Saturday, November 10, 2018

"Farewell to the Felonry"

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

Bastard.  Idiot.  Imbecile.  Pauper.  Felon.  These terms, medieval in origin, have served as formal legal designations and also the brands of substantial social stigma.  As legal designations, the terms marked persons for different sorts of membership in a political community.  The rights and privileges of these persons could be restricted or denied altogether. Today, most of these terms have been abandoned as labels for official classifications.  But the terms felon and felony remain central to American criminal law, even after other developed democracies have formally abolished the felon/felony category.  “Felony” has connotations of extreme wickedness and an especially severe crime, but the official legal meaning of felony is a pure legal construct: any crime punishable by more than a year in prison.  So many and such disparate crimes are now felonies that there is no unifying principle to justify the classification.  And yet, the designation of a crime as a felony, or of a person as a felon, still carries great significance.  Even beyond the well-documented “collateral” consequences of a felony conviction, the classification of persons as felons is central to the mechanics of mass incarceration and to inequality both in and out of the criminal justice system.  American law provides the felonry —the group of persons convicted of felonies — a form of subordinate political membership that contrasts with the rights and privileges of the full-fledged citizenry.

The felon should go the way of the bastard, into the dustbins of legal history.  If that outcome seems unlikely, it is worth asking why a category long known to be incoherent should be so difficult to remove from the law.  This Article examines felony in order to scrutinize more broadly the conceptual structure of criminal law.  Criminal laws, and even their most common critiques and arguments for reform, often appeal to the same naturalistic understanding of crime and punishment that gives felon its social meaning.  When we imagine crime as a natural, pre-legal wrong and the criminal as intrinsically deserving of suffering, we displace responsibility for the law’s burdens from the community that enacts the law and the officials that enforce it.  To bid farewell to the felonry could be a first step toward reclaiming responsibility for our criminal law.

November 10, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

Friday, November 09, 2018

Michelle Alexander frets about "The Newest Jim Crow"

Michelle Alexander has this notable new New York Times opinion piece headlined ""The Newest Jim Crow: Recent criminal justice reforms contain the seeds of a frightening system of 'e-carceration'." I recommend the piece in full, and here are excerpts:

Since 2010, when I published “The New Jim Crow” — which argued that a system of legal discrimination and segregation had been born again in this country because of the war on drugs and mass incarceration — there have been significant changes to drug policy, sentencing and re-entry, including “ban the box” initiatives aimed at eliminating barriers to employment for formerly incarcerated people.

This progress is unquestionably good news, but there are warning signs blinking brightly. Many of the current reform efforts contain the seeds of the next generation of racial and social control, a system of “e-carceration” that may prove more dangerous and more difficult to challenge than the one we hope to leave behind.

Bail reform is a case in point.  Thanks in part to new laws and policies — as well as actions like the mass bailout of inmates in New York City jails that’s underway — the unconscionable practice of cash bail is finally coming to an end. In August, California became the first state to decide to get rid of its cash bail system; last year, New Jersey virtually eliminated the use of money bonds.

But what’s taking the place of cash bail may prove even worse in the long run. In California, a presumption of detention will effectively replace eligibility for immediate release when the new law takes effect in October 2019.  And increasingly, computer algorithms are helping to determine who should be caged and who should be set “free.”  Freedom — even when it’s granted, it turns out — isn’t really free.

Under new policies in California, New Jersey, New York and beyond, “risk assessment” algorithms recommend to judges whether a person who’s been arrested should be released. These advanced mathematical models — or “weapons of math destruction” as data scientist Cathy O’Neil calls them — appear colorblind on the surface but they are based on factors that are not only highly correlated with race and class, but are also significantly influenced by pervasive bias in the criminal justice system.  As O’Neil explains, “It’s tempting to believe that computers will be neutral and objective, but algorithms are nothing more than opinions embedded in mathematics.”

Challenging these biased algorithms may be more difficult than challenging discrimination by the police, prosecutors and judges. Many algorithms are fiercely guarded corporate secrets.  Those that are transparent — you can actually read the code — lack a public audit so it’s impossible to know how much more often they fail for people of color.

Even if you’re lucky enough to be set “free” from a brick-and-mortar jail thanks to a computer algorithm, an expensive monitoring device likely will be shackled to your ankle — a GPS tracking device provided by a private company that may charge you around $300 per month, an involuntary leasing fee.  Your permitted zones of movement may make it difficult or impossible to get or keep a job, attend school, care for your kids or visit family members. You’re effectively sentenced to an open-air digital prison, one that may not extend beyond your house, your block or your neighborhood.  One false step (or one malfunction of the GPS tracking device) will bring cops to your front door, your workplace, or wherever they find you and snatch you right back to jail.

Who benefits from this?  Private corporations.  According to a report released last month by the Center for Media Justice, four large corporations — including the GEO Group, one of the largest private prison companies — have most of the private contracts to provide electronic monitoring for people on parole in some 30 states, giving them a combined annual revenue of more than $200 million just for e-monitoring.  Companies that earned millions on contracts to run or serve prisons have, in an era of prison restructuring, begun to shift their business model to add electronic surveillance and monitoring of the same population.  Even if old-fashioned prisons fade away, the profit margins of these companies will widen so long as growing numbers of people find themselves subject to perpetual criminalization, surveillance, monitoring and control....

Many reformers rightly point out that an ankle bracelet is preferable to a prison cell.  Yet I find it difficult to call this progress.  As I see it, digital prisons are to mass incarceration what Jim Crow was to slavery.

If you asked slaves if they would rather live with their families and raise their own children, albeit subject to “whites only signs,” legal discrimination and Jim Crow segregation, they’d almost certainly say: I’ll take Jim Crow.  By the same token, if you ask prisoners whether they’d rather live with their families and raise their children, albeit with nearly constant digital surveillance and monitoring, they’d almost certainly say: I’ll take the electronic monitor.  I would too.  But hopefully we can now see that Jim Crow was a less restrictive form of racial and social control, not a real alternative to racial caste systems.  Similarly, if the goal is to end mass incarceration and mass criminalization, digital prisons are not an answer. They’re just another way of posing the question.

Some insist that e-carceration is “a step in the right direction.”  But where are we going with this? A growing number of scholars and activists predict that “e-gentrification” is where we’re headed as entire communities become trapped in digital prisons that keep them locked out of neighborhoods where jobs and opportunity can be found.

If that scenario sounds far-fetched, keep in mind that mass incarceration itself was unimaginable just 40 years ago and that it was born partly out of well-intentioned reforms — chief among them mandatory sentencing laws that liberal proponents predicted would reduce racial disparities in sentencing.  While those laws may have looked good on paper, they were passed within a political climate that was overwhelmingly hostile and punitive toward poor people and people of color, resulting in a prison-building boom, an increase in racial and class disparities in sentencing, and a quintupling of the incarcerated population.

November 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Technocorrections | Permalink | Comments (3)

Tuesday, November 06, 2018

Criminal justice reform ballot measures passing in Florida and Louisiana, but losing badly in Ohio

As noted in prior posts here and here, a whole lot of criminal justice matters were before voters this year. And though results are not yet official, it seems there are a few notable winners and one big loser:

Florida's Amendment 4, which would restore people’s voting rights after they finish their sentences (with a few exceptions), and Amendment 11, which enables the repeal or reform of criminal laws to be applied retroactively, both appear on pace to pass.

And Louisiana's Amendment 2, eliminating non-unanimous jury verdicts in felony trials, also looks to pass.

But Ohio's Issue 1, which sought to reduce all drug possession offenses to misdemeanors and enhance sentence reductions for prisoners participating in rehabilitative programs, has been soundly defeated.

November 6, 2018 in Collateral consequences, Drug Offense Sentencing, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Monday, November 05, 2018

"Fictional Pleas"

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

A fictional plea is one in which the defendant pleads guilty to a crime he has not committed with the knowledge of the defense attorney, prosecutor and judge.  With fictional pleas, the plea of conviction is totally detached from the original factual allegations against the defendant.  As criminal justice actors become increasingly troubled by the impact of collateral consequences on defendants, the fictional plea serves as an appealing response to this concern.  It allows the parties to achieve parallel aims: the prosecutor holds the defendant accountable in the criminal system, while the defendant avoids devastating non-criminal consequences.  In this context, the fictional plea is an offshoot of the “creative plea bargaining” encouraged by Justice Stevens in Padilla v. Kentucky.  Indeed, where there is no creative option based on the underlying facts of the allegation, the attorneys must turn to fiction.

The first part of this Article is descriptive, exploring how and why actors in the criminal justice system — including defendants, prosecutors and judges — use fictional plea for the purposes of avoiding collateral consequences.  This Article proposes that in any individual case, a fictional plea may embody a fair and just result — the ability of the defendant to escape severe collateral consequences and a prosecutor to negotiate a plea with empathy.

But this Article is also an examination of how this seemingly empathetic practice is made possible by the nature of the modern adversarial process — namely, that the criminal system has continually traded away accuracy in exchange for efficiency via the plea bargain process.  In this sense, fictional pleas serve as a case study in criminal justice problem solving.  Faced with the moral quandary of mandatory collateral consequences, the system adjusts by discarding truth and focusing solely on resolution.  The fictional plea lays bare the soul of an institution where everything has become a bargaining chip: not merely collateral consequences, but truth itself.  Rather than a grounding principle, truth is nothing more than another factor to negotiate around.

November 5, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, October 17, 2018

"Expanding the Vote: Two Decades of Felony Disenfranchisement Reform"

The title of this post is the title of this new report by The Sentencing Project.  Here is its "Overview":

More than 6 million citizens will be ineligible to vote in the midterm elections in November 2018 because of a felony conviction.  Nearly 4.7 million of them are not incarcerated but live in one of 34 states that prohibit voting by people on probation, parole, or who have completed their sentence.  Racial disparities in the criminal justice system also translate into higher rates of disenfranchisement in communities of color, resulting in one of every thirteen African American adults being ineligible to vote.

Despite these stark statistics, in recent years significant reforms in felony disenfranchisement policies have been achieved at the state level.  Since 1997, 23 states have amended their felony disenfranchisement policies in an effort to reduce their restrictiveness and expand voter eligibility. 

These reforms include:

• Seven states either repealed or amended lifetime disenfranchisement laws

• Six states expanded voting rights to some or all persons under community supervision

• Seventeen states eased the restoration process for persons seeking to have their right to vote restored after completing sentence 1.4 million people have regained the right to vote as a result of felony disenfranchisement reforms

These policy changes represent national momentum for reform of restrictive voting rights laws.  As a result of the reforms achieved during the period from 1997-2018, an estimated 1.4 million people have regained the right to vote.

This report provides a state by state accounting of the changes to voting rights for people with felony convictions and measures its impact.  These changes have come about through various mechanisms, including legislative reform, executive action, and a ballot initiative.

October 17, 2018 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Sunday, October 14, 2018

"Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement"

In this post last week, I noted a New York Times article headlined "Convicts Seeking to Clear Their Records Find More Prosecutors Willing to Help." A helpful reader made sure I also posted about this article on SSRN with the title of this post authored by Brian Murray. Here is its abstract:

Criminal record history information pejoratively brands those who contact the criminal justice system, whether they were guilty or not.  In theory, the remedy of expungement is designed to mitigate the unanticipated, negative effects of a criminal record.  But the reality is that prosecutors — driven by a set of incentives that are fundamentally antithetical to expungement — control many of the levers that determine who is able to obtain expungement.  The disjunction between the prosecutorial mindset and the minister of justice ideal could not be starker and the consequences can be significant. 

Prosecutors, as agents of the state, can either argue forcefully for the retention or deletion of such information, dramatically affecting the situation of an arrestee or ex-offender given the pervasive web of collateral consequences associated with a criminal record.  This discretion, as it relates to theories of punishment, prosecutorial discretion overall, the ethical responsibilities of prosecutors to do justice, and public policy interests, has been grossly under-analyzed despite the serious implications it has for the prosecutorial role within the criminal justice system and for reentry efforts. 

While many scholars have paid attention to how prosecutorial incentives conflict with the theoretical responsibilities of prosecutors in charging, plea-bargaining, and post-conviction situations involving innocence, none have provided a theoretical framework focused on the role of the prosecutor during expungement.  Many of the complicated incentives that undermine holistic prosecution during those earlier phases exist during the expungement process as well.  But scholarly responses to those incentives are not adequate given the range of considerations during the expungement phase.  As such, this Article argues that scholarly discussions related to prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pre-trial or the questions of factual and legal guilt.

Given that the primary role of the prosecutor is to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of non-conviction and conviction information.  In doing so, it hopes to provide a framework for exercising such discretion, and to initiate additional conversation about the role of prosecutors during the phases following arrest and prosecution.

October 14, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, October 02, 2018

Challenging issues for SCOTUS in criminal cases that may impact only a few persons ever and the entire structure of government always

On the second oral argument day of the new Supreme Court Term, criminal law issues are front and center.  Here is SCOTUSblog's overview via this round-up post:

Today the eight-justice court will tackle two more cases.  The first is Gundy v. United States, in which the justices will consider whether a provision of the federal sex-offender act violates the nondelegation doctrine.  Mila Sohoni previewed the case for this blog. Kathryn Adamson and Sarah Evans provide a preview at Cornell Law School’s Legal Information Institute, while Matthew Cavedon and Jonathan Skrmetti look at the case for the Federalist Society Review.  Today’s second case is Madison v. Alabama, an Eighth Amendment challenge to the execution of a death-row inmate who has dementia and cannot remember his crime.  This blog’s preview, which first appeared at Howe on the Court, came from Amy Howe. Lauren Devendorf and Luis Lozada preview the case for Cornell. Subscript Law’s graphic explainer is here.  Tucker Higgins reports on the case for CNBC.

