“Database Infamia: Exit from the Sex Offender Registries”

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

Harvard_Wreath_Logo_1.svgThe 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.

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European employment discrimination based on criminal record I – mandatory bars

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. images-EUWhile 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.

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International travel restrictions based on criminal record

Collat_ConsequencesBelow 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.)

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“Arrests as Regulation”

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 s3984426260_07b0b8ca51ame 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.

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Second Amendment challenges to felon-in-possession laws

Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Collat_ConsequencesConsequences 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.

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Relief from sex offender registration and notification requirements

Collat_Consequences

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.


 

Wayne Logan has summarized his research on relief from sex offender registration and community notification requirements for a forthcoming Wisconsin Law Review article in an excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming). This is the first of many tidbits from the book that will appear in this space from time to time:

2:42. Sex offense-related collateral consequences — Constitutional challenges to registration and community notification laws:  post-application challenges

Given the extended potential duration of registration and community notification (RCN) application, ranging from ten years to life, the question naturally arises over whether relief from its requirements and burdens can be attained at some point. While the federal Adam Walsh Act allows states to provide relief to registrants with a “clean record” for ten years,[1] states typically afford only very limited opportunity to registrants to exit registries.

South Carolina is most limited, offering no opportunity to petition for relief from lifetime registration and community notification;[2] only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.”[3] In other states, opportunity for relief is only somewhat broadened, to include such sub-populations as juvenile offenders and those convicted of less serious offenses.[4] In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25),[5] and in several states select registrant groups can seek early relief.[6] Early relief, however, can be less than it seems:  in Hawaii, for instance, only lifetime registrants can petition for early relief—after forty years on the registry;[7] ten- and 25-year class registrants must satisfy their terms.[8]

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“Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level”

Amy Meek just sent us her colorfully titled and important new article recently published in the Ohio State Law Journal, about the collateral consequences imposed by municipal and county ordinances.  As far as I know, this is the first serious effort to address consideration of conviction in connection with opportunities and benefits controlled at the local level.  As the abstract below suggests, many types of entrepreneurial opportunities likely to be attractive to people with a criminal record are subject to governmental regulation below the state level. Because these local ordinances and regulations are rarely included in collections of state collateral consequences, they are invisible to defendants and unavailable to their counsel and the court at the time of plea or sentencing.  Only in a few large municipalities, notably New York City, are criminal justice practitioners even aware of this locally created and administered system of restrictions and exclusions.  For example, with the exception of the District of Columbia, municipal and county rules and regulations are not included in the NIJ-funded National Inventory of the Collateral Consequences of Conviction (NICCC). The potential for interaction between state and local authorities is a particularly intriguing subject that Professor Meek explores in her recommendations for legislative reform.

Here is the abstract:

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Playing nice in criminal court: “Crashing the Misdemeanor System”

As the Supreme Court recently acknowledged in Lafler v. Cooper (2012), American criminal justice “is for the most part a system of pleas, not a system of trials.”  Nowhere is that statement truer than in the lower courts, where millions of misdemeanor arrests are resolved, or, to use the lingo of the criminal court, “disposed of,” without even a whiff of a trial.

In a provocative New York Times Op-Ed, “Go to Trial: Crash the Justice System,” Michelle Alexander raised the prospect of organizing people to refuse to plea bargain.  Professor Jenny Roberts takes a cue from Alexander and manages to be even more rebellious.  In Crashing the Misdemeanor System, 70 Wash. & Lee L. Rev. 1089 (2013), she urges much more specifically that defense attorneys focus their energy on taking down extant misdemeanor systems that are best characterized as guilty plea mills.

Roberts argues that “the most minor misdemeanor conviction has serious implications for so many people,” and bemoans the fact that nevertheless most misdemeanors are given short shrift by all institutional players — judges, prosecutors and defense attorneys alike.  Her article is a clarion call for defense attorneys to reimagine, refocus and reinvigorate their misdemeanor practice, especially in an era of massive arrests for minor crimes made popular by Broken Windows, or quality-of-life, policing.

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