted at least 61 laws in 2018 aimed at reducing barriers to successful reintegration for those with criminal records, continuing a trend the center has tracked for the past six years.  By the end of 2018, every state passed laws to address the problem.

This issue of the ABA Journal also includes these companion stories:

May 7, 2019 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1)

Monday, May 06, 2019

Urging Prez candidates to urge bold criminal justice changes looking beyond incarceration levels

Sara Wakefield and Kristin Turney have this notable new Hill commentary headlined "In 2020, we need bold ideas for criminal justice reform too."  Here are excerpts:

As the 2020 election quickly approaches, Democratic candidates are presenting bold ideas about a wide variety of issues including climate change, inequality, national paid leave, filibuster reform, student loans, and Medicare for All. Few ideas are too ambitious for the base, even though many would require major structural changes to American institutions and civic life.

Then, there’s the issue of justice. Criminal justice reform and mass incarceration get talked about, correctly, as racial justice issues that need to be addressed, but no one has proposed radical changes to how we approach crime and punishment in America. It’s time for 2020 candidates to think as boldly about criminal justice as they are about health care and climate change.

Sen. Cory Booker’s (D-N.J.) “Next Step Act” currently comes closest to a bold proposal, taking on police officer training, the conditions of confinement, and expungement procedures. Yet, even this proposal includes the sentencing reforms and reentry assistance proposals we’re used to seeing. Our collective focus, and the focus of popular criminal justice reform laws like the FIRST STEP Act, remains on a late stage of criminal justice contact: incarceration.

Prison incarceration is, of course, a consequential event, but many more millions of people engage with our inefficient and repressive criminal justice system — through arrests, misdemeanor convictions, parole and probation, the bail industry, and the accumulation of fines and fees. People don’t have to be sentenced to prison to have life-altering interactions with the criminal justice system, and our leaders need to think about these experiences too. In 2016, for example, 70 percent of the roughly 646,000 Americans in local jails on any given day had not been convicted of anything, largely remaining in jail due to their inability to make bail or because they violated the conditions of probation and parole....

Presidential candidates should also consider how much our criminal justice system impacts lives after someone has served time. In 2016, almost 7 million people were under some form of correctional supervision, such as parole or probation. The most common reentry proposals are aimed at improving the labor market prospects of the formerly incarcerated. We applaud these efforts, but people who lack health care and a stable home may struggle to find and keep a job. Discussions of health care and housing policy that ignore the formerly incarcerated ignore a population with the most significant health care problems and housing instability in the country....

By focusing on reforming incarceration only, we are obscuring a broader landscape of pain for millions of Americans. To truly begin on a path toward criminal justice reform, we need our leaders to think in terms of new deals, guarantees, and sweeping legislation that could impact more Americans, like they do on climate and health care. The type of country we want to have depends on these decisions.

May 6, 2019 in Campaign 2020 and sentencing issues, Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Saturday, April 27, 2019

Should reform advocates urge Prez Trump to embrace new proposed federal Clean Slate Act as sound Second Step?

Cleanslatecampaign-feature-2The question in the title of this post is prompted by these two recent press stories about federal criminal justice reform:

Let's begin my pitch with excerpts from the first of these pieces:

President Trump began the month hosting a White House celebration with people freed from prison by the First Step Act. He told the April Fools' Day gathering the White House would work on a Second Step Act "right away."  Despite the day, Trump was not joking. But he was also not correct.

Sources tell the Washington Examiner that the White House is in fact not preparing a Second Step Act package to follow the landmark criminal justice reform law, which is Trump's only major bipartisan legislative achievement.  “There’s definitely not a Second Step Act,” said a source who works on White House reform efforts and helped with Trump’s April 1 speech, a draft of which did not mention new legislation.

The White House is focused instead on implementing the First Step Act in a way that denies ammunition to opponents such as Sen. Tom Cotton, R-Ark.  “One of the most important things we do in the second step is to get the first step implemented,” said Mark Holden, general counsel of Koch Industries and a prominent reform advocate.

It is unclear if Trump misspoke when he said: "Today, I am announcing that the Second Step Act will be focused on successful reentry and reduced unemployment for Americans with past criminal records. And that’s what we are starting right away."  A White House official said that Trump "wants to bring more fairness" to the legal system and "you can expect more legislation to address the second steps in the future," but that the First Step Act "will take a year to fully implement," diverting focus from additional legislation....

“There’s a lot of concern that they have to get this right. Folks like Tom Cotton are just waiting for someone to do something stupid,” said the source who has worked on White House efforts. “People are going to want to wait and see how this [First Step Act] works out.”

Because there are so many important elements to the FIRST STEP Act, I think reform advocates are well advised to be laser focused on implementation issues in the short term.  The impact of FIRST STEP is still very much under development as the reach of the new sentencing/prison reforms are being defined by the judiciary and determined by executive branch officials (especially related to the risk/needs tools and prison programming).  It is not unreasonable for legislators to want to assess the initial impact of the new sentencing and prison laws before moving on to further proposals. (This is one reason I am so eager for the US Sentencing Commission to start providing real-time updates on the FIRST STEP Act.  Lawmakers cannot assess the FIRST STEP Act without data on its implementation.)

Further, as the 2020 election season heats up with criminal justice reform already becoming a topic of considerable conversation, the politics surrounding additional sentencing and prison reforms  grow dicier.  The recent commentary by Jared Kushner states that the FIRST STEP Act "nearly died dozens of times along the way" due to the persistent challenges of navigating the tribal politics of DC.  The political tribes, between and within parties, are likely to be even harder to manage over the next 18 months with a major election looming.

And yet, given Prez Trump's important statement about the importance of "successful reentry and reduced unemployment for Americans with past criminal records," I think a new bipartisan bill concerning record clearing could and should be worth focused support.  Here are a few details about a federal Clean State Act proposal via the Politico article linked above:

An unlikely pair of House members are making a push for a “second chance” law for people convicted of certain low-level federal offenses, with hopes to repeat Congress’ unexpected victory on criminal justice reform last year.  Reps. Lisa Blunt Rochester, a Democrat from Delaware, and Guy Reschenthaler, a Republican from Pennsylvania, introduced the Clean Slate Act on Tuesday, which would automatically seal a person’s record if he or she has been convicted of possession of drugs, including heroin, as well as any nonviolent offense involving marijuana.

The intention, they say, is to eliminate barriers to employment, education and housing that are common for people convicted of crimes.  “I’ve seen so many stories of people who, because of a minor offense, it has stuck with them for the rest of their lives,” Blunt Rochester said in an interview Tuesday, calling her bill the “next logical step” after last year’s landmark package of sentencing and prison reform.  The bill has won support from what Blunt Rochester described as “strange bedfellows” — the liberal Center for American Progress and the conservative FreedomWorks....

Both lawmakers said they hope the bill can be a rare area of common ground in the coming weeks as Senate GOP leaders have flatly rejected most bills sent to them by House Democrats. Blunt Rochester said she’s spoken with House Democratic leaders and is optimistic about a floor vote.... Sen. Bob Casey (D-Pa.) plans to introduce a similar bill on the Senate side and is in talks with Republicans to become a co-sponsor.

Because the Clean Slate Act addresses criminal records after a persons has fully completed a sentence, there really is no direct overlap between its provisions and laws altered by the FIRST STEP Act and so there really is no reason to await FIRST STEP implementation before taking action on this important distinct front.  Indeed, the Clean Slate Act seeks to address reentry and employment issues mentioned by Prez Trump earlier this month and does so in a manner that could itself further enhance the long-term success of the FIRST STEP Act.

As long-time readers know, I am always pragmatically pessimistic about the work of Congress in this space.  But I think the next 18 months provides a unique window of time for moving forward with a Clean Slate Act or some other expungement reform, and I hope reform advocates will all consider jumping on this particular reform bandwagon. 

