Category: Finance & Banking

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A pardon celebrates the life of a public defender

One of the 12 pardons granted by President Obama on December 17 went to Albert Stork of Delta, Colorado, long-time advocate for indigent criminal defendants on the rural Western Slope.  Al Stork pled guilty in 1987 to filing a false tax return, and served six months in federal prison. While his conviction came about in an unusual way, what makes Al’s case so special is what he did with his life afterwards.

Al Stork’s conviction arose out of his family circumstances. In the early 1980s, one of his two older brothers was an elected prosecutor in Colorado’s Sixteenth Judicial District; the other was a fugitive from Colorado authorities, having spent most of his life (as Al put it) “either in jail or on the lam.” Al himself, then in his early 20s, was leading what his defense lawyer described years later as “an unexceptional and unmotivated middle class life,” working construction and selling a little marijuana on the side.

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“Arrests as Regulation”

Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the s3984426260_07b0b8ca51ame kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access.

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Indiana’s new expungement law the product of “many, many compromises”

In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country.  Under the new law, courts are empowered to “expunge” most criminal records, after waiting periods keyed to the seriousness of the offense.  The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere.  This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation.

We r150px-On_the_Banks_of_the_Wabash,_Far_Away,_sheet_music_cover_with_Bessie_Davis,_Paul_Dresser,_1897ecently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states.  Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation.  But in an age of bipartisan support for criminal justice reform, apparently anything can happen.   Read more

Second Amendment challenges to felon-in-possession laws

Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Collat_ConsequencesConsequences 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.

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Discipline for schoolgirls differs by race and skin tone

The New York Times this morning describes data from the U.S. Department of Education’s Office for Civil Rights showing that African-American girls tend to face more serious school discipline than white girls.  “For all the attention placed on problems that black boys face in terms of school discipline and criminal justice, there is increasing focus on the way those issues affect black girls as well.”  Black girls who get in trouble at school are also more frequently referred to the criminal justice system, where they can incur a criminal record that sticks with them into adulthood.

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‘Tis the season for . . . . some presidential forgiveness

IMG_0291It’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.

Federal agencies reportedly (mostly) satisfied with their collateral consequences

In 2013, the Justice Department launched its Smart on Crime Initiative, which included a call for federal agencies to review collateral consequences in their own rules and policies, to determine which could be narrowed or amended without jeopardizing public safety. According to an NPR report, the results of that long-anticipated review are now in:

Amy Solomon was appointed by Attorney General Holder to oversee the twenty federal agencies charged with reviewing their regulations and policies for potential changes. She reports that hundreds of regulations were reviewed, but the vast majority were deemed “appropriately tailored for their purposes,” including HUD’s discretionary housing policies. So far, only three agencies have submitted changes.

In assessing the “appropriately tailored” conclusion in the context of HUD housing policies, NPR reporter Monica Haywood tells the story of Maurice Alexander, a 67-year-old man who was turned away from subsidized housing in the District of Columbia based on a six-year-old misdemeanor threat conviction, despite guidance from HUD encouraging property owners and agents “to develop policies and procedures that allow ex-offenders to rejoin the community.” The HUD guidance urges property owners to consider all relevant information when reviewing applications from people with a criminal record, including evidence of rehabilitation and “probability of favorable future conduct.”

Haywood concludes that, “If Alexander’s case is any indication, owners may not be taking HUD’s advice.” Read more

“Justice Is Swift as Petty Crimes Clog Courts”

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

Collateral consequences and the curious case of Mark Wahlberg

Actor-producer Mark Wahlberg has filed an application for pardon with the Governor of Massachusetts, seeking forgiveness for a 25-year old assault conviction that occurred when he was 16 years old.   The “onetime ruffian from Dorchester”  bases his request for pardon on his rehabilitation and contributions to society since his conviction.  He also specifies his desire to avoid certain legal restrictions that he claims are impeding his business endeavors and civic activities.

By his own account, Mr. Wahlberg was a troubled teen who had a history of scrapes with the law by the time of the 1988 assault. He states in his pardon application that, if he
had not turned his life around with the help of “faith, hard work, and guidance from some incredible mentors,” he “would likely have ended up like so many of my childhood friends from Dorchester: dead or in prison for a prolonged period of time.”   He expresses remorse for his actions on the night of the assault, as well as “any lasting damage that I may have caused the victims.” He does not specify what that damage might have been, though news reports indicate that it was serious and possibly permanent.

As to his reasons for seeking a pardon, he claims that “my prior record can potentially be the basis to deny me a concessionaire’s license in California and elsewhere, “an important consideration given my personal involvement in various restaurant ventures,” presumably a reference to the fast-expanding chain of Wahlburgers.   He believes that, if pardoned, “I could not be denied a concessionaire’s license on the basis of my prior record,” which may or may not be the case.*

Wahlberg also proposes that a pardon would enable him to become “more active in law enfor
cement activities, including those that assist at-risk individuals.”  He states that only a full and unconditional pardon would, under California law, enable him to “obtain a position as a parole or probation officer.”  True enough, but an improbable ambition for an A-List movie star.  He disavows in his application any immediate interest in obtaining a firearms permit — leading this writer to wonder if one is required on location.

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Relief from sex offender registration and notification requirements

Collat_Consequences

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,[1] 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;[2] only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.”[3] 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.[4] In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25),[5] and in several states select registrant groups can seek early relief.[6] 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;[7] ten- and 25-year class registrants must satisfy their terms.[8]

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