Wednesday, September 21, 2022

House Judiciary Committee advances a number of federal criminal justice bills

As well reported in this lengthy new Marijuana Moment piece, "Congressional Lawmakers Approve Marijuana Record Sealing And Other Drug Policy Bills In Key Committee," today brought some notable action in the US House of Representatives on some criminal justice matters.  I recommend the full piece, and here are excerpts :

A key House committee has approved a series of criminal justice reform bills—including bipartisan proposals to clear records for prior federal marijuana convictions, provide funding for states that implement systems of automatic expungements and codify retroactive relief for people incarcerated due to on crack-cocaine sentencing disparities.

The House Judiciary Committee, chaired by Rep. Jerrold Nadler (D-NY), advanced the measures, as well as other bills unrelated to drug policy, during a hearing on Wednesday.... Nadler, speaking about a bill to provide funding to states for expungement purposes, stressed that “even just an arrest can present lifetime barriers to obtaining jobs, housing, education and put other opportunities out of reach.”

“Criminal record expungement and sealing is a pathway to employment opportunities for individuals with a criminal record and enable them to participate fully in their communities at a time when many industries continue to face labor shortages,” the chairman said. “These pathways that desperately needed.”

The congressman also voiced support for the federal cannabis record sealing bill, saying it is “critical in helping those with non-violent criminal records to rebuild their lives.” He added that the public is on board with the reform, as well as major employers who’ve endorsed the legislation such as J.P. Morgan Chase and Walmart.

Here’s a rundown of what the committee-approved bills would accomplish:

HR 2864: The “Clean Slate Act” from Rep. Lisa Blunt Rochester (D-DE) would mandate the automatic sealing of criminal records for certain non-violent, federal marijuana convictions. It would also provide relief to people who have been arrested for other offenses that did not result in a conviction....

HR 5651: The “Fresh Start Act” sponsored by Rep. David Trone (D-MD) would provide federal funding to states that create their own systems of automated expungements.  Though it does not specify the types of crimes that would warrant relief, a growing number of states are taking steps to implement systems of automatic expungement for marijuana convictions, and those states would benefit from the new funding....

HR 5455: The “Terry Technical Correction Act” from Rep. Sheila Jackson Lee (D-TX) is responsive to a 2021 U.S. Supreme Court ruling that held that a law reducing the federal crack-cocaine sentencing disparity did not apply retroactively in cases that did not trigger a mandatory minimum sentence.

It would amend the law by clarifying that the 2010 Fair Sentencing Act was intended to provide individuals in those cases with relief, and so any motion that was denied on the basis of a court’s interpretation of eligibility under the statute “shall not be considered a denial after a complete review of the motion on the merits within the meaning of this section.”...

The crack-cocaine sentencing bill from Jackson Lee enjoyed some bipartisan support in the committee, with Ranking Member Jim Jordan (R-OH) speaking in favor of the legislation ahead of the vote. He stressed that it was a necessary reform to align the law with congressional intent.

Republican members generally balked at the state expungements and federal record sealing proposals, however, arguing that they amount to “soft on crime” policies.

September 21, 2022 in Collateral consequences, Drug Offense Sentencing, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Tuesday, September 20, 2022

District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

A few months ago, in a series of posts right after the Supreme Court's big Second Amendment decision Bruen (basics here), I suggested that a number of broad federal criminal firearm prohibitions might be subject to new constitutional challenges.  Specifically, I focused on how the Bruen court's recasting of Second Amendment analysis might impact the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1) and the federal drug-user-in-possession statute, 18 U.S.C. § 922(g)(3) (see posts linked below).  Interestingly, I did not even think about how Bruen might impact another federal firearm prohibition provision, 18 U.S.C. § 922(n), which criminalizes a person under indictment from receiving a firearm. Yesterday, as detailed in this AP article, a federal district court in Texas decided that Bruen renders § 922(n) unconstitutional:

A U.S. law banning those under felony indictments from buying guns is unconstitutional, a federal judge in West Texas ruled Monday.  U.S. District Judge David Counts, whom then-President Donald Trump appointed to the federal bench, dismissed a federal indictment against Jose Gomez Quiroz that had charged him under the federal ban....

In a 25-page opinion filed in Pecos, Texas, Counts acknowledged “this case’s real-world consequences — certainly valid public policy and safety concerns exist.”  However, he said a Supreme Court ruling this summer in a challenge brought by the New York Rifle & Pistol Association “framed those concerns solely as a historical analysis.”

“Although not exhaustive, the Court’s historical survey finds little evidence that ... (the federal ban) — which prohibits those under felony indictment from obtaining a firearm — aligns with this Nation’s historical tradition.”

Hence, he ruled the ban unconstitutional as the “Second Amendment is not a ’second class right,” as noted in a 2008 Supreme Court ruling.  ”No longer can courts balance away a constitutional right,” Counts wrote.  After the New York case, “the Government must prove that laws regulating conduct covered by the Second Amendment’s plain text align with this Nation’s historical tradition.  The Government does not meet that burden.”

The full 25-page ruling in US v. Quiroz, PE:22-CR-00104-DC (W.D. Tex. Sept. 19, 2022), is available at this link.  The full opinion is worth a full read, in part for a bits of west Texas flair such as this line: "Some feel that a grand jury could indict a [burrito] if asked to do so." 

Some prior related posts:

September 20, 2022 in Collateral consequences, Gun policy and sentencing, Scope of Imprisonment | Permalink | Comments (15)

Saturday, September 10, 2022

"Irrational Collateral Sanctions"

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

In the modern era, a criminal sentence is rarely truly over just because someone has served their time.  Instead, both legal and social barriers continue to haunt most people who have been convicted of crimes for years.  These barriers often persist long past the point of making good sense.

While social barriers like stigma are not always easy for lawyers and lawmakers to address, legal barriers like so-called “collateral sanctions” (also known as “collateral consequences”) are their bread-and-butter.  In Part I of this Essay, I tell an anonymized client story that illustrates many of the existing efforts to blunt the effects of collateral sanctions in Ohio.  In Part II, I discuss in more depth both the problem of collateral sanctions and both the challenges and opportunities posed by existing remedial efforts.  In Part III, I discuss the opportunity for rational-basis challenges to irrational collateral sanctions when other remedial opportunities are unavailing. 

September 10, 2022 in Collateral consequences, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, August 30, 2022

"Racial equity in eligibility for a clean slate under automatic criminal record relief laws"

The title of this post is the title of this new article published in Law & Society Review authored Alyssa C. Mooney, Alissa Skog and Amy E. Lerman. Here is its abstract:

States have begun to pass legislation to provide automatic relief for eligible criminal records, potentially reducing the lifelong collateral consequences of criminal justice involvement.  Yet numerous historical examples suggest that racially neutral policies can have profoundly disparate effects across racial groups.  In the case of criminal record relief, racial equity in eligibility for a clean slate has not yet been examined.  We find that in California, one in five people with convictions met criteria for full conviction relief under the state's automatic relief laws.  Yet the share of Black Americans eligible for relief was lower than White Americans, reproducing racial disparities in criminal records.

We identify two policy amendments that would reduce the share of Black men in California with convictions on their criminal records from 22% to 9%, thereby narrowing the difference compared to White men from 15 to seven percentage points.  Put another way, an additional one in seven Black men currently has a conviction record, compared to their White counterparts.  This would decline to an additional one in 14 if both hypothetical policy amendments were incorporated.  We close with discussion of criminal history data quality limitations, which pose a second key challenge to equitable implementation of automatic criminal record relief reforms nationwide.

August 30, 2022 in Collateral consequences, Criminal Sentences Alternatives, Race, Class, and Gender | Permalink | Comments (2)

Thursday, August 25, 2022

"Defeating De Facto Disenfranchisement of Criminal Defendants"

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

In a democracy, voting is not only an important civic duty but a right owed to its citizens.  However, by operation of law, forty-eight states deny voting rights to individuals based on a criminal conviction.  This de jure disenfranchisement has been under attack by activists and scholars as an improper collateral consequence that disproportionately impacts people of color.  Although recent years have seen substantial reforms to re-enfranchise defendants, an estimated 5.17 million defendants were still ineligible to vote in 2020.

While efforts to address de jure disenfranchisement continue to be necessary, a problem that has received considerably less attention is the de facto disenfranchisement of criminal defendants, who have the legal right to vote but are prevented from exercising it.  De facto disenfranchisement applies to defendants who have regained their voting as well as defendants who never lost their rights.  Although de jure disenfranchisement excludes millions from voting, confusing restoration requirements, lack of information, misinformation, and physical barriers prevent millions of eligible voters from voting.  For example, while most of the nearly 750,000 people in jail have the right to vote, they face informational and access hurdles to exercising their rights.  Moreover, distrust of the political system and fear of arrest for voting exacerbate the issue.  As with de jure disenfranchisement, de facto disenfranchisement disproportionately impacts people of color.

As states decide to restore voting rights to more individuals, de jure disenfranchisement will fade, but de facto disenfranchisement threatens to keep the same restrictive policies alive in practice.  As a result, more progress is necessary to go beyond merely providing criminal defendants the right to vote to actually empowering them with the ability to vote.  This Article addresses the problems associated with de facto disenfranchisement.  It suggests and analyzes national, state, and local reforms and practices to ensure that defendants with voting rights have meaningful notice and access to voting.

August 25, 2022 in Collateral consequences, Who Sentences | Permalink | Comments (0)

Friday, August 19, 2022

California about to enact broadest criminal record sealing law in the nation

As reported in this AP piece, "California would have what proponents call the nation’s most sweeping law to seal criminal records if Gov. Gavin Newsom signs legislation sent to him Thursday by state legislators."  Here are the notable details:

The bill would automatically seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years after completing their sentences and any parole or probation. Records of arrests that don’t bring convictions also would be sealed.The bill would automatically seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years after completing their sentences and any parole or probation.  Records of arrests that don’t bring convictions also would be sealed. It would take effect in July, and excludes those convicted of serious and violent felonies, and felonies requiring sex offender registration.

