Author Archives: CCRC Staff

Indiana’s new expungement law the product of “many, many compromises”

In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country.  Under the new law, courts are empowered to “expunge” most criminal records, after waiting periods keyed to the seriousness of the offense.  The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere.  This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation.

We r150px-On_the_Banks_of_the_Wabash,_Far_Away,_sheet_music_cover_with_Bessie_Davis,_Paul_Dresser,_1897ecently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states.  Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation.  But in an age of bipartisan support for criminal justice reform, apparently anything can happen.   Read more

Second Amendment challenges to felon-in-possession laws

Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Collat_ConsequencesConsequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about challenges to firearms-related collateral consequences based on the constitutional right to bear arms.  Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms rights after conviction, will be interested to know that the government has appealed the district court’s decision in Binderup v. Holder cited in note 8, discussed here a few weeks ago.

Binderup is a civil rights action in which the federal court in the Eastern District of Pennsylvania held that the federal felon-in-possession statute could not constitutionally be applied to an individual convicted of a non-violent sex offense in 1998 and sentenced to probation.  This case, the first in which a federal court invalidated a federal statute on Second Amendment grounds, is likely to provide an early opportunity for the court of appeals to consider an issue that most commentators and some courts believe was left unresolved by the Supreme Court in D.C. v. Heller.

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Discipline for schoolgirls differs by race and skin tone

The New York Times this morning describes data from the U.S. Department of Education’s Office for Civil Rights showing that African-American girls tend to face more serious school discipline than white girls.  “For all the attention placed on problems that black boys face in terms of school discipline and criminal justice, there is increasing focus on the way those issues affect black girls as well.”  Black girls who get in trouble at school are also more frequently referred to the criminal justice system, where they can incur a criminal record that sticks with them into adulthood.

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Federal agencies reportedly (mostly) satisfied with their collateral consequences

In 2013, the Justice Department launched its Smart on Crime Initiative, which included a call for federal agencies to review collateral consequences in their own rules and policies, to determine which could be narrowed or amended without jeopardizing public safety. According to an NPR report, the results of that long-anticipated review are now in:

Amy Solomon was appointed by Attorney General Holder to oversee the twenty federal agencies charged with reviewing their regulations and policies for potential changes. She reports that hundreds of regulations were reviewed, but the vast majority were deemed “appropriately tailored for their purposes,” including HUD’s discretionary housing policies. So far, only three agencies have submitted changes.

In assessing the “appropriately tailored” conclusion in the context of HUD housing policies, NPR reporter Monica Haywood tells the story of Maurice Alexander, a 67-year-old man who was turned away from subsidized housing in the District of Columbia based on a six-year-old misdemeanor threat conviction, despite guidance from HUD encouraging property owners and agents “to develop policies and procedures that allow ex-offenders to rejoin the community.” The HUD guidance urges property owners to consider all relevant information when reviewing applications from people with a criminal record, including evidence of rehabilitation and “probability of favorable future conduct.”

Haywood concludes that, “If Alexander’s case is any indication, owners may not be taking HUD’s advice.” Read more

Relief from sex offender registration and notification requirements

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Update (5/14/15): We have published a 50 state chart detailing relief from registration requirements on the Restoration of Rights page. The chart is based in part on Wayne Logan’s work. You can find the chart at this link.

 

Wayne Logan has summarized his research on relief from sex offender registration and community notification requirements for a forthcoming Wisconsin Law Review article in an excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming). This is the first of many tidbits from the book that will appear in this space from time to time:

2:42. Sex offense-related collateral consequences — Constitutional challenges to registration and community notification laws:  post-application challenges

Given the extended potential duration of registration and community notification (RCN) application, ranging from ten years to life, the question naturally arises over whether relief from its requirements and burdens can be attained at some point. While the federal Adam Walsh Act allows states to provide relief to registrants with a “clean record” for ten years,[1] states typically afford only very limited opportunity to registrants to exit registries.

South Carolina is most limited, offering no opportunity to petition for relief from lifetime registration and community notification;[2] only a pardon will trigger removal, and then only if the pardon is based “on a finding of not guilty specifically stated.”[3] In other states, opportunity for relief is only somewhat broadened, to include such sub-populations as juvenile offenders and those convicted of less serious offenses.[4] In still others, the eligibility group is again broadened, and petition is allowed after a period of years (e.g., 25),[5] and in several states select registrant groups can seek early relief.[6] Early relief, however, can be less than it seems:  in Hawaii, for instance, only lifetime registrants can petition for early relief—after forty years on the registry;[7] ten- and 25-year class registrants must satisfy their terms.[8]

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“Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level”

Amy Meek just sent us her colorfully titled and important new article recently published in the Ohio State Law Journal, about the collateral consequences imposed by municipal and county ordinances.  As far as I know, this is the first serious effort to address consideration of conviction in connection with opportunities and benefits controlled at the local level.  As the abstract below suggests, many types of entrepreneurial opportunities likely to be attractive to people with a criminal record are subject to governmental regulation below the state level. Because these local ordinances and regulations are rarely included in collections of state collateral consequences, they are invisible to defendants and unavailable to their counsel and the court at the time of plea or sentencing.  Only in a few large municipalities, notably New York City, are criminal justice practitioners even aware of this locally created and administered system of restrictions and exclusions.  For example, with the exception of the District of Columbia, municipal and county rules and regulations are not included in the NIJ-funded National Inventory of the Collateral Consequences of Conviction (NICCC). The potential for interaction between state and local authorities is a particularly intriguing subject that Professor Meek explores in her recommendations for legislative reform.

Here is the abstract:

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New report describes public health consequences of incarceration

A new report from the Vera Institute, On Life Support: Public Health in the Age of Mass Incarceration, highlights the “contagious” health effects of incarceration on the already unstable communities to which most of the 700,000 inmates released from prison each year will return.  The report argues that high rates of incarceration among residents in these communities are “one of the major contributors to poor health in communities,” and that this has “further contributed to diminished educational opportunities, fractured family structures, stagnated economic mobility, limited housing options, and restricted access to essential social entitlements.”  In “a political landscape ripe for reform” of these cascading collateral consequences of conviction, the report finds significant promise in the Affordable Care Act:

The passage of the ACA in 2010 was a watershed moment in U.S. history. State and local governments are increasingly realizing the opportunities created by the ACA to develop partnerships between health and justice systems that simultaneously abate health disparities and enhance public safety. A number of the legislation’s key provisions—the expansion of Medicaid, increased coverage and parity for mental health and substance use services, and incentives for creating innovative service delivery models for populations with complex health needs—provide new funding streams and tools for policymakers to strengthen existing programs and develop solutions to reduce mass incarceration.90 The ACA creates critical opportunities for states, local governments, and healthcare stakeholders to greatly expand the capacity of their community health systems to better meet the needs of underserved populations, curb the flow of medically-underserved populations into jails and prisons, pursue collaborative programming to plug service gaps between health and justice systems, and ensure that people are able to receive services in the community that are essential for health. …

Sexting prosecutions derailed by concerns about collateral consequences

The District Attorney of Oneida County (WI) has decided not to file criminal charges against forty teenagers implicated in a widespread sexting scandal in the Rhinelander school district.  His decision was reportedly based on concerns raised by parents and others about the collateral consequences of a criminal record.  In a joint press release, school officials and the local sheriff noted that felony charges could have limited students’ future employment prospects:

Although Wisconsin law does consider incidents such as this as felony offenses, and it does not have disciplinary alternatives for such offense, criminal charges were not filed against the students involved, which could be detrimental to the future of the students and, in turn, could be harmful to our community as these students will not be allowed to enter certain occupations

Under Wisconsin law, anyone convicted of a felony, no matter how minor, is permanently barred from obtaining over 100 professional licenses, and subject to many other adverse effects that may last a lifetime.

Instead of charging the students criminally, the school district is bringing in a Wisconsin Department of Justice special agent to give presentations to the students and parents about the seriousness of taking inappropriate photographs and distributing them on social media. Ten of the forty students who sexted on school grounds got one-day suspensions, and students who behavior violated the school athletic code were suspended for certain events.

The editor wonders whether such a resolution would be likely in an urban school setting.

Split NJ Supreme Court holds sex offender GPS tracking is punishment subject to ex post facto limits

As reported in this local article, headlined “Some sex offenders can’t be forced to wear GPS monitors, N.J. Supreme Court rules,” the top state court in the Garden State issued a significant constitutional ruling holding that New Jersey cannot force sex offenders to wear GPS tracking devises if they were convicted before the monitoring program was signed into law seven years ago. The court voted 4-3 to uphold an appellate panel’s decision that said it was unconstitutional for the state Parole Board to require George C. Riley to wear the ankle monitor when he was released from prison in 2009 after serving 23 years for attempted sexual assault of a minor.

Justice Barry Albin wrote that Riley, 81, of Eatontown, should not be subject to the 2007 law because it constitutes an additional punishment that was not included in the sentence he already served. The Court agreed with the lower court that the “retroactive application” of the GPS program to Riley violates the ex post facto clauses in the U.S. and state Constitutions, which safeguard against imposing “additional punishment to an already completed crime.” The court also rejected the state’s argument that the GPS monitor is not punitive but “only civil and regulatory.”

“Parole is a form of punishment under the Constitution,” Albin wrote for the high court. “SOMA is essentially parole supervision for life by another name.” He added that “the disabilities and restraints placed on Riley through twenty -four-hour GPS monitoring enabled by a tracking device fastened to his ankle could hardly be called ‘minor and indirect.’”

The full ruling in Riley v. New Jersey State Parole Board, No. A-94-11 (NJ Sept. 22, 2014) is available at this link.

–Read full article at Sentencing Law and Policy.

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