Collateral consequences: punishment or regulation?

Have we been wrong in trying to fit the round peg of collateral consequences into the square hole of punishment?  Sandra Mayson, a Fellow at the Quattrone Center at the University of Pennsylvania Law School, says yes.  In an article published in the Notre Dame Law Review, Mayson challenges the scholarly view  that mandatory collateral consequences should be considered part of the court-imposed sentence, and thus potentially limited by procedural due process and ex post facto principles.

But that doesn’t mean that collateral consequences should be immune from constitutional constraint. Mayson proposes instead to analyze collateral consequences as “preventive risk regulation” under principles developed in the administrative law context.  Specifically, she argues that a severe collateral consequence (such as sex offender registration) may be justified only if it can be shown to serve a public safety purpose in a particular case.

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Do ban-the-box policies increase racial discrimination in hiring?

Ban-the-box policies have become popular in recent years as a way of minimizing discrimination based on criminal history, and have been adopted by 24 states, the federal government, and a number private companies. But until recently there has been little hard data available about the general effect of those policies on employment opportunities.  A number of recent studies have begun to fill that gap, and the results have been disturbing. The consensus seems to be that while banning the box does enhance the employment prospects of those with criminal records, it also encourages employers to fall back on more general racial stereotypes about criminal history without the “box” to confirm or deny it.

Most recently, a multi-year field study by Amanda Agan (Princeton University) and Sonja Starr (University of Michigan Law School) found that although banning the box made it more likely that individuals with criminal records would receive call-backs from prospective employers, it dramatically increased the gap in call-backs between black and white applicants. Employer responses to over 15,000 fictitious job applications sent to New York and New Jersey employers after ban-the-box policies took effect showed that black applicants received 45% fewer callbacks than white applicants, up from a 7% differential before the new policy took effect:

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Ban the other box – Suspension and expulsion shouldn’t be a bar to college

University application form

The following piece was originally published by The Marshall Project, a nonprofit news organization focused on the US criminal justice system.  Even though criminal records and school disciplinary records are entirely distinct, they both pose similar, often unjust, obstacles to higher education.  Consideration of both types of records in the admissions process can have the troubling effect of excluding qualified and motivated young people — particularly those from minority communities — from America’s colleges and universities because of past mistakes that have little to do with academic potential or the protection of public safety.

The story is familiar: a high school student grabs another student’s iPhone at lunch and tries to sell it. He is caught, arrested, and booked into juvenile hall. He is also suspended. If universities and colleges follow the recent recommendation of the Obama administration, colleges will not consider the student’s criminal record in the initial stages of the admissions process. These recommendations, contained in a recently released “Dear Colleague” letter by Education Secretary John B. King, represent a significant step in removing barriers to education for people with criminal records. And just this week, over a dozen colleges and universities signed on to the White House’s Fair Chance Higher Education Pledge.

Unfortunately, the letter and the pledge are silent about another common question on college applications: Have you ever been suspended or expelled from school? For the teenager who stole the phone, this means that while his criminal record may not ruin his chance to be admitted to college, his school disciplinary record just might.

More than 3 million students are either suspended or expelled from schools each year and when they are, a discipline record is generated. While the barriers created by criminal records have begun to receive much-needed attention, the barriers created by school discipline records have been largely overlooked. The Department of Education report that accompanies King’s letter mentions school records only in passing, without taking a firm position. Like criminal records, school discipline records can, and do, jeopardize young people’s chances to succeed. Like criminal records, school records are a scarlet letter.

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Former Obama officials advocate against FBI checks by (some) employers

Last week we posted a letter sent by former Attorney General Eric Holder to the Chicago City Council on behalf of Uber and Lyft, urging that it not require Uber and Lyft to subject their drivers to FBI fingerprint-based background checks applicable to taxi operators.  His main argument was that FBI records are incomplete and misleading, and that they have a discriminatory impact on minorities. It now turns out that the campaign to free these ride-sharing companies from regulatory restrictions is broad-based: Holder has reportedly written to officals in New Jersey and Atlanta considering similar measures, and other former Obama officials are also working for Uber.

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Former AG says no FBI screens for Uber and Lyft drivers

On June 2, former Attorney General Eric Holder sent a letter to the Chicago City Council asking it not to make Uber and Lyft do FBI background checks on their drivers as a condition of operating within the metropollitan area.  The ride-sharing companies have argued that they should be permitted to vet their own employees.  Mr. Holder’s points out that FBI records are incomplete and thus misleading, and that they are intended for law enforcement purposes, not to screen applicants for employment.

Mr. Holder, whose tenure at the Justice Department was notable for efforts to highlight the problems faced by people returning to the community from prison, then argues more broadly that perfoming background checks on applicants for employment disadvantages communities of color.  In this regard, he notes that 80% of African-American men of working age in Chicago have a criminal record, and only half of them are employed. (This seems to present another one of those “ampersand” situations that so frequently arise these days in the criminal law context.). He concludes by stating that screening employees through FBI record checks is “both unwise and unfair.”

Mr. Holder’s letter does not indicate the context in which it is written, or whether He represents an interested party — though it is written on his law firm stationery so it seems fair to assume he is writing in behalf of either Uber or Lyft, or perhaps both.