As the title of this post suggests, I think the Madison capital case is likely to impact only a few persons ever: only a few dozen of murderers are these days subject to real execution dates each year and only a very few of those persons are likely to able to make a credible claim of incompetence to seek to prevent the carrying out of a death sentence.  The jurisprudential and philosophical issues in Madison still are, of course, very important and lots of SCOTUS cases may end up impacting only a few persons.  But I cannot help but note what seems to me to be relatively small stakes in Madison. 

I stress the limits of Madison in part because, as my post title suggests, I think the Gundy case could be the sleeper case of the Term because a major ruling on the nondelegation doctrine could radically reshape the entire modern administrative state.  In this post last month, the original commentary of Wayne Logan concerning Gundy highlighted that SCOTUS has "not invalidated a congressional delegation in over eighty years ..., [and] the issue [taken up in Gundy could be] clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies."

Prior related preview posts:

UPDATE via SCOTUSblog:  The transcript of oral argument in Gundy v. United States is available on the Supreme Court website; the transcript in Madison v. Alabama is also available; and authored by Amy Howe here, "Argument analysis: A narrow victory possible for death-row inmate with dementia?" 

October 2, 2018 in Collateral consequences, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)

Thursday, September 27, 2018

"'You Miss So Much When You’re Gone': The Lasting Harm of Jailing Mothers Before Trial in Oklahoma"

Download (20)The title of this post is the title of this big new report produced by Human Rights Watch and the ACLU. Here is part of the report's starting summary:

Every day in Oklahoma, women are arrested and incarcerated in local jails waiting — sometimes for weeks, months, a year, or more — for the disposition of their cases.  Most of these women are mothers with minor children.

Drawing from more than 160 interviews with jailed and formerly jailed mothers, substitute caregivers, children, attorneys, service providers, advocates, jail officials, and child welfare employees, this report shows how pretrial detention can snowball into never-ending family separation as mothers navigate court systems and insurmountable financial burdens assessed by courts, jails, and child welfare services....

While most women admitted to jails are accused of minor crimes, the consequences of pretrial incarceration can be devastating.  This report finds that jailed mothers often feel an added, and unique, pressure to plead guilty so that they can return home to parent their children and resume their lives.  These mothers face difficulties keeping in touch with their children due to restrictive jail visitation policies and costly telephone and video calls.  Some risk losing custody of their children because they are not informed of, or transported to, key custody proceedings.  Once released from jail, they are met with extensive fines, fees, and costs that can impede getting back on their feet and regaining custody of their children.

Women are the fastest growing correctional population nationwide and since the 1990s, Oklahoma has incarcerated more women per capita than any other US state.  Local jails (which typically house people prior to conviction, sentenced to short periods of incarceration, or awaiting transfer to prisons for longer sentences) are a major driver of that growth.  On a single day, the number of women in jails across the US has increased from approximately 8,000 in 1970 to nearly 110,000 in 2014, a 1,275 percent increase, with rural counties accounting for the largest growth rate. Many times more are admitted to jail over the course of a year.

The growth in women’s incarceration also means growth in the number of jailed mothers, which has doubled since 1991.  Nationwide, more than 60 percent of women in prisons and nearly 80 percent of women in jails are mothers with minor children.  A study conducted by the US Bureau of Justice Statistics reported that a majority of incarcerated mothers lived with and were the sole or primary caretaker of minor children prior to their incarceration.

This means that when mothers go to jail or prison, their children are more likely not to have a parent left at home, and can either end up with other relatives or in foster care. One in 14 children in the US, or nearly six million children, have had a parent behind bars, which researchers identify as an adverse childhood experience associated with negative health and development outcomes.  Children of color are disproportionately impacted by parental incarceration, with one in 9 Black children having had an incarcerated parent compared to one in 17 white children.

Jailed mothers are often dealing with a myriad of issues prior to their incarceration, which is why comprehensive support is essential to keep families together, disrupt cycles of incarceration, and to preserve human rights to liberty, due process, equal protection, and family unity.  Losing contact with and custody of their minor children should not be a consequence of arrest and criminal prosecution.

While nationally and in Oklahoma the rate of women’s incarceration is garnering increasing attention, many barriers to achieving necessary reforms remain.

Human Rights Watch and the ACLU urge Oklahoma and other states to require the consideration of a defendant’s caretaker status in bail and sentencing proceedings, expand alternatives to incarceration, facilitate the involvement of incarcerated parents in their children’s lives and proceedings related to child custody, and substantially curb the imposition of fees and costs, which can impede reentry and parent-child reunification.

September 27, 2018 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Wednesday, September 26, 2018

"Will Florida’s Ex-Felons Finally Regain the Right to Vote?"

The question in the title of this post is the headline of this New York Times magazine article, which is worth reading in full.  Here is a taste:

In 2015, [Neil] Volz happened on a meeting at Florida Gulf Coast University, where a small group of students and community activists were listening to an African-American law-school graduate named Desmond Meade.  He was talking about his years-long crusade to restore voting rights to people who had committed felonies, as he had.  The issue affected Volz, who knew he was barred from voting, as is automatically the case in Florida for anyone with a felony conviction.  Meade was president of the Florida Rights Restoration Coalition, an organization founded by the Florida A.C.L.U. for former felons, or, as he and others prefer to call themselves, “returning citizens.” Meade was in the midst of trying to collect the 766,200 signatures required to place an initiative on the ballot to amend Florida’s Constitution, which denies former felons the right to vote.  Volz stayed after the meeting to talk to Meade.  “We chatted for a long time, and by the end, I wanted to help,” he said.

Across the country, more than six million people have lost the right to vote because of their criminal records. More than 1.5 million of them live in Florida, a higher number than in any other state.  The proposed ballot initiative would automatically restore the right to vote to people with a felony conviction who have completed their sentences.  (The initiative makes two exceptions: no voting rights for people convicted of murder or sex offenses.) At the beginning of this year, with the signatures gathered, the state certified the initiative, called Amendment 4, for the November ballot.

Like any change to Florida’s Constitution, Amendment 4 needs 60 percent of the vote to pass. In the summer of 2017, after Volz spent more than a year volunteering, Meade offered him the paid position of political director.  He hoped that Volz, with his experience as a Republican operative, could help frame the restoration of voting rights in terms that appealed to a wide constituency — Republicans and independents as well as people of color and white liberals. “It’s everybody that can’t vote,” Meade likes to say. “I’m fighting just as hard, if not more, for that guy that wanted to vote for Donald Trump than a guy who wishes to vote for Hillary Clinton or Barack Obama.”

September 26, 2018 in Collateral consequences, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Another effective preview of coming SCOTUS review of SORNA delegation in Gundy

I was so very pleased to publish this post last week the original commentary of Wayne Logan concerning Gundy v. United States, the soon-to-be-heard Supreme Court case about the administration of the federal Sex Offender Registration and Notification Act (SORNA).  I now see that SCOTUSblog here has up its Gundy preview authored by Mila Sohoni and titled "Argument preview: Justices face nondelegation challenge to federal sex-offender registration law." I recommend the piece in full, and here is how it gets started and ends:

Over 12 years ago, Congress enacted the Sex Offender Registration and Notification Act. One provision of SORNA created a requirement that a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted. Another part of SORNA, its criminal enforcement provision, made it a crime for a convicted sex offender subject to the registration requirement to fail to register or to keep his registration information updated if he travels across state lines. But what about sex offenders convicted before SORNA’s enactment? SORNA did not itself specify whether pre-SORNA offenders were required to register. It instead authorized the attorney general of the United States to “specify the applicability” of SORNA’s registration requirement to “sex offenders convicted before” the date of SORNA’s enactment, and “to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply” with the registration requirement. 

In subsequent years, defendants charged under SORNA contended that the act and its enforcement scheme violated a panoply of constitutional rules....

How the Supreme Court chooses to decide this case could have potentially sweeping implications on several scores. The government notes that since SORNA was enacted, 4,000 sex offenders have been convicted of “federal sex-offender registry violations,” and “many of those offenders who failed to register would go free” if the court were to invalidate the delegation in SORNA. In addition, as Gundy notes, there are “hundreds of thousands” of pre-SORNA offenders now covered by the attorney general’s guidelines — as many people, he points out, as live in Wyoming — and the court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements going forward.

Beyond the law of sex-offender registration, the approach the court takes in Gundy could have repercussions across the law of the administrative state. Broad delegations of authority to the executive branch form the foundation of modern regulatory government. But given Ginsburg’s dissenting vote in Reynolds, Justice Clarence Thomas’ recent opinions on nondelegation and administrative power, and Justice Neil Gorsuch’s dissent from denial of rehearing en banc in a U.S. Court of Appeals for the 10th Circuit case involving SORNA, there is a real possibility that the Gundycourt will issue a ruling that revives the nondelegation doctrine from its 80-year slumber. If the justices ultimately do find that SORNA’s delegation does something more than just “sail[] close to the wind,” then we can confidently expect to see a string of challenges attacking the exercise of federal administrative power in areas ranging from environmental law to immigration law to food-and-drug law to the law of tariffs and trade. Cass Sunstein famously wrote that nondelegation doctrine has had only “one good year”; when the justices issue their ruling in Gundy, we will discover whether it will finally have a second.

Prior related post:

September 26, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Monday, September 24, 2018

"Extending 'Dignity Takings': Re-Conceptualizing the Damage Caused by Criminal History and Ex-Offender Status

The title of this post is the title of this new paper authored by Jamila Jefferson-Jones now available via SSRN. Here is the abstract:

The consequences of a criminal conviction extend far beyond “time served”: Ex-offenders often face social and civil stigmas and disabilities that continue for the rest of their lives.  These collateral consequences cause real harm to the reputation, dignity, and livelihood that can be difficult to quantify in the strictly economic analysis used in traditional constitutional takings analysis.  These collateral consequences are a form of dignity taking which deprive the ex-offender of their status as a full member of society.  Bernadette Atuahene originated the idea of “dignity takings”, eventually settling on a definition that combines a traditional government taking of property with an outcome of dehumanization or infantilization.  Scholars have applied this analysis to a number of cases of tangible property, but have only just begun to expand it into the criminal justice and reputational harm cases.

By applying the framework of dignity takings to the difficulties faced by ex-offenders in their reentry to society, I will demonstrate how we can better express the harms caused by the collateral consequences of conviction.  By doing so, we can focus our attention not on economic damage and restitution, but the restoration of lost dignity and humanity.

September 24, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Saturday, September 22, 2018

"Freedom Now or a Future Later: Pitting the Lasting Implications of Collateral Consequences Against Pretrial Detention in Decisions to Plead Guilty"

The title of this post is the title of this new article on SSRN authored by Vanessa Edkins and Lucian Dervan.  Here is its abstract:

With a criminal conviction comes numerous restrictions on rights, and often these collateral consequences are not adequately communicated to a defendant accepting a plea deal. The question we posed was whether informing individuals of collateral consequences would alter their decisions to plead.  Using prospect theory (Kahneman & Tversky, 1984) and the theory of temporal discounting (Ainslie, 1975), we hypothesized that the delayed nature of collateral consequences — especially if the consequences were competing with overly enticing immediate rewards to accepting a plea deal, namely the ability to be released from pretrial detention — would not have the desired effect of exerting a strong influence on decisions to plead.

Across two studies — the first, an exploratory within-subjects design; the second, a more controlled between-subjects design — we found that while actual guilt mattered the most with regard to decisions to plead, pretrial detention also weighed heavy (especially influential in challenging our innocent participants’ steadfastness to hold out for a trial). Collateral consequences did not have as large of an impact, especially if pretrial detention was involved.  We also saw that, in general, participants were not opposed to the imposition of most collateral consequences.  Future directions for plea bargaining research are discussed.

September 22, 2018 in Collateral consequences, Procedure and Proof at Sentencing | Permalink | Comments (0)

Monday, September 17, 2018

SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"

Guest-postsI am very grateful that Wayne Logan, the Gary & Sallyn Pajcic Professor of Law at Florida State University and the author of Knowledge as Power: Criminal Registration and Community Notification Laws in America (Stanford Univ. Press, 2009), reached out to offer me an original commentary on a case to be heard by the Supreme Court next month.  Here it is:

Herman Gundy, convicted of providing cocaine to a young girl and raping her, is a decidedly unlikely emissary in conservatives’ campaign to dismantle the administrative state.  In Gundy v. United States, to be argued the first week of the Supreme Court’s coming term, the Justices will address whether Congress violated the “non-delegation doctrine” when it directed the U.S. Attorney General to decide whether the federal Sex Offender Registration and Notification Act (SORNA) should apply to individuals convicted before its 2006 enactment.  Gundy, whose rape conviction was in 2005, has a dog in the fight because the attorney general made SORNA retroactive, and Gundy was convicted of a felony under SORNA after he traveled interstate in 2012 without informing authorities.

The Court’s decision to hear Gundy’s case came as a major surprise.  The Justices have not invalidated a congressional delegation in over eighty years and all eleven federal appellate courts addressing the issue have concluded that the delegation was proper.  At least four Justices, the number needed to grant certiorari, however, thought the issue worth considering, clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies.

If this occurs, it would be ironic.  Conservatives usually tout people like Gundy as poster boys for tough-on-crime policies, such as SORNA, which was enacted by a Republication Congress, signed into law by Republican President George W. Bush, and made retroactive by his attorney general (Alberto Gonzales).  Meanwhile, liberals, often fans of the administrative state, in areas such as environmental protection and workplace safety, tend to voice concern over such heavy-handed criminal justice initiatives.

On the merits, Gundy appears to have a strong claim.  For a delegation to be proper, Congress must provide an “intelligible principle” to guide the delegated decision, which as Chief Justice John Marshall stated in 1825 should merely “fill up the details” of a law’s application.  With SORNA, Congress simply directed the attorney general to decide the retroactivity question — hardly a detail, as it affected half a million people and has required significant federal prosecutorial resources.

