Tuesday, February 13, 2024

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

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

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

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

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

February 13, 2024 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (22)

Thursday, February 08, 2024

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

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

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

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

February 8, 2024 in Collateral consequences, Criminal Sentences Alternatives, Who Sentences | Permalink | Comments (0)

Tuesday, January 30, 2024

Valuable reminder that Prez pardons are not the same as expungements

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

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

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

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

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

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

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

January 30, 2024 in Clemency and Pardons, Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Tuesday, January 23, 2024

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

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

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

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

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

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

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

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

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

Prior related posts:

January 23, 2024 in Collateral consequences, Sentences Reconsidered, Who Sentences | Permalink | Comments (5)

Tuesday, January 16, 2024

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

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

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

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

Prior related posts:

January 16, 2024 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (1)

"Refining the Dangerousness Standard in Felon Disarmament"

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

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

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

January 16, 2024 in Collateral consequences, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues | Permalink | Comments (0)

Wednesday, January 10, 2024

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

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

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

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

January 10, 2024 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Monday, January 08, 2024

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

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

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

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

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

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

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

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

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

January 8, 2024 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, December 06, 2023

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

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

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

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

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

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

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

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

December 6, 2023 in Collateral consequences, Drug Offense Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, November 28, 2023

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

November 28, 2023 in Collateral consequences, Reentry and community supervision | Permalink | Comments (2)

Monday, November 20, 2023

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

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

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

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

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

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

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

November 20, 2023 in Collateral consequences, Second Amendment issues, Who Sentences | Permalink | Comments (2)

Thursday, November 16, 2023

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

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

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

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

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

Just some (of many) prior related posts:

November 16, 2023 in Collateral consequences, Second Amendment issues | Permalink | Comments (2)

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

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

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

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

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

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

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

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

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

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

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

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

November 16, 2023 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (8)

Wednesday, November 08, 2023

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

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

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

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

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

November 8, 2023 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, October 30, 2023

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

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

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

Background

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

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

Call for Papers

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

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

Download the full call for papers here.

October 30, 2023 in Collateral consequences | Permalink | Comments (0)

Sunday, October 29, 2023

"Original Understanding, Punishment, and Collateral Consequences"

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

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

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

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

October 29, 2023 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Friday, October 27, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

October 27, 2023 in Collateral consequences, Second Amendment issues, Who Sentences | Permalink | Comments (4)

Tuesday, October 24, 2023

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

October 24, 2023 in Campaign 2020 and sentencing issues, Celebrity sentencings, Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (73)

Monday, October 23, 2023

"Non-State Punishment"

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

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

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

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

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

October 23, 2023 in Collateral consequences, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (6)

Wednesday, October 18, 2023

Sentencing Project releases new report on felony disenfranchisement reform

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

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

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

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

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

October 18, 2023 in Collateral consequences | Permalink | Comments (5)

Tuesday, October 10, 2023

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

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

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

Background

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

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

Call for Papers

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

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

Download the full call for papers here.

October 10, 2023 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Thursday, October 05, 2023

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

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

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

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

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

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

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

October 5, 2023 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Sentences Reconsidered | Permalink | Comments (2)

Sunday, October 01, 2023

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

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

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

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

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

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

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

Prior related posts:

October 1, 2023 in Collateral consequences, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, September 19, 2023

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

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

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

Background

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

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

Call for Papers

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

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

Download the full call for papers here.

September 19, 2023 in Collateral consequences, Reentry and community supervision | Permalink | Comments (1)

Monday, September 18, 2023

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

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

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

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

This even will be livestreamed at this link.

September 18, 2023 in Clemency and Pardons, Collateral consequences, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, September 12, 2023

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

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

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

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

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

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

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

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

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

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

September 12, 2023 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (13)

Tuesday, September 05, 2023

"Collusive Prosecution"

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

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

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

September 5, 2023 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, August 31, 2023

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

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

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

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

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

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

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

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

August 31, 2023 in Collateral consequences, Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Second Amendment issues, Who Sentences | Permalink | Comments (5)

Thursday, August 24, 2023

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

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

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

Background

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

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

Call for Papers

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

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

Download the full call for papers here.

August 24, 2023 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Sunday, August 06, 2023

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

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

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

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

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

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

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

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

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

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

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

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

August 6, 2023 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered | Permalink | Comments (29)

Thursday, June 29, 2023

US District Court concludes Second Amendment requires dismissal of federal felon-in-possession prosecution

In this post last year, I flagged a fascinating order authored by US District Judge Carlton Reeves in a case in which a defendant challenged, on Second Amendment grounds, application of the federal criminal statute prohibiting felons from possessing firearm.  In the order, Judge Carlton Reeves, after stressing the Supreme Court's recent re-orientation of Second Amendment jurisprudence, asked the parties whether he "should appoint a historian to serve as a consulting expert in this matter."  No historian was appointed, but Judge Reeves continued to struggle with how to apply the Supreme Court's landmark Bruen ruling, and that struggle has now produced a 77-page opinion in US v. Bullock, No. 3:18‐CR‐165‐CWR‐FKB (SD Miss. June 28, 2023) (available here).  The opinion includes these passages within its opening discussion:

In this case, the federal government seeks to imprison Jessie Bullock for possessing a firearm as a convicted felon. See 18 U.S.C. § 922(g)(1). Mr. Bullock claims that this is a violation of his Second Amendment rights. He observes that he finished serving his sentence long ago, and the available evidence indicates that the firearm the government complains of was kept in the sanctity of his home. Yet Section 922(g)(1)’s ban on gun possession is a lifetime one.

The question presented appears simple: has the government demonstrated that, as to Mr. Bullock, the federal felon‐in‐possession ban is consistent with America’s “historical tradition of firearm regulation”?  The government says the answer is also simple: “yes.” It points to more than 120 U.S. District Court decisions which recently determined that the government had met its burden — at least in those cases. 

This Court is not so sure.  The government’s citation to the mere volume of cases is not enough.  See Heller, 554 U.S. at 624 n.24 (rejecting decisions of “hundreds of judges”).  There also is doubt about the process those cases used to determine the history of the felon‐in‐possession ban.  In none of those cases did the government submit an expert report from a historian justifying felon disarmament.  In none of those cases did the court possess an amicus brief from a historian.  And in none of those cases did the court itself appoint an independent expert to help sift through the historical record.  It is unsurprising that the government relies on jurisprudence filled with such methodological flaws. The same errors define the Supreme Court’s own Second Amendment jurisprudence....

Nevertheless, the standard announced by the Supreme Court in Bruen is the law of the land.  It must be enforced. Under that standard, the government has failed to meet its burden.  The federal felon‐in‐possession ban was enacted in 1938, not 1791 or 1868 — the years the Second and Fourteenth Amendments were ratified. 

The government’s brief in this case does not identify a “well‐established and representative historical analogue” from either era supporting the categorical disarmament of tens of millions of Americans who seek to keep firearms in their home for self‐defense. Bruen, 142 S. Ct. at 2132; see Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160 U. Pa. L. Rev. 1789, 1791 (2012) (explaining that “tens of millions” of free‐world Americans have criminal records).

American history might support state‐level felon disarmament laws; that at least would align with principles of federalism.  It might support disarmament of persons adjudicated to be dangerous — as Justice Barrett found when she sat on the Seventh Circuit. See Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting).  And it likely does support disarmament of persons convicted of death‐eligible offenses.  The power to take someone’s life necessarily includes the lesser power to disarm them.  The government’s arguments for permanently disarming Mr. Bullock, however, rest upon the mirage of dicta, buttressed by a cloud of law review articles that do not support disarming him.  In Bruen, the State of New York presented 700 years of history to try and defend its early 1900s‐era gun licensing law.  That was not enough.  Bruen requires no less skepticism here, where the challenged law is even younger.

For the reasons that follow, therefore, Mr. Bullock’s motion to dismiss will be granted.  

Some (of many) prior recent related posts:

June 29, 2023 in Collateral consequences, Second Amendment issues | Permalink | Comments (8)

Thursday, June 22, 2023

Bruen brouhahas: split Seventh Circuit panel remands for "Ph.D.-level historical inquiry" on felon in possession

I just saw that earlier this week the Seventh Circuit had an interesting new ruling adding to what I am now going to call the Bruen brouhahas surrounding federal criminal gun prohibitions. Here is how the majority opinion in Atkinson v. Garland, No. 22-1557 (7th Cir. June 20, 2023) (available here). Here is how the majority opinion in Atkinson starts:

Before us is a Second Amendment challenge to the federal felon-in-possession statute, 18 U.S.C. § 922(g)(1). The appeal reaches us in the wake of the Supreme Court’s decision in New York State Rifle & Pistol Association v. Bruen, 142 S. Ct. 2111 (2022). That development is significant because Bruen announced a new framework for analyzing restrictions on the possession of firearms.  No longer, the Supreme Court made clear, can lower courts balance interests — of an individual’s right to possess a firearm and the state’s commitment to promoting personal or public safety — to resolve the constitutionality of the challenged restriction.  The new approach anchors itself exclusively in the Second Amendment’s text and the pertinent history of firearms regulation, with the government bearing the burden of “affirmatively prov[ing] that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. at 2127.

The Supreme Court decided Bruen after the district court faithfully applied our precedent and rejected Patrick Atkinson’s Second Amendment challenge to § 922(g)(1).  The parties’ briefing on appeal only scratches the surface of the historical analysis now required by Bruen.  In these circumstances, we think the best course is to remand to allow the district court to undertake the Bruen analysis in the first instance.

