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. See Martin 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
We were struck by this recent headline: “Gov. McAuliffe makes pardon from hospital, where he will remain overnight.” The Virginia governor was recuperating from a procedure to drain his lungs made necessary by a holiday fall from a horse, when he called reporters to his hospital room to witness a grant of “conditional pardon” (Virginia’s term for a sentence commutation) to an autistic man jailed for assaulting a police officer, to permit him to go to a secure treatment center in Florida for help rather than being warehoused for years in a Virginia prison. It is likely that McAuliffe wanted to show himself fully able to conduct state business. But it seems significant that he chose this particular official act to make the point.
The bookend episode that immediately comes to mind is Bill Clinton’s well-publicized departure from the campaign trail in 1992 to fly home to Arkansas to sign Ricky Ray Rector’s death warrant. Rector had shot himself in the head after murdering a police officer and was effectively lobotomized — and so unable to appreciate his circumstances that he asked to save the pecan pie from his last meal for “later.”
There may be no more telling sign that the “soft of crime” label is losing its power over elected officials than McAuliffe’s decision to publicize this bedside act of mercy.
In a major victory for Second Amendment advocates, the Sixth Circuit court of appeals has sustained an as-applied constitutional challenge to the federal firearms dispossession law, 18 U.S.C. § 922(g). While the particular provision of that law at issue in Tyler v. Hillsdale County Sheriffs Department is § 922(g)(4), the subsection prohibiting firearms possession by anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution,” the court’s broad holding and analytical approach will be of considerable interest to those watching developments under the felon-in-possession subsection of the law, § 922(g)(1).
Notwithstanding the Supreme Court’s decisions in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) and Smith v. Doe, 538 U.S. 84 (2003), state courts are coming to different conclusions under their own constitutions about whether sex offender registration and notification laws constitute punishment for purposes of due process and ex post facto analysis. The Pennsylvania Supreme Court is the most recent to invalidate mandatory registration requirements imposed on juveniles, but several state supreme courts have limited the retroactive application of registration requirements to adults under an ex post facto analysis.
Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about restrictions on international travel based on criminal record. The first section discusses the subject in general terms, while the second section describes restrictions on travel to Canada for individuals with a foreign conviction, and the methods of overcoming these restrictions. (An earlier post described methods of neutralizing Canadian convictions for purposes of travel to the U.S.)
The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges.
Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the same kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access.
We recently came across this five-part series on sex offender registries, written by three Yale Law School students and published by Slate.com. It traces the recent history of registries since the passage of the Jacob Wetterling Act in 1994, examines some of the fallacies and flawed stereotypes underlying the expansion of registries in the past 20 years, and spotlights three areas in which the authors argue their growth has been especially unwise:
- more non-violent “outlier” crimes are covered;
- states are keeping people on registries for longer periods of time and making removal harder; and
- more harsh collateral consequences attach to those required to register.
The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction. The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford.