Felony Disenfranchisement: Setting the Record Straighter

Recently, a woman standing outside of a Berkeley grocery store asked if I wanted to register to vote. I asked her, “Can I vote if I’m on probation?” She looked at me with horror, gripped her clipboard, and physically recoiled from me and the cantaloupe I was holding. Once she regained some composure, she sincerely, confidently, and erroneously informed me that California’s laws prohibit voting while on probation.

That encounter inspired me to draft these goals for all of the voter registration advocates (including me!) working the sidewalks this election season:

1: Practice not physically recoiling in horror from people we encounter in life.

2: Learn the voting laws in our jurisdictions to avoid disenfranchisement through disinformation.

Each state has its own laws about voting following a felony conviction.  Two states never disenfranchise voters following conviction. (Hey, Maine! Hey, Vermont!) Some states permanently terminate the voting rights of outrageous numbers of its citizens: Florida’s draconian voting laws disenfranchise 10% of its total population. In 2000, Florida disenfranchised 600,000 citizens with felony convictions. That same year, its presidential race was decided by 537 votes.

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When collateral consequences drive the sentence: The David Becker case

In the wake of the Brock Turner casea new controversy was ignited in Massachusetts last month when 18-year-old David Becker, a white college-bound athlete, received two years’ probation after pleading guilty to indecent assault of an unconscious woman at a house party.  As in the Turner case, many are outraged by a penalty they regard as too lenient and the result of white privilege.  However, any perceived injustice in the Becker case may be less about an abuse of judicial discretion than about the limited ability of judges to mitigate collateral consequences.

Critics of the decision may be even more concerned to learn that David Becker was not actually convicted of a crime.  Instead, District Court Judge Thomas Estes accepted Becker’s guilty plea and ordered a “continuance without a finding” (known as a CWOF) for two years while Becker serves a term of probation.  If Becker completes the conditions of probation successfully, the charges against him will be dismissed and the record will be eligible for sealing.

The fact that Becker was not convicted is significant because it allows him to avoid both registering as a sex offender and the numerous collateral consequences that would come with having a criminal record.

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Prez promises to catch up on pardons — but he’s far behind

We have wondered whether President Obama would ever turn his attention to what has become the red-headed stepchild of the clemency caseload: full pardons to restore rights and status after service of sentence.  To date President Obama has focused on commuting prison sentences, and has issued fewer pardons than any full-term president since the Civil War.  It appears that the time may be at hand.

The Politico reported on Thursday that at a press conference the day after his most recent batch of sentence commutations, President Obama said he intended to grant more full pardons before the end of his term – a lot more.

At a news conference at the Pentagon on Thursday, a reporter [Greg Korte of USA Today] noted that Obama has been the stingiest two-term president on forgiveness since John Adams.  Obama acknowledged that his administration has “focused more on commutations than we have on pardons.” “I would argue,” he continued, “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.”

The President also indicated that he did not intend to change his pardoning practices at the end of his term: “The process that I’ve put in place is not going to vary depending on how close I get to the election.”

President Obama will no doubt grant more full pardons before the end of his term, in addition to more commutations.  But it will be a tall order for him to match his predecessors even “roughly” in absolute number of pardons.  For example, George W. Bush granted 189 pardons, Bill Clinton granted 396, and Ronald Reagan granted 393.  Jimmy Carter and Gerald Ford granted 593 and 382 full pardons, respectively. By contrast, after seven and a half years Obama has granted a total of only 66 full pardons (not counting the four pre-conviction pardons granted to Iranians prior in last year’s foreign policy “swap”).  Only George H.W. Bush had issued fewer grants nearing the end of his tenure — and to be fair he served only one term and received far fewer applications.

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“Prosecuting Collateral Consequences” is an important contribution

On Monday, the CCRC posted the abstract of an extensive new law review article, Prosecuting Collateral Consequences, 104 Georgetown L. J. 1197 (2016). The article, by a brand new University of North Carolina Law Professor, Elisha Jain, argues that new awareness of the collateral consequences of criminal conviction has extended the largely unreviewable discretion of public prosecutors into civil public policy decisions like deportation and licensing.

