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).
Most people with a criminal record have a general understanding of the value of expunging or sealing their criminal records. However, figuring out how to actually obtain such relief in a particular jurisdiction, and understanding its specific effects, is not so easy. The Papillon Foundation aims to change that by offering practical internet-based information about the process for obtaining expungement and sealing in all 50 states. We spoke with the Foundation’s founder Alan Courtney not long ago to find out more about how the Foundation helps people clean up their record and take charge of their past. Read more
In December 2014, Amy Solomon, Senior Advisor to the Assistant Attorney General for the Office of Justice Programs in the Justice Department, testified before the U.S. Senate Addiction Forum about the review of collateral consequences federal agencies had been conducting under the auspices of the Federal Reentry Council. She reported that most of the agencies participating in the review had concluded their collateral consequences were “appropriately tailored for their purposes.” However, she also reported that Small Business Administration (SBA) had proposed amendments to its regulations to allow people on probation or parole to qualify for loans from its microloan program. (The change, proposed almost a year ago, has still not become final.)
We decided to take a look at the SBA’s proposed rule change, and at the SBA regulatory scheme more generally, to see how having a criminal record affects small business eligibility for government-backed loans. Read more
This is the fourth post in a series about European law and policy on criminal records by Professors Jacobs and Larrauri. Prior posts noted that public access is never allowed where a record has been expunged. This post discusses the types of records that are eligible for expungement, how the expungement process works, and what the effect of expungement is. (Professor Larrauri’s more detailed discussion of “judicial rehabilitation” in Europe is available here.) – Eds.
Just as there are variations in eligibility for and consequences of expungement in U.S. states, there are differences in detail in continental European countries. We focus on Spain, which we know best, though we have no reason to believe that Spain is an outlier when it comes to European countries’ law and policy. (As in most all criminal record matters, the U.K. is more like the U.S. than continental Europe, making expunged records more accessible to the public than they are on the Continent.)
A recent issue of Governing Magazine reports that pardoning is “making a comeback” after decades of neglect. It would be nice if it were true.
But the evidence of comeback is thin. Almost all of the jurisdictions where pardoning is thriving today are the same ones where it was thriving a decade ago. In a dozen states, including Connecticut, Delaware, Georgia, Nebraska, South Carolina and South Dakota, pardon has never been neglected, much less abandoned by responsible officials. In these jurisdictions and a handful of others, pardon has deep roots in the justice system and is supported by accountable institutions of government.
It is certainly true that Pat Quinn of Illinois and Jerry Brown of California have made generous use of the power of their office after years in which the pardon power in their states languished unused. Terry McAuliffe of Virginia is a newcomer to the small group of governors who evidently feel that pardoning is a responsibility of office. All three are to be commended for it. But three swallows do not make a summer.
National Lawyers Guild Review Editor-in-Chief Nathan Goetting has published a thought-provoking piece in the most recent issue of the Review, commenting on America’s “moral panic” over sexual offenses, which has “created self-defeating policies, unconstitutional laws, and cruel punishments.” Among those punishments are a plethora of collateral consequences that stigmatize and shame without regard to actual risk. We reprint the editorial here in its entirety, with permission.
It should go without saying that human sexuality is rife with complexity and mystifying contradictions. It’s a puzzle palace from which all sorts of behaviors—routine, bizarre, and sometimes dangerous—can emanate. Yet our criminal laws and procedures regarding sex crimes respond to this swirling welter of incomprehensible impulses with stubborn and self-defeating simplicity. We choose to punish that which we fear to understand, as if learning what motivates the behavior is to show a little too much sympathy and solidarity with “perverts,” toward whom only contempt can be shown. As with suspected terrorists since 9/11, our mercilessness leaves no room for anything else, not even enlightened self-interest.
To the American eye, Europe seems unconcerned about criminal record-based employment discrimination (CBED). (The U.K. is an exception.) Is this because European employers do not discriminate against job applicants or employees with criminal convictions? If so, is that because European countries prohibit CBED, prevent employers from obtaining individual criminal history information, and/or provide potent remedies to people with convictions who are discriminated against? Or, perhaps European employers believe that CBED is immoral or irrational because past criminal convictions have no value in predicting future conduct on or off the job? Still another hypothesis is that, while Europeans believe that prior convictions are predictive of future dishonesty, dangerousness and unreliability, they also believe that CBED should be prohibited in order to further more important goals like rehabilitation and social harmony. Finally, perhaps employers in Europe do discriminate, but such discrimination has not been revealed through empirical research. While there is no body of research on European CBED comparable to the employer surveys and field studies done in the U.S., there are some generalizations that can be made.
There is no body of research on European criminal record-based employment discrimination (CBED) comparable to the employer surveys and field studies done in the United States. While European concern for informational privacy keeps criminal records out of the public domain, European countries do not prohibit employment discrimination based on criminal record. In fact, as in the United States, European countries make certain criminal records disqualifying for a vast range of public sector and some private sector employments.
This posting provides background on European, and especially Spanish, mandatory CBED. Our next posting provides background and discussion on discretionary CBED by private employers.
The Vera Institute has published a new report that claims states are “rethinking” collateral consequences through enactment of laws intended to mitigate their impact. The report (Relief in Sight? States Rethink the Collateral Consequences of Criminal Conviction, 2009-2014) includes an excellent introduction to the issues, helpfully categorizes different types of relief measures, and makes a number of useful recommendations for future reform.
However, the report seems unduly sanguine in suggesting that wholesale dismantling of the regime of collateral penalties is just around the corner, or that reforms of the past five years augur a sea change in public attitudes. Of greater practical concern, the report has methodological shortcomings that limit its usefulness as a research and advocacy tool.
The shootings and beatings of unarmed black men, boys, women and girls by police officers are sickeningly repetitive. Also repetitive are the calls in response to diversify police departments by hiring officers who better reflect the communities and neighborhoods they would patrol. These issues have surfaced starkly in Ferguson, Missouri, where three out of 53 officers are black. There, efforts to diversify the police department have been non-existent. Similarly in Cleveland, where twelve-year old Tamir Rice was killed by an officer while playing in a park, black residents make up 53 percent of the population but black officers comprise only 27 percent of the police force.
In Baltimore, the racial composition of the police force more closely approximates the city’s population. Nevertheless, the city has paid $5.7 million since 2011 in court judgments and settlements of police brutality claims. In 2013, 70 percent of Baltimore’s police officers lived outside the city. Thus, racial diversity alone is not a solution.