Chicago would not be the first city to provoke controversy by requiring ride-sharing companies to perform fingerprint-based FBI background checks on their employees and applicants for employment.  For example, Uber and Lyft pulled out of Austin, Texas, after the city council voted to impose the same background check requirements on ride-share drivers as are required for taxi drivers.  At the same time, reports of driver attacks on ride-sharing passengers raise public concern about the effectiveness of self-regulation. It seems clear that we have not heard the last of this issue.

Divided Wisconsin Supreme Court declines to extend Padilla to other serious consequences

wi-largesealLast month the Wisconsin Supreme Court held in State v. Lemere that the Sixth Amendment does not require defense counsel to advise a client that a conviction for a pending charge of sexual assault could result in future commitment proceedings under chapter 980. The case could be appropriate for certiorari review in the U.S. Supreme Court regarding the scope of the Sixth Amendment right to counsel, since it reflects differing views in state high courts. 1

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  1.  Ed. Note: State high courts have reached differing conclusions about the scope of the Padilla holding under the federal Constitution. The Illinois Supreme Court held in People v. Hughes that failure to warn about the possibility of civil commitment was sufficient to invalidate a plea. The Utah Supreme Court reached a contrary conclusion in State v. Trotter.

Ampersands – Brock Turner & conflicts of justice

georgiaI recently had the chance to meet with one of the leading international experts on the treatment and punishment of people who have committed sex offenses. I noticed she has a small tattoo of an ampersand on the inside of her wrist. I keep thinking of that ampersand as I read Brock Turner rage memes, which I both hate and find so satisfying.

Ampersand: This difficult fact is true AND this other, seemingly contradictory fact is also true. It’s difficult to hold all of it at the same time– fury against the man who raped an unconscious woman behind a dumpster, AND relief at the rare flash of humanity and mercy extended to him in our otherwise unrelenting carceral system, AND anger about the race and class context of that mercy.

Our current sex offense policies thwart accountability by perpetrators, re-traumatize victims of sexual assault, foster racialized implementation of laws, decrease public health and public safety in our communities, and, despite their failures, cost us billions of dollars each year. In short, it’s a crisis.

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CCRC welcomes Sala Udin to board of directors

Sala-Udin-6The Collateral Consequences Resource Center is pleased and honored to welcome civil rights activist, community organizer, politician, and accomplished actor Sala Udin to its Board of Directors. Udin is personally familiar with the obstacles faced by those with criminal records, having had to overcome them in becoming a respected community leader and champion for justice.

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Excessive filing fees frustrate new expungement schemes

How much is a clean slate worth?  That’s the question many people with criminal records are asking in Kentucky, Louisiana, and Tennessee, where the cost of filing for expungement is (or will soon be) between $450 and $550.  To put that into perspective:  In Kentucky, the $500 fee required to expunge an eligible felony conviction under a new law that takes effect in July will equal nearly half of the monthly wages of a full-time worker earning the state’s $7.25 minimum wage.  The relative cost will be even higher for the many people who have difficulty securing steady full-time employment because of their criminal record.  The high filing fee puts relief effectively out of reach for most of those it was intended to benefit,  even if they elect to file without retaining a lawyer.

There is a major disconnect between these exorbitant fees and the policy rationale that has led many states to create or expand expungement opportunities in recent years.  Expungement improves the employment prospects of people with criminal records, allowing them to achieve a degree of economic stability that in turn discourages further criminal behavior.  People held back from economic stability by their criminal records are the people that are likely to benefit most from expungement, and the social advantages of expungement are most keenly experienced among this population.  But these are the very people least likely to be able to afford to pay high application fees.

According to an article by Maura Ewing published by the Marshall Project earlier this week that takes a closer look at the issue, Kentucky, Louisiana, and Tennessee are outliers among states that allow for expungement in charging such high fees:

Many states charge $150 or less to apply for expungement … and some states offer a waiver if the applicant is too poor to pay.

In the 17 states that allow for expungement of low-level felonies, “the application fee is generally in line with standard court fees.”

So why are the application fees in those three states so high, and where does that money go?  Ewing found that while Louisiana’s fees were considered necessary to cover the costs of an inefficient and underfunded justice system, the fees in Kentucky and Tennessee were driven solely by the prospect of generating general revenue.  From the article:

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New Yorker comments on collateral consequences

Lincoln Caplan writes in this week’s New Yorker about Judge Frederic Block’s decision last week to reduce a woman’s prison sentence because of the life-altering collateral penalties she faced on account of her drug conviction.  After describing the facts of the case and the judge’s reasoning, Caplan concludes with the following comments about what Jeremy Travis has called “invisible ingredients in the legislative menu of criminal sanctions”:

The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time. As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.” They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”

The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.

One of the most significant things about Mr. Caplan’s comments is that they make clear he believes collateral consequences are “punishment,” not “regulation,” and should be treated as such.  Courts are beginning to regard them as such as well for purposes of applying constitutional principles.  See, for example, the three cases now pending in the Pennsylvania Supreme Court, where the validity of the state’s new sex offender registration scheme is at stake. States are increasingly looking at lifetime registration as punishment under their own state constitutions.  So it should not be long before the U.S. Supreme Court is asked to reconsider its 2003 holdings that such collateral consequences are immune from constitutional challenge based on the Due Process and Ex Post Facto clauses.

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