Category: Constitutional Law

NY judge rules police need court order to access sealed arrests

Last Tuesday, a New York court found that the New York Police Department’s routine use and disclosure of sealed arrest information violates the state’s sealing statute.  The case, R.C. v. City of New York, concerns plaintiffs whose information the NYPD used or disclosed after their arrests terminated favorably in dismissals or acquittals, after prosecutors declined to prosecute, or after cases resulted in non-criminal violations.  In New York City, over 400,000 arrests—nearly half of all arrests—were sealed between 2014 and 2016.  The lawsuit, brought by The Bronx Defenders, seeks to enforce the sealing statute’s protection of those records.

New York’s sealing statute—codified at Criminal Procedure Law §§ 160.50 and 160.55—requires that courts, prosecutors, and law enforcement agencies “seal” records when a case is terminated in a person’s favor or results in a non-criminal violation.  A “sealed” record “shall . . . not [be] made available to any person or public or private agency.”  The sealing requirement applies to “all official records and papers . . . relating to the arrest or prosecution . . . on file with the division of criminal justice services, any court, police agency, or prosecutor’s office.”  In addition, the statute requires that photographs and fingerprints be destroyed or returned to the formerly accused.

Despite the plain text of the statute, the NYPD has maintained, used, and disclosed information that should have been sealed, destroyed, or returned.  It has maintained this information in massive interconnected databases, some of which, like the “Domain Awareness System,” are deployed in every police precinct, on every officer smartphone, and in every police vehicle tablet.  It has used information in later police activity, allowing detectives to access and view sealed arrest information when investigating crimes.  And it has disclosed information both to prosecutors and the press—most prominently, about the victims of police shootings.

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PA high court will again review sex offender registration

Two years ago, the Pennsylvania Supreme Court shook up long-settled orthodoxy by ruling that the state’s sex offender registration law, otherwise known as SORNA (Sexual Offender Registration and Notification Act) was punishment. The case, Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2018), presented the Court with two questions: whether people who committed their crimes before the adoption of the law could continue to be registered without running afoul of the state Constitution’s Ex Post Facto Clause, a fairness doctrine that prevents governments from retroactively applying greater punishments to conduct than could have been applied at the time of the crime; and, second, whether the law more broadly violates due process by unfairly labeling a person as sexually dangerous without first proving that fact and without giving the person an opportunity to challenge that message. While the Court answered the first question with a resounding yes, it punted on the second.

The effect of that decision meant that although Pennsylvania was forced to reduce the length of registration for many people who had committed their crimes many years before, or in many cases remove them from the registry altogether, it did little to change how the law would be applied moving forward.  SORNA was largely left undisturbed for the roughly 1500 new people added to the registry every year.  The due process issue left undecided by the Pennsylvania high court in Muniz is now again before that court, and this time it will be harder to avoid deciding it.

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New book argues collateral consequences can’t be justified

University of Nottingham philosophy professor Zachary Hoskins has written an important new book about “collateral legal consequences” (CLCs), just published by Oxford University Press.  Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction engages cases and statutes from the United States and other countries, but it is primarily a philosophical interrogation of the legitimacy of CLCs, not an analysis of legal doctrine or constitutional limitations.

A core principle is the powerful one that harsh treatment and disadvantage requires justification, particularly when hardships are imposed on specific groups.  Beyond Punishment argues that CLCs could be justified as criminal punishment to some degree, but that legitimate punishment is that which is necessary and sufficient to pay one’s debt to society. The way CLCs actually operate in the United States often does not fit into this category.  First, CLCs are not characterized as punishment (and therefore are exempt from the constitutional limitations on criminal punishment) but as civil, regulatory measures.  Second, they are often imposed years after completion of the criminal sentence.

A non-punitive rationale might be that by breaching the social contract, people with convictions are not entitled to the benefits of that contract.  But this proves too much–because someone jaywalked in 1989 does not mean they can legitimately be robbed or defrauded today.  If breaching the social contract justifies only a proportional as opposed to an unlimited response, most CLCs go too far. Beyond Punishment also criticizes public safety as a justification for CLCs, for essentially the same reason: The more or less random and arbitrary imposition of collateral consequences is unduly harsh on some, while others who should be restrained for the same reason but have no criminal conviction are not subject to CLCs.

