Sentencing Law and Policy

Flagging a number of notable recent Inquest essays

It has been some time since I have highlighted items from Inquest, "a decarceral brainstorm," in part because the site has been recently running essays mostly focused on policing issues.  But I noticed a number of more punishment-focused pieces, and here I will  flag a handful of newer pieces sentencing fans may want to check out:

By Paul Butler & Cristian Farias, "Returning to Freedom: A PBS series on reentry is exposing audiences to how people leaving prison grow, heal, and thrive despite their past." By

By Joseph Margulies, "A Forgiving Society: Only by approaching each person as a member of society—rather than an outcast—will we begin to unwind the punitive turn of the past sixty years."

By Raj Jayadev, "People-Powered Defense: Participatory defense allows families and communities to protect their own in courtroom spaces that have long robbed them of power."

By William Kissinger, "Squinting in the Sunlight: Most reentry programs assume a person who is able to work and live on their own. Those of us who are older don’t have that kind of freedom."

By Stephen Wilson, "Unsettled People: Prison transfers are routinely used to punish, disorient, and isolate incarcerated people, disconnecting them from family, friends, community, and all sense of place."

"Terminating Supervision Early"

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

Community supervision is a major form of criminal punishment and a major driver of mass incarceration.  Over 3.5 million people in the United States are serving terms of probation, parole, or supervised release, and revocations account for nearly half of all prison admissions.  Although supervision is intended to prevent crime and promote reentry, it can also interfere with the defendant’s reintegration by imposing onerous restrictions as well as punishment for non-criminal technical violations.  Probation officers also carry heavy caseloads, which forces them to spend more time on enforcing conditions and less on providing support.

Fortunately, the criminal justice system also includes a mechanism to solve these problems: early termination of community supervision.  From the beginning, the law has always provided a way for the government to cut short a defendant’s term of supervision if they could demonstrate that they had reformed themselves.  Recently, judges, correctional officials, and activists have called to increase rates of early termination in order to save resources, ease the reentry process, and encourage rehabilitation.  Yet despite all this attention from the field, there are no law-review articles on terminating supervision early.

In this Article, I provide the first comprehensive analysis of early termination of community supervision.  First, I recount the long history of early termination, from the invention of probation and parole in the 1800s to the Safer Supervision Act of 2023.  Next, I identify and critique recent legal changes that have made it harder for federal criminal defendants to win early termination of supervised release.  Finally, I propose the first empirically based sentencing guideline on terminating supervision early, which I recommend in most cases after 18 to 36 months.  If community supervision drives mass incarceration, then early termination offers a potential tool for criminal justice reform.

"'Everything is technology': examining technology access and use among returning citizens"

The title of this post is the title of this new paper available via SSRN authored by Kaelyn Sanders. Here is its abstract:

Digital exclusion is a barrier for people on parole, herein referred to as returning citizens.  Yet, much remains unknown about the specific issues they encounter. As the world continues to advance technologically, it is important that we understand returning citizens’ access to and use of technology and how it impacts their ability to reintegrate into society. Framed in the Digital Rehabilitation Model, the current study uses qualitative data from 28 returning citizens to explore their digital exclusion across time since release from prison.  Findings show that returning citizens released less than a month to 24 months ago more often described technology-related challenges.

"State Legislatures and the Uptake Puzzle in Expungement of Criminal Records"

The title of this post is the title of this recent paper available via SSRN and authored by Jessica Steinberg and Elenore Wade. Here is its abstract:

Expungement has an uptake problem.  A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only 1 to 6 percent of eligible people avail themselves of the remedy.  Expungement is a powerful policy tool that promotes social and economic reintegration.  It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes.  One might assume people would rush to court to clear their records.  That the opposite is occurring — and new laws are idling on the books —suggests that rights-creation in this space has not been efficacious.  This demands a hard look at the mechanics of expungement to ferret out possible reasons for the stagnation of the most sprawling and ambitious policy attempt in recent history to address the collateral consequences of mass criminalization.

This article tackles the uptake puzzle in expungement of criminal records.  Employing an access-to-justice framework and drawing from the literature on administrative burden, the article presents findings from a study that identifies uptake barriers embedded in the workings of formal law and institutions.  We systematically analyzed the law and procedure governing expungement of felony convictions in all thirty-two states that allow for it.  We then developed six metrics to study, all within the control of the formal institutions responsible for creating or administering expungement policy.  These metrics investigated access to the expungement remedy in light of the unique legal regime in each state and allowed us to create a state-by-state comparison of whether and to what extent courts and legislatures developed the conditions necessary for a person seeking felony expungement to complete the process successfully.  Our study uncovered access barriers to expungement uptake across three domains: informational, procedural, and financial.  These barriers reflect governmental decisions to shift uptake burdens to ordinary people and enshrine those burdens in formal law.  The article provides rich qualitative analysis of these access barriers as one way to account for the uptake puzzle.  With these findings, we elevate access challenges as both central to the efficacy of expungement policy and as eminently avoidable.

In addition, the article offers two broad implications from our research that point the road forward on reform.  First, we find that legislatures play a surprisingly dominant role in restricting access to the expungement remedy.  By probing the under explored role of legislatures, we surface a more complex treatment of how access barriers are layered across institutions to keep the expungement remedy out of reach.  Second, we suggest that each state has developed a de facto “access policy” that serves an adjunctive role to substantive expungement policy. Without exception, these access policies are haphazard in their expression and work at cross-purposes with the stated goals of expungement.  We call on legislatures to leverage their substantial convening power to study the real-world circumstances of expungement applicants.  We also call on states to draw on the pluralistic access landscape we depict in this Article to turn toward access-promoting choices that increase uptake.

"Truth in Sentencing, Incentives and Recidivism"

The title of this post is the title of this notable recent empirical paper authored by David Macdonald available via SSRN. (Hat tip to this recent episode of the podcast Probable Causation for highlighting the paper and bringing it to my attention.)   Here is its abstract:

Truth in Sentencing laws eliminate discretion in prison release.  This decreases the incentive for rehabilitative effort among prisoners.  I use a regression discontinuity design to exploit a change in these incentives created by the introduction of TIS in Arizona.  Before prison, I find that sentences were reduced by 20% for TIS offenders.  Further, I find that rule infractions increased by 22% to 55% and education enrolment fell by 24%.  After release, I find offenders were 4.8 p.p. more likely to reoffend.  I further find that recidivism and infractions effects are largest among drug and violent offenders.  Finally, I show that the reduction in sentences resulted in a broad equalization of time served at the cutoff, which indicates that the removal of early-release incentives by TIS was the main mechanism driving results.

Michigan Supreme Court finds violation of state constitution in applying sex offender registry to non-sexual offenders

A divided Michigan Supreme Court, splitting 5-2, ruled earlier this week in Michigan v. Lymon, No. 164685 (Mich. Julu 29, 2024) (available here), that its state constitution precluded putting people convicted of non-sexual crimes on the state's sex-offender registry.  Here is how the majority opinion begins and a few key passages from a lengthy (nearly 50-page) opinion:

Defendant challenges his inclusion on the sex-offender registry under the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., as cruel or unusual punishment under the Michigan Constitution.  We hold that the application of SORA to non-sexual offenders like defendant is cruel or unusual punishment in violation of the Michigan Constitution....

Although the 2021 SORA bears a rational relation to its nonpunitive purpose and the Legislature has continued to express its intention that SORA constitute a civil regulation, SORA resembles traditional methods of punishment, promotes the traditional aims of punishment, and imposes affirmative restraints that are excessive as applied to non-sexual offender registrants.  Accordingly, we conclude that the 2021 SORA constitutes punishment as applied to non-sexual offenders....

We conclude that the punishment of SORA registration for non-sexual offenders like defendant is grossly disproportionate and accordingly constitutes cruel or unusual punishment under the Michigan Constitution. See Bullock, 440 Mich at 35. Although other jurisdictions similarly include certain non-sexual offenders within their sex-offenderregistry laws, we find that this penalty is unduly harsh as compared to the non-sexual nature of the offense. Further, similar offenses do not result in this same penalty, and the offenses that do result in the same penalty are more severe and have a sexual component.  Accordingly, we conclude that the 2021 SORA constitutes cruel or unusual punishment as applied to non-sexual offenders.

The dissent, authored by Judge Zahra, clocks in at nearly 60 pages and has a multi-page conclusion that starts this way:

It is important to note what the majority opinion is and what it is not.  The majority opinion extends the Michigan Constitution to bar dissemination of accurate information to the public of those who have kidnapped and imprisoned children so that individuals in the community can have the knowledge to lead their lives as they so choose.  In so doing, the majority opinion effectively concludes that the public cannot be trusted with accurate information of convictions, because it may in the view of the majority opinion, unduly shame or burden individuals who were indeed convicted of child kidnapping and imprisonment. Despite being enacted for decades by the federal government and 42 out of 49 other state jurisdictions, this Court concludes that public registration for such offenses does not even reasonably advance the interests of public safety and awareness.  The majority opinion finishes with a conclusion never before reached by Michigan or federal courts: that public dissemination of conviction history, combined with registration requirements to ensure that the information is accurate, is so extraordinary and disproportionate to defendant’s offense of violently imprisoning children while they plead dearly for their lives and the life of their mother amounts to cruel or unusual treatment.  This is an extreme conclusion that will severely hinder this state from publicly recording and registering those who kidnap, abuse, or imprison children.

