Author Archives: CCRC Staff

Should guilty corporations avoid collateral consequences?

In the June 2 issue of the New York Law Journal, Robert J. Anello and Richard F. Albert argue that “criminal law concepts designed to punish human beings—bad boys and girls—are ill-suited to corporate beings.”  They point out that corporations convicted of crime are rarely required to live with the kind of collateral consequences that result in loss of livelihood and social stigma for individuals (“Convicted Corporations Aren’t Really Bad Boys“).   They describe how the government recently made “significant efforts to blunt the effects” of conviction on four major international banks that pleaded guilty to manipulation of foreign exchange rates, so that none of them ended up subject to “rules that would have restricted [their] ability to continue doing business in the United States.”  The banks are currently seeking a waiver of Labor Department rules that would otherwise bar them from dealing with pension and retirement plans, and the government has postponed sentencing pending the outcome of these efforts.   Read more

Should clemency substitute for the rule of law? “A Modest Proposal” says no

We cross-post a recent comment about the Obama clemency initiative from Professor Doug Berman’s Sentencing Law and Policy blog because it proposes to supplement the constitutional pardon power with a relief mechanism built into the legal system (there, a sentence reduction by the court rather than presidential commutation).  It reflects the institutional and practical concerns of Enlightenment philosopher Cesare Beccaria, who proposed in 1764 that

Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment.

Beccaria’s view that clemency should “shine in the code” has a special resonance where collateral consequences are concerned since pardons have become so rare in recent years. Indeed, Judge John Gleeson might have invoked Beccaria when he expunged the conviction of a woman who was unable to find employment because of her criminal record.  We intend to keep arguing in this space for a statutory restoration remedy for the federal system, whatever form it may take.    Read more

Managing collateral consequences in the sentencing process

A new paper by CCRC editor Margaret Love describes how the newly revised sentencing articles of the Model Penal Code manage collateral collateral consequences by integrating them into the sentencing process.  The article, published in the Wisconsin Law Review, compares the new MPC provisions with the collateral consequences provisions of the original 1962 Code.  Here is the abstract:

The debased legal status that results from a criminal conviction makes possible a regime of restrictions and exclusions that feels like punishment to those who are subject to it and looks like punishment to the community.  Policy makers are beginning to understand that the goal of reintegrating criminal offenders into society is not well served by a legal system that makes them permanently ineligible for many of its benefits and opportunities and effectively marks them as social outcasts.  Because courts have failed to address issues of severity and proportionality raised by punitive mandatory collateral penalties, and because legislatures have been unwilling to dial them back in any meaningful fashion, reformers have turned to the sentencing system to restore collateral consequences to an appropriate regulatory role.

 

 

One such reform proposal is the American Law Institute’s Model Penal Code: Sentencing (MPC), which integrates collateral consequences into a sentencing system that gives the court rather than the legislature responsibility for shaping and managing criminal punishment in particular cases.  Just as the court decides what sentence it will impose within a statutory range, the court also decides which mandatory collateral penalties will apply and for how long.  This gives sentencing courts new tools to further the rehabilitative goals of sentencing, and at the same time it enables them to avert issues of proportionality an

Why shouldn’t everybody with a felony conviction be allowed to vote?

The editors of the New York Times are critical of Maryland Governor Larry Hogan’s recent veto of a law that would have allowed anyone with a felony conviction to vote if they are living in the free community.  See “A Bad Voting Ban,” June 1, 2015.  Maryland’s law now disenfranchises anyone convicted of a “felony and . . . actually serving a court-ordered sentence of imprisonment, including any term of parole or probation, for the conviction.” The Times editorial points out that Maryland changed its law to restore voting rights automatically upon completion of sentence in 2007, and that disenfranchisement based upon conviction is generally a punitive relic of slavery.

So if felony disenfranchisement laws are punitive relics, why should they be applied to anyone, even people who are still in prison?   The logic of the Times editors’ position would seem to support voting by prisoners, as happens in Vermont and Maine and in many parts of Europe.  An argument against voting by prisoners based on disenfranchisement as an integral part of court-imposed punishment would apply equally to probationers and parolees. The notion that prisoners no longer have a connection to their communities is a self-fulfilling prophecy that runs against current policies of encouraging prisoner reentry.   If there are practical reasons to bar prisoners from jury service and political office, they do not apply to voting when absentee ballots have become commonplace.

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Lawsuit challenges Pennsylvania bar to nursing home employment

An effective NPR piece tells the story of Tyrone Peake, a Pennsylvania man whose 1981 conviction for attempted theft barred him from employment as a caregiver in a nursing home, despite training and certification that qualified him for the job.  The state law making people with a felony record absolutely ineligible for employment in any health care facility in the state was was held unconstitutional by the Pennsylvania Supreme Court 15 years ago on equal protection grounds.  However, it remains on the books and enforced despite repeated rulings by lower courts invalidating it in particular cases.  Now another lawsuit has been filed, with Mr. Peake as one of the plaintiffs, that seeks to put an end to this broad and unfair collateral sanction once and for all.  The lawsuit is described in the following article from the website of Community Legal Services of Philadelphia, one of the law’s challengers.   Read more

Obama clemency process reportedly “more backlogged than it was before”

USA Today reports that unexpected administrative complications continue to delay the clemency initiative launched by the Obama administration last year.  More than a year after the Justice Department sought assistance from private organizations in identifying federal prisoners deserving of sentence commutation, that ancillary process has submitted only 31 cases for favorable presidential action.  In light of the fact that more than 1500 volunteer lawyers have been working since last fall on cases assigned by Clemency Project 2014, this modest number is surprising.

Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.

The result is a system that appears even more backlogged than it was before the initiative began.

Collateral consequences of conviction in Greece

Collateral Consequences of Conviction in Greece[1]

by Dimitra Blitsa

1. Access to Greek Criminal Records 

In Greece, a criminal record is created for every adult[2] person who has been irrevocably convicted of a misdemeanor or a felony (i.e. by a decision not subject to an appeal before the Supreme Court). Unlike in the U.S. but consistent with continental European countries, a Greek criminal record does not contain arrest information. Individual criminal history records are considered “sensitive personal data.” Disclosure and access is restricted to protect the convicted person’s privacy and to promote rehabilitation. Although Greek court proceedings are open to the public, court records are not available for public inspection.

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Copyright dispute roils federally-funded database of collateral consequences

Copyright-symbol-with-a-lockShould a compilation of collateral consequences mandated by federal law and prepared with federal funds be freely available to states and members of the public?  The Uniform Law Commission says yes, the American Bar Association says no.

In an article posted on May 18, the Wall Street Journal pulled back the curtain on an on-going dispute between the ULC and the ABA over copyright restrictions the ABA has imposed on data in the National Inventory of Collateral Consequences (NICCC).  The ULC is concerned that restrictions on access and use of the NICCC data are likely to stymie adoption of the Uniform Collateral Consequences of Conviction Act (UCCCA), which requires that states create their own inventories.  The ABA contends that the existence of other potentially conflicting databases would create undesirable confusion about the meaning of the law.  An excerpt from the WSJ piece (a companion to another article on collateral consequences published the same day), follows: Read more

Georgia high court extends Padilla to parole eligibility

The Supreme Court of Georgia has extended the doctrine of Padilla v. Kentucky to a failure to advise about parole eligibility.  In Alexander v. State, decided on May 11, a defendant sentenced to a 15-year prison term for child molestation sought to set aside his guilty plea on grounds that his defense counsel had not warned him that, as a recidivist, he would not be eligible for parole.  The Georgia high court agreed that this failure constituted deficient performance under the doctrine of Strickland v. Washington, overruling its 1999 precedent holding that the Sixth Amendment did not require a defense lawyer to advise a client about this “collateral consequence” of conviction. The Georgia court distinguished its 2010 post-Padilla decision declining to find a warning by the court necessary, finding a clear constitutional distinction between defense counsel’s Sixth Amendment obligation to advise a client considering a guilty plea and the court’s due process obligation to warn a defendant in the same situation.

At the same time, the court declined to approve a lower court’s earlier extension of Padilla to sex offender registration, reserving for another day the question whether this consequence is “a drastic measure” that is “intimately related” to the criminal case.  Most of the post-Padilla decisions involving parole eligibility have rested on the dubious pre-Padilla erroneous advice exception to the collateral consequences rule, an exception that the Alexander court firmly rejected.

27 Senators urge Obama to “ban the box” in federal hiring

A group of 27 U.S. Senators have written to President Obama urging him to implement “fair chance” hiring in federal government employment.   The Senators — all Democrats, led by Sherrod Brown (D-OH) and Cory Booker (D-NJ) — asked the President to issue an executive order directing federal agencies and contractors to postpone inquiry into criminal records until a later point in the hiring process.  The so-called ban-the-box movement in the states has been gaining steam and has been largely bipartisan, with executive orders issued most recently in Georgia and Vermont.  Some of the largest employers in the country, including Walmart, Target, Home Depot and Koch Industries have also stopped asking about prior convictions at the beginning of the job application process.

The press release and letter are here.  A January 2015 report from the National Employment Law Project suggests that the details of a presidential executive order may be difficult to work out, given the decentralized nature of federal hiring and the applicability of formal background check requirements to a substantial number of federally-funded jobs.

 

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