Author Archives: CCRC Staff

Expungement in Pennsylvania explained

imagesPennsylvania has been active in recent years in expanding its judicial relief mechanisms, though it still has a long way to go to catch up to states like Kentucky, Missouri, and New Jersey, which have in the past 12 months extended their expungement laws to some felonies and/or reduced waiting periods.  No one has been more active and effective in the effort to increase the availability of “clean slate” judicial remedies than Sharon Dietrich, Litigation Director for Community Legal Services of Philadelphia.   Sharon has written a comprehensive guide to existing authorities on expungement and sealing in her state, which also discusses pending bills that would extend these laws.  The abstract follows:

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Manslaughter plea vacated to avoid licensing bar

A former University of Maryland student who pled guilty last April to throwing a punch that resulted in the death of a fellow student, has been allowed the benefit of a nonconviction disposition that will likely result in the expungement of his record. According to a report in the Washington Post,

Prince George’s County Judge Albert W. Northrop ordered the manslaughter conviction of Arasp Biparva in the 2014 killing of Jack Godfrey vacated. The judge also granted Biparva probation before judgment, which means the charges can later be expunged from public records.

The modified sentence will help Biparva, 25, as he finds a job in accounting, according to his attorney.

“Currently the conviction will interfere with the application process and prevent Mr. Biparva from obtaining the certifications he needs to advance his career,” his attorney, Barry Helfand, said in a request for the modified sentence.

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SCOTUS to review two collateral consequences cases

Most of the public interest in the Supreme Court’s cert grants on Friday focused on the transgender bathroom case from Virginia. But the Court also granted cert in two cases involving collateral consequences: one a First Amendment challenge to a North Carolina law barring a registered sex offender from internet access; and the other whether a man convicted in California of having consensual sex with his underage girlfriend committed an “aggravated felony” subjecting him to deportation. Here are the SCOTUSblog descriptions of the two cases:

Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.

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Felony disenfranchisement, state by state

217523Felony disenfranchisement has become a hot topic as election day looms, and rightfully so given the significant impact that conviction-based loss of voting rights has on the makeup of the electorate and the slim margins by which many national elections are decided.  In the perennial swing state of Florida, for example, over 10 percent of the entire adult population is barred from voting for life because of a felony conviction. Within that group lies an astounding 21.3 percent of the state’s African-American population.

Those numbers come from a new Sentencing Project report, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, which attempts to determine just how many individuals are ineligible to vote because of a felony conviction in each state, and how those numbers have changed over time.  It estimates that 6.1 million individuals are ineligible to vote nationwide because of a felony conviction, and that 1 in 13 African-Americans are barred from the polls due to a conviction. 

Florida leads the nation in felony disenfranchisement, with Kentucky, Mississippi, and Tennessee close behind.  Kentucky and Virginia (another swing state) disenfranchise the largest share of their African-American population, at 26.2 percent and 21.9 percent, respectively, with Florida close behind at 21.3 percent.  The high level of disenfranchisement in these states is largely due to the fact that all but one (Tennessee) strip individuals convicted of felonies of their voting rights for life absent discretionary executive action. 

Even in states that restore the right to vote automatically, many convicted people assume they cannot vote and therefore do not register. 

The laws on felony disenfranchisement differ widely from state to state.  Our 50-state chart on the “Loss and Restoration of Civil Rights and Firearm Privileges” and our state-by-state profiles of restoration of rights provisions describe the law and policy on felony disenfranchisement in each state, as well as the mechanisms by which convicted individuals are restored to the franchise.  

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Justice Department will enforce limits on landlord background checks

Earlier this year the U.S. Department of Housing and Urban Development (HUD) issued new guidance asserting that housing policies that exclude people with criminal records may violate the non-discrimination provisions of the federal Fair Housing Act (FHA) if they fail to consider the nature, severity, and recency of criminal conduct and if they are not narrowly tailored to protect residents or property.  The Justice Department has taken the first step toward judicial enforcement of this guidance.