Proponents say about 8 million Californians have a criminal or arrest record, or about one of every five state residents. A criminal record can trigger nearly 5,000 legal restrictions in California, many of which can limit job opportunities as well as the ability to get housing and educational opportunities, supporters said.  They estimate that 70 million people nationwide face nearly 50,000 legal restrictions based on a criminal or arrest record....

While the bill would not apply to serious or violent felonies, California has a narrow legal definition of violent crimes, including about two dozen of the most serious crimes like murder, voluntary manslaughter, attempted murder, kidnapping, assaults, arson, robbery and extortion.  The bill would apply to offenses like domestic violence, said Republican Sen. Shannon Grove, who joined all Republicans in the Senate and one Democrat — Sen. Melissa Hurtado of Sanger — in voting against the bill Thursday. “These things are very violent things even though they are not listed as serious and violent in the penal code,” Grove said.

Democratic state Sen. Maria Elena Durazo, the bill’s author, said in a statement that the lingering criminal records available through background checks create “a permanent underclass.” That can include, among others, “mothers that want to pursue new careers through education, fathers who want to coach, homeowners that want to join their HOA board, couples who may want to adopt, or grandchildren that want to care for their elderly grandparent.”

Seven reform organizations sponsored the bill, including Californians for Safety and Justice, which has pushed for numerous criminal justice like Proposition 47, the voter-approved ballot measure that reduced penalties for certain drug and property crimes in 2014.  Groups that opposed the bill include the 75,000-member Peace Officers Research Association of California, which argued California already offers more limited ways for lower level ex-felons to clear their records....

Aside from general criminal records, the bill would aid would-be teachers, who under current law must be denied teaching credentials if they have been convicted of a controlled substance offense.  The bill would bar the teacher credentialing commission from considering drug possession convictions that are more than five years old and have been expunged.  But the commission and school officials would still have access to other convictions dating to 2020.

The bill failed in the Assembly a year ago, with an amended version clearing the chamber in June. Among other things, supporters originally wanted records sealed after two years instead of four.  The Senate approved the amendments Thursday on an 28-10 vote, sending it to Newsom.

August 19, 2022 in Collateral consequences, Reentry and community supervision | Permalink | Comments (3)

Wednesday, August 03, 2022

"Juries, Democracy, and Petty Crime"

The title of this post is the title of this interesting new paper authored by J.D. King now available via SSRN. Here is its abstract:

The right to trial by jury in criminal cases is basic to the design of American criminal justice and to the structure of American government. Guaranteed by Article III of the Constitution, the Sixth Amendment, and every one of the original state constitutions, the criminal jury was seen as critically important not only to the protection of individual rights but also to the architecture of American democracy.  The vast majority of criminal prosecutions today, however, are resolved without even the prospect of community review by a jury.  Despite the textual clarity of the guarantee, the Supreme Court has long recognized a “petty offense” exception to the right to trial by jury.

As systems of mass adjudication and hyper-incarceration have developed over the past several decades, a parallel process of collateral consequences has also arisen and is now well-documented.  Recognizing that a conviction for even a low-level offense can have devastating effects, some courts have begun to narrowly interpret the “petty offense” exception, especially where a conviction could have severe immigration-related consequences.  As a result, some jurisdictions now provide stronger procedural protections for non-citizen defendants than for citizen defendants charged with similar offenses.  Although these courts are certainly correct in characterizing these offenses as “serious” and thereby providing those defendants a right to a jury trial, their reasoning imports a defendant-specific subjectivity that is in tension with prior Supreme Court guidance, and the results pose questions of legitimacy as different defendants are treated differently because of citizenship status.

As advocates push to expand the right to trial by jury, the Supreme Court should revisit the “petty offense” exception in light of the expansive web of collateral consequences that has developed in the past few decades.  In Ramos v. Louisiana, the Court grappled with the question of stare decisis and overruled decades-old precedent on the constitutionality of non-unanimous jury verdicts, recognizing that the Court should be most willing to reconsider precedent in cases involving constitutional criminal procedure. At the same time, state legislatures should address the problem by extending the state right to jury trials to cover all criminal prosecutions.  The implications of such changes would extend beyond a procedural reform that would affect the rights of individual defendants.  Expansion of the jury trial right would constitute a meaningful structural reform in democratizing criminal justice at a time when such change is needed to establish the popular legitimacy of the criminal justice system.

August 3, 2022 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, July 08, 2022

Split Wisconsin Supreme Court rejects transgender woman's arguments for changing her name on sex offender registry

The Wisconsin Supreme Court issued a notable 4-3 ruling yesterday in State v. CG, 2022 WI 60 (Wisc. July 7, 2022) (available here), rejecting interesting arguments regarding the state's sex offender registry. Here is part of the start of the opinion of the court:

When Ella was 15 years old, she and another teenager, Mandy, sexually assaulted their supposed friend, 14-year-old Alan ... [and state] law required Ella to register as a sex offender.... Ella filed a postdispositional motion to stay registration....

Ella's legal arguments are grounded in her gender identity. She entered the juvenile justice system as a male. Sometime thereafter, Ella realized she was a transgender girl, i.e., a biological male who self-identifies as a girl. Ella has a traditionally masculine legal name she believes is incompatible with her gender identity.  Ella complains she is bound to "out herself" as a male anytime she is required to produce her legal name.  If Ella were not a sex offender, she could petition the circuit court for a legal name change under Wis. Stat. § 786.36 (2019–20);  however, another statute, Wis. Stat. § 301.47(2)(a), prohibits her from filing such a petition because she is a sex offender, although the State argues it does not prohibit her from using an alias provided she notifies the Department of Corrections (DOC) of her intent to do so in advance.

Ella raises two legal issues for our consideration.  She argues requiring her to register as a sex offender: (1) constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution as applied to her; and (2) violates her right to free speech under the First Amendment to the United States Constitution. Both arguments rest on Ella's inability to change her legal name to conform to her gender identity.

We reject both arguments.  Consistent with well-established precedent, we hold Ella's placement on the sex offender registry is not a "punishment" under the Eighth Amendment.  Even if it were, sex offender registration is neither cruel nor unusual. We further hold Ella's right to free speech does not encompass the power to compel the State to facilitate a change of her legal name.

Here is a key paragraph from the start of the dissent authored by Justice Bradley:

Although I agree that Ella's Eighth Amendment claim fails, I write separately to address the majority's First Amendment analysis and conclusions. It cuts short the First Amendment analysis by determining that the First Amendment isn't even implicated by the name change ban that accompanies Ella's registration as a sex offender. In making this determination, the majority takes an overly restrictive view of expressive conduct and denigrates the import of a legal name.

July 8, 2022 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Thursday, June 09, 2022

"The Efficacy of Prosecutor-led, Adult Diversion for Misdemeanor Offenses"

The title of this post is the title of this recent paper authored by Viet Nguyen now available via SSRN. Here is its abstract:

Criminal records can produce collateral consequences that affect access to employment, housing, and other outcomes. Adverse collateral consequences may be particularly acute for adults with limited professional capital and social networks.  In recent years, there has been an expansion of prosecutor-led diversion programs that attempt to curb the effect of collateral consequences.  However, the expansion of diversion programs may lead to net-widening if these programs simply substitute for cases that would have otherwise been dismissed.

This study assesses the impact of an adult, misdemeanor diversion program on long-term recidivism outcomes and the future amount of court-imposed fees and sanctions.  The misdemeanor diversion program reduced reconviction rates but produced a short-term net-widening effect by drawing in defendants whose cases would normally have been dismissed. The net-widening effects were curtailed over the longer term as the program significantly increased expungement rates. The results were driven by younger defendants.  Implications of this study for theories of criminal desistance and policies around expunging criminal records are discussed.

June 9, 2022 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, May 19, 2022

"Paying for a Clean Record"

The title of this post is the title of this new paper authored by Amy Kimpel and just published in the Journal of Criminal Law & Criminology. Her is its abstract

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction.  Defendants with means, who tend to be predominantly White, can often pay for a clean record.  But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record.  Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization.  Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction.  Expungement seals or erases the defendant’s record of arrest or conviction.  Some diversion and expungement programs are cost-free, but most are not.  Yet a criminal record carries its own costs.  A criminal record can limit where an individual can live, go to school, and whether they receive public benefits.  As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth.  Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass.

This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization.  These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means.  This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste.  Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.

May 19, 2022 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (3)

Tuesday, March 29, 2022

Split North Carolina court finds some felon disenfranchisement violates state constitution

As reported in this local article, "North Carolina’s law banning many people with felony records from voting after they get out of prison is unconstitutional, a state court ruled Monday."  Here is more (with a link to the lengthy ruling):

Until now, state law allowed people with felony convictions to vote only once they finish their sentence.  That didn’t only include their prison sentence; it also included probation or parole, which sometimes can last for years after someone is released from prison.

Monday’s ruling, first reported by Carolina Public Press, changes that.  Now — pending a potential appeal of the ruling — people with criminal records can vote once they have rejoined society and are no longer behind bars.  The judges wrote that “if a person otherwise eligible to vote is not in jail or prison for a felony conviction, they may lawfully register and vote in North Carolina."

It wasn’t immediately clear if Republican lawmakers, who have defended the law so far, will appeal again.

The law is unconstitutional for generally violating people’s rights, the judges wrote Monday, but also for being explicitly targeted at Black people. Specifically, they wrote that the law “was enacted with the intent of discriminating against African American people and has a demonstrably disproportionate and discriminatory impact.”...

The News & Observer had previously reported that around 55,000 people might be affected by such a change, after an earlier ruling and subsequent appeal in this same case.  The new standard, that people can vote once they leave prison, is the most common practice nationwide, according to the National Conference of State Legislatures.  Two states, Maine and Vermont, let people vote even while in prison.  But most have at least some restrictions, with varying degrees of severity.

