Introducing the new Restoration of Rights Project

 

The Collateral Consequences Resource Center and its partner organizations, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the National HIRE Network, are pleased to announce the launch of the newly expanded and fully updated Restoration of Rights Project.

The Restoration of Rights Project is an online resource that offers state-by-state analyses of the law and practice in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction.   Jurisdictional “profiles” cover areas such as loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing.  Each jurisdiction’s information is separately summarized for quick reference.   

In addition to the jurisdictional profiles, a set of 50-state comparison charts summarizes the law and illustrates national patterns in restoration laws and policies.   We expect to supplement these resources in weeks to come with jurisdiction-specific information about organizations that may be able to assist individuals in securing relief, and information on other third-party resources.

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Supreme Court supports immigrant’s right to understand consequences of conviction

The author of the following post about the Supreme Court’s decision in Jae Lee v. United States drafted an amicus brief in the case for several national immigrant rights organizations.

In 2010, Padilla v. Kentucky established that criminal defense lawyers must advise clients about the deportation consequences of a conviction, as part of their duties under the Sixth Amendment right to the effective assistance of counsel. Jose Padilla won in the Supreme Court because his trial lawyer erroneously informed him that he would not be deported after pleading guilty to drug trafficking because he had been in the U.S. for so long and had served in the military in Vietnam. However, Padilla’s case was remanded for a lower court determination of whether his trial lawyer’s incompetence caused him prejudice, since a defendant can win an ineffective assistance of counsel claim under the Court’s 1984 decision in Strickland v. Washington only by showing both attorney incompetence and prejudice.

Last week, in Lee v. United States, the Court considered the standard for proving prejudice, ruling in Lee’s favor in a 6-2 decision by Justice Roberts (Justices Alito and Thomas dissented). The Government conceded that Jae Lee’s trial lawyer failed to meet his duty under Padilla by assuring him that he would not be deported if he pled guilty to selling ecstasy. The only issue for the Court was the proper standard for proving prejudice when a defendant pleads guilty in a case involving strong evidence of guilt.

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Defendant entitled to “Hail Mary” effort to avoid deportation

The Supreme Court has settled a dispute lingering in the lower courts since its decision seven years ago in Padilla v. Kentucky:  If a criminal defendant’s decision to plead guilty resulted from his lawyer’s constitutionally deficient advice about the collateral consequences of conviction, what does he have to show to undo the plea and bring the government back to the bargaining table?  The question before the Court in Jae Lee v. United States was whether a defendant facing deportation must be given a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, even though the odds of his winning at trial are low and he is likely to be deported anyway.

The government argued that no “rational” defendant in Lee’s position would have risked a longer prison term, that he therefore could not show that he was prejudiced by his lawyer’s bad advice, and that the plea should accordingly stand.  Lee countered that “deportation after some time in prison was not meaningfully different from deportation after somewhat less time,” and that he would have taken his chances with the jury if he had had accurate advice about the consequences of pleading guilty.  As the Court put it, he “would have rejected any plea leading to deportation in favor of throwing a ‘Hail Mary’ at trial.”

On June 23, the Supreme Court agreed that Lee should have another bite at the apple. In an opinion by Chief Justice Roberts, the Court held 6-2 that Lee had met his burden of showing that it would not have been “irrational” for him to reject the plea offer and go to trial, even though he would have been “almost certain” to lose.

The Court’s opinion is analyzed by Amy Howe at SCOTUSblog here.  Justices Thomas and Alito dissented, and Justice Gorsuch took no part in the decision.

Scholarship round-up IV

It’s time for another scholarship round-up! A more complete collection of scholarship on issues relating to collateral consequences and restoration of rights can be found on our “Books & Articles” page.  (Abstracts follow list of articles.) Past round-ups here.

Measuring the Creative Plea Bargain

Thea Johnson, University of Maine School of Law
Indiana Law Journal, Vol. 92, 901 (2017)

Dismissals as Justice

Anna Roberts, Seattle University School of Law
Alabama Law Review (Forthcoming)

Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement

Brian M. Murray, University of Pennsylvania Law School
86 Fordham Law Review (Forthcoming)

Criminal Record Questions in the Era of “Ban the Box”

Mike Vuolo, Ohio State University
Sarah Lageson, Rutgers University
Christopher Uggen, University of Minnesota
16 Criminology & Public Policy 139 (2017)

The President’s Role in Advancing Criminal Justice Reform

Barack Obama
130 Harvard Law Review 811, 838 (2017)

Obama’s Clemency Legacy: An Assessment

Margaret Colgate Love
29 Federal Sentencing Reporter (forthcoming 2017)

Designed to Fail: The President’s Deference to the Department of Justice in Advancing Criminal Justice Reform

Rachel E. Barkow, New York University School of Law
Mark William Osler, University of St. Thomas – School of Law (Minnesota)
William & Mary Law Review, Vol. 59 (2017)

Expungement, Defamation and False Light: Is What Happened before What Really Happened or Is There a Chance for a Second Act in America?

Loyola University Chicago Law Journal (Forthcoming)
Doris Del Tosto Brogan, Villanova University School of Law

Leading with Conviction: The Transformative Role of Formerly Incarcerated Leaders in Reducing Mass Incarceration

Susan P. Sturm, Columbia Law School
Haran Tae, Yale University Law School
Columbia Public Law Research Paper No. 14-547 (2017)

Legal Aid with Conviction: How to Combat Barriers to Reentry by Using the Law

Vidhi Sanghavi Joshi, Legal Aid Society of Middle Tennessee
Clearinghouse Article, Sargent Shriver Center on Poverty Law (June 2017)

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“Justice Alito’s misleading claim about sex offender rearrests”

The title of this post is the Washington Post’s “Fact Checker’s” assessment of a statement in Justice Alito’s concurrence in Packingham v. North Carolina about the recidivism rates of sex offenders.  We reprint excerpts because of the importance of the issue to the Supreme Court’s collateral consequences jurisprudence:

“Repeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’”
–Supreme Court Justice Samuel A. Alito Jr., concurring opinion in Packingham v. North Carolina, June 19, 2017

. . . . .

The Fact Checker normally doesn’t fact-check Supreme Court justices, and we certainly do not fact-check opinions. But the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.

What do the data show?

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SCOTUS invalidates law criminalizing sex offender access to social media

Departing from its customary reluctance to find fault with laws singling out convicted sex offenders for harsh treatment, after they have completed their sentences, the Supreme Court in Packingham v. North Carolina yesterday struck down a state law making it a felony for registered sex offenders to access commercial social networking websites. The petitioner in Packingham, a registered sex offender, violated the North Carolina law when after learning that a traffic ticket against him had been dismissed in court he posted the following message on his Facebook.com personal profile:

Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!

Packingham was convicted and thereafter challenged his conviction on First Amendment grounds, arguing that the law violated his right to free speech.

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Court rules sex offenders cannot be barred from social media

The Supreme Court ruled on June 19, without dissent, that sex offenders cannot constitutionally be barred from social-networking sites.  SCOTUSblog’s Amy Howe introduced the Court’s ‘s holding in Packingham v. North Carolina as follows:

In 2002, Lester Packingham became a convicted sex offender at the age of 21, after he pleaded guilty to taking indecent liberties with a child – having sex with a 13-year-old girl. Packingham got into hot water with the law again in 2010, when he posted on Facebook to thank God for having a traffic ticket dismissed. After a police officer saw his post, Packingham was prosecuted and convicted under a North Carolina law that makes it a felony for a convicted sex offender to use social-networking websites, such as Facebook and Twitter, that allow minors to create accounts. Today Packingham has something else to be grateful for, and he can take to social media to express that appreciation, because the Supreme Court agreed with him that the North Carolina law violates the Constitution’s guarantee of freedom of speech.

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Introducing the Compilation of Federal Collateral Consequences

The CCRC is pleased to announce the launch of its Compilation of Federal Collateral Consequences (CFCC), a searchable online database of the restrictions and disqualifications imposed by federal statutes and regulations because of an individual’s criminal record. Included in the CFCC are laws authorizing or requiring criminal background checks as a condition of accessing specific federal benefits or opportunities.

This newly developed tool allows individuals to identify federal collateral consequences based on the people, activities or rights affected; to access complete and current statutory and regulatory text detailing the operation of each consequence; and, to explore the relationship between consequences and their implementing regulations, and among different consequences.  This is a product that has been many months in the making, and we hope it will serve as an important resource for practitioners, researchers, and policymakers, as well as individuals with criminal records.

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“Back to Business” – A report on fair chance hiring policies

A new report examines successful efforts by corporations and government leaders to promote “fair chance” hiring policies for people with criminal histories.  Back to Business: How Hiring Formerly Incarcerated Job Seekers Benefits Your Company reviews the latest research on the effect of a criminal record on employment interviews and on the job performance of workers with such records.  The report summary continues:

Several case studies presented here show how fair chance policies can promote loyalty and stability in the labor pool. The report provides a roadmap for businesses seeking to create and sustain fair chance policies, including “banning the box,” or removing criminal history questions from job applications. It explains how hiring officers can effectively carry out this policy, and how to choose background check companies that use best practices in data collection. It analyzes racial bias that has been connected with “ban the box” policies, and how to eliminate such bias by training administrators involved in hiring processes. The report also outlines compliance requirements with federal equal employment rules as they apply to people with criminal records. And it examines the issue of negligent hiring liability and how to avoid such liability. Education is critical to job readiness, employee retention, and economic mobility. The costs of re-incarceration far exceed the costs of correctional education, and access to training and higher education have been shown to reduce recidivism and increase the likelihood of employment upon release. One case study describes how one college is developing inprison education programs under a federal pilot program and offers a model for making correctional education scalable. The report examines how partnering with workforce training and development programs can help employers succeed with employees who have been in prison. Many workforce development agencies offer training and counseling tailored to help these individuals transition into jobs. Lastly, the report provides recommended actions that businesses can take to create a fair chance for all.

The report was prepared by the Trone Private Sector and Education Advisory Council to the American Civil Liberties Union, with its partner organizations the Legal Action Center, the Lawyers Committee for Civil Rights Under Law, and the National Workrights Institute. 

National law reform proposal on collateral consequences

A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction.  The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences.  [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.]

In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief.   As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences.  The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone searching for innovative ways to lighten the burden of a criminal record.

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