Collateral Consequences Resource Center

Category: Commentary

DC’s non-conviction sealing law is uniquely complex and restrictive

Last year, 20 states enacted reforms expanding access to expungement, record-sealing, and other forms of record relief. Many legislatures, including the District of Columbia Council, are considering reform proposals this session. Given the progressive steps taken by the District in the past year to expand opportunities for people with a criminal record to vote and obtain occupational licensing, we are optimistic that the Council will enact significant improvements to its lagging record-sealing law.

Compared to states across the country, DC’s record relief law is very prohibitive and unusually complex. First, its non-conviction sealing scheme is “one of the most restrictive” in the country (as we described it in our Model Law on Non-Conviction Records). Second, to seal a misdemeanor conviction, an 8-year waiting period must be satisfied (far longer than most states), and then a series of rules exclude individuals based on a long list of ineligible offenses and a variety of disqualifying prior and subsequent records. Finally, DC allows only a single specific felony conviction to be sealed,1 while 34 states allow a range of felonies to be sealed or expunged.

This post explains how DC’s law on sealing of non-conviction records in particular does not fare well in the national landscape.

Summary

Current DC law is out of step with national trends toward automatic and expedited sealing of non-conviction records at or shortly after disposition (approaches enacted last year in Kentucky and North Carolina, for example). It is also more complex and restrictive than analogous laws in almost every state in three primary areas:

  • The waiting period before a person may apply for sealing a non-conviction record is longer than in most states, and the effect that a prior or subsequent conviction has on extending the waiting period is unusually severe.
  • The provision ruling out sealing for a successfully completed deferred sentencing agreement based on the person’s other record is counterproductive and harsher than the norm.
  • The procedures and standards that apply in proceedings to seal a non-conviction record are more burdensome and restrictive than in any state, differing little from the procedures and standards that apply to sealing a conviction record.

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“A Plan to Restructure (and Revive) Pardoning After Trump”

The title of this post is the title of my second piece for Lawfare on the future of presidential pardoning after the unjust and irregular practices that characterized pardoning under President Trump.  In response to critics who urge that responsibility for pardon advice should be removed from the Justice Department, I argue for restoring the pardon program to its historic place as an independent and respected part of that agency, so it can be an effective counterweight to the punitive views of prosecutors that have in the past frustrated pardoning.  Reestablishing a functional institutional connection between the president’s power and the rest of the justice system will better serve both the presidency and the public interest in a more compassionate approach to criminal law enforcement. I suggest that Merrick Garland, whose Senate Judiciary Committee confirmation hearing to become attorney general begins on Monday, will understand how to reset the balance between pardon and justice to the benefit of both.

This is a follow-up to my Washington Post op ed, in which I argued that the presidential pardon power has been burdened with too many routine functions, and that the new administration should seek to restore a degree of practical efficiency to pardoning by working with Congress to reassign many of these functions to the courts — including shortening prison sentences and restoring lost rights.

The second piece is reprinted below:

A Plan to Restructure (and Revive) Pardoning After Trump

The overarching theme that emerges from four years of Donald Trump’s pardoning is an approach to government authority as transactional and personality based, rather than principled, structured, and process based. From the nation’s earliest days, unruly pardon has been harnessed to the rule-of-law virtues of the justice system, secured since the 19th century by its relationship to the Justice Department and by presidents respecting that relationship. Trump ostentatiously rejected that relationship from the start.

Trump not only detached the pardon power from the structure and operation of the justice system but he also used his power to challenge and frustrate that system. His pardons have been described by Bernadette Meyler as a throwback to the theatrical pardoning of the 17th century English kings and playwrights, enlarged and darkened by self-interest.

In the wake of Trump’s abusive and frequently haphazard pardoning, there have been calls to reform the process by which the president receives advice in pardon matters by stripping the Justice Department of its long-standing gatekeeper role. While reform of the pardon process is certainly in order, it would be a profound mistake to institutionalize Trump’s detachment of pardon from the justice system as these reformers urge.
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Sex offense registries in Europe and around the world

We are pleased to publish new research by Stephen Schulhofer about the treatment of sex offense registration in the UK, Canada, Australia, New Zealand, and the EU. The research, presented here with an introduction by Alessandro Corda, comes from material prepared for inclusion in an upcoming draft of the Model Penal Code: Sexual Assault and Related Offenses (full citation and disclaimer below).

Introduction: An Important Look at Foreign Policy and Practices Regarding Sex-Offense Collateral Consequences

By Alessandro Corda, Lecturer in Law, Queen’s University Belfast School of Law

The American Law Institute’s ongoing project aimed at reforming the Model Penal Code provisions on sexual assault and related offenses includes within its reach not only substantive criminal law provisions, but also collateral consequences applicable specifically to persons convicted of a sexual offense, in particular sex offense registries.