The ruling was 2-1 by the panel of three superior court judges assigned to the case. Judge John Dunlow, a Republican from Granville County, dissented.  The two in the majority were Judge Keith Gregory, a Wake County Democrat, and Judge Lisa Bell of Mecklenburg County, who is unaffiliated.

A small part of the law was already struck down just before the 2020 elections, The News & Observer reported, on the basis that in some cases the requirement still functioned similar to a Jim Crow-era poll tax — since some people remained on probation or parole simply for being unable to pay court fines or other costs.

March 29, 2022 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Saturday, March 12, 2022

"Card Carrying Sex Offenders"

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

Although it is commonly believed that Americans have never been required to carry and show upon demand personal identification documents, the belief is incorrect.  Over time, select sub-populations have in fact been subject to such a requirement, including free-born and emancipated African-Americans until after the Civil War.  This article examines the targeting of yet another disfavored sub-population: individuals convicted of sex offenses, who are required to register with government authorities.

Today, roughly a dozen states require that registrants obtain and carry identification cards or driver’s licenses signifying their status.  Often, the branding is very overt, such as a stamp of “SEX OFFENDER” or “SEXUAL PREDATOR” in bight colored lettering.  At other times, it is more subtle, such as use of a “U,” denoting that the individual is a “Sexual Deviant.”  The federal government also brands registrants, requiring that their passports display a “unique identifier” stamped in a “conspicuous location.”  The passports must be shown to airport and customs officials, as well others when traveling abroad. With state laws, disclosure is even more pervasive: not only to police, upon demand, but also to myriad other individuals encountered in daily life, such as bank tellers and store clerks.

To date, the laws have faced only a few judicial challenges, which have condoned government branding in principle, yet at times required use of less graphic signifiers.  The decisions, while notable for their reasoning regarding government-compelled speech, have failed to address other significant constitutional concerns, including the First Amendment right of free association, the Fourth Amendment prohibition of unreasonable searches and seizures, and the Fifth Amendment privilege against compelled self-incrimination.  As important, courts have ignored the troubling implications of allowing governments to force individuals to publicly self-stigmatize and systematically compel, under threat of criminal sanction, that they be complicit in their own surveillance.  The article frames and illuminates these issues for the important coming important debate regarding the authority of government to target not only individuals convicted of criminal offenses, but anyone it thinks worthy of public stigmatization and monitoring, possibly for their lifetimes.

March 12, 2022 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5)

Thursday, March 03, 2022

Lots of remarkable new CCRC posts highlighting "The Many Roads From Reentry to Reintegration"

Regular readers should recall me highlighting all the great work being done regularly over at the Collateral Consequences Resource Center, and an array of recent postings at CCRC captures all the incredible content connected to its latest publication of a national report surveying various legal mechanisms for restoring rights titled "The Many Roads to Reintegration."   Today's post links to the main publication and sets the context:

We are pleased to publish the March 2022 revision of our national survey of laws restoring rights and opportunities after arrest or conviction, “The Many Roads from Reentry to Reintegration.” Like the earlier report, this report contains a series of essays on various relief mechanisms operating in the states, including legislative restoration of voting and firearms rights, various types of criminal record relief (expungement and sealing, pardon, judicial certificates), and laws limiting consideration of criminal record in fair employment and occupational licensing.

Drawing on material from CCRC’s flagship resource the Restoration of Rights Project, the report grades each state for the scope and efficacy of its laws in nine different relief categories. Based on these grades, it compiles an overall ranking of the states. As described below, most of the states identified as reform leaders in our 2020 report still rank highly, but several new states have joined them. Half a dozen other states made substantial improvements in their ranking by virtue of progressive legislation enacted in 2020 and 2021, in two cases (D.C. and Virginia) rising from the bottom ten to the top 20.

In addition, over the last couple weeks, CCRC has been highlight parts of this report though these individual postings:

Expungement, Sealing & Set-Aside of Convictions: A National Survey

Fair Chance Employment and Occupational Licensure: A National Survey

Executive Pardon: A National Survey

Judicial Diversion and Deferred Adjudication: A National Survey

March 3, 2022 in Collateral consequences, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Wednesday, February 23, 2022

"Waiting for Relief: A National Survey of Waiting Periods for Record Clearing"

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

Background: This report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years, a period that typically (though by no means invariably) commences after completion of the court-imposed sentence.  Also typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law.  These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases. 

Contents of the Report: Following this introduction, the report consists of two 50-state Tables, one showing the waiting periods applicable to clearing of misdemeanors, and the other showing the waiting periods applicable to clearing of felonies, with states that have no general record clearing listed at the bottom of each table.  The Tables are followed by maps showing the geographical distribution of waiting periods for each type of conviction.  The maps are followed by an appendix describing in greater detail the laws governing waiting periods in each of the jurisdictions studied.

February 23, 2022 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (1)

Monday, February 21, 2022

"Barred from employment: More than half of unemployed men in their 30s had a criminal history of arrest"

The title of this post in the title of this notable new research article from multiple authors published in Science Advances. Here is its abstract:

We investigate what portion of the pool of unemployed men in the United States have been arrested, convicted, or incarcerated by age 35. Using the National Longitudinal Survey of Youth, 1997, we estimate 64% of unemployed men have been arrested, and 46% have been convicted.  Unexpectedly, these rates vary only slightly by race and ethnicity. Further investigation of other outcomes such as marriage, education, household net worth, and earnings shows large differences between unemployed men who have a criminal history record and those who do not.  One major implication of these findings is that employment services should focus more on the special challenges facing unemployed men with criminal history records.  A second implication is that statistical discrimination against unemployed members of racial minority groups, to avoid hiring those with criminal histories, is both illegal and ineffective.

February 21, 2022 in Collateral consequences | Permalink | Comments (11)

Wednesday, February 16, 2022

"Collateral Consequences of Conviction in South Carolina Courts: A Study of South Carolina Defense Lawyers"

The title of this post is the title of this recent article authored by Peter Leasure, John Burrow, Gary Zhang and Hunter Boehme in the Justice System Journal.  Here is its abstract:

Recognizing the negative impacts of collateral consequences, policy-makers and scholars have sought to implement formal and informal standards aimed at increasing defendant notice of such consequences before pleading guilty.  However, very few studies have sought to explore the actual practices of court room actors regarding collateral consequence notice.  The current study filled this gap in knowledge using a survey of South Carolina defense lawyers.  Specifically, South Carolina defense attorneys were surveyed about their practices regarding collateral consequence notice as well as their observations of judicial practices regarding collateral consequences.

Results indicate that while a large majority of defense attorneys felt that it was their responsibility to inform their clients of collateral consequences, only 36% of respondents agreed that attorneys do a good job informing clients about collateral consequences.  In fact, few respondents noted that they always inform their clients about collateral consequences that ex-offenders, probation and parole officers, and social workers consistently identify as particularly impactful to a successful reentry (those related to employment, housing, civic rights, and public benefits) and many never or rarely do so.  However, 94.3% of respondents noted that they commonly discuss other collateral consequences with clients.  Further, respondents noted that few judges always or often discuss collateral consequences.  These results suggest that some collateral consequences are being discussed with some defendants, but also that these practices are inconsistent.  Informed by these findings, recommendations for increasing defendant notice of collateral consequences are discussed.

February 16, 2022 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, February 14, 2022

"The High Cost of a Fresh Start: A State-By-State Analysis Of Court Debt As A Bar To Record Clearing"

The title of this post is the title of this new report produced by the National Consumer Law Center and the Collateral Consequences Resource Center.  The report examined how court debt — such as criminal fines, fees, costs, and restitution — serves as impediment to record clearing.  Here is the start of the report's executive summary:

For the nearly one-third of adults in the U.S. with a record of arrest or conviction, their record is not simply part of their past but a continuing condition that impacts nearly every aspect of their life.  Their record makes it hard to get a job and support a family, secure a place to live, contribute to the community, and participate fully in civic affairs.

In recent years, most states have passed laws aimed at restoring economic opportunity, personal freedoms, and human dignity to millions of these individuals by providing a path to clear their record.  But for too many, this relief remains out of reach because of monetary barriers, including not only the cost of applying for record clearing but also the requirement in many jurisdictions that applicants satisfy debt incurred as part of the underlying criminal case before they can have their record cleared.  This can be a high bar: the total amount of fines and fees can run to thousands of dollars for even minor infractions and can be considerably higher for felonies.

People prevented from clearing their record because they cannot afford to pay are usually those most in need of relief.  And, perversely, because a record significantly impairs economic opportunity, having an open record makes it harder to pay off fines and fees and therefore harder to qualify for record clearing.  This burden falls especially heavily on Black and Brown communities, which are more likely to have high concentrations of both criminal records and poverty because of structural racism in criminal law enforcement and in the economy.  Ability-to-pay tests and similar waiver approaches to reduce or eliminate monetary barriers to record clearing have been shown to be poor safeguards in many contexts.

This report explores the extent to which restricting access to record clearing based on outstanding criminal fines, fees, costs, and restitution — collectively known as “court debt” — may prevent poor and low-income people from getting a second chance.  After surveying research on the importance of record clearing and the mushrooming financial burdens imposed on criminal defendants, it analyzes the extent to which outstanding court debt is a barrier to record clearing under the laws of each of the 50 states, the District of Columbia, and the federal system.  Our study focuses in particular on generally applicable statutory authorities for clearing adult criminal convictions; it excludes record-clearing authorities available for other categories of records (e.g., non-conviction records) or for specific categories of individuals (e.g., victims of human trafficking).

