Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan’s work. You can find the chart at this link.
Wayne Logan has summarized his research on relief from sex offender registration and community notification requirements for a forthcoming Wisconsin Law Review article in an excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming). This is the first of many tidbits from the book that will appear in this space from time to time:
2:42. Sex offense-related collateral consequences — Constitutional challenges to registration and community notification laws: post-application challenges
Given the extended potential duration of registration and community notification (RCN) application, ranging from ten years to life, the question naturally arises over whether relief from its requirements and burdens can be attained at some point. While the federal Adam Walsh Act allows states to provide relief to registrants with a “clean record” for ten years, states typically afford only very limited opportunity to registrants to exit registries.
South Carolina is most limited, offering no opportunity to petition for relief from lifetime registration and community notification; only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.” In other states, opportunity for relief is only somewhat broadened, to include such sub-populations as juvenile offenders and those convicted of less serious offenses. In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25), and in several states select registrant groups can seek early relief. Early relief, however, can be less than it seems: in Hawaii, for instance, only lifetime registrants can petition for early relief—after forty years on the registry; ten- and 25-year class registrants must satisfy their terms.
An earlier post highlighted the dilemma that some young Wisconsin defendants face because of the narrow scope of the law on sealing conviction records. The court can seal the record of certain convictions, but the record of dismissed charges remains accessible to the public in a searchable online database. Therefore, the dismissal can increase the potential for prospective employers to learn of an applicant’s legal troubles.
Now the Wisconsin Court of Appeals has held that the court may not seal the record of a non-criminal violation. Kenosha County v. Frett, 2014AP6 (Wis. Ct. App. Nov. 19, 2014). The appellate court reviewed the statutory language and concluded that references to 1) the maximum term of imprisonment for sealable offenses; 2) “completion of the sentence”; and 3) “certificate of discharge” from the “detaining or probationary authority” showed that the procedure applies only to criminal convictions.
For a young woman cited in 2012 in Kenosha County for underage drinking, now a college student in New York, the decision means that the record of her conviction for the amended charge of littering remains publicly accessible. If she had been convicted of drug possession or fraud she might have been able to close the book on this episode.
Although the Frett case did not involve the reduction of criminal charges, the decision means that some defendants might prefer to have a sealed criminal conviction than to have a public record of a reduced, non-criminal charge (the public record of the reduced charge also shows the original charges).
The Frett decision may be appealed to the Wisconsin Supreme Court, and policymakers are considering statutory amendments to expand judicial authority to seal records. For now, however, non-criminal dispositions and dismissals are publicly accessible in situations in which some criminal convictions can be sealed.
A federal district court in Philadelphia has issued the first decision to invalidate the federal felon-in-possession statute on constitutional grounds. The notable as-applied Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014). Perhaps significantly, Binderup is a civil rights suit brought by an individual seeking relief from a minor conviction in his distant past, not one in which a defendant is seeking to avoid prosecution a federal criminal on Second Amendment grounds. Here is an excerpt from the opinion:
As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011).
The Binderup decision is here. Gene Volokh’s comments on the decision from the Volokh Conspiracy are here.
Alan Gura, who represented Mr. Binderup and argued both D.C. v. Heller and McDonald v. City of Chicago in the Supreme Court, promises more Second Amendment fireworks involving people with dated non-violent convictions. Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms after conviction, should keep an eye on this space.
As reported in this local article, headlined “Some sex offenders can’t be forced to wear GPS monitors, N.J. Supreme Court rules,” the top state court in the Garden State issued a significant constitutional ruling holding that New Jersey cannot force sex offenders to wear GPS tracking devises if they were convicted before the monitoring program was signed into law seven years ago. The court voted 4-3 to uphold an appellate panel’s decision that said it was unconstitutional for the state Parole Board to require George C. Riley to wear the ankle monitor when he was released from prison in 2009 after serving 23 years for attempted sexual assault of a minor.
Justice Barry Albin wrote that Riley, 81, of Eatontown, should not be subject to the 2007 law because it constitutes an additional punishment that was not included in the sentence he already served. The Court agreed with the lower court that the “retroactive application” of the GPS program to Riley violates the ex post facto clauses in the U.S. and state Constitutions, which safeguard against imposing “additional punishment to an already completed crime.” The court also rejected the state’s argument that the GPS monitor is not punitive but “only civil and regulatory.”
“Parole is a form of punishment under the Constitution,” Albin wrote for the high court. “SOMA is essentially parole supervision for life by another name.” He added that “the disabilities and restraints placed on Riley through twenty -four-hour GPS monitoring enabled by a tracking device fastened to his ankle could hardly be called ‘minor and indirect.’”
The full ruling in Riley v. New Jersey State Parole Board, No. A-94-11 (NJ Sept. 22, 2014) is available at this link.
–Read full article at Sentencing Law and Policy.