The California legislature has approved, and sent to the governor’s desk for signature, a bill that would dramatically expand protections for people with a criminal record under the state’s Fair Employment and Housing Act (FEHA). Currently FEHA bars only discrimination that has a racially disparate effect. If signed by the governor as expected, the new law will independently prohibit discrimination based on criminal record by most public and private employers, subject to FEHA’s administrative enforcement scheme. California will become only the fourth state in the country to extend the full protections of its fair employment law to individuals with a criminal record. (The others are New York, Wisconsin, and Hawaii). Read more
Yesterday, in Commonwealth v. Muniz, __A.3d__ (Pa., July 19, 2017) (47 MAP 2016), the Pennsylvania Supreme Court held what for a long time has been obvious to many: that sex offender registration is punishment. Five Justices declared that Pennsylvania’s Sex Offender Registration and Notification Act’s (SORNA) “registration provisions constitute punishment under Article 1, Section 17 of the Pennsylvania Constitution — Pennsylvania’s Ex Post Facto Clause. The majority of the Court held in no uncertain terms:
1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.
This is a radical shift from prior Pennsylvania and federal law. Although the reasoning of the justices to get to this result is a little convoluted because several in the majority did not believe that the court even needed to address the Federal claim, the end result is clear. The decision directly affects roughly 4500 people in addition to Mr. Muniz.
The Pennsylvania Supreme Court, in a divided opinion, has held the provisions of the state’s sex offender registration law (SORNA) unconstitutional under the state and federal constitutions. The majority in Commonwealth v. Muniz held that 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution. The Court distinguished the Alaska registration scheme upheld by the U.S. Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), and cited a number of other recent state high court holdings invalidating similarly harsh registration regimes. The Court relied heavily for its analysis on an amicus brief filed jointly by the Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers (PACDL). CCRC also filed an amicus brief in support of the plaintiffs, describing the counterproductive effects of such registration schemes. The concurring and dissenting opinions are posted here and here.
A full analysis of the holding and of the concurring and dissenting opinions will follow shortly.
“The Supreme Court’s Mixed Signals in Packingham” is the title of a thoughtful comment by Bidish Sarma analyzing the Supreme Court’s recent decision in Packingham v. North Carolina, recently published on the American Constitution Society website. (An early analysis of the Packingham decision by Wayne Logan appeared on this site on June 20.) Mr. Sarma proposes that “the time has come to ask whether society’s ‘war’ on sex offenders who have already completed criminal sentences has gone too far.”
While the Packingham holding is confined to the First Amendment issues raised by North Carolina’s broad restrictions on access to “an astounding range of websites (including news websites, WebMD and Amazon),” Sarma singles out a sentence in Justice Kennedy’s opinion suggesting a broader underlying concern about the constitutionality of sex offender consequences:
Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”
A new California regulation took effect last week that puts employers on notice that adverse action based on criminal history may violate state law prohibitions on racial discrimination. The regulation closely tracks a 2012 guidance issued by the U.S. Equal Employment Opportunity Commission, which asserts that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity.
The California regulation adopts, in broad terms, the same position and standards put forth in the EEOC guidance, but applies them to the state’s Fair Employment and Housing Act (FEHA), which prohibits employment discrimination on grounds that are substantially similar to those enumerated in Title VII. Like the EEOC guidance, the new FEHA regulation sets forth a number of factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.”
The fact that the regulation was promulgated by the state’s Department of Fair Housing and Employment, which may sue to enforce the FEHA, may give California employers that have not already conformed their practices to the EEOC guidance an incentive to do so. Moreover, the new regulation ought to make it easier for individuals to challenge criminal history screening practices by giving them a clear basis for action under California law.
In 2010, Padilla v. Kentucky established that criminal defense lawyers must advise clients about the deportation consequences of a conviction, as part of their duties under the Sixth Amendment right to the effective assistance of counsel. Jose Padilla won in the Supreme Court because his trial lawyer erroneously informed him that he would not be deported after pleading guilty to drug trafficking because he had been in the U.S. for so long and had served in the military in Vietnam. However, Padilla’s case was remanded for a lower court determination of whether his trial lawyer’s incompetence caused him prejudice, since a defendant can win an ineffective assistance of counsel claim under the Court’s 1984 decision in Strickland v. Washington only by showing both attorney incompetence and prejudice.