Beyond Punishment’s careful analysis and precise definitions make a strong case that CLCs are, as Justice Kennedy said about imprisonment itself, disabling “too many persons for too long.”  But the tradition of American constitutional jurisprudence, anyway, has not been to require rigorous fairness or precise justification for hard treatment.  Even with regard to incarceration, the Eighth Amendment’s prohibition on cruel and unusual punishment has not been much of a limitation on brutal sentences for minor crimes.  This is, to some extent, good news as well as bad.  While courts have proved, thus far, of only limited help in reining in collateral consequences and other criminal sanctions, legislatures are as unconstrained in repealing or mitigating them as they were in imposing them in the first place.  Legislators and voters, as well as students and lawyers, will be hard-pressed to justify our current system of CLCs after reading this book.

 

WA lifetime ban on childcare work held unconstitutional

On February 21, 2019, the Washington State Supreme Court declared that a state regulation imposing a lifetime ban from ever obtaining a childcare license, or having unsupervised access to children in childcare, is unconstitutional as applied to Chrystal Fields.  The lifetime ban was triggered by Ms. Fields’ 1988 attempted second degree robbery conviction for trying to grab a woman’s purse in front of a drugstore.  (The licensing agency has a list of 50 permanently disqualifying convictions, one of which is robbery; an attempted offense is treated the same as a completed offense.)  The court held that the licensing agency’s failure to conduct an individualized determination of Ms. Fields’ qualifications violated her federal right to due process.  Fields v. Dep’t of Early Learning, No. 95024-5 (Wash. Feb. 21, 2019).  The full decision is available here.  A brief discussion of the case follows.

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Sex offender registration litigation: punishment and free speech

In the past week, there were two notable developments regarding the constitutionality of state sex offender registration schemes.

First, as noted by Douglas A. Berman at Sentencing Law and Policy, Michigan Attorney General Dana Nessel filed highly significant amicus briefs in two Michigan Supreme Court cases, “arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.”  Both of the Michigan cases involve constitutional challenges under the Ex Post Facto Clause to the retroactive application of the state registration requirement.  Michigan v Snyder, No. 153696; People v. Betts, No. 148981.

In the second development, U.S. District Judge W. Keith Watkins of the Middle District of Alabama on Monday held that Alabama’s sex offender registration law (“ASORCNA”) violates the First Amendment by branding state-issued ID cards with “CRIMINAL SEX OFFENDER” and imposing extensive internet-use reporting requirements.  Doe v. Marshall, No. 2:15-CV-606-WKW (M.D. Ala. Feb. 11, 2019).  This case presents an interesting twist on the now-vulnerable theory espoused by the U.S. Supreme Court and many states that sex offender registration is not “punishment.”

These two caselaw developments are discussed further below.

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“Executive Clemency in the United States”

This is the title of CCRC Executive Director Margaret Love’s new article for the Oxford Research Encyclopedia.  The article describes the historic role played by the executive pardon power in reducing punishments (including collateral ones) and explains clemency’s diminished vitality and reliability in modern times in most states and in the federal system.  Love concludes that “[i]t appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.”

Here’s the abstract:

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“Wealth-Based Penal Disenfranchisement”

This is the title of an important new article by Professor Beth Colgan, forthcoming in the Vanderbilt Law Review, in which she documents how inability to pay economic sanctions associated with a criminal conviction (such as fines, fees and restitution) results in continuing disenfranchisement nationwide.  While the law in almost every state now restores the vote to those convicted of felonies no later than completion of sentence, and while fewer than a dozen states explicitly condition re-enfranchisement upon payment of court-imposed debt, Colgan shows how the link between re-infranchisement and conditions of supervision “significantly expands the authorization of wealth-based penal disenfranchisement across the country.”  Through a detailed analysis of interrelated laws, rules, policies and practices, including those related to conditions of probation and parole, she establishes that “wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia.”

After describing the mechanisms of wealth-based penal disenfranchisement, Colgan offers a legal theory for “dismantling” them.  She argues that courts have looked at these mechanisms “through the wrong frame—the right to vote—when the proper frame is through the lens of punishment.”  Applying the doctrine developed in cases restricting governmental action that would result in disparate treatment between rich and poor in criminal justice practices, she concludes that wealth-based penal disenfranchisement violates the Fourteenth Amendment.