"Probation and the shadow carceral state: Legal envisioning from Minnesota"

The title of this post is the title of this new article just published in the journal Theoretical Criminology and authored by Michelle Phelps and Eric Seligman. Here is its abstract:

The transformation of US punishment in the late 20th century was defined not just by mass imprisonment, but the growth of a shadow carceral state of administrative and civil sanctions, including technical violations of probation and parole that smooth the pathway to prison.  We consider the role of technical violations in the shadow carceral state through the lens of lived experience, analyzing interviews with adults on probation in Hennepin County, Minnesota, conducted in 2019.  Building on the concept of legal envisioning, we ask how people subject to probation experience the threat of violations and what they imagine would be helpful to avoid them.  Ultimately, these perspectives illuminate the need for transformative changes to dismantle the shadow carceral state and raise challenging questions about the role of care in punishment.

A distinct project for 2025 focused on criminal justice reform

This past week I saw a notable policy document from the Justice Action Network, titled "Federal Criminal Justice Reform: Options For Policymakers 2025-2029."  This 28-page document aspires to serve "as a guide for actionable policies, with bipartisan support, that will make the criminal justice system more safe, accountable, and fair for incarcerated people, the professionals who work in the criminal justice system every day, and the public."  Here are a few portions of the report's executive summary that focus on sentencing and corrections and reentry topics:

• Evidence-based sentencing reform: the EQUAL Act, the Smarter Sentencing Act, the First Step Implementation Act, bringing back federal parole, reforming the executive clemency process, and strengthening the Juvenile Justice and Delinquency Prevention Act will ensure expensive prison space is prioritized for violent offenses.

• Increasing prison oversight and effectiveness: the Federal Prison Oversight Act and ending or significantly limiting solitary confinement will ensure that prisons are safe for incarcerated people and staff, protecting rights and safety.

• Reducing barriers to reentry: the Due Process Continuity of Care Act, the Reentry Act, the Improving Mental Health in Re-Entry System Act, and the Safer Supervision Act will ensure that people are ready to return to their communities when they leave jail or prison.

• Reducing collateral consequences of incarceration: the Clean Slate Act, the Fresh Start Act, the Begin Again Act, the Driving for Opportunity Act, restoring SNAP and TANF to formerly incarcerated people, ending the ban on drivers’ license suspension for drug offenses will ensure that people who have successfully reintegrated truly get a second chance.

"Out of Step: U.S. Policy on Voting Rights in Global Perspective"

The title of this post is the title of this new report from The Sentencing Project, Human Rights Watch, and the American Civil Liberties Union which focuses on the significant numbers of US citizens denied the right to vote in the US based on criminal convictions.  Here is the start of the report's executive summary:

The United States is an outlier nation in that it strips voting rights from millions of citizens solely on the basis of a criminal conviction.  As of 2022, over 4.4 million people in the United States were disenfranchised due to a felony conviction.  This is due in part to over 50 years of U.S. mass incarceration, wherein the U.S. incarcerated population increased from about 360,000 people in the early 1970s to nearly 2 million in 2022.  While many U.S. states have scaled back their disenfranchisement provisions, a trend that has accelerated since 2017, the United States still lags behind most of the world in protecting the right to vote for people with criminal convictions.

The right to vote is a cornerstone of democratic, representative government that reflects the will of the people.  The international consensus on the importance of this right is demonstrated in part by the fact that it is protected in international human rights law.  A majority of the world’s nations either do not deny people the right to vote due to criminal convictions or deny the right only in relatively narrow and rare circumstances.

This report highlights key findings since 2006:

• The United States remains out of step with the rest of the world in disenfranchising large numbers of people based on criminal convictions.  In part, this is due to a punitive criminal legal system resulting in one of the world’s highest incarceration rates.  As noted above, the country has disenfranchised, due to a felony conviction, over 4.4 million people who would otherwise be legally eligible to vote. This is also due to the laws in many US states that provide for broad disenfranchisement based on convictions.  For this report we examined the laws of the 136 countries around the world with populations of 1.5 million and above, and found the majority — 73 of the 136—never or rarely deny a person’s right to vote because of a conviction.  We also found that, even when it comes to the other 63 countries, where laws deny the right in broader sets of circumstances, the US is toward the restrictive end of the spectrum and disenfranchises, largely through US state law, a wider swath of people on the whole.

• The United States continues to disenfranchise a wider swath of its citizens based on a felony conviction than most other countries, many U.S. jurisdictions have worked to expand voting rights to persons with criminal convictions since 2006.  Reforms in some jurisdictions within the United States and other countries have limited the loss of voting rights due to a criminal conviction. Among other types of reforms, most U.S. states no longer disenfranchise individuals permanently for life and many no longer disenfranchise individuals upon release from incarceration.  These reforms have occurred through a combination of legislative change, amendments to state constitutions, court victories, and executive action. In some cases, however, as in Florida, expansion of rights restoration has been met with subsequent retrenchment. 

New Prison Policy Initiative briefing explores impact of Dobbs on women under community supervision

I often say to students (and sometimes highlight here) that every big legal story has some kind of sentencing echoes.  This new Prison Policy Initiative briefing makes that point with respect to the Supreme Court's Dobbs ruling two years ago.  The full title and subtitle of this briefing summarizes its coverage: "Two years after the end of Roe v. Wade, most women on probation and parole have to ask permission to travel for abortion care.  Since the 2022 Dobbs decision, 21 states have restricted abortions earlier than the Roe v. Wade standard. Now, more of the 800,000 women on probation and parole must seek abortion care out-of-state — but for many, whether they can get there depends on an officer’s decision." 

Here is an excerpt from the briefing's discussion of its key findings:

To understand how this post-Dobbs landscape impacts women under the U.S.'s massive system of community supervision, we examined standard supervision conditions in each state, along with the number of women who must comply with them. We find that the one-two punch of abortion and supervision restrictions impacts an estimated 4 out of 5 womem (82%) on probation or parole nationwide.  That means that for the vast majority of people under community supervision, the ability to seek abortion care out-of-state is left not to the pregnant person, but to the discretion of a correctional authority, typically their probation or parole officer.

Specifically, we find that, excluding federal probation and post-release supervision, 82% of women on probation and 85% of women on parole live in states that (1) either completely ban abortion or restrict it based on gestational age and (2) list travel restrictions as a standard condition of supervision.

"Positive Credentials That Limit Risk: A Report on Certificates of Relief"

The title of this post is the title of this notable new report produced by the Collateral Consequences Resource Centerand authored by Margaret Love and Nick Sibilla.  Here is the start of the report's abstract:

This report deals with a form of relief from the collateral consequences of a conviction that is less far-reaching than expungement or other forms of record clearing, but is potentially available to more people at an earlier point in time. These so-called “certificates of relief” do not limit public access to a person’s record, but they may be effective in reducing many conviction-related disadvantages in the workplace, including by providing employers and others with protection against the risk of being sued for negligence.

At least as long as expungement and sealing remain unavailable to many people with a felony conviction record, or are available only after lengthy waiting periods, certificates of relief can provide an important boost to a state’s reentry scheme, and serve as a bridge to more thorough forms of record relief.  Yet it appears that certificates have been largely ignored in many states by the courts that are empowered to dispense them, as well as by the advocacy community whose clients might benefit from them.  At the same time, they are beginning to be widely used by prison and parole agencies to encourage employment opportunities and otherwise facilitate reentry for those exiting prison or completing supervision.

Given the limits many perceive in record clearing as a comprehensive reentry strategy, social science researchers have become interested in studying the effect of laws that aim to increase the positive information about individuals with a criminal record to counter the negative effect of the record itself.  This report is intended to support these research efforts by describing the state of the law relating to certificates of relief in the 21 states that now offer them.  A follow-up study will look at pardons. We hope to stimulate interest in a type of criminal record relief that has been neglected in recent years as background screening has become widespread.

We hope that this report will stimulate public interest in a type of relief that has been neglected in recent years as background screening has become widespread, and suggest ways to make it more widely available. Our goal is to encourage a view of certificates and expungement as complementary parts of a single structured system of serially available criminal record relief.

BJS releases two big new (and dated) reports on 2022 correctional populations and probation/parole populations

Via email, I learned that the Justcie Department's Bureau of Justice Statistics today released these two big new data reports: "Correctional Populations in the United States, 2022 – Statistical Tables" and "Probation and Parole in the United States, 2022." Here is how BJS describes these reports:

[The correctional populations] report summarizes data on populations supervised by probation or parole agencies and those incarcerated in state or federal prisons or in the custody of local jails from 2012 to 2022. It also includes tables on sex and race or ethnicity of persons supervised by correctional systems. BJS has published statistics on correctional populations since 1985....

[The probation and parole] report provides data on adult U.S. residents under correctional supervision in the community. It includes characteristics of this population, such as sex, race or ethnicity, and most serious offense. The report details how people move onto and off community supervision, such as completing their term of supervision, being incarcerated, absconding, or other unsatisfactory outcomes while in the community. It is the 31st in a series that began in 1981.

Though it is alwaus a bit disappointing that these great data reports are already nearly 18 months behind present day realities, the BJS always deserves thanks for the great, rigorous job it does collecting and publishing these complicated data.

Event at Villanova this week follows up Federal Sentening Reporter issue on "Drug Testing and Community Supervision"

I am pleased here to be able to highlight both the latest issue of the Federal Sentencing Reporter and this event slated for this Wednestday (5/22) at Villanova Law serving as a follow up to this FSR issue.  This FSR issue is titled "Drug Testing and Community Supervision: Interrogating Policy, Practice, and Purpose," and it includes nearly a dozen original articles looking drug testing of persons while on community supervision from a variety of perspectives.  Here are the Editors' Notes previewing the contents of the FSR issue:

The supervision of individuals serving probation and parole never receives quite the same attention as incarceration topics, but millions of persons in our communities deal with these realities every day.  In particular, drug testing for persons on community supervision affects many of the nearly four million people on probation and parole in the United States, even though the justification for its use and its burdens are not always clear and rarely subject to significant scrutiny.  This issue of FSR, which results from the collaborative efforts of Arnold Ventures, the Center for Justice Innovation, the Drug Enforcement and Policy Center at The Ohio State University, and the Villanova University Charles Widger School of Law’s Girard-diCarlo Center for Ethics, Integrity and Compliance, takes a closer look at what an evidence-driven and humane approach to drug testing under supervision might look like.  The FSR editors are grateful for the collaborative efforts that helped produce this issue, and we extend special thanks to Matt Watkins and Oliva Kramer of the Center for Justice Innovation for their efforts assembling and editing the articles that comprise this issue.

And here is the registration page for the Vilanova Law event, which provides these (and other) particulars:

"Testing Justice: Drug Testing and Community Supervision"

Presented by the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance Wednesday, May 22, 4:00–6:00 p.m.

In an effort to address and shape public conversations about criminal justice, drug policy and enforcement, the Girard-diCarlo Center will host a discussion on Wednesday, May 22 at Villanova Law. “Testing Justice: Drug Testing and Community Supervision” is a continuation of the conversations held at the convening in November 2023, the recent issue of the Federal Sentencing Reporter and the ethics, policies and laws surrounding drug enforcement in Pennsylvania.

The Pennsylvania Continuing Legal Education Board has approved this symposium for 1.5 Substantive CLE credits. Please note registration is required to receive CLE credit.  A reception will follow the event in the Ambassador David F. Girard-diCarlo ’73 and Constance B. Girard-diCarlo ’74 Student Lounge.

4:30–6:00pm Panel: The Pennsylvania Experience

• Sen. Camera Bartolotta, Pennsylvania State Senate for the 46^th District
• Jordan Hyatt, Director of the Center for Public Policy & Associate Professor of Criminology and Justice Studies, Drexel University
• LaTonya Myers, Founder, Above All Odds
• N. Jeannette Palmer-Briscoe, Chief Probation/Parole Officer, Philadelphia Adult Probation & Parole Department
• Sen. Anthony Williams, Pennsylvania State Senate for the 8^th District
• Moderated by Steven Chanenson, Faculty Director of the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance & Professor of Law, Villanova Law

"Degrees of difference: Do college credentials earned behind bars improve labor market outcomes?"

The title of this post is the title of this new Criminology article authored by Abby Ballou.  Here is its abstract:

It is widely held that providing postsecondary education programs to incarcerated individuals will improve postrelease labor market outcomes. Little research evidence exists, however, to support this view.  To test the effect of postsecondary carceral education credentials on employer perceptions of hireability, the current study uses a factorial design to survey a sample of employers nationwide (N = 2,538).  Employers were presented with résumés of fictional applicants applying to a job as a customer service representative at a large call center.  The résumés randomized education credentials earned while incarcerated. 

Results indicate that employers were significantly more willing to interview applicants with postsecondary education credentials relative to applicants with only a General Educational Development (GED) diploma.  Although Black applicants who had earned a sub-baccalaureate certificate saw improvements in hireability relative to GED holders, Black applicants who had earned a bachelor's degree did not.  In contrast, White applicants benefited both from sub-baccalaureate certificates and bachelor's degrees.  Results from a mediation analysis suggest that these credentials signal important information to employers about applicant attributes and that improved perceptions of applicant ability and likelihood to reoffend drive the overall effect.  Implications for future research and policy are explored.

Rounding up some new and older marijuana record relief scholarship for 4/20 reading

I tend to find extreme affinity for 420 as a kind of marijuana holiday to be a bit silly.  But I am not so much of a scrooge that I will eschew a marijuana-themed post on this day.  Inspired in part by a great new paper from researchers at the Drug Enforcement and Policy Center (the listed first below), I figured I woud round up an array of pieces from SSRN focused on the intersection of marijuana reform and record relief.  I have only collected pieces on was able to find quickly on SSRN, so what is linked here is surely just an abridged accounting of work in this space:  

"Automatic Record Relief in Ohio: Recommendations for Minimizing Implementation Challenges and Maximizing Impact"

"Marijuana Legalization and Record Clearing in 2022"

"Marijuana Legalization and Expungement in Early 2021"

"Erasing Evidence of Historic Injustice: The Cannabis Criminal Records Expungement Paradox"

"Ensuring Marijuana Reform Is Effective Criminal Justice Reform"

"High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Marijuana Laws"

"Leveraging Marijuana Reform to Enhance Expungement Practices"

Notable new commentary makes case for federal Safer Supervision Act

Alice Marie Johnson has this notable Fox News commentary discussion reentry reform. The full headline provides a preview: "I spent 20 years in prison for one mistake. I know the system is broken even when you get out. Getting out of prison is only the beginning of a new set of problems with probation." Here are snippets from the lengthy piece:

Federal supervision policies are supposed to help people successfully return to their communities from prison. Unfortunately, in many cases, they erect barriers to successful reintegration. The bipartisan Safer Supervision Act would break down those barriers, reduce recidivism and improve public safety....

Federal supervised release was originally meant to be applied only in cases where it was necessary for public safety. Unfortunately, it is now imposed in nearly every case.  About 110,000 individuals are under federal supervised release — a 200% increase from three decades ago.

As a result, case officers have become overburdened, often managing up to 100 cases at once.  With probation officers overstretched, they cannot devote adequate time or resources to managing those who pose higher public safety risks, and this "mismatch" can lead to recidivism.

Unnecessary supervision also comes with roadblocks that make it harder for low-risk people who have paid their debts to society to reintegrate into their communities.  In 2020, more people saw their supervised release revoked due to technical violations — such as failing to make a meeting with a probation officer or traveling without permission — than for committing new crimes....

The Safer Supervision Act, which has broad support from law enforcement, legal experts and criminal justice groups across the political spectrum, would tackle many of the issues that are causing the current system to fail.

First, instead of implementing one-size-fits-all supervision sentences for everyone exiting the justice system, the Safer Supervision Act would require courts to conduct individualized assessments to determine if supervision is necessary, and if so, what restrictions are needed to protect public safety or better support successful reentry.  This would ensure that the people who need the most support receive it while allowing people who are at lower risk of recidivism to fully stretch their freedom legs.  It would also prevent probation officers from becoming overburdened with irrelevant caseloads.

Another critical piece of the bill is that it creates incentives for maintaining good conduct and reintegrating successfully into society.  The legislation establishes a presumption of early termination once someone has served half of their supervision period, has shown good conduct and complied with supervision terms, and has been assessed as a low public safety risk.  This will encourage more people to take the steps needed to succeed, whether that involves undergoing substance use disorder treatment, pursuing more education or maintaining steady employment.

Other provisions in the bill also focus on rehabilitation.  For example, it would give courts the option to send people on supervised release who are found in possession of illicit substances to treatment and rehabilitation programs instead of requiring a mandatory revocation that often comes with prison time.  This would only apply in cases of simple possession, not possession with the intent to distribute.

Lastly, the bill calls for a thorough report on federal post-release supervision and reentry services to ensure taxpayer dollars are being used efficiently and responsibly.

Too many of our federal supervision rules are counterproductive.  Not only do they keep too many people who have served their time in prison and are not a threat to public safety from living full lives, but they overburden our law enforcement officers and make us less safe.  The Safer Supervision Act will help change that, giving deserving people a real second chance while ensuring public safety.

"Apprendi, Punishment, and a Retroactive Theory of Revocation"

The title of this post is the title of this student note in the March 2024 Yale Law Journal authored by Jaewon Chris Kim that I just came across. Here is its abstract:

In Apprendi v. New Jersey, the Supreme Court announced what is now a seminal rule of constitutional criminal procedure: any fact that increases the penalty for a crime beyond the prescribed statutory maximum cannot be found by a judge, but must be submitted to a jury and proved beyond a reasonable doubt.  The doctrine arising from Apprendi and its descendant cases had, until recently, been confined to the sentencing context.  But in 2019, the Court in United States v. Haymond considered a potential expansion of Apprendi to judicial revocations of federal supervised release.  The Court ultimately handed down a 4-1-4 decision with minimal precedential value, but since then, there has been a swell of scholarship discussing the applicability of the jury right to this new context.  Much of this discussion has centered around the questions of constitutional interpretation raised by Haymond, and whether a revocation proceeding is part of a “criminal prosecution” as specified by the text of the Sixth Amendment.

This Note argues for a different approach.  Revisiting the Apprendi cases and their contemporary scholarly treatment reveals that the doctrine was rooted not in novel methods of textual interpretation, but in fundamental principles of substantive criminal law: what constitutes “crime” and “punishment.”  Existing scholarship has not provided an answer to how these principles might apply to a function that takes place after sentencing and final judgment, like revocation of supervised release.  I therefore introduce a retroactive theory of revocation that rationalizes Apprendi’s definition of crime and punishment within this context.  Under this theory, revocation proceedings are unconstitutional not because they are directly covered by the Sixth Amendment right to a jury trial, but because they circumvent a person’s original jury trial by allowing them to be “punished” for a different “crime.”  This means that every revocation of supervised release violates Apprendi.  Moreover, the retroactive theory suggests that other forms of post-judgment penalties, like extensions of probation and criminal fees, can similarly run afoul of the Sixth Amendment’s protections. 

"50 States, 1 Goal: Examining State-Level Recidivism Trends in the Second Chance Act Era"

The title of this post is the title of this new report from the Council of State Governments Justice Center providing a positive accounting of recidivism trends in the states over the past 15 years. Here is how the report is briefly summarized:

This report highlights the significant progress made in reducing recidivism across the country over the past 15 years. Since its passage in 2008, the Second Chance Act has invested in state and local efforts to improve outcomes for people leaving prison and jail, with a total of nearly 1,200 grantees from 48 states and 3 territories administering programs that have served more than 400,000 people.

Here are some of the recidivism specifics from the full report:

Since the passage of the Second Chance Act in 2008, more and more state and local leaders have made recidivism reduction a public safety priority, pursuing a variety of strategies that are starting to show real results....  Our findings reveal that recidivism rates have dropped considerably in the past 15 years:

• Three-year reincarceration rates have decreased by 23 percent nationally since the passage of the Second Chance Act.
• Thirty-five percent of people exiting prison in 2008 were reincarcerated within 3 years, whereas 27 percent of people exiting prison in 2019 were reincarcerated within 3 years.
• If this lower rate of recidivism is sustained for people released in 2022, it would mean that 33,500 fewer people will be reincarcerated compared with the rate from 2008.

Three-quarters of states experienced a reduction in reincarceration. Before the passage of the Second Chance Act, 11 states had 3-year reincarceration rates above 45 percent, compared to 6 states with similarly high reincarceration rates in the last few years.  Recidivism rates dropped by double digits in 9 states: California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Missouri, and South Carolina.

A second chance to celebrate Second Chance Month by registering for "Relief in the Making" conference starting tomorrow!

In this post a few weeks ago, I flagged the President's "Proclamation on Second Chance Month, 2024" and its call for "all the people of the United States to observe this month with appropriate programs, ceremonies, and activities."  In so doing, I highlighted this exciting event taking place here at The Ohio State University Moritz College of Law titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws." Here are the essentials:

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

This is a free event which now is just a day away (though the full series of public panels takes place on Friday).  Folks can register at this link, and here is the full program link, and here is a bit more background from this event page: 

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

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

New and notable BOP data on relative success of the CARES home confinement cohort

This new Forbes piece by Walter Pavlo, headlined "Bureau Of Prisons Releases Encouraging Study On CARES Act," reports on new data from BOP showing the extremely low recidivism rae for those moved from federal prison into home confinement during the pandemic. Pavlo provides some of the context and key findings for this BOP report:

Congress passed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) on March 25, 2020 just as the pandemic reached the United States. CARES Act allowed individuals in federal correctional facilities who were a Low or Minimum security risk with underlying health conditions to serve their sentence in home confinement earlier than they would have been eligible for without the CARES Act.

Prior to the CARES Act, the Federal Bureau of Prisons (BOP) allowed inmates to serve 10% of their sentence imposed, up to a maximum of 6 months, on home confinement as part of completing their sentence.  This program too is a success and allows inmates of all security levels to transition back into society.  Many of those in federal custody, about 90%, will eventually be released from custody. Transition back to society is an important part of the corrections process.

The BOP has now completed a study on the inmates who were transferred to home confinement under CARES Act and the results are encouraging. In a press release from the BOP, it stated, “These findings suggest that the CARES Act’s provision for early and extended home confinement did not negatively impact recidivism rates. In fact, it may have contributed to a reduction in post-release recidivism, offering a promising direction for justice-involved stakeholders seeking effective strategies to reduce incarceration and its associated costs, while also promoting public safety and successful reintegration into society.”...

The BOP has the policies to move more Minimum and Low security inmates back into society sooner. Under the Second Chance Act, signed by George W. Bush, inmates can be placed on prerelease custody for up to a year of their sentence. Prerelease custody includes halfway house and home confinement.  However, the BOP has struggled recently with halfway house capacity, leaving many of inmates in institutional prisons far longer than necessary.  This problem of shortages of halfway house space is problematic because the First Step Act allows inmates to earn credits toward additional home confinement based on the time served.  The maximum amount of time an inmate can earn each month is 15 days per month but there is no limit to the amount of credits that can be earned over the term of incarceration.  This means that inmates in the future could be on home confinement for years....

The study found that overall, the use of the CARES Act to send individuals to home confinement sooner and for longer periods did not have an apparent negative impact on their recidivism rates compared to others in home confinement. Results indicate that while in home confinement individuals with a CARES assignment fail no more or less than comparable persons in home confinement.  And those with a CARES assignment fail less often than comparable persons after release.

This study matters because there are currently 78,000 out of roughly 156,000 inmates who are minimum and low security inmates in federal prison. Supervision of inmates in home confinement is significantly less costly for the BOP than housing inmates in secure custody.  According to a Federal Register report on the CARES Act, in Fiscal Year (FY) 2019, the cost of incarceration fee (COIF) for a Federal inmate in a Federal facility was $107.85 per day; in FY 2020, it was $120.59 per day.  In contrast, according to the Bureau, an inmate in home confinement costs an average of $55 per day — less than half of the cost of an inmate in secure custody in FY 2020.  Although the BOP’s decision to place an inmate in home confinement is based on many factors, where the BOP deems home confinement appropriate, that decision has the added benefit of reducing the expenditures.  Such cost savings were among the intended benefits of the First Step Act.

The BOP intends to build on the information from this study and others on home confinement.  Prisons remain crowded and many inmates are serving longer sentences in expensive institutions than are necessary.  Home confinement, which is a major benefit to both inmates and tax payers, is a big part of the First Step Act.  Whether the BOP can fully implement the program to get inmates out of prisons and into the community faster remains a challenge.

Starting an eary celebration of Second Chance Month ... and promoting "Relief in the Making" conference

The White House released this proclamation today, titled "A Proclamation on Second Chance Month, 2024."  Here are some excerpts:

America was founded on the promise of new beginnings.  During Second Chance Month, we recommit to building a criminal justice system that lives up to those ideals so that people returning to their communities from jail or prison have a fair shot at the American Dream.

Every year, more than 650,000 people are released from State and Federal prisons, some leaving with nothing more than a few dollars and a bus ticket to start their new lives.  In total, over 70 million Americans have a criminal history record, which can make it hard to secure a steady job, safe housing, affordable health care, or a good education — all important things to have when trying to build a good life.  Studies show that when these needs are met, we do not just empower formerly incarcerated people — we prevent crime and make our communities safer....

If we pursue this work together, our communities will be safer, stronger, and more just.  It will make families and communities whole and help grow our economy, giving everyone a fair chance.  I have always believed that our Nation’s best days are ahead — and that is true for every single American too.  This month, we recommit to fulfilling the fresh promise that every second chance holds.

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2024 as Second Chance Month.  I call upon government officials, educators, volunteers, and all the people of the United States to observe this month with appropriate programs, ceremonies, and activities.

Ever eager to respond to a call for "all the people of the United States to observe this month with appropriate programs, ceremonies, and activities," I am pleased to highlight that we are now only two weeks away from this exciting event taking place here at The Ohio State University Moritz College of Law titled "Relief in the Making: The Policy, Implementation, and Impact of Record Sealing and Expungement Laws." Here are the essentials:

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

This is a free event, and folks can register at this link.

