Sentencing Law and Policy

"Voices Of Redemption: A National Survey Of People With Records"

The title of this post is the title of this notable recent report from the Alliance for Safety and Justice.  Here is its executive summary:

States across the nation continue to grapple with the need for changes in our criminal justice and public safety systems.  There is increasing recognition that over-reliance on incarceration without enough prevention and treatment locks communities into cycles of crime.

The voices and experiences of people who are impacted by crime and incarceration are critical to informing the urgent debate on public safety and defining the best path forward to stop the cycle of crime and promote safety and justice.

Understanding the short and long-term impacts of these policies, however — particularly the impacts of post-sentencing policies on people with records — has been alarmingly limited.

To help decision-makers understand these impacts, in March, 2023, Alliance for Safety and Justice commissioned a first-of-its-kind National Survey of People with Records.  A nationally representative sample of 4,060 people across the country were contacted.  From that pool, 554 people who had been arrested, convicted, or incarcerated were interviewed about their experiences with, and impacts of contact with the criminal justice system.

The 2023 National Survey of People with Records reveals that the majority of people with records have suffered significant barriers to economic mobility as a result of their record, nearly all have been victims of crime who did not receive support in the aftermath of harm, and most experienced crisis prior to arrest.

The following key findings from this survey point to opportunities for further research and reform to advance policies that balance accountability, prevention, rehabilitation, and second chances that keep all communities safe.

The Sentencing Project releases short report on "Increasing Public Safety by Restoring Voting Rights"

I received via email this morning this eight-page document from The Sentencing Project titled "Increasing Public Safety by Restoring Voting Rights."  Here is how the document gets started:

Restoring voting rights for people with felony convictions can improve public safety.  Voting is among a range of prosocial behaviors in which justice-impacted persons can partake, like getting a college education, that is associated with reduced criminal conduct.  Among Americans with a history of criminal legal system involvement, having the right to vote or the act of voting is related to reduced recidivism.  The re-entry process after incarceration improves because restoring voting rights gives citizens the sense that their voice can be heard in the political process, and contributes to building an individual’s positive identity as a community member.

The studies featured in this brief underscore the beneficial impacts of restoring voting rights for all Americans who have been convicted of a felony, whether they are inside or outside of prison.

"Is Expanding Eligibility Enough?: Improving Record Sealing Access and Transparency in Ohio Courts"

The title of this post is the title of this notable new report authored by Jana Hrdinova and now available via SSRN. (Through my work at the Drug Enforcement and Policy Center, I was able to review a prior draft of this important paper about record sealing data.)  Here is the paper's abstract:

The collateral consequences stemming from a criminal conviction are far reaching and long-lasting, affecting people’s ability to obtain housing, diminishing employment opportunities, and limiting educational attainment.  In the last decade, some research has shown that record sealing and record expungement can have significant benefits for individuals through increased economic prosperity and for communities through reduced recidivism.  Unfortunately, research also indicates that in states that require individuals to file a petition to get their record sealed, only a small percentage of eligible individuals take advantage of this remedy.

Over the last decade, the Ohio General Assembly significantly broadened eligibility criteria for record sealing and expungement.  But whether laws focused solely on broadening eligibility have a significant impact on record sealing utilization remains an understudied topic.  The data from our research indicates a 55% increase in the number of granted record sealing applications in the state of Ohio from 2011 to 2021, but also suggests a relatively low rate of uptake when compared to the potential pool of eligible residents.  Additionally, we report on the lack of jurisdiction specific data resulting in inability to compare utilization rate across jurisdictions, as well as lack of accurate and up to date information about eligibility criteria and record sealing forms on court websites. In conclusion we provide a set of recommendations for addressing identified challenges.

"Senate Bill 288: Implications for the Criminal Justice System in Ohio"

The title of this post is the title of this notable new webinar scheduled for next week (April 12 starting at 12noon), which has been organized by Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law.  Here is a bit of the backstory and the panel lineup:

Over the last decade, the Ohio General Assembly has expanded the eligibility criteria for record sealing on several occasions.  The passage of the criminal justice omnibus Senate Bill 288, signed into law by Governor DeWine in January 2023, continues this trend by further expanding eligibility and, for the first time ever, allowing for prosecutor-initiated record sealing on behalf of individuals with certain types of offenses.  Other long-fought-for reforms in SB 288 include, but are not limited to, expansion of expungement provisions, increasing the maximum amount of earned credit for persons in prison, and a host of other provisions modifying crimes and corrections law in Ohio.