February 14, 2022 in Collateral consequences, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (4)

Monday, February 07, 2022

Taking stock of state felon disenfranchisement as federal reform falters

Long-time readers know I am a big fan of the franchise in our democracy, and thus I always question felon disenfranchisement laws. Disappointingly, it now seems unlikely that a federal voting rights reform law will be enacted to address this issue anytime soon. But, encouragingly, this new Politico piece notes that some states are making progress on this front even absent federal reforms.  The piece's full headline, "States moving fast after Congress failed to expand felon voting rights: The number of states automatically restoring voting rights has increased by 50 percent since after the 2018 election and others could follow this year," is a bit more upbeat than the full article.  But it still seems like there is reason for reform optimism, and here is an excerpt from an article worth reading in full:

Activists' hopes for a sweeping federal restoration of rights were dashed when Democrats’ voting rights megabill went down in the Senate in January.  The bill would have been revolutionary for those convicted of felonies because it would have presented one national standard: A person’s right to vote, under that legislation, could not be “denied or abridged because that individual has been convicted of a criminal offense unless such individual is serving a felony sentence in a correctional institution or facility at the time of the election.”

Outside of D.C., success has been found more readily in state capitals. In 21 states, people convicted of felonies automatically regain the right to vote upon their release from incarceration, according to the National Conference of State Legislatures....  The number of states automatically restoring voting rights has increased by 50 percent since after the 2018 election, with seven states passing laws or ballot initiatives that automatically restored a person’s rights once they were released, according to the NCSL....

And activists say they are also eyeing longer-term pushes in states like Kentucky, Alabama and Mississippi, hoping to attract more Republican support.  While Democratic lawmakers have recently formed the foundation for votes for the reenfranchisement of people with felony convictions, there is some noticeable cross-partisan support for it as well.

Chapters of Americans for Prosperity — the libertarian-leaning organization at the heart of the Koch constellation of conservative groups — have backed drives in states like New Mexico and Virginia.  And in Kentucky, some Republican lawmakers have backed pushes for the eventual restoration of voting and other rights in the state. 

February 7, 2022 in Collateral consequences, Who Sentences | Permalink | Comments (1)

Tuesday, February 01, 2022

Fourth Circuit panel upholds a "quirk" in Virginia’s sex-offender registry against various constitutional challenges

Though Justice Scalia passed away nearly six years ago, I still recall him preaching the simple (and perhaps controversial) idea that the Constitution does not always invalidate stupid laws. (Here is an account of a speech he gave 20 years ago at Princeton university where he said "the Constitution sometimes requires upholding a law that does not make sense.") The late Justice came to mind today when I saw the recent Fourth Circuit ruling in Doe v. Settle, No. 20-1951 (4th Cir. Jan 28, 2022) (available here). Here is how the lengthy unanimous panel opinion in Doe starts and concludes:

Two months after he turned 18, John Doe was caught having sex with his 14-yearold girlfriend.  Given the facts of his arrest, Doe may well have been charged with “carnal knowledge of a child,” a Class 4 felony that prohibits sex with 13- and 14-year-old children.  But instead he was charged with and pleaded to a lower-class felony, “taking indecent liberties with children,” which only prohibits behavior like propositioning a child for sex.  Doe’s plea may have gotten him a shorter prison sentence, but due to a quirk in Virginia law, it also led to worse treatment by Virginia’s sex-offender registry.  Both crimes generally put an offender on the highest tier of the registry for life, but there is a narrow exception to that rule.  When an offender is less than 5 years older than his victim, he may be removed from the registry in time.  But that mitigating exception only applies to carnal knowledge, the crime with the higher sentencing range, and not to indecent liberties.  So while Doe may have felt lucky to only be charged with indecent liberties, given the potential for a lower prison sentence, that plea ended up condemning him to worse treatment on the registry.  Because of that oddity, Doe will spend the rest of his life on Virginia’s sex-offender registry with no hope for relief.

Doe — now in his 30s — sued Colonel Gary T. Settle, Superintendent of the Virginia Department of State Police, hoping to persuade a court to remove him from that registry and its burdens.  Doe argues that the registry and the 5-year-gap provision violate multiple constitutional principles.  In his Fourteenth Amendment equal protection claim, Doe asks us to consider why an offender convicted of having sex with a child, as Doe might have been, should be treated better than an offender convicted only of propositioning a child for sex, Doe’s actual charge.  In his Eighth Amendment claim, Doe asks us whether a lifelong registration requirement is an appropriate sanction for a single nonviolent crime committed by a high-school student.

Both appeals present significant issues of fairness, but at bottom, they ask us to question the wisdom of the Virginia legislature and its sex-offender registry.  That is not our place.  When the Constitution is invoked, our place is to determine whether state laws comply with the specific dictates of that document.  And Virginia’s sex-offender registry complies with the Eighth and Fourteenth Amendments.  So we affirm the district court’s dismissal.....

If an 18-year-old man in Virginia has “consensual” sex with his 14-year-old girlfriend, and the next day, sends her a text message asking her to do it again, he will have committed two crimes.  But under the letter of the law in Virginia, only one of those crimes will place him on the worst tier of sex offenders on the registry with the rapists and the murderers: the text message.  That may not make much sense.

But our Constitution “presumes that even improvident decisions will eventually be rectified by the democratic process.”  See Cleburne, 473 U.S. at 440.  The judiciary is not meant to revise laws because they are clumsy, unwise, or — even in some cosmic sense — unfair.  In cases like this, courts are asked to make judgments about what is inside and what is outside the precise lines drawn by the Constitution.  And whatever else they may be, Virginia’s sex-offender registry and its narrow Romeo-and-Juliet provision are constitutional.  Accordingly, the district court’s judgment is AFFIRMED.

February 1, 2022 in Collateral consequences, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Monday, January 24, 2022

CCRC releases "From Reentry to Reintegration: Criminal Record Reforms in 2021"

2022_CCRC_Annual-Report_Cover-768x994As detailed at this post over at the website of the Collateral Consequences Resource Center, "each year since 2017, CCRC has issued a report on legislation enacted in the past year that is aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life."  True to form, CCRC has now released this 55-page report titled  "From Reentry to Reintegration: Criminal Record Reforms in 2021."  The CCRC post about the report provide this helpful review of the full document (emphasis and links from the original):

The title of this post introduces our annual report on new laws enacted during the past year, and emphasizes the continuum from reentry (for those who go to jail or prison) to the full restoration of rights and status represented by reintegrationRecent research indicates that most people with a conviction never have a second one, and that the likelihood of another conviction declines rapidly as more time passes. The goal of full reintegration is thus both an economic and moral imperative.

In the past year the bipartisan commitment to a reintegration agenda has seemed more than ever grounded in economic imperatives, as pandemic dislocations have brought home the need to support, train, and recruit workers who are essential to rebuilding the businesses that are the lifeblood of the economy.  If there is any one thing that will end unwarranted discrimination against people with a criminal history, it is a recognition that it does not pay.

Our 2021 report highlights key developments in reintegration reforms from the past year. It documents that 40 states, the District of Columbia, and the federal government enacted 152 legislative bills and took a number of additional executive actions to restore rights and opportunities to people with an arrest or conviction history. As in past years, a majority of these new laws involved individual record clearing: All told, an astonishing 36 states enacted 93 separate laws that revise, supplement or limit public access to individual criminal records to reduce or eliminate barriers to opportunity. Most of these laws established or expanded laws authorizing expungement, sealing, or set-aside of convictions or arrest records.  Several states enacted judicial record clearing laws for the very first time, and a number of states authorized “clean slate” automatic clearing.  Executive pardoning was revived in several states where it had been dormant for years.

In addition, many of the new laws enacted general provisions limiting considering of criminal record in economic settings: 17 states enacted 26 new laws regulating employment and occupational licensing, and more than a dozen other states enacted laws facilitating access to housing, education, driver’s licenses, and public benefits.

Finally, civil rights restoration continued to make progress: Four states took steps to restore voting rights upon release from prison, bringing the total in that category to 21 (with another two states and D.C. not disenfranchising at all). Three other states and the federal government took steps to expand awareness of voting eligibility by those in jail or prison or after release, and four states acted to restore eligibility for jury service and public office....

From Reentry to Reintegration, Criminal Record Reforms in 2021 is available here.  It includes our third annual legislative Report Card recognizing the most (and least) productive legislatures in 2021.  The body of the report provides topical discussions of last year’s reform measures, followed by an appendix documenting and summarizing the new laws by jurisdiction. More detailed analysis of each state’s law is available in the CCRC Restoration of Rights Project.

January 24, 2022 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, January 21, 2022

Eleventh Circuit panel decides law enforcement violates First Amendment by placing Halloween warning signs on registered sex offenders' lawns

A couple of days ago, a unanimous Eleventh Circuit panel issued an interesting and notable ruling in McClendon v. Long, No. 21-10092 (11th Cir.  Jan. 19, 2022) (available here).  Here is how the court's opinion gets started:

In October 2018, two deputies from the Butts County Sheriff’s Office placed signs in the front yards of the residences of all 57 registered sex offenders within the County, warning “STOP” and “NO TRICK-OR-TREAT AT THIS ADDRESS.” Before Halloween 2019, three registered sex offenders living in Butts County sued, seeking to enjoin the Sheriff from placing the signs again. The district court denied a permanent injunction and granted summary judgment in favor of the Sheriff.

After review and with the benefit of oral argument, we conclude that the Sheriff’s warning signs are compelled government speech, and their placement violates a homeowner’s First Amendment rights.  Thus, we vacate the district court’s judgment in favor of the Sheriff and remand for further proceedings consistent with this opinion.

For many years, I have seen reports about (and have blogged a bit about) all sorts of "special" formal and informal rules applied to registered sex offenders by many localities around Halloween. Some of these rules have been challenged in various courts and a few have been enjoined.  But I cannot recall seeing any other federal circuit opinions on this recurring issue, and I suspect this ruling will be widely cited in future litigation over these kinds of issues.

January 21, 2022 in Collateral consequences, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (2)

Tuesday, December 14, 2021

"The Effectiveness of Certificates of Relief: A Correspondence Audit of Hiring Outcomes"

The title of this post is the title of this new article authored by Peter Leasure and Robert J. Kaminski just published in the Journal of Empirical Legal Studies.  Here is its abstract:

Although there are several collateral consequence relief mechanisms that could theoretically be used to improve employment outcomes for those with criminal history, many of these mechanisms are available only for first-time/low-level individuals or possess other requirements that limit their accessibility.  Recognizing these facts, some jurisdictions have created certificates of relief, which are generally more accessible than other relief mechanisms.  The goal of the current study was to test whether one state's (Ohio) certificate could improve hiring outcomes for men with criminal histories comprised of felony theft, felony drug possession, and misdemeanor drug paraphernalia convictions.  This goal was achieved with the use of two field experiments.  Results showed that certificate holders with criminal history received significantly fewer callbacks than those with no criminal record and fared no better than those with an identical criminal record and no certificate.  Further, African-American applicants received significantly fewer callbacks than white applicants in all criminal record categories.

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

Saturday, December 11, 2021

"Protective State Policies and the Employment of Fathers with Criminal Records"

I just recently saw this recent article, which shares the title of this post, authored by Allison Dwyer Emory and published online via the journal Social Problems.  Here is its abstract:

A criminal record can be a serious impediment to securing stable employment, with negative implications for the economic stability of individuals and their families. State policies intended to address this issue have had mixed results, however.  Using panel data from the Fragile Families study merged with longitudinal data on state-level policies, this study investigates the association between criminal record based employment discrimination policies and the employment of men both with and without criminal records.  These state policies broadly regulate what kinds of records can be legally used for hiring and licensing decisions, but have received little attention in prior research.  Findings indicate that men with criminal records were less likely to be working if they lived in states with more policies in place to regulate the legal use of those records.  Consistent with research linking policies regulating access to records to racial discrimination, black men living in protective states reported this employment penalty even if they did not have criminal records themselves.  Thus, these policies, at best, may fail to disrupt entrenched employment disparities and, at worst, may exacerbate racial discrimination.

December 11, 2021 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (0)

Sunday, November 28, 2021

Notable accounting of the "utter failure" of Massachusetts new expungement law

The Boston Globe has this great lengthy new piece about Massachusetts expungement practices headlined "‘An utter failure’: Law meant to clear old convictions, including for marijuana possession, helps few." I recommend the full piece, and here is how it starts:

When state legislators passed a criminal justice reform bill in 2018, Massachusetts residents won the ability to clear away certain criminal records — including convictions for marijuana possession and other now-legal activities — that can make it difficult to land a job, rent an apartment, and otherwise move on with life.

But three years later, only a fraction of those who are likely eligible for relief have had their records expunged. Massachusetts Probation Service data suggest that people who were previously arrested for, charged with, or convicted of a crime submitted just 2,186 petitions to expunge their records between January 2019 and July, of which 352 were eventually approved by state judges, or about 16 percent.  And of those 352, probation officials could definitively identify only 17 related to marijuana, a statistic they first began tracking (partially) in January.

While the state could not say exactly how many people are potentially eligible for expungements, advocates insist the pool runs into the tens of thousands.  For example, there were about 68,800 civil or criminal violations for marijuana possession issued in Massachusetts from 2000 through 2013, and 8,000-plus arrests for selling or possessing marijuana each year from 1995 to 2008, according to a Cannabis Control Commission research report and an ACLU analysis.  And cannabis charges are only one of a number of past incidents that can be wiped clean under the law after enough time has passed.

Critics attribute the low numbers of expungements to restrictive eligibility criteria, a lack of outreach to former defendants, disorganized state records, and a lengthy application process that ultimately gives judges wide latitude to reject even seemingly qualified requests with little explanation.

“Our expungement statute has been an utter failure,” said Katy Naples-Mitchell, an attorney at Harvard Law School’s Charles Hamilton Houston Institute for Race and Justice who specializes in criminal justice policies.  “We could be helping people on a much grander scale, but instead we’re seeing this paltry, piecemeal effort — and even that has been almost totally frustrated, in part by a bench that is often a lot less progressive than the legislation it’s charged with carrying out.”

The 2018 law bars the expungement of violent or sexual crimes, and practically any offense committed after the age of 21.  And, importantly, it prohibits anyone with more than one entry on their record from obtaining an expungement, unless the other offenses are motor vehicle violations that resulted in a fine of less than $50.  The only exceptions are special circumstances such as mistaken identity or conduct that is no longer illegal, as with marijuana, which together accounted for just 298 attempted petitions.

It also makes former defendants responsible for learning of the expungement program, determining their eligibility, tracking down the relevant records within the state’s patchwork of police and court filing systems, and submitting them along with a petition to the state probation department.  Probation officials reject the vast majority of expungement petitions they receive (around 79 percent) as ineligible under the law, suggesting there is widespread confusion among applicants about which charges can be cleared.

If an application is cleared by the probation department to go before a judge, the office of the district attorney who originally brought the charges is then given a chance to object.  And even when prosecutors endorse a petition, judges can still reject an expungement request on the grounds it would not be in the “best interests of justice.” Attorneys for former defendants say judges have used that clause to block dozens of otherwise eligible requests.

November 28, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Friday, November 19, 2021

"How families respond to the collateral consequences of incarceration and prisoner reentry"

The title of this post is the title of this new article authored by Brittany Hood and Shytierra Gaston in the journal Family Relations. Here is its abstract:

Objective

The goal of this research was to investigate the ways in which families respond to the collateral consequences of incarceration and reentry.

Background

Although scholars have extensively documented the collateral consequences of mass incarceration for individuals, far less attention has been paid to families, particularly the adult relatives of incarcerated or formerly incarcerated persons who are the primary social support agents.

Method

The current study draws from 24 in-depth, semistructured interviews with the parents, siblings, romantic partners, and other relatives of formerly incarcerated persons in an urban, mid-sized Midwestern city.  We employed a multistage qualitative analysis.

Results

The analysis revealed 10 stress-induced responses among families.  These responses largely involved individuals' self-reliance on their personal efficacy, some reflecting maladaptive responses, while having limited external or formal supports on which to rely when facing strains from familial incarceration.

Implication

Findings suggest that the significant socioeconomic and psychological tax families pay when supporting a justice system–involved relative compromises their well-being.  This study has the potential to inform treatment, research, practices, and policies involving families that are affected by incarceration.

November 19, 2021 in Collateral consequences, Offender Characteristics | Permalink | Comments (0)

Thursday, November 18, 2021

Interesting split Ohio Supreme Court ruling at the intersection of collateral consequences, gun rights and victims' rights

The Ohio Supreme Court today handed down an interesting decision today in State ex rel. Suwalksi v. Peeler, No. 2021-Ohio-4061. (Oh. Nov. 18, 2021) (available here), in a case concerning collateral consequences, gun rights and victims' rights.  Chief Justice O'Connor authored the majority opinion in the case, which starts this way:

Appellant, Roy Ewing, was convicted in Warren County of misdemeanor domestic violence for assaulting his then-wife, appellee, Jamie Suwalski.  As a result of that conviction, federal law prohibits Ewing from possessing a firearm, see 18 U.S.C. 922(g)(9), unless, as relevant in this case, the domestic-violence offense is one for which Ewing “has had [his] civil rights restored” under Ohio law, 18 U.S.C. 921(a)(33)(B)(ii).  Ewing filed in the Warren County Court of Common Pleas an application under R.C. 2923.14 for relief from his federal firearms disability, and Judge Robert W. Peeler, a judge of that court, granted Ewing’s application and issued an order restoring his firearms rights.

Suwalski sought a writ of prohibition in the Twelfth District Court of Appeals, seeking to prevent Judge Peeler’s order from being effective and invoking Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law.”  The court of appeals permitted Ewing to intervene.  The court of appeals granted the writ, holding that Judge Peeler lacked the judicial power to relieve Ewing of the federal firearms disability imposed by 18 U.S.C. 922(g)(9). 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24.

We agree that a writ of prohibition is warranted, but our rationale for that conclusion differs from that of the court of appeals.  Because Suwalski has established the elements necessary for a writ of prohibition, we affirm the judgment of the court of appeals.

Justice Kennedy authored the dissent, which was joined by two other Justices and starts this way:

Article I, Section 10a of the Ohio Constitution, also known as “Marsy’s Law,” enumerates specific rights afforded to victims of crime, including the rights “to be treated with fairness and respect for the victim’s safety, dignity and privacy” and “to reasonable protection from the accused or any person acting on behalf of the accused.” Marsy’s Law permits a victim of a crime to “petition the court of appeals for the applicable district” to vindicate his or her enumerated rights.  Article I, Section 10a(B), Ohio Constitution.

Relying on Marsy’s Law, appellee, Jamie Suwalski, filed a complaint for a writ of prohibition in the Twelfth District Court of Appeals against Warren County Court of Common Pleas Judge Robert W. Peeler, asserting that he violated her rights under Marsy’s Law when he purported to relieve her ex-husband, appellant, Roy Ewing, of a federal firearms disability.  The court of appeals granted the writ. 2020-Ohio-3233, 155 N.E.3d 47, ¶ 24-25.  However, based on the plain language of the enumerated rights established in Marsy’s Law, the rights that Suwalski has asserted are not implicated in the underlying relief-from-disability matter.  Suwalski has not claimed to have been treated without fairness and respect for her safety in the matter, and Ewing is no longer an accused person.  Because she asserts no other grounds establishing a right to the relief that she seeks in prohibition, I would reverse the judgment of the Twelfth District and dismiss the action. Because the majority does not, I dissent.

