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.
A 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.
In February we posted about regulations proposed by the federal Department of Health and Human Services (HHS) to implement criminal history screening requirements for child care workers under recent changes to the Child Care and Development Block Grant Act of 2014. The CCRC joined a coalition of organizations led by the National Employment Law Project (NELP) in calling upon HHS to reconsider the proposed regulations. In a formal comment submitted to HHS, the coalition argued that the regulations contained screening standards that were more exclusionary than the Act requires, and that they would have a disparate impact on women, African Americans, and Latinos.
HHS has now issued the final version of those regulations. Although the final rules are far from perfect, they do address a number of the concerns raised by the coalition. For example, they omit language that encouraged states to require self-disclosure of criminal history, provide greater protection from inaccurate criminal record reporting, and urge states adhere to the standards laid out in the EEOC guidance by providing individualized assessments for disqualifying offenses that are added by the states but not required by the federal law.
Unfortunately, HHS chose not to back down on one of the most troubling provisions of the proposed regulations: criminal history screening of anyone age 18 or older residing in a license-exempt home that provides child care services. Screening of those individuals is not required by the Act itself. As the coalition’s comments explained, the requirement will almost certainly have a disproportionately adverse impact on providers of color and their families:
Earlier this week the U.S. Departments of Justice and Labor made two major awards to the Council of State Governments (CSG) to support the development of resources on collateral consequences and second chance programs. The awards aim to build capacity within the advocacy community to assist those seeking restoration of rights and status nationwide.
The first award is a $4.6 million contract awarded by the Labor Department for the development of the National Clean Slate Clearinghouse, a federal initiative first announced by President Obama last November. The Clearinghouse is intended to “build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.”
The second award is a $5 million grant from the Bureau of Justice Assistance to support the ongoing work of the National Reentry Resource Center (NRRC), a project developed by CSG in 2011 with federal funding earmarked in the Second Chance Act of 2007. One exciting aspect of that award is that it will bring the National Inventory of the Collateral Consequences of Conviction (NICCC) into the NRRC fold.
Earlier 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.
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.
On September 15, 2016, the Indiana Court of Appeals reversed a lower court’s denial of expungement to a woman convicted 13 years before of forgery and drug-dealing, holding that the court abused its discretion in denying relief where the case fully met the statutory standards. The decision provides a window into how one of the Nation’s most expansive new expungement laws is being interpreted and enforced by the courts of the state. Judging by this decision, the approach to restoration of rights in this otherwise-conservative state remains encouraging.
Here is Olivia Covington’s article from the Indiana Lawyer reporting on the decision, with a link to its full text.
On September 14, the Board of Trustees of the State University of New York (SUNY), the nation’s largest comprehensive university system, voted to ban the box in its admissions process. It is the first university system in the country to reverse its decision to engage in criminal history screening and remove the question from its admissions application.
The resolution laying out the policy change references the advocacy of the Education From the Inside Out (EIO) Coalition, including a 2015 case study of SUNY conducted by the Center for Community Alternatives, “Boxed Out: Criminal History Screening and College Application Attrition.” That study found that about two-thirds of the nearly 3,000 SUNY applicants who disclose a felony conviction each year do not complete the application process (compared to only 21 percent of the overall pool of applicants) and thus are never considered for admission. It concluded that this is the result of the daunting – and sometimes impossible – supplemental process triggered by that disclosure as well as the stigmatizing nature of the inquiry itself.
In the wake of the Brock Turner case, a new controversy was ignited in Massachusetts last month when 18-year-old David Becker, a white college-bound athlete, received two years’ probation after pleading guilty to indecent assault of an unconscious woman at a house party. As in the Turner case, many are outraged by a penalty they regard as too lenient and the result of white privilege. However, any perceived injustice in the Becker case may be less about an abuse of judicial discretion than about the limited ability of judges to mitigate collateral consequences.
Critics of the decision may be even more concerned to learn that David Becker was not actually convicted of a crime. Instead, District Court Judge Thomas Estes accepted Becker’s guilty plea and ordered a “continuance without a finding” (known as a CWOF) for two years while Becker serves a term of probation. If Becker completes the conditions of probation successfully, the charges against him will be dismissed and the record will be eligible for sealing.
The fact that Becker was not convicted is significant because it allows him to avoid both registering as a sex offender and the numerous collateral consequences that would come with having a criminal record.
Mark Osler has posted a new piece arguing for an overhaul of the federal pardon process so that it more closely resembles efficient and productive state clemency systems. He argues that flaws in the process for administering the power, rather than a failure of executive will, have prevented President Obama from carrying out his ambitious clemency agenda directed atlong-sentenced drug offenders. Streamlining the process will enable presidents to use the power more generously and effectively.
This seems to us to an oversimplified solution to the theoretical and practical problems with what President Obama has been trying to do. Moreover, at least in the absence of constitutional amendment, any structural changes in the federal pardon process would have to be reaffirmed by each new president, and would likely be opposed by the Justice Department and Congress.