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
Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods. If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison. Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt.
The New York Court of Appeals is considering how candid a person must be about his prior criminal record when applying to law school. During oral argument on February 12 in Matter of Powers v. St. John’s University School of Law, several judges raised public policy concerns over the law school’s summary rescission of David Powers’ admission midway through his second year, based on how he had described his criminal record on his original application. Powers had disclosed a past conviction for drug possession, but did not also report that he had initially faced more serious charges of drug-dealing. These underlying charges came to light mid-way through Powers’ second year, when he sought clarification from the New York courts as to whether his criminal record would preclude his admission to the bar.
According to an account of the argument in the New York Law Journal, “[Powers] involvement with drugs seemed to concern state Court of Appeals judges less than St. John’s University’s decision to rescind his admission to law school.”
In a wide-ranging interview with Buzzfeed’s Ben Smith posted on February 11, President Obama was asked about the employment difficulties faced by young black men with a felony record. His response suggests that he may be interested in addressing through his pardon power the problems faced by people with federal convictions seeking restoration of rights and status, as he addressed them through law-making as a member of the Illinois legislature. This in turn suggests to us that the Justice Department may now be engaged, at the President’s direction, in a more proactive consideration of applications for a full presidential pardon. We post the exchange in full, so our readers can judge its import for themselves: Read more
The Eternal Criminal Record is the title of Professor James Jacobs’ new book, just out from Harvard University Press. This is the first comprehensive study of criminal records law and policy, and it deals with a range of contemporary legal and policy issues ranging from how records are created and disseminated, to how they are used by public and private actors, to how they are maintained and (perhaps) eventually sealed or destroyed. Professor Jacobs examines important jurisprudential issues such as the right to public access versus the right to privacy; the role of criminal records in punishment theory; how U.S. criminal record policy compares to other countries; and the intersection of public safety and fairness in imposing collateral consequences.
The book will be reviewed on this site in a couple of weeks. In the meantime, here is the publisher’s description of it.
When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media. A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute. But the contemporaneous news accounts remained available on line, and the publishers refused to remove them.
Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute. The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.” The Second Circuit affirmed. SeeMartin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).
Most people with a criminal record have a general understanding of the value of expunging or sealing their criminal records. However, figuring out how to actually obtain such relief in a particular jurisdiction, and understanding its specific effects, is not so easy. The Papillon Foundation aims to change that by offering practical internet-based information about the process for obtaining expungement and sealing in all 50 states. We spoke with the Foundation’s founder Alan Courtney not long ago to find out more about how the Foundation helps people clean up their record and take charge of their past. Read more