Author Archives: CCRC Staff

Scarlet Letter law can move forward — for now

1016829040562382727EwjStKwcA federal judge in the Northern District of California has declined to block enforcement of the so-called “Scarlet Letter” provision of the recently-enacted International Megan’s Law (IML). U.S. District Judge Phyllis Hamilton ruled on April 12 that a challenge to the requirement that sex offenders’ passports be marked with a unique identifier was not ripe for injunctive relief, “because significant steps must be taken before the passport identifier can be implemented,” and because “it is unclear how the provision will be implemented.” The court also held that the plaintiffs did not have standing to challenge a separate IML provision requiring notification of a registered sex offender’s intended foreign travel.

Respecting the IML passport identifier provision, the court pointed out that

the statutory language makes clear that no such requirement is yet in effect, and that it will not take effect until after the Secretaries of Homeland Security and State and the Attorney General have developed a process for implementation, submitted a joint report to Congress regarding this proposed process, and, finally, certified that the process has been successfully implemented. See IML §§ 8(f), 9(a)-(b).

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Second chance for some youthful sex offenders

On April 6, Arizona became the latest state to offer early relief from sex offender registration obligations to young people convicted of consensual sex offenses and sentenced to probation.  The law, HB 2539, allows individuals convicted before reaching age 22 of sexual conduct with a minor between the ages of 15 and 17 (so-called “Romeo and Juliet” offenders), to petition the court for relief from registration after completing probation.  If a petitioner meets all applicable criteria, the court must grant the petition unless it finds that a “denial is in the best interests of justice or tends to ensure the safety of the public.”  Similar laws authorizing early termination from registration for those convicted of youthful consensual offenses are in effect in ten other states, including Florida, Oregon, and Michigan.

Laws requiring young people to register have come under increased scrutiny thanks to recent media coverage of their harsh effects and flimsy justifications — notably an article by Sarah Stillman published last month in the New Yorker (“The List”).   Much of the attention to registry of juveniles has been driven by mobilization around the issue by advocacy groups like Reform Sex Offender Laws (RSOL) and the Center on Youth Registration Reform (CYRR).  In 2013, Human Rights Watch issued a ground-breaking report on the issue, Raised on the Registry.

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“Get to Work or Go to Jail”

Get-to-Work-or-Go-To-Final-copyA new report from the UCLA Labor Center with the snappy title of  “Get To Work or Go To Jail” describes how the criminal justice system may compromise employment opportunities in more ways than one, placing workers on community supervision or in debt at the mercy of employers.  Noah Zatz of the UCLA Law faculty, one of the report’s co-authors, summarizes the report’s conclusions as follows:

When many people consider work and the criminal justice system, they commonly focus on how difficult it is for people coming out of jail to find work. “Get to Work or Go To Jail: Workplace Rights Under Threat” goes further by exploring how the criminal justice system can also lock workers into bad jobs. Workers on probation or parole, facing criminal justice debt, or owing child support face a disturbing threat: get to work or go to jail. Because these workers face incarceration for being unemployed, the report finds that they cannot afford to refuse a job, quit a job, or to challenge their employers- and they can even be forced to work for free. This report identifies how the criminal justice system endows employers with this power.

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Challenge to “Scarlet Letter” travel law moves forward

passportLast week a federal judge heard the first arguments in a lawsuit challenging certain provisions of the recently-enacted International Megan’s Law (IML),* including one mandating that the passport of any American required to register for a sex offense involving a minor be marked in “a conspicuous location” with a “unique identifier” of their sex offender status.  Other challenged provisions of the law authorize the Departments of Homeland Security and Justice to notify destination nations of forthcoming visits from those individuals. On Wednesday the court heard a motion for a preliminary injunction that would block enforcement of the challenged provisions of the law pending the suit’s final outcome. See Doe v. Kerry, Case 3:16-cv-00654 (N.D. Ca.).

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Traveling to Mexico with a criminal record

MexicoMap550Searching for information on whether people with a criminal record may encounter problems traveling to Mexico, we found nothing relevant on the website of the Mexican Embassy in the U.S..  The State Department website contains only a very general warning:

Prior Criminal Convictions: U.S. citizens should be aware that Mexican law permits immigration authorities to deny foreigners entry into Mexico if they have been charged or convicted of a serious crime in Mexico or elsewhere.

However, the website of the Mexican Embassy in Canada explains Mexico’s policy in somewhat greater detail, listing the crimes that are likely to result in a refusal of entry:

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“A Federal Judge’s New Model for Forgiveness”

New York Times
By JESSE WEGMAN

March 16, 2016

Should a judge care what happens, years down the road, to the defendants convicted in his courtroom?

In 2003, John Gleeson, a federal district judge in Brooklyn, presided over the trial of a woman charged for her role in faking a car accident for the insurance payments. After a jury found her guilty, Judge Gleeson sentenced the woman to 15 months in prison.

Many judges might leave it at that, but in an extraordinary 31-page opinion released on March 7, Judge Gleeson stepped back into the case. Finding that this one conviction continued to scare off employers and make it impossible for the woman, identified in court records only as Jane Doe, to get hired as a nurse, Judge Gleeson gave her what amounted to a voucher of good character — he called it a “federal certificate of rehabilitation.”

No such certificate exists under federal law, so the judge designed one himself and attached it to his opinion.

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Restoration of firearms rights: 50-state surveys

We have recently converted the 50-state surveys that are part of the Restoration of Rights Resource from PDF to HTML format.  Two of these surveys deal with loss and restoration of firearms privileges as a result of a criminal conviction:  Chart # 1 is titled “Loss and restoration of civil rights and firearms privileges,” and Chart # 2 is “State law relief from federal firearms disabilities.”   Chart # 1 is a straightforward description of the relevant provisions of each state’s laws, showing when firearms rights are lost based upon a felony conviction (or in some cases misdemeanor crimes of violence) and how firearms rights may be regained.  Chart # 1 also describes for each state when conviction results in loss of basic civil rights (voting, eligibility for public office and jury service), and how those rights are regained — a matter that is frequently relevant for avoiding the independent penalties under federal firearms dispossession laws.

Chart # 2 attempts the more complex analysis of when criminal conviction results in exposure to federal prosecution as a “felon in possession” under 18 U.S.C. § 922(g). Regaining firearms rights under state law does not automatically result in avoiding the federal bar, which generally depends upon an additional measure of state relief such as a pardon or expungement, or restoration of civil rights.  (The courts have generally held that automatic restoration counts.)  Surprisingly, the law is not entirely clear as to when a state conviction will trigger the federal penalty, and when state relief removes it.  Chart # 2 therefore emphasizes the importance of seeking legal counsel to avoid liability.

For those with a federal conviction, the only way to avoid liability under § 922(g) and regain the right to possess a firearm is through a presidential pardon (which would also relieve any state law liability).  The administrative restoration provision in 18 U.S.C. § 925 has not been funded for 25 years.  As reported by Alan Gura in a post on this site last winter, a few individuals with dated nonviolent federal convictions have been successful in regaining firearms rights through the courts.

The 50-state charts will remain available for download in PDF form.

 

Gleeson Certificate enters “uncharted waters”

The New York Law Journal published an article over the weekend about the “novel relief” provided by the federal certificate of rehabilitation issued by former Judge John Gleeson on March 7, just days before he stepped down from the bench.  A reproduction of the certificate reveals its official appearance, complete with court seal and signatures of Judge Gleeson and the Chief U.S. Probation Officer.

certificate-of-rehabilitation

The government has until April 7 to appeal – the very day its appeal of Judge Gleeson’s expungement order in his first Jane Doe case will be argued in the Second Circuit.  The jurisdictional issues presented by the certificate order may be similar, if only because the certificate has some effect under state law.  See N.Y. Correct. Law §§ 703(7), 752, both cited in Judge Gleeson’s opinion.  It is likely that others similarly situated will apply for similar relief.

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New York certificates of relief fall short in practice

New York’s venerable certificate of relief scheme, which aims to mitigate the adverse collateral effects of criminal conviction, has served as a blueprint for certificate laws recently adopted in many other states.  But are New York’s certificates actually effective at restoring rights and status? That is a question addressed in two new scholarly articles, both of which find that New York’s certificates are frequently inaccessible to their intended beneficiaries and misunderstood both by the officials tasked with issuing them and the employers and licensing boards that should be giving them effect.

Governor Cuomo recently directed reforms in the process for obtaining certificates in response to a report concluding that it has “historically been burdensome and slow.”  These articles should be useful in that effort.

Both articles use interviews and anecdotal evidence to shed light on how certificate schemes operate in practice, providing insight into how government officials (including judges and probation officers), employers and convicted individuals interact with the laws (or fail to) in the real world. The increasing popularity of such well-intentioned laws represents an encouraging shift in legislative attitudes about second chances; but, as the articles make clear, they are only as good as their real-world application, which is more limited and less effective than many suppose.

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Mexico vacations out for sex offenders?

It appears that Mexico has inaugurated a policy of refusing entry to anyone registered in the United States as a sex offender.  While no formal policy has been announced, the body of anecdotal evidence supporting the existence of an informal policy is growing.  In numerous internet postings, vacationers report being turned back at the border or forced to take the next plane home, leaving their families behind.  There is no indication that people with other convictions are being similarly excluded.  The Mexican government’s new policy has been made technologically feasible by new federal data-sharing policies, including the Dru Sjodin National Sex Offender website maintained by the Justice Department’s SMART Office. Members of the public may now do a free national search of all state sex offender registries, as well as all registries maintained in Indian country.  We will continue to monitor this situation, and watch for reports about exclusionary policies from other countries.

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