Whether SORNA should apply retroactively is the kind of basic policy question that democratically accountable members of Congress should decide.  But they punted, for obvious political reasons.  The House and Senate could not agree on retroactivity and, when states later provided the attorney general input on SORNA’s possible retroactivity to their own registries, many vigorously objected to retroactivity.

Regardless of whether registration and notification actually promote public safety, which research has cast doubt upon, federal policy on the issue has long been marked by overreach.  Since 1994, when Congress first began threatening states with loss of federal funds unless they followed its directives, federal involvement has rightly been viewed as both foisting unfunded mandates upon states and a ham-fisted effort to policy-make in an area of undisputed state prerogative: criminal justice policy.

When Gundy is argued and decided Justice Neil Gorsuch will likely play a key role.  As a member of the Tenth Circuit Court of Appeals, then-Judge Gorsuch wrote a lengthy dissent from his colleagues’ refusal to reconsider en banc their decision that the SORNA delegation was proper.  Gorsuch advocated a requirement of heightened guidance in criminal justice delegations, justified by the unique “intrusions on personal liberty” and stigma of convictions.  There is considerable appeal to Justice Gorsuch’s view, which the Court itself suggested in 1991.  Moreover, unlike other policy areas, such as environmental quality and drug safety, criminal justice typically does not require scientific or technical expertise, lessening the practical need for delegations in the first instance.

Ultimately, the Court might conclude, with justification, that the SORNA delegation was invalid because it lacked any “intelligible principle.”  On the other extreme, as Justice Thomas might well urge, the Court could outlaw delegations altogether.  Chief Justice Roberts, in a dissent joined by Justice Alito, recently condemned the “vast power” of the administrative state, and Court nominee Judge Brett Kavanaugh has signaled similar antipathy.  Meanwhile, it is hard to say how the Court’s liberals will vote, given the conflicting interests at work.  Time will tell how the dynamic in Gundy plays out but the uncertainty itself provides yet more evidence of the high stakes involved in filling the Court’s current vacancy.  

September 17, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, September 12, 2018

Florida felony disenfranchisement ugliness getting a lot more scrutiny thanks to John Oliver

John-oliver-discusses-felony-disThis local article, headlined "This HBO comedian ridiculed Florida’s clemency process. Rick Scott takes it seriously," reports on notable developments in Florida thanks in part to a low-profile issue getting some high-profile attention.  Here are excerpts:

For only the third time this year — but this time under a withering national media glare — Florida’s highest elected officials sat in judgment Tuesday of people whose mistakes cost them the right to vote.

During a five-hour hearing, 90 felons made their case to Florida Gov. Rick Scott and three members of the Cabinet, asking to have their rights restored. It was a packed house in the Cabinet room of the state Capitol, as Tuesday’s hearing drew reporters and cameras from, among other outlets, NPR, The Huffington Post and The Guardian. The hearings typically attract one or two members of the Tallahassee press corps.

Only two days before, Florida’s restoration of rights process was skewered on national TV by John Oliver of HBO’s “Last Week Tonight.” He devoted a 13-minute segment to the Florida clemency system, calling it “absolutely insane” and mocking Scott for creating “the disenfranchisement capital of America.”

Under a policy struck down by a federal judge that remains in effect while Scott and the state appeal, anyone with a felony conviction in Florida must wait five years before petitioning the state to regain the right to vote, serve on a jury or possess a firearm.

Florida has an estimated 1.5 million felons who have been permanently stripped of the right to vote, far more than any other state. To get their rights restored, they must formally apply to make an appeal before Scott and the Cabinet, which is now composed of Attorney General Pam Bondi, Agriculture Commissioner Adam Putnam and Chief Financial Officer Jimmy Patronis....

Voters will have a chance to overhaul the restoration system before Scott and the three Cabinet members are scheduled to hold their next clemency hearing on Dec. 5. A month before then, on Nov. 6, voters will decide on Amendment 4 that would restore the right to vote to most felons after they complete their sentences, if 60 percent of voters approve....

The five-year waiting period was implemented by Scott, Bondi, Putnam and another Cabinet member after their election in 2010. A statewide petition drive collected nearly 1 million signatures to get Amendment 4 before voters this fall.

Scott, the Republican nominee for U.S. Senate against Democrat Bill Nelson, supports the existing system. With his approval, the state is now appealing U.S. District Court Judge Mark Walker’s decision to strike down the rights restoration system as arbitrary and unconstitutional.

Amendment 4 does not distinguish between violent and non-violent felons, but people convicted of murder and sex crimes would not be eligible to regain their rights if it passes. A political committee that supports the amendment, Floridians for a Fair Democracy based in Clearwater, spent $3.579 million in the week ending Aug. 31, with nearly all of the money spent on a “media buy,” which likely means TV advertising. The group has raised $14.4 million so far with large contributions from a number of wealthy out-of-state individuals and from the American Civil Liberties Union.

The permanent elimination of civil rights to felons has been in effect in the state for more than a century, under Republican and Democratic governors, and was lifted only during the four-year term of Charlie Crist, from 2007 to 2011, when 155,315 offenders who were released had their rights restored. Under Scott, only about 4,350 offenders have had their rights restored.

The full John Oliver segment, which is gets especially interested toward the end, is available at this link.

Some (of many) prior related posts:

September 12, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Misdemeanor Records and Employment Outcomes: An Experimental Study"

The title of this post is the title of this new empirical research available via SSRN and authored by Peter Leasure. Here is its abstract:

Objectives:  This study examined whether misdemeanor drug convictions impact entry-level employment outcomes.

Methods:  A multifactor between subjects correspondence design was used whereby fictitious resumes are sent to employers.  Resumes were randomly assigned to one of three groups: no criminal record, one-year-old misdemeanor record, and a one-year-old felony record.  Resumes were also randomly assigned with a distinctively White or African American name. Job type was used as an additional predictor.

Results:  Results indicate that a misdemeanor conviction significantly hinders early employment outcomes for both African American and White applicants.  However, results did not show statistically significant differences in callbacks between races.

Conclusions:  These results should be utilized to better inform defendants, practitioners, and policy-makers on the negative impacts of low-level convictions.

September 12, 2018 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

Tuesday, September 11, 2018

"Digital Expungement"

The title of this post is the title of this paper I just saw on SSRN authored by Eldar Haber.  Here is its abstract:

Digital technology might lead to the extinction of criminal rehabilitation.  In the digital era, criminal history records that were expunged by the state remain widely available through commercial vendors (data brokers) who sell this information to interested parties, or simply through a basic search of the Internet.  The wide availability of information on expunged criminal history records increases the collateral consequences a criminal record entails, thereby eliminating the possibility of reintegration into society. Acknowledging the social importance of rehabilitation, policymakers attempted to regulate the practices of data brokers by imposing various legal obligations and restrictions, usually relating to the nature and accuracy of criminal records and the purposes for which they may be used.  These regulations have been proven insufficient to ensure rehabilitation. But regardless of future outcomes of such regulatory attempts, policymakers have largely overlooked the risks of the Internet to expungement.  Many online service providers and hosting services enable the wide dissemination and accessibility of criminal history records that were expunged.  Legal research websites, websites that publish booking photographs taken during an investigation (mugshots), social media platforms, and media archives all offer access to expunged criminal histories, many times without charge, and all with the simple use of a search engine. Without legal intervention, rehabilitation in the digital age in the U.S. has become nearly impossible.

This Article offers a legal framework for reducing the collateral consequences of expunged criminal records by offering to re-conceptualize the public nature of criminal records. It proceeds as follows.  After an introduction, Part II examines rehabilitation and expungement as facets of criminal law.  Part III explores the challenges of digital technology to rehabilitation measures.  Part IV evaluates and discusses potential ex-ante and ex-post measures that could potentially enable rehabilitation in the digital age.  It argues that while ex-post measures are both unconstitutional and unrealistic for enabling digital expungement, ex-ante measures could be a viable solution.  Accordingly, this Article suggests implanting a graduated approach towards the public nature of criminal history records, which would be narrowly tailored to serve the interests of rehabilitation-by-expungement. Finally, the last Part concludes the discussion and warns against reluctance in regulating expunged criminal histories.

September 11, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections | Permalink | Comments (0)

Sunday, September 09, 2018

"Sex Offenders, Custody and Habeas"

The title of this post is the title of this new paper by Wendy Calaway now available via SSRN.  Here is the abstract:

Habeas Corpus is lauded as the ultimate bastion of protection for individual liberty.  It is often the last opportunity criminal defendants have at their disposal to unshackle themselves from a criminal conviction or sentence.  Despite the rhetoric surrounding habeas corpus, legislative efforts to limit access to habeas review are well known and have become pervasive.  However, at least one aspect of these limitations has traditionally been given very liberal interpretation by the courts.  The requirement that the habeas petitioner be in custody in order to be eligible for habeas review has been given broad definition.  The courts have not required that an individual be physically held in order to satisfy the custody requirement.  In a series of cases, the courts have determined that everything from parole, to probation, to an OR bond pending trial satisfy the statutory requirement of custody.  However, the courts have uniformly refused to extend this liberal interpretation of custody to individuals subject to statutory sex offender requirements.

This Article argues that the requirements imposed on sex offenders are at least as onerous and burdensome as those imposed on parolees, probationers and those on bond awaiting trial. In many cases, the sex offender requirements are considerably more arduous.  The Article discusses the history and evolution of the custody requirement and its application to sex offender cases.  Using specific examples of cases where individuals subject to the sex offender requirements have suffered tangible and intangible restrictions on liberty and have failed to obtain relief in the courts, the Article argues that the courts have failed to consider the actual implications of these restrictions. Social science research on the collateral consequences of sex offender requirements is reviewed.  The Article concludes that courts should re-examine the application of the custody doctrine to sex offenders, acknowledging the actual effects these restrictions have on the liberty interests of the individuals.

September 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Saturday, August 25, 2018

"Summonsing Criminal Desistance: Convicted Felons' Perspectives on Jury Service"

The title of this post is the title of this interesting paper authored by James Binnall recently posted to SSRN.  Here is its abstract:

This exploratory study is the first to examine how convicted felons view the jury process and their role in that process.  Data derived from interviews with former and prospective felon-jurors in Maine, the only US jurisdiction that does not restrict a convicted felon’s opportunity to serve as a juror, reveal that participants displayed an idealized view of jury service, stressing a commitment to serve conscientiously.  Additionally, inclusion in the jury process affirmed their transitions from “offenders” to “non-offenders.”  In response, participants exhibited a sense of particularized self-worth, emphasizing that negative experiences with the criminal justice system make one a more effective juror.  In sum, this study suggests that among convicted felons, inclusion in the jury process may prompt conformity with the “ideal juror” role, facilitate prosocial identity shifts by mitigating the “felon” label, and help former offenders to find personal value.

August 25, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Wednesday, August 22, 2018

"Felon-Jurors in Vacationland: A Field Study of Transformative Civic Engagement in Maine"

The title of this post is the title of this new article authored by James Binnall. Here is the abstract:

Maine is the only jurisdiction in the United States that places no limitations on a convicted felon’s juror eligibility.  Instead, Maine screens prospective felon-jurors using their normal jury selection procedures. In recent years, scholars have suggested that meaningful community engagement can help facilitate former offenders’ reintegration and criminal desistance.  From that theoretical posture, a number of empirical studies have explored the connection between participation in the electorate and the reentry of former offenders. Those studies suggest that voting has the potential to prompt pro-social changes among former offenders.  Still, to date, no research has focused on jury service as a form of civic inclusion that may foster successful reintegration and criminal desistance.

Drawing on data derived from a large-scale field study in Maine, the present article addresses this research void, arguing that the jury is perfectly positioned as a tool for change, employable by jurisdictions seeking to facilitate the successful reentry of former offenders.  This article further notes that Maine is the only U.S. jurisdiction that has exploited this transformative power of the jury process. 

August 22, 2018 in Collateral consequences, Reentry and community supervision | Permalink | Comments (2)

Saturday, August 18, 2018

Discussions of criminal justice supervision and collateral consequences that merit extended conversations

This past week I saw two notable commentaries over at The Conversation. Here are links and brief excerpts:

Vincent Schiraldi, "Parole and probation have grown far beyond resources allocated to support them"

Today, there are twice as many people supervised on parole or probation as are incarcerated in the U.S....

Thousands of probation and parole officers supervise nearly 5 million people across the U.S. However, as the number of people under community corrections has swelled, resources for officers have lagged. While twice as many people are supervised in the community as are incarcerated, 9 out of 10 correctional dollars is funneled to prisons according to a report from 2009, the most recent year with available data....

In 2017, every major community corrections association in the U.S., along with 45 elected or appointed prosecutors and 35 probation and parole officials as well as myself wrote in a statement: “Designed originally as an alternative to incarceration, community corrections has become a significant contributor to mass incarceration” that should be downsized while reinvesting the savings in “improving community based services and supports for people under supervision.”

Stanley Andrisse, "I went from prison to professor — here’s why criminal records should not be used to keep people out of college"

Beginning next year, the Common Application – an online form that enables students to apply to the 800 or so colleges that use it – will no longer ask students about their criminal pasts.

As a formerly incarcerated person who now is now an endocrinologist and professor at two world-renowned medical institutions — Johns Hopkins Medicine and Howard University College of Medicine — I believe this move is a positive one.  People’s prior convictions should not be held against them in their pursuit of higher learning.

While I am enthusiastic about the decision to remove the criminal history question from the Common Application, I also believe more must be done to remove the various barriers that exist between formerly incarcerated individuals such as myself and higher education.