Join the Drug Enforcement and Policy Center for a multi-panel event on Ohio Senate Bill 288 that will bring together criminal justice experts and advocates for a discussion of some of the key provisions of SB288 and their likely impact as well as the opportunities and challenges of government-initiated record sealing, and its likely adoption by Ohio prosecutors.

Panel 1: Understanding SB288: Key Provisions and Likely Impacts

noon - 1:10 p.m.

• Louis Tobin, Executive Director, Ohio Prosecuting Attorneys Association
• Senator Nathan Manning, Ohio 13th Senate District
• Alex Jones, Criminal Justice Counsel, Ohio Criminal Sentencing Commission
• Jocelyn Rosnick, Policy Director, ACLU of Ohio
• Kevin Werner, Policy Director, Ohio Justice & Policy Center
• Douglas A. Berman, Newton D. Baker-Baker & Hostetler Chair in Law; Executive Director of the Drug Enforcement and Policy Center (moderator)
   

Panel 2: Prosecutor Initiated Record Sealing

1:15 - 2:30 p.m. 

• Mark Griffin, Law Director, City of Cleveland
• Tori Edwards, Legal Department Staff Attorney, Franklin County Municipal Court
• Pam Lattimore, Senior Director for Research Development, Division for Applied Justice Research,  RTI International
• Sara Andrews, Executive Director, Ohio Criminal Sentencing Commission (moderator)

More details and a simple registation form can be found at this link.

"Criminal Justice Record Clearing: An Analysis from Two States"

The title of this post is the title of this new paper authored by Matthew Stubenberg, Renee Danser and D. James Greiner now available via SSRN.  Here is its abstract:

Millions in the United States have criminal records.  Many of these records are eligible for some sort of concealment from public view, commonly known as expungement or sealing. In this paper, we analyzed criminal records in four counties in Pennsylvania and several counties in Kansas to determine the number of records eligible for such remedies.  In Pennsylvania, the analysis included both expungement, defined here as petition-based suppression of information, and sealing, defined here as suppression that the government (usually the judicial system) undertakes without petitions.  Kansas law only allows for petition-based expungement.  Our analysis found approximately 100,000 charges eligible for expungement in Kansas and 180,000 charges eligible for expungement in Pennsylvania, supporting prior research that identified a so-called “second chance gap.”

Our primary contribution, however, is an analysis of which statutory reforms would provide the biggest bang for the buck, i.e., would render the largest number of cases or charges eligible for a record-clearing remedy.  We found, for example, that elimination of criteria related to legally imposed financial obligations (“LIFOs”) would render a surprising number of files eligible for information suppression.  In addition, our analysis identified approximately 200,000 charges that were eligible for sealing in Pennsylvania but were still available to the public online at the time of the data retrieval, suggesting that even when the government undertakes information suppression from its own databases, it finds the task challenging.  Finally, our analysis examined why certain records were not eligible for expungement or sealing in each state.  This additional analysis will inform legislatures and activists where their efforts can best be put to use.

Five months after mass marijuana possession pardons, DOJ announces application form for certificates

Back in October 2022, as detailed here, Prez Biden granted a mass pardon to "all current United States citizens and lawful permanent residents who committed the offense of simple possession of marijuana in violation of the Controlled Substances Act, as currently codified at 21 U.S.C. 844 and as previously codified elsewhere in the United States Code, or in violation of D.C. Code 48–904.01(d)(1), on or before the date of this proclamation."  But, perhaps problematically for some, a mass pardon done not readily come with the certificate or other official documentation that individuals often received when receiving a more traditional, individualized grant of clemency. 