November 18, 2021 in Collateral consequences, Gun policy and sentencing, Victims' Rights At Sentencing | Permalink | Comments (3)

Friday, September 24, 2021

"Sex Offender Registration in a Pandemic"

The title of this post is the title of this new piece authored by Wayne Logan now posted on SSRN. Here is its abstract:

This Essay, part of a symposium examining how the COVID-19 pandemic has affected the criminal justice system, addresses whether, and how, state and local governments maintained their requirement that individuals convicted of sex offenses meet with authorities in person to confirm and update their registry information.  Focusing in particular on the first months of 2020, the tale told highlights the distinctiveness of registration: while many governmental operations were suspended, or went online, in-person registration very often persisted.  As a result, registrants were required to travel to a government office (perhaps by public transport), wait in a closed space very possibly with poor ventilation, sometimes for extended periods of time, where social distancing might not have been feasible.  If they failed to satisfy the registration requirement they faced significant criminal punishment.

The in-person registration requirement remained in effect even though registrants often share many of the same health and age-related characteristics of the broader at-risk population, risks often aggravated by sanitary problems associated with chronic homelessness (e.g., lack of access to soap for hand washing) that registrants often experience.  As a result, in-person registration posed the threat of registrants transmitting and contracting the virus, affecting not only the registrants themselves, but also friends, family, and employers, as well as the governmental authorities with whom they had to interact.  As states and localities undertook aggressive measures to stem the spread of COVID-19, the persistence of in-person registration provides a stark reminder of the continued exceptionalism of registration and the population it targets (individuals convicted of sex offenses).

The Essay explores the reasons accounting for this distinctiveness and provides some thoughts on how and why in-person registration persisted in the early stages of the pandemic when so many other governmental operations were suspended or significantly modified.

September 24, 2021 in Collateral consequences, Criminal Sentences Alternatives, Impact of the coronavirus on criminal justice, Sex Offender Sentencing | Permalink | Comments (3)

Wednesday, August 04, 2021

"Newspaper Expungement"

The title of this post is the title of this new essay by Brian Murray now available via sSRN. Here is its abstract:

Expungement law has made great strides over the past two decades, with state-level reforms broadening the types of criminal records eligible for expungement.  Further, expungement has been extended beyond arrestees to those who have been convicted, thereby promising to alleviate some of the burdens of reentry.  Nevertheless, expungement remedies only touch officially held information or public data possessed by different branches of government.  This means that private actors, if they possess the information, are beyond the reach of expungement law.  Such actors, whether individuals, background check companies, newspapers, or other firms, enjoy the ability to continue to hold and use such information.  This results in a whack-a-mole problem for the successful expungement petitioner who has achieved the relief that the state allows, only to see its efficacy thwarted by private activity with the same information.

Recently, one private actor, newspapers, has begun to set up processes that resemble formal expungement.  Newspaper editors have responded to the limits of formal expungement by constructing their own procedures for evaluating whether to erase, seal, or alter information that is damaging to the reputation of those who have encountered the criminal justice system.  This development has occurred on the heels of the right to be forgotten movement in Europe, which has gained little traction in the United States.  This Essay contextualizes the phenomenon of newspaper expungement, situating it within a larger legal backdrop, before describing the stated activities and aspirations of some of the newspapers themselves. It concludes by charting how such practices relate to broader critiques and goals of criminal justice reform.

August 4, 2021 in Collateral consequences, Reentry and community supervision | Permalink | Comments (2)

Sunday, July 25, 2021

"The Boundary Problem of Rights Restoration"

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

By conditioning restoration of felons’ political rights on the repayment of legal financial obligations, states have kept millions of potential voters from participating politically — profoundly altering the shape of the American electorate. Courts have universally upheld the practice by treating the conferral of political rights to nonmembers of the political community as an exercise of legislative grace subject to few constraints, while critics argue that the practice conditions political participation on wealth status and is therefore subject to heightened review.

This Essay traces the disagreement back to a first-order question that has gone overlooked by both sides: how should the juridical status of a disenfranchised citizen’s “lost” rights be understood?  The conventional position, which I call “depoliticization,” imagines that a sentence of disenfranchisement casts a citizen outside the democratic community, thereby voiding all prospective constitutional interests predicated on political membership. However, disenfranchisement is better characterized as the subordination — not the wholesale elimination — of a citizen’s constitutional interests in voting or otherwise participating politically, just as incarceration suppresses but does not eliminate a person’s constitutional interest in physical liberty.  It follows that rights restoration is not the conferral of a new statutory benefit to a political outsider, as courts have assumed, but instead marks the endpoint of state-sustained subordination.

Redescribing the disenfranchisement-to-restoration process in this way aligns with the Richardson Court’s reading of Section 2 of the Fourteenth Amendment, resolves a number of doctrinal contradictions, and — most critically for future litigation challenges — sharpens the constitutional symmetry between fee-based restoration and paradigmatic forms of wealth discrimination like poll taxes and debtors’ prisons.  By framing re-enfranchisement as a constitutional default and drawing attention to disenfranchised citizens’ enduring claim to political presence, this account may also be of use in popular restoration efforts currently underway outside the courts.

July 25, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Thursday, July 01, 2021

"Sex Offender Registration and Community Notification Laws: An Empirical Evaluation"

The title of this post is the title of this new book of essays.  I reached out to the editors of this text to provide a bit of background and context for this new volume:

Sex offender registration and community notification (SORN) surely numbers among the most significant social control methods of the past several decades. Although the Supreme Court in 2003 rejected two constitutional challenges to SORN laws (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe), of late courts, including the Sixth Circuit Court of Appeals (Does v. Snyder, 2016), have cast a more critical eye, invalidating new generation SORN laws that have become more onerous and expansive in their reach. 

Since its origin in the early 1990s, basic questions have existed regarding the effects of SORN, including whether it actually achieves its intended purpose of reducing sexual offending. Cambridge University Press has just published a new book, edited by Professors Wayne A. Logan and J.J. Prescott, containing chapters from the nation’s leading social science researchers on the many important empirical questions surrounding SORN.  As readers might be aware, the American Law Institute, as part of its overhaul of the Model Penal Code’s sex offense-related provisions, has tentatively approved a slate of reforms advocating a vastly reduced approach to registration and discontinuation of community notification.  The book promises to be an invaluable resource as policy-makers begin to consider whether SORN laws should be retooled or perhaps done away with altogether. Here is the SSRN link and abstract for the book:

Despite being in existence for over a quarter century, costing multiple millions of dollars and affecting the lives of hundreds of thousands of individuals, sex offender registration and notification (SORN) laws have yet to be subject to a book-length treatment of their empirical dimensions, examining their premises, coverage, and impact on public safety.  This volume, edited by Professors Wayne A. Logan and J.J. Prescott, assembles the leading researchers in the field to provide an in-depth look at what have come to be known as “Megan’s Laws,” offering a social science-based analysis of one of the most important and controversial criminal justice system initiatives undertaken in modern times. The editors attach the title page, table of contents, and preface of the volume.

July 1, 2021 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (0)

Saturday, June 26, 2021

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

The title of this post is the title of this notable paper authored by Margaret Colgate Love and David Schlussel now available via SSRN.  Here is its abstract:

This report from the Collateral Consequences Resource Center summarizes legislative efforts and executive orders in 2020 to reduce barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life.  In 2020, 32 states, D.C., and the federal government enacted 106 bills, approved five ballot initiatives, and issued four executive orders to restore rights and opportunities to people with a record.  While states enacted fewer laws than in the preceding two years, evidently because of the disruptions caused by the pandemic, the fact that there was still considerable progress is testament to a genuine and enduring public commitment to a reintegration agenda. The report provides topical discussions of the reforms, a legislative report card of the most and least productive states, and an appendix documenting the laws by jurisdiction.

June 26, 2021 in Collateral consequences, Impact of the coronavirus on criminal justice, Who Sentences | Permalink | Comments (1)

Friday, June 18, 2021

"The Mark of Policing: Race and Criminal Records"

The title of this post is the title of this recent piece authored by Eisha Jain published in the Stanford Law Review Online. Here is its abstract:

This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records.  Arrests alone — regardless of whether they result in convictions — create criminal records.  Yet because the literature on criminal records most often focuses on prisoner reentry and on the consequences of criminal conviction, it is easy to overlook the connections between policing decisions and collateral consequences.  This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing.  The marking framework recognizes that the government creates a negative credential every time it creates a record of arrest as well as conviction.  Such records, in turn, trigger cascading consequences for employment, housing, immigration, and a host of other areas.  The credentialing process matters because it enables and conceals race-based discrimination, and because a focus on the formal sentence often renders this discrimination invisible.  This Essay considers how adopting a credentialing framework offers a way to surface, and ultimately to address, how race-based policing leaves lasting marks on over-policed communities.

June 18, 2021 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Friday, June 04, 2021

Encouraging examples of democracy expanding for those previously disenfranchised

I just saw this recent Stateline piece headlined "More States Expand the Ballot to Previously Incarcerated," which provides some positivity to close out this week.  Here are excerpts:

Building off two decades of advocacy work and the recent national push to overhaul the criminal justice system, 20 states now restore voting rights for people with felony convictions when they leave prison.  Energy around the restoration of voting rights continues to swell. But there remains sustained opposition, as critics insist people with felony convictions pay all fines and serve the entirety of their parole before regaining the right to vote.

New York and Washington enacted laws in the past two months that automatically restore voting rights to people convicted of felonies after they are released from prison. Virginia Gov. Ralph Northam, a Democrat, signed an executive order in March that restored voting rights for more than 69,000 eligible Virginians.  A proposed amendment to the Virginia state constitution could make that change permanent.  The legislature passed the amendment this session.  Lawmakers will have to pass it again in 2022 before it heads to voters for final approval.

A holdover from the 19th century, 5.2 million Americans are disenfranchised because of their felony convictions — some 2.3% of the nation’s voting age population, according to a 2020 count by the Sentencing Project, a Washington, D.C.-based organization that lobbies for the restoration of voting rights.  In 11 states, people with felony convictions lose their voting rights indefinitely, sometimes having to wait for a gubernatorial pardon, or navigate a gauntlet of waiting periods, fees and petitions.