August 18, 2018 in Collateral consequences, Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

"Divided We Fall: Parole Supervision Conditions Prohibiting Inter-Offender Associations"

The title of this post is the title of this new article recently posted on SSRN and authored by James Binnall. Here is the abstract:

In the United States, almost all criminal offenders who serve a term of imprisonment are subject to a period of post-incarceration supervision.  Commonly known as parole, this form of supervision requires former inmates to comply with a variety of conditions.  A nationwide survey of standard parole conditions reveals that a vast majority of jurisdictions categorically restrict parolees’ associations with other parolees, convicted criminals, and/or convicted felons.  These blanket offender no-association conditions ostensibly presume that former offenders are irreparably flawed, homogenous, and that inter-offender relationships are uniformly criminogenic.

This article questions those presumptions, suggesting that offender no-association conditions endorse an untenable conceptualization of former offenders, a rejection of evidence-based parole practices, an uninformed view of inter-offender associations, and a superficial application of criminological theory.  This article further argues that by categorically prohibiting all inter-offender associations, offender no-association conditions foreclose strengths-based approaches to reentry and inhibit mechanisms that can foster criminal desistance. In this way, such conditions unnecessarily subvert the rehabilitative goal of parole, likely making them impermissibly overbroad in their current form.

August 18, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Friday, August 17, 2018

New research finds racial bias infects sex-offender classification system under SORNA

A helpful reader made sure I did not miss this Crime Report piece headlined "Sex Offender Registration Influenced by Racial Bias, Ohio Study Claims." Here are excerpts:

The classification of sex offenders based on the risks they pose to the community following their release from prison is subject to racial bias, according to a study published in the Criminal Justice Policy Review.  African-American sex offenders were found to be two-and a half times likelier to be inaccurately designated as high-risk than their Caucasian counterparts by a state-sponsored risk-assessment instrument, said the study, which was based on a sample of 673 sex offenders in the state of Ohio who were convicted of a sex crime and released between 2009 and 2011.

Risk assessments that were overly weighted towards prior criminal records led to the skewed assessments, argued the authors, Bobbie Ticknor of Valdosta State University, and Jessica J. Warner of Miami University Regionals.  “Approximately 85 percent of the individuals classified in the highest tier, who theoretically posed the greatest danger, did not have a conviction for a new sex offense after the five-year follow up period,” the study found, adding that 15 percent of “Tier 1” offenders were under-classified, meaning their threat-level was underestimated.

The sample was limited to offenders who had received a classification under the Sex Offender Registration and Notification Act (SORNA) system established by the 2006 Adam Walsh Child Protection and Safety Act.  The law established guidelines aimed at protecing communities from convicted sex offenders who might pose continued threats to their community following release. SORNA is an offense-based classification system where offenders are assigned to one of three tiers according to “dangerousness.”  Tier designation is determined by prior offenses and the severity of the charge and conviction.... 

The reason why racial bias may influence the accuracy of SORNA designations lies in the fact that SORNA relies heavily on the criminal history of an individual, said the authors. The study cites prior research which produced evidence that “black defendants are less likely to accept a plea deal due to mistrust in the system…”  Going to trial increases the chances of being found guilty of more severe charges and receiving lengthier sentences, especially for minority defendants, according to the authors.

The study being discussed here is available at this link and is published under the title "Evaluating the Accuracy of SORNA: Testing for Classification Errors and Racial Bias." Here is its abstract:

Since its enactment in 2006, several researchers have explored whether the Sex Offender Registration and Notification Act (SORNA) classification system under the Adam Walsh Act improves outcomes such as increasing public safety and lowering recidivism of sexual offenders.  This study adds to the growing body of literature by exploring how accurate this offense-based classification system is in terms of recidivism and if there is any racial bias in tier designation.

Specifically, results from contingency analyses suggest that several sex offenders are overclassified, meaning that they were given a classification status that included more supervision and oversight although they did not commit another offense. Furthermore, African Americans were two-and-a-half times more likely to be overclassified than Caucasians which suggests racial bias may exist in this government-sponsored classification system.  Implications for communities and the continued use of the SORNA are presented.

August 17, 2018 in Collateral consequences, Criminal Sentences Alternatives, Data on sentencing, Detailed sentencing data, Race, Class, and Gender, Sex Offender Sentencing | Permalink | Comments (0)

Thursday, August 02, 2018

"The Digital Wilderness: A Decade of Exile & the False Hopes of Lester Packingham"

The title of this post is the title of this notable new paper authored by Guy Padraic Hamilton-Smith now available via SSRN. Here is its abstract:

The United States Supreme Court’s decision in Packingham v. North Carolina announced that people who have been convicted of sex offenses have a First Amendment right to access social media platforms.  In reaching its conclusion, the Court reasoned that the public square — and the communicative activity that the First Amendment protects — now exists on these platforms “in particular.”

Despite Packingham’s promise of free speech for arguably the most despised, feared, and misunderstood group of people in America, it did not directly address ways in which both the state and private actors keep Packingham’s beneficiaries in digital darkness.  As the rolls of America’s sex offense registries swell to near one million people in 2018, sustained exclusion from platforms that society increasingly relies on for civic engagement functionally cripples the ability of an enormous population of people to reintegrate, participate, and effectively challenge laws and policies that target them long after they have exited the criminal justice system.  Far from being dangerous or illicit, the voices of people directly impacted are necessary to properly balance a system which has all but foreclosed redemption, and thus their inclusion gives life not only to the values at the heart of Packingham, but to our conception of justice as well.

August 2, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (3)

Thursday, July 26, 2018

Michigan Supreme Court declares plea agreement provision barring pursuit of public office unenforceable as against public policy

A helpful reader alerted me to an interesting decision today by the Michigan Supreme Court in Michigan v. Smith, No. 156353 (Mich. July 26, 2018) (available here). Here is how the court's majority opinion gets started:

As part of defendant’s plea deal, he agreed to resign his position as a state senator and not seek public office during his five-year probationary term.  After reviewing the agreement, the trial court determined that these terms violated the separation-of-powers doctrine and public policy.  It struck down the terms but, over the prosecutor’s objection, enforced the rest of the plea deal.  The Court of Appeals affirmed.

We took this case to decide whether the resignation and bar-to-office provisions of the plea deal were enforceable, and if not, whether the trial court erred by refusing to allow the prosecutor to withdraw from the deal.  We hold that: (1) the question regarding the resignation provision is now moot and we therefore decline to reach it and instead vacate the Court of Appeals’ discussion of that issue, (2) the bar-to-office provision is unenforceable as against public policy, and (3) the trial court erred by not permitting the prosecutor to withdraw from the plea agreement under People v Siebert.  We would have further held that the validity of the bar-to-office provision must be assessed under the balancing test in Town of Newton v Rumery. [FN: Town of Newton v Rumery, 480 US 386; 107 S Ct 1187; 94 L Ed 2d 405 (1987). Because the partial concurrence did not join this portion of the opinion, adoption of the Rumery test failed to garner majority support.]

And here is a key passage in the court's discussion:

However egregious defendant’s alleged offenses may be, they do not directly relate to the duties and responsibilities of public office — he was not charged with misconduct that was in any manner related to public office. Consequently, the prosecutor can point to no legitimate reason for the bar-to-office provision.  Its inclusion in the plea agreement reflects, instead, the prosecutor’s own conclusion that defendant should not serve in public office.  Our laws do not give prosecutors the unilateral authority to make this determination.

July 26, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Thursday, July 19, 2018

"Why Can’t We Redeem the Sex Offender?"

The title of this post is the title of this revised commentary appearing at The Crime Report.  Here are excerpts:

When large nonprofit organizations otherwise committed to making the American justice system less draconian hire people with violent criminal records, they send a strong message that justice-involved people change, and are capable of not only reentry but success.

But these same organizations do not have anyone on the sex offender registry on staff, regardless of qualifications or demonstrated rehabilitation.

This is unsurprising, yet tragic.  When most people think of “sex offenders,” they imagine repulsive and heinous crimes against very young children.  And in 2005, a Gallup poll suggested that Americans feared terrorists less than sex offenders.

In reality, the phrase “sex offender” describes any person convicted under a statute that requires sex offender registration, which lasts anywhere from 10 years to natural life, depending on the state and the offense.  The registry includes everyone from the mentally ill, remorseful flasher to the sexually-motivated killer, as well as the older party in a high school sweetheart relationship to a dangerous child rapist.  There are almost one million Americans on sex offender registries, including people convicted for relatively minor sex crimes as children.

And what might sound like a heinous crime based on the name alone, like the production of child pornography, can describe what Edward Marrero faces prosecution for in federal court. Mr. Marrero admitted in court that he took sexual photos of his 17-year-old girlfriend when he was only 20 years old himself.  Marrero now faces 15-to-30 years in federal prison for photos of a relationship that would be legal virtually everywhere in the world.

It is important for directly impacted people to have a say in efforts intended to help them.  For example, the American Civil Liberties Union (ACLU) has pushed against employment discrimination against those with criminal records, and has more recently has hired highly qualified people who have committed serious crimes in their pasts.  But the ACLU appears to not have a single person on the registry as a part of any branch’s staff.

Is a close-in-age relationship between a young adult and a teenager morally worse than murder, kidnapping, or robbery?  What about teen sexting?  No, and the absolute dearth of otherwise-qualified sex offenders in criminal justice reform careers shows how far we have titled the scales from reality.

Criminal justice reform organizations should be able to ask these questions and answer them realistically, without putting too much credence in the byzantine and cruel state of American sex laws.  After all, we know better than anyone that the law is not always what is right.  Let us hire sex offenders when we believe in them.

July 19, 2018 in Collateral consequences, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (5)

Monday, July 09, 2018

Top DC court holds that threat of deportation, combined with jail time, sufficient to trigger Sixth Amendment right to jury trial

With the excitement of the ending of the SCOTUS Term and a new opening on the Court, I failed to blog about a fascinating opinion handed down District Of Columbia Court of Appeals late last month. The start of the majority opinion in Jean-Baptiste Bado v. US, No. 12-Cm-1509 (DC Ct.App. June 21, 2018) (available here), sets out the essentials effectively:

Jean-Baptiste Bado appeals his conviction for misdemeanor sexual abuse of a minor, after a bench trial, on the ground that he was denied the right to a jury trial guaranteed by the Sixth Amendment.  The court, sitting en banc, is asked to decide whether the Sixth Amendment guarantees a right to a jury trial to an accused who faces the penalty of removal/deportation as a result of a criminal conviction for an offense that is punishable by incarceration for up to 180 days.  By itself, that period of incarceration does not puncture the six-month line past which an offense is deemed ― "serious" and jury-demandable.  We hold that the penalty of deportation, when viewed together with a maximum period of incarceration that does not exceed six months, overcomes the presumption that the offense is petty and triggers the Sixth Amendment right to a trial by jury. T he conviction is reversed and the case remanded for a jury trial. 

In addition to an extended majority opinion, Bado also brings two concurring opinions that work through the rationale for and implications of the consequence of removal serving to trigger the Sixth Amendment jury trial right.  And a lead dissent penned by Judge Fisher highlights these implications and concerns:

According to the majority, a citizen charged with misdemeanor sexual abuse of a child does not have a right to a jury trial, but a noncitizen charged with the very same offense does. This is a startling result, neither compelled nor justified by Supreme Court precedent.

July 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Thursday, July 05, 2018

"Strong safety net is crucial to Americans in life after prison"

The title of this post is the headline of this recent commentary in The Hill authored by Bruce Western. Here are excerpts:

The House recently voted to significantly cut the Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps, which helps fight hunger in America.  New work requirements have gained the most attention, but the House bill also includes lifetime bans for people with prior convictions for several kinds of violent crimes.  People with violent convictions keep their food stamp eligibility under the bipartisan Senate bill, setting up a showdown in the conference committee.  Cutting benefits for people with criminal convictions is a particularly mean display of “tough on crime” credentials and makes little sense as public policy.

In a study I directed at Harvard, a research team followed 122 men and women from Boston over the year after their release from prison.  Unlike many other states, Massachusetts allows people with criminal convictions to receive SNAP benefits.  The study found this was essential for income support and social integration immediately after release from prison.

Income right after incarceration is very low.  In the study, the median annual income was about $6,500.  This is about half the federal poverty line for people living alone, an income level that researchers call deep poverty....  Our respondents usually contributed their SNAP benefits to the household food budget if they were living with family or were required to turn over their benefits to a common pool if they lived in a shelter or a sober house.  Supporters of the House bill think people should work for SNAP benefits, but we found that the highest rates of SNAP enrollment were among those with disabilities that limited work.  Respondents with histories of mental illness and drug addiction were also more likely to be receiving SNAP than others. Former prisoners who were older, over age 45, or suffered from chronic pain were also more likely to be receiving SNAP benefits.

We also found little evidence that SNAP benefits deterred from people from working.  SNAP recipients were no more likely to be unemployed once age and health status were accounted for in the study.  Massachusetts has relatively good safety net programs, and these made a significant difference for the men and women leaving prison in Boston.

Besides receiving SNAP benefits, nearly everyone we interviewed in the study was enrolled in Medicaid either just before they were released from prison or a few weeks later. Medicaid was critical for ensuring continuity of medical care for the many people leaving prison with chronic conditions in immediate need of medication....  A year after release from prison, the rate of SNAP enrollment in the study had fallen to 40 percent from its peak at two months of 70 percent.  SNAP provided critical support that helped stabilize life after incarceration and allowed those who were able to move into the labor market to find work. The Massachusetts safety net was one of the real success stories of the study....

As Congress considers the final bill for SNAP funding, lawmakers should take account of the research evidence. A strong safety net is indispensable for helping people find their way back in life after incarceration and is one of the best reentry programs of all.

July 5, 2018 in Collateral consequences, Reentry and community supervision, Who Sentences | Permalink | Comments (3)

Tuesday, July 03, 2018

"Study after study shows ex-prisoners would be better off without intense supervision"

The title of this post is the title of this notable new Brookings commentary authored by Jennifer Doleac.  I recommend the piece in full, and here is how it starts and concludes:

Two-thirds of those released from prison are re-arrested within three years.  This incarceration cycle hurts families and communities — and also costs a lot of money. Governments and nonprofits have tried many programs to reduce recidivism, but most are not successful.  In a recent review of the literature on prisoner reentry, I summarized the best evidence on how to improve the lives of the formerly incarcerated.  One of the most striking findings was that reducing the intensity of community supervision for those on probation or parole is a highly cost-effective strategy.  Several studies of excellent quality and using a variety of interventions and methods all found that we could maintain public safety and possibly even improve it with less supervision — that is, fewer rules about how individuals must spend their time and less enforcement of those rules.  Less supervision is less expensive, so we could achieve the same or better outcomes for less money.

For instance, Hennigan, et al. (2010), measured the effects of intensive supervision using a randomized controlled trial (RCT) in Los Angeles.  Juveniles sentenced to probation were randomly assigned to intensive supervision—in the form of a community-based after-school program—or standard probation.  Five years later, there were no significant differences in outcomes between the treatment and control groups, with one exception: Low-risk boys (ages 15 or younger) who were randomized to intensive supervision were worse off. Intensive supervision for that group led to more incarceration and a higher likelihood of continued criminal justice involvement in the years ahead.  That is, intensive supervision increased criminal activity by this group, without reducing criminal activity by other groups.

Barnes, et al. (2012) used an RCT to study supervision levels in Philadelphia.  Low-risk probationers were randomized to probation as usual or low-intensity supervision by parole officers with high caseloads (which forced them to pay less attention to each individual case).  Less supervision means probationers may be less likely to get caught for technical violations, such as using drugs or breaking curfew.  But these requirements of probation are a means to an end: what really matters for public safety is the number of new offenses committed.  Eighteen months after randomization, there were no significant differences between the treatment and control groups in the likelihood of being charged for a new offense.  In other words, low-intensity supervision did not result in more recidivism....

These studies show that current efforts to reduce recidivism through intensive supervision are not working.  Why is intensive supervision so ineffective?  Requiring lots of meetings, drug tests, and so on can complicate a client’s life, making it more difficult to get to work or school or care for family members (meetings are often scheduled at inconvenient times and may be far away).  A heavy tether to the criminal justice system can also make it difficult for individuals to move on, psychologically.  Knowing that society still considers you a criminal may make it harder to move past that phase of your life.  These difficulties may negate the valuable support that probation and parole officers can provide by connecting clients to services and stepping in to help at the first sign of trouble.

It is unclear what the optimal level of supervision is for those on parole or probation, but these studies demonstrate that current supervision levels are too high.  We could reduce the requirements of community supervision — for low-risk and high-risk offenders alike — and spend those taxpayer dollars on more valuable services, such as substance abuse treatment or cognitive behavioral therapy.  This would be a good first step toward breaking the vicious incarceration cycle.

July 3, 2018 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Monday, July 02, 2018

Rich new issues of Federal Sentencing Reporter covers "Managing Collateral Consequences in the Information Age"

The fine folks over at the Collateral Consequences Resource Center reminded me through this new post that the big new double issue of the Federal Sentencing Reporter is right now fully available on-line here thanks to the fine folks at the University of California Press. Here is how the CCRC folks summarize the issue's coverage:

“Managing Collateral Consequences in the Information Age” is the title of a symposium issue of the Federal Sentencing Reporter.  It is composed of papers prepared for a conference on criminal records issues jointly sponsored by the American Law Institute and the National Conference of State Legislatures in January 2018, and associated primary source materials. The issue’s Table of Contents shows the breadth and variety of topics covered.  An introductory essay by Margaret Love summarizes the approach to managing collateral consequences in the revised sentencing articles of the Model Penal Code, and the seemingly contrary trends in records management in state legislatures in recent years. She also describes each of the papers.

This special double issue of FSR contains so much interesting an diverse material, I recommend readers check out the TOC and Introductory essay to decide which articles they want to read first.

This issue includes the final version of of my recent paper titled "Leveraging Marijuana Reform to Enhance Expungement Practices."  Another piece focused on particular types of offenders is authored by Nora Demleitner under the title "Structuring Relief for Sex Offenders from Registration and Notification Requirements: Learning from Foreign Jurisdictions and from the Model Penal Code: Sentencing."  But the bulk of the of the materials in the issue covers individual state reforms in states that are not often at noticed to be at the forefront of criminal justice reforms efforts.  Specifically, a set of pieces look at Indiana's new expungement laws, and other piece look closely at other states including Nevada, North Carolina and Tennessee.

July 2, 2018 in Collateral consequences, Recommended reading, Reentry and community supervision | Permalink | Comments (0)

Wednesday, June 20, 2018

"Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders"

The title of this post is the title of this new paper available via SSRN authored by Ben McJunkin and J.J. Prescott.  Here is its abstract:

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices.  Many offenders will be monitored for life.  The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as “civil” in character — and courts have seemed to agree.

In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil character of the surveillance.  Grady left open the question whether the search — and the state’s technological monitoring program more generally — was constitutionally reasonable.  This Essay considers the doctrine and theory of Fourth Amendment reasonableness as it applies to both current and envisioned sex offender monitoring technologies to evaluate whether the Fourth Amendment may serve as an effective check on post-release monitoring regimes.

June 20, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections | Permalink | Comments (3)

Suggesting home confinement as an incarceration alternative to avoid family separation back home

Tyler Cowen has this notable new commentary bringing home a controversy over immigration policies.  The piece is headlined "American Families Shouldn't Be Separated, Either: What if more parents, when convicted of crimes, were sentenced to house arrest for the benefit of their children?".  Here is how it starts and ends:

One of the worst American policies today is the decision of President Donald Trump’s administration to separate many immigrant parents from their children after they illegally cross the U.S. border.  Obviously, a case can be made for enforcing the border, but deliberate cruelty is never a good idea.  Those children — innocent victims all of them — will likely be traumatized for life.  I am uncomfortably reminded of the U.S.’s long history of separating parents and children from the days of slavery and during Native American removal and extermination.

If you agree with me on this, I’d like to push you one step further.  It’s horrible to forcibly separate lawbreaking parents from their young children, but we do that to American citizens, too.  According to one 2010 study, more than 1.1 million men and 120,000 women in U.S. jails and prisons have children under the age of 17.  These separations can be traumatic, and they help perpetuate generational cycles of low achievement and criminal behavior.

These problems are especially pressing for female prisoners and their children.  From 1991 to 2007, the number of children with a mother in prison more than doubled, rising 131 percent. About two-thirds of the women in state prisons are there for nonviolent offenses.  Sixty percent of those women have children under the age of 18, and in one survey one-quarter of the prisoners’ children were under the age of 4. Forty-one percent of the women in state prison had more than one child.

I have a simple proposal: Let’s take one-tenth of those women and move them from prison to house arrest, combined with electronic monitoring.  That would allow for proximity to their children.  If the U.S. isn’t plagued by a subsequent wave of violent crime — and I don’t think it will be — let us try the same for yet another tenth.  Let’s keep on doing this until it’s obviously not working.  In some of these cases the court might rule that the mother — especially if she is prone to child abuse or substance abuse — will not have full custody rights to her children.  Many other children, though, will benefit, and even visitation rights can help a child....

One estimate suggests that 11 percent of the children of imprisoned mothers end up in foster care.  This is not an area of investigation where data collection has been thorough or systematic, another sign of our neglect of the issue.  Nonetheless it seems that after the arrest of a parent, treatment of the children by the police is irregular across the country and often poorly handled.

In citing this evidence, I don’t mean to normalize the current treatment of illegal immigrant families — I consider it a moral disgrace.  What I am saying is that our treatment of outsiders is rarely an accident, and it so often mirrors how we have been treating each other all along.  That is yet another reason to be nicer to those who are most vulnerable.

June 20, 2018 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Tuesday, June 19, 2018

Georgia Supreme Court rules individual has essentially no procedural rights before being placed on state's child abuse registry

I saw yesterday a notable ruling by the Georgia Supreme Court in Georgia Department of Human Services v. Steiner, No. S18A0281 (Ga. June 18, 2018)(available here).  As I read the case, a 13-year-old's written statement that an older individual (age 52) hugged her and twice "started to hump me a way a dog would" led to his placement on the Georgia child abuse registry.  Upon getting a subsequent notice of his placement on the registry, Steiner challenged the (lack of) procedures on various grounds, and prevailed in lower courts. But on appeal to the Georgia Supreme Court, Steiner loses and the majority opinion gets started this way:

The Georgia Department of Human Services, Division of Family and Children Services (“DFCS”) appeals from the decision of the Lamar County Superior Court finding that Georgia’s central child abuse registry is unconstitutional, both on its face and as applied to appellee Christopher Steiner.  The trial court also found that DFCS failed to prove that Steiner committed an act of child abuse by a preponderance of the evidence as required to maintain Steiner’s listing in the registry.  This Court granted DFCS’s application for discretionary review. 

We hold that Steiner failed to demonstrate a constitutionally protected liberty or property interest sufficient to trigger the due process protections that he claims were violated by operation of the registry, and because the Act was constitutionally applied to Steiner, he lacks standing to bring his facial challenge on that ground.  We further hold that the child abuse registry is not criminal in nature, and that the superior court therefore erred in finding it to be so.  And because an abuse investigator’s determination about whether a report of child abuse is supported by the evidence is not a judicial function, the superior court erred in finding that the statute requiring the investigator to report such cases to DFCS for inclusion in the child abuse registry violates the separation of powers provision of the Georgia Constitution.  Finally, because at least “some evidence” supported the administrative hearing officer’s conclusion that DFCS had proved an act of child abuse as defined for purposes of the child abuse registry, the superior court erred in reversing the administrative law court.  We reverse.

June 19, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (6)

Wednesday, June 13, 2018

"When Tribal Disenrollment Becomes Cruel and Unusual"

The title of this post is the title of this new article available on SSRN authored by Judith Stinson. Here is the abstract:

In the past two decades, Native American tribes have disenrolled — permanently removed from tribal citizenship — thousands of tribal members, mainly because of lineage concerns or for political reasons.  In these instances, scholars generally decry disenrollment.  But there is a growing trend to disenroll tribal citizens for criminal conduct, and scholars (and even tribal members themselves) assume this is proper.  This paper argues that tribal disenrollment for criminal conduct violates the Indian Civil Rights Act’s prohibition on cruel and unusual punishment.

The Supreme Court held that denationalization as a result of criminal conduct is cruel and unusual punishment in violation of the Eighth Amendment.  Congress applied that same prohibition to Native American tribes in the Indian Civil Rights Act.  And traditionally, tribes, who had the inherent power to impose any sanction necessary, focused on restoring harmony rather than punishing offenders; permanent expulsion was almost never imposed.  Tribes are nations, and tribal membership is a voluntary compact equivalent in all meaningful respects to United States citizenship — hence, tribes cannot disenroll members for criminal behavior.  Yet Congress also severely limited tribes’ ability to punish criminal defendants by capping incarceration at one year, and crime in Indian country is a significant problem.  To allow tribes to battle crime and yet protect against cruel and unusual punishment, Congress should remove the limit on incarceration and individual tribal members can decide whether they are willing to submit to their tribe’s inherent power — and greater sentences — or voluntarily renounce their tribal citizenship.

June 13, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered | Permalink | Comments (3)

Tuesday, June 12, 2018

"Possession's not enough: Expunge all weed convictions"

Legal Marijuana Oregon Measure 91The title of this post is the headline of this recent editorial from the Newark Star-Ledger.  Regular readers likely know I take a shine to this opinion piece because of my recent work on a recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices,"  which call for jurisdictions to take an expansive approach to expungement when moving forward with marijuana prohibition reforms.  Here are excerpts from the editorial:

Even as New Jersey is poised to legalize marijuana, the cops are still arresting tens of thousands of people annually, mostly minorities, just for having a little pot. Many can't find work because of the stigma.

Jo Anne Zito was rejected for a job at Godiva chocolates because of a low-level marijuana possession charge, she told lawmakers last week. So, as we contemplate legalizing recreational weed, we need to ask: Does it make sense that people like her still won't be able TO get work at a candy store?

No. We can't legalize marijuana, yet continue to force them to "walk around with a scarlet letter," as Assemblywoman Annette Quijano (D-Union) put it. The answer is expungement. But the current debate is far too limited.

Quijano introduced a bill to allow those caught with a little pot to apply to have their records cleared; advocates argue they shouldn't have to initiate that onerous process, the state should do it automatically. None of this goes far enough.

We need to think big. We need to admit this was a mistake in the first place, and that a lot of decent people were caught up in the dragnet. So, sparing only those who possessed small amounts is really just a first step.

We need to expunge the records of those caught with more than just a little pot. And we need to expunge the records of low-level dealers as well, if a judge approves, as long as they didn't commit more serious crimes like selling to minors, carrying guns, or committing acts of violence.

Aside from cleaning these records, we need to release those currently imprisoned on such charges. Does it make sense to hold thousands of people behind bars for selling weed, while the government allows sales outside the prison walls?...

All states that have legalized pot have only done so for certain amounts. Anyone arrested for possessing more gets a ticket, rather than a criminal charge. Yet if our expungement policy is modeled to match, those previously charged with having any more pot can't get that wiped from their records. They will continue to be barred from employment, even as people who buy heaps of it after legalization are merely ticketed. That needs to be fixed. Expunging high-level dealing charges is likely impossible, for political reasons. But we should at least include intent to sell and lower level distribution and growing charges.

Granted, this is not without risk. A guy who pled down to a marijuana charge from money-laundering, for example, shouldn't get out of doing his time, or a criminal record. But we could include prosecutorial review, as a bill moving through California's legislature would. It requires the state to automatically dismiss any old marijuana charges, yet prosecutors would sift through the higher-level cases and contest them if necessary. California already allows many past pot charges to be dismissed or reduced based on a defendant's petition, although they might still surface if you apply for a government job.