To address this issue, I had heard that the Pardon Attorney office in the US Justice Department was working on a process to issue pardon documentation.  And, this past Friday, this DOJ press release addressed this matter under the heading "Justice Department Announces Application Form for Marijuana Pardon Certificates."  Here are the particulars (with links from the original):

[T]he Justice Department is launching an application for eligible individuals to receive certificate of proof that they were pardoned under the Oct. 6, 2022, proclamation by President Biden.  On Oct. 6, 2022, the President announced a full, unconditional and categorical pardon for prior federal and D.C. offenses of simple possession of marijuana.  The President’s pardon lifts barriers to housing, employment and educational opportunities for thousands of people with those prior convictions. President Biden directed the Justice Department to develop a process for individuals to receive their certificate of pardon.

The online application will be available on the Office of the Pardon Attorney’s website: Application for Certificate of Pardon.  The web form allows eligible persons to submit documentation to the Office of the Pardon Attorney and receive a certificate indicating the person was pardoned on Oct. 6, 2022, for simple possession of marijuana.

The President’s pardon, effective Oct. 6, 2022, may assist pardoned persons by removing civil or legal disabilities — such as restrictions on the right to vote, to hold office or to sit on a jury — that are imposed because of the pardoned conviction.  The application released today may also be helpful as proof of pardon for those who seek to obtain licenses, bonding or employment.  As President Biden said at the time of the proclamation, his action intends to “help relieve the consequences arising from these convictions.”  

Those who were pardoned on Oct. 6, 2022, are eligible for a certificate of pardon.  Consistent with the proclamation, to be eligible for a certificate, an applicant must have been charged or convicted of simple possession of marijuana in either a federal court or D.C. Superior Court, and the applicant must have been lawfully within the United States at the time of the offense. Similarly, an individual must have been a U.S. citizen or lawful permanent resident on Oct. 6, 2022.

Those who were convicted of state marijuana offenses do not qualify for the pardon.

The department is committed to carefully and expeditiously reviewing the applications and issuing certificates to those pardoned under the proclamation. For more information regarding eligibility and answers to frequently asked questions, please visit Presidential Proclamation on Marijuana Possession.

Prior related posts from October 2022:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons
• Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms
• US Sentencing Commission produces "additional analyses" of those receiving federal marijuana possession pardons

"The Right to Social Expungement"

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

In recent years, policy makers advancing criminal legal reform have engaged in attempts to correct years of harsh and expansive use of criminal laws.  Two main parallel trends dominate these attempts.  One is forward-looking — the decriminalization of many activities currently punishable by the criminal legal system.  The second is backward-looking, and related — expungement and vacatur reforms that aim to allow individuals to start fresh.

While these latter efforts are intended to erase the criminal stain from official criminal records, the non-official domain gained less traction, leading to an absurd reality in which news stories about individuals’ criminal histories remain accessible in the virtual world, practically forever.  Tragically, these online news stories are often more practically detrimental to reintegration than the official criminal records.  As such, they frustrate the criminal legal system’s efforts to correct past mistakes.

The literature on criminal legal reform thus far has given less attention to this crucial problem.  This Article contributes to narrowing this scholarly gap.  To do so, it introduces “the right to social expungement” — which recognizes the rights of individuals arrested for or convicted of offenses now vacated, expunged, legalized, or decriminalized to have stories about their past interaction with the criminal legal system removed from media websites.

Utilizing the case study of individuals arrested for or convicted of selling sex, this Article provides two theoretical justifications for recognizing this right: 1) the socio-legal paradigm of cultural shifts and its effects on existing law and policy, and 2) criminal law’s amelioration doctrine, which offers a path to retroactively apply lenient criminal justice policies.  The piece further argues that, counter to conventional wisdom, the right to social expungement can in fact sit comfortably within a plausible interpretation of the right to privacy and freedom of the press.  The Article concludes by offering preliminary guidance for establishing the right to social expungement.

Jury trials on hold in New Orleans because of apparent long-running failure to comply with new law to allow certain persons with felony convictions to serve as jurors

This local article, headlined "Jury trials in New Orleans criminal court halted through February," reports on interesting development in the Big Easy.  Here are the highlights:

Criminal court judges in New Orleans decided on Monday afternoon to put all jury trials on hold until at least March amid allegations that the court has been illegally excluding people with felony convictions from serving on juries for the last year and half.  In addition to delaying many criminal trials that were set to be held over the next five weeks, the decision is likely to bolster concerns over the legitimacy of dozens of jury trials in New Orleans dating back to August of 2021.

