Author Archives: CCRC Staff

New edition of collateral consequences treatise now available

The 2018-2019 edition of the West/NACDL treatise on collateral consequences is now available for purchase, at a publisher’s promotional discount. Wayne A. Logan has joined Margaret Love and Jenny Roberts as a co-author of this comprehensive resource: Collateral Consequences of Criminal Conviction: Law, Policy & Practice.

This third edition of the treatise has been entirely updated, and includes new material on regulation of criminal background checking; consideration of collateral consequences in the criminal case; laws providing for restoration of rights and status, including in employment and occupational licensing; and, recent court decisions on sex offender registration and related penalties.  Appendices include detailed state-by-state analysis of restoration laws, and other primary source materials.  The full table of contents for this 1048-page book is available here. 

The publisher describes the book as follows: 

Today, many millions of Americans have a criminal record of some kind, potentially triggering a vast array of highly burdensome and stigmatizing consequences that can have life-long debilitating effects. This volume provides comprehensive discussion and analysis of these after-effects of the nation’s ongoing “tough on crime” policies, ranging from loss of civil rights and employment opportunities, to registration and residency restrictions.  It serves as a single go-to resource for practicing lawyers, judges, and policymakers as they negotiate the often-complex and sometimes-obscure statutes and regulations that come into play as a result of arrest and conviction.

Highlighted features:

  • Describes specific types of consequences, including firearms dispossession, licensing and contracting bars, travel restrictions, immigration consequences, and sex offender registration
  • Addresses legal and ethical duties of counsel and courts
  • Analyzes constitutional law aspects of collateral consequences
  • Explains varied methods of rights restoration and preservation in different U.S. jurisdictions
  • Covers criminal practice-related issues (charging, negotiating pleas, sentencing, appeals and collateral relief)
  • Addresses access to criminal records and regulation of criminal background checking
  • Discusses current and possible future law reform efforts (ALI/MPC, state initiatives, etc.)

Appendices contain summaries of state and federal laws on restoration of and status, and key documents on law reform proposals.

The book is available for purchase, currently at a discounted price of $186.30 for paperback or e-book (though the discounted rate may not be shown on the West catalogue page).  For the discounted rate, please call the publisher at 800-328-9352, and press “2” to place an order.

The book is also available on-line on Westlaw.  Endorsements from Bryan Stevenson, Jeremy Travis, Judge John Gleeson, and Jo-Ann Wallace can be seen here.

 

 

CCRC’s top 10 posts and most popular tweets of 2018

Happy New Year!  Thank you so much for spending time with us this year on our tools, news, and commentary.  In 2018, visitors most frequently utilized the resources in our Restoration of Rights Project: a state-by-state and federal guide to pardons, sealing & expungement, loss & restoration of civil rights and firearms rights, and consideration of criminal records in employment and licensing.  In addition, links to our top 10 posts and most popular tweets from 2018 are below.

We have several projects in store for 2019 to expand our work of promoting public discussion of collateral consequences and restoration of rights and status.  To begin with, we will issue in January 2019 a report on the unprecedented number of new “fair chance” laws enacted in the past year: 29 states and the District of Columbia enacted more than 50 separate new laws, many addressing more than one type of restoration mechanism.  18 states expanded their laws authorizing sealing or expungement, Florida voters acted to restore the vote to more than 1.5 million individuals with felony convictions, and a bipartisan effort to reform how licensing agencies treat people with a criminal record bore fruit in a dozen states.  In addition, in early 2019 we also expect to begin a major research project to determine which kinds of restoration laws are most effective in furthering reintegration.

More to come soon! Read more

Comparison of collateral consequences in Europe and the U.S.

Alessandro Corda has a new article that compares the treatment of regulatory collateral consequences in the United States and in European legal systems.  He argues that the primary difference is that in Europe proportionality is central to punishment schemes, and that sentencing courts must consider the impact of all combined sanctions on the defendant, including collateral consequences, in deciding whether a sentence is proportional to the crime.  “Collateral restrictions in the United States, instead, are not taken into account in determining the overall proportionality of the sentence to the seriousness of the offense since they are not considered as punishment.”  Criminal courts in the United States rarely consider collateral consequences in imposing a sentence, and for the most part have not regarded them as any of their business.

Corda points out that “Europe never moved completely away from a rehabilitative model of punishment,” and that “the ultimate goal of European penal systems widely remains the reintegration of ex-offenders.”  In contrast, “the approach toward collateral restrictions in the United States tends to mirror prevailing criminal justice attitudes oriented primarily toward harsh and prolonged measures of penal control.”  Even during a period of “penal climate-change,” when sentencing and corrections policies are being rethought in this country, collateral consequences have been largely left out of the reform picture.  He argues that “no reform aimed at moving away from mass incarceration and overreliance on penal control can ultimately succeed if indirect ramifications of ‘being a criminal’ are ignored.”

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Prisoners fighting California fires denied licenses after release

Nick Sibilla, a legislative analyst at the Institute for Justice, has published this fine op ed piece in today’s USA Today, describing how the 2,000 state prisoners currently engaged in fighting the largest fire in California history, are barred from obtaining the necessary EMT license that would enable them to continue this work after their release.  It contains, inter alia, a description of the two bills currently pending in the California legislature that would end what Nick describes as a “bitterly ironic” situation, where prisoners gain valuable training in certain vocations that they cannot use after their release.  The piece seems particularly relevant, in light of the amazing work being done on occupational licensing reform across the country, much of it inspired by the Institute for Justice’s Model Collateral Consequences in Occupational Licensing Act.   See, e.g. New Hampshire, Wisconsin, Kansas, Indiana, Arizona, and Tennessee.  We hope California will soon join this group of enlightened jurisdictions, and that other states will follow in the coming year.

Despite fighting California’s largest fires, inmates are denied licenses they need to become firefighters after they get out.

by Nick Sibilla, USA Today, August 20, 2018

As California struggles to contain the largest fire in state history, more than 2,000 inmates have volunteered to fight the flames. Offering just $1 an hour, the state has long  encouraged low-level prisoners to risk their lives and serve alongside professional firefighters, who earn nearly $74,000 a year on average. Firefighting, along with less life-threatening trades like plumbing, welding, and cosmetology, is one of several vocational training programs offered to prisoners by the California Department of Corrections and Rehabilitation.

But in a bitterly ironic twist, once inmates leave prison, they often can’t work as firefighters, despite their frontline experience. In California, nearly all counties require firefighters to become licensed emergency medical technician (EMTs) — a credential that can be denied to almost anyone with a criminal record.

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Vermont AG supports opportunities for diversion and expungement

Vermont Business Magazine recently showcased the leadership shown by Vermont Attorney General TJ Donovan in criminal justice reform.  Most notably, he has streamlined the process for seeking expungement, and increased opportunities to avoid a record entirely through greater use of diversion for less serious offenses.  The importance of enabling people to avoid a criminal record altogether through these two mechanisms cannot be overstated.  Donovan also championed last year’s bail reforms that will ensure low-income individuals are not held in jail prior to trial simply because they are poor. The article is worth posting in full as an illustration of a new breed of prosecutor committed to reducing the ill effects of the “tough on crime” era on individuals and communities least able to overcome them.

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“Managing Collateral Consequences in the Information Age”

“Managing Collateral Consequences in the Information Age” is the title of a symposium issue of the Federal Sentencing Reporter.  It is composed of papers prepared for a Roundtable conference on criminal records issues jointly sponsored by the American Law Institute and the National Conference of State Legislatures in January 2018, and associated primary source materials.  The issue’s Table of Contents shows the breadth and variety of topics covered. An introductory essay by Margaret Love summarizes the approach to managing collateral consequences in the revised sentencing articles of the Model Penal Code, and the seemingly contrary trends in criminal records management in state legislatures in recent years.  She describes each of the papers in the issue, and policy recommendations tentatively reached by participants in the January Roundtable.

  • Alessandro Corda of Queens University (Belfast) contributes a discussion of “American exceptionalism” in criminal records matters, and proposes a way of neutralizing their malign effect.
  • Scholars and practitioners describe how relief schemes work (or don’t work) in states as diverse as:
    • North Carolina (John Rubin, UNC/Government)
    • Tennessee (Joy Radice, UT/Law)
    • Nevada (Sen. Tick Segerblom and Nick Anthony, NV Legislature)
    • California (Jack Chin, UC Davis/Law; Eliza Hersh)
    • Indiana (Josh Gaines and Margaret Love, CCRC)
  • Douglas Berman and Nora Demleitner write about subsets of the collateral consequences problem (sex offender registration and marijuana decriminalization).
The issue also publishes the provisions of the Model Penal Code: Sentencing on non-conviction dispositions and on collateral consequences, and a collection of reports and other materials from the Collateral Consequences Resource Center.
The University of California Press has generously made available to non-subscribers the entire FSR issue for downloading at this link.

SC legislature overrides veto to broaden expungement laws

On June 27, the South Carolina legislature took the extraordinary step of overriding Governor McMaster’s veto of a bill that expanded eligibility for expungement in several significant (if relatively modest) ways.  House Bill 3209 is now law, and will take effect in six months.  This is one of the very few times in recent years that a state legislature has overridden a governor’s veto of a bill intended to improve opportunities for people with a criminal record.

The new law, which will go into effect after six months, extends expungement eligibility to first offense simple drug possession (after three years) or possession with intent to distribute (after twenty years), and to conviction of repealed offenses.  It also repeals first offender limits on expungement eligibility for convictions in magistrates court (summary offenses) and in juvenile proceedings, and applies all of these authorities retroactively.  HR 3209 also restructures fee provisions and authorizes private donations to defray costs for those who cannot afford to pay the fee.  Finally, HR 3209 authorizes expungement for anyone convicted prior to passage of the Youthful Offender Act of 2010 who could have been eligible for sentencing as a first offender under that provision.  The YOA provides that individuals between the ages of 17 and 25 who are convicted of certain non-violent misdemeanors and minor felonies may be sentenced to probation and treatment, so the extension of that law’s relief to pre-2010 convictions is quite significant.  

NC expands certificate law, taking three steps forward, one step back

The states are on a roll in passing new “second chance” legislation.  In addition to the extraordinary new Pennsylvania bill on automatic sealing we posted about earlier today, we’ve just learned that the North Carolina legislature has approved a bill modifying eligibility for judicial Certificates of Relief.  Certificates, which are available from the sentencing court one year after sentencing, remove mandatory collateral consequences (including in employment and licensing), certify that an individual poses no public safety risk, and provide negligent hiring protection.  The bill has been sent to the Governor for signature, we will inform you as soon as he has done so.   Hat’s off to our friends at the North Carolina Justice Center, who worked hard to get this bill passed!   

The bill will provide further relief and opportunity for people with multiple convictions.  The “one step back” referred to in the title of this post is that while the bill significantly expands eligibility for misdemeanors and the lowest level felonies, it also removes from eligibility one class of felony.   It is inevitable that there will occasionally be some last-minute counter-current in pressing for extension of relief provisions.   In North Carolina, what might have been cause for discouragement has evidently (and commendably) provided advocates with additional incentive to pursue a reform agenda and to educate employers about the value of certificates.   

Here is a description of the bill from Daniel Bowes at the NCJC:     Read more

More states enact major “second chance” reforms

In recent weeks, three more states — Colorado, Louisiana and Vermont — have enacted laws intended to make it easier for people with a criminal record to find and keep employment, or otherwise to regain rights and status.

We are just now noting Wyoming’s enactment in March 2018 of general standards for professional and occupational licensure, which impose new restrictions on how criminal record may be taken into account by licensing agencies, and its amendment of more than a dozen specific licensing laws.

In the first five months of 2018 alone, a total of 21 states have enacted legislation to improve opportunities for people with a criminal record, with more similar laws evidently on the way.  States have enacted several different types of “second chance” laws this year, from expansion of voting rights to expansion of judicial authority to relieve collateral consequences at sentencing.

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“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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