On October 22 the Washington Lawyers Committee for Civil Rights and Urban Affairs released a report focusing on the problem of collateral consequences in the DC tri-jurisdiction region.
The report, a follow-up to an earlier WLC report on racial disparity in arrests in the District of Columbia, documents the disproportionate impact of collateral consequences on minorities, which makes them “very clearly a civil rights problem.” For example, “although African-Americans make up less than 48% of the city’s population, over 92% of those sentenced by the DC Superior Court in 2012 were African-Americans, whose overall rate of incarceration in DC is some 19 times the rate of whites.” It reports that nearly half of those in DC who have been incarcerated may be jobless with little prospect of finding consistent work, and that “this inability to find work is a major contributing cause of recidivism.” It illustrates the problem of collateral consequences with case studies of five area residents adversely affected by their records in finding employment and housing.
Among the report’s recommendations are that all three jurisdictions should limit the discretion of licensing boards to deny licenses based on criminal records, enact or strengthen ban-the-box laws limiting employers’ use of criminal records, and limit access by most employers to official arrest and conviction records. Respecting the effect of D.C.’s recently enacted ban-the-box law, it reports that D.C.’s Office of Human Resources found that “76% of post-law applicants for municipal jobs who had a criminal record were in fact suitable for government employment, but would likely have been disqualified from consideration for employment if the D.C. law were not in place.” In addition, all three area jurisdictions “should review and improve their existing mechanisms for seeking individualized relief from collateral consequences, through methods like expungement or sealing of records and restoration of rights.”
The WLC press release is here. The report is here.
Larry Hogan, Republican candidate in the Maryland gubernatorial race, criticized current governor Martin O’Malley’s sparing use of executive clemency and pardon power.
As reported in the Washington Post:
Republican Larry Hogan says a governor’s authority to commute sentences and pardon prisoners is an important power that he would rejuvenate if he is elected governor.
Hogan spoke in an interview with reporters of The Associated Press on Monday. Hogan says he believes Gov. Martin O’Malley’s administration hasn’t made pardons and commutations a priority of his tenure. Hogan says while he considers himself to be a tough law and order candidate, there are people who need the pardon and commutation process. He says he would seek help former Gov. Robert Ehrlich’s help in using the power more.
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.
In the past two weeks, both California and Missouri have passed laws allowing persons with a felony conviction to receive assistance under the federal TANF and SNAP programs. Federal law makes felony conviction grounds for ineligibility for food assistance programs, though federal law also allows state legislatures to opt out. States including Alabama and Virginia have also considered opting out of the ban.
“In a lot of cases, the law enforcement community is supportive and feels this is a way to reduce recidivism,” said Elizabeth Lower-Basch, a senior analyst at the Center for Law and Social Policy, a liberal D.C. think tank. Lower-Basch noted that other states, including Alabama and West Virginia, have also considered changing their policies. “We’re moving in the right direction.
–From The Huffington Post