In a letter on Monday, Chief Judge Robin Pittman informed a lawyer for Voice of the Experienced (VOTE), Emily Posner, that jury venires — the legal term for the panel from which jurors are drawn — would be “deferred for the remainder of January 2023 and February of 2023.” VOTE, whose membership consists primarily of formerly incarcerated individuals, first raised concerns about the summons process in a letter to criminal court judges earlier this month....

The decision comes after the Louisiana Fourth Circuit Court of Appeal halted the attempted murder trial of Samuel Preston in New Orleans midway through jury selection last week, and ordered the trial judge in the case, Rhonda Goode-Douglass, to hold a hearing on whether or not the court has been using an outdated summons process in violation of state law.

In 2021, the Louisiana legislature changed the law to allow people with felony convictions to serve on juries as long as they have been off of probation or parole for five years, and are not under indictment. Prior to that, no one with any past felony conviction was able to serve on a jury.  The new law was signed by Gov. John Bel Edwards, and went into effect on August 1, 2021.  But despite the new law, defense attorneys have argued that the criminal court in New Orleans has been continuing to exclude anyone with a past felony conviction by sending out summons with outdated information and failing to update their online questionnaire for jurors....

In their letter, VOTE pointed to summonses sent to potential jurors as recently as this year that still indicated anyone with a felony conviction was barred from jury service.  In addition, a questionnaire that potential jurors are required to fill out online asks about felony convictions, but does not inquire when an individual completed parole or probation. The organization urged the court to resummon a new jury pool before resuming jury trials “in a manner that respects the rights of jurors” as guaranteed by state law.

But the judges at that time declined to do so, and moved forward with trials last week, including that of Preston. Lawyers for Preston with the Orleans Public Defenders Office, echoing the allegations made by VOTE, attempted to get his jury pool thrown out, arguing that excluding all people with felony convictions from potentially serving on his jury violated Preston’s Sixth Amendment right to a fair trial. Goode-Douglass denied that challenge, but in response to a supervisory writ the Fourth Circuit sided with Preston and ordered an evidentiary hearing.

In another case out of Orleans Parish criminal court, Michael Shorts, who was found guilty of second degree murder in July of last year, has challenged his conviction based in part on the same allegations that his jury was not summoned in accordance with the recent change to state law. Lawyers for Shorts filed a motion in his case last week arguing that the “crucial legal error” in the summons process entitles him to a new trial. It is set for a hearing in front of Judge Laurie White on Feb. 1.

In addition to any individuals with felony convictions who received a jury summons since the law changed and did not respond due to misinformation on the form, or were excluded once they attempted to fill out the questionnaire, there are also open questions regarding how many people with felony convictions may have been permanently purged from the list of people who receive summons in the first place. If that’s the case, lawyers for Preston have argued, “then the systemic exclusion of those prospective jurors cannot be remedied by merely changing the language of the summons and the questionnaire.”

En banc Third Circuit to reconsider constitutionality of § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

In this post two months ago, I noted the lengthy per curiam Third Circuit panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), which concluded that a person convicted of state welfare fraud was "outside the class of people traditionally entitled to Second Amendment rights" and upheld felon disarmament under 18 U.S.C. § 922(g)(1) against a Second Amendment challenge.  This Range opinion was the first big circuit opinion addressing felon gun dispossession under federal law after the landmark Supreme Court Bruen ruling changes Second Amendment jurisprudence. 

But Second Amendment law is Range free: via this order entered this past Friday, the full Third Circuit decided that this panel opinion in Range is to be vacated as the case will be reheard en banc (with oral argument scheduled for February 15, 2023).  I do not know enough about the particulars of all the Third Circuit judges to make confident predictions about how Range will be resolved after en banc reconsideration.  But, generally speaking, full circuits do not take up issues en banc when most of the judges are generally content with the panel outcome.  Consequently, I can confidently predict this case is one worth watching closely and one that might make for some notable new Second Amendment law.

