Last week Sentencing Law & Policy highlighted a new article by CCRC director Margaret Love that examines the Justice Department’s historical role in administering the president’s pardon power. The article (“Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest”) concludes that an institutional conflict of interest has made Justice a progressively less responsible and effective steward of the constitutional power, and urges the president to relocate the pardon program to the Executive Office of the President. The article, to be published in a forthcoming issue of the University of Toledo Law Review, can be downloaded here. Here is its abstract:
The president’s constitutional pardon power has been administered by the attorney general since before the Civil War, but this arrangement has never been adequately explained or justified. On its face it appears rife with conflict of institutional interests: how could the agency responsible for convicting people and putting them in prison also be tasked with forgiving them and setting them free? In spite of these apparently antithetical missions, the Justice Department managed the pardon program in a low-key and reliable manner for well over a century, staffing it with a handful of career lawyers operating on a shoestring budget, and churning out hundreds of favorable clemency recommendations each year for the president’s consideration. While there were occasionally controversial grants there were never scandalous ones, and the president was able to use his power to good effect in wartime and in peace.
It is only in the past two decades that questions have been raised about the integrity and functionality of the pardon process, focusing squarely on the agency and individuals standing as gatekeeper to the president’s power. President Obama’s decision in early 2014 to launch a large-scale clemency initiative, and the Justice Department’s unprecedented decision to rely upon a consortium of private organizations to manage it, make this a propitious time to consider whether the presidency is well-served by an arrangement making officials responsible for prosecuting crime the primary source of clemency advice.
This essay concludes that the culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president. The only way to deal with the institutional conflict that produced and perpetuates this situation is to transfer the pardon program to the president’s direct supervision in the Executive Office of the President. This move will have a variety of benefits, including facilitating the president’s ability to oversee the workings of the criminal justice system, for which he has a special responsibility under the Constitution. More specifically, it will introduce salutary political accountability to federal prosecutions through presidential oversight and potential revision. Finally, it will give the president control for the first time in decades over his own “benign prerogative.”
Nobody disputes that an enormous number of Americans have a criminal record. For people with a criminal past, a segment of the population that in some cases faces a laundry list of social and economic challenges, these records define – and limit – their ability to reintegrate into the community. This is a complex policy that has not received a fraction of the attention it deserves.
James Jacobs’ new book The Eternal Criminal Record (Harvard University Press, 2015) digs deeply into the issue with a nuanced analysis of how this system works. Importantly, the book provides a step-by-step navigation though the process of how and when records are created, how they are shared for and, eventually, what these data can be used for. What results is the most authoritative picture of how the pieces of the administrative universe of criminal history data fit together.
While criminal records can, and most often do, including information on past arrests, convictions and punishments, changes in the use and ownership of these files has changed the landscape. These modifications are not necessarily all bad – for example, computerization and standardization have made instantaneous checks and intrajurisdiction data sharing possible – but they create significant challenges. Some criminal data are part of the public domain, others are now owned by private companies. Modernization cannot eliminate the creation and replication of errors- and these mistakes have meaningful consequences.
A new paper by CCRC editor Margaret Love describes how the newly revised sentencing articles of the Model Penal Code manage collateral collateral consequences by integrating them into the sentencing process. The article, published in the Wisconsin Law Review, compares the new MPC provisions with the collateral consequences provisions of the original 1962 Code. Here is the abstract:
The debased legal status that results from a criminal conviction makes possible a regime of restrictions and exclusions that feels like punishment to those who are subject to it and looks like punishment to the community. Policy makers are beginning to understand that the goal of reintegrating criminal offenders into society is not well served by a legal system that makes them permanently ineligible for many of its benefits and opportunities and effectively marks them as social outcasts. Because courts have failed to address issues of severity and proportionality raised by punitive mandatory collateral penalties, and because legislatures have been unwilling to dial them back in any meaningful fashion, reformers have turned to the sentencing system to restore collateral consequences to an appropriate regulatory role.
One such reform proposal is the American Law Institute’s Model Penal Code: Sentencing (MPC), which integrates collateral consequences into a sentencing system that gives the court rather than the legislature responsibility for shaping and managing criminal punishment in particular cases. Just as the court decides what sentence it will impose within a statutory range, the court also decides which mandatory collateral penalties will apply and for how long. This gives sentencing courts new tools to further the rehabilitative goals of sentencing, and at the same time it enables them to avert issues of proportionality an
Collateral Consequences of Conviction in Greece
by Dimitra Blitsa
1. Access to Greek Criminal Records
In Greece, a criminal record is created for every adult person who has been irrevocably convicted of a misdemeanor or a felony (i.e. by a decision not subject to an appeal before the Supreme Court). Unlike in the U.S. but consistent with continental European countries, a Greek criminal record does not contain arrest information. Individual criminal history records are considered “sensitive personal data.” Disclosure and access is restricted to protect the convicted person’s privacy and to promote rehabilitation. Although Greek court proceedings are open to the public, court records are not available for public inspection.
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.
There has been a lot of discussion about how one gets ON a sex offender registry. Now Wayne Logan has given us a fascinating study of what it takes to get OFF in different U.S. jurisdictions. His article, forthcoming in the Wisconsin Law Review, is a must-read for any practitioner, and a helpful guide to law reformers in many jurisdictions. Its title is “Database Infamia: Exit from the Sex Offender Registries,” and its abstract follows:
Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means. Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships. This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.
The Eternal Criminal Record is the title of Professor James Jacobs’ new book, just out from Harvard University Press. This is the first comprehensive study of criminal records law and policy, and it deals with a range of contemporary legal and policy issues ranging from how records are created and disseminated, to how they are used by public and private actors, to how they are maintained and (perhaps) eventually sealed or destroyed. Professor Jacobs examines important jurisprudential issues such as the right to public access versus the right to privacy; the role of criminal records in punishment theory; how U.S. criminal record policy compares to other countries; and the intersection of public safety and fairness in imposing collateral consequences.
The book will be reviewed on this site in a couple of weeks. In the meantime, here is the publisher’s description of it.
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.
Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about restrictions on international travel based on criminal record. The first section discusses the subject in general terms, while the second section describes restrictions on travel to Canada for individuals with a foreign conviction, and the methods of overcoming these restrictions. (An earlier post described methods of neutralizing Canadian convictions for purposes of travel to the U.S.)
Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the same kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access.
Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about challenges to firearms-related collateral consequences based on the constitutional right to bear arms. Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms rights after conviction, will be interested to know that the government has appealed the district court’s decision in Binderup v. Holder cited in note 8, discussed here a few weeks ago.
Binderup is a civil rights action in which the federal court in the Eastern District of Pennsylvania held that the federal felon-in-possession statute could not constitutionally be applied to an individual convicted of a non-violent sex offense in 1998 and sentenced to probation. This case, the first in which a federal court invalidated a federal statute on Second Amendment grounds, is likely to provide an early opportunity for the court of appeals to consider an issue that most commentators and some courts believe was left unresolved by the Supreme Court in D.C. v. Heller.