"Reducing Barriers: A Guide to Obtaining Reasonable Accommodations for People with Disabilities on Supervision"

The title of this post is the title of this new report from the ACLU.  Here is a part of its introduction:

Scores of people in the United States are under probation, parole, and other forms of post-conviction “supervision.” As of 2021, nearly 4 million people in the U.S. — or 1 in every 69 — were on probation or parole. Supervision requires strict adherence to dozens of wide-ranging, vague, and conflicting rules — under penalty of sanctions, including incarceration — for any slip-up.  Thus, rather than an alternative to incarceration, supervision is often a tripwire into jail and prison. In 2017, nearly half of all prison admissions in the U.S. stemmed from supervision violations.

For people with disabilities, success under supervision is particularly challenging. Substantial numbers of people on supervision have disabilities, including mental health, intellectual/developmental (ID/D), sensory, and physical disabilities.  Such individuals regularly face heightened barriers to understanding and complying with supervision rules, effectively communicating with supervision authorities and other stakeholders, getting to required appointments, obtaining and maintaining employment, participating in required treatment programs, abstaining from drugs and alcohol, and adhering to electronic monitoring requirements.  Given other forms of structural discrimination, these barriers are particularly high for people with disabilities who are Black and Brown, LGBTQ, and/or experiencing homelessness or poverty.

People with disabilities thus regularly need changes to the way supervision is administered, such as appointment reminders, plain-language instructions, deaf interpreters, and alternative meeting times or locations....

Using federal disability law as its framework, this Guide discusses barriers to success for people with disabilities who are on supervision, and offers potential reasonable accommodations.  It is intended for defense attorneys representing people with disabilities who are facing, or actively serving, terms of supervision.  Using information in this Guide, attorneys can advocate for their clients to receive legally-mandated reasonable accommodations.  Attorneys may raise “reasonable accommodations” claims during legal proceedings, as well as through letters or informal discussions with supervision authorities.  Attorneys can bring such claims throughout the supervision process — when conditions are initially imposed, over the course of supervision, and during revocation proceedings.  Generally, accommodation needs should be raised as early as possible.

Notable new analysis of notable (old) data on prison admissions

The data on prison admissions (from 2021) reported in this new Crime and Justice News item caught my eye this afternoon.  Here are the details:

A new analysis from the Council of State Government Justice Center found that despite recent declines, parole-probation violators still make up a large proportion of new prison admissions. In 2021, 44% of state prison admission were people who violated the terms of their parole or probation sentences. And on any given day, 1 in 4 people in state prison were incarcerated because they violated the terms of their supervision. Those proportions have remained constant, even as overall numbers have decreased....

Incarceration for violations of supervision declined in 2020 and, in many states, continued to drop in 2021.  Ten states — Colorado, Minnesota, Hawaii, New Jersey, Kansas, New York, Rhode Island, Maryland, Pennsylvania and Vermont — reduced admissions by 50% or more.  The declines are part of a larger trend: from 2018 to 2021, across the country, the numbers of prison admissions from community supervision decreased by one-third. Part of that was due to decreased criminal activity during the height of the pandemic, with the exception of homicides and intimate-partner violence. It was also affected by changes in supervision practices and court backlogs.

Researchers examining those states where supervision incarcerations fell — and where they didn’t — have found no significant relationship between changes in the number of people incarcerated for supervision violations and changes in violent-crime rates at state levels.  But in 2021, states collectively spent more than $10 billion incarcerating probation-parole violators. More than $3 billion of that was for technical violations, not for new criminal activity....

Racial disparities begin prior to criminal-justice-system contact and persist at all stages of the system.  When looking at parole and disparities, 18 states — including much of the Deep South —  did not exhibit disparities in revocation rates, while 20 states increased the disparities.  Twelve states — including Montana, Wyoming, Nebraska, Colorado, New Mexico, Minnesota, Wisconsin, Iowa, Illinois, Indiana, New Jersey, and Pennsylvania — reincarcerated Black parolees at a 20% or higher rate.

"Prosecutors in Robes"

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

Criminal law enforcement is traditionally considered a core executive power.  Yet federal district judges exercise that power tens of thousands of times a year by initiating proceedings to revoke probation and supervised release. “Prosecutors in robes” is an insult sometimes levied by criminal defense attorneys against judges who are allegedly biased in favor of the government.  In this Article, however, I do not use that phrase to suggest that district judges are acting in bad faith.  Instead, I mean it literally.  When judges initiate revocation proceedings, they wield a prosecutor’s power to enforce criminal law.

Combining constitutional, historical, and empirical analyses, I argue that judge-initiated revocation violates the form and function of the separation of powers.  Formally, initiating a revocation proceeding is a type of criminal law enforcement, which is authority that the Constitution vests solely in the President and was originally understood as an executive power.  Functionally, my empirical study of federal sentencing data shows that initiating revocations aggrandizes the judiciary’s role in the criminal justice system by weakening democratic accountability, undermining uniform policy, and compromising judicial impartiality.

While most legal scholars believe that a strong and independent judiciary is necessary to check prosecutorial overreach, I contend that federal district judges have become “prosecutors in robes” who themselves must be checked by the executive branch.  To restore the separation of powers to revocation proceedings, I propose that only prosecutors should be allowed to initiate them, while judges should be limited to adjudication and sentencing.  This change would ensure that no single branch of government enjoys total authority to impose criminal punishment.  Our Constitution separates powers to protect liberty and prevent tyranny. A prosecutor in a robe is a king.

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

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

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

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

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

Valuable reminder that Prez pardons are not the same as expungements

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

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

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

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

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

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

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

"The Carceral Home"

The title of this post is the title of this recent paper just posted to SSRN and authored by Kate Weisburd. Here is its abstract:

In virtually all areas of law, the home is the ultimate constitutionally protected area, at least in theory.  In practice, a range of modern institutions that target private life — from public housing to child welfare — have turned the home into a routinely surveilled space.  Indeed, for the 4.5 million people on criminal court supervision, their home is their prison, or what I call a “carceral home.”  Often in the name of decarceration, prison walls are replaced with restrictive rules that govern every aspect of private life and invasive surveillance technology that continuously records intimate information.  While prisons have always been treated in the law as sites of punishment and diminished privacy, homes have not.  Yet in the carceral home people have little privacy in the place where they presumptively should have the most.  If progressive state interventions are to continue, some amount of home surveillance is surely inevitable.  But these trends raise a critical, underexplored question: When the home is carceral, what is, or should be, left of the home as a protected area?

This Article addresses that question.  Descriptively, it draws on a fifty-state analysis of court supervision rules to reveal the extent of targeted invasions of intimate life in the name of rehabilitation or an alternative to prison, rendering the home a highly surveilled space.  Normatively, it argues that allowing this state of affairs with no corresponding adaptations in legal doctrine is untenable.  With the home no longer sacred and no limiting principle to take its place, millions of people are left with no meaningful protection from government surveillance, even (or especially) in their home.  Left unchecked, the carceral home further entrenches the precise racial, economic, disability, and gender inequities that often inspire reform efforts. Instead, as this Article recommends, privacy and security must be recognized as positive entitlements separate from physical homes.

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

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

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

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

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

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

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

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

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

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

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

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

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

Kodak Black struggling on supervised release after Prez Trump commuted his federal prison term

As detailed in this official statement, former Prez Trump on his last day in office commuted a lot of sentences, including shaving more than two years off the 46-month federal prison sentence given to Bill Kapri, more commonly known as Kodak Black.  But that act of clemency did not eliminate three years of supervised release for Black.  And this new press article, headlined "EXCLUSIVE: Kodak Black Could Serve Original Jail Sentence Donald Trump Commuted In 2020 [sic]," caught my eye today because it suggests he could be sent back to prison for some time.  And then I found this press article from a few weeks ago, headlined "Kodak Black won’t be home for Christmas. Judge says he is a ‘danger to the community’," reporting that Black is already back behind bars.  

First the backstory from the December 2023 Miami Herald piece (which uses the term "probation" to reference what I think is actually federal supervised release):

Rapper Kodak Black, busted yet again on state drug possession charges, won’t be home for Christmas.  Black, whose legal name is Bill Kapri, has been held since last week in a federal detention center in Miami after violating his probation on a gun-buying conviction dating back more than four years.

Federal Magistrate Judge Jacqueline Becerra said she would not release the 26-year-old Pompano Beach rapper to attend a drug treatment facility in Arizona after his lawyer Bradford Cohen openly acknowledged he had an addiction problem.  “If you’re buying drugs or using drugs, you’re a danger to the community,” Becerra said, leaving the final decision on whether Black should continue to be detained on the probation violation up to U.S. District Judge Jose Martinez. A federal prosecutor said Black should not be released for drug rehab out of state. “If we let him out today to go out to Arizona, we don’t know what’s going to happen,” Assistant U.S. Attorney Bruce Brown said in court.

In February, Broward Circuit Court Judge Barbara Duffy ordered Kodak to stay at a rehabilitation facility for 30 days after an hours-long hearing....

The probation violation stems from a 2019 case in which Kodak pleaded guilty to lying on a background check form when he purchased handguns at a Hialeah weapons store, federal court records show.  He was sentenced to 46 months in prison, though it was commuted by former President Donald Trump in January 2021, shortly before he left office.

The rapper, however, was placed on probation for three years, with the period ending in January 2024. Two weeks ago, Plantation police say they found the rapper asleep in a Bentley with drugs on him. He was charged with cocaine possession, evidence tampering, and improperly stopping, standing or parking.

And now the new "exclusive" update from AllHipHop:

Kodak Black will remain in jail for at least the next two weeks, AllHipHop can confirm.  The Pompano Beach, Florida native (legal name Bill K. Kapri) will have the final hearing regarding revocation of his supervised release in Miami Division before Judge Jose E. Martinez on January 22 at 11:30 a.m. ET.  If the hearing doesn’t go in his favor, Kodak Black could wind up serving the original sentence Donald Trump commuted in 2020.

The latest legal troubles for Kodak Black stem from an incident in Plantation, Florida last month when police discovered his Bentley SUV parked in a roadway with the engine still running.  When they approached the vehicle, they said Kodak Black was asleep behind the wheel and there was a strong odor of burnt marijuana coming from the vehicle.  They also claimed they found rolling papers, weed residue near the center console and the smell of alcohol.

Cops then alleged Kodak Black’s mouth was “full of white powder.” Nearby was a white rock-like substance, which he initially claimed was Percocet. After a test of the substance, along with a white plastic bag in his pocket, it was confirmed the residue was actually cocaine.  Consequently, he was charged with cocaine possession, tampering with or fabricating physical evidence and improper stop, stand or park.

Kodak Black has a string of legal troubles since his rise to rap notoriety.  In July 2022, he was taken into custody on charges of possessing a controlled substance without a prescription and trafficking oxycodone. Officers pulled him over in Fort Lauderdale for tinted windows, which appeared darker than the legal limit.  A routine check revealed the vehicle’s registration and Kodak Black’s driving license were expired.  They also found nearly $75,000 in cash and a small clear bag containing 31 white tablets that were later identified as oxycodone.  He was ordered to drug rehab.

I flagged this story not only because Kodak Black is a celebrity with many high-profile supporters, but also because it serves as a good example of how even a presidential clemency grant can serve to provide very little protection against further criminal justice entanglements.

"Abolish or Reform? An Analysis of Post-Release Supervision for Low-Level Offenders"

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

At year-end 2021, there were nearly four million individuals serving a term of probation, parole, or post-release supervision in the United States.  This paper uses a unique and detailed dataset to study two distinct changes to state law that eliminated and then reinstated post-release supervision for low-level offenders in Kansas.  Each of these changes occurred in very different periods of criminal justice policy (2000 and 2013 respectively), but yielded the same result: post-release supervision caused large increases in reimprisonment with no detectable impact on reoffending.

I find that the elimination of post-release supervision in 2000 decreased the one-year reimprisonment rate of affected individuals by 28.5 percentage points (from a baseline of 35 percent).  In 2013, the reinstatement of post-release supervision caused a 17.5 percentage point increase in reimprisonment (bringing the reimprisonment rate back to approximately 30 percent) with no detectable decrease in reoffending.  Furthermore, I find that the elimination of post-release supervision in 2000 completely closed the racial gap in reimprisonment rates among the impacted individuals.  These results provide support for policies that would reduce the use of community supervision, not only to lower reincarceration rates, but as a promising opportunity to eliminate a major source of racial inequality in the criminal legal system.

Landlord sentenced for housing code violations given house arrest in problem property

Earlier this month, a creative sentencing story from Ohio got a lot of buzz when a local judge allowed a woman to serve part of her sentence for assaulting a Chipotle employee by serving fast food (details here).  In a somewhat similar vein comes this new creative sentencing story from Ohio, headlined "Cleveland Heights landlord sentenced to house arrest -- in one of his own apartments":

A landlord earlier convicted of ongoing housing code violations began serving a 60-day house arrest Wednesday -- in one of his own apartments.

John Tsironis, 66, with addresses in University Heights and Wexford, Pa., reported Dec. 27 to the Cleveland Heights Municipal Court’s Probation Department in the afternoon to be fitted for an electronic ankle monitor.

On Dec. 12, Tsironis appeared before Judge J.J. Costello, who nine days later revoked probation for violations of the terms of “community control,” including immediate inspections of all 12 apartments in the building at 2744 Mayfield Road in the Coventry neighborhood.

Dozens of violations to the city’s “certificate of occupancy” and “nuisance abatement” ordinances dated back to initial inspections in 2022, with the criminal case for failure to comply filed against Tsironis in January.

Tsironis pleaded no contest to the misdemeanor charge in March, when Costello fined him $1,000, suspending $300 of that.  With court costs, the total penalty came to $875, paid in June.  Costello suspended a 180-day jail sentence.

Under the new terms of his sentencing, Costello imposed the two-month house arrest to remain in effect through Feb. 25.  “The defendant shall be placed on electronic location monitoring, costs of which are to be paid in advance,” the Dec. 21 journal entry states.  “The house arrest shall be served at 2744 Mayfield Road.”

Under the terms, Tsironis will be required to remain in his apartment building between the hours of 9 p.m. and 6 a.m. daily, while “all other conditions of community control remain.”

For a range of (mostly utilitarian) reasons, I tend to be a fan of creative sentences, especially if they do not create greater public safety risks and serve as an alternative to (costly) incarceration.  So, I will not be troubled if there is now a new Ohio creative sentencing trend.

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

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

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

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

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

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

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

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

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

Some of many prior related posts:

• "Is Expanding Eligibility Enough?: Improving Record Sealing Access and Transparency in Ohio Courts" 
• "Criminal Justice Record Clearing: An Analysis from Two States" 
• Reminders of how states keep moving forward, while feds fail to do so, on record relief mechanisms 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

"Original Understanding, Punishment, and Collateral Consequences"

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

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

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

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

Making the case against "mass supervision"

In recent weeks, a number of new press pieces have discussed Vincent Schiraldi's notable new book titled "Mass Supervision: Probation, Parole, and the Illusion of Safety and Freedom."  (I have linked to some of those piece below.)  Today, I see that the author has this new opinion piece in the Washington Post under the headline "Parole and probation don’t work. Let’s think of a new approach." Here are excerpts:

There are nearly 4 million people in the United States on parole and probation — about twice as many as are incarcerated in our prisons and jails. These individuals are not quite free in the way that the rest of us take for granted. Their homes can be searched without a warrant; they can be incarcerated without representation and held without bail; they do not have the right to remain silent; and they can be convicted of, and imprisoned for, noncriminal acts based on evidence that does not need to be proved beyond a reasonable doubt.

Probation (a front-end sentence intended as an alternative to incarceration) and parole (early release from prison for good behavior) have been around since the 1800s. Both originated as alternatives to what was a new but increasingly brutal penitentiary system and were intended to rehabilitate people in the community. They are unsuccessful on both counts.

In the 1970s, rehabilitation became a dirty word in criminal justice, and the system took a sharply punitive turn, setting the country on a march toward mass incarceration and mass supervision. Probation and parole pivoted to a “trail ’em, nail ’em, and jail ’em” approach. This ushered in a mushrooming of hard-to-meet supervision conditions and imprisonment for noncriminal supervision violations. From 1980 to 2008, there was a fivefold increase in the number of people under community supervision — topping 5 million at the peak — alongside a similar expansion in prison populations. Nearly 1 in 4 people entering state prisons are incarcerated for a technical violation of their supervision, not a new offense, costing taxpayers $2.8 billion annually....

Mass supervision has managed to make us less free and no safer, all at great cost. As policymakers look to reform their supervision systems, they should consider reducing — or, for some groups, eliminating — probation and parole supervision, replacing them with services offered by nonprofit and volunteer groups, and carefully studying the outcomes.

A number of states have downsized supervision, saved money and improved public safety. In Missouri, policymakers reduced probation terms by 30 days for every 30 days of compliance while under supervision. In the first three years, 36,000 people were able to reduce their terms by 14 months, the number under supervision dropped by 18 percent, and reconviction rates for those released early were the same as for those discharged from supervision before the policy went into effect. If less supervision has better outcomes at lower cost, it’s plausible that no supervision — and investing the resulting savings in community supports such as housing, employment, and drug and mental health services — might yield even better ones.

After nearly two centuries, probation and parole have failed to prove their worth. Let’s carefully experiment with, and assiduously study, the alternatives instead.

A couple recent press pieces about this book:

From NPR, "Almost 4 million people are on probation or parole. Here's why that matters."

From Slate, "The Largest Form of Criminal Punishment in the United States Is Not Prison. It’s Still Awful."

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

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

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

Background

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

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

Call for Papers

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

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

Download the full call for papers here.

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

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

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

Background

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

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

Call for Papers

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

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

Download the full call for papers here.

Notable Ninth Circuit amicus brief making originalist case that jury trial right attaches to revocation of federal supervised release

I have noted in this prior post Professor Jacob Schuman work on the law of revocation at the Founding.  Now appearing on SSRN is this Brief of Criminal Law Scholars seeking to operationalize this work as Amici Curiae in Support of Appellant Seeking Reversal in US v. Bowers (9th Cir.).  Here is how the brief is described via the SSRN abstract:

This brief of criminal law scholars as amici curiae explains why the original understanding of the jury right requires a jury trial for revocation of supervised release.