Some (of many) prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen 
• Justice Department tells federal district judge "it is unnecessary ... to appoint an historian to assist" in resolving defendant's Second Amendment claim 

Reminders of how states keep moving forward, while feds fail to do so, on record relief mechanisms

In this post last month following up Prez Biden's major (but still minor) marijuana pardons, I lamented that Prez Biden missed an important opportunity to prod Congress to follow the lead of so many states in expanding mechanisms to seal or expunge past convictions.  At the federal level, no general record relief laws are in place (though a number of bills have been proposed to remedy this legal gap), and that means many thousands of low-level federal offenders can only hope a presidental pardon can help undo the considerable collateral consequences of even the most minor of federal convictions. 

That prior post came to mind as I saw these two recent New York Times piece highlighting these different federal and state record realities realities.  Here are brief excerpts from the pieces:

"Marijuana Pardons Affect Just a Sliver of Those Swept Up in the War on Drugs":

But people like Ms. [Valerie] Schultz, whose lone conviction has hounded her for more than a decade, represent just a sliver of those swept up in the decades-long war on drugs. A majority of marijuana convictions have been state crimes, which Mr. Biden does not have the authority to pardon; he can only hope that governors will follow suit.

And while many advocates welcomed the presidential act of forgiveness, they say far too many people — many of them Black and Latino — are not eligible for the pardons, leaving them with minor marijuana convictions that will continue to get in the way of job prospects, educational opportunities and financing for homes.

"California Will Soon Have the Nation’s Most Expansive Record-Clearing Law":

California lawmakers approved one of the most far-reaching criminal justice reform measures in the nation this year, a bill that drew relatively little fanfare among a parade of high-profile legislation.

The new law makes California the first state that will automatically seal most criminal records for those who complete their sentences. Advocates pushed for the change because they said such records can prevent once-incarcerated people from getting jobs, housing, schooling and more. Jeff Selbin, the director of the Policy Advocacy Clinic at the U.C. Berkeley School of Law, called the legislation “the most expansive and comprehensive record-clearing law of its kind in the country.”

The measure, which builds on an earlier state law, takes effect in July and will automatically seal conviction and arrest records for most ex-offenders who are not convicted of another felony for four years after completing their sentences. Records of arrests that didn’t lead to convictions will also be sealed.

There are some exceptions: People convicted of serious and violent felonies, as well as those requiring sex offender registration, won’t have their records cleared under the law. And criminal histories would still be disclosed in background checks when people apply to work in education, law enforcement or public office.

Third Circuit panel upholds constitutionality § 922(g)(1)'s felon-in-possession gun prohibition after Bruen

A Third Circuit panel today issued the first major circuit ruling upholding the constitutionality of 18 U.S.C. § 922(g)(1), federal laws categorical prohibition on felons possession of firearms or ammunition since the SUpreme Court's landmark Second Amendment ruling in Bruen. Here is how the 50-page, per curiam panel opinion in Range v. Garland, No. 21-2835 (3d Cir. Nov. 16, 2022) (available here), starts and concludes:

In District of Columbia v. Heller, the Supreme Court held that “the right of the people to keep and bear Arms,” enshrined in the Second Amendment, is an individual right. 554 U.S. 570, 595 (2008). While the precise contours of that individual right are still being defined, the Court has repeatedly stated that it did not question the “longstanding prohibition[] on the possession of firearms by felons.” Id. at 626.

Appellant Bryan Range falls in that category, having pleaded guilty to the felony-equivalent charge of welfare fraud under 62 Pa. Cons. Stat. § 481(a).  He now brings an as-applied challenge to 18 U.S.C. § 922(g)(1), contending that his disarmament is inconsistent with the text and history of the Second Amendment and is therefore unconstitutional under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).  We disagree.  Based on history and tradition, we conclude that “the people” constitutionally entitled to bear arms are the “law-abiding, responsible citizens” of the polity, id. at 2131, a category that properly excludes those who have demonstrated disregard for the rule of law through the commission of felony and felony-equivalent offenses, whether or not those crimes are violent. Additionally, we conclude that even if Range falls within “the people,” the Government has met its burden to demonstrate that its prohibition is consistent with historical tradition.  Accordingly, because Range’s felony-equivalent conviction places him outside the class of people traditionally entitled to Second Amendment rights, and because the Government has shown the at-issue prohibition is consistent with historical tradition, we will affirm the District Court’s summary judgment in favor of the Government....

