It’s time for another scholarship round-up! A more complete collection of scholarship on issues relating to collateral consequences and restoration of rights can be found on our “Books & Articles” page.  (Abstracts follow list of articles.) Past round-ups here.

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Measuring the Creative Plea Bargain

Thea Johnson, University of Maine School of Law
Indiana Law Journal, Vol. 92, 901 (2017)

Dismissals as Justice

Anna Roberts, Seattle University School of Law
Alabama Law Review (Forthcoming)

Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement

Brian M. Murray, University of Pennsylvania Law School
86 Fordham Law Review (Forthcoming)

Criminal Record Questions in the Era of “Ban the Box”

Mike Vuolo, Ohio State University
Sarah Lageson, Rutgers University
Christopher Uggen, University of Minnesota
16 Criminology & Public Policy 139 (2017)

The President’s Role in Advancing Criminal Justice Reform

Barack Obama
130 Harvard Law Review 811, 838 (2017)

Obama’s Clemency Legacy: An Assessment

Margaret Colgate Love
29 Federal Sentencing Reporter (forthcoming 2017)

Designed to Fail: The President’s Deference to the Department of Justice in Advancing Criminal Justice Reform

Rachel E. Barkow, New York University School of Law
Mark William Osler, University of St. Thomas – School of Law (Minnesota)
William & Mary Law Review, Vol. 59 (2017)

Expungement, Defamation and False Light: Is What Happened before What Really Happened or Is There a Chance for a Second Act in America?

Loyola University Chicago Law Journal (Forthcoming)
Doris Del Tosto Brogan, Villanova University School of Law

Leading with Conviction: The Transformative Role of Formerly Incarcerated Leaders in Reducing Mass Incarceration

Susan P. Sturm, Columbia Law School
Haran Tae, Yale University Law School
Columbia Public Law Research Paper No. 14-547 (2017)

Legal Aid with Conviction: How to Combat Barriers to Reentry by Using the Law

Vidhi Sanghavi Joshi, Legal Aid Society of Middle Tennessee
Clearinghouse Article, Sargent Shriver Center on Poverty Law (June 2017)

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Measuring the Creative Plea Bargain

Thea Johnson, University of Maine School of Law
Indiana Law Journal, Vol. 92, 901 (2017)

Abstract:

 

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. Through in-depth interviews with twenty-five public defenders in four states, I investigate the ways in which collateral consequences impact the negotiation of the plea. What emerges is a picture of creative plea bargaining that takes into account a host of noncriminal sanctions that fall outside of the charge and sentence. Public defenders assess the priorities of their clients — regarding both the direct and collateral consequences of the case — and piece together pleas that meet these varied needs. The length of sentence after a plea does not tell the full story about whether a defendant got a good deal because a successful plea now encompasses much beyond the final sentence.

These findings have broad implications for the way we think about assessing public defense offices and individual defenders. Much of what goes into a plea — particularly at the misdemeanor level — is a product of the client’s desire to avoid certain collateral consequences, and those desires generally do not enter the formal record or off-the-record negotiations with prosecutors. As a result, pleas that look bad on paper may actually be meeting the needs of the client. Therefore, in order to assess pleas and the defenders who negotiate them, we must understand the limits of publicly available data and focus on creating a more robust data set by which to judge public defenders. Additionally, this Article provides a fuller picture of prevailing professional norms at the plea phase after Padilla, Lafler, and Frye. As courts grapple with the role of the defense attorney during plea bargaining, it is critical that they understand that in many cases lawyers achieve optimal outcomes by providing advice and advocacy for their clients on concerns outside of the immediate criminal case. Finally, this Article serves as a renewed call for attention and funding for the holistic model of public defense.

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Dismissals as Justice

Anna Roberts, Seattle University School of Law
Alabama Law Review (Forthcoming)

Abstract:

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.

Second, these cases converge on shared principles of justice. These principles conjure a vision of a very different criminal justice system: one in which an alleged criminal act is viewed not in isolation, but within a broader context that includes the apparent motivations for it, the state’s role in and response to it, and possible responses other than the criminal law. There is no logical reason to confine these principles to this procedural context, and the Article urges their broader consideration.

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Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement

Brian M. Murray, University of Pennsylvania Law School
86 Fordham Law Review, Vol. 86 (Forthcoming)

Abstract:

Criminal record history information pejoratively brands those who contact the criminal justice system, whether they were guilty or not. In theory, the remedy of expungement is designed to mitigate the unanticipated, negative effects of a criminal record. But the reality is that prosecutors — driven by a set of incentives that are fundamentally antithetical to expungement — control many of the levers that determine who is able to obtain expungement. The disjunction between the prosecutorial mindset and the minister of justice ideal could not be starker and the consequences can be significant. Prosecutors, as agents of the state, can either argue forcefully for the retention or deletion of such information, dramatically affecting the situation of an arrestee or ex-offender given the pervasive web of collateral consequences associated with a criminal record. This discretion, as it relates to theories of punishment, prosecutorial discretion overall, the ethical responsibilities of prosecutors to do justice, and public policy interests, has been grossly under-analyzed despite the serious implications it has for the prosecutorial role within the criminal justice system and for reentry efforts.