Here is how Judge Woods' dissenting opinion starts:

The question before us in this case could not be more important: may individual rights under the Second Amendment be curtailed or denied only on the basis of a granular, case-by-case analysis, or does Congress have the power to enact categorical restrictions?  And if some categorical limits are possible and others are not, what sorting principle may or must we use to separate the permissible from the impermissible?

My colleagues have taken the position that we need further input from the district court before we can tackle the present case. With respect, I do not agree with them.  The issue before us is whether 18 U.S.C. § 922(g)(1) is compatible with the Second Amendment.  That statute prohibits those convicted of a crime for which the punishment exceeds one year in prison (usually felonies) from possessing a firearm or ammunition.  This is a pure question of law, and our consideration is therefore de novo.  If we think that we would benefit from further exploration of the issue, in light of the intervening decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), nothing prevents us from asking the parties to submit supplemental briefs. Exactly that process occurs when we are confronted with an unfamiliar question of foreign law — another setting in which we have the authority to conduct our own research.  See Fed. R. Civ. P. 44.1.  Just so here: we must decide whether, in light of the textual and historical materials to which Bruen directs us, section 922(g)(1) is constitutional.  Remanding this case to the district court will not reduce our responsibility to evaluate that question independently when the case inevitably returns to us.

My own assessment of the materials that now govern Second Amendment questions per Bruen convinces me that the  categorical prohibition created by section 922(g)(1) passes muster under the Constitution.  I would therefore affirm the district court now, without saddling it with a Ph.D.-level historical inquiry that necessarily will be inconclusive.

June 22, 2023 in Collateral consequences, Second Amendment issues | Permalink | Comments (1)

Notable SCOTUS debate over "obstruction of justice" in Pugin immigration case producing distinctive 6-3 divide

Though not the biggest case of interest to the federal criminal justice bar handed down by the Supreme Curt today (that's Jones v. Hendrix to be covered in coming posts), criminal justice fans will still want to check out SCOTUS's work in Pugin v. Garland, No. 22-23 (S. Ct. June 22, 2023) (available here).  Here is how Justice Kavanaugh's opinion for the Court gets started:

Federal law provides that noncitizens convicted of an “aggravated felony” are removable from the United States. The definition of “aggravated felony” includes federal or state offenses “relating to obstruction of justice.” 8 U.S.C. § 1101(a)(43)(S).  The question here is whether an offense “relat[es] to obstruction of justice” under §1101(a)(43)(S) even if the offense does not require that an investigation or proceeding be pending.  That question arises because some obstruction offenses can occur when an investigation or proceeding is not pending, such as threatening a witness to prevent the witness from reporting a crime to the police.  We conclude that an offense may “relat[e] to obstruction of justice” under § 1101(a)(43)(S) even if the offense does not require that an investigation or proceeding be pending.

Six Justices are in the majority in Pugin, three in dissent, but not in the usual 6-3 arrangement.  Justice Jackson joined the majority (and authored a short concurrence), while Justice Sotomayor's dissent was joined by Justices Gorsuch and Kagan (though Justice Kagan jumped off the last part).  Here is how the dissent starts:

From early American laws, to dictionaries, to modern federal and state obstruction statutes, interference with an ongoing investigation or proceeding is at the core of what it means to be “an offense relating to obstruction of justice,” 8 U.S.C. § 1101(a)(43)(S).  The Court circumvents this ample evidence only by casting a wide net and then throwing back all but the bycatch.  That approach “turns the categorical approach on its head,” Esquivel-Quintana v. Sessions, 581 U.S. 385, 393 (2017), and subverts the commonly understood meaning of “obstruction of justice” when Congress enacted § 1101(a)(43)(S) in 1996.  I respectfully dissent.

June 22, 2023 in Collateral consequences, Offense Characteristics, Who Sentences | Permalink | Comments (1)

Tuesday, June 06, 2023

En banc Third Circuit rules, based on Bruen, that federal felon-in-possession law is unconstitutional when applied to nonviolent, nondangerous offender

Creating a circuit split concerning the lawfulness of a frequently-applied federal gun control provision, the full en banc Third Circuit today found unconstitutional the application of federal felon-in-possession law to a person with a false statement conviction. The majority opinion in Range v. Attorney General, No. 21-2835 (3d Cir. 2023) (available here), runs less than 20 pages, but it is followed by 80+ pages of concurring and dissenting opinions.  (The vote for Range was 11-4.)  Here is how the majority opinion authored by Judge Hardiman concludes:

Our decision today is a narrow one. Bryan Range challenged the constitutionality of 18 U.S.C. § 922(g)(1) only as applied to him given his violation of 62 Pa. Stat. Ann. § 481(a).  Range remains one of “the people” protected by the Second Amendment, and his eligibility to lawfully purchase a rifle and a shotgun is protected by his right to keep and bear arms.  Because the Government has not shown that our Republic has a longstanding history and tradition of depriving people like Range of their firearms, § 922(g)(1) cannot constitutionally strip him of his Second Amendment rights.  We will reverse the judgment of the District Court and remand so the Court can enter a declaratory judgment in favor of Range, enjoin enforcement of § 922(g)(1) against him, and conduct any further proceedings consistent with this opinion.

