The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges.
Eliza Hersh, director of the Clean Slate Clinic at the East Bay Community Law Center and one of CCRC’s contributing authors, has co-authored a most persuasive op ed in the LA Times, which we are pleased to reprint here in full.
Should a shoplifting conviction be an indelible scarlet letter? Not in California
What exactly is the appropriate punishment for someone who commits a low-level, nonviolent crime? Should a conviction for minor drug possession, shoplifting or writing a bad check result in a lifetime of stigma and denied opportunities, or do people with criminal records deserve a second chance?
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.
I went to college, and practiced law, with Dan Ackman, an outstanding New York lawyer who represents taxi drivers in a variety of contexts. One of his cases, pending in the Southern District of New York, Nnebe v. Daus, challenges the TLC’s alleged practice of automatic license suspension a upon arrest for a felony or specified misdemeanor, and automatic revocation upon conviction, even if the charges had no temporal, physical or logical relationship to driving a cab. The Second Circuit previously held that automatic revocation was constitutional, but directed a trial on whether the post-deprivation hearing was sufficient. The case was remanded, tried, and is now pending a decision before Judge Sullivan. The case has important implications for collateral consequences; mere arrests should not be the basis for any important decision, other than an inquiry into the actual facts, and even a conviction for an unrelated offense should not be the basis for license revocation.
The Wisconsin statute that allows courts to expunge certain conviction records of youthful offenders, Wis. Stat. § 973.015, provides that the court must make its decision about whether to expunge at the time of sentencing, conditioned upon the defendant successfully completing his or her sentence.
Often, young defendants receive a probationary term for crimes that are eligible for expungement (all misdemeanors, as well as certain felonies in the lower levels of severity). Prior case law has established that, although expungement is conditional upon successful completion of probation in this situation, the court may not defer ruling on the expungement request.
In State v. Hemp, the Wisconsin Supreme Court clarified that expungement occurs automatically if the statutory conditions are met, and that a defendant is not required after completing probation to apply to the sentencing court for entry of the expungement order. Importantly, the court also provided some guidance regarding the legal effect of expungement that will be of interest to job applicants who have had a previous conviction expunged.
We recently came across this five-part series on sex offender registries, written by three Yale Law School students and published by Slate.com. It traces the recent history of registries since the passage of the Jacob Wetterling Act in 1994, examines some of the fallacies and flawed stereotypes underlying the expansion of registries in the past 20 years, and spotlights three areas in which the authors argue their growth has been especially unwise:
- more non-violent “outlier” crimes are covered;
- states are keeping people on registries for longer periods of time and making removal harder; and
- more harsh collateral consequences attach to those required to register.
The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction. The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford.
In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country. Under the new law, courts are empowered to “expunge” most criminal records, after waiting periods keyed to the seriousness of the offense. The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere. This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation.
We recently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states. Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation. But in an age of bipartisan support for criminal justice reform, apparently anything can happen. Read more