Author Archives: CCRC Staff

50-state guide to expungement and sealing laws

The 50-state chart of judicial relief mechanisms from the NACDL Restoration of Rights Resource, which is also posted on this site, is a comprehensive survey of all authorities for judicial relief in the states and federal system. We wanted to bring it to our readers’ attention in light of the new federal interest in helping individuals with a criminal record overcome barriers to employment and licensing through clearing their records.

The National Clean Slate Clearinghouse, recently announced as part of President Obama’s reentry initiative, will “provide technical assistance to local legal aid programs, public defender offices, and reentry service providers to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.” This joint project of the Labor and Justice Departments will doubtless make it a first priority to survey the laws providing judicial and other relief in different states, to determine what sort of assistance lawyers will need to neutralize the adverse employment consequences of conviction, though the courts or otherwise.  We hope these resources will prove useful in that effort.

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Connecticut’s trail-blazing Gov. Dannel Malloy

The New York Times published a terrific editorial today describing in detail the extraordinary work being done by Governor Dannel Malloy and others in Connecticut to reform the system of criminal punishment, and to assist those with a criminal record get jobs and qualify for other benefits and opportunities.  Rather than try to summarize all of Connecticut’s trail-blazing accomplishments under Governor Malloy, we are reprinting the editorial in its entirely here.

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Judge Gleeson stepping down from the bench

The New York Daily News reports that Federal District Judge John Gleeson is stepping down from the bench to practice law. Judge Gleeson may be best known to the public for his prosecution of mob boss John Gotti more than two decades ago, but while on the bench he has been a champion for sentencing reform, criticizing long mandatory sentences and coercive prosecutorial tactics.  More recently he has stepped into the debate over the punitive impact of collateral consequences, expunging the record of a woman he had sentenced 13 years before. The article notes that

Federal prosecutors are also fighting him tooth and nail on a decision to expunge the criminal record of a Brooklyn woman who convinced the judge that she was trying to turn her life around but could not find a good job because of a fraud conviction years ago.

The government has appealed Judge Gleeson’s expungement order, and CCRC recently filed an amicus brief in the Second Circuit in the case of U.S. v. Jane Doe.

Look for more in this space on Judge Gleeson’s resignation.

Criminal records and immigration in Europe and the U.S.

What are the emerging trends in Europe and the United States in considering a person’s past criminal record for purposes of travel, work and residency?  Professor James Jacobs of NYU Law School and three co-authors have just posted on SSRN a fascinating article titled Criminal Records and Immigration:  Comparing the United States and the European Union.   Research for the article, which will be published in the Fordham International Law Journal, shows that EU countries tend to focus primarily on public safety concerns in deciding the relevance of a criminal record for immigration purposes, including travel to and within the EU.  In contrast, the United States treats criminal record as “an indelible mark of bad character” that has become “the most important determinant of who is admitted to the country, who is removed, and who is offered the privileges of citizenship.”

While many U.S. practitioners and scholars are familiar with the ways a criminal record can affect a non-citizen’s right to enter and remain in this country, they will be interested to learn more about the complex and nuanced way that a criminal record can affect immigration to as well as travel and work within the European Union and its constituent countries. The authors ask the question whether increasing efficiency in access to criminal records in the EU will bring its laws and policies closer to those of the U.S.

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Outgoing Kentucky governor issues order restoring voting rights

Kentucky

UPDATE: Governor Matt Bevin rescinded Governor Beshear’s order on December 22, 2015, saying:

While I have been a vocal supporter of the restoration of rights, it is an issue that must be addressed through the legislature and by the will of the people.

Governor Bevins went on to sign a major felony expungement bill in April of 2016 that gives many with felony convictions the chance to restore their voting rights.

 

 

The outgoing Democratic governor of Kentucky has signed an executive order restoring the right to vote and hold public office to thousands of people convicted of non-violent felonies who have completed their sentences.  The order from Gov. Steve Beshear — who leaves office next month — estimates that about 180,000 people in Kentucky have served their sentences yet remain disenfranchised.  As a result of the order, 140,000 of those will become immediately eligible to register.

Before today, all convicted individuals were required to apply to regain their right to vote to the governor’s office, which approved restoration of voting rights on a case-by-case basis.  The order does not restore rights to those convicted of specified violent crimes, sex offenses, bribery or treason, who will still have to apply for discretionary restoration.

“All of our society will be better off if we actively work to help rehabilitate those who have made a mistake,” Beshear said. “And the more we do that, the more the entire society will benefit.”

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Interstate restoration of rights

State_border_sign_on_NY_17Can people restored to full legal status in one state expect their status to be recognized if they move to another state, just as marriage is generally given interstate recognition?  Can a person convicted in one state qualify for restoration of rights in another? What about a federal offender seeking relief under state law, or a state offender seeking relief from federal collateral consequences?  Is there a role for Congress to play in ensuring fair treatment of people with a criminal record as they move around the country?  These questions are increasingly important both as a practical and theoretical matter, as collateral consequences multiply and begin to limit Americans’ right to travel.

So it is timely that Wayne Logan, a Florida State University law professor widely known for his work on sex offender registration and other collateral consequences, has published a fascinating new treatment of the issue titled ‘When Mercy Seasons Justice’: Interstate Recognition of Ex-Offender Rights.  The article, which appears in the UC Davis Law Review, examines the impact of federalism on the ability to obtain true relief from the collateral consequences of conviction in a mobile society.  It is an issue that is widely overlooked, and the article reminds us that a comprehensive discussion about the impact of collateral consequences must take into account their inter-jurisdictional effects. The true impact of collateral consequences and relief mechanisms must be measured by the interplay of laws between jurisdictions as well as by the interplay of laws within them. Read more

President issues order announcing reentry initiatives

On November 2, the President issued an executive order announcing a series of steps to encourage reentry and rehabilitation of individuals who have recently been released from prison.  Among other things, the order establishes a National Clean Slate Clearinghouse, and authorizes technical assistance to legal aid programs and public defender offices “to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.”

According to an article in the New York Times, the measures

are all relatively modest in scale, important to the president less for their individual effect than for the direction they keep the country moving. Collectively, they reflect a belief that former inmates should have greater leeway to apply for jobs and housing without disclosing criminal records that would hinder their chances.

The order also calls on Congress to establish a ban-the-box program for federal employers and contractors.  In the interim, it asks the Office of Personnel Management to “take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process.”  Presumably this means at a minimum that OPM should eliminate the criminal history question on its “Declaration for Federal Employment” form.  However, the order stops well short of recommending the more progressive steps proposed in a National Employment law Project report issued last January, including the revision of the federal “suitability” regulations to comply fully with the protections of Title VII of the Civil Rights Act of 1964.

We will shortly take a closer look at this new federal initiative to blunt the impact of collateral consequences.  For now, we post the text of the entire order.  Read more

Obama again signals “expect few pardons from me”

Yesterday President Obama participated in a panel discussion of criminal justice issues moderated by Bill Keller of The Marshall Project and streamed to the public.  While the subject of clemency did not come up during the videotaped panel discussion, in a prior interview with Keller the President said that he intended to “speed up the process” of considering prisoner petitions seeking commutation of sentence.  At the same time, he again signaled that he was not similarly interested in cases involving dated convictions where a petitioner is seeking pardon to relieve collateral consequences:

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“Old Writ Could Give Ex-Offenders a New Start”

Joe Palazzolo has posted at the Wall Street Journal Blog an article describing an amicus brief filed yesterday in United States v. Jane Doe (Jane Doe II), one of two federal expungement cases before Judge John Gleeson that we’ve been following.  Argument in Jane Doe II is now scheduled for October 26.  (The government has appealed Judge Gleeson’s May 21 expungement order in Jane Doe I to the Second Circuit Court of Appeals.)  The brief begins like this:

This Court invited the views of Amica on the Court’s authority to issue “a certificate of rehabilitation in lieu of expungement” and the appropriateness of issuing such a certificate in this case. While there is no federal statute that authorizes a court to issue relief styled as a “certificate of rehabilitation,” Amica wishes to bring to the Court’s attention two mechanisms, each perhaps underappreciated but with deep historical roots, by which the Court may recognize an individual’s rehabilitation and otherwise address issues such as those raised by petitioner’s case. The first is by exercising its statutory authority to issue a writ of audita querela, which is available in extraordinary circumstances under the All Writs Act, 28 U.S.C. §1651, to grant a measure of relief from the collateral consequences of conviction. The second is by recommending to the President that he grant clemency.

The blog post describing the brief is reprinted in full after the jump.

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After prison, a lifetime of discrimination

The problem of mass incarceration was highlighted by the Pope’s visit last week to a Philadelphia jail, and by an HBO Special that aired earlier this week on the President’s visit last summer to a federal prison.  But the public has not yet had an occasion to focus on the broader and deeper problem of mass conviction that has consigned an entire generation of African American men to second class citizenship, and their communities to continued poverty and alienation.  The mere fact of a criminal record has placed a Mark of Cain on millions of Americans who never spent a day behind bars.

In this morning’s New York Times columnist David Brooks points out that the growth in state prison systems is driven by the sheer number of people prosecuted rather than sentence length, and he faults prosecutors for charging twice as many arrestees as in the past. But if it is true, as Brooks argues, that most people sent to prison nowadays spend about the same amount of time there as they did thirty years ago, the true crisis in our criminal justice system is represented by the lifetime of social marginalization and discrimination that follows them upon their release.

In New York, Governor Cuomo has taken important steps toward dealing with the problem of over-prosecution that looms large behind that of over-incarceration. It is time for elected leaders in other states to take similar steps, and time for President Obama to address the problem of collateral consequences for those with a federal conviction.  For example, in his conversations with federal inmates aired on HBO he spoke admiringly of ban-the-box programs.  It would be fitting if he implemented such a policy in the employment and contracting for which his Administration is responsible.  He might also consider pardoning deserving individuals,or supporting alternative relief mechanisms through the courts.  Hopefully in his final year he will turn his attention in that direction.

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