Sex offense registration and notification laws are a quintessential example of a collateral consequence of conviction that flourished during the so-called “tough-on-crime era.” The first sex offense registries in the United States were enacted in the late 1940s as a way “to inform the police of the whereabouts of habitual sex offenders.” The idea soon lost favor to so-called sexual psychopath laws. By the 1970s, however, such laws had likewise lost approval, “either being repealed or widely ignored as ineffective and unjust policies” (Hoppe, 2016, p. 577; see also Rice Leave, 2009). Everything changed in the 1990s, following high profile cases of abduction and sexual torture of children in the context of a climate of raising punitiveness.

The first state sex offense registration law was passed in Washington State in 1990 and applied to people convicted of certain sexual offenses. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act as part of the controversial Clinton Crime Bill, requiring states to implement sex offense registries. In 1996, the so-called Megan’s Law amended the 1994 Act to require each state to provide notification and information to communities about convicted sex offenders living in the area for public safety purposes.[*] Prior to that, individuals convicted of a sexual offense only had to register with local law enforcement agencies, with public notification procedures available under certain circumstances. The subsequent Sex Offender Registration and Notification Act of 2006 (SORNA), also known as the Adam Walsh Act, rewrote the law in its entirety to mandate the creation of a nationwide online registration and notification system and provided a set of minimum standards to be followed across the United States (Jones & Newburn, 2013, pp. 444-46; Logan, 2009, pp. 429 ff.). Since 2006, a number of federal bills have added to SORNA’s provisions to address issues such as online safety and international travel by registered individuals.

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Updated: “Who Must Pay to Regain the Vote? A 50-State Survey”

We are pleased to publish an update of our 50-state report on how unpaid court debt blocks restoration of voting rights lost as a result of a felony conviction:

Who Must Pay to Regain the Vote? A 50-State Survey

This report examines the extent to which state reenfranchisement laws consider payment of legal financial obligations (LFOs), including fines, fees, and restitution, in determining whether and when to restore voting rights to people disenfranchised due to a felony conviction. (Our national survey discusses and ranks each state’s general approach to loss and restoration of voting rights based on conviction.)

We first published this research in July 2020 during litigation over Florida’s 2018 voting rights ballot initiative, which many expected would restore voting rights to more than a million people disenfranchised because of a felony conviction. However, the initiative was interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which drastically limited its anticipated reach. A federal district court found this system unconstitutional, but the U.S. Court of Appeals for the Eleventh Circuit reversed that conclusion in a 6-4 decision.

During the appeal, an amicus brief by the State of Texas, joined by seven other states, asserted that “States across the country have similar rules [to Florida] for felon voting” and that the district court’s holding “called into question the widespread practice” of permanently disenfranchising people who are not able to “pay their debts to society.”  As we demonstrated in our original report and amicus brief, the assertions in the Texas brief were not well-founded: few states have laws like Florida’s that indefinitely deny reenfranchisement based on any unpaid debt related to a disqualifying conviction.

This updated report documents whether and to what extent unpaid LFOs restrict voting rights in each state, and reflects developments in California, where voters early this month passed a constitutional amendment to restore voting rights to those on parole; and in Iowa, where the governor in August issued an executive order to restore voting rights after completion of incarceration and supervision, regardless of payment of LFOs.

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Michigan makes sealing of convictions automatic, including for some felonies

On October 12, Michigan Gov. Gretchen Whitmer signed a series of bills that will dramatically reform that state’s “set-aside” authority, colloquially known as “expungement.” The bills will establish a new automatic mechanism to expunge certain convictions without a person having to ask for it, and significantly expand eligibility for expungement under the existing petition-based application system.

“This is a historic day in Michigan. These bipartisan bills are a game changer for people who are seeking opportunities for employment, housing, and more, and they will help ensure a clean slate for hundreds of thousands of Michiganders,” said Governor Whitmer. “This is also an opportunity to grow our workforce and expand access to job training and education for so many people. I am proud to sign these bills today alongside Lieutenant Governor Gilchrist and many of the bipartisan leaders who worked on them.”

“Everyone deserves the chance to build a good life for themselves and their families. But far too many people enter the criminal justice system and end up cut off from those opportunities and are pushed toward a cruel cycle of poverty and crime. That’s not right, and it creates bad outcomes for all of us,” said Republican House Speaker Lee Chatfield. “These bills are an important step to righting that wrong and helping good people who’ve paid their debt get back on their feet. I am glad we were able to find common ground on this important issue and deliver reform that will help people statewide.” 

It is estimated that the bills will make hundreds of thousands of Michiganders eligible for expungement for the first time, and that relief will be delivered automatically to a significant percentage of them when the automatic feature is expected to become operative in October 2022 (subject to necessary appropriation and a potential 180-day extension). The other bills signed into law, including one that streamlines expungement for marijuana misdemeanors, are effective immediately.

This legislative package makes Michigan the sixth state to enact an automatic conviction-sealing law covering a range of offenses. It also makes Michigan the third state to make relief automatic for some felony convictions, joining New Jersey and California. (An additional three states plus California have enacted more specialized laws to automatically seal low-level marijuana convictions.)

The specific provisions of the Michigan bills, as well as automatic sealing laws in other states, are discussed below.

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