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.
Joe Palazzolo has posted at the Wall Street Journal Blog an article describing an amicus brief filed yesterday in United States v. Jane Doe (Jane Doe II), one of two federal expungement cases before Judge John Gleeson that we’ve been following. Argument in Jane Doe II is now scheduled for October 26. (The government has appealed Judge Gleeson’s May 21 expungement order in Jane Doe I to the Second Circuit Court of Appeals.) The brief begins like this:
This Court invited the views of Amica on the Court’s authority to issue “a certificate of rehabilitation in lieu of expungement” and the appropriateness of issuing such a certificate in this case. While there is no federal statute that authorizes a court to issue relief styled as a “certificate of rehabilitation,” Amica wishes to bring to the Court’s attention two mechanisms, each perhaps underappreciated but with deep historical roots, by which the Court may recognize an individual’s rehabilitation and otherwise address issues such as those raised by petitioner’s case. The first is by exercising its statutory authority to issue a writ of audita querela, which is available in extraordinary circumstances under the All Writs Act, 28 U.S.C. §1651, to grant a measure of relief from the collateral consequences of conviction. The second is by recommending to the President that he grant clemency.
The blog post describing the brief is reprinted in full after the jump.
This piece was originally published in The Crime Report on July 13, and republished in revised form on July 16.
On Monday President Obama announced in a video address that he had commuted the sentences of 46 people sentenced to long prison terms for drug offenses. His counsel, Neil Eggleston, stated that “While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.“
Mr. Eggleston added that “the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.” However, judging from his speech to the NAACP the next day, clemency is the only one of those tools that is calculated to result in any more prison releases.
In commuting the sentences of 46 individuals serving long drug sentences, President Obama declared that America is a “nation of second chances” in a video address posted on the White House website. But that sunny optimism about our country’s willingness to forgive hasn’t led him to grant very many pardons, the relief whose purpose is to restore rights and status to those who have fully served their sentences, to give them a second chance at first class citizenship. Indeed, as Michael Isikoff reported the same day the commutations were issued, Obama’s 64 pardons are the fewest issued by any full-term president since John Adams. Indeed, the President has commuted more in the past six months than he has pardoned in his entire time in office.
The President’s determination to reduce unjustly lengthy prison sentences is commendable and historically significant. But it need and should not lead him to the neglect the other part of the clemency caseload, the petitions filed by individuals who have led exemplary lives for many years but are still burdened by severe collateral consequences and the stigma of conviction. Unfortunately those petitions appear to have have been shunted to the back burner in the excitement of the so-called “clemency initiative.”
Yahoo News has published a piece by its chief investigative reporter Michael Isikoff commenting on how few pardons President Obama has granted, and how backed up the Justice Department’s pardon office seems to be. He illustrates the problem of presidential inaction with the case of Sala Udin, a Pittsburgh community activist and former City Council member, whose application for pardon of a 1970 firearms conviction has been awaiting decision for several years. Isikoff reports that while the President is likely to issue a number of sentence commutations this week, no pardons will be forthcoming. This leaves the 800 people whose pardon applications are pending in the Justice Department wondering whether there is hope for forgiveness during this president’s term.
What does it take to get a pardon from President Obama?
It’s a question Sala Udin, a former Pittsburgh City Council member and onetime civil rights Freedom Rider, is asking a lot this summer, more than three years after he first asked a president he deeply admires to grant him a pardon for a 44-year-old federal firearms conviction.
USA Today has published a White House document detailing President Obama’s policy on granting clemency, including both sentence commutation and post-sentence pardons. In a memorandum dated July 13, 2010 to the Acting Deputy Attorney General, White House Counsel Robert Bauer “convey[ed] the President’s views” on the exercise of his constitutional pardon power, affirming traditional standards but emphasizing that there are “certain offenses for which a pardon should very rarely, if ever, be granted absent truly exceptional circumstances.” Among these were “large-scale drug trafficking” in which the applicant had “a significant role,” and financial fraud cases involving “substantial loss to the federal government or its programs.”
The memo affirmed the five-year eligibility waiting period for a pardon, overriding a 2001 policy of the Bush Administration (also published for the first time) that imposed an informal 10-year waiting period. At the same time, it emphasized that the passage of additional time may strengthen an applicant’s case for pardon: Read more
During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term.
Responding to a criminal defense attorney who asked what she could do to “increase the number of federal pardons,” the President explained that he was taking a “new approach” to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term. He said he had asked the Attorney General to “open up” the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief:
On January 28, 2015, the Ohio Supreme Court settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records. In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states. The majority evidently found this conclusion an unhappy one, lamenting that “until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness.”
“Only forgiveness.” Is pardon then such a second class prize? What makes an official determination of the recipient’s good character by the state’s highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred? If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do.
As will come clear from the following discussion, I do not share the Radcliff majority’s evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself).
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.
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.