Yes, it's a huge undertaking to expunge all these convictions retroactively, especially if our state does so without requiring a petition. But we derailed hundreds of thousands of lives with needless marijuana prosecutions, and nobody helped those people get jobs or find housing. Now we are saying it never should have happened. So let the state overcome the logistical hurdles, too.

Actually, with a little bit of advanced planning and the right infrastructure, it does not necessarily have to be a "huge undertaking" to expunge past marijuana convictions. Indeed, as noted in this post over at my marijuana blog, "Code for America helping with technology to enhance marijuana offense expungement efforts in California pilot program," private players are willing to help in various ways with this effort.

I have blogged a lot about this issue over at my Marijuana Law, Policy and Reform blog, and here is just a sampling of some recent postings:

June 12, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Thursday, June 07, 2018

"Treatment of sex offenders depends on whether they've challenged rules"

The title of this post is the headline of this lengthy new Detroit Free Press article. I recommend the piece in full, and here is how it gets started and additional excerpts:

Eight months after the U.S. Supreme Court effectively upheld a decision saying parts of Michigan's sex offender registry law — one of the toughest in the nation — were unconstitutional, thousands of former sex offenders who thought they'd be off the registry by now, or facing less severe restrictions, have seen no changes.

The law remains in place, unchanged, with the state defending it in more than three dozen lawsuits — many of which it has already lost.  The controversy involves a ruling two years ago by the U.S. 6th Circuit Court of Appeals in Cincinnati that said provisions enacted in 2006 and 2011 and applied to offenders convicted before then violates constitutional protections against increasing punishments after-the-fact.  Last October, the U.S. Supreme Court declined to hear the state's challenge to that ruling, effectively upholding it.

The rules prohibit offenders — many of whom have gone years if not decades without committing any crimes — from legally living, working or even standing within 1,000 feet of a school, a regulation that many say makes it hard for them to work, or to pick up or see their kids at school, and has forced some to give up jobs and homes.  The rules also require offenders to immediately register email addresses or vehicles and report to police as often as four times a year, in some cases, for the rest of their lives.

Because the appeals court decision came in civil cases and not class action lawsuits, the state has maintained those rulings apply only to the specific plaintiffs who brought them. And with the state Legislature failing to change the law, registrants find themselves in a legal morass, with the requirements they must comply with almost wholly contingent on whether the offender has successfully gone to court.  Michigan now has the fourth-largest sex offender registry in the country, with 43,623 registrants on its database, more than the state of New York, which has 40,623.

The disparities can be wide.  One man convicted 17 years ago of eight counts of sexual contact with several girls under the age of 13 sued prosecutors, arguing that the rules keeping him on the registry — with his photo, name, address listed publicly — for life were unconstitutional.  Last November, after the Supreme Court declined to take up the 6th Circuit decision, the state Court of Appeals agreed, saying those rules no longer apply to him.

But it's different for another man convicted of touching two girls under the age of 16 while drunk 24 years ago in another state but who has had a clean record since.  Last September, as a "Tier 2" offender, he was expecting to come off the registry after nearly a quarter century. But he was abruptly told by police that his case had been reviewed and that since one of those girls was under 13, he’d stay on the list — and be listed among the worst offenders on "Tier 3" — for life.  To this day, under Michigan law, he's subject to all those restrictions from which the first man has been freed....

In Michigan, any legal certainty about what is required of thousands of sex offenders is almost nil.

While some local prosecutors — like those in Wayne and Oakland counties — no longer enforce cases involving retroactive applications of the law, it's far from certain that others are following suit. Macomb County prosecutors, for instance, declined to answer the Free Press' questions about whether they are still enforcing those restrictions. And Michigan State Police — which oversees the registry — says, legally, all restrictions remain in place.

The state’s top law enforcement official, Attorney General Bill Schuette — who is running for governor — won’t say whether the 6th Circuit Court decision should be applied statewide, his office refusing comment.

Prior related post:

June 7, 2018 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

Tuesday, June 05, 2018

Is all the recent Trump clemency action creating (unhealthy?) excitement among federal prisoners?

The question in the title of this post is prompted by this lengthy Washington Examiner article headlined "Alan Dershowitz says anyone can get clemency from Trump, as buzz builds behind bars." Here are excerpts:

President Trump issued his first prison commutation after lunch with Alan Dershowitz. The men talked about Mideast politics before Trump "asked me what else was on my mind, and I told him.  I took advantage of the moment,” the longtime Harvard law professor recalled.

Dershowitz told the president about Sholom Rubashkin, a kosher meatpacking executive who was seven years into a 27-year prison sentence for financial crimes. Not long after, Rubashkin in December became the first — and so far only — person Trump released from prison. "You have to appeal to his sense of injustice," said Dershowitz, who often says on TV that Trump is treated unfairly in special counsel Robert Mueller’s Russia probe. "He feels he is now being subject to injustice, and so he's very sensitive to injustices."

Trump's approach to clemency, exhibited with a flurry of recent statements and official actions, is markedly different from his recent predecessors, generating enormous excitement among inmates.  Dershowitz believes just about anyone has a shot at bending Trump's ear, even though most successful cases have been pushed by well-connected advocates.   "I think if you write a letter to the president and you set down the case in a compassionate way, I think his staff knows that he's looking for cases of injustice. But you have to write it in a compelling way,” he said. “They have to write something that will catch the attention of someone on the president's staff."

So far, Trump has issued one prison commutation and five pardons.  But the pace is quickening.  Last week, he posthumously pardoned boxer Jack Johnson at the behest of “Rocky” actor Sylvester Stallone, saying Johnson’s early 1900s conviction was a race-motivated injustice.  On Wednesday, Trump met in the Oval Office with celebrity Kim Kardashian, who lobbied him to release Alice Johnson, a grandmother jailed for life since 1996 on drug-dealing charges.  Early on Thursday, Trump tweeted that he would pardon conservative author Dinesh D'Souza, who pleaded guilty in 2014 to a campaign-finance felony. Hours later, Trump told reporters he was considering pardoning celebrity chef Martha Stewart and former Gov. Rod Blagojevich, the Illinois Democrat who allegedly tried to sell President Barack Obama's Senate seat.

Although Johnson has not been given clemency, she remains optimistic.  “I'm feeling very hopeful after speaking with Kim about how well the meeting went with President Trump,” Johnson said in an email from prison Friday, facilitated by her longtime supporter Amy Povah, who leads the CAN-DO Foundation....  “I have strong reason to believe that President Trump is going to surprise many people,” said Povah...

Dershowitz said there's a method to the apparent madness of Trump’s clemency grants, which are a sharp break from the early-term stinginess of his recent predecessors. "You have to make him say to himself, 'There but for the grace of God go I, or other people I identify with.' He has to feel the injustice. It's not enough to get online with hundreds of other people showing a law was misapplied. There has to be a sense of gut injustice,” he said....

If there’s anyone who would know Trump’s thinking on clemency, it’s Dershowitz. In addition to pushing Rubashkin’s release, he was consulted by Trump in advance of the recent pardons of D'Souza and I. Lewis "Scooter" Libby, a former aide to Vice President Dick Cheney who was convicted in 2007 but never imprisoned for making false statements. “I said I thought they were both injustices, that there was a whiff of politics around the decision to prosecute D’Souza, and that I did not think Scooter Libby had committed perjury — I thought there was just a difference in recollection,” Dershowitz said.

"When I made the appeal on behalf of Rubashkin, I said, 'You are a businessman, you understand what happens when the government and prosecutors manipulate the system and lower the value of your company in order to increase the value of losses and increase the sentence.' As soon as I said that, he said, 'I get that. I get that. I've been there,’” Dershowitz said. "He immediately glommed onto it because he understood the business implications of it ... there wouldn't have been any losses, or minor losses, but because the government drove the price down, it drove the sentencing guidelines way up."...

“I've always thought President Trump would step up and finish the job that President Obama started but never completed,” said Michelle West, a clemency aspirant in prison for drug-related crimes since 1994. “My daughter, Miquelle West, went to the Obama White House for a clemency summit. In our wildest dreams we never thought that I would be passed over considering she was invited to attend.” West said in an email relayed by Povah that “my daughter was 10 when I went to prison and I pray President Trump will consider me worthy of a second chance.”

Crystal Munoz, 11 years into a 20-year sentence for dealing marijuana, said that she, too, was hopeful, sending Povah the draft of a letter for Trump. Munoz, 38, gave birth to her youngest child in prison.  Connie Farris, a 73-year-old inmate jailed for mail fraud, said "I will never, never give up hope that our president will start releasing women such as myself and others. Please President Trump hear our cry." Farris, seven years into a 12-year sentence, said her husband of 53 years suffers from muscular dystrophy and needs her support.

Although there’s significant hope stemming from Trump’s unconventional approach, there’s also some skepticism that everyday inmates can win a presidential reprieve. “The problem is, the president’s process is a little haphazard, it seems, and a little ad hoc. And then you have this completely Byzantine dead-end of a process at the Justice Department,” said Kevin Ring, president of Families Against Mandatory Minimums.

“I think people are encouraged that he’s going around the Justice Department to look at deserving cases, but it’s not clear that anybody has the ability to get in front of him — so sort of good news, bad news,” he said.  Ring said Dershowitz’s contention that anyone can win clemency with a letter is “a little naive.”  

“There are people who buy lottery tickets every Friday and they’re optimistic because they don’t know the odds. And when people see a winner, that gives them hope,” he said.

Like Kevin Ring, I am a bit concerned to hear that there may be "enormous excitement among inmates" given Prez Trump's clemency record to date.  He has only commuted a single sentence so far, and I have no reason to believe he has plans to start issuing dozens (let along hundreds) of additional commutations anytime soon.  Political realities has seemed to be influencing all of Prez Trump's clemency work to date, and precious few federal prisoner have political forces in their favor.  I sure hope Prez Trump will, as Amy Povah put it, "surprise many people," but I think hopes ought to be tempered for now.

Prior recent related posts about Trumpian clemency activity:

June 5, 2018 in Clemency and Pardons, Collateral consequences, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (7)

Sunday, June 03, 2018

Lots worth reading on eve of historic recall vote of Califorinia Judge Aaron Persky after his lenient treatment of Brock Turner

Regular readers surely already know a lot of the story and backstory surrounding the controversial sentencing of Brock Turner and the controversial recall campaign against the judge who sentenced him.  That recall campaign culminates in a vote this coming Tuesday, and that has prompted another notable round of media coverage.  Here are some recent media pieces with varying degrees of depth:

From CNN here, "Will voters bench the judge who gave a 6-month sentence in the Stanford sexual assault case?"

From the Los Angeles Times here, "Vandalism, threats, broken friendships: The heated campaign to recall judge in Brock Turner case"

From Vox here, "Brock Turner was sentenced to 6 months in jail for sexual assault. Now voters may recall the judge."

From HuffPost here, "When the Punishment Feels Like A Crime: Brock Turner's twisted legacy — and a Stanford professor's relentless pursuit of justice."

I would especially encourage readers to find the time to read the lengthy HuffPost piece, which is particularly focused around Stanford Law Professor Michele Dauber's work on the recall campaign.  The reporting in the piece stuck me as particularly thoughtful and balanced, and I learned new things big and small about the campaign and her efforts and goals.

Despite all this new reporting, I must note my own sense that there are still lots of angles on this case that are still not getting fully explored.  In particular, these articles and others only give passing mention of the fact that Turner was sentenced to a lifetime on the sex offender registry.  I have long speculated that this reality — which I believe was mandatory for his convictions — not only may have largely accounted for Judge Persky's short jail sentence, but also may have been a main reason Turner was unwilling to plead guilty and accept responsibility in the way the victim wished.  Ever since BuzzFeed published the full courtroom statement of Turner's victim (available here and recommended reading), I have always been struck by this passage: "Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead he took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public."   This passage still has me wondering about what kind of plea had been offered to Turner and whether the prospect of a lifetime on the sex offender registry was central to his decision to go to trial.

The CNN article linked above does make one (possibly overstated) point about the sex offender registry part of his punishment: "That's a penalty so burdensome that if Turner were to have children someday, he wouldn't be able to get near their school."  Of course, being on the registry for life means a whole lot more, too.  I continue to wonder not only if that reality influenced Judge Persky, but if other judges in California or around the nation regularly adjust their prison terms knowing the severe impact of the collateral consequences of sex offender registration.  I hear stories all the time of prosecutors and defense attorneys looking to "charge or plea around" particular crimes that carry sex offender registration or other severe collateral consequences.  If these collateral sanctions influence attorneys, surely they influence sentencing judges in various settings in various ways.  I would love to see more reporting on this element of the Turner case and Judge Persky's decision-making (recalling that Persky himself has been a state sex crimes prosecuot).  But perhaps only a sentencing nerd like me really cares all that much about this part of the story. 

In any event, readers can gear up for the recall election also by reviewing a number of prior posts here about the Brock Turner case.  I think it is fair to say that in these posts I have expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Judge Persky.  Here is just a sampling of the prior posts this case has generated:

June 3, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (9)

Friday, June 01, 2018

"Challenging the Punitiveness of 'New-Generation' SORN Laws"

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

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals.  To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause.  Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. 

This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws.  The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.

June 1, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3)

Wednesday, May 23, 2018

"Capitalizing on Criminal Justice"

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

The U.S. criminal justice system “piles on.”  It punishes too many for too long.  Much criminal law scholarship focuses on the problem of excessive punishment.  Yet for the low-level offenses that dominate state court workloads, much of the harm caused by arrests and convictions arises outside the formal criminal sentence.  It stems from spiraling hidden penalties and the impact of a criminal record.  The key question is not just why the state over-punishes, but rather why so many different institutions — law enforcement institutions as well as civil regulatory agencies and private actors — find it valuable to do so.

This Article argues that the reach of the criminal justice system is not just the product of overly punitive laws, but also the product of institutions capitalizing on criminal law decisions for their own ends.  Criminal law is meant to serve a public purpose, but in practice, key institutions create, disseminate, and rely on low-level criminal records because they offer a source of revenue or provide a cost-effective way of achieving discrete administrative objectives.  These incentives drive and expand the reach of the criminal justice system, even as they work in tension with the state’s sentencing goals.  This dynamic creates obvious harm.  But it also benefits key actors, such as municipalities, privatized probation companies, background check providers, employers, and others who have incentives to maintain the system as it is.  This Article identifies how organizational incentives lead a host of institutions to capitalize on criminal law decisions, and it argues that reform efforts must, as a central goal, recognize and respond to these incentives.

May 23, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

Tuesday, May 22, 2018

Interesting report touts the potential economicy benefits of restoring felon voting rights in Florida

As regular readers know, I think there are an array of strong moral, social and political arguments for ending felon disenfranchisement.  But this local article from Florida, headlined "Price tag for restricting felons' rights after prison put at $385 million a year," reports on an interesting effort to make an economic argument for a ballot initiative in the state to expand the franchise. Here are the details:

Seven years after Gov. Rick Scott and the Florida Cabinet voted to end the state policy that automatically restored the civil rights of nonviolent offenders after they complete their sentences, a price tag has emerged.  Florida lost an estimated $385 million a year in economic impact, spent millions on court and prison costs, had 3,500 more offenders return to prison, and lost the opportunity to create about 3,800 new jobs.

Those are just some of the conclusions of a new economic research report prepared by the Republican-leaning Washington Economics Group of Coral Gables for proponents of Amendment 4, the proposal on the November ballot that asks voters to allow the automatic restoration of civil rights for eligible felons who have served their sentences.  The report was commissioned by the Alliance for Safety and Justice, a national criminal justice reform organization that works with crime survivors, to show the economic impact of approving the amendment.

But the findings show more than the economic impact of what could happen if voters approve it. They also estimate the cost of the policy that was fast-tracked into law by the governor and Cabinet a month after taking office in 2011, its impact on crime and its cost to taxpayers. Scott, Attorney General Pam Bondi, Agriculture Commissioner Adam Putnam, and then-Chief Financial Officer Jeff Atwater repealed the automatic restoration of rights that had been in place for four years and replaced it with a plan requiring a minimum five-year waiting period before offenders could start the application process to have their voting and civil rights restored.

The action reversed the policy approved by the Cabinet in 2007 at the urging of then-Gov. Charlie Crist. Now, the only way a convicted felon can regain his or her civil rights is to wait five years and apply for a review at the state Office of Executive Clemency, which has limited resources and can take years....

The proposed amendment would restore rights automatically, except for those convicted of murder or a felony sexual offense. To come up with a price tag for the policy, economists looked at the data from 2007 to 2011 and compared it with current data. They focused on the recidivism rate, the number of released felons who returned to prison after being released and projected the costs and the impact those felons would have on the economy if they went to work instead.... By contrast, research shows that felons who have their voting rights restored, "have a greater ability to become full members of Florida’s society and economy, leading to a reduced rate of recidivism,'' the report said.

Before 2007, the recidivism rate for all felons was 33 percent, according to a 2011 report by the Florida Clemency Board. After Crist's policy, the average two-year recidivism rate for felons who had their rights restored was 12.4 percent, lower than the three-year average recidivism rate of all felons, which was 26.3 percent.

Under Crist, 155,315 offenders who were released got their rights restored. Under Scott, just 4,352 offenders have had their rights restored. Of those felons who have had their rights restored, less than 1 percent of them returned to crime and the average three-year recidivism rate for all felons in Florida in 2013 — the last year available — was 25.4 percent.

The governor's office disputes the claim that recividism rates dropped when more felons had rights restored. It argues the recidivism rate has been dropping in recent years in spite of the restrictive approach to rights restoration. Scott's office notes that the three-year recidivism rate has decreased from 30.5 percent for inmates released in 2007, the first year of Crist's policy, to 25.2 percent for inmates released in 2013, which is the latest data available and includes the last year of Crist's policy....

The report calculated the impact on the prison system and the courts using existing data on offenders and recidivism rates. It calculated the economic impact of their labor patterns on Florida using a model that considers the link between the demand one industry has on other industries. The report cites research that shows that felons earn less than average wages, and felons who do not have their voting rights restored earn 12 percent less than that.

"With higher incomes, eligible felons would be able to afford living in less-disadvantaged areas, which is associated with better employment outcomes after release and less recidivism,'' the report states. It estimates that employed eligible felons who had their rights restored would see an $88 million direct increase in income. That will ripple through the rest of the Florida economy, the economists said, "ultimately benefiting employment in many industries and Household Income for Florida residents, not just for the eligible ex-felon population."

The full research report referenced in this article is available at this link.

May 22, 2018 in Collateral consequences, Data on sentencing, Reentry and community supervision | Permalink | Comments (1)

Monday, May 21, 2018

"Sex offender registry: More harm than good?"

The title of this post is the headline of this lengthy report appearing in The Connecticut Mirror. The piece is focused mostly on the history of, and debate over, the sex offender registry in The Constitution State, but much of the discussion has a universal quality to it.  Here is how it gets started:

In the 1990s, in response to a number of horrific and highly publicized crimes against children, states and the federal government created stringent penalties for sex offenders, notably registries where offenders’ names and addresses are available to the public.  But now critics across the country are demanding review and revision of these policies, saying they are based on false assumptions, are a waste of money and do more harm than good.

The registries and related policies “are absolutely and fundamentally flawed. They do nothing to support prevention, are not a deterrent and do nothing for people who have survived sexual violence,” said Prof. Alissa Ackerman of California State University Fullerton, a criminologist and national expert on the treatment of sex offenders.

In 2015 the Connecticut Sentencing Commission, at the behest of the General Assembly, began a lengthy examination of Connecticut’s “system of assessment, management, treatment, and sentencing of sex offenders.”  After a two-year study, the commission recommended changing the state’s public registry from one based on the offense — commit most sex-related crimes and you go on the registry — to one based on the risk an offender poses to the community, as determined by a new, eight-member Sex Offender Registration Board.  Individuals found to be low-risk — and some adjudged moderate-risk — would be on a registry only available to law enforcement personnel.

The proposal was crystalized into a bill introduced during the immediate past session of the General Assembly, though it failed to make it out of the Judiciary Committee.

State Sen. Paul Doyle, co-chair of the committee, said the complexity and emotional nature of the issue made it more appropriate for the longer session next year. “We never got to the merits. Leadership was not prepared to deal with it in a short session.” He said he personally would have had to do more research before deciding how to vote.

In a related matter, the nonprofit Connecticut for One Standard of Justice, which advocates for the civil rights of sex offenders, filed a federal lawsuit on April 4 seeking to overturn a Windsor Locks ordinance which bars persons on the sex offender registry from most public places in town. The town’s “child safety zones” include a “park, school, library, playground, recreation center, bathing beach, swimming pool or wading pool, gymnasium, sports field, or sports facility” either owned or leased by the town. The suit claims banning a group of people from these facilities is unconstitutional....

The registry and laws such as child protection zones are based on a set of assumptions that research indicates are highly questionable or outright false. The Sentencing Commission’s 204-page report calls them “myths.”  They include:

  • Nearly all sex offenders reoffend.
  • Treatment does not work.
  • The concept of “stranger danger” — that most sexual assaults are the work of people unknown to the victims.

“Research does not support these myths, but there is research to suggest that such policies may ultimately be counterproductive,” the commission’s report says.

May 21, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6)

Monday, April 30, 2018

"One in four American adults lives with a criminal record -- It's time for them to get a second chance"

The title of this post is the headline of this new Fox News commentary authored by James Ackerman, who is president and CEO of Prison Fellowship.  Here are excerpts:

This year the U.S. Senate recognized April 2018 as Second Chance Month. Fittingly, the resolution came six years after the passing of a man who embodied the importance of second chances: former Nixon “hatchet man” Charles Colson.  Today, the prison ministry Colson founded after his release from federal prison is at the head of a nationwide movement to recognize the dignity of people who have paid their debt to society and open up opportunities for them to succeed.

One in four American adults lives with a criminal record, and more than 48,000 documented legal restrictions limit their access to education, jobs, housing, and other things necessary for a productive life. But the people most directly affected are not the only ones who care.  Businesses, faith communities, government leaders, and other diverse groups recognize that second chances are not a partisan issue, but an issue key to the security and flourishing of all our neighborhoods....

The growing resonance of Second Chance Month confirms that the idea of a “clean slate” is central to most Americans’ thinking.  A recent Barna poll commissioned by Prison Fellowship found that about half of Americans agree that former prisoners should be afforded a chance to be productive members of their communities.  One quarter of Americans strongly agree that former prisoners should not face any further penalties after they are released.

While based on our deeply held national values, second chances are also sound criminal justice policy.  Nationwide, the Bureau of Justice Statistics indicates that approximately two out of three people released from prison will be arrested again within three years.  In part, this is because up to 90 percent of the formerly incarcerated struggle to find employment within the first year after release; a criminal record is often enough to put their résumé at the bottom of the stack, if not straight in the waste bin.

Others are unable to find a landlord willing to rent to them, contributing to high rates of homelessness among the formerly incarcerated.  Other restrictions include obstacles to professional licensing, educational opportunities, and voting.  These official limitations, alongside heavy social stigma, can make it extraordinarily difficult to re-integrate smoothly into society. When formerly incarcerated people recidivate, it’s damaging to public safety and costly for taxpayers.

By removing restrictions that are not necessary for safety, we help people get their hands on the rungs of a ladder to a productive, law-abiding future. I am also convinced that second chances are worth giving because so many Americans stand as living proof of their effectiveness....  When given access to second-chance opportunities, many are profoundly hard-working and innovative — because they know what it’s like to live without opportunities.  Many people with a criminal record serve on the staff of Prison Fellowship.  Throughout our society, former prisoners are parents, business entrepreneurs, faith leaders, and more.  Putting unnecessary stumbling blocks in their way only deprives society of their potential contributions.

Hundreds of thousands of men and women are returning from prison every year.  If they have paid their debt to society and are ready to lead transformed lives, we must not throw obstacles into their paths.  When people have a chance to start over, it’s not just their second chance — it’s a chance for all of us to see transformed lives, safer communities, and a more just society.

My most recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices," is written in the spirit of this commentary and Second Chance Month (so I figured I should promoting again here).

April 30, 2018 in Collateral consequences, Reentry and community supervision | Permalink | Comments (14)

New York Court of Appeals upholds most serious sex offender registration despite defendant's acquittal on most serious charges

Over at Reason, Jacob Sullum has this effective new review of a notable example of "acquitted conduct" being used to justify a severe collateral consequence.  The posting's full headline provides the basic story: "A Jury Rejected the Charges, but He Still Has to Register As a Sex Offender for Life: New York's highest court says accusations can be considered for registration purposes even when the defendant was acquitted." Here are some of the particulars:

Quinn Britton's 13-year-old niece, identified in court documents as A.B., accused him of raping her during a Thanksgiving Day visit to her grandmother's home in Brooklyn, where her uncle lived, when she was 11. Britton denied any inappropriate behavior, and his mother said A.B. had spent the whole evening watching TV in the living room with her.... The jurors struggled to make sense of these conflicting accounts.  Since there was no physical evidence, the case came down to a question of whether to believe A.B. or Britton. During three days of deliberations, the jurors sent the judge three notes indicating that they were deadlocked. Each time he told them to keep deliberating.

Finally the jurors emerged with a verdict that seemed to split the difference between those inclined to believe Britton and those inclined to believe A.B.  They found Britton guilty of second-degree sexual abuse, a misdemeanor, based on the allegation that he kissed A.B.'s breasts, but not guilty of three felonies: first-degree rape, based on the allegation of penetrative sex, and two counts of a first-degree sexual act, based on allegations that he performed oral sex on the girl and forced her to perform oral sex on him.

During a post-trial hearing, the judge nevertheless assumed that Britton had committed the felonies and therefore assigned him to risk level two under New York's Sex Offender Registration Act (SORA), which triggers lifetime registration. Had the judge considered just the crime of which Britton was convicted, he would have been assigned to risk level one, which requires registration for 10 years.

In a 6-to-1 ruling last week, the New York Court of Appeals upheld Britton's classification, noting that it was supposed to be based on "clear and convincing evidence," a less demanding standard than the proof beyond a reasonable doubt required for a criminal conviction.  It is possible, in other words, for an alleged crime to figure in a defendant's risk level even when there is not enough evidence for a guilty verdict.

Writing in dissent, Judge Jenny Rivera charges her colleagues with improperly applying the "clear and convincing evidence" standard, which requires "a high degree of probability" that an allegation is true. A.B.'s testimony should not be treated as reliable under SORA, Rivera argues, because the jury did not find it credible.

April 30, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (5)

Wednesday, April 25, 2018

New Jersey Supreme Court finds unconstitutional requiring juveniles to be subject to lifetime sex-offender registration

The Supreme Court of New Jersey yesterday handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state's sex-offender registry law is unconstitutional as applied to some juvenile offenders. Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles -- that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).

April 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Monday, April 23, 2018

"Leveraging Marijuana Reform to Enhance Expungement Practices"

The title of this post is the title of this new paper I have written for a forthcoming issue of the Federal Sentencing Reporter which is now available via SSRN.  Here is the abstract:

States reforming marijuana laws should be particularly concerned with remedying the past inequities and burdens of mass criminalization.  State marijuana reforms should not only offer robust retroactive ameliorative relief opportunities for prior marijuana offenses, but also dedicate resources generated by marijuana reform to create and fund new institutions to assess and serve the needs of a broad array of offenders looking to remedy the collateral consequences of prior involvement in the criminal justice system.  So far, California stands out among reform states for coupling repeal of marijuana prohibition with robust efforts to enable and ensure the erasure of past marijuana convictions.  In addition to encouraging marijuana reform states to follow California’s lead in enacting broad ameliorative legislation, this essay urges policy makers and reform advocates to see the value of linking and leveraging the commitments and spirit of modern marijuana reform and expungement movements.