While many scholars have paid attention to how prosecutorial incentives conflict with the theoretical responsibilities of prosecutors in charging, plea-bargaining, and post-conviction situations involving innocence, none have provided a theoretical framework focused on the role of the prosecutor during expungement. Many of the complicated incentives that undermine holistic prosecution during those earlier phases exist during the expungement process as well. But scholarly responses to those incentives are not adequate given the range of considerations during the expungement phase. As such, this Article argues that scholarly discussions related to prosecutorial discretion need to extend their focus beyond the exercise of prosecutorial judgment pre-trial or the questions of factual and legal guilt. Given that the primary role of the prosecutor is to do “justice,” this Article calls for increased attention to the exercise of discretion after the guilt phase is complete, specifically in the context of expungement of non-conviction and conviction information. In doing so, it hopes to provide a framework for exercising such discretion, and to initiate additional conversation about the role of prosecutors during the phases following arrest and prosecution.

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Criminal Record Questions in the Era of “Ban the Box”

Mike Vuolo, Ohio State University
Sarah Lageson, Rutgers University
Christopher Uggen, University of Minnesota
16 Criminology & Public Policy 139 (2017)

Research Summary:

This study examines three central questions about criminal record inquiries on job applications, which is a rapidly developing area in criminology and public policy. We find the following: (1) Among the 78% of employers who ask about records, specific application questions vary greatly regarding the severity and timing of offenses. (2) Applications for restaurant positions are least likely to inquire about criminal histories, whereas racially diverse workplaces and establishments in the most and least advantaged neighborhoods are more likely to ask. (3) The race gap in employer callbacks is reduced when applicants have the chance to signal not having a record by answering “no,” which is consistent with theories of statistical discrimination.

We conclude with a call to develop standards and best practices regarding inquiries about juvenile offenses, low-level misdemeanor and traffic offenses, and the applicable time span. The need for such standards is made more apparent by the unevenness of criminal record questions across employees, establishments, and neighborhoods. We also suggest best practices for Ban the Box implementation to help combat potential statistical discrimination against African American men without records.

Have you been convicted of a felony using your current name or any other name? If you do not answer this question, your application will not be considered. —Job application for laborer position at waste management company

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The President’s Role in Advancing Criminal Justice Reform

Barack Obama
130 Harvard Law Review 811, 838 (2017)

Excerpt (p. 838 et seq.):

Beyond prison and sentencing reform, we need to do more as a country to help people who have served their time put their lives back on track. Not only is it the right thing to do, but giving former inmates the tools they need to lead law-abiding lives is also a direct investment in public safety. This is an area where the federal government can and should lead the way, and it is only growing in importance. Even as the national prison population has leveled off, the population of those with a felony record outside prison has reached almost 20 million. Studies suggest that this number represents over 6% of adults and over 25% of African American men, and these figures do not include those with misdemeanors or with felony records who are on bail or parole. The obstacles to this population finding gainful employment, obtaining public benefits, pursuing higher education, and reintegrating into the workforce are staggering. This means millions of Americans have difficulty even getting their foot in the door to try to get a job, much less actually hanging onto that job. That doesn’t just deprive those individuals of opportunity, it deprives businesses of talented workers, and it deprives communities in desperate need of more role models who are gainfully employed.

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Obama’s Clemency Legacy: An Assessment 

Margaret Colgate Love
29 Federal Sentencing Reporter (2017)(forthcoming)

Abstract:

Shortly before the end of his term, President Obama published an article in the Harvard Law Review describing an approach to pardoning that harks back to an earlier time in our history when the pardon power played a routine operational role in the justice system. While acknowledging that clemency is “no substitute for achieving lasting changes to federal sentencing law through legislation,” he said it was “a way to restore a degree of justice, fairness, and proportionality to the system.” He said that he hoped “to set a precedent that will make it easier for future Presidents, governors, and other public officials to use it for good.”   This essay is a preliminary assessment of the Obama clemency legacy in terms of his own stated goals. Was he right about the proper role of pardon in the justice system, and did he accomplish his objectives in using his power? On the one hand, his expansive view of the pardon power is hard to square with a system of checks and balances, and carries with it an expectation of procedural and substantive fairness that may be hard to deliver on. At the same time, his belief that federal drug sentences have produced widespread injustice is widely shared, and his determination to try to do something about it was commendable. But the means he chose to accomplish his goals were fated to fall short, and his neglect of other less-fraught “second chance” clemency opportunities may have made it harder for his successor to use the power. In the end, by some measures he left the pardon power in a worse condition than he found it.

