Category: Policy

Marijuana decriminalization drives expungement reform

The national trend toward expanding opportunities for restoration of rights after conviction has continued to accelerate throughout 2018.  By our count, so far this year alone 31 states have broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  On November 6, Florida could take the most politically momentous step of the year if its voters approve a ballot initiative amending the state constitution to re-enfranchise more than a million and a half individuals who are now permanently barred from voting because of a past felony conviction.  We expect to publish a full report on these 2018 reforms, similar to the report we published last winter on 2017 laws, by the end of the year.  Expect it to feature the broad occupational licensing reforms enacted in more than a dozen states since last spring.

Another important series of second chance reforms this year has accompanied marijuana decriminalization.  These reforms are documented and analyzed by Professor Douglas Berman in an important new paper titled “Leveraging Marijuana Reform to Enhance Expungement Practices.”  Published in a symposium issue of the Federal Sentencing Reporter devoted to various aspects of collateral consequences and criminal records management, Professor Berman’s paper showcases issues that will becomes increasingly important as the War on Drugs winds down.  Professor Berman is the executive director of Ohio State University’s Drug Enforcement and Policy Center, whose official launch is November 2.  We expect that the Center under his management will give restoration of rights an important place on its policy agenda.

The abstract of Professor Berman’s article follows:  Read more

NJ AG tells prosecutors collateral consequences may determine which marijuana violations to pursue

New Jersey Attorney General Gurbir Grewal recently issued new Guidance reminding municipal prosecutors that they cannot categorically refuse to prosecute marijuana cases while the Legislature is considering proposals relating to decriminalization.  That said, the guidance reminds prosecutors that they have considerable discretion when deciding which maijuana cases to pursue.  While this advice is fairly standard stuff, the second half of the guidance document is a fascinating glimpse into prosecutorial decision-making as it relates to collateral consequences.  It follows a growing scholarly and legal consensus calling for opening the “black box” that is the prosecutorial mindset. For too long, the thought-processes behind prosecutorial decisions have eluded the public eye.

In essence, the guidance advises that the decision whether or not to bring charges may depend upon a defendant’s exposure to severe collateral consequences if convicted. Recognizing that prosecutors should consider collateral consequences brings their obligations closer to those imposed on defense attorneys by the Supreme Court eight years ago in Padilla v. Kentucky. Padilla required defense attorneys to know the immigration consequences faced by their clients or risk being labeled constitutionally ineffective. Many defense attorneys, public defenders, and legal aid organizations have devoted substantial effort to ensuring their clients know about housing, employment, educational, and other consequences that might attach to a conviction.

But any public defender can tell you that reliance on overburdened defense and legal aid attorneys to warn defendants and educate prosecutors about collateral consequences is bound to frustrate the goal of increasing systemic literacy.  The value of the new AG guidance is in placing a burden on prosecutors to discover and take into account the effect of collateral consequences in particular cases in deciding whether or not to prosecute.

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Vermont AG supports opportunities for diversion and expungement

Vermont Business Magazine recently showcased the leadership shown by Vermont Attorney General TJ Donovan in criminal justice reform.  Most notably, he has streamlined the process for seeking expungement, and increased opportunities to avoid a record entirely through greater use of diversion for less serious offenses.  The importance of enabling people to avoid a criminal record altogether through these two mechanisms cannot be overstated.  Donovan also championed last year’s bail reforms that will ensure low-income individuals are not held in jail prior to trial simply because they are poor. The article is worth posting in full as an illustration of a new breed of prosecutor committed to reducing the ill effects of the “tough on crime” era on individuals and communities least able to overcome them.

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Expungement in Indiana – A radical experiment and how it is working so far

Note: This is the first of what we anticipate will be a series of reports on some of the more progressive restoration schemes enacted in the past several years.  

Marion County Deputy Prosecutor Andrew Fogle says the four years since Indiana enacted a broad “second chance” law have been like “the Wild West.”  Fogle, who oversees petitions for expungement for his office in Indiana’s most populous county, agreed to be interviewed about what may be the Nation’s most comprehensive and creative scheme to overcome the adverse effects of a criminal record.  We also spoke about the law to a number of criminal defense attorneys and legal service providers in the State.  

Indiana’s expungement law, first enacted in 2013 and amended several times since, extends to all but the most serious offenses, although the effect of relief as well as the process for obtaining it differs considerably depending on the offense involved.  Perhaps most important, the term “expungement” doesn’t have the same meaning in Indiana as it has in most states, because it doesn’t necessarily result in limiting access to the record.1

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New report: 50-state guide to expungement and restoration of rights

CCRC is pleased to announce the publication of its 50-state guide to expungement and restoration of rights: “Forgiving and Forgetting in American Justice.” This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative.  Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief.  Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country.  We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy.  It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

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National law reform proposal on collateral consequences

A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction.  The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences.  [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.]

In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief.   As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences.  The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone searching for innovative ways to lighten the burden of a criminal record.

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Justice Department will enforce limits on landlord background checks

Earlier this year the U.S. Department of Housing and Urban Development (HUD) issued new guidance asserting that housing policies that exclude people with criminal records may violate the non-discrimination provisions of the federal Fair Housing Act (FHA) if they fail to consider the nature, severity, and recency of criminal conduct and if they are not narrowly tailored to protect residents or property.  The Justice Department has taken the first step toward judicial enforcement of this guidance.