Part II begins with a brief review of the history of marijuana prohibition giving particular attention to social and racial dynamics integral to prohibition, its enforcement and now its reform.  Part III turns to recent reform activities focused on mitigating the punitive collateral consequences of a criminal conviction with a focus on the (mostly limited) efforts of marijuana reform states to foster the erasure of marijuana convictions.  Part IV sketches a novel proposal for connecting modern marijuana reform and expungement movements.   This part suggest a new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.

Cross-posted at Marijuana Law, Policy & Reform.

April 23, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, April 19, 2018

NY Gov Cuomo restores voting rights to parolees via executive order

Restoring_Voting_Rights_to_NYers_on_ParoleAs reported in this local article, New York's "Gov. Cuomo on Wednesday signed an executive order granting parolees the right to vote in New York." Here is more:

Cuomo announced the signing at the annual convention of Rev. Al Sharpton's National Action Network. He decried the state's current law blocking those who have been released from prison but are still on parole from voting, saying it didn't square with the goals of parole and re-entry.  "At the same time, we're saying we want you a part of society, we want you to get back into the community," he said.

Cuomo said he had proposed legislation to grant voting rights to parolees, but it was shot down by the State Senate — leading him to argue the state needs a new Legislature. But Cuomo said he wouldn't wait that long.  "I'm unwilling to take no for an answer," he said.  "I'm going to make it law by executive order and I announce that here today."

Cuomo signed the executive order later Wednesday afternoon.  There are about 35,000 New Yorkers on parole who could not vote, the governor’s office said.  The executive order will restore the right to vote upon release from incarceration, his office said, citing a disproportionate impact of disenfranchisement on communities of color and links between civic engagement and reduced recidivism.

Fourteen other states and the District of Columbia restore voting rights upon release....

Cuomo’s office pointed to other criminal justice reforms he’s enacted, including raising the age of criminal responsibility and naming the attorney general as a special prosecutor for police-related deaths, arguing he’s long cared about the issue.

Republicans, meanwhile, ripped the order. A "dumbfounded" Senate Majority Leader John Flanagan (R-Suffolk County) blasted it as “illegal and horrific public policy.”... Flanagan said that those on parole, including murderers and rapists, are still serving out their sentences and should not be entitled to their voting rights. He said he would not be surprised if a lawsuit is filed seeking to block the order and accused Cuomo of trying to "expand the universe of people who are eligible to vote."

Dutchess County Executive Marcus Molinaro, the front-runner for the GOP gubernatorial nomination, ... accused Cuomo of being a dictator. "Just months before an election, with the stroke of his pen, Andrew Cuomo, plans to restore the voting rights for cop killer Herman Bell and Palm Sunday killer Chris Thomas and calls it 'justice',” he said. “But if the dictator of a third world nation threw open it's prison doors and granted voting rights to the criminals right before a reelection, we all would be appalled.”...

The New York Civil Liberties Union praised the executive order, but also said Albany should push forward with legislation on same-day voter registration and early voting.

Gov. Cuomo's office issued this press release yesterday with this link to his executive order.  The press releases stressed additional points in support of Gov. Cuomo's decision:

Parole voting restrictions have a disproportionate impact on New Yorkers of color, with African Americans and Hispanic New Yorkers comprising 71 percent of the population so disenfranchised. Civic engagement is linked to reduced recidivism and this action will promote access to the democratic process and improve public safety for all New Yorkers. The executive order is available here. "I am issuing an executive order giving parolees the right to vote. It is unconscionable to deny voting rights to New Yorkers who have paid their debt and have re-entered society," Governor Cuomo said. "This reform will reduce disenfranchisement and will help restore justice and fairness to our democratic process. Withholding or delaying voting rights diminishes our democracy."

This executive action will reverse New York's current disenfranchisement of individuals released from prison who are under post-release community supervision. New York joins fourteen other states and the District of Columbia that restore the right to vote upon release from incarceration. There are roughly 35,000 individuals currently on parole in New York who cannot vote. These individuals are participants in society at large, despite the limitations placed on them by parole conditions. They work, pay taxes, and support their families, and they should be permitted to express their opinions about the choices facing their communities through their votes, just as all citizens do.

Additionally, the current law keeping people on parole supervision from voting is internally inconsistent with New York's approach to voting for people serving sentences of probation. People on probation never lose the right to vote, but many county election officials are unclear about the distinction between those on parole and those on probation, often resulting in illegal disenfranchisement. A 2006 Brennan Center study reported that one-third of all New York counties incorrectly barred people on probation from registering to vote, while another third of all counties illegally made individuals show proof of their voter eligibility status.

April 19, 2018 in Clemency and Pardons, Collateral consequences, Race, Class, and Gender, Who Sentences | Permalink | Comments (6)

Sunday, April 08, 2018

Interesting Vermont Supreme Court ruling on sex-offender probation conditions

As reported in this local press article, the "Vermont Supreme Court ruled on Friday that the state cannot uniformly declare pornography off-limits to sex offenders." Here is more from the press report:

The decision does allow a sex offender’s probation to include such restrictions, but only if they are deemed specifically appropriate to the individual offender.  The 18-page decision dealt with the probation conditions of a man convicted of sexual assault in 2012 in Chittenden County....

[Yetha L. Lumumba] appealed several conditions of his probation, including one that prohibited him from “purchasing, possessing or using pornography or erotica and going to adult bookstores, sex shops, and topless bars,” according to court records.  The condition was described at the sentencing hearing as a standard one for sex offenders because pornography is seen as contributing to an increased risk of reoffending

“Vermont’s probation statute makes it clear that a court cannot prohibit a probationer from engaging in lawful behavior unless the prohibition relates to the defendant’s rehabilitation or public safety,” the Supreme Court justices wrote.  “Other courts have persuasively concluded that a sentencing court must provide at least some support on the record for imposing a probation condition restricting a defendant’s use of pornography, even when the defendant was convicted of a sex offense.”

The full ruling in Vermont v. Lumumba, 2018 VT 40 (Vt. April 6, 2018), is available at this link and covers lots of ground and cites a lot of law beyond the Green Mountain state. Here is how the unanimous opinion gets started:

Defendant challenges so-called standard and special sex-offender probation conditions that the trial court imposed following his conviction for sexual assault.  Defendant argues that this Court should strike a number of the standard conditions imposed by the trial court in its written order because the conditions were not orally pronounced during the sentencing hearing and were not sufficiently connected to his crime or rehabilitation.  He also argues that the sex-offender condition prohibiting defendant from purchasing, possessing, or using pornography or erotica and from going to “adult bookstores, sex shops, topless bars, etc.” is unrelated to his offense and unconstitutionally vague.  We conclude that defendant failed to properly preserve his objections to the standard conditions and review them for plain error.  Based on the particular provisions and the State’s concessions, we strike some conditions, remand some conditions, and affirm the remaining conditions.  We strike the challenged special condition as unsupported by the record.

April 8, 2018 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (4)

George Will commentary assails felon disenfranchisement in Florida

I am very pleased to see this effective commentary by George Will under the headline "There’s no good reason to stop felons from voting." I recommend the short piece in full, and here are parts that struck me as especially effective:

Intelligent and informed people of good will can strenuously disagree about the wisdom of policies that have produced mass incarceration. What is, however, indisputable is that this phenomenon creates an enormous problem of facilitating the reentry into society of released prisoners who were not improved by the experience of incarceration and who face discouraging impediments to employment and other facets of social normality.  In 14 states and the District , released felons automatically recover their civil rights.

Recidivism among Florida’s released felons has been approximately 30 percent for the five years 2011-2015.  Of the 1,952 people whose civil rights were restored, five committed new offenses, an average recidivism rate of 0.4 percent.  This sample is skewed by self-selection — overrepresentation of those who had the financial resources and tenacity to navigate the complex restoration process that each year serves a few hundred of the 1.6 million.  Still, the recidivism numbers are suggestive.

What compelling government interest is served by felon disenfranchisement? Enhanced public safety?  How?  Is it to fine-tune the quality of the electorate?  This is not a legitimate government objective for elected officials to pursue.  A felony conviction is an indelible stain: What intelligent purpose is served by reminding felons — who really do not require reminding — of their past, and by advertising it to their community?  The rule of law requires punishments, but it is not served by punishments that never end and that perpetuate a social stigma and a sense of never fully reentering the community.

April 8, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (4)

Thursday, April 05, 2018

Supreme Court of Illinois rejects claim that state prohibition on sex offenders in parks is violative of substantive due process

The Supreme Court of Illinois today in Illinois v. Pepitone, 2018 IL 122034 (Ill. April 5, 2018) (available here), overturned a lower court ruling that found a sex offender restriction to violate substantive due process.  Here is how the opinion starts and concludes:

Section 11-9.4-1(b) of the Criminal Code of 2012 provides, “It is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.” 720 ILCS 5/11-9.4-1(b) (West 2016). The sole issue in this case is whether that statute is facially violative of substantive due process. The trial court rejected defendant Marc Pepitone’s due process claim, but the appellate court majority accepted it and reversed his conviction. 2017 IL App (3d) 140627. For the reasons that follow, we reverse the judgment of the appellate court and affirm the defendant’s conviction and sentence....

We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.  Avila-Briones and Pollard correctly identified a constitutional nexus.  In Avila-Briones, 2015 IL App (1st) 132221, ¶ 84, the appellate court stated: “[B]y keeping sex offenders who have committed offenses against children away from areas where children are present ***, the legislature could have rationally sought to avoid giving certain offenders the opportunity to reoffend.”  The Avila-Briones court added that whether the statutory scheme covering sex offenders is “a finely tuned response to the threat of sex offender recidivism is not a question for rational-basis review; that is a question for the legislature.” Id.  And in Pollard, 2016 IL App (5th) 130514, ¶ 41, the appellate court concluded, “There is also a direct relationship between the *** presence restrictions of sex offenders and the protection of children.” See Standley v. Town of Woodfin, 661 S.E.2d 728, 731 (N.C. 2008) (upholding a municipal ordinance barring registered sex offenders from entering town parks and stating that the town “has a legitimate government interest in desiring to decrease and eliminate sexual crimes in its parks, and prohibiting those most likely to commit criminal sexual acts — persons previously convicted of such conduct — from entering the town’s parks is a rational method of furthering that goal”).  Because section 11-9.4-1(b) is rationally related to a legitimate government interest, the appellate court erred in holding that the statute is facially unconstitutional under substantive due process. People v. Jackson, 2017 IL App (3d) 150154, which followed the appellate court’s decision in this case, is overruled to the extent that it also found section 11-9.4-1(b) unconstitutional.

April 5, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (13)

Reviewing some modern felony disenfranchisement realities

Stateline has this new piece providing a crisp accounting of modern felony disenfranchisement realities and concerns. I recommend the full piece, which is headlined "Felony Voting Laws Are Confusing; Activists Would Ditch Them Altogether." Here are excerpts:

Disenfranchised felons are about 2.5 percent of the general voting-age population, but that number triples among African-Americans, according to estimates from the Sentencing Project. The disparity is starkest in the Southeast, where more than 20 percent of black voters are disenfranchised in some states.

In Louisiana, where an estimated 108,000 people are disenfranchised because of past criminal convictions, people aren’t allowed to vote until they have finished their parole. For many, that means decades.

At 72, Checo Yancy has been out of prison for over 14 years.  But he’ll be on parole until 2056 and unlikely to cast a ballot before he dies. He is a plaintiff in a Louisiana case that seeks to restore voting rights to people as soon as they leave prison. The case may be decided as soon as this week....

Activists in Florida collected more than 840,000 signatures to put a measure on the November ballot that would allow people with a felony conviction to vote once they complete probation or parole. The state has imposed a lifetime voting ban on 1.7 million Florida residents with felony convictions.  Only a pardon from the governor can restore their voting rights. And in a separate suit challenging the state’s system, a federal judge called it “crushingly restrictive” and later ordered the clemency board to adopt strict criteria and timelines for reviewing applications.

Many who seek to change the laws say the restrictions are rooted in racism, noting that many states enacted them shortly after blacks gained the right to vote. Robert McDuff, an attorney with the Mississippi Center for Justice, is also challenging the list of crimes in the state constitution that disenfranchises an estimated 218,000 people, “chosen because of the framers’ belief that they were disproportionately committed by African-Americans, and it was part of the larger effort by the framers of the 1890 constitution to eliminate the African-American vote.”...

Those who want to ease the restrictions argue that voting helps former inmates feel included and engaged in the community, reducing the likelihood of recidivism. That’s not the way many governors see it. Nebraska Gov. Pete Ricketts, a Republican, vetoed a bill last year that would have allowed felons to vote once they left prison. “Requiring convicted felons to wait before allowing them to vote provides an incentive to maintain a clean record and avoid subsequent convictions,” Ricketts said in his veto letter. Although the bill was reintroduced this year, a spokesman for the governor said his position has not changed.

In recent years, some conservative states have lifted other restrictions on felons, like those that bar them from receiving professional licenses or food stamps, hoping to reduce recidivism and save money on criminal justice costs such as incarceration, probation and parole.

Louisiana state Rep. Walt Leger, a Democrat who has sponsored criminal justice legislation, said the prospect of saving money can get both parties on board. Restoring voting rights, though, is still seen as politically risky. “That financial conversation is not necessarily a part of the right to vote conversation,” he said. “So for some it continues to be a soft-on-crime versus tough-on-crime issue.”

April 5, 2018 in Collateral consequences, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (3)