The REDEEM Act, introduced in the US Senate in March by Senators Corey Booker (D–NJ) and Rand Paul (R–KY), seeks to expand employment opportunities for those with federal criminal records by giving federal courts sealing authority. Because courts have generally held they do not have inherent authority to seal records — at least where an arrest or conviction is valid — the Act would open an entirely new avenue of relief from many of the collateral consequences that result from a federal arrest or conviction. While in the past similar bills have not made it out of committee, the attention that criminal justice reform is currently receiving on the national political stage and the REDEEM Act’s bipartisan support could give the Act a fighting chance.
The Act, as introduced, is not without its flaws. Chief among them are its vague definition of what crimes are eligible for relief, the broad discretion courts would have to deny relief for eligible offenses, the significant exceptions to the confidentiality of sealed records, and the uncertain effect of sealing on collateral consequences. The good news is that the Act’s defects are not structural and can be easily remedied through the legislative process.
This post contains a nuts and bolts overview of the Act. In subsequent posts, we will take a closer look at ways the Act could be improved. Since the procedures and eligibility criteria applicable to adult and juvenile offenses differ in significant ways, we look at each in turn. Read more
The editors of the New York Times are critical of Maryland Governor Larry Hogan’s recent veto of a law that would have allowed anyone with a felony conviction to vote if they are living in the free community. See “A Bad Voting Ban,” June 1, 2015. Maryland’s law now disenfranchises anyone convicted of a “felony and . . . actually serving a court-ordered sentence of imprisonment, including any term of parole or probation, for the conviction.” The Times editorial points out that Maryland changed its law to restore voting rights automatically upon completion of sentence in 2007, and that disenfranchisement based upon conviction is generally a punitive relic of slavery.
So if felony disenfranchisement laws are punitive relics, why should they be applied to anyone, even people who are still in prison? The logic of the Times editors’ position would seem to support voting by prisoners, as happens in Vermont and Maine and in many parts of Europe. An argument against voting by prisoners based on disenfranchisement as an integral part of court-imposed punishment would apply equally to probationers and parolees. The notion that prisoners no longer have a connection to their communities is a self-fulfilling prophecy that runs against current policies of encouraging prisoner reentry. If there are practical reasons to bar prisoners from jury service and political office, they do not apply to voting when absentee ballots have become commonplace.
Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods. If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison. Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt.
In December 2014, Amy Solomon, Senior Advisor to the Assistant Attorney General for the Office of Justice Programs in the Justice Department, testified before the U.S. Senate Addiction Forum about the review of collateral consequences federal agencies had been conducting under the auspices of the Federal Reentry Council. She reported that most of the agencies participating in the review had concluded their collateral consequences were “appropriately tailored for their purposes.” However, she also reported that Small Business Administration (SBA) had proposed amendments to its regulations to allow people on probation or parole to qualify for loans from its microloan program. (The change, proposed almost a year ago, has still not become final.)
We decided to take a look at the SBA’s proposed rule change, and at the SBA regulatory scheme more generally, to see how having a criminal record affects small business eligibility for government-backed loans. Read more
The Vera Institute has issued a first-rate assessment of the effect of the Rockefeller drug law reforms in New York City. See End of an Era? The Impact of Drug Law Reform in New York City. The report found that as a result of the reforms far more people were diverted out of the justice system and into treatment, thus avoiding conviction and the attendant collateral consequences. On the other hand, for those not diverted, the report found that the repeal of mandatory minimums led prosecutors to look for other ways to leverage plea bargains, leading to more felony convictions and more severe collateral consequences than under the old laws. Sentencing reformers in other jurisdictions should take note.
A recent issue of Governing Magazine reports that pardoning is “making a comeback” after decades of neglect. It would be nice if it were true.
But the evidence of comeback is thin. Almost all of the jurisdictions where pardoning is thriving today are the same ones where it was thriving a decade ago. In a dozen states, including Connecticut, Delaware, Georgia, Nebraska, South Carolina and South Dakota, pardon has never been neglected, much less abandoned by responsible officials. In these jurisdictions and a handful of others, pardon has deep roots in the justice system and is supported by accountable institutions of government.
It is certainly true that Pat Quinn of Illinois and Jerry Brown of California have made generous use of the power of their office after years in which the pardon power in their states languished unused. Terry McAuliffe of Virginia is a newcomer to the small group of governors who evidently feel that pardoning is a responsibility of office. All three are to be commended for it. But three swallows do not make a summer.
Michigan spends one in five tax dollars on corrections so the state continues to explore strategies to safely reduce these costs. In its most recent session, the legislature considered bold criminal justice reforms, but strenuous last minute objections from the Attorney General succeeded in halting much of the reform agenda. In the end, only a few reforms were implemented and most of them were passed in watered-down form.
The new laws include (1) the establishment of a Criminal Justice Policy Commission; (2) narrow expansion of set-aside eligibility to victims of human trafficking; and (3) authorization for Certificates of Employability for prisoners who complete certain in-prison training programs. A more ambitious (though still narrow) expansion of the set-aside law is currently on the Governor’s desk for signature. These “baby steps” leave lots of room for improvement, but constitute a blueprint for future reform efforts.
Beginning January 1st, 2015, many Minnesotans will have a meaningful shot at a second chance through criminal records expungement. For decades, many individuals have relied upon (and often languished under) a court’s inherent authority to expunge (or seal) criminal records, but recent Minnesota Supreme Court decisions effectively eviscerated that remedy. Without a legislative act expressly granting judicial authority to seal records held within executive branch agencies, the majority of petitioners were granted orders sealing only court records—leaving numerous publicly accessible criminal records untouched.
The new law, passed with bipartisan support and building upon momentum gained with last year’s Ban the Box for private employers, changes that. It provides new authority for expunging (sealing) both criminal and juvenile records held by executive branch agencies; requires data mining companies to observe expungements, protects employers and landlords hiring and renting to individuals with expunged records, addresses victimization and housing evictions, and clarifies a number of procedural issues. The standard for granting expungement remains that under current law, requiring the court to balance private and public interests.
While by no means a silver bullet, this new legislation will help a significant number of Minnesotans currently locked out of employment, housing, licensure, education, and countless other of life opportunities, by providing a true opportunity for a second chance.
Here is an explanation of the new law’s specific provisions.
Eliza Hersh, director of the Clean Slate Clinic at the East Bay Community Law Center and one of CCRC’s contributing authors, has co-authored a most persuasive op ed in the LA Times, which we are pleased to reprint here in full.
Should a shoplifting conviction be an indelible scarlet letter? Not in California
What exactly is the appropriate punishment for someone who commits a low-level, nonviolent crime? Should a conviction for minor drug possession, shoplifting or writing a bad check result in a lifetime of stigma and denied opportunities, or do people with criminal records deserve a second chance?
The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction. The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford.