Author: CCRC Staff

Editorial staff of the Collateral Consequences Resource Center

Commercializing criminal records and the privatization of punishment

The deeply ingrained, indeed, constitutionally protected, U.S. tradition of the public trial and public records has led to a system where there are few restrictions on public access to criminal record information.  Europe, by contrast, is more willing to limit the press in service of important goals such as reintegration of people with convictions. Alessandro Corda and Sarah E. Lageson have published an important new study on how this works on the ground.  Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and The Rise of A New Penal Entrepreneurialism, in the British Journal of Criminology, explains how these traditions play out practically in the United States and Europe. The paper notes that systematically in the United States, and increasingly in Europe, private actors are “extracting, compiling, aggregating and repackaging records from different sources;” as the authors put it, they are “producing” not merely reproducing criminal records.  In so doing they expand the reach of punishment.  To the extent that any random Joe or Jane can obtain criminal records, then potential associates can make decisions based on records, accurate or inaccurate, showing convictions or even mere arrests or charges which were dismissed, diverted, or led to an acquittal. The case study…

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New restoration laws take center stage in second quarter of 2019

State legislatures across the country are moving quickly and creatively to repair some of the damage done by the War on Crime, which left a third of the adult U.S. population with a criminal record.  In the second quarter of 2019, 26 states have enacted an eye-popping total of 78 separate new laws aimed at addressing the disabling effects of a record.  Coupled with the laws enacted in the first quarter, the total for the first half of 2019 is 97 new laws enacted by 36 states.  By way of comparison, in all of 2018 there were 61 new restoration laws enacted in 32 states and two territories, which was then a record. Much of the new legislation this quarter is quite significant.  Some states made their first substantial effort in decades to deal with the problems presented by record-based discrimination, while others refined and extended reforms enacted in the recent past.  Some states enacted multiple laws dealing with the same restoration issue (Texas stands out with five laws on occupational licensing alone), and some dealt with multiple issues in one law (New York dealt with no fewer than twelve separate issues in a 2020 budget bill).  Many of the specific…

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Colorado limits immigration consequences of a criminal record

Colorado joins other states this session that passed legislation to avoid federal immigration consequences of state criminal matters.  The new Colorado laws—SB 30 and HB 1148—work at different stages of criminal proceedings to protect people from possible deportation: SB 30 remedies past wrongs by vacating unconstitutional guilty pleas, and SB 1148 will prevent future deportations resulting from potential one-year sentences. On May 28, Colorado enacted SB 30, which went into effect immediately and helps ensure that when a person is offered a non-conviction diversion, it is not treated as a conviction for immigration purposes.  In many states, people facing criminal charges are offered the chance to avoid a conviction by agreeing to a type of diversion called deferred adjudication.  They plead guilty and complete a period of probation, after which the plea is withdrawn and charges are dismissed.  Sounds good right?  Not for a non-citizen.  In that case, federal law treats this arrangement as a conviction—sufficient to initiate deportation proceedings.  See 8 U.S.C. § 1101(a)(48)(A); § 1227(a)(2).  However, such a plea may be unconstitutional if a person was not properly advised of these immigration consequences.  See Padilla v. Kentucky, 559 U.S. 356 (2010). The new Colorado law provides procedures for courts to vacate…

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“Wealth-based penal disenfranchisement”

This is the title of a study by UCLA law professor Beth Colgan, published in the Vanderbilt Law Review, in which she documents how every state that disenfranchises people based upon criminal conviction also conditions restoration of the vote for at least some people upon their ability to pay.  In some states this is because the law requires people to pay fines, fees, restitution and other court costs before they can vote.  Even in the states that restore the vote immediately upon release from prison, “wealth-based penal disenfranchisement” may occur through policies applied by parole and probation authorities. Colgan proposes that such laws and policies can be challenged on Equal Protection grounds, arguing that felony disenfranchisement should be considered not as a civil rights deprivation but as punishment.  She argues that the test developed by the Supreme Court in cases involving disparate treatment between rich and poor in criminal justice practices, should operate as a flat prohibition against “the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense.” Colgan’s article is particularly relevant in light of Florida’s recent enactment of…

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CCRC to hold roundtable on criminal records at U. Michigan Law School

We are pleased to announce that we are convening a roundtable meeting in August 2019, hosted by the University of Michigan Law School, to develop a model law on access to and use of criminal records, specifically in cases that do not result in a conviction. In March, we began a major study of the public availability and use of these non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public allowing widespread dissemination on the internet, both directly and through private for-profit databases.  Their appearance in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Research has shown that limiting public access to criminal records through mechanisms like sealing and expungement increases the earning ability of those who receive this relief, which in turn benefits their families and communities. The problems of access and use are not limited to private actors:  a recent court decision in New York suggests that police departments in some jurisdictions make…

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