On October 18 the Department’s Civil Rights Division filed a Statement of Interest in Fortune Society v. Sandcastle Towers Housing Development, a federal civil rights suit brought in the Eastern District of New York against a Brooklyn provider of low-income housing, claiming that it has a blanket policy of refusing to rent to individuals convicted of any non-traffic crime.  The Statement urges the court to decide the case based on the legal framework set forth in the HUD guidance, which employs a three-step analysis to determine whether criminal history-based housing exclusion policies amount to illegal racial discrimination prohibited by the FHA.

Though the Statement does not address the factual dispute at issue in the case, it adopts HUD’s position that blanket bans based on criminal history are likely to violate the law in failing to require an individualized assessment of applicants, because African-American applicants are more likely to have criminal histories than their white counterparts.

When the HUD guidance was issued, we predicted that it would effectively end the use of criminal background checks to automatically exclude potential renters, and greatly expand housing opportunities for all people with criminal histories, regardless of their race.  The Justice Department’s strong endorsement of the guidance is a hopeful step in that direction.  

We reprint the Department’s press release below:

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Sex offender residency restrictions in the courts: is the tide turning?

The Marshall Project has published an important new article by Maurice Chammah on legal challenges to restrictions on where registered sex offenders can work, live, and visit. See “Making the Case Against Banishing Sex Offenders: Legislators won’t touch the subject, but courts are proving more sympathetic.”  Chammah writes that activists, finding lawmakers unreceptive to any measure perceived to benefit sex offenders, “have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns.”

 Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose.

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Federal pardon filings skyrocket, but pardon grants still down

New clemency statistics just posted on the Pardon Attorney’s website show that almost 1000 petitions for full pardon were filed in FY 2016, and that more than 1900 pardon petitions are presently pending.   We have become accustomed to seeing huge numbers of commutation filings, but the large number of pardon filings is much more surprising in light of President Obama’s meager pardon grant rate to date.  The 998 petitions filed in the 12-month period just concluded are almost twice the number filed in any single year since the Roosevelt Administration, including in the analogous period in the Bush 43 presidency. We reported in August that there were 1378 pardon petitions pending in June – which means that 550 new petitions must have been filed in less than 4 months.  That’s as many pardon petitions as have been filed in any full year in the past 75 years.

In August we reported on President Obama’s stated intention to grant a large number of full pardons before the end of his term, in addition to sentence commutations: “I would argue that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.”  But to match even George W. Bush’s 189 pardon grants, President Obama will have to grant more than 120 pardons in the next three months.

White House Counsel Neil Eggleston stated yesterday that the number of commutation grants since 2014 “make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process.”  But without action on the pardon side of the clemency docket it is too early to claim more than partial success.

Sex offender passport law survives challenge

anchor_service_passportA federal judge in San Francisco has dismissed a constitutional challenge to the recently enacted International Megan’s Law, which requires specially-marked passports for registered sex offenders whose offenses involved child victims, and authorizes notification to foreign governments when they travel.  The so-called “Scarlet Letter” law is specifically aimed at stopping child sex trafficking and sex tourism, and this purpose was evidently enough to justify it even though it has a far broader effect.

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HHS finalizes rules on child care worker screening

In February we posted about regulations proposed by the federal Department of Health and Human Services (HHS) to implement criminal history screening requirements for child care workers under recent changes to the Child Care and Development Block Grant Act of 2014.  The CCRC joined a coalition of organizations led by the National Employment Law Project (NELP) in calling upon HHS to reconsider the proposed regulations. In a formal comment submitted to HHS, the coalition argued that the regulations contained screening standards that were more exclusionary than the Act requires, and that they would have a disparate impact on women, African Americans, and Latinos.

HHS has now issued the final version of those regulations.  Although the final rules are far from perfect, they do address a number of the concerns raised by the coalition.  For example, they omit language that encouraged states to require self-disclosure of criminal history, provide greater protection from inaccurate criminal record reporting, and urge states adhere to the standards laid out in the EEOC guidance by providing individualized assessments for disqualifying offenses that are added by the states but not required by the federal law.

Unfortunately, HHS chose not to back down on one of the most troubling provisions of the proposed regulations: criminal history screening of anyone age 18 or older residing in a license-exempt home that provides child care services.  Screening of those individuals is not required by the Act itself.  As the coalition’s comments explained, the requirement will almost certainly have a disproportionately adverse impact on providers of color and their families:

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