Author Archives: CCRC Staff
- California poised for major change in fair employment law - September 22, 2017
- Nevada’s good sealing law gets better - September 1, 2017
- A closer look at Indiana’s expungement law - August 30, 2017
- “Presidential pardons have lost their true purpose” - August 29, 2017
- Illinois enacts boadest sealing law in Nation - August 25, 2017
- Preview of 50-state report on effective relief mechanisms - August 17, 2017
- PA high court holds sex offender registration unconstitutional - July 19, 2017
- Sex offender consequences in the Supreme Court – what’s ahead? - July 18, 2017
- Fair Credit Reporting Act applied to criminal records - July 18, 2017
- Introducing the new Restoration of Rights Project - June 28, 2017
President plans “aggressive” use of pardon power to commute drug sentences but perhaps not to relieve collateral consequences
For the third time in six weeks, President Obama has spoken on the record about his intention to make more “aggressive” use of his pardon power in the final months of his term to commute long drug sentences. It appears he really means it — and the only thing that may stop him from setting a modern record (perhaps even more impressive than the drug commutations of John Kennedy and Lyndon Johnson) is the pace of recommendations coming from the Justice Department via Clemency Project 2014. (Comments on his other recent statements are here and here.)
Hopefully the President will grant more full pardons as well, though his comments on that score have been less encouraging.
In an editorial titled “Job Hunting With a Criminal Record,” the editors of the New York Times tackle the problem of employment discrimination against the estimated 70 million Americans who “carry the burden of a criminal record.” They question the efficacy of expungement and other popular “forgetting” strategies for dealing with employer aversion to risk, preferring the “longer term” approach of “a change in attitudes about people with criminal records.”
The editorial points out that expungement laws typically apply only to “relatively minor transgressions,” require lengthy waiting periods, and include “significant exceptions” (e.g., they don’t apply to jobs and licenses requiring a background check, a large and growing segment of the labor market). In addition, “trying to keep anything secret in the 21st century is no sure thing.” Finally, “record-sealing laws do not and cannot address the underlying problem of overcriminalization.”
The New York Times has published an editorial about the recently issued report of the Center for Community Alternatives on the deterrent effect of questions about criminal records on applications for admission to the State University of New York. (See the piece about the report “Boxed Out: Criminal History Screening and College Attrition” by CCA Director Alan Rosenthal published in this space 10 days ago.) The editorial notes that the 24 campuses of the CUNY system do not include “the box” asking about criminal record on their application forms and have reported no safety issues as a result. Perhaps this will be one of those rare cases where effective public advocacy highlighted in editorial pages will actually have a concrete result.
In an important decision for firearms-related collateral consequences, the New Hampshire Supreme Court relied on the Second Amendment to carve out an exception to the so-called federal felon-in-possession statute, declining to follow relevant federal court precedents. At stake is whether state or federal courts have the last word on the scope of the exceptions in 18 U.S.C. 921(a)(20). In DuPont v. Nashua Police Department, the court held that a man convicted of a misdemeanor DUI, who as a result lost his right to possess a firearm under state and federal law, was able to avoid federal firearms disability by virtue of the restoration of his state firearms rights, even though he lost none of the traditional “core” civil rights (vote, office, jury). In order to get to this result, the court had to conclude that the right to possess a firearm is itself a civil right, whose loss and restoration under state law is sufficient to satisfy the “civil rights restored” requirement in 921(a)(20), thus creating a narrow but significant exception to the U.S. Supreme Court’s holding in Logan v. United States.
While the holding in DuPont applies only to a limited class of misdemeanants (those who lost and regained state firearms rights), the decision may be the opening salvo in a state backlash against federal efforts to define the scope of state relief recognized in 921(a)(20).
The Ohio Supreme Court is considering whether a young man whose conviction requires him to register as a sex offender should be excused from this collateral consequence on grounds that it violates the state constitution’s prohibition on cruel and unusual punishment. The transcript of the March 10 oral argument in Blankenship v. State of Ohio, Case no. 2014-0363, suggests that the Ohio high court may be poised to invalidate the mandatory sex offender classifications in Ohio law as applied to a 21-year-old who had a consensual sexual relationship with a 15-year-old. In 2011 the court ruled in State v. Williams that the state’s registration scheme is punitive and thus may not constitutionally be applied retroactively, so it would be a short step for the court to find that the mandatory registration requirement constitutes cruel and unusual punishment in this case.
During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term.
Responding to a criminal defense attorney who asked what she could do to “increase the number of federal pardons,” the President explained that he was taking a “new approach” to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term. He said he had asked the Attorney General to “open up” the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief:
Job seekers applying for work with the state of Georgia will no longer need to disclose prior criminal convictions on their initial applications.” The order provides that this new policy “will allow returning citizens an opportunity to explain their unique circumstances in person to a potential employer.” Read more
The certificate system for restoring rights after conviction in New York no longer serves its intended purposes, according to an investigation by City Limits. The problem is that Certificates of Relief from Disabilities (CRD) are supposed to be a means to rehabilitation for people sentenced to probation, but the judges authorized to issue them see them (in the words of one public defender) “as a gold star, as a thing you get after you’ve been rehabilitated.” The Parole Board appears similarly Read more
A second federal court in Pennsylvania has held that the federal felon-in possession statute cannot constitutionally be applied to an individual convicted many years ago of a minor non-violent offense. In Suarez v. Holder, the district court for the Middle District of Pennsylvania held that a man convicted in 1990 of misdemeanor possession of an unregistered handgun and sentenced to probation was “no more dangerous than a typical law-abiding citizen,” and therefore entitled to claim the protection of the Second Amendment. The Suarez court followed the reasoning of the court in Binderup v. Holder, decided in Pennsylvania’s Eastern District in September. The government has appealed the Binderup decision, and the government’s brief is due this month. Read more