Author Archives: CCRC Staff

Scholarship round-up III

A number of new and interesting articles on collateral consequences have come to our attention since we published our first big scholarship round-up only weeks ago. We provide information, links, and abstracts on these pieces below. A more complete collection of scholarship on issues relating to collateral consequences can be found on our “Books & Articles” page.

“Can We Forgive Those Who Batter? Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases”

Joann Sahl, University of Akron School of Law

100 Marquette Law Review 527 (2017)

Each year courts issue more than 1 million civil domestic violence protection orders (CPOs). Although most of these orders will expire in one or two years, their impact often remains for much longer periods. The expired CPOs continue to carry stigma and significant prejudicial consequences for someone once labelled as a batterer. This Article explores how collateral consequences, generally recognized only in criminal cases, now afflict those involved in civil domestic violence cases. It examines the civil domestic violence process and discusses why the process and its resulting orders create collateral consequences. The Article also identifies those collateral consequences unique to CPO cases and reveals why these consequences continue to impact negatively former CPO perpetrators even when there is no active CPO. This Article recommends that courts adopt a judicial sealing remedy to limit the impact of collateral consequences in CPO cases with no active order. The Article also proposes a test that allows a court to seal a CPO case if the case presents unusual and exceptional circumstances and the applicant’s interest in having the case sealed outweighs any government interest in the case remaining public.

“Over-Incarceration and Disenfranchisement”

Murat C. Mungan, George Mason University – Antonin Scalia Law School

Public Choice (forthcoming)
Date Posted on SSRN: April 5, 2017

This article presents a model wherein law enforcers propose sentences to maximize their likelihood of reelection, and shows that elections typically generate over-incarceration, i.e., longer than optimal sentences. It then studies the effects of disenfranchisement laws, which prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group, and thereby causes the political process to push the sentences for criminal offenses upwards. Therefore, disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people’s criminal tendencies, i.e., when criminals vote less frequently than non-criminals.

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Montana just authorized expungement of adult convictions

For the first time in its history, Montana has enacted a law authorizing its courts to limitfish public access to adult conviction records. On April 13, Governor Steve Bullock signed into law House Bill 168, giving district courts the power to “expunge” the records of misdemeanor convictions after completion of sentence, effective October 1 of this year. This makes Montana the 30th state since 2012 to enact some form of record-closing law, or to expand an existing one. The possibility of full destruction of the record for all misdemeanor convictions makes Montana’s one of the more ambitious collateral consequences reform measures of the past several years.

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New York surprises with broad new sealing law

Late Sunday night, the New York Senate finally passed the beleaguered 2017-18 budget bill, which was signed by Governor Andrew Cuomo the following day. And while the passage of the bill was good news to New Yorkers eager to avoid a government shutdown, it should be even better news to a significant number of New Yorkers with criminal convictions. Tucked away inside the massive bill is an unheralded provision creating the state’s first general sealing authority for adult criminal convictions. Previously, record sealing was available only for non-conviction records and diversion and drug treatment dispositions. Now sealing will be available for misdemeanors and all but the most serious felony offenses.

The new law, which takes effect in October, gives New York one of the most expansive record-closing authorities in the Nation, rivaling such traditional sealing centers as Massachusetts, Washington, and Minnesota.

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Second chance employment bill approved in West Virginia

CARDINAL_ownby1High drama on the final day of the West Virginia legislative session produced a last minute compromise between House and Senate over SB76, the WV Second Chance for Employment Act.  If the governor signs the bill into law, individuals convicted of non-violent felonies will be able to return to court after 10 years to have their convictions reduced to misdemeanors. [NOTE: The bill was signed into law on April 25.]

For several years the WV legislature has been considering how to improve employment opportunities for people with non-violent convictions, but the House and Senate had different ideas about how to do it.  The Senate approach would have expanded the state’s expungement law, which now applies only to youthful misdemeanors, while the House preferred reducing nonviolent felonies to misdemeanors.   As the seconds ticked toward midnight on April 8, the Senate agreed to accept the “forgiving” approach favored by the House, creating a new category of “reduced misdemeanor” that need not be reported on employment applications but will be reflected in background investigations.

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California set-aside enhances employment prospects

636054606033326119-1877630735_California-Outline-and-Flag-SolidSecond-chance mechanisms in California are working to increase the employment prospects and earning potential of Californians with criminal records according to a soon-to-be-published study by a team of researchers from U.C. Berkeley School of Law.

The study, by Jeffrey Selbin, Justin McCrary & Joshua Epstein, tracked over an eleven-year period the employment status and annual income of 235 Californians who had their convictions set aside or their offense level reduced from felony to misdemeanor, with the aid of the East Bay Community Law Center’s (EBCLC) Clean Slate Clinic.  The study finds a modest increase in the employment rate of those in the sample (most were already employed, albeit in low-wage jobs). More significantly, however, after three years their average real earnings increased by roughly a third.

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New national study finds ban-the-box policies generally effective

A new nation-wide study of “ban-the-box” policies in public employment finds that they have been generally effective in increasing employment opportunities for people with a criminal record. Significantly, the study finds no evidence that these policies encourage reliance on racial stereotyping where public employment alone is concerned — though the author acknowledged, in an interview with the CCRC, that “the evidence is mixed” when private employment is also considered.

“Ban-the-box” policies, which delay employer inquiries about an applicant’s background until a later stage in the hiring process, have become a popular reform measure at least in part because it can be implemented on a systemic basis.  As of January 2017, there were 25 states, DC, and over 150 municipalities that had adopted ban-the-box policies, most of them applicable only to public sector employment.  But despite the increase in ban-the-box policies, little research has been done into their effectiveness in improving the employment prospects of justice-involved individuals. Some jurisdictions such as Atlanta, GA and Durham, NC have reported dramatic improvements in the percentage of convicted individuals hired. However, these local outcomes may not reflect the national experience.

Research on the effects of ban-the-box policies by Connecticut College economist Terry-Ann Craigie suggests that they have dramatically improved the public-sector employment prospects of individuals with a criminal record nation-wide. Professor Craigie also found that these salutary effects have generally not been offset by a corresponding increase in racial profiling. Overall, her study (whose results are not yet published) concludes that ban-the-box policies have increased the odds of getting a public sector job for those with a criminal record by close to 40%.

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District of Columbia clemency authority sought

On March 28, Congresswoman Eleanor Holmes Norton (D-DC) introduced a bill that would give the District of Columbia exclusive authority, like states and U.S. territories, to grant clemency for criminal convictions under its laws. The District of Columbia Home Rule Clemency Act is part of Norton’s “Free and Equal D.C.” series. While D.C. law appears to give the mayor authority to grant clemency (D.C. Code 1–301.76), the U.S. Department of Justice (DOJ) has opined that the mayor’s clemency authority, if any, is very narrow, and that the President of the United States has authority to grant clemency in all D.C. criminal cases and exclusive authority for D.C. felonies. Under current practice, clemency petitions for D.C. convictions, like federal convictions, are submitted to the Department of Justice for the President’s consideration. In Norton’s bill, clemency includes pardons, reprieves, or commutations of sentence.

In introducing the bill, Norton said “The District, like states and territories, should have full control of its local criminal justice system, the most basic responsibility of local government. Since the D.C. Council has the authority to enact local laws, District officials are in the best position to grant clemency for local law convictions . . . .  This bill is an important step in establishing further autonomy for the District in its own local affairs.” Norton’s full introductory statement is below.  The text of H.R. 1765 has not yet been posted; we link the text of an earlier bill introduced by Congresswoman Norton in January 2016.

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Collateral consequences scholarship round-up

Collateral consequences and restoration of rights have become hot topics in academia as the consequences of conviction grow more severe and the need for law reform becomes more apparent.  Below we survey notable articles on topics relating to collateral consequences that have been released so far in 2017, some of which will be covered in more detail in subsequent posts.  We hope to make scholarship round-ups a regular feature on the CCRC site, and we welcome submissions on relevant topics.  A more complete collection of scholarship on issues relating to collateral consequences can be found on our “Books & Articles” page.

 

“Briefing the Supreme Court: Promoting Science or Myth?”

Melissa Hamilton, University of Houston Law Center

Emory Law Journal Online (Forthcoming)
Date Posted on SSRN: March 23, 2017

The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders. An issue that has arisen in the case is the state’s justification for the ban. North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes. The collective states contend that these three claims are supported by scientific evidence and common sense. This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.

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“Ants under the refrigerator”

The following post is republished, with permission, from the National Clean Slate Clearinghouse listserv.  In it Sharon Dietrich points out that even after criminal records have been expunged or sealed, they may still be reported by commercial criminal record providers in violation of the Fair Credit Reporting Act.   (See our recent 50-state survey of record-closing laws, with their intended effect.)

 

You probably are wondering, “What is she talking about, with a subject line like that?”  The answer to your thought is that I use this phrase when giving clients an important warning about the effect of their expungement orders.  I am illustrating for them the idea that I can’t guarantee removal of their expunged cases from every possible background check, especially those prepared by commercial screener such as Sterling, HireRight, First Advantage and countless others.

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How effective are judicial certificates in relieving collateral consequences?

An empirical study of Ohio’s judicial “certificate of qualification for employment” finds that it is “an effective avenue for lessening the stigma of a criminal record” in the context of employment and licensing.  The certificate, authorized in 2012, lifts mandatory legal restrictions and limits employer liability for negligent hiring claims, with the goal of ensuring that employment and licensing decisions about certificate holders are on a case-by-case basis, on the merits. The court-issued certificate is available to anyone with any Ohio conviction, no matter how serious, as long as they have completed their sentence and can show that they are barred from employment or licensure by a “collateral sanction.” There is a short waiting period, and applicants must show that they pose no public safety risk.

The Ohio certificates are part of a recent trend toward authorizing courts to grant certificates of restoration of rights to people with conviction records.  It seems that states are far more likely to authorize this more transparent form of relief for those convicted of felonies, reserving record-sealing to misdemeanor or non-conviction records.

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