The article’s abstract follows:

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Lawsuit challenges PA good-character requirement for cosmetologists

The Institute for Justice has filed a lawsuit on behalf of two women who were denied a license by the Pennsylvania Board of Cosmetology based on their criminal record, because they could not establish the necessary “good moral character.”  The IJ lawsuit illustrates the continuing difficulties faced by people with a past conviction in the workplace even when they are qualified and fully rehabilitated.  At the same time, in recent years Pennsylvania courts have not looked kindly on conviction-based employment bars, and last summer a board appointed by Governor Tom Wolf to review occupational licensing in the state issued a report critical of the good-character requirement in many licensing laws.  So perhaps the tide is turning.   

A piece in Forbes by IJ’s Andrew Wimer describes the case of Amanda Spillane, one of the two plaintiffs in the lawsuit:  As a teenager, Amanda started using drugs to self-medicate for mental health issues. Eventually, she turned to burglary to support her habit. She was caught, convicted and spent two years in a state correctional facility.  In prison, she overcame her addiction to drugs and found a new faith. After release, with help from family, she remained clean and worked a fast food job, before deciding to improve her prospects by taking a course to become an esthetician (a cosmetologist who focuses on the face), which required 300 hours of instruction and cost about $6,000.  In applying for a license, Amanda did not expect her past to be an issue; she knew cosmetology was a skill taught to women in prison.  But the Board of Cosmetology informed her that she lacked the requisite “good moral character” for licensure because of her criminal record. When she appealed, a board official “questioned whether her faith was real, demanded proof that Amanda gave regularly to charity, and asked why the people who had provided letters of recommendation had not traveled the two hours to the hearing to testify in person.”  Her appeal was denied.

On December 12, 2018, IJ filed suit on behalf of Amanda and Courtney Haveman—another Pennsylvania woman similarly rejected for a license—challenging the Pennsylvania law that requires applicants for esthetician, nail technician, and natural-hair barber licenses to “be of good moral character.”  Click here to read the complaint.  

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Justice Gorsuch on collateral consequences and due process

In Sessions v. Dimaya, 138 S. Ct. 1204 (2018), Justice Gorsuch provided the essential fifth vote to affirm a finding that the “residual clause” of the Armed Career Criminal Act was too vague to be applied in a deportation case. The residual clause defined a “crime of violence” as including “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” A crime constituting a crime of violence was deemed an “aggravated felony” requiring deportation and rendering a non-citizen ineligible for almost all forms of relief.

Justice Gorsuch’s concurring opinion contains at least two points important for the law of collateral consequences.  First, he is much more concerned with the seriousness of the deprivation rather than its categorization as civil or criminal when evaluating how much process is required under the Constitution.  Unimpressed with the line of cases that treated deportation as quasi-criminal, he notes:

grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions. Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer.

Id. at 1231 (Gorsuch J., concurring).1

His solution is to level up the process due (in this case, the necessary degree of specificity required of statutory provisions) in civil cases, rather than level down criminal protections: “any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedent’s current threshold than to suggest the civil standard should be buried below it.” Id. at 1229.

A second interesting point is his guidance for legislatures about how penalty clauses like the one at issue could be drafted.  He notes that “the statute here fails to specify which crimes qualify for [the label of crime of violence],” id. at 1231, and that “Congress remains free at any time to add more crimes to its list.” Id. at 1233.  Many collateral consequence provisions, among other statutes, have the character of the provision voided here: they disqualify based on a quite general description of the crimes that give rise to the consequence (e.g., crimes involving dishonesty), and ask courts or agencies to evaluate specific offenses one at a time to determine whether they fit the categorical criteria.  Only after that process of evaluation do we know whether the consequence applies.

Instead of courts or agencies guessing what legislatures had in mind, it would be perfectly practical instead for Congress and state legislatures, when drafting the law in the first instance, to go item by item through the criminal codes, actually determine whether specific provisions should result in disqualification, and provide a list of those triggering crimes in the statute creating the consequence.  This is the approach of a recent Kansas statute.  If Justice Gorsuch is right that the Constitution is structured to “ensure fair notice before any deprivation of life, liberty, or property could take place,” id. at 1228, this cataloging effort does not seem like too much to ask.

 

“Challenging the Punitiveness of ‘New-Generation’ SORN Laws“

Wayne Logan has a terrific new article on the recent challenges to sex offender registration and notification laws, forthcoming in the New Criminal Law Review.  Here is the abstract:

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.
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