NC sex offender exclusion law held unconstitutional

ncsealcolorLast week the Fourth Circuit held unconstitutional two key provisions of a North Carolina law that made it a felony for sex offenders to be within 300 feet of certain premises that are “intended primarily for the use, care, or supervision of minors” or on premises where minors “gather for regularly scheduled educational, recreational, or social programs.”

The three-judge panel held that the first provision was overbroad under the First Amendment, while the second was unconstitutionally vague.  Interestingly, the state more or less ceded the First Amendment issue by failing to offer any evidence to meet its burden of proof regarding whether the law advanced the state’s interest in protecting minors.  This despite the fact that the district court warned the state in advance that failing to offer such evidence would be fatal to its defense of the provision.

Read more

SCOTUS to review two collateral consequences cases

Most of the public interest in the Supreme Court’s cert grants on Friday focused on the transgender bathroom case from Virginia. But the Court also granted cert in two cases involving collateral consequences: one a First Amendment challenge to a North Carolina law barring a registered sex offender from internet access; and the other whether a man convicted in California of having consensual sex with his underage girlfriend committed an “aggravated felony” subjecting him to deportation. Here are the SCOTUSblog descriptions of the two cases:

Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.

Read more

Federal pardon filings skyrocket, but pardon grants still down

New clemency statistics just posted on the Pardon Attorney’s website show that almost 1000 petitions for full pardon were filed in FY 2016, and that more than 1900 pardon petitions are presently pending.   We have become accustomed to seeing huge numbers of commutation filings, but the large number of pardon filings is much more surprising in light of President Obama’s meager pardon grant rate to date.  The 998 petitions filed in the 12-month period just concluded are almost twice the number filed in any single year since the Roosevelt Administration, including in the analogous period in the Bush 43 presidency. We reported in August that there were 1378 pardon petitions pending in June – which means that 550 new petitions must have been filed in less than 4 months.  That’s as many pardon petitions as have been filed in any full year in the past 75 years.

In August we reported on President Obama’s stated intention to grant a large number of full pardons before the end of his term, in addition to sentence commutations: “I would argue that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.”  But to match even George W. Bush’s 189 pardon grants, President Obama will have to grant more than 120 pardons in the next three months.

White House Counsel Neil Eggleston stated yesterday that the number of commutation grants since 2014 “make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process.”  But without action on the pardon side of the clemency docket it is too early to claim more than partial success.

Sex offender passport law survives challenge

anchor_service_passportA federal judge in San Francisco has dismissed a constitutional challenge to the recently enacted International Megan’s Law, which requires specially-marked passports for registered sex offenders whose offenses involved child victims, and authorizes notification to foreign governments when they travel.  The so-called “Scarlet Letter” law is specifically aimed at stopping child sex trafficking and sex tourism, and this purpose was evidently enough to justify it even though it has a far broader effect.

Read more

When does the Second Amendment protect a convicted person’s right to bear arms?

GUNSEarlier this month eight judges of the Court of Appeals for the Third Circuit blocked enforcement of a federal gun control law in two cases involving Pennsylvanians convicted of non-violent misdemeanors many years ago, invoking the Second Amendment’s right to bear arms.  The appeals court affirmed lower court decisions upholding the constitutional right of Daniel Binderup and Julio Suarez to possess firearms despite the fact that they are barred by federal statute from doing so.  Seven other judges of the appeals court thought the Second Amendment should never be applied on a case-by-case basis to convicted individuals, and proposed that the federal statutory bar should determine the constitutional issue.  The 174-page appellate decision in Binderup v. Holder has been widely reported but only in the most general terms, and not always entirely accurately.

Other as-applied Second Amendment challenges to firearms dispossession statutes are percolating through the courts.  For example, Hamilton v. Palozzi will be argued next month in the Fourth Circuit, offering another opportunity for a court to hold that people convicted of non-violent crimes should not lose their firearms rights, there under a state dispossession statute rather than a federal one.  Because the constitutional issues may shortly be before the Supreme Court for resolution, it seemed worth taking a closer look at the Binderup holding.

Read more

Misdemeanants win challenge to federal firearms law

The Third Circuit has held that the federal bar to gun possession by convicted individuals cannot constitutionally be applied to two misdemeanants convicted years ago who were not sentenced to prison.  In a fractured opinion, the Third Circuit sitting en banc ruled that the two challengers never lost their Second Amendment rights, and that the government offered no persuasive justification for depriving them of the right to bear arms.  Five concurring judges thought the ruling too narrow, and would have limited this collateral consequence to individuals posing a public safety risk.  Seven judges would not allow any “as applied” Second Amendment challenges to the federal bar to gun possession by convicted individuals.

