Michigan sex offender registration amendments held unconstitutional

A federal appeals court has concluded that Michigan’s amendments to its Sex Offender Registration Act (SORA) “impose[] punishment” and thus may not constitutionally be applied retroactively.  See Does v. SnyderNo. 15-1536 (6th Cir. Aug. 25, 2016).  Here is the concluding analysis from the Sixth Circuit’s unanimous panel decision reaching this result:

So, is SORA’s actual effect punitive?  Many states confronting similar laws have said “yes.”  See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008).  And we agree.  In reaching this conclusion, we are mindful that [consistent with the Supreme Court’s holding in Smith v. Doe, 538 U.S. 84, 92 (2003)] states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment.  But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.

A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law.  SORA brands registrants as moral lepers solely on the basis of a prior conviction.  It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.  It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

We conclude that Michigan’s SORA imposes punishment.  And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased.  Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause.  As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice.  Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supraat 444 (Alexander Hamilton).  It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89;accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

 

Federal expungement order reversed on appeal

In an eagerly awaited decision, a panel of the Second Circuit Court of Appeals has ruled that federal courts have no authority to expunge the records of a valid conviction.  As Joe Palazzolo at the Wall Street Journal noted, this effectively “put an end to an experiment by a Brooklyn judge that drew attention to the challenges people with criminal records face trying to find and keep jobs.”  In reversing Judge John Gleeson’s May 2015 expungement order in the case of a woman he had sentenced more than a decade before, the court distinguished its precedent upholding a court’s power to expunge arrest records following dismissal of charges.  The panel pointed out that

a motion to expunge records of a valid conviction on equitable grounds will ordinarily be premised on events that are unrelated to the sentencing and that transpire long after the conviction itself.  For example, in this case the facts underlying the District Court’s sentencing were clearly independent of the facts developed in Doe’s motion filed years later.  Conversely, the District Court granted Doe’s motion based on facts and events (her repeated efforts to obtain employment) that transpired years after her sentencing and term of probation.

Read more

New York City agency called on the carpet for employment discrimination

At least on paper, New York City has the strongest legal protections in the Nation for people with a criminal record, and for employers and others who are willing to give them a chance. The State’s vaunted certificates of relief remove mandatory legal disabilities and certify rehabilitation, and are available to any and all defendants.  Governor Cuomo has shown his interest in restoration of rights by adopting a broad reform agenda, and the City’s ban-the-box law is among the broadest in the Nation.  Both State and City have broad human rights laws intended to protect people with a criminal record from unwarranted discrimination.  But with all this web of beneficent laws and rules and policies, some City agencies apparently still have not gotten the word.

In a decision handed down on July 12, a New York judge chastised the City’s Department of Education for refusing to license a woman as a school bus attendant based solely on a 2010 conviction for petty larceny, an action for which he found no basis in fact or law. Read more

Divided Wisconsin Supreme Court declines to extend Padilla to other serious consequences

wi-largesealLast month the Wisconsin Supreme Court held in State v. Lemere that the Sixth Amendment does not require defense counsel to advise a client that a conviction for a pending charge of sexual assault could result in future commitment proceedings under chapter 980. The case could be appropriate for certiorari review in the U.S. Supreme Court regarding the scope of the Sixth Amendment right to counsel, since it reflects differing views in state high courts. 1

Read more

  1.  Ed. Note: State high courts have reached differing conclusions about the scope of the Padilla holding under the federal Constitution. The Illinois Supreme Court held in People v. Hughes that failure to warn about the possibility of civil commitment was sufficient to invalidate a plea. The Utah Supreme Court reached a contrary conclusion in State v. Trotter.

New Yorker comments on collateral consequences

Lincoln Caplan writes in this week’s New Yorker about Judge Frederic Block’s decision last week to reduce a woman’s prison sentence because of the life-altering collateral penalties she faced on account of her drug conviction.  After describing the facts of the case and the judge’s reasoning, Caplan concludes with the following comments about what Jeremy Travis has called “invisible ingredients in the legislative menu of criminal sanctions”:

The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time. As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.” They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”

The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.