This should not be news to anyone who has followed the developing scholarship in the field, but it is a point worth making at some length. The article makes unmistakable a point that is only now emerging among many participants in the criminal justice system: that because the collateral consequences of conviction are often, particularly as to minor crimes, more important than the direct consequences of conviction, sophisticated defense lawyers, prosecutors, and judges will make negotiating about collateral consequences a central feature of the plea bargaining process.

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“Divergent moral vision” — Collateral consequences in Europe and the U.S.

A new article in the Stanford Law Review discusses the radically different forms of punishment in the United States and Europe, which its author attributes at least in part to differing moral visions of wrongdoing and wrongdoers.  In Two Cultures of Punishment, Joshua Kleinfeld argues that while Americans tend to regard serious offenders as “morally deformed people rather than ordinary people who have committed crimes,” European cultures “affirm even the worst offenders’ claims to social membership and rights.”

Kleinfeld illustrates this “divergent moral vision” by the very different approach European countries take to collateral consequences. (The other two areas discussed in the article are lengthy prison terms and capital punishment).  Whereas in this country people convicted of crime are subject to a lifetime of legal restrictions and social stigma analogous to older forms of civil death, and are effectively consigned to a kind of “internal exile,” in Europe people who have committed a crime benefit from numerous measures to encourage their reintegration.

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The pros and cons of fingerprinting Uber drivers

The following piece by Maurice Emsellem of the National Employment Law Project was originally published on the Huffington Post.


 

Uber’s ruthless expansion strategy has put state and local legislators in the middle of the debate over regulation of the on-demand, ride-hailing workforce. Laws requiring background checks for drivers, which can restrict access to Uber’s core asset, are now a central theme of the regulatory battle, focusing specifically on the use of state and federal criminal history databases that require fingerprinting of ride-hailing drivers.

Indeed, Uber and Lyft recently chose to abandon the Austin, Texas market rather than comply with local laws requiring taxi drivers to undergo fingerprint-based background checks (56 percent of Austin voters rejected an initiative to exempt on-demand companies from the city’s law). And in New Jersey and Chicago, where similar measures are now being actively debated, Uber retained former U.S. Attorney General Eric Holder to lobby against the bills by challenging the accuracy and fairness of fingerprint-based FBI background checks (which is an issue that NELP has championed as an advocate of bi-partisan federal reform legislation).

To help inform the debate, it’s important to first clarify that “fingerprinting” is a shorthand term referring to background checks that require an individual’s fingerprint (usually captured by means of “livescan” technology) to access either a state criminal history repository or the FBI database, which collects data from the state and local systems. In contrast to name-based checks conducted by commercial background check companies, fingerprint-based checks are less vulnerable to misidentification. In addition, private employers typically cannot access the databases requiring fingerprinting of the workers unless authorized by a federal, state, or local occupational licensing law, like the ride-hailing laws regulating taxi drivers. Instead, with varying degrees of accuracy, the commercial background check companies collect criminal history data from the local courts, the states, and “aggregators” of criminal history data.

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Do ban-the-box policies increase racial discrimination in hiring?

Update: The National Employment Law Project has responded to these studies with a critique that we cover here.

Ban-the-box policies have become popular in recent years as a way of minimizing discrimination based on criminal history, and have been adopted by 24 states, the federal government, and a number private companies. But until recently there has been little hard data available about the general effect of those policies on employment opportunities.  A number of recent studies have begun to fill that gap, and the results have been disturbing. The consensus seems to be that while banning the box does enhance the employment prospects of those with criminal records, it also encourages employers to fall back on more general racial stereotypes about criminal history without the “box” to confirm or deny it.

Most recently, a multi-year field study by Amanda Agan (Princeton University) and Sonja Starr (University of Michigan Law School) found that although banning the box made it more likely that individuals with criminal records would receive call-backs from prospective employers, it dramatically increased the gap in call-backs between black and white applicants. Employer responses to over 15,000 fictitious job applications sent to New York and New Jersey employers after ban-the-box policies took effect showed that black applicants received 45% fewer callbacks than white applicants, up from a 7% differential before the new policy took effect:

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Ban the other box – Suspension and expulsion shouldn’t be a bar to college

University application form

The following piece was originally published by The Marshall Project, a nonprofit news organization focused on the US criminal justice system.  Even though criminal records and school disciplinary records are entirely distinct, they both pose similar, often unjust, obstacles to higher education.  Consideration of both types of records in the admissions process can have the troubling effect of excluding qualified and motivated young people — particularly those from minority communities — from America’s colleges and universities because of past mistakes that have little to do with academic potential or the protection of public safety.

