“The Supreme Court’s Mixed Signals in Packingham” is the title of a thoughtful comment by Bidish Sarma analyzing the Supreme Court’s recent decision in Packingham v. North Carolina, recently published on the American Constitution Society website. (An early analysis of the Packingham decision by Wayne Logan appeared on this site on June 20.) Mr. Sarma proposes that “the time has come to ask whether society’s ‘war’ on sex offenders who have already completed criminal sentences has gone too far.”
While the Packingham holding is confined to the First Amendment issues raised by North Carolina’s broad restrictions on access to “an astounding range of websites (including news websites, WebMD and Amazon),” Sarma singles out a sentence in Justice Kennedy’s opinion suggesting a broader underlying concern about the constitutionality of sex offender consequences:
Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”
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.
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.
This morning the Supreme Court considered whether sex offenders may constitutionally be barred from internet access to social networking sites like Facebook and Twitter. Lester Packingham, who was required to register as a sex offender after pleading guilty to taking “indecent liberties” with a minor when he was a 21-year-old college student, ran afoul of a North Carolina criminal statute when he praised God on Facebook for the dismissal of his traffic tickets.
At least five Justices expressed some degree of skepticism over broad restrictions on what Justice Elena Kagan called “incredibly important parts” of the country’s political and religious culture, some questioning the premise that the law is necessary to prevent sexual abuse of minors. Justice Kennedy noted the many ways in which the North Carolina statute seems to violate the First Amendment. “Let me count the ways,” he said, invoking Elizabeth Barrett Browning.
Some justices noted that criminal convictions can have lasting consequences. “Some states prohibit ex-felons from voting,” Justice Ruth Bader Ginsburg said. “Some states and the federal government prohibit keeping and bearing arms. Those are constitutional rights.” David T. Goldberg, a lawyer for Mr. Packingham, said those restrictions had a basis in history and logic. They were nothing like “taking away people’s First Amendment rights,” he said.
In this early post from SCOTUSblog, Amy Howe notes high points of the argument, whose full transcript of the argument is posted here. Adam Liptak predicted at the New York Times that the North Carolina law will be found unconstitutional before the end of the Court’s Term in June. What this might portend for other restrictions on sex offenders’ constitutional rights – like the exclusionary zones, also imposed by North Carolina, and also held unconstitutional on First Amendment grounds by the Fourth Circuit in December – remains to be seen.
Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.
In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.
Last week the Fourth Circuit held unconstitutional two key provisions of a North Carolina law that made it a felony for sex offenders to be within 300 feet of certain premises that are “intended primarily for the use, care, or supervision of minors” or on premises where minors “gather for regularly scheduled educational, recreational, or social programs.”
The three-judge panel held that the first provision was overbroad under the First Amendment, while the second was unconstitutionally vague. Interestingly, the state more or less ceded the First Amendment issue by failing to offer any evidence to meet its burden of proof regarding whether the law advanced the state’s interest in protecting minors. This despite the fact that the district court warned the state in advance that failing to offer such evidence would be fatal to its defense of the provision.
Editor’s note: Earlier this week Attorney General Loretta Lynch announced that The Justice Department has christened the week of April 24-30 “National Reentry Week.” In the announcement, the Attorney General highlighted “the major steps [taken by the Obama administration] to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals contribute to their communities.” The announcement prompted Art Beeler, a former warden in the federal correctional system and current member of the North Carolina Sentencing Commission, to consider the place that collateral consequences ought to have in our national dialog about reentry, recidivism, and public safety.
As a warden with the Federal Bureau of Prisons for more than twenty years, I know that successful evidence-based reentry programs are essential if we are going to reduce recidivism and increase public safety. So it was with great interest that I read U.S. Attorney General Loretta Lynch’s letter celebrating reentry week. I applaud the growing focus on reentry programming, which is essential, but I believe that we must acknowledge that we will never achieve the goal of reintegrating those convicted of crimes back into society without fully addressing the problem posed by collateral consequences. The federal government has already taken some steps a to reevaluate collateral consequences imposed by federal regulations, as the AG notes in her letter, but successful reentry efforts demand a full reevaluation of the intent and effect of collateral consequences at both the federal and state level.
At long last I have released the 2015 edition of my online guide to relief from a criminal conviction in North Carolina. This free guide, available here from the UNC School of Government, covers the various forms of relief available under North Carolina law, including expunctions, certificates of relief, petitions to restore firearm rights and terminate sex offender registration obligations, and other procedures. It includes changes made by the North Carolina General Assembly through the end of its 2015 legislative session.
This edition of the guide is longer, reflecting the greater attention given by the North Carolina General Assembly to this area of law in recent years. North Carolina law now authorizes certificates of relief, patterned after the Uniform Collateral Consequences of Conviction Act. North Carolina also has expanded the opportunities to obtain an expunction.
Expunctions are now available for older nonviolent felony convictions. Recent statutory changes prohibit public and private employers and educational institutions from inquiring about expunged charges and convictions and, further, require government agencies to advise applicants that they have the right not to disclose expunged information. People still must meet precise statutory criteria to be eligible for relief, however. Although North Carolina courts granted approximately 13,000 expunctions of dismissals in fiscal year 2013–14, they granted about 700 expunctions of convictions and other matters. See 2014 Expunctions Report [NCAOC and DOJ Joint Report Pursuant to G.S. § 15A-160] (Sept. 1, 2014) (providing data on expunctions from 2008 to 2014).
In an editorial titled “Job Hunting With a Criminal Record,” the editors of the New York Times tackle the problem of employment discrimination against the estimated 70 million Americans who “carry the burden of a criminal record.” They question the efficacy of expungement and other popular “forgetting” strategies for dealing with employer aversion to risk, preferring the “longer term” approach of “a change in attitudes about people with criminal records.”
The editorial points out that expungement laws typically apply only to “relatively minor transgressions,” require lengthy waiting periods, and include “significant exceptions” (e.g., they don’t apply to jobs and licenses requiring a background check, a large and growing segment of the labor market). In addition, “trying to keep anything secret in the 21st century is no sure thing.” Finally, “record-sealing laws do not and cannot address the underlying problem of overcriminalization.”