On October 18 the Department’s Civil Rights Division filed a Statement of Interest in Fortune Society v. Sandcastle Towers Housing Development, a federal civil rights suit brought in the Eastern District of New York against a Brooklyn provider of low-income housing, claiming that it has a blanket policy of refusing to rent to individuals convicted of any non-traffic crime.  The Statement urges the court to decide the case based on the legal framework set forth in the HUD guidance, which employs a three-step analysis to determine whether criminal history-based housing exclusion policies amount to illegal racial discrimination prohibited by the FHA.

Though the Statement does not address the factual dispute at issue in the case, it adopts HUD’s position that blanket bans based on criminal history are likely to violate the law in failing to require an individualized assessment of applicants, because African-American applicants are more likely to have criminal histories than their white counterparts.

When the HUD guidance was issued, we predicted that it would effectively end the use of criminal background checks to automatically exclude potential renters, and greatly expand housing opportunities for all people with criminal histories, regardless of their race.  The Justice Department’s strong endorsement of the guidance is a hopeful step in that direction.  

We reprint the Department’s press release below:

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Illinois health care licenses elude those with records

2000px-Seal_of_Illinois.svgThe Illinois legislature has been generally progressive in enacting measures to help people with a criminal record avoid being stigmatized for life.  In 2003, as a state senator, President Obama sponsored one of the earliest of these measures, authorizing courts to grant certificates relieving collateral consequences. In 2011, however, Illinois took several steps backwards when it enacted legislation automatically barring some criminal record holders from ever working in a variety of licensed health care fields.  The law has since become the subject of litigation and further legislation that leaves many would-be medical licensees to face an uncertain future.

What follows is a description of the law’s enactment, subsequent court challenges, and potential legislative fixes.

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Judge Gleeson to speak about collateral consequences

Capitalizing on the growing interest in the employment discrimination faced by people with a criminal record, Cornell University’s ILR School will host a program next month featuring Judge John Gleeson on “The Role of Courts in Managing Collateral Consequences.”  Details of the program, which will take place in Manhattan on September 29, are here.  Last year, Judge Gleeson expunged the conviction of a woman he had sentenced 13 years before, and later issued a “federal certificate of rehabilitation” to one of the woman’s codefendants. While the 2nd Circuit recently reversed Judge Gleeson’s expungement order, the government did not appeal his certificate order.

Participating with Judge Gleeson on the Cornell program are New York Supreme Court Justice Matthew D’Emic, who recently presided over a mass certificate ceremony in Brooklyn; and Michael Pope, Director of Legal Services for Youth Represent, who last month won a significant victory for a woman whose shop-lifting conviction had resulted in her rejection as a school bus attendant in New York City.  Ted Potrikus, President and CEO of the Retail Council of New York State, and Margaret Love, Executive Director of the CCRC, will also participate.  Registration is now open for the program, which carries CLE credit. Read more

“Racial profiling in hiring: A critique of new ban-the-box studies”

In June we covered two recent studies that concluded ban-the-box policies tend to decrease minority hiring because some employers use race as a proxy for criminal history.  In other words, in the absence of information about applicants’ criminal history, some employers assume that minority applicants have a record and exclude them on this assumption.  The result is that ban-the-box policies increase opportunities for whites with a criminal record but decrease them overall for minorities, and thus encourage unlawful discrimination.  Some observers, including one of the study authors, advocated for the repeal of ban-the-box policies based on those conclusions.  Last week, the National Employment Law Project (NELP) published a critique of those studies, pointing out that any adverse effect on racial minorities is ultimately the product of unlawful discrimination barred by Title VII of the Civil Rights Act of 1964, not banning the box.  In NELP’s view, the solution is “a robust reform agenda that creates jobs for people with records and dismantles racism in the hiring process, not [rolling] back the clock on ban-the-box.”  We republish the summary and introduction of NELP’s critique below.  

 

Two recent studies claim that “ban the box” policies enacted around the country detrimentally affect the employment of young men of color who do not have a conviction record.  One of the authors has boldly argued that the policy should be abandoned outright because it “does more harm than good.” It’s the wrong conclusion.  The nation cannot afford to turn back the clock on a decade of reform that has created significant job opportunities for people with records.  These studies require exacting scrutiny to ensure that they are not irresponsibly seized upon at a critical time when the nation is being challenged to confront its painful legacy of structural discrimination and criminalization of people of color.

Our review of the studies leads us to these top-line conclusions: (1) The core problem raised by the studies is not ban-the-box but entrenched racism in the hiring process, which manifests as racial profiling of African Americans as “criminals.”  (2) Ban-the-box is working, both by increasing employment opportunities for people with records and by changing employer attitudes toward hiring people with records.  (3) When closely scrutinized, the new studies do not support the conclusion that ban-the-box policies are responsible for the depressed hiring of African Americans.  (4) The studies highlight the need for a more robust policy response to both boost job opportunities for people with records and tackle race discrimination in the hiring process—not a repeal of ban-the-box laws.

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