Last week a federal judge heard the first arguments in a lawsuit challenging certain provisions of the recently-enacted International Megan’s Law (IML),* including one mandating that the passport of any American required to register for a sex offense involving a minor be marked in “a conspicuous location” with a “unique identifier” of their sex offender status. Other challenged provisions of the law authorize the Departments of Homeland Security and Justice to notify destination nations of forthcoming visits from those individuals. On Wednesday the court heard a motion for a preliminary injunction that would block enforcement of the challenged provisions of the law pending the suit’s final outcome. See Doe v. Kerry, Case 3:16-cv-00654 (N.D. Ca.).
We have recently converted the 50-state surveys that are part of the Restoration of Rights Resource from PDF to HTML format. Two of these surveys deal with loss and restoration of firearms privileges as a result of a criminal conviction: Chart # 1 is titled “Loss and restoration of civil rights and firearms privileges,” and Chart # 2 is “State law relief from federal firearms disabilities.” Chart # 1 is a straightforward description of the relevant provisions of each state’s laws, showing when firearms rights are lost based upon a felony conviction (or in some cases misdemeanor crimes of violence) and how firearms rights may be regained. Chart # 1 also describes for each state when conviction results in loss of basic civil rights (voting, eligibility for public office and jury service), and how those rights are regained — a matter that is frequently relevant for avoiding the independent penalties under federal firearms dispossession laws.
Chart # 2 attempts the more complex analysis of when criminal conviction results in exposure to federal prosecution as a “felon in possession” under 18 U.S.C. § 922(g). Regaining firearms rights under state law does not automatically result in avoiding the federal bar, which generally depends upon an additional measure of state relief such as a pardon or expungement, or restoration of civil rights. (The courts have generally held that automatic restoration counts.) Surprisingly, the law is not entirely clear as to when a state conviction will trigger the federal penalty, and when state relief removes it. Chart # 2 therefore emphasizes the importance of seeking legal counsel to avoid liability.
For those with a federal conviction, the only way to avoid liability under § 922(g) and regain the right to possess a firearm is through a presidential pardon (which would also relieve any state law liability). The administrative restoration provision in 18 U.S.C. § 925 has not been funded for 25 years. As reported by Alan Gura in a post on this site last winter, a few individuals with dated nonviolent federal convictions have been successful in regaining firearms rights through the courts.
The 50-state charts will remain available for download in PDF form.
A few days ago we received the following communique from Sharon Dietrich of Community Legal Services of Philadelphia, announcing a major litigation victory that will be welcome news across the country. On December 30 a unanimous 7-judge appeals court struck down the provisions of the Pennsylvania Older Americans Protective Services Act barring employment of people with criminal records in long-term health care facilities such as nursing homes and home health care agencies. The provisions declared unconstitutional on due process grounds law include lifetime employment bans for offenses as minor as misdemeanor theft, which Sharon notes “prevented many Pennsylvanians with criminal records from working in that entire burgeoning field.” The decision in Peake v. Commonwealth is here, and NPR’s report on the decision is here.
UPDATE: Governor Matt Bevin rescinded Governor Beshear’s order on December 22, 2015, saying:
While I have been a vocal supporter of the restoration of rights, it is an issue that must be addressed through the legislature and by the will of the people.
Governor Bevins went on to sign a major felony expungement bill in April of 2016 that gives many with felony convictions the chance to restore their voting rights.
The outgoing Democratic governor of Kentucky has signed an executive order restoring the right to vote and hold public office to thousands of people convicted of non-violent felonies who have completed their sentences. The order from Gov. Steve Beshear — who leaves office next month — estimates that about 180,000 people in Kentucky have served their sentences yet remain disenfranchised. As a result of the order, 140,000 of those will become immediately eligible to register.
Before today, all convicted individuals were required to apply to regain their right to vote to the governor’s office, which approved restoration of voting rights on a case-by-case basis. The order does not restore rights to those convicted of specified violent crimes, sex offenses, bribery or treason, who will still have to apply for discretionary restoration.
“All of our society will be better off if we actively work to help rehabilitate those who have made a mistake,” Beshear said. “And the more we do that, the more the entire society will benefit.”
