In commuting the sentences of 46 individuals serving long drug sentences, President Obama declared that America is a “nation of second chances” in a video address posted on the White House website. But that sunny optimism about our country’s willingness to forgive hasn’t led him to grant very many pardons, the relief whose purpose is to restore rights and status to those who have fully served their sentences, to give them a second chance at first class citizenship. Indeed, as Michael Isikoff reported the same day the commutations were issued, Obama’s 64 pardons are the fewest issued by any full-term president since John Adams. Indeed, the President has commuted more in the past six months than he has pardoned in his entire time in office.
The President’s determination to reduce unjustly lengthy prison sentences is commendable and historically significant. But it need and should not lead him to the neglect the other part of the clemency caseload, the petitions filed by individuals who have led exemplary lives for many years but are still burdened by severe collateral consequences and the stigma of conviction. Unfortunately those petitions appear to have have been shunted to the back burner in the excitement of the so-called “clemency initiative.”
Not surprisingly, in the wake of U.S. District Judge John Gleeson’s extraordinary May 21 expungement order in Doe v. U.S., another petition asking for the same relief has now been filed with Judge Gleeson. Also not surprisingly, since this new petition was filed by one of Ms. Doe’s co-defendants, the underlying facts in this second petition are similar. The second Jane Doe was a more culpable participant in the insurance fraud scheme, and was sentenced to 15 months in prison instead of probation.* However, she has remained law-abiding since her release more than a decade ago, and like the first Jane Doe she has had a very difficult time getting or keeping a job because of her conviction. It seems unlikely that the difference in the second Jane Doe’s role in the offense will make a difference in the way the court disposes of her petition.
Judge Gleeson has asked the government to show cause why the new petition should not be granted, which should guarantee that it gets attention at the highest levels of the Justice Department. Argument has been set for September 18. If there were any doubt about whether the government will prosecute its appeal of the first expungement order, it has probably been dispelled now that the proverbial floodgates appear to be opening. Potential amici should start lining up counsel.
The debased legal and social status that results from criminal conviction is visited disproportionately on African-Americans. Collateral consequences are the vehicle by which this country now imposes a permanent servitude on the descendants of those who were once literally owned by other human beings. Mass conviction no less than mass incarceration is a legacy of slavery. So we think it appropriate to commend to our readers Bryan Stevenson’s extraordinary interview for The Marshall Project in the wake of last week’s terrorist attack in Charleston. It is incumbent on all of us to consider how the scheme of collateral penalties imposed by the criminal justice system is calculated to keep millions of Americans disenfranchised and impoverished, and to dedicate ourselves to dismantling it.
The Justice Department is urging lawyers for federal prisoners to move quickly to file clemency petitions for their clients, lest the clock run out before the end of the President’s term. U.S. Pardon Attorney Deborah Leff told volunteer lawyers in a video seminar last week that petitions not submitted until Obama’s final year may not be considered, at least by him. As reported by Greg Korte of USA Today, Leff suggested that lawyers might be spending too much time briefing cases, and she encouraged them to file even if they have not been able to obtain all documents.
“While I greatly admire your legal skills, this is not the time to prepare a treatise of hundreds of pages,” she told the lawyers.
In what appears to be an unprecedented action (at least if it stands), a federal judge has expunged the concededly valid conviction of a woman he sentenced 13 years before, whose difficulties in finding and keeping employment evidently moved him to take extraordinary measures. In Doe v. United States, Judge John Gleeson (EDNY) commented on the “excessive and counterproductive” employment consequences of old convictions:
Doe’s criminal record has prevented her from working, paying taxes, and caring for her family, and it poses a constant threat to her ability to remain a law-abiding member of society. It has forced her to rely on public assistance when she has the desire and the ability to work. Nearly two decades have passed since her minor, nonviolent offense. There is no justification for continuing to impose this disability on her. I sentenced her to five years of probation supervision, not to a lifetime of unemployment.
We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law. This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,” discussed on this site on April 15. The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary. But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.
We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals. Read more
Amid last week’s torrent of commentary about the downstream effects of the punitive policies of the 1990s came this extraordinary interview with David Simon of the Wire, who attributes the breakdown of community in Baltimore to the aggressive abuse of official discretion in the drug war. While Simon’s remarks are not directly related to collateral consequences, it is not hard to trace to the same source the regime of punitive laws and policies that now bars people with a criminal record from benefits and opportunities affecting literally every aspect of daily life.
Case in point, from an NPR report aired last week: Tyrone Peake, trained as a drug counselor, is barred for life from working at a nursing home or long-term care facility in the State of Pennsylvania because of his 1981 teenage conviction for attempted car theft for which he received probation. See Carrie Johnson, “Can’t Get A Job Because Of A Criminal Record? A Lawsuit Is Trying To Change That,” April 30, 2015.
Dismantling what Jack Chin has called “the new civil death,” like rebuilding trust between police and community, is the work of the next decade.
The National Employment Law Project (NELP) has published a white paper urging the federal government to increase its own employment of people with a criminal record. In “Advancing a Federal Fair Chance Hiring Agenda,” Maurice Emsellem and Michelle Natividad Rodriguez make a strong case for a federal “fair chance” hiring initiative similar to the ones put in place by state and municipal governments across the country. Specifically, background check policies and suitability standards should be reformed by presidential order to give people with criminal records an opportunity to compete for jobs with federal agencies and federal contractors from which they are now, as a practical matter, excluded.
The NELP paper points out that the federal workforce is far more decentralized than a standard civil service structure, with fewer mandated protections regulating the hiring process. Notwithstanding OPM guidelines, federal agencies have broad discretion to adopt their own hiring policies and practices, often with limited accountability and transparency. Indeed, the EEOC has been critical of the fact that federal agencies are not bound by the same suitability standards that apply to most other public and private employers. Moreover, federal contractor employees (an astonishing 22 percent of the U.S. workforce) enjoy few legal protections, and applicants may be rejected (or employees dismissed) on the basis of stringent FBI background check requirements that apply, inter alia, to anyone with routine access to federal facilities. These shortcomings could be addressed with the stroke of a presidential pen (or two strokes to be precise).
On January 28, 2015, the Ohio Supreme Court settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records. In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states. The majority evidently found this conclusion an unhappy one, lamenting that “until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness.”
“Only forgiveness.” Is pardon then such a second class prize? What makes an official determination of the recipient’s good character by the state’s highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred? If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do.
As will come clear from the following discussion, I do not share the Radcliff majority’s evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself).
The Vera Institute has issued a first-rate assessment of the effect of the Rockefeller drug law reforms in New York City. See End of an Era? The Impact of Drug Law Reform in New York City. The report found that as a result of the reforms far more people were diverted out of the justice system and into treatment, thus avoiding conviction and the attendant collateral consequences. On the other hand, for those not diverted, the report found that the repeal of mandatory minimums led prosecutors to look for other ways to leverage plea bargains, leading to more felony convictions and more severe collateral consequences than under the old laws. Sentencing reformers in other jurisdictions should take note.