Notwithstanding the Supreme Court’s decisions in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) and Smith v. Doe, 538 U.S. 84 (2003), state courts are coming to different conclusions under their own constitutions about whether sex offender registration and notification laws constitute punishment for purposes of due process and ex post facto analysis. The Pennsylvania Supreme Court is the most recent to invalidate mandatory registration requirements imposed on juveniles, but several state supreme courts have limited the retroactive application of registration requirements to adults under an ex post facto analysis.
Beginning January 1st, 2015, many Minnesotans will have a meaningful shot at a second chance through criminal records expungement. For decades, many individuals have relied upon (and often languished under) a court’s inherent authority to expunge (or seal) criminal records, but recent Minnesota Supreme Court decisions effectively eviscerated that remedy. Without a legislative act expressly granting judicial authority to seal records held within executive branch agencies, the majority of petitioners were granted orders sealing only court records—leaving numerous publicly accessible criminal records untouched.
The new law, passed with bipartisan support and building upon momentum gained with last year’s Ban the Box for private employers, changes that. It provides new authority for expunging (sealing) both criminal and juvenile records held by executive branch agencies; requires data mining companies to observe expungements, protects employers and landlords hiring and renting to individuals with expunged records, addresses victimization and housing evictions, and clarifies a number of procedural issues. The standard for granting expungement remains that under current law, requiring the court to balance private and public interests.
While by no means a silver bullet, this new legislation will help a significant number of Minnesotans currently locked out of employment, housing, licensure, education, and countless other of life opportunities, by providing a true opportunity for a second chance.
Here is an explanation of the new law’s specific provisions.
I went to college, and practiced law, with Dan Ackman, an outstanding New York lawyer who represents taxi drivers in a variety of contexts. One of his cases, pending in the Southern District of New York, Nnebe v. Daus, challenges the TLC’s alleged practice of automatic license suspension a upon arrest for a felony or specified misdemeanor, and automatic revocation upon conviction, even if the charges had no temporal, physical or logical relationship to driving a cab. The Second Circuit previously held that automatic revocation was constitutional, but directed a trial on whether the post-deprivation hearing was sufficient. The case was remanded, tried, and is now pending a decision before Judge Sullivan. The case has important implications for collateral consequences; mere arrests should not be the basis for any important decision, other than an inquiry into the actual facts, and even a conviction for an unrelated offense should not be the basis for license revocation.
The Wisconsin statute that allows courts to expunge certain conviction records of youthful offenders, Wis. Stat. § 973.015, provides that the court must make its decision about whether to expunge at the time of sentencing, conditioned upon the defendant successfully completing his or her sentence.
Often, young defendants receive a probationary term for crimes that are eligible for expungement (all misdemeanors, as well as certain felonies in the lower levels of severity). Prior case law has established that, although expungement is conditional upon successful completion of probation in this situation, the court may not defer ruling on the expungement request.
In State v. Hemp, the Wisconsin Supreme Court clarified that expungement occurs automatically if the statutory conditions are met, and that a defendant is not required after completing probation to apply to the sentencing court for entry of the expungement order. Importantly, the court also provided some guidance regarding the legal effect of expungement that will be of interest to job applicants who have had a previous conviction expunged.
We recently came across this five-part series on sex offender registries, written by three Yale Law School students and published by Slate.com. It traces the recent history of registries since the passage of the Jacob Wetterling Act in 1994, examines some of the fallacies and flawed stereotypes underlying the expansion of registries in the past 20 years, and spotlights three areas in which the authors argue their growth has been especially unwise:
- more non-violent “outlier” crimes are covered;
- states are keeping people on registries for longer periods of time and making removal harder; and
- more harsh collateral consequences attach to those required to register.
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.
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
Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan’s work. You can find the chart at this link.
Wayne Logan has summarized his research on relief from sex offender registration and community notification requirements for a forthcoming Wisconsin Law Review article in an excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming). This is the first of many tidbits from the book that will appear in this space from time to time:
2:42. Sex offense-related collateral consequences — Constitutional challenges to registration and community notification laws: post-application challenges
Given the extended potential duration of registration and community notification (RCN) application, ranging from ten years to life, the question naturally arises over whether relief from its requirements and burdens can be attained at some point. While the federal Adam Walsh Act allows states to provide relief to registrants with a “clean record” for ten years, states typically afford only very limited opportunity to registrants to exit registries.
South Carolina is most limited, offering no opportunity to petition for relief from lifetime registration and community notification; only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.” In other states, opportunity for relief is only somewhat broadened, to include such sub-populations as juvenile offenders and those convicted of less serious offenses. In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25), and in several states select registrant groups can seek early relief. Early relief, however, can be less than it seems: in Hawaii, for instance, only lifetime registrants can petition for early relief—after forty years on the registry; ten- and 25-year class registrants must satisfy their terms.
An earlier post highlighted the dilemma that some young Wisconsin defendants face because of the narrow scope of the law on sealing conviction records. The court can seal the record of certain convictions, but the record of dismissed charges remains accessible to the public in a searchable online database. Therefore, the dismissal can increase the potential for prospective employers to learn of an applicant’s legal troubles.
Now the Wisconsin Court of Appeals has held that the court may not seal the record of a non-criminal violation. Kenosha County v. Frett, 2014AP6 (Wis. Ct. App. Nov. 19, 2014). The appellate court reviewed the statutory language and concluded that references to 1) the maximum term of imprisonment for sealable offenses; 2) “completion of the sentence”; and 3) “certificate of discharge” from the “detaining or probationary authority” showed that the procedure applies only to criminal convictions.
For a young woman cited in 2012 in Kenosha County for underage drinking, now a college student in New York, the decision means that the record of her conviction for the amended charge of littering remains publicly accessible. If she had been convicted of drug possession or fraud she might have been able to close the book on this episode.
Although the Frett case did not involve the reduction of criminal charges, the decision means that some defendants might prefer to have a sealed criminal conviction than to have a public record of a reduced, non-criminal charge (the public record of the reduced charge also shows the original charges).
The Frett decision may be appealed to the Wisconsin Supreme Court, and policymakers are considering statutory amendments to expand judicial authority to seal records. For now, however, non-criminal dispositions and dismissals are publicly accessible in situations in which some criminal convictions can be sealed.
A federal district court in Philadelphia has issued the first decision to invalidate the federal felon-in-possession statute on constitutional grounds. The notable as-applied Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014). Perhaps significantly, Binderup is a civil rights suit brought by an individual seeking relief from a minor conviction in his distant past, not one in which a defendant is seeking to avoid prosecution a federal criminal on Second Amendment grounds. Here is an excerpt from the opinion:
As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011).
Alan Gura, who represented Mr. Binderup and argued both D.C. v. Heller and McDonald v. City of Chicago in the Supreme Court, promises more Second Amendment fireworks involving people with dated non-violent convictions. Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms after conviction, should keep an eye on this space.