Author: CCRC Staff

Editorial staff of the Collateral Consequences Resource Center

“Invisible Stripes: The Problem of Youth Criminal Records”

This is the title of a paper by Professor Judith McMullen of Marquette University Law School.  Professor McMullen points out that “the efforts of today’s young people to ‘go straight’ are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.”  She argues that “we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.”

CCRC’s forthcoming study of how jurisdictions manage non-conviction records underscores the points made in this article.  It may come as a surprise to many that few jurisdictions automatically limit public access to and use of non-conviction records, and in fact many facilitate both through mass on-line posting of records – including arrests that never result in charges.  Even states that authorize courts to seal or expunge non-conviction records frequently impose daunting barriers to this relief, including financial barriers.  A decision of the Iowa Supreme Court last month, upholding a law conditioning expungement of dismissed charges on an indigent defendant’s payment of court-appointed attorney fees, vividly illustrates this access to justice problem that squarely frustrates efforts at reintegration.  There are a number of studies underway of the adverse effect of court debt on reentry, but none that we know of linking court debt to the operation of “clean slate” laws.

(more…)

Read more

Administration withdraws proposal to require federal job-seekers to disclose diversions

The Washington Post reports that the White House has directed the Office of Personnel Management (OPM) to drop its proposal to expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  OPM’s proposal, which we described in March, would have required applicants for federal jobs and contracting work to disclose participation in pretrial diversion programs in the last 7 years.

In March, we launched our non-conviction records project, a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.  The appearance of these records 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.  Our letter opposing the OPM proposal cited our research on diversions and pointed out that while “state lawmakers, judges, and prosecutors favor diversionary dispositions in appropriate cases to help people avoid the restrictions and stigma of a conviction, OPM’s proposal disfavors them by treating them like convictions.”

We are pleased to see the administration quash this ill-advised proposal, in the face of opposition from advocates on the left and right, lawmakers from both parties, and prosecutors and public defenders.  At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, the federal government should be moving to reduce the collateral consequences of diversion (as Indiana and Wisconsin did in 2018 when they prohibited licensing boards from considering arrests not resulting in conviction, or California and Nevada did in 2017 when they prohibited employers from considering an applicant’s successful completion of diversion).

While every state legislature has in some way addressed the problem of reintegration since 2012, Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.  Now is the time for federal action in support of reintegration, as the withdrawal of the OPM proposal evidently recognizes.

Read more

Should potentially severe collateral consequences trigger enhanced procedural protections?

In two recent law review articles, Professor Paul T. Crane of the University of Richmond School of Law proposes that courts and legislators—when deciding whether a criminal defendant is entitled to a particular procedural right—should take into account potential exposure to severe collateral consequences.  The two articles together mark a major contribution to the literature.  Much attention has focused on alleviating or eliminating collateral consequences after the criminal case is closed, via restoration of rights, clemency, expungement, and other forms of relief.  Also, lawmakers, courts, and prosecutors have increasingly turned to diversions and deferred adjudications to avoid a conviction record in the first instance.  However, far less attention has been paid to the procedural rights provided to criminal defendants facing potentially severe collateral consequences.  As Crane points out, collateral consequences are “generally deemed irrelevant for determining what procedural safeguards must be afforded.”

In Crane’s first article, he argues that courts and legislatures ought to take into account a defendant’s exposure to potentially severe collateral consequences in determining whether procedural safeguards, such as the right to counsel and to a jury trial, apply.  In his second article, he proposes a framework for determining when defendants may be entitled to enhanced procedural protections.

(more…)

Read more

Iowa high court holds indigent attorney fees bar expungement

On May 10, the Iowa Supreme Court rejected an equal protection challenge to a requirement in Iowa law that applicants for expungement (sealing) of non-conviction records must first repay what they owe in court-appointed counsel fees.  This surprising decision strikes us as unfair on several levels, and out of step with what most other states provide where limiting public access to non-conviction records is concerned.  Rob Poggenklass of Iowa Legal Aid, which brought the case, describes the decision below.

Update: A petition for certiorari is expected to be filed in the U.S. Supreme Court later this summer.  CCRC has agreed to file an amicus brief, which we expect will be joined by other organizations on “both sides of the aisle.” 

 

Iowa Supreme Court finds collection of court-appointed attorney fees a rational precondition for expungement

By Rob Poggenklass

In State v. Doe, the state’s highest court held in a 4–3 decision that the legislature could condition eligibility for expungement on payment of fees owed to court-appointed counsel, just as it requires payment of other court debt.  In 2015, the General Assembly enacted chapter 901C, which entitles people to expungement of criminal cases that were dismissed or in which the person was acquitted at trial, assuming a few criteria are met.  One significant requirement for expungement is the repayment of all court debt associated with the case.  This includes fees charged to the court by the counsel it appoints for indigent defendants, which in Iowa are often assessed even in acquittals and dismissed cases.  See Iowa Code section 815.9(6).

(more…)

Read more

NY judge rules police need court order to access sealed arrests

Last Tuesday, a New York court found that the New York Police Department’s routine use and disclosure of sealed arrest information violates the state’s sealing statute.  The case, R.C. v. City of New York, concerns plaintiffs whose information the NYPD used or disclosed after their arrests terminated favorably in dismissals or acquittals, after prosecutors declined to prosecute, or after cases resulted in non-criminal violations.  In New York City, over 400,000 arrests—nearly half of all arrests—were sealed between 2014 and 2016.  The lawsuit, brought by The Bronx Defenders, seeks to enforce the sealing statute’s protection of those records.

New York’s sealing statute—codified at Criminal Procedure Law §§ 160.50 and 160.55—requires that courts, prosecutors, and law enforcement agencies “seal” records when a case is terminated in a person’s favor or results in a non-criminal violation.  A “sealed” record “shall . . . not [be] made available to any person or public or private agency.”  The sealing requirement applies to “all official records and papers . . . relating to the arrest or prosecution . . . on file with the division of criminal justice services, any court, police agency, or prosecutor’s office.”  In addition, the statute requires that photographs and fingerprints be destroyed or returned to the formerly accused.

Despite the plain text of the statute, the NYPD has maintained, used, and disclosed information that should have been sealed, destroyed, or returned.  It has maintained this information in massive interconnected databases, some of which, like the “Domain Awareness System,” are deployed in every police precinct, on every officer smartphone, and in every police vehicle tablet.  It has used information in later police activity, allowing detectives to access and view sealed arrest information when investigating crimes.  And it has disclosed information both to prosecutors and the press—most prominently, about the victims of police shootings.

(more…)

Read more