The story is familiar: a high school student grabs another student’s iPhone at lunch and tries to sell it. He is caught, arrested, and booked into juvenile hall. He is also suspended. If universities and colleges follow the recent recommendation of the Obama administration, colleges will not consider the student’s criminal record in the initial stages of the admissions process. These recommendations, contained in a recently released “Dear Colleague” letter by Education Secretary John B. King, represent a significant step in removing barriers to education for people with criminal records. And just this week, over a dozen colleges and universities signed on to the White House’s Fair Chance Higher Education Pledge.

Unfortunately, the letter and the pledge are silent about another common question on college applications: Have you ever been suspended or expelled from school? For the teenager who stole the phone, this means that while his criminal record may not ruin his chance to be admitted to college, his school disciplinary record just might.

More than 3 million students are either suspended or expelled from schools each year and when they are, a discipline record is generated. While the barriers created by criminal records have begun to receive much-needed attention, the barriers created by school discipline records have been largely overlooked. The Department of Education report that accompanies King’s letter mentions school records only in passing, without taking a firm position. Like criminal records, school discipline records can, and do, jeopardize young people’s chances to succeed. Like criminal records, school records are a scarlet letter.

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Former AG says no FBI screens for Uber and Lyft drivers

On June 2, former Attorney General Eric Holder sent a letter to the Chicago City Council asking it not to make Uber and Lyft do FBI background checks on their drivers as a condition of operating within the metropollitan area.  The ride-sharing companies have argued that they should be permitted to vet their own employees.  Mr. Holder’s points out that FBI records are incomplete and thus misleading, and that they are intended for law enforcement purposes, not to screen applicants for employment.

Mr. Holder, whose tenure at the Justice Department was notable for efforts to highlight the problems faced by people returning to the community from prison, then argues more broadly that perfoming background checks on applicants for employment disadvantages communities of color.  In this regard, he notes that 80% of African-American men of working age in Chicago have a criminal record, and only half of them are employed. (This seems to present another one of those “ampersand” situations that so frequently arise these days in the criminal law context.). He concludes by stating that screening employees through FBI record checks is “both unwise and unfair.”

Mr. Holder’s letter does not indicate the context in which it is written, or whether He represents an interested party — though it is written on his law firm stationery so it seems fair to assume he is writing in behalf of either Uber or Lyft, or perhaps both.

Chicago would not be the first city to provoke controversy by requiring ride-sharing companies to perform fingerprint-based FBI background checks on their employees and applicants for employment.  For example, Uber and Lyft pulled out of Austin, Texas, after the city council voted to impose the same background check requirements on ride-share drivers as are required for taxi drivers.  At the same time, reports of driver attacks on ride-sharing passengers raise public concern about the effectiveness of self-regulation. It seems clear that we have not heard the last of this issue.

Ampersands – Brock Turner & conflicts of justice

georgiaI recently had the chance to meet with one of the leading international experts on the treatment and punishment of people who have committed sex offenses. I noticed she has a small tattoo of an ampersand on the inside of her wrist. I keep thinking of that ampersand as I read Brock Turner rage memes, which I both hate and find so satisfying.

Ampersand: This difficult fact is true AND this other, seemingly contradictory fact is also true. It’s difficult to hold all of it at the same time– fury against the man who raped an unconscious woman behind a dumpster, AND relief at the rare flash of humanity and mercy extended to him in our otherwise unrelenting carceral system, AND anger about the race and class context of that mercy.

Our current sex offense policies thwart accountability by perpetrators, re-traumatize victims of sexual assault, foster racialized implementation of laws, decrease public health and public safety in our communities, and, despite their failures, cost us billions of dollars each year. In short, it’s a crisis.

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