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Designed to Fail: The President’s Deference to the Department of Justice in Advancing Criminal Justice Reform

Rachel E. Barkow, New York University School of Law
Mark William Osler, University of St. Thomas – School of Law (Minnesota)
William & Mary Law Review, Vol. 59 (2017)

Abstract:

One puzzle of President Obama’s presidency is why his stated commitment to criminal justice reform was not matched by actual progress. We argue that the Obama Administration’s failure to accomplish more substantial reform, even in those areas that did not require congressional action, was largely rooted in an unfortunate deference to the Department of Justice. In this Article, we document numerous examples (in sentencing, clemency, compassionate release, and forensic science) of the Department resisting commonsense criminal justice reforms that would save taxpayer dollars, help reduce mass incarceration, and maintain public safety. These examples and basic institutional design theory both point in the same direction: real criminal justice reform requires putting the right institutions in charge of criminal justice policymaking. This Article offers institutional changes that would help future presidents make the system less punitive and reduce prison populations to achieve the broad transformation that Obama desired but did not attain. A critical move is to place criminal justice policymaking in the hands of individuals who can advise the president independent of the institutional interests of prosecutors.

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Leading with Conviction: The Transformative Role of Formerly Incarcerated Leaders in Reducing Mass Incarceration

Susan P. Sturm, Columbia Law School
Haran Tae, Yale University Law School
Columbia Public Law Research Paper No. 14-547 (2017)

Abstract:

This report documents the roles of formerly incarcerated leaders engaged in work related to reducing incarceration and rebuilding communities, drawing on in-depth interviews with 48 of these leaders conducted over a period of 14 months. These “leaders with conviction” have developed a set of capabilities that enable them to advance transformative change, both in the lives of individuals affected by mass incarceration and in the criminal legal systems that have devastated so many lives and communities. Their leadership assumes particular importance in the era of the Trump Presidency, when the durability of the ideological coalitions to undo the failed apparatus of mass incarceration will be tested.

Our analysis of these interviews indicates that a particular set of qualities equips this group of formerly incarcerated leaders to serve as organizational catalysts. Organizational catalysts are individuals with knowledge, influence, and credibility who are in a position to mobilize change. They operate at the intersection of communities and systems that do not usually interact, and bring a track record of commitment and an ability to communicate across different backgrounds and cultures. They can transform organizations and networks by (1) mobilizing varied forms of knowledge to promote change, (2) developing collaborations in strategic locations, (3) cultivating new organizational catalysts, and (4) maintaining pressure and support for action.

The leaders share three important characteristics contributing to their evolution into organizational catalysts: (1) first-hand experience with the criminal legal system, (2) education that legitimizes and enhances their knowledge and leadership capacity, and (3) jobs and activist positions placing them at the intersection of different communities and systems. This combination affords them multifaceted insight into the needs, barriers, and opportunities for transformation, as well as the legitimacy and influence needed to mobilize change based on that knowledge.

These leaders with conviction have developed the capacity to mobilize unusually diverse forms of social capital. As such, formerly incarcerated leaders are bonders (maintaining ties and sharing resources among those with a common identity linked to experiencing and seeking to transform the criminal justice system), bridgers (connecting individuals who would not ordinarily come in contact), and linkers (linking those with direct experience and knowledge of criminal justice to people in positions to influence public policy and change the public narrative).

The leaders use their social capital both as an engine of mobility for those affected by mass incarceration and as a vehicle for catalyzing change. heir varied knowledge and experience equip them to speak the language of many different communities, and thus to communicate effectively with different audiences. They build trust with people who have experienced consistent stigmatization and dispel myths among people who hold stereotypes that have prevented them from learning the realities of the criminal justice system.

Three structural supports emerged from this study as crucial building blocks of leaders with conviction: (1) relationships with people who believe in them and support their development, including when they struggle, (2) education and training that cultivates their identity and capacity as leaders, and (3) institutional and policy design that makes them full participants in the decision-making process.

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Legal Aid with Conviction: How to Combat Barriers to Reentry by Using the Law

Vidhi Sanghavi Joshi, Legal Aid Society of Middle Tennessee
Clearinghouse Article, Sargent Shriver Center on Poverty Law (June 2017)

Excerpt:

Recent media and advocacy have brought attention to the effect of mass incarceration on people such as Tim. His criminal record prevents him from accessing employment, housing, and other basic services and enmeshes him in a cycle of poverty and crime. Rather than giving members of low-income communities social and economic support, our society chooses law enforcement and the criminal justice system. Tim and other poor people of color disproportionately experience the disempowering and often violent effects of this choice. To confront these injustices, civil legal aid lawyers must engage in community-based advocacy, policy reform, and education, as well as direct legal services and impact litigation. We are uniquely positioned to combat the poverty-to-prison cycle by using the law to help people such as Tim obtain economic and social stability and to bring about systemic change.

Here I give a broad overview of how civil legal aid lawyers can take on legal reentry issues and do their part to help people such as Tim. Specifically I follow the experiences of a hypothetical client, Jane, and cover reentry legal remedies in (1) criminal record issues, (2) employment, (3) housing, (4) criminal justice debt, (5) civil rights restoration, (6) sex offender issues, and (7) health and benefits.