We have conducted a historical review as required by Bruen and we conclude that Range, by illicitly taking welfare money through fraudulent misrepresentation of his income, has demonstrated a rejection of the interests of the state and of the community.  He has committed an offense evincing disrespect for the rule of law.  As such, his disarmament under 18 U.S.C. § 922(g)(1) is consistent with the Nation’s history and tradition of firearm regulation.

Some prior recent related posts:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 
• Spotlighting notable (and constitutionally suspect?) aspects of federal firearm prohibition enforcement 
• District Court declares § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional
• Notable new district court opinion strikes down federal serial number law but upholds felon possession ban applying Bruen
• Federal judge orders briefing on whether to appoint historian to resolve challenge to federal felon gun possession ban after Bruen
• New district court opinion "holds that § 922(g)(8) is unconstitutional under Bruen's framework"
• Another district court finds § 922(n), which criminalizes a person under indictment from receiving a firearm, to be unconstitutional

"Locked Out 2022: Estimates of People Denied Voting Rights Due to a Felony Conviction"

The title of this post is the title of this new report released today by The Sentencing Project.  Here is the report's overview:

Laws in 48 states ban people with felony convictions from voting. In 2022, an estimated 4.6 million Americans, representing 2 percent of the voting-age population, will be ineligible to vote due to these laws or policies, many of which date back to the post-Reconstruction era.  In this election year, as the United States confronts questions about the stability of its democracy and the fairness of its elections, particularly within marginalized communities, the impact of voting bans on people with felony convictions should be front and center in the debate.

This 2022 report updates and expands upon 20 years of work chronicling the scope and distribution of felony disenfranchisement in the United States (see Uggen, Larson, Shannon, and Pulido-Nava 2020; Uggen, Larson, and Shannon 2016; Uggen, Shannon, and Manza 2012; Manza and Uggen 2006; Uggen and Manza 2002).  As in 2020, we present national and state estimates of the number and percentage of people disenfranchised due to felony convictions, as well as the number and percentage of the Black and Latinx populations impacted.  Although these and other estimates must be interpreted with caution, the numbers presented here represent our best assessment of the state of felony disenfranchisement as of the November 2022 election.

Among the report’s key findings:

• An estimated 4.6 million people are disenfranchised due to a felony conviction, a figure that has declined by 24 percent since 2016, as more states enacted policies to curtail this practice and state prison populations declined modestly. Previous research finds there were an estimated 1.2 million people disenfranchised in 1976, 3.3 million in 1996, 4.7 million in 2000, 5.4 million in 2004, 5.9 million in 2010, 6.1 million in 2016, and 5.2 million in 2020.

• One out of 50 adult citizens — 2 percent of the total U.S. voting eligible population — is disenfranchised due to a current or previous felony conviction.

• Three out of four people disenfranchised are living in their communities, having fully completed their sentences or remaining supervised while on probation or parole.

• In three states — Alabama, Mississippi, and Tennessee — more than 8 percent of the adult population, one of every 13 adults, is disenfranchised.

• Florida remains the nation’s disenfranchisement leader in absolute numbers, with over 1.1 million people currently banned from voting, often because they cannot afford to pay court-ordered monetary sanctions. An estimated 934,500 Floridians who have completed their sentences remain disenfranchised, despite a 2018 ballot referendum that promised to restore their voting rights.

• One in 19 African Americans of voting age is disenfranchised, a rate 3.5 times that of non-African Americans. Among the adult African American population, 5.3 percent is disenfranchised compared to 1.5 percent of the adult non-African American population.  More than one in 10 African American adults is disenfranchised in eight states – Alabama, Arizona, Florida, Kentucky, Mississippi, South Dakota, Tennessee, and Virginia. 

• Although data on ethnicity in correctional populations are unevenly reported and undercounted in some states, a conservative estimate is that at least 506,000 Latinx Americans or 1.7 percent of the voting eligible population are disenfranchised.  Approximately 1 million women are disenfranchised, comprising over one-fifth of the total disenfranchised population.

Prez Biden's one miss in his marijuana moves: failing to urge Congress to move on federal record relief mechanisms

I was fairly impressed with how Prez Biden decided to craft and announce his marijuana possession pardons last week (basics here and here).  Blanket pardons are rare, especially in modern times, but they have a rich American history (see the great list in Charles Shanor & Marc Miller, Pardon Us: Systematic Presidential Pardons, 13 Federal Sentencing Reporter 139, 140 (2001)).  And to couple these pardons with an expedited review of marijuana's Schedule I status, which is overdue, could have a huge future impact on federal marijuana policy. 