Last week, in Lee v. United States, the Court considered the standard for proving prejudice, ruling in Lee’s favor in a 6-2 decision by Justice Roberts (Justices Alito and Thomas dissented). The Government conceded that Jae Lee’s trial lawyer failed to meet his duty under Padilla by assuring him that he would not be deported if he pled guilty to selling ecstasy. The only issue for the Court was the proper standard for proving prejudice when a defendant pleads guilty in a case involving strong evidence of guilt.
The Supreme Court has settled a dispute lingering in the lower courts since its decision seven years ago in Padilla v. Kentucky: If a criminal defendant’s decision to plead guilty resulted from his lawyer’s constitutionally deficient advice about the collateral consequences of conviction, what does he have to show to undo the plea and bring the government back to the bargaining table? The question before the Court in Jae Lee v. United States was whether a defendant facing deportation must be given a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, even though the odds of his winning at trial are low and he is likely to be deported anyway.
The government argued that no “rational” defendant in Lee’s position would have risked a longer prison term, that he therefore could not show that he was prejudiced by his lawyer’s bad advice, and that the plea should accordingly stand. Lee countered that “deportation after some time in prison was not meaningfully different from deportation after somewhat less time,” and that he would have taken his chances with the jury if he had had accurate advice about the consequences of pleading guilty. As the Court put it, he “would have rejected any plea leading to deportation in favor of throwing a ‘Hail Mary’ at trial.”
On June 23, the Supreme Court agreed that Lee should have another bite at the apple. In an opinion by Chief Justice Roberts, the Court held 6-2 that Lee had met his burden of showing that it would not have been “irrational” for him to reject the plea offer and go to trial, even though he would have been “almost certain” to lose.
The Court’s opinion is analyzed by Amy Howe at SCOTUSblog here. Justices Thomas and Alito dissented, and Justice Gorsuch took no part in the decision.
The title of this post is the Washington Post’s “Fact Checker’s” assessment of a statement in Justice Alito’s concurrence in Packingham v. North Carolina about the recidivism rates of sex offenders. We reprint excerpts because of the importance of the issue to the Supreme Court’s collateral consequences jurisprudence:
“Repeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’”
–Supreme Court Justice Samuel A. Alito Jr., concurring opinion in Packingham v. North Carolina, June 19, 2017
. . . . .
The Fact Checker normally doesn’t fact-check Supreme Court justices, and we certainly do not fact-check opinions. But the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.
What do the data show?
Departing from its customary reluctance to find fault with laws singling out convicted sex offenders for harsh treatment, after they have completed their sentences, the Supreme Court in Packingham v. North Carolina yesterday struck down a state law making it a felony for registered sex offenders to access commercial social networking websites. The petitioner in Packingham, a registered sex offender, violated the North Carolina law when after learning that a traffic ticket against him had been dismissed in court he posted the following message on his Facebook.com personal profile:
Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!
Packingham was convicted and thereafter challenged his conviction on First Amendment grounds, arguing that the law violated his right to free speech.
A new report examines successful efforts by corporations and government leaders to promote “fair chance” hiring policies for people with criminal histories. Back to Business: How Hiring Formerly Incarcerated Job Seekers Benefits Your Company reviews the latest research on the effect of a criminal record on employment interviews and on the job performance of workers with such records. The report summary continues:
Several case studies presented here show how fair chance policies can promote loyalty and stability in the labor pool. The report provides a roadmap for businesses seeking to create and sustain fair chance policies, including “banning the box,” or removing criminal history questions from job applications. It explains how hiring officers can effectively carry out this policy, and how to choose background check companies that use best practices in data collection. It analyzes racial bias that has been connected with “ban the box” policies, and how to eliminate such bias by training administrators involved in hiring processes. The report also outlines compliance requirements with federal equal employment rules as they apply to people with criminal records. And it examines the issue of negligent hiring liability and how to avoid such liability. Education is critical to job readiness, employee retention, and economic mobility. The costs of re-incarceration far exceed the costs of correctional education, and access to training and higher education have been shown to reduce recidivism and increase the likelihood of employment upon release. One case study describes how one college is developing inprison education programs under a federal pilot program and offers a model for making correctional education scalable. The report examines how partnering with workforce training and development programs can help employers succeed with employees who have been in prison. Many workforce development agencies offer training and counseling tailored to help these individuals transition into jobs. Lastly, the report provides recommended actions that businesses can take to create a fair chance for all.
The report was prepared by the Trone Private Sector and Education Advisory Council to the American Civil Liberties Union, with its partner organizations the Legal Action Center, the Lawyers Committee for Civil Rights Under Law, and the National Workrights Institute.