The Supreme Court interprets the Fifth and Sixth Amendment jury right based on “the historical role of the jury at common law ... in the colonies and during the founding era.” Southern Union Co. v. United States, 567 U.S. 343, 353 (2012).  In United States v. Haymond, 139 S. Ct. 2369 (2019), the Court split 4-1-4 on whether a five-year mandatory-minimum sentence imposed upon revocation of supervised release violated the jury right.  In his dissenting opinion, Justice Alito identified “forfeiture” of a “recognizance” as the closest Founding Era equivalent to revocation of supervised release, but said he could find “no evidence” that forfeiture proceedings required a jury trial.

Justice Alito was half-right. When the Constitution was ratified, forfeiture of a recognizance was the closest equivalent to revocation of supervised release.  However, there is also abundant evidence that recognizance forfeitures at the Founding did require a jury trial.

This jury requirement only disappeared during the 19th century due to the development of parole and probation, which changed the structure of community supervision from an additional penalty to a withheld punishment.  Because supervised release is structured as an additional penalty, not a withheld punishment, the common law at the time the Constitution was ratified would require a jury trial for revocation of supervised release, even if not for revocation of parole or probation.  Revoking supervised release based on judge-found facts therefore violates the original understanding of the right to a jury trial.

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

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

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

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

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

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

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

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

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

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

Eleventh Circuit panel deepens circuit split by holding fugitive status does not serve to toll term of supervised release

LawProf Jacob Schuman made sure via this tweet that I did not forget to blog about last week's notable panel ruling in US v. Talley, No. 22-13921 (11th Cir. Sept. 7, 2023) (available here).  Here is how the unanimous ruling begins:

This appeal requires us to decide whether absconding during a term of supervised release tolls the supervised release period. James Reginald Talley, a convicted felon, appeals the district court’s judgment revoking his supervised release and ordering him imprisoned based in part on a violation committed after his supervised release had lapsed but while he was, based on the district court’s findings, a fugitive from justice.  We hold that the district court erred in tolling Talley’s period of supervised release based on his fugitive status. In doing so, we join the First Circuit and part company with the Second, Third, Fourth, and Ninth Circuits.  Accordingly, we vacate the district court’s judgment and remand for resentencing.

And here are a few paragraphs from the opinion that help highlight why it is blogworthy:

The circuits are divided over the application of “fugitive tolling” to terms of supervised release.  A majority of courts to consider the question apply the doctrine, holding that absconding from supervision equitably tolls the offender’s supervised release period during his truancy.  See United States v. Island, 916 F.3d 249, 251 (3d Cir. 2019); United States v. Barinas, 865 F.3d 99, 108–10 (2d Cir. 2017); United States v. Buchanan, 638 F.3d 448, 455–57 (4th Cir. 2011); United States v. Murguia-Oliveros, 421 F.3d 951, 952 (9th Cir. 2005). But we are convinced that the minority view is the correct one.  Accordingly, we join the First Circuit in holding that “there can be no tolling of the period of supervised release on the basis of fugitive status.” United States v. Hernandez-Ferrer, 599 F.3d 63, 64 (1st Cir. 2010); see also Island, 916 F.3d at 256–59 (Rendell, J., dissenting).

We think the First Circuit has the better position for two reasons. First, the justifications for fugitive tolling in other contexts — such as prison escapes — do not apply to the context of supervised release.  Second, the doctrine is inconsistent with the text of the statute and our caselaw interpreting that statute.

It will be interesting to see if the federal government seeks SCOTUS review of this issue.  If they do, I suspect the Court might take it up but then might just rule against the feds.  With that possible outcome, the feds might just now decide not not seek further review.  

"At the Intersection of Probation and Jail Reduction Efforts"

The title of this post is the title of this lengthy new report from the Urban Institute.  The report's executive summary starts this way to provide an overview of the work:

Probation violations contribute significantly to rising jail populations in the United States: 33 percent of all people incarcerated in jails were arrested while on probation, and 27 percent of the people in jails for probation violations were incarcerated for technical violations alone (Phelps 2017).  Therefore, many jurisdictions across the country have implemented strategies to reduce jail incarceration for people on probation (though research on the efficacy of these strategies is limited).  Pima County, Arizona, has made reforms to address probation-related drivers of jail incarceration through its participation in the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge (SJC), including the strengthening of the county’s transitional housing support, which was intended to provide short-term housing options for people experiencing housing instability.  To better understand efforts to reduce the jail population in Pima County, particularly those designed for probation populations, the Urban Institute conducted a study in partnership with the county’s Adult Probation Department.  This study focuses on describing probation pathways to jail incarceration and system-level trends in jail incarceration for people on probation in Pima County, as well as the effects of providing transitional housing support to people on probation, particularly in terms of jail use.

Although research on the prevalence of housing instability among people on probation is limited, housing instability has been found to be associated with an increased risk of criminal legal system involvement (Brown et al. 2022; Cho 2004; Metraux, Roman, and Cho 2007).  This can be particularly salient among people serving probation, who are required to report and maintain a valid address as a probation condition, a violation of which can result in jail incarceration.  Transitional housing support in Pima County, therefore, is an important strategy to study when assessing probation-to-jail pathways.

In this study, we (1) collected and analyzed administrative data, including charge-level data on all people on probation from the Arizona Administrative Offices of the Courts, individual-level data on people who received transitional housing support from the Pima County Adult Probation Department (APD), and data on jail bookings from the CUNY Institute for State and Local Governance (ISLG); (2) interviewed 30 key stakeholders, including APD officers, representatives of committees leading Pima County’s probation reform and jail reduction efforts, and people on probation; (3) reviewed probation case files for 28 unique cases that involved people who received transitional housing support and that were representative of the period of interest; and (4) reviewed policy documents, including documents pertaining to agency-level policies related to probation conditions, jail use for people on probation, supervision guidelines for officers, and publicly available data reports and qualitative reports on Pima County’s jail reduction efforts and housing support programs.  The overall study period spanned from 2015 to 2023, though different data sources spanned different periods.

District judge bemoans federal marijuana developments that "do little to promote congruity in the law in this arena"

LawProf Jacob Schuman alerted me to the notable recent opinion by Chief Judge Mark Hornack in US v. Hannon, No. 2:17-cr-00180-7 (W.D. Pa. June 30, 2023) (available here).  The short opinion explains why the judge denies a motion by the defendant "seeking
relief from conditions of his supervision related to his requested use of marijuana to treat what he describes as a 'serious medical condition' and pursuant to a medical marijuana card issued by a licensed provider of such in the Commonwealth of Pennsylvania."  Along the way, the judge highlights "inconsistencies" in federal law and practice and makes these sorts of observations:

A rational observer could conclude that this state of affairs does not well serve the sound and fair administration of justice in the federal system.  It can be logically seen as unfair to the probation officers who are obligated to supervise those under their jurisdiction in the context of these conflicting expressions of federal policy.  Those same observers could also conclude that it is unreasonable for those in the shoes of the Defendant, who would just as logically be uncertain as to what conduct is for him lawful, under either state or federal law, in the face of what is stated to be a “serious medical condition”.  They might well also conclude that it is unfair to federal prosecutors, who are charged with advancing revocation proceedings for the use of “medical marijuana,” but run directly into the Congressional directive that no appropriated funds may be used to prosecute the possession or use of marijuana when such is lawful for medical purposes under state law.  And then, all of these participants in the legal process would also be observing the President declaring that no person should spend time in prison for simple possession of marijuana
and issuing blanket pardons to that same effect, when time in prison is statutorily mandated upon a revocation of federal supervised release, even if marijuana is “simply” possessed or personally used for medical uses as otherwise authorized by Pennsylvania law....

This situation could also be seen as undercutting the public’s understanding of the essential principle of respect for the law. When the highest levels of two of the three Branches of the federal government use their Constitutional appropriations and pardon powers to in essence speak at cross- purposes with the provisions of federal criminal statutes that remain on the books, it becomes more difficult to generate that respect for the law which is fundamental to our founding principles.

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

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

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

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

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

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

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

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

Deep dives in "back-end" sentencing problems in two east coast states

Today brought the release of two notable reports on problematic back-end sentencing practices in two states.  Both reports merit more careful attention that this one post can provide, but here are the basics:

From the Prison Policy Initiative, "Excessive, unjust, and expensive: Fixing Connecticut's probation and parole problems."  A snippet:

This report provides lawmakers and advocates fundamental information to advance essential probation and parole reforms in Connecticut, changes that will reduce unnecessary incarceration and supervision; increase fairness, justice, and public safety; and save taxpayer dollars and other resources.  The report reviews the policies and data related to community supervision and technical violations in Connecticut and describes concrete ways to improve these systems. It also gives an overview of New York’s recent parole reforms, with recommendations for lawmakers and others working to shape meaningful legislation in Connecticut and beyond.. Given the immediate and ongoing signs of success in New York, any state can look to the provisions of the Less Is More Act to help determine ways to reduce excessive supervision and incarcerated populations.