It also struck me as notable and important that Prez Biden further called upon state Governors to follow his pardoning lead, and he did so right after he referenced the enduring consequences of even low-level marijuana convictions in this official statement:  "There are thousands of people who have prior Federal convictions for marijuana possession, who may be denied employment, housing, or educational opportunities as a result.  My action will help relieve the collateral consequences arising from these convictions."  Of course, even the lowest-level state marijuana convictions also can carry an array of collateral consequences, which I discussed a bit in my (now very dated) 2018 article "Leveraging Marijuana Reform to Enhance Expungement Practices."

But, in some conversations about record relief at the state level, it dawned on me that Prez Biden's work also was a missed opportunity to give Congress some prodding along with state Governors and his own agencies.  Specifically, one reason some state Governors might not feel a huge need to pardon marijuana possession offenders is the fact that most every state has some legislative/court mechanism to seal or expunge low-level convictions, and many of these mechanisms have been expanded in recent years.  But, at the federal level, there are no general record relief laws in place (though a number of bills have been proposed to remedy this legal gap).  As the folks at the Collateral Consequences Resource Center have explained in recent recommendations to Congress: 

Since 2013, most states have either expanded record relief laws enacted in the 1970’s or enacted relief for the first time.  States have tailored eligibility and procedures to the specific type of record, and more than a dozen have authorized automatic relief for certain records.  Record remedies are now authorized in almost every state and apply to many types of criminal records. The popularity of court-managed diversion is growing, and many states also offer judicial or administrative certificates to restore lost rights.

Yet Congress has thus far failed to act, leaving those with federal convictions without remedy short of a presidential pardon, and those with federal non-conviction records without any remedy at all.  In addition, many areas of federal law fail to recognize or give effect to state relief.

Prez Biden is right to be deeply concerned about the collateral consequences arising from even the lowest-level drug convictions, but he should know that federal clemency efforts are not the only or even the best way to address these concerns.  Rather, Congress needs to step up and start moving forward with the many bills proposing some form of federal record relied (the Clean Slate Act and the Fresh Start Act are some notable bills in this space, but there are a lot more possibilities).  And Prez Biden's announcement of his marijuana possession pardons would have been an especially timely opportunity for him to urge Congress to get a bill to his desk on this front.

Arguably this is a nit-pick, complaining about the federal record relief dog that did not bark when Prez Biden made his pardon announcement.  But that announcement has received a lot of attention from the press and others, and yet I do not think I have seen any new discussion of the absence of any general federal record relief mechanism.  This ugly gap in federal law merits a lot more attention, and so I cannot help but lament this missed opportunity.

Prior related posts:

• October surprise: Prez Biden announces he is "pardoning all prior federal offenses of simple marijuana possession"! Wow!
• A few more details about President Biden's mass pardon of federal offenses of simple possession of marijuana
• Rounding up a few (of many) reactions to Prez Biden's marijuana possession pardons

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.

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:

• By 6-3 vote, SCOTUS expands Second Amendment rights by striking down NY public-carry licensing requirements 
• Are all broad felon-in-possession criminal gun statutes now constitutionally suspect after Bruen? 
• Are broad drug user gun dispossession statutes now constitutionally suspect after Bruen? 

"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. 

"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.

"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.

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.

"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.

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.

"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.

"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.

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.

"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.

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

"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.

"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.

"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.

"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).

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. 

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.

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

As 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 reintegration.  Recent 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.

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.

"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.

"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.

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.

"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.

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.

"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.

"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.

"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.

"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.

"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.

"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.

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.

"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.

"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.

"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.

"Marijuana legalization and expungement in early 2021"

The 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:

• Effective coverage of marijuana expungement efforts and work still to do
• On Presidents Day, coalition calls for Prez Biden to issue "a general pardon to all former federal, non-violent cannabis offenders in the U.S."
• "Ensuring Marijuana Reform Is Effective Criminal Justice Reform"
• "Illinois Governor Announces Half A Million Marijuana Expungements And Pardons"