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
An AP story about the perils of pardoning, picked up by newspapers and media outlets across the country, manages to convey three pieces of misinformation in its very first sentence. Riffing off a recent high profile pardon application, it begins like this: “Mark Wahlberg’s plea for a pardon has focused fresh attention on excusing criminal acts – something governors rarely do because it’s so politically risky.”
But pardons do not “excuse” crimes, they forgive them; governors have been pardoning more and more generously in recent years; and pardoning, like any other government program involving personal participation by a high profile elected official, is generally not risky if done in a responsible manner with good staff support and without apology.
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.
The New York Times this morning describes data from the U.S. Department of Education’s Office for Civil Rights showing that African-American girls tend to face more serious school discipline than white girls. “For all the attention placed on problems that black boys face in terms of school discipline and criminal justice, there is increasing focus on the way those issues affect black girls as well.” Black girls who get in trouble at school are also more frequently referred to the criminal justice system, where they can incur a criminal record that sticks with them into adulthood.
The background checking policies of Uber and other ride-sharing companies like Lyft and Sidecar are again in the news, after an Uber driver with an extensive criminal record allegedly raped a female passenger in New Delhi. Other horror stories of cab rides from hell with these popular “taxi aggregators” are surfacing. The New York Times reports that background check requirements for taxi drivers vary widely by jurisdiction, but are “generally more rigorous” than the sketchy services used by Uber and its competitors, and “usually include searches of private databases like F.B.I. records.” (Note to self: Must inform the “paper of record” that the FBI records system is not a “private database.”)
Uber et al. have so far successfully resisted most legislative efforts to require them to perform particular kinds of background checks using particular kinds of background checkers, using the good offices of well-connected lobbyists to avoid this annoying speed bump on their road to a public offering. But episodes like the New Delhi rape, and lawsuits for misleading consumers about the kinds of checks they do, may bring them around to a more responsible position. Read more
It’s that time of year again. Odds are that sometime in the next two weeks President Obama will issue some pardons and commute some prison sentences. I have never quite reconciled myself to the unfortunate and ahistorical association of pardoning with the silly turkey ceremony (the Obama girls were right to roll their eyes) and Christmas gift-giving, the result of decades of presidential neglect and sometime Justice Department sabotage of the power. But now that the season for forgiveness is upon us, I can’t wait to see what’s underneath the tree.
It was my fondest hope during the 2008 campaign that this president would want to revive the practice of pardoning, like Jerry Brown in California and Pat Quinn in Illinois, and restore a degree of regularity and accountability to the federal pardon process. But so far President Obama has issued only 52 full pardons, making him the least generous full-term president in our Nation’s history. And so far there is no indication that he intends to reinvigorate the federal pardon process, as Justice Anthony Kennedy urged in an iconic speech to the American Bar Association more than a decade ago, and as scholars and practitioners have regularly urged in less exalted settings ever since. Nor has his Administration proposed any alternative procedure by which individuals with federal convictions can avoid or mitigate collateral consequences, like the set-aside authority in the Youth Corrections Act that was repealed in 1984.
But there is some reason for optimism even this late in the game. President Obama’s evident willingness to use his constitutional power to reduce long drug sentences will hopefully have a spillover effect on the other half of the clemency caseload, the applications for full pardon from people who have long since served their sentences and gone on to live productive and law-abiding lives. There are more than 800 applications for pardon pending in the Justice Department, many from people convicted decades ago whose lives of service have been exemplary. They deserve something more than a gambler’s chance at forgiveness.
In a recent national study of case processing in the nation’s misdemeanor courts, Wall Street Journal reporters Gary Fields and John Emschwiller document how “blindingly swift” justice is for the “millions of Americans charged each year with misdemeanor crimes”:
In Florida, misdemeanor courts routinely disposed of cases in three minutes or less, usually with a guilty plea, according to a 2011 National Association of Criminal Defense Lawyers study. In Detroit, court statistics show, a district judge on an average day has over 100 misdemeanor cases on his or her docket–or one every four minutes. In Miami, public defenders often hardly have time to introduce themselves to their misdemeanor clients before the cases are over. . . . In a Houston courtroom one day recently, defendants–sometimes individually, sometimes in groups of up to nine . . . , pleaded guilty, received their sentences and got a “good luck” from the judge in less than 30 seconds.
It appears that very little has changed in the forty years since the Supreme Court in Argersinger v. Hamlin bemoaned the assembly line that characterized the processing of misdemeanor offenses at that time. The Court noted:
Wherever the visitor looks at the system, he finds great numbers of defendants being processed by harassed and overworked officials. Suddenly it becomes clear that, for most defendants in the criminal process, there is scant regard for them as individuals. They are numbers on dockets, faceless ones to be processed and sent on their way.” (emphasis added)
The Argersinger Court noted that uncounseled defendants were pleading guilty, often at their initial appearance before a judge, and that there were harmful consequences that flowed from convictions of even so-called minor crimes. To remedy the national crisis in misdemeanor courts that existed even in the 1970s, the Court held that the Gideon right to Read more