On Monday we published a piece by CCRC Director Margaret Love titled “A plea to stop labeling people who have a criminal record,” which was critical of the media’s usage of “degrading” terms like “felon” and “offender” to describe people with criminal histories. Yesterday Bill Keller, Editor-in-Chief of The Marshall Project, responded to Ms. Love’s critique in a piece that provides an interesting look at the issue through the lens of his own experience as a journalist. It also includes a response from the style editor of The New York Times on the specific subject of Ms. Love’s criticism. We republish Mr. Keller’s piece below.
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
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.
Editor’s note: Earlier this week Attorney General Loretta Lynch announced that The Justice Department has christened the week of April 24-30 “National Reentry Week.” In the announcement, the Attorney General highlighted “the major steps [taken by the Obama administration] to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals contribute to their communities.” The announcement prompted Art Beeler, a former warden in the federal correctional system and current member of the North Carolina Sentencing Commission, to consider the place that collateral consequences ought to have in our national dialog about reentry, recidivism, and public safety.
As a warden with the Federal Bureau of Prisons for more than twenty years, I know that successful evidence-based reentry programs are essential if we are going to reduce recidivism and increase public safety. So it was with great interest that I read U.S. Attorney General Loretta Lynch’s letter celebrating reentry week. I applaud the growing focus on reentry programming, which is essential, but I believe that we must acknowledge that we will never achieve the goal of reintegrating those convicted of crimes back into society without fully addressing the problem posed by collateral consequences. The federal government has already taken some steps a to reevaluate collateral consequences imposed by federal regulations, as the AG notes in her letter, but successful reentry efforts demand a full reevaluation of the intent and effect of collateral consequences at both the federal and state level.
Child care workers in every state are subject to rigorous criminal background checks that may result in mandatory bars to employment. Until now, each state has been generally free to define its own standards regarding screening for criminal history. That is about to change.
By September of next year, states receiving funds under the federal Child Care and Development Block Grant (CCDBG) Act of 2014 (which appropriates over $ 2.5 billion each year to fund state child care and child welfare programs) must adopt minimum federally-defined screening standards for child care workers or risk loss of funding. The revised statutory standards subject current and prospective child care workers to a multi-level criminal background check and disqualify from employment anyone convicted of crimes against children, specified violent crimes, and drug crimes within the past 5 years. States may opt to waive the disqualification for drug crimes on a case-by-case basis, but they are also free to adopt conviction-based disqualifications that are more restrictive than the law requires.
If the new CCDBG standards were not bad enough, the Department of Health and Human Services has issued proposed rules that would make them worse. On Monday, the CCRC joined a coalition of organizations led by the National Employment Law Project in calling on HHS to rethink proposed rules that would implement the new screening requirements. A formal comment filed by the coalition details the ways in which the proposed rules fail to adequately address the disparate impact that the requirements could have on women, African Americans, and Latinos, and takes issue with requirements in the rules that are more exclusionary than the Act requires. Read more
Slate has posted a new piece by Leon Neyfakh entitled “The Pardon Process Is Broken.” The piece points out that “presidents are granting clemency far less often than they once did,” and asks “Why?” It answers its own question by distilling an article by Margaret Love to be published in the Toledo Law Review, which argues that the low grant rate reflects overwhelmingly negative recommendations from the Justice Department. In response to Slate’s invitation, Justice had the following comments on Love’s proposal:
The mission of the Department of Justice is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. The work of the Office of the Pardon Attorney is an integral part of the Department’s mission.
These comments seem to concede the point that the Office of the Pardon Attorney has ceased to operate as an independent source of advice for the president in clemency matters, but instead has become an extension of the law enforcement agenda of the Department’s prosecutors. They evidence the key role the Justice Department has played in the atrophy of the constitutional pardon power.
The REDEEM Act currently in committee in the U.S. Senate provides the first authority for “sealing” federal criminal records since the repeal of the Youth Corrections Act in 1984. As we described in an earlier post, the Act would provide significant relief from many of the collateral consequences imposed on those with a federal rap sheet. But the Act’s limitation on eligibility to “nonviolent” crimes, together with its corresponding restriction on consideration of state priors, threaten to undermine the Act’s beneficent purpose — not simply by categorically excluding many deserving individuals from relief, but also by inviting endless wrangling over which particular individuals are deserving.
Increasingly, scholars and advocates are questioning the glib and thoughtless distinction politicians have for years drawn between violent and non-violent crimes for purposes of sentencing. The unfairness of categorically excluding all offenses falling within a broad definition of violence, without regard to how long ago the conduct occurred or how minor, is compounded when the record sought to be sealed did not result in a conviction.
But perhaps the most persuasive reason for federal lawmakers to junk the distinction between violent and nonviolent offenses is a practical one, since it is frequently impossible to determine if a particular federal crime is violent or not, as the Supreme Court’s recent decision in Johnson v. United States demonstrates. If the distinction must be retained, definitions need to be clarified lest disputes over coverage result in few people actually getting relief. The good news is that the necessary fix is a simple one: rather than defining vaguely which offenses are eligible for sealing, the REDEEM Act should define precisely which offenses are not.
We start with a description of the REDEEM Act’s eligibility criteria, then show why they will give the government an opportunity to frustrate the Act’s intent. Indeed, a wag has described them as catnip for the litigious.
A coalition of national advocacy organizations has again urged President Obama to implement a robust federal hiring policy to give people with a criminal record a fair chance to compete for federal agency and contractor jobs. In an open letter dated July 20, the coalition called upon the President to issue an executive order requiring employers to conduct a criminal records check only after a conditional hiring offer has been made, and to adhere to current EEOC guidance on considering the results of a records check.
The administration’s recent rhetoric indicates that it may be receptive to the coalition’s proposed reforms. On July 14, the President explicitly endorsed so-called “ban-the-box” policies in his speech on criminal justice reform at the NAACP annual convention:
Let’s follow the growing number of our states, and cities, and private companies who’ve decided to ban the box on job applications so that former prisoners who have done their time and are now trying to get straight with society have a decent shot in a job interview.
The Guardian has published a detailed account of a case in the queue awaiting consideration by the President for commutation of sentence. Ray Bennett was convicted in 1991 of acting as a courier for a crack cocaine distributor, and sentenced to life in prison based on two prior state misdemeanors. “The judge who sentenced Bennett did his duty reluctantly, saying the drug runners were ‘just country folks’ and not the major traffickers that Congress likely had in mind.”
Bennett has now served more than 24 years in prison, has an exemplary record of conduct while incarcerated, and has long since conquered the addiction to drugs that led to his conviction. His clemency application was filed with the Pardon Attorney through Clemency Project 2014 in early April. We reprint substantial portions of the Guardian article to show the kinds of cases that may be acted on by the President in coming months.
This piece was originally published in The Crime Report on July 13, and republished in revised form on July 16.
On Monday President Obama announced in a video address that he had commuted the sentences of 46 people sentenced to long prison terms for drug offenses. His counsel, Neil Eggleston, stated that “While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.“
Mr. Eggleston added that “the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.” However, judging from his speech to the NAACP the next day, clemency is the only one of those tools that is calculated to result in any more prison releases.
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.”