States “rethinking” collateral consequences? Vera Institute jumps the gun

sentencing-2The Vera Institute has published a new report that claims states are “rethinking” collateral consequences through enactment of laws intended to mitigate their impact.  The report (Relief in Sight? States Rethink the Collateral Consequences of Criminal Conviction, 2009-2014) includes an excellent introduction to the issues, helpfully categorizes different types of relief measures, and makes a number of useful recommendations for future reform.

However, the report seems unduly sanguine in suggesting that wholesale dismantling of the regime of collateral penalties is just around the corner, or that reforms of the past five years augur a sea change in public attitudes.  Of greater practical concern, the report has methodological shortcomings that limit its usefulness as a research and advocacy tool.

Optimistic conclusions 

The authors of the Vera report have mined legislative records between 2009 and 2014 to identify 155 separate pieces of legislation, enacted in 41 states and the District of Columbia, that it claims limit the application of conviction-related legal penalties.  An accompanying “infographic” leaves a strong visual impression that reform is widespread across the land.  There is cautionary language in the report’s introduction and notably in its summary about the limited nature of many of these new laws.  But the report’s emphasis on the sheer volume of recent legislative activity sends a different signal.

A closer look at the specific laws described in the text of the report shows that it is at best premature to conclude that states are “rethinking collateral consequences” as a general matter, or that relief is “in sight” for most people with criminal records.  Few of the laws identified actually limit or repeal conviction-based penalties, and most only nibble at the margins of their application.  Our own research shows that, during the five-year period studied by the Vera report, dozens of new legal and regulatory restrictions were enacted for every new relief measure.  Moreover, the relief reforms are incremental rather than what the Table of Contents describes as “new approaches” (Vermont’s Uniform Act is one of the few exceptions), and most people with criminal records will not benefit from them.

It doesn’t take a cynic to conclude that even if the reforms identified in the report “collectively . . . indicate a criminal justice system on the cusp of embracing reentry and reintegration as guiding principles,” this is because of concerns about recidivism and public safety, not because society as a whole is ready to “accept[] people with criminal records as full members capable of contributing to their families and communities.”  (Report at p. 43.) We may have turned a corner, but we are still a long way from home.

Methodological flaws

The report’s overly optimistic view of national trends is forgivable.  Its methodological shortcomings are less so, particularly from as eminent a research organization as the Vera Institute.

To begin with, the report is difficult to use as a research tool, particularly for lawyers, because it identifies new laws only by bill number and not by code citation.  In order to determine exactly what a particular enactment provides, one has to go to the relevant legislature’s website and hunt for the right bill, then wade through what are frequently many irrelevant provisions in order to identify the one that attracted Vera’s attention.  Perhaps the report was not intended primarily as a legal research tool, but it is nonetheless frustrating for anyone trying to use it as such.

In addition to inconveniencing researchers, working from bill texts as opposed to codified laws invites mistake and misunderstanding.  For example, the report notes (p. 24) that Delaware’s new ban-the-box law prohibits consideration of felony or misdemeanor convictions “if more than ten or five years, respectively, have elapsed since release from custody (or from the sentencing date if there was no incarceration).”  But this progressive language was stripped out of the bill prior to enactment, leaving only a limited prohibition on inquiry and general standards. Provisions enacted prior to 2013 in Ohio (p. 14) and Indiana (p. 24) turn out to have been amended or repealed by later enactments.  Laws not examined in context are easily misinterpreted, as evidenced by the description of California’s modest amendments to its pre-existing set-aside law (p. 14).

But we believe the report’s most serious methodological flaw is its presentation of comprehensive legislation in piecemeal fashion.  Cannibalizing integrated schemes to supply parts for prearranged categories obscures the significance of the handful of genuinely important reform measures enacted in the past two years.  It also makes it next to impossible for the casual reader to distinguish major new enactments from minor “tweaks” to existing law.  Examples of this phenomenon are Vermont’s 2014 Uniform Collateral Consequences of Conviction Act (mentioned only for its inventory provision), and the sweeping expungement schemes enacted in 2013 by Indiana (mentioned only for limitations on employer inquiry and minor “fixes” enacted the following year) and in 2014 by Minnesota (mentioned only for deferred adjudication and negligent hiring protections). Colorado’s set of interconnected reforms enacted between 2011 and 2013 is disaggregated and given only passing mention in several batches of comparatively trivial enactments.

The text of the report fails even to mention several very important new relief authorities, leaving it up to the curious reader to comb through dozens of bills identified only by general category of reform.  Examples of this are Arkansas’ Comprehensive Criminal Record Sealing Act of 2013, Tennessee‘s 2014 Certificate of Employability and 2012 expungement authority, and the impressive new Chapter 34 of the Louisiana Code of Criminal Procedure. California’s 2014 Proposition 47, which extends set-aside relief to a large new class, is not even cited, though it probably represents as bold a “rethinking” as any other law mentioned in the report.

In summary, while we are grateful for Vera’s attention to the subject of collateral consequences, we regret its decision to emphasize quantity of law-making over quality. At least as reported, the new enactments do not warrant the overall conclusion that “relief is in sight.”  Vera would have found more support for its optimistic prognoses, and better focused its call for further reforms, if it had chosen to present in their entirety the half-dozen genuinely significant legislative achievements of the past two years.  As it is, in choosing to present these comprehensive schemes in scattered and undifferentiated form, or not at all, the report misses a golden opportunity to highlight what may turn out to be the vanguard of genuine collateral consequences reform.

 

Margaret Love

Former U.S. Pardon Attorney Margaret Love represents applicants for executive clemency in her private practice in Washington, D.C.. An author of Collateral Consequences of Criminal Convictions (NACDL/West), she created and maintains the NACDL Restoration of Rights Resource and serves on the enactment committee of the Uniform Collateral Consequences of Conviction Act.

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