What follows is a deep dive into the policies and practices that entangle too many people in the web of ongoing supervision and cycles of imprisonment in Connecticut. Those who are on probation and parole live in fear of arrest and incarceration for nearly any action that could constitute a violation — a gross misuse of resources and a disservice to families in Connecticut.  By allowing people to remain in their communities, the state can better provide residents the help they may need in the place where they’re most likely to succeed. Connecticut has a momentous opportunity to reshape the probation and parole systems and deliver racial, economic, and procedural justice to people under supervision.

From the Justice Policy Initiative, "Safe at Home: Improving Maryland’s Parole Release Decision-Making." A snippet:

This document highlights the best available research and practice in the parole field and provides recommendations for improvements to Maryland’s parole decision-making process. To develop these recommendations, JPI consulted with experts who provide technical assistance to states looking to improve their parole practices, reviewed research on parole practice and outcomes, spoke with attorneys who assist individuals applying for parole, consulted with family members and individuals who have experience with the Maryland parole system, and examined best practices in parole in other states to identify areas of needed improvement in Maryland....

The parole grant rate decreased between 2020 and 2021 despite the emergence of COVID-19 in early 2020.  Many jurisdictions around the country expedited the release of individuals from prison to reduce the spread of the virus. This was typically accomplished by moving up parole eligibility by months and expanding the number of people eligible for a hearing.  However, Maryland data reveal sharp declines in newly eligible individuals, hearings, and the releases granted.

Grant rates in Maryland follow a bell curve pattern. Emerging adults (25 years of age and younger) report a grant rate of 37 percent.  The rate increases to a high of 43 percent for people between the ages of 31 and 35, steadily declining as individuals age. People over 60 are paroled at a rate of 28 percent.  Parole grant rates that decline with age run counter to everything we know about trends in criminal offending.  Crime is a young person’s endeavor, and the likelihood of reoffending drops precipitously after age 40.  

Prison Policy Initiative details "Punishment Beyond Prisons 2023: Incarceration and supervision by state"

Prison Policy Initiative has produced this intricate new report detailing how many folks are under correctional control in every state and throughout the entire US.  The report is titled "Punishment Beyond Prisons 2023: Incarceration and supervision by state," and here is how it gets started:

The U.S. has a staggering 1.9 million people behind bars, but even this number doesn’t capture the true reach of the criminal legal system.  It’s more accurate to look at the 5.5 million people under all of the nation’s mass punishment systems, which include not only incarceration but also probation and parole.

Altogether, an estimated 3.7 million adults are under community supervision (sometimes called community corrections) — nearly twice the number of people who are incarcerated in jails and prisons combined.  The vast majority of people under supervision are on probation (2.9 million people), and over 800,000 people are on parole.  Yet despite the massive number of people under supervision, parole and probation do not receive nearly as much attention as incarceration.  Policymakers and the public must understand how deeply linked these systems are to mass incarceration to ensure that these “alternatives” to incarceration aren’t simply expanding it.

We’ve designed this report specifically to allow state policymakers and residents to assess the scale and scope of their entire correctional systems.  Our findings raise the question of whether community supervision systems are working as intended or whether they simply funnel people into prisons and jails — or are even replicating prison conditions in the community.  The report encourages policymakers and advocates to consider how many people under correctional control don’t need to be locked up or monitored at all, and whether high-need individuals are receiving necessary services or only sanctions.

In this update to our 2018 report, we compile data for all 50 states and D.C. on federal and state prisons, local jails, jails in Indian Country, probation, and parole.  We also include data on punishment systems that are adjacent to the criminal legal system: youth confinement and involuntary commitment.  Because these systems often mirror and even work in tandem with the criminal legal system, we include them in this broader view of mass punishment. We make the data accessible in one nationwide chart, 100+ state-specific pie charts and a data appendix, and discuss how the scale and harms of these systems can be minimized.

Justice Department releases latest annual report on FIRST STEP Act implementation

The US Department of Justice recently released this notable report titled simply "First Step Act Annual Report, April 2023." Here is the 50+-page report's simple introduction:

The First Step Act of 2018 (“First Step Act,” “FSA,” or “Act”) was the culmination of a bipartisan effort to improve criminal justice outcomes and reduce the size of the federal prison population, while maintaining public safety. Under Section 101 of the Act, now codified in 18 U.S.C. § 3634, the Attorney General is required to submit a report beginning two years after the date of enactment, and annually thereafter for a period of five years.  The Department of Justice (the Department) submitted its last such report to Congress in April 2022.  This is the third Annual Report submitted pursuant to Section 3634.

What follows is an extraordinary amount of information and data about FIRST STEP Act implementation on many fronts, and here is just one of a half-dozen items of note that is flagged in the report's executive summary:

Enhance the use of home confinement and prerelease custody.  Consistent with the FSA’s emphasis on transitioning individuals to a community setting, the Department has expanded the use of home confinement for individuals who do not pose a danger to the community.  As of January 28, 2023, 13,501 individuals have been released from Residential Reentry Centers (RRCs), home confinement (HC), and secure facilities pursuant to credits earned under the First Step Act.  On April 4, 2023, the Department also issued a final rule granting discretion to the Director of the Bureau of Prisons to allow individuals placed in home confinement under the Coronavirus Aid, Relief, and Economic Security (CARES) Act to remain in home confinement after the expiration of the covered emergency period.  The final rule provides the Bureau the discretion and flexibility to impose proportional and escalating sanctions for individuals who commit infractions, including returning them to prison.  It also allows the Bureau to move individuals into RRCs when needed, including instances when the home residence is no longer viable or due to either minor accountability issues or non-significant disciplinary issues.  Consistent with the final rule, the Director of the Bureau of Prisons also instructed that any individual placed on home confinement under the CARES Act will remain on home confinement under the CARES Act for the remainder of their sentence, provided that they are compliant with the rules and regulations of community placement.  Since the enactment of the CARES Act on March 26, 2020, the Bureau of Prisons has placed more than 12,000 individuals in home confinement under CARES Act authority.  Of those, only a fraction of one percent has been returned to secure custody due to new criminal conduct.

Latest reporting of US District Court's experience getting involved with supervised release

A couple of helpful folks recently focused my attention on the notable work that SDNY US District Judge Richard M. Berman has been doing in the arena of federal supervised release.  This work is discussed by Judge Berman in this Regulatory Review article, titled “Federal Court Involvement in Supervised Release,” and here is the start of this article:

In most cases, individuals’ release from federal prison does not mark the end of their sentences. A federal criminal sentence typically also includes a term of “supervised release,” which the U.S. Sentencing Commission defines as a “unique type of post-confinement monitoring that is overseen by federal district courts with the assistance of federal probation officers.”  Supervised release is intended to assist people who have served prison terms with their effective reintegration, or “reentry,” into the community.

Judges are not always actively involved in overseeing supervision.  Rather, officers of the U.S. Probation Office play the dominant role in monitoring individuals on supervised release.  Judges tend to become more involved only after a supervisee has failed to comply with the terms of supervision.  As a result, judges may miss the opportunity meaningfully to assist with reentry and to help ensure that necessary services such as drug treatment, mental health counseling, and housing and employment assistance are provided.

Over the past five-plus years, my chambers staff and I developed a more active and involved approach to supervised release.  The practice features regular supervised release hearings intended to help ensure that supervisees succeed and avoid further negative involvement in the criminal justice system.  Importantly, this practice also includes early termination of supervised release for all those who have shown that they no longer need supervision.

That Regulatory Review article also provides a link to a 2021 report with data about how this court involved supervised release functioned and some of its impacts.  A 2022 version of this report (as will as some slides) were sent my way recently, and are available in links below.  And here is part of the executive sumary of this latest report:

In this report, we provide results from our court involved supervised release project. Data and case studies are presented from the perspectives of recidivism and desistance from crime—in the areas of rearrest, return to prison, and early termination of supervision.

The Study Population rearrest rates over three and five years are 17.1% and 20.4%, respectively; the return to prison rate is 13.2%; and the early termination rate is 46.2%. These results include all Study Population supervisees and make no adjustments for “risky” supervisees.

Acknowledging that comparisons are at best imprecise, we include an AO study which shows rearrest rates of 20.8% at three years (16.3% adjusted) and 27.7% at five years (page 20); a Bureau of Justice Statistics study which shows a return to prison rate of 31.6% (page 22); and an AO early termination study which shows a rate of 18.8% (page 34).

The approach and outcomes presented in our report are very encouraging. At the same time, it is premature to conclude or to celebrate that recidivism is decreasing (page 8).

A fair conclusion to be reached from the data and the case studies is that judges who become actively involved in supervision — together with dedicated probation officers and others — can unequivocally and meaningfully assist supervisees to safely and successfully reenter their communities.

Download Judge Berman Supervised Release Report (2022.10.12)

Download Judge Berman 2023.04.05 Supervised Release Slides

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

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

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

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