April 27, 2019 in Collateral consequences, Criminal justice in the Trump Administration, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, April 23, 2019

How could and how should a President push states to extend the franchise to all prisoners?

I have not been blogging all that much about some of the notable criminal justice positions and statements by the huge field of candidates seeking the Democratic Party's nomination to run for US President.  But this press piece about an exchange involving Senator Bernie Sanders at a town hall last night prompted the question that is the title of this post.  The headline of The Hill piece is catchy, "Sanders: Boston Marathon bomber should be able to vote from prison," and here is its account of the exchange:

Sen. Bernie Sanders (I-Vt.) argued Monday that all prisoners, including domestic terrorists such as the Boston Marathon bomber, should have the right to vote while they are incarcerated.

Speaking at a CNN town hall, Sanders was asked if he believes the right to vote should extend to serious criminals, such as Boston Marathon bomber Dzhokhar Tsarnaev, who is in prison and has been sentenced to death.  “If somebody commits a serious crime, sexual assault, murder, they’re going to be punished,” Sanders said.  “They may be in jail for 10 years, 20 years, 50 years, their whole lives.  That’s what happens when you commit a serious crime."

"But I think the right to vote is inherent to our democracy," he continued.  "Yes, even for terrible people, because once you start chipping away ... you’re running down a slippery slope. ... I do believe that even if they are in jail, they’re paying their price to society, but that should not take away their inherent American right to participate in our democracy.”

Earlier this month, Sanders called for more states to join Vermont and Maine in allowing imprisoned felons to vote.... “This is what I believe. Do you believe in democracy? Do you believe that every single American 18 years of age or older who is an American citizen has the right to vote?"

"Once you start chipping away at that ... that’s what our Republican governors all over this country are doing.  They come up with all kinds of excuses why people of color, young people, poor people can’t vote.  And I will do everything I can to resist that," he added.

Regular readers likely know that I see no good reason to disenfranchise categorically any class of competent voters (and my basic thinking on this front was explained in this Big Think piece years ago headlined "Let Prisoners Vote").  But, in the context of discussions about the positions of potential candidates for President, anyone call for expanding suffrage ought to be asked about how the federal government can and should seek to push states into ensuring more people have the right to vote.  This can be done, of course, through a constitutional amendment or through various forms of federal legislation that might try to force or prod states into changing their voting eligibility rules. 

I would really like to know if Senator Sanders (or any other presidential contender) is prepared to move forward with a formal federal plan that would go beyond just "call[ing] for more states to join Vermont and Maine in allowing imprisoned felons to vote."   Because I am not a voting rights expert, I am not sure what might be the best ways, legally and politically, to make progress on this front.  But I hope the question in the title of this post might be further explored on the campaign trail over the next 18 months.

April 23, 2019 in Collateral consequences, Prisons and prisoners, Who Sentences | Permalink | Comments (5)

Friday, April 12, 2019

"There Is No Good Reason Prisoners Can’t Vote"

The title of this post is the headline of this New York Times commentary authored by Jamelle Bouie.  Here are excerpts:

Americans may see it as common sense that you lose your right to vote when you’re imprisoned, but in many democracies prisoners retain the right to vote.  When that right is revoked, it’s only for particular crimes (in Germany, it’s for “targeting” the “democratic order”), and often there is a good deal of judicial discretion.  Mandatory disenfranchisement is unusual, and permanent disenfranchisement is even rarer....

As it stands, incarcerated people retain a variety of rights, some of which touch on the political rights and responsibilities of citizenship.  Prisoners have freedom of worship. They can protest mistreatment and poor conditions.  They can exercise some free speech rights, like writing for newspapers, magazines and other publications.  To that point, there is a rich literature of work by incarcerated people tackling complex social and political issues.  Voting would be a natural extension of these activities.

An obvious objection is that criminal transgressions render prisoners unfit for participation in democratic society.  But there’s nothing about committing a crime, even a serious one, that renders someone incapable of making a considered political choice.  Losing your liberty doesn’t mean you’ve lost your capacity to reason.  Prisoners are neither more nor less rational than anyone else who is allowed to vote.

If anything, the political system needs the perspectives of prisoners, with their intimate experience of this otherwise opaque part of the state.  Their votes might force lawmakers to take a closer look at what happens in these institutions before they spiral into unaccountable violence and abuse.

There are practical benefits as well.  Racial disparities in criminal enforcement and sentencing means disenfranchisement falls heaviest on black communities.  This is not just a direct blow to prisoners’ electoral power; it also ripples outward, depressing political participation among their friends, families and acquaintances.  On the other end, suffrage in prison may help incarcerated people maintain valuable links to their communities, which might smooth the transition process once they’re released.

“Citizenship is not a right that expires upon misbehavior,” Chief Justice Earl Warren wrote for the majority in Trop v. Dulles, a 1958 case dealing with the rights of a military deserter.  And, he continued, “citizenship is not lost every time a duty of citizenship is shirked.”  Yes, prisoners have committed crimes, and yes, some of those are egregious. But depriving any citizen of the right to vote should be the grave exception, not a routine part of national life.  Universal suffrage means universal suffrage.

April 12, 2019 in Collateral consequences, Prisons and prisoners | Permalink | Comments (1)

Sunday, April 07, 2019

Are more re-enfranchised former offenders now registering as Republicans rather than as Democrats?

The question in the title of this post is prompted by this notable New York Sun piece headlined "Trump’s ‘First Step’ Toward 2020."  Here are excerpts:

Could President Trump’s bipartisan criminal justice reform — known as the First Step Act — prove to be a first step in a political revolution?  We ask because of a startling disclosure by one of the President’s shrewdest lieutenants in the campaign for First Step, Jared Kushner.  It turns out, he said, that greater numbers of ex-cons being granted suffrage in Florida are registering as Republicans.

Mr. Kushner, the President’s son-in-law, dropped that surprise almost in passing toward the end of an interview with Laura Ingraham. The interview was mainly about the First Step Act celebrated Monday at the White House. Toward the end of the interview, though, they chatted about the Democratic field. Ms. Ingraham popped one of those classic one-word questions: “Socialism?”

“I don’t think that’s where the country is,” Mr. Kushner said. “One statistic that I found very pleasing is that in Florida they passed a law where former felons can now vote. We’ve had more ex-felons register as Republicans than Democrats, and I think they see the reforms . . .”  Ms. Ingraham cut in: “Whoa, whoa, whoa. You’ve had more ex-felons register as Republicans than Democrats?”

“That’s the data that I’ve seen,” replied Mr. Kushner. “I think that will surprise a lot of people when they see the new coalition that President Trump is building for what the Republican Party has the potential to be.”

No doubt it would be a mistake to make too much of this.  It’s been but months since Florida amended its constitution to restore voting rights to felons.  It will take years for the effects to show up in voter registration and at the polls.  Yet it would be a mistake to make too little of it, as well.  Particularly because we’ve had some — not to put too fine a point on it — close races in the Sunshine State.

Florida’s constitutional amendment, after all, restored, at least de jure, suffrage to something like 1.5 million ex-cons, according to the various press accounts. The Democrats were the party pushing for putting these men and women back on the voting rolls.  That brings Florida in line with most states.  The party seems to have taken for granted that they will reap the advantage.

That could prove to be yet another underestimation of Mr. Trump.  We’re not predicting that, just marking the possibility.  The video of the event at the White House to celebrate the the First Step Act underscores the point. It is, we don’t mind saying, breathtaking and worth watching in full. It illuminates the President’s abilities as an inclusive, bipartisan leader....

It’s not our purpose to suggest that the First Step Act is without issues (it was opposed by a number of the most conservative senators). Our purpose is to mark that while the Democrats are trying to get out of first gear — they’re still focused on the Mueller report — Mr. Trump is setting up his 2020 strategy in a highly premeditated way, one that the Democrats seem determined to underestimate yet again.

I am really drawn to this New York Sun piece for a host of reasons.  First and foremost, I agree with the assertion that, as I noted here, last week's event at the White House to celebrate the the FIRST STEP Act was breathtaking and worth watching in full (via this twitter link).  In addition, though I would like to see first-hand data out of Florida on re-enfranchised registrations, the specifics may matter less than that Jared Kushner believes (and is surely telling his father) that criminal justice reform and re-enfranchisement efforts have real political potential for the Republican party. 

Many years ago, I urged in posts and in Daily Beast commentary that then-Prez-candidate Mitt Romney should embrace "Right on Crime" rhetoric about the need for criminal justice reforms in order to help the Republican party appeal more to younger voters and voter of color.  Jared Kushner clearly seems to tapping into these ideas when talking up a "new coalition that President Trump is building for what the Republican Party has the potential to be."  The event celebrating the FIRST STEP Act suggests a willingness, even an eagerness, for this White House to double down on criminal justice reform because they sense a distinct political opportunity as good politics starts to match up with better policies in this space.  This reality bodes well for future reform efforts no matter who is truly getting the bulk of the benefit from re-enfranchised voters.

Finally, politics aside, there is no good reason in my view to disenfranchise categorically any class of competent voters (and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote").  The long-standing perception that re-enfranchisement efforts would help Democrats a lot more than Republicans has contributed to political divisions over doing what is right and just, namely letting everyone have proper access to the franchise.  I hope development in Florida and elsewhere can undermine the belief that only one party benefits from re-enfranchisement efforts so that both parties can fully support the fundamental commitment to democracy that re-enfranchisement represents. 

A few prior related recent posts:

April 7, 2019 in Campaign 2020 and sentencing issues, Collateral consequences, Criminal justice in the Trump Administration, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

"Third-Class Citizenship: The Escalating Legal Consequences of Committing a 'Violent' Crime"

The title of this post is the title of this notable new article authored by Michael M. O'Hear now available via SSRN. Here is its abstract:

For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions — and sometimes even just charges — for crimes that are classified as “violent.”  These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community.  The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served.  A conviction for a violent crime can result in registration requirements, lifetime disqualification from employment in certain fields, and a loss of parental rights, among many other “collateral consequences.”  While a criminal conviction of any sort relegates a person to a kind of second-class citizenship in the United States, a conviction for a violent crime increasingly seems even more momentous — pushing the person into a veritable third-class citizenship.

This article provides the first systematic treatment of the legal consequences that result from a violence charge or conviction.  The article surveys the statutory law of all fifty states, including the diverse and sometimes surprisingly broad definitions of what counts as a violent crime.  While the article’s aims are primarily empirical, concerns are raised along the way regarding the fairness and utility of the growing length and severity of sentences imposed on “violent” offenders and of the increasingly daunting barriers to their reintegration into society.

April 7, 2019 in Collateral consequences, Offense Characteristics, Reentry and community supervision | Permalink | Comments (0)

Saturday, April 06, 2019

US District Court declares unconstitutional Illinois host-site rules that has led to indefinite detention of hundreds of sex offenders

Via the always terrific Marshall Project, I came across a notable opinion by US District Judge Virginia Kendall finding constitutionally problematic a remarkable set of rules used to restrict the release of sex offenders from prison in Illinois.  This local press report on this ruling provides these basics:

A federal judge in Chicago has found the Illinois Department of Corrections is violating the constitutional rights of prisoners convicted of certain sex crimes by making the restrictions on where they can live so stringent that inmates are often locked up long beyond their sentences.

In a ruling issued Sunday, Judge Virginia Kendall wrote that hundreds of offenders in the state’s prison system successfully complete their entire court-ordered sentences yet remain behind bars indefinitely.  Kendall found the corrections department is depriving them of fundamental rights, and if they had money and support, they’d be able to leave and begin serving out what’s called “mandatory supervised release.”

Mark Weinberg, an attorney for the plaintiffs, said the decision could mean relief for hundreds of people who have been in prison even though they’ve served their time.... Prisoners call the time they serve beyond their sentences — often many years — “dead time.”...

Will Mingus, executive director of the nonprofit Illinois Voice for Reform which advocates for more effective sex offender policies, says the state’s laws are counterproductive — they actually keep these prisoners from receiving the support that research shows will help them rehabilitate.  “The laws [the legislature is] creating are not solving the problem, they’re not creating safety, they’re creating the illusion of safety,” Mingus said. “Studies that have been done for years now you’ll see that having stable housing, having a job, having social support, those are the things that help people reintegrate into society and help reduce recidivism.”  Mingus said he understands it is difficult to have practical conversations around paroling and rehabilitating sex offenders, but he thinks the judge’s ruling is common sense.  “I think it’ll be a win for the people currently sitting in prison long past their out date because they simply cannot find a place to parole to,” Mingus said. 

Adele Nicholas, an attorney for the plaintiffs, says there are a couple of potential solutions the department of corrections could implement.  “One would be making available different forms of free housing that people who can’t afford a place to live could go to,” Nicholas said.  “Whether that’s allowing people to parole to homeless shelters, or making it so there are halfway houses people could live in, or work release.”  Currently, there are no halfway houses in Illinois that will accept someone convicted of a sex offense.

Kendall wasn’t clear on exactly what the solution will be to get the men released from prison quickly. She expects to hold a hearing April 22 to begin determining that, she wrote.

The full 61-page ruling in Murphy v. Raoul, No. 16 C 11471 (N.D. Ill. March 31, 2019), is available at this link.  Here is how it starts and ends:

The Paul Murphy is indigent and homeless.  He was convicted of possession of child pornography in 2012 and received a sentence of three years’ probation.  Five years after his release date, and nearly twice the number of years of his sentence, he remains incarcerated because the Department of Corrections cannot find an appropriate place for him live. 

Illinois, like many states, requires sentencing courts to follow a term of imprisonment with a term of mandatory supervised release.  Supervised release is a form of post-confinement monitoring intended to assist individuals in their transition from prison to liberty.  Most supervised release terms are determinate, but some — including those that apply to several sex offenses — are indeterminate, meaning they range from three years to natural life.  The clock on these terms does not start ticking until sex offenders are out of prison, but some never make it that far because they are indigent and the State demands that they first secure a qualifying host site before it will release them.  Many offenders successfully complete their entire court-ordered terms of incarceration yet remain detained indefinitely because they are unable find a residence due to indigence and lack of support.

The question presented is whether this practice violates the Constitution.  The plaintiffs are a class comprising the affected sex offenders and the defendants are the Attorney General of Illinois and the Director of the Illinois Department of Corrections.  Both parties moved for summary judgment.  The Court now grants the plaintiffs’ motion in part, denies it in part, and denies the defendants’ cross-motion in full.   At the very heart of the liberty secured by the separation of powers is freedom from indefinite imprisonment by executive decree.  The Attorney General and Director’s current application of the host site requirement results in the continued deprivation of the plaintiffs’ fundamental rights and therefore contravenes the Eighth and Fourteenth Amendments to the Constitution of the United States....

Sex offenders are criminals, plain and simple.  Yet the “one enduring lesson in the long struggle to balance individual rights against society’s need to defend itself against lawlessness,” is that it “‘is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy.  It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end.’” United States v. Montoya de Hernandez, 473 U.S. 531, 567 (1985) (quoting Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting)).

The Illinois Legislature thought it best to rehabilitate sex offenders by reintegrating them, like all other convicted felons, into the community after prison.  The Constitution thus entitles them to the same conditional liberty that all other releasees receive.  Because the defendants’ current application of the host-site requirement permits the indefinite detention of the plaintiffs, it breaches the promises enshrined in the Bill of Rights.  The Court accordingly grants the plaintiffs’ motion for summary judgment as to their equal protection (Count II) and Eighth Amendment claims (Count IV), denies it as to their substantive (Count I) and procedural (Count III) due process claims, and denies the defendants’ cross-motion in full.

Although the Court today decides liability, it reserves ruling on the proper remedy to afford the plaintiffs.  The Court sets a status hearing for 4/22/2019 at 9:00 a.m. to discuss a trial date for the procedural due process claim and the need for a remedial hearing to determine the scope of equitable relief.

April 6, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (7)

Wednesday, April 03, 2019

"Limiting Identity in Criminal Law"

The title of this post is the title of this interesting new article recently posted to SSRN and authored by Mihailis Diamantis.  Here is its abstract:

People change with time. Their personalities, values, and preferences shift incrementally as they accrue life experience, discover new sources of meaning, and form/lose memories. Accumulated psychological changes eventually reshape not just how someone relates to the world about her, but also who she is as a person.  This transience of human identity has profound implications for criminal law.  Previous legal scholarship on personal identity has assumed that only abrupt tragedy and disease can change who we are. However, psychologists now know that the ordinary processes of growth, maturation, and decline alter us all in fundamental respects.  Many young adults find it hard to identify with their adolescent past. Senior citizens often reflect similarly on their middle years.  However tightly we hold on to the people we are today, at some tomorrow we inevitably find ourselves changed.

Criminal justice has not come to grips with this aspect of the human condition.  The law — by imposing lengthy sentences, allowing enduring consequences of conviction, and punishing long bygone violations — assumes that people’s identities remain fixed from birth to death.  If people do change with time, these policies must violate the criminal law’s most basic commitment to prosecute and punish present-day people only for crimes they (and not some different past person) committed.

Drawing on contemporary psychology and philosophy of personal identity, this Article concludes that criminal law punishes too often and too severely. Lengthy prison terms risk incarcerating people past the point at which their identity changes.  Elderly inmates who have languished on death row for decades should have a new claim for release — that they are now different people, innocent of the misdeeds of yesteryear.  One-time felons should recover lost civil rights sooner.  And defendants should benefit from juvenile process well into their twenties, when personal identity first begins to stabilize.  By confronting the challenges posed by the limits of personal identity, the criminal law can become more just and humane.

April 3, 2019 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, March 19, 2019

Important new empirical work on expungement realities in Michigan

Via this great new post at the Collateral Consequences Resource Center, I see that Sonja Starr and J.J. Prescott have this great new article titled "Expungement of Criminal Convictions: An Empirical Study."  Here is the article's abstract:

Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge of legislative activity.  This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable.  We were able to obtain access to deidentified data that overcomes that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable non-recipients.

We offer three key sets of empirical findings.  First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility.  Drawing on patterns in our data as well as interviews with expungement lawyers, we point to reasons for this serious “uptake gap.”  Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population — a finding that defuses a common public-safety objection to expungement laws.  Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within two years, wages go up by 25% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.

The CCRC posting about this article highlights that the good news in the form of positive outcomes for those who get records expunged are dimmed by the bad new of low rate of expungement. The CCRC posting goes on:

Finally, and perhaps most disturbingly, few of the people who are intended beneficiaries of Michigan’s expungement law actually obtain this relief, either because they don’t apply for it or because their applications for expungement are not approved.  The authors find six reasons that account for this “uptake gap” (which is greater for people with misdemeanors than felonies):

  • lack of information about the availability of relief;
  • administrative hassle and time constraints;
  • cost (including court filing fees, lost wages, and transportation costs);
  • distrust and fear of the criminal justice system;
  • lack of access to counsel; and
  • insufficient motivation to remove conviction.

In addition, while not a part of the “uptake gap” strictly speaking, the authors note that “every advocate that we spoke to also emphasized the stringency of the eligibility requirements, which in their view exclude a great many worthy candidates.” 

March 19, 2019 in Collateral consequences, Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Sunday, March 17, 2019

Split Seventh Circuit panel tangles with Second Amendment's second-class status and felon exclusion from right to bear arms

As noted in this post from last year, Justice Thomas has lamented in a cert denial that the Second Amendment has become "constitutional orphan" seemingly relegated in some settings to second-class status.  I have long thought this second-class status is demonstrated by the willingness of lower courts to uphold lifetime, blanket prohibitions on persons with certain criminal histories from being about to possess a gun.  The Seventh Circuit had another ruling in this arena last week in Kanter v. Barr, No. 18-1478 (7th Cir.  March 15, 2019) (available here).  Here is how the majority opinion starts and concludes:

Rickey I. Kanter pleaded guilty to one count of mail fraud under 18 U.S.C. § 1341.  Due to his felony conviction, he is prohibited from possessing a firearm under both federal and Wisconsin law. At issue in this case is whether the felon dispossession statutes—18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m)—violate the Second Amendment as applied to Kanter. Even if Kanter could bring an as-applied challenge, the government has met its burden of establishing that the felon dispossession statutes are substantially related to an important government interest. We therefore affirm the district court....

In sum, the government has established that the felon dispossession statutes are substantially related to the important governmental objective of keeping firearms away those convicted of serious crimes. Because Kanter was convicted of a serious federal felony for conduct broadly understood to be criminal, his challenge to the constitutionality of § 922(g)(1) is without merit.

New Circuit Judge Amy Coney Barrett, excitingly, takes her own thoughtful look at these issues in an extended scholarly opinion. Her dissenting opinion concludes this way: 

If the Second Amendment were subject to a virtue limitation, there would be no need for the government to produce — or for the court to assess — evidence that nonviolent felons have a propensity for dangerous behavior.  But Heller forecloses the “civic right” argument on which a virtue limitation depends.  And while both Wisconsin and the United States have an unquestionably strong interest in protecting the public from gun violence, they have failed to show, by either logic or data, cf. Skoien, 614 F.3d at 642, that disarming Kanter substantially advances that interest.  On this record, holding that the ban is constitutional as applied to Kanter does not “put[] the government through its paces,” see Williams, 616 F.3d at 692, but instead treats the Second Amendment as a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010) (plurality opinion).  I therefore dissent.

March 17, 2019 in Collateral consequences, Second Amendment issues | Permalink | Comments (1)

Monday, March 11, 2019

In praise of Collateral Consequences Resource Center for new major study of non-conviction records

Regular readers know I have regularly urged folks to regularly check out the work and commentary over at the Collateral Consequences Resource Center, and today brings a new post at CCRC that seems important to highlight because it talks about filing a very important gap in our understanding of modern law, policy and practice.  Here is the start of the post:

CCRC is pleased to announce that we are undertaking a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public through background checks, and allow their widespread dissemination on the internet.  This can lead to significant discrimination against people who have not been judged guilty of any wrong-doing, and result unfairly in barriers to employment, housing, education, and many other opportunities.  While almost every U.S. jurisdiction makes some provision for limiting public access to non-conviction records through mechanisms like sealing or expungement, such relief provisions vary widely in availability and effect, and are often hard to take advantage of without a lawyer.  What’s more, arrest records may remain accessible on the internet long after official files have been made confidential or even destroyed.  While CCRC’s Restoration of Rights Project now includes state-by-state information on how non-conviction records may be sealed or expunged, our new project will examine applicable laws more closely.

The first phase of this project, which is nearing completion, will produce a detailed inventory of the laws in each U.S. jurisdiction for limiting public access to arrests and/or judicial proceedings that do not result in conviction.  Among other things, this inventory will examine eligibility criteria, procedures (including any filing fees), and scope of relief.  We will also note where state law or court rulings permit sealing of dismissed charges where one or more charges in a case do result in conviction.  In a second phase of this project, we will consult with policy experts to conduct a nationwide analysis, examining specific issues across all jurisdictions, identifying patterns and gaps in existing policies.  The goal of a third phase will be to produce model legislation.

