The Marshall Project has published an important new article by Maurice Chammah on legal challenges to restrictions on where registered sex offenders can work, live, and visit. See “Making the Case Against Banishing Sex Offenders: Legislators won’t touch the subject, but courts are proving more sympathetic.” Chammah writes that activists, finding lawmakers unreceptive to any measure perceived to benefit sex offenders, “have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns.”
Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose.
Recently, a woman standing outside of a Berkeley grocery store asked if I wanted to register to vote. I asked her, “Can I vote if I’m on probation?” She looked at me with horror, gripped her clipboard, and physically recoiled from me and the cantaloupe I was holding. Once she regained some composure, she sincerely, confidently, and erroneously informed me that California’s laws prohibit voting while on probation.
That encounter inspired me to draft these goals for all of the voter registration advocates (including me!) working the sidewalks this election season:
1: Practice not physically recoiling in horror from people we encounter in life.
2: Learn the voting laws in our jurisdictions to avoid disenfranchisement through disinformation.
Each state has its own laws about voting following a felony conviction. Two states never disenfranchise voters following conviction. (Hey, Maine! Hey, Vermont!) Some states permanently terminate the voting rights of outrageous numbers of its citizens: Florida’s draconian voting laws disenfranchise 10% of its total population. In 2000, Florida disenfranchised 600,000 citizens with felony convictions. That same year, its presidential race was decided by 537 votes.
Last week we posted a letter sent by former Attorney General Eric Holder to the Chicago City Council on behalf of Uber and Lyft, urging that it not require Uber and Lyft to subject their drivers to FBI fingerprint-based background checks applicable to taxi operators. His main argument was that FBI records are incomplete and misleading, and that they have a discriminatory impact on minorities. It now turns out that the campaign to free these ride-sharing companies from regulatory restrictions is broad-based: Holder has reportedly written to officals in New Jersey and Atlanta considering similar measures, and other former Obama officials are also working for Uber.
On April 6, Arizona became the latest state to offer early relief from sex offender registration obligations to young people convicted of consensual sex offenses and sentenced to probation. The law, HB 2539, allows individuals convicted before reaching age 22 of sexual conduct with a minor between the ages of 15 and 17 (so-called “Romeo and Juliet” offenders), to petition the court for relief from registration after completing probation. If a petitioner meets all applicable criteria, the court must grant the petition unless it finds that a “denial is in the best interests of justice or tends to ensure the safety of the public.” Similar laws authorizing early termination from registration for those convicted of youthful consensual offenses are in effect in ten other states, including Florida, Oregon, and Michigan.
Laws requiring young people to register have come under increased scrutiny thanks to recent media coverage of their harsh effects and flimsy justifications — notably an article by Sarah Stillman published last month in the New Yorker (“The List”). Much of the attention to registry of juveniles has been driven by mobilization around the issue by advocacy groups like Reform Sex Offender Laws (RSOL) and the Center on Youth Registration Reform (CYRR). In 2013, Human Rights Watch issued a ground-breaking report on the issue, Raised on the Registry.
Child care workers in every state are subject to rigorous criminal background checks that may result in mandatory bars to employment. Until now, each state has been generally free to define its own standards regarding screening for criminal history. That is about to change.
By September of next year, states receiving funds under the federal Child Care and Development Block Grant (CCDBG) Act of 2014 (which appropriates over $ 2.5 billion each year to fund state child care and child welfare programs) must adopt minimum federally-defined screening standards for child care workers or risk loss of funding. The revised statutory standards subject current and prospective child care workers to a multi-level criminal background check and disqualify from employment anyone convicted of crimes against children, specified violent crimes, and drug crimes within the past 5 years. States may opt to waive the disqualification for drug crimes on a case-by-case basis, but they are also free to adopt conviction-based disqualifications that are more restrictive than the law requires.
If the new CCDBG standards were not bad enough, the Department of Health and Human Services has issued proposed rules that would make them worse. On Monday, the CCRC joined a coalition of organizations led by the National Employment Law Project in calling on HHS to rethink proposed rules that would implement the new screening requirements. A formal comment filed by the coalition details the ways in which the proposed rules fail to adequately address the disparate impact that the requirements could have on women, African Americans, and Latinos, and takes issue with requirements in the rules that are more exclusionary than the Act requires. Read more
The New York Times published a terrific editorial today describing in detail the extraordinary work being done by Governor Dannel Malloy and others in Connecticut to reform the system of criminal punishment, and to assist those with a criminal record get jobs and qualify for other benefits and opportunities. Rather than try to summarize all of Connecticut’s trail-blazing accomplishments under Governor Malloy, we are reprinting the editorial in its entirely here.