The longest dissent was is authored by Judge Krause, and here are a few paragraphs of its introduction (with footnotes omitted):

Section 922(g)(1) of the U.S. Code, Title 18, embodies this delicate equilibrium and comports with traditional principles that have guided centuries of legislative judgments as to who can possess firearms.  As Justice Alito has observed, § 922(g) “is no minor provision.  It probably does more to combat gun violence than any other federal law.” And as a “longstanding” and widely accepted aspect of our national gun culture, the federal felon-possession ban — carefully crafted to respect the laws of the states — is the keystone of our national background check system, and has repeatedly been characterized by the Supreme Court as “presumptively lawful.”  Where, as here, the legislature has made a reasonable and considered judgment to disarm those who show disrespect for the law, it is not the place of unelected judges to substitute that judgment with their own.

Yet today’s majority brushes aside these realities and the seismic effect of its ruling.  It is telling that, although it describes itself as limited “to Range’s situation,” today’s opinion is not designated non-precedential as appropriate for a unique individual case, but has precedential status, necessarily reaching beyond the particular facts presented.  It is also telling that it tracks precisely the Fifth Circuit’s deeply disturbing opinion in United States v. Rahimi, which, finding no precise historical analogue, struck down as unconstitutional the ban on gun possession by domestic abusers.  And in the process, the majority creates a circuit split with the Eighth Circuit’s recent opinion in United States v. Jackson, which rejected the notion of “felony-by-felony litigation” and recognized that “Congress acted within the historical tradition when it enacted § 922(g)(1) and the prohibition on possession of firearms by felons.”

Though the federal government would normally seek certiorari review of this kind of ruling, I wonder if the feds might seek to urge the Supreme Court to take up a different case raising the same issue.  Bryan Range's case seems particularly sympathetic, as he was only convicted nearly three decades ago of making a false statement to obtain food stamps in violation of Pennsylvania law.  But, whatever the vehicle, the constitutionality of Section 922(g)(1) is clearly one (of a number of) post-Bruen Second Amendment issues the Supreme Court is going to have to confront.

June 6, 2023 in Collateral consequences, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (15)

Saturday, May 27, 2023

"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.

May 27, 2023 in Collateral consequences, Reentry and community supervision | Permalink | Comments (10)

Tuesday, April 25, 2023

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.

April 25, 2023 in Collateral consequences | Permalink | Comments (3)

Tuesday, April 11, 2023

"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.

April 11, 2023 in Collateral consequences, Data on sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (2)

Monday, April 03, 2023

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

5c6b0de4-6844-41cd-9cf1-5a126056ff96The 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:

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

April 3, 2023 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Tuesday, March 28, 2023

"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.

March 28, 2023 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (0)

Monday, March 06, 2023

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:

March 6, 2023 in Clemency and Pardons, Collateral consequences, Pot Prohibition Issues, Who Sentences | Permalink | Comments (3)

Thursday, March 02, 2023

"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.

March 2, 2023 in Collateral consequences, Reentry and community supervision | Permalink | Comments (18)

Wednesday, January 25, 2023

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.”

January 25, 2023 in Collateral consequences, Who Sentences | Permalink | Comments (0)

Monday, January 09, 2023

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:

January 9, 2023 in Collateral consequences, Gun policy and sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Tuesday, November 29, 2022

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.

November 29, 2022 in Collateral consequences, Who Sentences | Permalink | Comments (0)

Wednesday, November 16, 2022

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:

November 16, 2022 in Collateral consequences, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (15)

Tuesday, October 25, 2022

"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.

October 25, 2022 in Collateral consequences, Race, Class, and Gender | Permalink | Comments (2)

Wednesday, October 12, 2022

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 12, 2022 in Clemency and Pardons, Collateral consequences, Who Sentences | Permalink | Comments (0)

Wednesday, September 21, 2022

House Judiciary Committee advances a number of federal criminal justice bills

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, September 20, 2022

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

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

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

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

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

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

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

Some prior related posts:

September 20, 2022 in Collateral consequences, Gun policy and sentencing, Second Amendment issues | Permalink | Comments (15)

Saturday, September 10, 2022

"Irrational Collateral Sanctions"

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

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

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

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