March 11, 2019 in Collateral consequences, Data on sentencing | Permalink | Comments (0)

Tuesday, March 05, 2019

Georgia Supreme Court unanimously declares state's approach to lifetime GPS monitoring for sex offenders violates Fourth Amendment

The Supreme Court of Georgia issued a notable unanimous opinion yesterday in Park v. Georgia, No. S18A1211 (Ga. March 4, 2019) (available here), declaring unconstitutional the state's lifetime GPS monitoring requirement for certain sex offenders. The opinion for the court authored by Chief Justice Melton starts this way:

We granted an interlocutory appeal in this case to address Joseph Park’s facial challenge to the constitutionality of OCGA § 42-1-14, which requires, among other things, that a person who is classified as a sexually dangerous predator – but who is no longer in State custody or on probation or parole – wear and pay for an electronic monitoring device linked to a global positioning satellite system (“GPS monitoring device”) that allows the State to monitor that individual’s location “for the remainder of his or her natural life.” Id. at (e). For the reasons that follow, we conclude that OCGA § 42-1-14(e), on its face, authorizes a patently unreasonable search that runs afoul of the protections afforded by the Fourth Amendment to the United States Constitution, and, as a result, subsection (e) of the statute is unconstitutional to the extent that it does so.

Notably, a concurring opinion by Justice Blackwell seems interested in helping the state legislature find a work around to this ruling. His opinion starts this way:

The General Assembly has determined as a matter of public policy that requiring some sexual offenders to wear electronic monitoring devices linked to a global positioning satellite system promotes public safety, and it enacted OCGA § 42-1-14(e) to put that policy into practice. The Court today decides that subsection (e) is unconstitutional, and I concur fully in that decision, which is driven largely by our obligation to faithfully apply the principles of law set forth by the United States Supreme Court in Grady v. North Carolina, ___ U.S. ___ (135 SCt 1368, 191 LE2d 459) (2015).  I write separately, however, to emphasize that our decision today does not foreclose other means by which the General Assembly might put the same policy into practice.

Our decision rests in significant part on the fact that subsection (e) requires some sexual offenders to submit to electronic monitoring even after they have completed the service of their sentences.  But nothing in our decision today precludes the General Assembly from authorizing life sentences for the worst sexual offenders, and nothing in our decision prevents the General Assembly from requiring a sentencing court in the worst cases to require GPS monitoring as a condition of permitting a sexual offender to serve part of a life sentence on probation.

March 5, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (0)

Monday, March 04, 2019

Third Circuit panel rules sex offenders subject to registration laws in Pennsylvania are "in custody" for habeas purposes

Last week, a unanimous panel of the Third Circuit issued what seems to be a groundbreaking ruling about habeas jurisdiction. In Piasecki v. Court of Common Pleas, No. 16-4175 (3d Cir. Feb 27, 2019) (available here), the Third Circuit distinguished a variety of contrary rulings from other circuits to hold that a registered sex offender in Pennsylvania is “in custody” for purposes of having jurisdiction to bring a habeas corpus challenge. Here is how the opinion starts and ends:

We are asked to decide whether a habeas corpus petitioner who was subject only to registration requirements under Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”) when he filed his petition was “in custody pursuant to the judgment of a State Court,” as required for jurisdiction.  We hold that the registration requirements were sufficiently restrictive to constitute custody and that they were imposed pursuant to the state court judgment of sentence.  Accordingly, we will reverse the District Court and remand for further proceedings.....

The writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”  The scope of the writ has grown in accordance with its purpose — to protect individuals against the erosion of their right to be free from wrongful restraints upon their liberty.  SORNA’s registration requirements clearly constitute a restraint upon liberty, a physical restraint not shared by the public generally.  The restraint imposed on Piasecki is a direct consequence of a state court judgment of sentence, and it therefore can support habeas corpus jurisdiction.  For all of the reasons set forth above, the order of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion.

March 4, 2019 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (3)

Wednesday, February 13, 2019

Federal district judge finds Alabama sex offender license plate and internet provisions violate First Amendment

Thanks to this post by Jacob Sullum at Reason, I see some notable constitutional reasoning has brought down two extreme sex offender provisions in Alabama law.  The full title of this reason posting provides the basics: "'Sex Offenders Are Not Second-Class Citizens,' Says Judge While Nixing Alabama Rules on First Amendment Grounds: The decision rejects driver's licenses labeled "CRIMINAL SEX OFFENDER" and a broad demand for reports on internet use." Here paragraphs from the posting (with a link to the opinion):

"Sex offenders are not second-class citizens," writes U.S. District Judge W. Keith Watkins in a recent decision overturning two provisions of the Alabama Sex Offender Registration and Community Notification Act (ASORCNA) on First Amendment grounds. "The Constitution protects their liberty and dignity just as it protects everyone else's."

Those points, which should be obvious, are a sadly necessary corrective to the hysteria that has driven legislators in one state after another to enact indiscriminate, mindlessly restrictive, and covertly punitive laws aimed at sex offenders. ASORCNA, which Watkins calls "the most comprehensive and debilitating sex-offender scheme in the nation," is a prime example....

On Monday, Judge Watkins ruled that Alabama's branding of registered sex offenders' identification cards is a form of compelled speech prohibited by the First Amendment. "The branded-ID requirement compels speech," he writes, "and it is not the least restrictive means of advancing a compelling state interest."  The state conceded that its ostensible purpose of alerting police officers to a sex offender's status could be served by a much less conspicuous mark, such as a letter, that the general public would not readily recognize as a badge of shame.  "Using one letter would keep officers informed while reducing the unnecessary disclosure of information to others," Watkins notes.

Another aspect of Alabama's "debilitating sex-offender scheme" is a requirement that people in the registry report "email addresses or instant message addresses or identifiers used, including any designations or monikers used for self-identification in Internet communications or postings other than those used exclusively in connection with a lawful commercial transaction."  Registrants also have to keep the authorities apprised of "any and all Internet service providers" they use.  The information, which includes mundane activities such as logging into a Wi-Fi network outside the home or registering with a website to comment on news articles, must be reported within three business days, and local law enforcement agencies have the discretion to demand that it be done in person.

February 13, 2019 in Collateral consequences, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Saturday, February 09, 2019

Michigan Attorney General files amicus briefs in state Supreme Court supporting challenges to state's sex offender registry

As reported in this press release, "Michigan Attorney General Dana Nessel filed amicus briefs in the Michigan Supreme Court [Friday, Feb 8] in Michigan v Snyder (Case number 153696) and People v Betts (Case number 148981), arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community."  Here is more from the release:

“When originally put into place, Michigan’s Sex Offender Registration Act was narrow in scope and specifically designed to be an important law enforcement tool to protect the public from dangerous offenders,” said Nessel.  “But since its enactment, the Act has swelled without any focus on individualized assessment of risk to the community, which makes it increasingly difficult for law enforcement officers to know which offenders to focus on. It also makes it difficult for offenders to rehabilitate and reintegrate into the community because they are limited in where they can live, work or even attend their children’s school functions.”

Nessel also pointed out that public accessibility of the registry has led to shaming, ostracizing, and even bullying of registrants and their families.  Because the registry now allows the public to submit tips on the registry website, the public is essentially encouraged to act as vigilantes, opening the possibility for classmates, work colleagues and community members to be vindictive and retaliatory.

“There are certainly dangerous sexual predators and the public needs to be protected from them,” said Nessel, “but the current requirements are not the way to achieve that goal.”

Amendments to the Act in 2006 and 2011 — especially geographic exclusionary zones and in-person reporting requirements — are onerous restrictions that are not supported by evolving research and best practices related to recidivism, rehabilitation, and community safety.  The Sixth Circuit Court of Appeals recently agreed, holding that Michigan’s SORA is punishment and cannot be applied retroactively.  A number of state supreme courts have struck down their state registry laws on similar grounds.

“Simply put,” said Nessel, “the state Sex Offender Registration Act has gone far beyond its purpose and now imposes burdens that are so punitive in their effect that they negate the State’s public safety justification.”