One of the most significant things about Mr. Caplan’s comments is that they make clear he believes collateral consequences are “punishment,” not “regulation,” and should be treated as such.  Courts are beginning to regard them as such as well for purposes of applying constitutional principles.  See, for example, the three cases now pending in the Pennsylvania Supreme Court, where the validity of the state’s new sex offender registration scheme is at stake. States are increasingly looking at lifetime registration as punishment under their own state constitutions.  So it should not be long before the U.S. Supreme Court is asked to reconsider its 2003 holdings that such collateral consequences are immune from constitutional challenge based on the Due Process and Ex Post Facto clauses.

“On Lawyering” on collateral consequences

The following post was originally published at On Lawyering, CCRC President Rich Cassidy’s blog on the law and culture of lawyering. 

Judge Rules That That the Collateral Consequences of Conviction Justify the Release of a Drug Offender

“Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”[1]

Senior United States District Judge Fredric Block, in an opinion issued on May 24, [2] ruled that the collateral consequences faced by a 20 year old woman convicted of smuggling 602 grams of cocaine into the United States from Jamaica, justified a one year term of probation, even though she faced a guideline sentence of 33-41 months of imprisonment.

Judge Block reviewed the history of collateral consequences, concluding that “[t]oday, the collateral consequences of a felony conviction form a new civil death[,]”[3] referring to the scholarly work of my colleagues, Gabriel Jack Chin and Margaret Love. He decried the racially disparate impact of these laws, citing Michelle Alexander’s book, The New Jim Crow (2010). He noted the existence of collateral consequence reform efforts including an ABA Criminal Justice Standard [4]and the Uniform Collateral Consequence of Conviction Act.[5] He pointed out the sweeping breadth of collateral consequences, noting that according to the National Inventory of the Collateral Consequences of Conviction, nationwide there are some 50,000 federal and state statutes and regulations that impose collateral consequences and that some 70 to 100 million Americans are subject to them.[6]

Judge Block reviewed the state of the law, noting that while there is a split in the circuits, the law in the Second Circuit allows a sentencing judge to consider“the impact and significance of the collateral consequences facing a convicted felon as bearing upon a just punishment.”[7]

Finally, Judge Block put the idea into practice: he reviewed, in some detail, the collateral consequences the defendant faces, their likely impact on her life, and concluded:

[T]he collateral consequences Ms. Nesbeth will suffer, and is likely to suffer – principally her likely inability to pursue a teaching career and her goal of becoming a principal, Conn. Gen. Stat. §§ 10-145b, 145i – has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing.[8]

Read more

Federal defendant avoids prison because of collateral consequences

Yesterday U.S. District Judge Frederic Block (E.D.N.Y.) issued an extraordinary opinion explaining his decision to impose a non-prison sentence on a young woman convicted of importing cocaine, based on the severe collateral consequences that she faces.  While other federal courts have factored collateral consequences into the balancing of factors required by 18 U.S.C. § 3553(a), this is the first time a court has justified its action in such detail.  Calling the opinion “groundbreaking,” CCRC board member Jack Chin told the New York Times that it is “by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing: “It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives.”

Here is how the opinion begins:

Chevelle Nesbeth was convicted by a jury of importation of cocaine and possession of cocaine with intent to distribute. Her advisory guidelines sentencing range was 33-41 months. Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon.  I have incorporated those consequences in the balancing of the 18 U.S.C. § 3553(a) factors in imposing a one-year probationary sentence.

I am writing this opinion because from my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers—both prosecutors and defense counsel—as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant. And I believe that judges should consider such consequences in rendering a lawful sentence.

There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.  Many—under both federal and state law—attach automatically upon a defendant’s conviction.

The effects of these collateral consequences can be devastating.  As Professor Michelle Alexander has explained, “[m]yriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy.  These restrictions amount to a form of ‘civi[l] death’ and send the unequivocal message that ‘they’ are no longer part of ‘us.’”

Preparatory to sentencing Ms. Nesbeth, I afforded counsel the opportunity to opine as to whether collateral consequences should indeed be part of the § 3553(a) mix, and requested written submissions. The Government was essentially non-committal.