Some critics of these new laws say people with felony convictions should serve the entirety of their sentences, including parole, probation and fines, before being able to cast a ballot again.  However, proponents of voting rights restoration after prison think accessing the ballot connects people with society, giving them ownership over their lives and the community, and possibly dissuading them from committing crimes in the future....

Certain states are going beyond reinstating voting rights for those with felony convictions once they leave prison. Some are scrapping laws that disenfranchise those voters in the first place.  In Oregon, lawmakers are debating measures that would amend a law that strips voting rights from people with felony convictions.  The District of Columbia, Maine and Vermont do not disenfranchise those with felony convictions even while in prison. Illinois also is debating legislation that would repeal the state’s ban on voting by incarcerated people.

The restoration of voting rights has drawn some bipartisan support. Last year, Iowa Gov. Kim Reynolds, a Republican, signed an executive order giving the right to vote to thousands of residents with felony convictions after completing parole or probation.  The legislature is working to amend the state’s constitution to make this change permanent.

In Kentucky, Republican state Rep. Jason Nemes is one of the co-sponsors of bipartisan legislation that would amend the state constitution to automatically restore voting rights for people with certain felony convictions after they complete their imprisonment, probation or parole.  Denying them the right to vote, he said, can make people attempting to rejoin society feel ostracized.  “When someone has committed an offense against the community and they served their time, we want that person back in the community,” he told Stateline.  “Now it’s time for you to take a sense of ownership and responsibility for your neighbors.” If the measure gets legislative approval, the proposed amendment will go before voters on the November 2022 ballot.

This proposal comes more than a year after Democratic Gov. Andy Beshear signed an executive order in 2019 that restored voting rights to an estimated 140,000 Kentuckians with nonviolent felony convictions who have completed their sentences.  A Mason-Dixon Polling & Strategy poll released in February shows more than two-thirds of Kentuckians support the automatic restoration of voting rights for people who finished their sentences.

But there is still opposition by many lawmakers around the country, most of them Republican, who say that some crimes are so heinous they merit lasting punishment such as disenfranchisement.  Others say that people with felony convictions should complete probation and parole periods, along with paying all fines, before they get their rights restored.  “Beyond voting rights, first comes responsibility,” said Washington state Rep. Jenny Graham, a Republican, during floor debate in February.  “When somebody makes a decision to harm or kill another individual, there is accountability that is due.”

After Florida voters passed a ballot initiative restoring voting rights to people convicted of felonies after they leave prison, Republican lawmakers, led by Gov. Ron DeSantis, rolled the measure partially back, insisting that people pay all fines before getting their rights returned.  This caused widespread confusion for many people who were formerly incarcerated, leaving them unsure whether they could vote in November’s presidential election. 

The Florida confusion illustrated the ongoing hurdles for voting rights activists: Once these laws are enacted, hurdles remain.  For example, informing recently released residents about their voting rights often falls on resource-limited community organizations, said Nicole Porter, director of advocacy at the Sentencing Project....

Lawmakers in Maryland this year introduced legislation that would require prison staff to provide voter registration information upon residents’ release from prison. It passed both houses of the Maryland legislature, though the chambers must now reconcile differences between their bills.  Such requirements are part of New York’s recent law. Local jails in Cook County, Illinois; Washington, D.C.; Los Angeles; and Philadelphia have implemented programs in recent years to inform incarcerated people of their voting rights and encourage voter registration, Porter said.

June 4, 2021 in Collateral consequences, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

Thursday, May 27, 2021

"The Persistence of Penal Disenfranchisement: Suppressing Votes the Old Fashioned Way"

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

This article discusses penal disenfranchisement, the practice of prohibiting millions of American citizens who have been convicted of crimes from voting.  Most states have laws providing for penal disenfranchisement.  The article argues that barring individuals from voting by reason of a prior criminal conviction is both unjustified and counterproductive. The public interest is best served by integrating individuals who have offended into society, and this interest is not served by denying such individuals the right to vote.

The article explores the history of penal disenfranchisement and the various reasons that have been offered over the years in support of it, both non-punitive and punitive, and explains why none are persuasive.  Further, the piece argues that the practice of penal disenfranchisement is particularly harmful to the interests of the African-American community.  Finally, the article discusses whether there are any possible means of relief for people disenfranchised because of a prior conviction.  With respect to legal remedies, the article concludes that Supreme Court precedent regarding the issue unfortunately is unhelpful.  The article also finds that at the present time, it is unlikely that a great deal of progress is likely to be made through legislation.

May 27, 2021 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (5)

Sunday, May 16, 2021

"Drug Supervision"

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

Criticism of harsh drug sentencing laws in the United States typically focuses on long prison sentences.  But our criminal justice system also inflicts a significant volume of drug-related punishment through community supervision — probation, parole, and supervised release.  Over one million people are under supervision due to a drug conviction, and drug violations are among the most common reasons for revocations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.

In this Article, I show that drug sentencing is central to the federal system of supervised release.  While Congress created supervised release as a program of transitional support for former prisoners, the system has instead become a drug- control network focused on public safety.  The mandatory revocation provision at 18 U.S.C. § 3583(g) in particular was designed to immediately imprison people with drug addiction at the first sign of drug use.  This targeting of drug activity for enhanced punishment is so extreme that it violates the jury right under the Supreme Court’s 2019 decision in United States v. Haymond.

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

Saturday, May 08, 2021

"Encouraging Desistance from Crime"

The title of this post is the title of this extended literature review authored by Jennifer Doleac and now available via SSRN discussing lots of empirical research that may not be familiar, but should be of great interest, to lawyers and advocates.  Here is its abstract:

Half of individuals released from prison in the United States will be re-incarcerated within three years, creating an incarceration cycle that is detrimental to individuals, families, and communities.  There is tremendous public interest in ending this cycle, and public policies can help or hinder the reintegration of those released from jail and prison.  This review summarizes the existing empirical evidence on how to intervene with existing offenders to reduce criminal behavior and improve social welfare.

May 8, 2021 in Collateral consequences, Detailed sentencing data, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (0)

Friday, May 07, 2021

"Marijuana legalization and expungement in early 2021"

Marijuana-Record-Relief_for-socialThe title of this post is the title of this great new report authored by David Schlussel that was assisted in various ways by folks at Collateral Consequences Resource Center and Drug Enforcement and Policy Center (DEPC) at The Ohio State University Moritz College of Law.  Here is the abstract to the report:

Early 2021 was an unprecedented period for policymaking at the intersection of marijuana legalization and criminal record reform. Between February and April, four states enacted legislation legalizing recreational marijuana.  In conjunction with legalization, these states (New Jersey, New Mexico, New York, and Virginia) also enacted innovative criminal policy reforms — including the automatic expungement of an exceptionally broad array of past marijuana convictions — along with a variety of social equity provisions.

These new laws mitigate past harms of the legal system while also supporting economic and social opportunity for people with a record in several ways.  First, in all four states, expansive automatic expungement provisions will remove the burden of a criminal record from many individuals, while raising the bar on standards for marijuana record relief nationwide.  These states also incorporated more general criminal record reforms into legalization, benefiting people with different types of criminal records in their efforts to reintegrate into society.  Finally, these four states specifically addressed racial disparities in marijuana criminalization by directing tax revenue and business opportunities for legal marijuana to individuals and communities disproportionately affected by criminal law enforcement.  This report and an accompanying infographic summarize the groundbreaking criminal reforms enacted this year as part of marijuana legalization and situate them in the national context. 

The infographic referenced here as well as other links and materials related to this topic can also be found in the report pages for both DEPC here and CCRC here.  In addition, this recent PBS News Hour piece, headlined "As more states legalize marijuana, people with drug convictions want their records cleared," discusses these issues further.

A few recent related posts from Marijuana Law, Policy & Reform:

May 7, 2021 in Collateral consequences, Sentences Reconsidered | Permalink | Comments (1)

Thursday, April 29, 2021

"Reckless Lawmaking: How Debt-Based Driver's License Suspension Laws Impose Harm and Waste Resources"

The title of this post is the title of this new ACLU research report.  Here is the start of its executive summary:

There is a growing movement by advocates, organizers, and lawmakers to address the ineffective and unfair system and collection of court ordered monetary obligations, or “fines and fees.”  The system of fines and fees is inextricably linked to over-policing, criminalization, and mass incarceration.  While it is nearly impossible to know the exact number of people charged with fines and fees on an annual basis due in part to a lack of standardized data collection policies, a recent study estimated there could be well over 30 million cases for misdemeanors, violations, and infractions punishable by fines and fees filed per year.  That number does not even include civil traffic offenses.  The punishment for such offenses may include hundreds or thousands of dollars in fines and fees.

When people cannot afford to pay their fines and fees on time, a warrant may be issued for their arrest and/ or their driver’s license may be suspended.  People arrested on such warrants are typically brought to jail and held until they can see a judge.  If they still cannot pay, the cycle of criminalization continues.  The system of fines and fees not only criminalizes poverty, but also exacerbates racial disparities in policing and prosecution.

Driver’s license suspension for failure to pay or failure to appear in court (i.e. debt-based suspension) is one of the most commonly imposed sanctions.  This penalty is particularly harmful because of the sheer number of people affected and because of the way these suspensions lead to further penalties.  The severity of the punishment far outweighs the underlying offense, which may not even be related to driving.  Currently, all but three states (Idaho, Mississippi, and Virginia) suspend for either failure to pay and/or failure to appear.  As a result, at least 11 million people are not allowed to drive simply because they cannot afford to pay fines and fees, while people who can afford to pay are spared. And the brunt of these policies falls disproportionately on people of color, contributing to existing racial disparities in the criminal legal system.

Since 2017, California, Hawai′i, Idaho, Maine, Maryland, Michigan, Mississippi, Montana, New York, Oregon, Texas, Virginia, West Virginia, and D.C. have enacted legislative reforms to curb the practice of debt-based suspensions for either failure to pay or failure to appear.  As of the publication of this report, similar legislation has been proposed in 11 additional states.  Related legislation has also been introduced at the federal level.

Proposed legislation to end the harmful practice of debt-based suspensions is often met with a challenge: overcoming fiscal notes that mistakenly predict significant negative fiscal impacts from ending debt-based driver’s license suspensions.  Fiscal notes for bills to end debt-based driver’s license suspensions tend to rely on assumptions based on imprecise data and more importantly, do not account for a number of other relevant factors that could offset the revenue generated from fines and fees such as the cost of collecting and enforcing payment.  Furthermore, fiscal notes tend to deprioritize, and in some cases ignore altogether, the toll debt-based suspensions have on people affected by this policy.

In this report we highlight the individual and systemic costs that are often ignored in these types of fines and fees reform bills.  Specifically, this report discusses the penalty of suspending driver’s licenses as a consequence for unpaid fines and fees and the devastating consequences it imposes on impacted individuals.  We also make recommendations for lawmakers to more accurately consider the value of continuing to fund government services through predatory fines and fees in light of the consequent harm.

April 29, 2021 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Reentry and community supervision | Permalink | Comments (1)

Saturday, April 24, 2021

"Housing the Decarcerated"

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

The coronavirus pandemic exposed an issue at the intersection of the public health, carceral and housing crises — the lack of housing for the recently decarcerated.  Early in the pandemic calls came to release incarcerated persons and cease arrests in light of the risks posed by failing to be able to socially distance while incarcerated.  At the same time, the pandemic forced a national conversation about the sheer number of unhoused persons in our country.  The pandemic created an emergent argument for both broad scale decarceration and publicly funded housing.  The practical process of securing housing for the recently decarcerated, however, is fraught because of what is described in this article as the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court case, HUD v. Rucker.

The culture of exclusion is arbitrated by local housing authorities and works on three levels — eligibility, enforcement and set asides.  As a result, formerly incarcerated persons are often rejected outright during the application process.  In addition, persons who live in subsidized housing and are alleged to be engaged in or associated with anyone who is alleged to have participated in criminal conduct can be evicted making subsidized housing itself a pipeline into the prison industrial complex. 

This Article seeks to motivate a pathway towards housing the decarcerated by ending the culture of exclusion.  In Part I, the article briefly updates the status of the prison abolition and right to housing movements. Part II builds on the idea that stable housing for formerly incarcerated persons is essential to the prison abolition movement’s success by reviewing summary results from pilot programs in New York, Washington and Michigan.  Part III suggests that “one strike” policies, have created a broader “culture of exclusion,” which the Supreme Court validated in Rucker, further burdening the process of reentry for the recently decarcerated.  Finally, Part IV, prescribes policy changes that are essential to housing the decarcerated even beyond repealing the ADA and overturning Rucker, including transcending the narrative of innocence, directing PHA discretion to admit not deny and utilizing civil rights laws to equalize voucher holders.

April 24, 2021 in Collateral consequences, Impact of the coronavirus on criminal justice, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Wednesday, April 07, 2021

"When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime"

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

In Romer v. Evans the Court drew a constitutional distinction between civil laws enacted for a broad public purpose that justifies "the incidental disadvantages they impose on certain persons," and laws that have "the peculiar property of imposing a broad and undifferentiated disability on a single named group".  Laws of the second kind "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."  The difficulty lies in deciding when the inference properly becomes a conclusion that the law violates the Equal Protection Clause.  The more sweeping and unusual the burdens imposed on the targeted group, the more difficult it may be to discern a common policy explaining them other than the forbidden purpose of harming their targets.  At some point the animus inference may be strong enough to require scrutiny of the laws' purported rationale, including whether it has any actual basis in fact.

An astonishingly broad array of burdens are imposed today on anyone ever convicted of almost any sexual offense of any kind or seriousness, including but extending far beyond their simple inclusion in publicized websites listing "sex offenders."  No similar regime has ever been imposed on any other group of law-abiding former felons who have fully served the sentence for the crime they committed years earlier.  This "registry regime" raises as strong an inference of animus as there was in any of the four cases in which the Court sustained such claims, and the claim that it is justified by the clearly valid purpose of reducing the incidence of sexual offending does not survive the scrutiny of scientific studies which find the registry ineffective and often counterproductive.  Nor does the fact that many sexual offenses are never reported to law enforcement authorities cast any doubt on the validity of those studies or on the legal or policy analyses relying on them.  Much of the registry regime must therefore fall under an Anti-Animus principle.

April 7, 2021 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, April 06, 2021

"A Reintegration Agenda for the 117th Congress: Criminal Record Relief, Federal Benefits, & Employment"

The title of this post is the title of this notable new short report from the Collateral Consequences Resource Center.  This blog posting at CCRC, titled "Second Chance Month: A Federal Reintegration Agenda" provides some background on the report.  Here is the report's introduction:

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

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

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

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

  • Record relief: Authorize federal courts to expunge certain records, grant certificates of relief, and increase use to deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; and, provide relief from firearms dispossession.
  • Federal public benefits: End record-related restrictions in financial assistance to small businesses, SNAP and TANF benefits, and student aid.
  • Employment & licensing: Establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: Allow voting in federal elections regardless of a person's criminal record unless currently incarcerated for a felony conviction.

April 6, 2021 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Saturday, March 27, 2021

Great coverage of recent "second chance" reforms and scholarship at CCRC

Regular readers are used to my regular reminders to regularly check out work over at the Collateral Consequences Resource Center.  Doing so recently brings up a number of posts over the last month or so covering recent "second chance" reforms and scholarship:

March 27, 2021 in Collateral consequences, Criminal Sentences Alternatives, Recommended reading, Reentry and community supervision | Permalink | Comments (1)

Tuesday, March 23, 2021

"The Gender of Gideon"

The title of this post is the title of this notable new paper authored by Jessica Steinberg and Kathryn Sabbeth now available via SSRN. Here is its abstract:

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men.  In this Article, we present original data analysis, which demonstrates that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches.  The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests.  As this Article shows, the gendered allocation of the right to counsel has individual and systemic consequences that play an underappreciated role in perpetuating gender inequality.

We revisit well-known doctrine, and, in contrast to all prior literature, we place gender at the center of the Court’s jurisprudence on the right to counsel.  Liberty principles have been paramount in the Court’s opinions, but the liberty interests of women have been devalued.  In Lassiter v. Department of Social Services, the Court refused to recognize the termination of a Black mother’s relationship with her child as deserving the right to counsel.  Prior scholars have shown that the Gideon Court aimed to protect Black men from abuses of state power, but protecting Black women from such abuse is nowhere in the Court’s jurisprudence.

Since Lassiter, the Court has refused to recognize a constitutional guarantee of representation for civil defendants with fundamental interests at stake, and the largest categories of these cases — family law, eviction, and debt collection — all disproportionately affect Black women.  As we show, the gendered deprivation of a right to counsel relegates women to a secondary legal status and impinges on the functioning of American democracy.  Drawing on the example of housing deprivation, a highly visible collateral effect of the pandemic, we illustrate how lawyerless defendants are now the norm in the civil justice system, with women most severely impacted by this crisis.  First, their individual rights are routinely trampled.  Powerful governmental and private adversaries of these women have captured the civil courts, with the result that judges regularly fail to enforce even well-established law.  Second, without lawyers, appeals are scarce, and the law fails to evolve in areas of particular importance to women’s lives.  Third, women’s ability to act in the world, protected by the rule of law, has been disproportionately compromised, resulting in women’s entrenched subordination.  Finally, without lawyers to serve as watchdogs in the civil courts, constitutional doctrine has rendered women’s most important legal problems invisible.  This has undermined opportunities to identify the system’s shortcomings and agitate for reform.

March 23, 2021 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Thursday, March 04, 2021

"The Color of Collateral Damage: The Mutilating Impact of Collateral Consequences on the Black Community and the Myth of Informed Consent"

The title of this post is the title of this new paper authored by Trevor Shoels and recently made available on SSRN.  Here is its abstract:

The rights of the convicted have long been constrained by the relentless imposition of collateral consequences of criminal convictions.  More specifically, collateral consequences of drug convictions have a disparate impact on the Black community due to over-policing of Black neighborhoods.  Consequently, Black people are over-prosecuted, leading to more convictions and ultimately making them the primary victim of collateral consequences. Certain collateral consequences almost exclusively affect Black people and are strikingly similar to Jim Crow laws.  Similar to Jim Crow laws, these collateral consequences almost exclusively prohibit the Black convicted from public housing, welfare assistance, financial aid, the ability to vote, the ability to receive certain jobs and licenses, and more.

Collateral consequences are considered categorically different from forms of direct punishment like fines, jail time, and probation.  Due to this deceptive distinction, there is no notice requirement for collateral consequences at the plea stage.  Thus, many defendants will accept deals for guilty pleas, completely unaware that collateral consequences will affect them for what could be the rest of their lives.  In regard to this mockery of justice, this Article implores the argument that the informed consent requirement, as it stands, is a myth.

This article discusses the constitutional implications surrounding the prejudicial imposition of collateral consequences and the blurred distinction made between collateral consequences and direct punishment.  In doing so, this article proposes (1) Congress employ a legislative overhaul to remove prejudicial collateral consequences (2) Supreme Court change the standard of judicial review from the rational basis test to strict scrutiny and extend their holding in Padilla v. Kentucky to apply to all collateral consequences, and (3) Federal and State legislators enact legislation aimed at placing procedural safeguards — like a notice requirement — at the plea stage.

March 4, 2021 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (0)

Sunday, February 21, 2021

"Sex Offenders and the Free Exercise of Religion"

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

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

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

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

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

Thursday, February 18, 2021

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

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

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

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

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

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

Tuesday, February 16, 2021

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

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

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

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

Monday, February 08, 2021

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

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

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

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

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

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

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

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

Sunday, February 07, 2021

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

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

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

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

Thursday, February 04, 2021

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

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

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

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

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