An article from The Marshall Project published on September 17 got us thinking about the elusive term “expungement” and what it really means, both functionally and philosophically. In “Five Things You Didn’t Know About Clearing Your Record: A primer on the complicated road to expungement,“ Christie Thompson describes an unusual class action lawsuit recently filed by a public-spirited lawyer in a Tennessee county court seeking “to have the case files destroyed for hundreds of thousands of arrests and charges that never resulted in a conviction.” She proceeds to point out some of the pros and cons of expungement relief, including that expunged records may still be available from private background screening companies or the internet.
But the problems with expungement laws are deeper than the article suggests. Quite apart from theoretical objections to relief based on pretense, the fact is that expungement laws have functional flaws even where public records are concerned. For example, the Tennessee expungement law described in the Marshall Project article has no effect on records in the possession of law enforcement or prosecutors, or on appellate court records and opinions. See Tenn. Code Ann. § 40-32-101(b)(1). Moreover, it authorizes release of expunged arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding upon request. See § 40-32-101(c)(3).
As part of budget deliberations, the Wisconsin Legislature’s Joint Finance Commitment approved a provision that would allow courts to remove records of certain dismissed charges from the computerized statewide records system.
Under current law, although certain conviction records of youthful defendants may be expunged, anomalously dismissed charges remain accessible. The new provision would allow a judge to order removal of a record from the internet site if all charges have been dismissed; all charges carried a maximum penalty not exceeding six years of imprisonment; none of the charges were classified as violent crimes; and the charges were filed before the defendant attained age 25. These are the same criteria that apply to expungement of youthful convictions.
People who would benefit from the change include people whose only contact with the criminal justice system was a case that was ultimately dismissed after they went through deferred prosecution or a first offenders program.
The new law would apply retroactively, thus allowing individuals to apply for removal from the website of charges dismissed before the effective date of the provision. The redaction of records would apparently apply only to records accessible on the website, not to court records accessible through the local clerk of court, nor to arrest records accessible through law enforcement agencies.
The state budget still awaits approval by both houses of the Legislature and by the Governor, who has broad authority for line-item vetoes.
The REDEEM Act, introduced in the US Senate in March by Senators Corey Booker (D–NJ) and Rand Paul (R–KY), seeks to expand employment opportunities for those with federal criminal records by giving federal courts sealing authority. Because courts have generally held they do not have inherent authority to seal records — at least where an arrest or conviction is valid — the Act would open an entirely new avenue of relief from many of the collateral consequences that result from a federal arrest or conviction. While in the past similar bills have not made it out of committee, the attention that criminal justice reform is currently receiving on the national political stage and the REDEEM Act’s bipartisan support could give the Act a fighting chance.
The Act, as introduced, is not without its flaws. Chief among them are its vague definition of what crimes are eligible for relief, the broad discretion courts would have to deny relief for eligible offenses, the significant exceptions to the confidentiality of sealed records, and the uncertain effect of sealing on collateral consequences. The good news is that the Act’s defects are not structural and can be easily remedied through the legislative process.
This post contains a nuts and bolts overview of the Act. In subsequent posts, we will take a closer look at ways the Act could be improved. Since the procedures and eligibility criteria applicable to adult and juvenile offenses differ in significant ways, we look at each in turn. Read more
The editors of the New York Times are critical of Maryland Governor Larry Hogan’s recent veto of a law that would have allowed anyone with a felony conviction to vote if they are living in the free community. See “A Bad Voting Ban,” June 1, 2015. Maryland’s law now disenfranchises anyone convicted of a “felony and . . . actually serving a court-ordered sentence of imprisonment, including any term of parole or probation, for the conviction.” The Times editorial points out that Maryland changed its law to restore voting rights automatically upon completion of sentence in 2007, and that disenfranchisement based upon conviction is generally a punitive relic of slavery.
So if felony disenfranchisement laws are punitive relics, why should they be applied to anyone, even people who are still in prison? The logic of the Times editors’ position would seem to support voting by prisoners, as happens in Vermont and Maine and in many parts of Europe. An argument against voting by prisoners based on disenfranchisement as an integral part of court-imposed punishment would apply equally to probationers and parolees. The notion that prisoners no longer have a connection to their communities is a self-fulfilling prophecy that runs against current policies of encouraging prisoner reentry. If there are practical reasons to bar prisoners from jury service and political office, they do not apply to voting when absentee ballots have become commonplace.