Can people restored to full legal status in one state expect their status to be recognized if they move to another state, just as marriage is generally given interstate recognition? Can a person convicted in one state qualify for restoration of rights in another? What about a federal offender seeking relief under state law, or a state offender seeking relief from federal collateral consequences? Is there a role for Congress to play in ensuring fair treatment of people with a criminal record as they move around the country? These questions are increasingly important both as a practical and theoretical matter, as collateral consequences multiply and begin to limit Americans’ right to travel.
So it is timely that Wayne Logan, a Florida State University law professor widely known for his work on sex offender registration and other collateral consequences, has published a fascinating new treatment of the issue titled ‘When Mercy Seasons Justice’: Interstate Recognition of Ex-Offender Rights. The article, which appears in the UC Davis Law Review, examines the impact of federalism on the ability to obtain true relief from the collateral consequences of conviction in a mobile society. It is an issue that is widely overlooked, and the article reminds us that a comprehensive discussion about the impact of collateral consequences must take into account their inter-jurisdictional effects. The true impact of collateral consequences and relief mechanisms must be measured by the interplay of laws between jurisdictions as well as by the interplay of laws within them. Read more
Yesterday President Obama participated in a panel discussion of criminal justice issues moderated by Bill Keller of The Marshall Project and streamed to the public. While the subject of clemency did not come up during the videotaped panel discussion, in a prior interview with Keller the President said that he intended to “speed up the process” of considering prisoner petitions seeking commutation of sentence. At the same time, he again signaled that he was not similarly interested in cases involving dated convictions where a petitioner is seeking pardon to relieve collateral consequences:
The Justice Department has decided to pursue its appeal of Judge John Gleeson’s May 21 order expunging the conviction of a woman who could not keep a job because of her criminal record. Its brief in U.S. v. Doe (Jane Doe I) can be accessed here.
Meanwhile, briefing is underway in Judge Gleeson’s second expungement case (Jane Doe II), in which he has also asked the parties and a “policy expert” to advise him on his authority to issue a “certificate of rehabilitation.” Judge Gleeson commented to the New York Times on the general problem of collateral consequences:
“As a society we really need to have a serious conversation on this subject of people with convictions’ never being able to work again,” Judge Gleeson wrote in an email. “A strong argument can be made that the answer to this problem should be more systemic, through legislation, not on a case-by-case basis in individual judges’ courtrooms.”
Petitioner’s brief in Jane Doe II is due on October 5, the brief of the “policy expert” is due on October 8, and argument has been scheduled for October 15. The government’s brief is here, and briefs of petitioner and amicus will be posted here when filed.
Slate has posted a new piece by Leon Neyfakh entitled “The Pardon Process Is Broken.” The piece points out that “presidents are granting clemency far less often than they once did,” and asks “Why?” It answers its own question by distilling an article by Margaret Love to be published in the Toledo Law Review, which argues that the low grant rate reflects overwhelmingly negative recommendations from the Justice Department. In response to Slate’s invitation, Justice had the following comments on Love’s proposal:
The mission of the Department of Justice is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. The work of the Office of the Pardon Attorney is an integral part of the Department’s mission.
These comments seem to concede the point that the Office of the Pardon Attorney has ceased to operate as an independent source of advice for the president in clemency matters, but instead has become an extension of the law enforcement agenda of the Department’s prosecutors. They evidence the key role the Justice Department has played in the atrophy of the constitutional pardon power.
The Guardian has published a detailed account of a case in the queue awaiting consideration by the President for commutation of sentence. Ray Bennett was convicted in 1991 of acting as a courier for a crack cocaine distributor, and sentenced to life in prison based on two prior state misdemeanors. “The judge who sentenced Bennett did his duty reluctantly, saying the drug runners were ‘just country folks’ and not the major traffickers that Congress likely had in mind.”
Bennett has now served more than 24 years in prison, has an exemplary record of conduct while incarcerated, and has long since conquered the addiction to drugs that led to his conviction. His clemency application was filed with the Pardon Attorney through Clemency Project 2014 in early April. We reprint substantial portions of the Guardian article to show the kinds of cases that may be acted on by the President in coming months.
This piece was originally published in The Crime Report on July 13, and republished in revised form on July 16.
On Monday President Obama announced in a video address that he had commuted the sentences of 46 people sentenced to long prison terms for drug offenses. His counsel, Neil Eggleston, stated that “While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.“
Mr. Eggleston added that “the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.” However, judging from his speech to the NAACP the next day, clemency is the only one of those tools that is calculated to result in any more prison releases.