Author Archives: CCRC Staff

Nevada’s good sealing law gets better

In just over a month, an amendment to Nevada’s adult conviction sealing law will take effect, drastically reducing the waiting periods for all conviction types, and reducing procedural burdens on applicants.  Nevada’s law is already one of the broadest in the country, permitting sealing of all adult conviction records except for those related to particularly serious offenses (including sex offenses and DUI homicides), and treating sealed convictions as if they never occurred for most purposes.  When the new changes go into effect, Nevadans will not only be able to obtain relief much earlier, they will also enjoy a new presumption in favor of sealing if they meet all the statutory eligibility requirements.

In the same legislative session, Nevada also enacted a broad law governing nondiscrimination in public employment that includes both standards for decision and an enforcement mechanism. That law, which will take effect early next year, is described in greater detail in the Nevada profile from the Restoration of Rights Project.

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A closer look at Indiana’s expungement law

More than four years ago, Indiana’s then-Governor Mike Pence signed into law what was at the time perhaps the Nation’s most comprehensive and elaborate scheme for restoring rights and status after conviction.  In the fall of 2014, as one of CCRC’s very first posts, Margaret Love published her interview with the legislator primarily responsible for its enactment, in which he shared details of his successful legislative strategy.  Later posts on this site reported on judicial interpretation of the law.  Since that time, a number of other states have enacted broad record-closing laws, including Louisiana, Missouri, Nevada, New York, and most recently Illinois.

We have been impressed by the evident enthusiasm for Indiana’s “expungement” law within the state, from the courts, the bar, the advocacy community, and even from prosecutors.  So we thought it might be both interesting and useful to take a closer look at how the Indiana law has been interpreted and administered, how many people have taken advantage of it, and how effective it has been in facilitating opportunities for individuals with a criminal record, particularly in the workforce.  We also wanted to see what light this might shed on what has brought to the forefront of reform so many politically-conservative states.  Spoiler alert: the Chamber of Commerce was one of the strongest proponents of the law.

We expect to be able to post our account of the Indiana expungement law shortly after Labor Day.  In the meantime, we thought it might be useful to reprint our 2014 interview with former Rep. Jud McMillan, which has been among our most viewed posts.

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“Presidential pardons have lost their true purpose”

The op ed below by CCRC Executive Director Margaret Love appeared in the Washington Post this afternoon.  Love argues that focusing on the political message sent by the Arpaio pardon obscures a more fundamental problem with pardoning in today’s federal system: It has all but ceased to play the role the framers intended of advancing fairness and proportionality.  She urges a reconnection with the true redemptive purposes of pardoning: to mitigate collateral consequences, recognize rehabilitation, and encourage reintegration. The recent preview of CCRC’s forthcoming study of state relief mechanisms shows that in at least a dozen states pardon continues to serve those purposes.

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Illinois enacts boadest sealing law in Nation

On Fiday Illinois governor Bruce Rauner signed into law what appears to be the broadest sealing law in the United States, covering almost all felonies and requiring a relatively short eligibility waiting period of three years. We expect to provide a more in-depth discussion of the law next week from practitioners working on the ground in the state, and will soon update the Illinois Restoration of Rights Project profile to reflect these important changes.  In the meantime, we share the following from Cabrini Green Legal Aid, which was among the organizations that helped push the legislation through.

This afternoon, Governor Bruce Rauner signed into law six pieces of legislation that impact people with arrest and conviction records, including HB 2373 – the sealing expansion bill. This marks the LARGEST expansion of a sealing law in the United States and is a huge win in criminal justice reform. Effective immediately, this new law will provide thousands of people in Illinois the opportunity for criminal records relief by allowing them to petition the court to remove barriers in their lives as a result of their past criminal record. On behalf of our partners with the Restoring Rights and Opportunities Coalition of Illinois (RROCI),* Cabrini Green Legal Aid (CGLA) appreciates the support and involvement of so many of you who took action making phone calls, sending emails and traveling to Springfield.

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Preview of 50-state report on effective relief mechanisms

The Collateral Consequences Resource Center is currently finalizing a 50-state report on the availability of relief from the adverse civil effects of a criminal arrest or conviction. Using research from the Restoration of Rights Project (RRP), the report analyzes the data in several different categories, including executive pardon, judicial record-closing and certificates, and regulation of employment and licensing.  It showcases those states that have the most comprehensive and effective relief mechanisms, and at the same time provides a snapshot of the extraordinary recent interest in restoration of rights and status in state legislatures across the country.  It also looks at what states are doing to enable less serious offenders to avoid a criminal record altogether, through statutory deferred adjudication programs managed by the courts.

We preview here the report’s conclusions, illustrated by a series of color-coded maps that create a visual image of where people with a criminal record appear to have the best chance of regaining their rights and status through a variety of different relief mechanisms.  The full report will be published shortly after Labor Day.

Table  

1. Executive pardon

2. Judicial record-closing

3. Deferred adjudication

4. Regulation of employment and licensing

5. Loss and restoration of voting rights

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PA high court holds sex offender registration unconstitutional

The Pennsylvania Supreme Court, in a divided opinion, has held the provisions of the state’s sex offender registration law (SORNA) unconstitutional under the state and federal constitutions.  The majority in Commonwealth v. Muniz held that 1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.  The Court distinguished the Alaska registration scheme upheld by the U.S. Supreme Court in Smith v. Doe, 538 U.S. 84 (2003), and cited a number of other recent state high court holdings invalidating similarly harsh registration regimes.  The Court relied heavily for its analysis on an amicus brief filed jointly by the Defender Association of Philadelphia and the Pennsylvania Association of Criminal Defense Lawyers (PACDL). CCRC also filed an amicus brief in support of the plaintiffs, describing the counterproductive effects of such registration schemes. The concurring and dissenting opinions are posted here and here.