The filed amicus briefs are linked here for Michigan v Snyder and here for People v Betts.  The full introductions in both briefs are the same, and that intro seems worth reprinting in full here:

The tide is changing.  For years, federal and state courts consistently held that sex offender registration and notification requirements were not punishments and therefore did not violate the Ex Post Facto Clause.  Their conclusions relied heavily on the U.S. Supreme Court’s analysis in Smith v Doe, 538 US 84 (2003), and its conclusion that Alaska’s Sex Offender Registration Act was nonpunitive.  But more recently, both state and federal courts have been rethinking the issue in light of the significant additional burdens that have been added to these statutes since Smith upheld a “first generation” registration statute.  State Supreme Courts in Alaska, California, Indiana, Kentucky, Maine, Maryland, Ohio, Oklahoma, and Pennsylvania have concluded that their registries constitute punishment and their retroactive application an ex post facto violation — either by distinguishing Smith or by relying on their state Ex Post Facto Clause.  In 2015 the Sixth Circuit reviewed Michigan’s Sex Offender Registry Act (SORA), determining that SORA was “something altogether different from and more troubling than Alaska’s first-generation registry law” and holding that its 2006 and 2011 amendments were punishment and that their retroactive application violated the federal Ex Post Facto Clause.  Does #1–5 v Snyder, 834 F3d 696, 703, 705 (CA 6, 2016), reh den (September 15, 2016), cert den Snyder v John Does #1–5, 138 S Ct 55 (2017).  The Sixth Circuit cautioned that Smith was not “a blank check to states to do whatever they please in this arena.” Id. at 705.

Smith’s rationale, which was premised on the limited nature of Alaska’s registration scheme, seems outdated with respect to modern registration schemes.  It surely is with respect to Michigan’s sex offender registry, which has changed greatly since its initial character as a tool to help law enforcement keep Michigan citizens safe from dangerous sexual predators and far exceeds the baseline federal requirements for such registries.  It has become a bloated statute whose recent amendments are out of touch with the practical ramifications of its geographic restrictions and in-person reporting requirements, with society’s evolving relationship with the Internet, with the needs of law enforcement, and with a more balanced and researched understanding of recidivism.

There are dangerous sexual predators, to be sure, and the public needs to be protected from them.  But the current SORA it is not the way to achieve that goal because it places people on the registry without an individualized assessment of their risk to public safety and with little differentiation between a violent rapist or reoffender and an individual who has committed a single, nonaggravated offense.  The 2006 and 2011 amendments are punishment, and their retroactive application violates both federal and state Ex Post Facto Clauses.

UPDATEOver at Simple Justice, Guy Hamilton-Smith has this potent guest post spotlighting some highlights from these briefs and why they their filing is so important.  I recommend the post in full, and here is an excerpt:

Reading the briefs, it is impossible not to be struck by their tone.  When the government is forced to concede a point in a filing, it is usually done in the smarmiest, most back-handed way possible.  There is no trace of that here.  There is, instead, a forceful eloquence and a vision of what effective public safety could look like when it comes to sexual harms. Instead of signing off on the idea of registries being a fundamentally good policy, weaved throughout these briefs is a strain of skepticism as to their utility at all.

To state it differently, these are some of the strongest briefs written assailing public registration as public safety. That they came out of an AG’s office is astonishing.

It is much too early to tell what the extended impact of this will be.  Now that an Attorney General, as opposed to a civil rights litigator (or even a judge) has called a spade a spade, one hopes that others will be willing to follow suit in the quest to earnestly, effectively, and humanely address the spectre of sexual harms in our society.

Or, more dimly, perhaps we will be unable to kick our registry habit, and simply endorse more restrictions, though on fewer people — those whom we are “certain” are dangerous and therefore “deserve” whatever ingenuous cruelties we can dream up.

February 9, 2019 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7)

Monday, February 04, 2019

Highlighting how much punishment comes with the misdemeanor process

97804650938091LawProf Alexandra Natapoff has a terrific new book titled “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” and you can read part of the book's introduction here at the publisher's website. And over the weekend the New York Post published this commentary penned by Natapoff under the headlined "How a simple misdemeanor could land you in jail for months." Here are excerpts:

Just before Christmas, Janice Dotson-Stephens died in a San Antonio jail.  The 61-year-old grandmother had been arrested for trespassing, a class B misdemeanor in Texas. She couldn’t afford the $300 bail, and a mere $30 payment to a bail bondsman would have let her out.  She stayed in jail for nearly five months, waiting for her case to be handled, before she died. Her family has sued, and an independent agency is currently investigating the cause of her death. This is how the American misdemeanor system quietly and carelessly ruins millions of lives.

Dotson-Stephens was a victim of a vast misdemeanor machinery that routinely and thoughtlessly locks up millions of people every year.  America is already infamous for mass incarceration — with 1.5 million state and federal prisoners, we put more people in prison than any other country on the planet.  But nearly 11 million people pass through over 3,000 US jails every year, according to a 2016 report by the Department of Justice. On any given day, there are approximately 700,000 people in jail.  One-quarter of them are there for misdemeanor offenses; the majority of them, like Dotson-Stephens, have not been convicted of anything and are therefore presumed innocent.

Given the minor nature of most misdemeanors, it is shocking how often they send people to jail.  Amazingly, people routinely get locked up when they are arrested for petty offenses even if they could not be sentenced to jail for the offense itself.

Albert Florence was arrested in New Jersey for failing to pay an outstanding civil fine, a transgression for which he could not have been incarcerated.  Nevertheless, he spent six days in jail where officials strip-searched him twice, inspected his genitals and subjected him to a delousing shower.  Turns out it was a mistake — Mr. Florence had paid the fine years before but the statewide database had not been updated.  Was this legal?  It was.  When the US Supreme Court heard Florence’s case in October 2011 in Florence v. Board of Chosen Freeholders of County of Burlington, it decided in April 2012 that the strip searches were constitutional.

The most common punishment for a misdemeanor conviction is probation and a fine, but jail remains routine.  In Richmond, Virginia, Robert Taylor, an indigent veteran, was sentenced to 20 days in jail for driving on a license that been suspended multiple times because he could not afford to pay traffic court fines.  In Beaufort County, South Carolina, a homeless man spent 30 days in jail and was sentenced to time served for the charge of trespassing at a McDonald’s.

Poverty isn’t a crime, but the misdemeanor machinery often treats it like one, incarcerating people solely because they cannot afford to pay a fine or fee.  In Augusta, Georgia, Tom Barrett was homeless, living off food stamps and the money he earned from selling his blood plasma.  He was caught stealing a $2 can of beer.  He couldn’t afford the $50 fee to apply for a public defender, so he represented himself, pleaded guilty and was placed on probation.  As part of that probation, he was required to pay over $400 in fines and fees every month.  When he couldn’t, he was sentenced to 12 months in jail. “I should not have taken that beer.  I was dead wrong,” says Barrett. “But to spend 12 months in jail … it didn’t seem right.”...

The misdemeanor system is enormous.  Thirteen million misdemeanor cases are filed every year — that’s 80 percent of state criminal dockets. This is how the American criminal system works most of the time for most people.  And its tendency to incarcerate affects millions of families — over 400,000 children have a parent in jail....

The misdemeanor phenomenon has been largely overlooked, overshadowed by the sheer harshness of its felony counterpart.  And some of that is fair enough.  Thirty-year drug sentences, solitary confinement and the death penalty do indeed make misdemeanor punishments seem petty.  But make no mistake, they are not lenient.  People are being stripped of their liberty and their money. If we really want to roll back mass incarceration and improve our criminal system, we need to shrink the massive misdemeanor pipeline and break its expensive and destructive habit of putting people in jail with so little justification.

February 4, 2019 in Collateral consequences, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Monday, January 28, 2019

"Are Collateral Consequences Deserved?"

The question in 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:

While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release.  Because collateral consequences involve the state infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification.  Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures.  This label avoids having to address existing constitutional and legal constraints on punishment.  This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, their roots stem from utilitarian justifications for criminal punishment, such as incapacitation.  Legislative justifications relating to creating and reforming collateral consequences and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system.  Unfortunately, these philosophical roots inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility.  The result is extra punishment run amok and in desperate need of constraints.

This Article pivots to a novel, but perhaps counterintuitive, approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved.  Retributivist constraints, emphasizing dignity and autonomy, blameworthiness, proportionality, a concern for restoration, and the obligations and duties of the authority tasked with inflicting punishment, suggest many collateral consequences are overly punitive and disruptive of social order.  Viewing collateral disabilities in this fashion aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes.  Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders.

January 28, 2019 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Sunday, January 20, 2019

DC Circuit showcases Second Amendment's second-class status by holding very old, non-violent felony eliminates right to keep arms

A few days ago at PrawfsBlawg, Gerard Magliocca touched off a debate over the reach and application of the Second Amendment via this post titled "The Bill of Rights Has First-Class and Coach Tickets."  His post riffs off a recent Third Circuit opinion upholding a New Jersey ammunition limit that prompted lengthy dissent by Judge Bibas.  And, as noted in this post from last year, Justice Thomas has lamented in a cert denial that the Second Amendment has become "constitutional orphan."  Long-time readers likely know that this discussion engages sentencing and collateral consequences in a variety of ways, and I have long noted that the Second Amendment seems to be the only (so-called) fundamental right in the Bill of Rights that can be permanently and categorically lost by a single old prior offenses.

The status of the Second Amendment as a second-class right, at least for those with any felony record, was reinforced just last Friday by the DC Circuit through an unanimous opinion in Medina v. Whitaker, No. 17-5248 (DC Cir. Jan 18, 2019) (available here). Here is how the opinion starts and a key paragraph toward the end of the panel's analysis:

Jorge Medina was convicted of falsifying his income on mortgage applications twenty-seven years ago.  Now, as a convicted felon, he is prohibited from owning firearms by federal law.  He argues that the application of this law to him violates the Second Amendment because he poses no heightened risk of gun violence.  Because we conclude that felons are not among the law-abiding, responsible citizens entitled to the protections of the Second Amendment, we reject his contention and affirm the district court’s dismissal order....

On balance, the historical evidence and the Supreme Court’s discussion of felon disarmament laws leads us to reject the argument that non-dangerous felons have a right to bear arms.  As a practical matter, this makes good sense.  Using an amorphous “dangerousness” standard to delineate the scope of the Second Amendment would require the government to make case-by-case predictive judgments before barring the possession of weapons by convicted criminals, illegal aliens, or perhaps even children.  We do not think the public, in ratifying the Second Amendment, would have understood the right to be so expansive and limitless.  At its core, the Amendment protects the right of “law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635.  Whether a certain crime removes one from the category of “law-abiding and responsible,” in some cases, may be a close question.  For example, the crime leading to the firearm prohibition in Schrader — a misdemeanor arising from a fistfight — may be open to debate.  Those who commit felonies however, cannot profit from our recognition of such borderline cases.  For these reasons, we hold that those convicted of felonies are not among those entitled to possess arms.

I do not at all dispute the notion that the Second Amendment was not intended to be limitless.  But I do like to highlight how jarring it would be if a state or the feds were to claim that any persons falsifying income on a mortgage application years ago should never again have a right to go to church or to write a book (First Amendment) or never again have a right to due process or against property takings (Fifth Amendment) or never again have a right to a trial or a to lawyer in a criminal prosecution (Sixth Amendment).  In other words, I see the Second Amendment as so obviously a second-class right because we so readily tolerate and even find "good sense" in dramatic categorical restrictions on this right that we would never contemplate with respect to other prominent rights in the Bill of Rights.

January 20, 2019 in Collateral consequences, Offender Characteristics, Second Amendment issues | Permalink | Comments (0)

Friday, January 11, 2019

"Wealth-Based Penal Disenfranchisement"

The title of this post is the title of this notable new article now on SSRN authored by Beth Colgan. Here is its abstract:

This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution — may prevent people of limited means from voting.  The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for re-enfranchisement for most or all offenses under certain conditions.  One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline.  The scope of wealth-based penal disenfranchisement is grossly underestimated, with commentators typically stating that nine states sanction such practices.  Through an in-depth examination of a tangle of statutes, administrative rules, and policies related to elections, clemency, parole, and probation, as well as responses from public disclosure requests and discussions with elections and corrections officials and other relevant actors, this Article reveals that wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia.

After describing the mechanisms for wealth-based penal disenfranchisement, this Article offers a doctrinal intervention for dismantling them.  There has been limited, and to date unsuccessful, litigation challenging these practices as violative of the Fourteenth Amendment’s equal protection and due process clauses.  Because voting eligibility is stripped of its fundamental nature for those convicted of a crime, wealth-based penal disenfranchisement has been subject to the lowest level of scrutiny, rational basis review, leading lower courts to uphold the practice.  This Article posits that these courts have approached the validity of wealth-based penal disenfranchisement through the wrong frame — the right to vote — when the proper frame is through the lens of punishment.  This Article examines a line of cases in which the Court restricted governmental action that would result in disparate treatment between rich and poor in criminal justice practices, juxtaposing the cases against the Court’s treatment of wealth-based discrimination in the Fourteenth Amendment doctrine and the constitutional relevance of indigency in the criminal justice system broadly.  Doing so supports the conclusion that the Court has departed from the traditional tiers of scrutiny.  The resulting test operates as a flat prohibition against the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense.  Because such alternatives are available, wealth-based penal disenfranchisement would violate the Fourteenth Amendment under this approach.

January 11, 2019 in Collateral consequences, Fines, Restitution and Other Economic Sanctions, Race, Class, and Gender | Permalink | Comments (1)

Thursday, January 10, 2019

"Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018"

Cover-Fair-Chance-Reform-2018The title of this post is the title of this notable new report from the Collateral Consequences Resource Center to document the laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record. Here is the report's executive summary:

* In 2018, 30 states and the District of Columbia produced 56 separate laws aimed at reducing barriers faced by people with criminal records in the workplace, at the ballot box, and elsewhere.  Many of these new laws enacted more than one type of reform.  This prolific legislative “fair chance” track record, the high point of a six-year trend, reflects the lively on-going national conversation about how best to promote rehabilitation and reintegration of people with a criminal record.

* As in past years, approaches to restoring rights varied widely from state to state, both with respect to the type of relief, as well as the specifics of who is eligible, how relief is delivered, and the effect of relief.  Despite a growing consensus about the need for policy change to alleviate collateral consequences, little empirical research has been done to establish best practices, or what works best to promote reintegration.

* The most promising legislative development recognizes the key role occupational licensing plays in the process of reintegration, and it was this area that showed the greatest uniformity of approach.  Of the 14 states that enacted laws regulating licensing in 2018, nine (added to 4 in 2017) adopted a similar comprehensive framework to improve access to occupational licenses for people with a criminal record, limiting the kinds of records that may be considered, establishing clear criteria for administrative decisions, and making agency procedures more transparent and accountable.

* The most consequential single new law was a Florida ballot initiative to restore the franchise to 1.5 million people with a felony conviction, which captured headlines across the country when it passed with nearly 65% of voters in favor.  Voting rights were also restored for parolees, by statute in Louisiana and by executive order in New York.

* The largest number of new laws — 27 statutes in 19 states — expanded access to sealing or expungement, by extending eligibility to additional categories of offenses and persons, by reducing waiting periods, or by simplifying procedures.  A significant number of states addressed record clearing for non-conviction records (including diversions), for marijuana or other decriminalized offenses, for juveniles, and for human trafficking victims.

* For the first time, the disadvantages of a separate petition-based relief system were incorporated into legislative discussions.  Four states established automated or systemic record-sealing mechanisms aimed at eliminating a “second chance gap” which occurs when a separate civil action must be filed.  Pennsylvania’s “clean slate” law is the most ambitious experiment in automation to date.  Other states sought to incorporate relief directly into the criminal case, avoiding the Pennsylvania law’s technological challenges.