We plan to post analyses of the opinion in coming days.  In the meantime, here is Gene Volokh’s analysis from the Washington Post:

Read more

Michigan sex offender registration amendments held unconstitutional

A federal appeals court has concluded that Michigan’s amendments to its Sex Offender Registration Act (SORA) “impose[] punishment” and thus may not constitutionally be applied retroactively.  See Does v. SnyderNo. 15-1536 (6th Cir. Aug. 25, 2016).  Here is the concluding analysis from the Sixth Circuit’s unanimous panel decision reaching this result:

So, is SORA’s actual effect punitive?  Many states confronting similar laws have said “yes.”  See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008).  And we agree.  In reaching this conclusion, we are mindful that [consistent with the Supreme Court’s holding in Smith v. Doe, 538 U.S. 84, 92 (2003)] states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment.  But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.

A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law.  SORA brands registrants as moral lepers solely on the basis of a prior conviction.  It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.  It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

We conclude that Michigan’s SORA imposes punishment.  And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased.  Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause.  As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice.  Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supraat 444 (Alexander Hamilton).  It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89;accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

 

Prez promises to catch up on pardons — but he’s far behind

We have wondered whether President Obama would ever turn his attention to what has become the red-headed stepchild of the clemency caseload: full pardons to restore rights and status after service of sentence.  To date President Obama has focused on commuting prison sentences, and has issued fewer pardons than any full-term president since the Civil War.  It appears that the time may be at hand.

The Politico reported on Thursday that at a press conference the day after his most recent batch of sentence commutations, President Obama said he intended to grant more full pardons before the end of his term – a lot more.

At a news conference at the Pentagon on Thursday, a reporter [Greg Korte of USA Today] noted that Obama has been the stingiest two-term president on forgiveness since John Adams.  Obama acknowledged that his administration has “focused more on commutations than we have on pardons.” “I would argue,” he continued, “that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.”

The President also indicated that he did not intend to change his pardoning practices at the end of his term: “The process that I’ve put in place is not going to vary depending on how close I get to the election.”

President Obama will no doubt grant more full pardons before the end of his term, in addition to more commutations.  But it will be a tall order for him to match his predecessors even “roughly” in absolute number of pardons.  For example, George W. Bush granted 189 pardons, Bill Clinton granted 396, and Ronald Reagan granted 393.  Jimmy Carter and Gerald Ford granted 593 and 382 full pardons, respectively. By contrast, after seven and a half years Obama has granted a total of only 66 full pardons (not counting the four pre-conviction pardons granted to Iranians prior in last year’s foreign policy “swap”).  Only George H.W. Bush had issued fewer grants nearing the end of his tenure — and to be fair he served only one term and received far fewer applications.

Read more

What (if anything) does the Virginia voting rights decision tell us about the president’s pardon power?

On July 22, 2016, the Virginia Supreme Court struck down a series of executive orders issued by Governor Terry McAuliffe restoring voting and other civil rights to more than 200,000 convicted individuals.  See Howell v. McAuliffe (Va. 2016).  The court, in a 4-to-3 decision, disputed the governor’s assertion that his restoration power was absolute under the state’s Constitution. “We respectfully disagree,” the majority justices wrote. “The clemency power may be broad, but it is not absolute.”   Governor McAuliffe responded to the court’s action by promising to restore the vote on an individual basis to everyone affected by his orders, starting with the 13,000 who had already registered to vote.  More details of the reaction to the court’s ruling are reported here.

The Virginia court’s decision is interesting for what it may tell us about the possibility of class-wide grants of clemency, whether full pardon or sentence commutation, under the president’s pardon power. In finding limits on the governor’s restoration power under the Virginia constitution, the court relied upon two other constitutional provisions that have no analogue in the U.S. Constitution.

Read more

Collateral consequences: punishment or regulation?

Have we been wrong in trying to fit the round peg of collateral consequences into the square hole of punishment?  Sandra Mayson, a Fellow at the Quattrone Center at the University of Pennsylvania Law School, says yes.  In an article published in the Notre Dame Law Review, Mayson challenges the view of some scholars that mandatory collateral consequences should be considered part of the court-imposed sentence, and thus potentially limited by procedural due process and ex post facto principles.  For starters, the Supreme Court has told us that dog won’t hunt.

But that doesn’t mean that collateral consequences should be immune from constitutional constraint. Mayson proposes instead to analyze collateral consequences as “preventive risk regulation” under principles developed in the administrative law context.  Specifically, she argues that a severe collateral consequence (such as sex offender registration) may be justified only if it can be shown to serve a public safety purpose in a particular case.

Read more

1 2 3 7