A full analysis of the holding and of the concurring and dissenting opinions will follow shortly.

Sex offender consequences in the Supreme Court – what’s ahead?

“The Supreme Court’s Mixed Signals in Packingham” is the title of a thoughtful comment by Bidish Sarma analyzing the Supreme Court’s recent decision in Packingham v. North Carolina, recently published on the American Constitution Society website.  (An early analysis of the Packingham decision by Wayne Logan appeared on this site on June 20.)  Mr. Sarma proposes that “the time has come to ask whether society’s ‘war’ on sex offenders who have already completed criminal sentences has gone too far.”

While the Packingham holding is confined to the First Amendment issues raised by North Carolina’s broad restrictions on access to “an astounding range of websites (including news websites, WebMD and Amazon),” Sarma singles out a sentence in Justice Kennedy’s opinion suggesting a broader underlying concern about the constitutionality of sex offender consequences:

Justice Kennedy’s opinion hints that the justices in fact harbor concerns. In a parenthetical note, the decision referred to “the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system,” and observed that this fact is “not an issue before the Court.”

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Fair Credit Reporting Act applied to criminal records

The following is a summary of how the Fair Credit Reporting Act (FCRA) applies to criminal background checks, written by Sharon Dietrich of Community Legal Services of Philadelphia.  More detailed information about FCRA’s interpretation and enforcement is available in this 2011 FTC report.  Current information about FCRA’s enforcement as applied to criminal records will appear in the upcoming third edition of Collateral Consequences of Criminal Conviction: Law Policy and Practice.  

Where a criminal record report is provided to an employer by a credit reporting agency (“CRA”), the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq, is applicable. See Beaudette, FTC Informal Staff Opinion Letter, June 9, 1998 (available here).  FCRA creates obligations both on CRAs preparing criminal background reports and on employers using them.

Among the duties of CRAs compiling criminal background reports for employers are the following:

  • CRAs may not report arrests or other adverse information (other than convictions of crimes) which are more than seven years old, provided that the report does not concern employment of an individual who has an annual salary that is $75,000 or more.   15 U.S.C. §§ 1681c(a)(5), 1681c(b)(3).
  • CRAs must use “reasonable procedures” to insure “maximum possible accuracy” of the information in the report.  15 U.S.C. §1681e(b).
  • Elements of cause of action: (1) Inaccurate information in report; (2) inaccuracy due to CRA’s failure to follow reasonable procedures to assure maximum possible accuracy; (3) consumer suffered injury (can include emotional injury); and (4) injury was caused by inaccurate entry.  Crane v. Trans Union, 282 F. Supp. 2d 311 (E.D. Pa. 2003)(Dalzell) (citing Philin v. Trans Union Corp., 101 F. 3d 957, 963 (3d Cir. 1996)).
  • A CRA reporting public record information for employment purposes which “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either notify the person that the public record information is being reported and provide the name and address of the person who is requesting the information at the time that the information is provider to the user or the CRA must maintain strict procedures to insure that the information it reports is complete and up to date.  15 U.S.C. §1681k.

Introducing the new Restoration of Rights Project

 

The Collateral Consequences Resource Center and its partner organizations, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the National HIRE Network, are pleased to announce the launch of the newly expanded and fully updated Restoration of Rights Project.

The Restoration of Rights Project is an online resource that offers state-by-state analyses of the law and practice in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction.   Jurisdictional “profiles” cover areas such as loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing.  Each jurisdiction’s information is separately summarized for quick reference.   

In addition to the jurisdictional profiles, a set of 50-state comparison charts summarizes the law and illustrates national patterns in restoration laws and policies.   We expect to supplement these resources in weeks to come with jurisdiction-specific information about organizations that may be able to assist individuals in securing relief, and information on other third-party resources.

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Defendant entitled to “Hail Mary” effort to avoid deportation

The Supreme Court has settled a dispute lingering in the lower courts since its decision seven years ago in Padilla v. Kentucky:  If a criminal defendant’s decision to plead guilty resulted from his lawyer’s constitutionally deficient advice about the collateral consequences of conviction, what does he have to show to undo the plea and bring the government back to the bargaining table?  The question before the Court in Jae Lee v. United States was whether a defendant facing deportation must be given a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, even though the odds of his winning at trial are low and he is likely to be deported anyway.

The government argued that no “rational” defendant in Lee’s position would have risked a longer prison term, that he therefore could not show that he was prejudiced by his lawyer’s bad advice, and that the plea should accordingly stand.  Lee countered that “deportation after some time in prison was not meaningfully different from deportation after somewhat less time,” and that he would have taken his chances with the jury if he had had accurate advice about the consequences of pleading guilty.  As the Court put it, he “would have rejected any plea leading to deportation in favor of throwing a ‘Hail Mary’ at trial.”

On June 23, the Supreme Court agreed that Lee should have another bite at the apple. In an opinion by Chief Justice Roberts, the Court held 6-2 that Lee had met his burden of showing that it would not have been “irrational” for him to reject the plea offer and go to trial, even though he would have been “almost certain” to lose.

The Court’s opinion is analyzed by Amy Howe at SCOTUSblog here.  Justices Thomas and Alito dissented, and Justice Gorsuch took no part in the decision.

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