* Three additional states acted to prohibit public employers from inquiring about criminal history during the initial stages of the hiring process, Washington by statute, and Michigan and Kansas by executive order.  Washington extended the prohibition to private employers as well.  A total of 33 states and the District of Columbia now have so-called “ban-the-box” laws, and 11 states extend the ban to private employers.

* Four states expanded eligibility for judicial certificates of relief. Colorado’s “order of collateral relief” is now the most extensive certificate law in the nation, available for almost all crimes as early as sentencing, and effective to bar consideration of conviction in public employment and licensing. Arizona, California, and North Carolina made more modest changes to facilitate access to this judicial “forgiving” relief.

* The District of Columbia established a clemency board to recommend to the President applications for pardon and commutation by D.C. Code offenders. Governors in California and New York used their pardon power to spare dozens of non-citizens from deportation, and California also streamlined its pardon process and made it more transparent.  Moving in the other direction, Nebraska authorized sealing of pardoned convictions, and Maine made both pardon applications and pardon grants confidential.

* The legal landscape at the end of 2018 suggests that states are experimenting with a more nuanced blending of philosophical approaches to dealing with the collateral consequences of arrest and conviction.  These approaches include forgiving people’s past crimes (through pardon or judicial dispensation), forgetting them (through record-sealing or expungement), or forgoing creating a record in the first place (through diversionary dispositions).  While sealing and expungement remain the most popular forms of remedy, there seems to be both popular and institutional resistance to limiting what the public may see respecting the record of serious offenses, and a growing preference for more transparent restoration mechanisms that limit what the public may do with such a record, along with standards to guide administrative decision-making.

January 10, 2019 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, December 27, 2018

"Hello, FIRST STEP Act! Goodbye, Jeff Sessions! The Year in Criminal Justice Reform"

The title of this post is the headline of this new extended Reason piece authored by Scott Shackford. I recommend the piece in full, and here is how it gets started and its headings:

With the passage of the FIRST STEP Act just before Christmas, 2018 has been a banner year for incremental reforms to our awful criminal justice system. We've seen efforts to reduce levels of incarceration and the harshness of prison sentences, particularly those connected to the drug war; further legalization of marijuana in the states; and efforts to constrain the power of police to seize people's property and money without convicting them. While all this was happening, crime mostly declined in America's largest cities.

But we've also seen increased deliberate efforts to crack down on voluntary sex work by conflating it with forced human trafficking.  And, despite learning from the drug war that harsh mandatory minimum sentences don't reduce the drug trade, lawmakers and prosecutors are yet again pushing for more punishment to fight opioid and fentanyl overdoses.

Here are some highlights (and lowlights) of American criminal justice in 2018:

The FIRST STEP Act passed (finally)....

Marijuana legalization continued apace....

Civil Asset Forfeiture under the microscope....

Attorney General Jeff Sessions shown the door....

The war on sex trafficking leads to online censorship, not safety....

Treating opioid overdose deaths as murders....

Reducing dependence on cash bail....

This strikes me as a pretty good list, though it leaves out some notable state-level developments such as Florida's vote to retrench its expansive approach to felon disenfranchisement and lots of state-level work on reducing collateral consequences.

I welcome reader input on other criminal justice reforms (or just events) from 2018 that they think worth remembering.

December 27, 2018 in Collateral consequences, FIRST STEP Act and its implementation, Marijuana Legalization in the States, State Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Wednesday, December 12, 2018

Prison Policy Initiative produces "Correctional Control 2018: Incarceration and supervision by state"

National_correctional_control2018The fine folks at the Prison Policy Initiative a few years ago produced this first version of a report that sought to aggregate "data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation."  PPI's latest version of this report, now called "Correctional Control 2018: Incarceration and supervision by state," gets started this way:

The U.S. has a staggering 2.3 million people behind bars, but even this number doesn’t capture the true scale of our correctional system.  For a complete picture of our criminal justice system, it’s more accurate to look at the 6.7 million people under correctional control, which includes not only incarceration but also probation and parole.

The vast majority of people under correctional control are on probation and parole, collectively known as community supervision (or community corrections).  An estimated 4.5 million adults are under community supervision, nearly twice the number of people who are incarcerated in jails and prisons combined. Yet despite the massive number of people under their control, parole and probation have not received nearly as much attention as incarceration.  Only with recent high-profile cases (such as rapper Meek Mill’s probation revocation) has the public begun to recognize the injustices plaguing probation and parole systems, which set people up to fail with long supervision terms, onerous restrictions, and constant scrutiny.  Touted as alternatives to incarceration, these systems often impose conditions that make it difficult for people to succeed, and therefore end up channeling people into prisons and jails.

Understanding correctional control beyond incarceration gives us a more accurate and complete picture of punishment in the United States, showing the expansive reach of our criminal justice system.  This is especially true at the state level, as some of the states that are the least likely to send someone to prison are the most likely to put them under community supervision.  Given that most criminal justice reform will need to happen at the state and local levels, it is crucial for states to assess not only their incarceration rates, but whether their “alternatives” to incarceration are working as intended.

For this report, we compiled data on each state’s various systems of correctional control to help advocates and policymakers prioritize targets for reform.  This report includes data on federal prisons, state prisons, local jails, juvenile confinement, involuntary commitment, Indian Country jails, parole, and probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.  In this update to our original 2016 report, we pay particular attention to the harms of probation and parole, and discuss how these systems might be reworked into more meaningful alternatives to incarceration.

December 12, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, December 11, 2018

Sixth Circuit panel overturns ruling that Ohio's lifetime sex-offender registration rules violate procedural due process rights

A panel f the Sixth Circuit handed down an interest opinion today in Doe v. DeWine, No. 17-3857 (6th Cir. Dec. 11, 2018) (available here).  Here is how it gets started and some key passages:

Defendants-Appellants Michael DeWine, Ohio Attorney General, and Tom Stickrath, Superintendent of the Ohio Bureau of Criminal Investigation, appeal the district-court judgment declaring that Ohio’s sexual-offender registration and notification laws violate Plaintiff-Appellee Jane Doe’s procedural due process rights because they subject her to lifetime registration requirements, which rest on an implicit finding that she remains likely to reoffend, without an opportunity to rebut that finding.  We REVERSE....

The statute unambiguously provides that the sentencing judge’s determination that a person convicted of a sexually oriented offense “is likely to engage in the future in one or more sexually oriented offenses” is “permanent and continues in effect until the offender’s death.”  O.R.C § 2950.09(D)(2) (2003).  In eliminating an offender’s right to petition the sentencing court for a reclassification hearing and declaring the classification permanent, the Ohio legislature made clear that the initial “classification or adjudication” could never “be removed or terminated,” id., and that an offender’s duties and restrictions stemming from that classification could not “be removed or terminated” either, id. § 2950.07(B)(1).

Thus, Doe’s current sexual-predator classification is based on her likelihood of reoffending as of the time of the classification hearing because under Ohio’s scheme, that assessment operated to require that her name be placed in the sex-offender registry permanently.  As in DPS, no fact other than that assessment is relevant to Doe’s present classification.  538 U.S. at 7.  In other words, Doe’s duty to register and the attendant restrictions stem not from her current dangerousness, but from the assessment of her dangerousness at her classification hearing, which resulted in a permanent sexual-predator classification.  Therefore, she has not been deprived of constitutionally guaranteed process because “due process does not require the opportunity to prove a fact that is not material to the State’s statutory scheme.” Id. at 4....

In sum, because Doe’s registration requirement stems from the determination of her likelihood of reoffending at the time of her classification hearing and is not dependent on her current dangerousness, she has no procedural due process right to a reclassification hearing.  Further, the wisdom of Ohio’s decision to make the determination of a sexual offender’s future dangerousness permanent is not subject to a procedural due process challenge.

December 11, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)