Not surprisingly, the Office of the Federal Defender—which represented Ms. Nesbeth—gave a positive response. Commendably, both parties’ submissions detailed the collateral consequences she faces.

Because of the significance which I attach to the need of the criminal justice system to embrace collateral consequences as a sentencing issue, I write extensively, addressing in turn: (I) The History of Collateral Consequences; (II) The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences; (III) The Governing Caselaw; (IV) Ms. Nesbeth’s Collateral Consequences and the Balancing of all § 3553(a) Factors; (V) The Shaping of the Sentence; and (VI) The Responsibilities of Counsel and the Probation Department.

Read more

Challenge to SORNA retroactivity reaches Pennsylvania Supreme Court

In the last few years, Pennsylvania’s courts have taken an active role in defining the propriety and scope of the state’s sex offender registration program.  Following on the heels of a December 2014 decision striking down sex offender registration for juveniles, the Pennsylvania Supreme Court recently agreed to hear a sweeping challenge to the retroactive application of Pennsylvania’s adult sex offender registry. The new law, generally referred to as SORNA (Sex Offender Registration and Notification Act), took effect on December 20, 2012 as part of an effort to comply with the federal laws governing sex offenders.  SORNA replaced a more lenient registration scheme where the majority of people convicted of sexual crimes had to register for only ten years.  SORNA changed the paradigm and drastically increased the number of people included on the registry, the time periods for which they would have to register, and the number of things they have to report.  Of the close to 19,500 people on the registry today, roughly three quarters have to register for the rest of their lives without any chance of removal.

In addition to making most offenders lifetime registrants, SORNA reclassified thousands of people who were ten year registrants under the old law and retroactively increased their terms of registration – in most instances to life.  Hundreds of registrants sued, raising a number of different challenges to the law.  Until now, the Pennsylvania Supreme Court has refused to get involved.

Read more

A wide-ranging look at sex offender registration in PA and beyond

The Cumberland County (Pennsylvania) Sentinel recently published a series of articles by Joshua Vaughn that examine the operation and effect of sex offender registration laws from a variety of perspectives. We summarize the articles with links to the Sentinel’s website.


Finding statistics to fit a narrative

Original article

Vaughn traces the “frightening and high risk of recidivism” for untreated sex offenders that Justice Kennedy used to support the Supreme Court’s holdings in McKune v. Lile (2002) and Smith v. Doe (2003) to an unsourced “anecdotal quip” in a 1986 article from Psychology Today suggesting sex offender recidivism rates as high as 80%.  That figure found its way into a Justice Department practitioner’s guide for treating incarcerated sex offenders, which in turn was cited by the Solicitor General’s amicus brief in McKune. Vaughn, asking how such a questionable statistic could turn out to be a “linchpin fact” in two extremely influential Supreme Court cases, proposes that the Court relied on the Solicitor General, who in turn relied on the practice guide without doing his own research.

Vaughn reports that the Justice Department “now states on its website that the rate at which released sexual offenders are rearrested for new sexual offenses is as low as 3 to 10 percent,” evidently referring to a report of the Bureau of Justice Statistics.

Read more

Federal sentences and collateral consequences

courtsFederal courts are frequently asked to take into account the collateral consequences of conviction in determining what sentence to impose under the criteria in 18 U.S.C. § 3553(a). It is generally permissible for them to do so, and in line with current proposals of national law reform organizations.  At the same time, courts must guard against the risk of socioeconomic bias favoring more privileged defendants who have the most to lose in the civil sphere, and who are likely to enjoy more vigorous and effective advocacy around collateral consequences.

The following discussion first reviews a federal court’s general obligation to understand the collateral consequences that apply in a particular case, and to ensure that a defendant considering a guilty plea has been adequately advised about them.  It then reviews post-Booker case law approving below-guideline sentences based on the severe collateral penalties applicable to a particular defendant, such as loss of employment, extraordinary family circumstances, sex offender registration, and even reputational harm (“the stigma of conviction”).  Finally, it discusses cases in which courts of appeal have refused to approve deep sentencing discounts based on collateral consequences in circumstances suggesting a bias favoring middle-class defendants.     Read more

1 2 3 4 7