Author: CCRC Staff

Editorial staff of the Collateral Consequences Resource Center

Landmark criminal record disclosure case in the UK Supreme Court

Court litigation and policy debate revolving around the issue of criminal record disclosure are not unique to the United States. Especially in the United Kingdom, the past few years have witnessed important court decisions on the legal framework in place regulating access to criminal history information and the amount of information that can be obtained by third parties. For people with criminal records in the United Kingdom, last month was pretty significant.  This is why I am very happy to post on the CCRC blog a commentary on recent litigation before the UK Supreme Court authored by Christopher Stacey, co-director of Unlock, an independent charity organization that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record. Christopher last month led Unlock’s intervention before the UK Supreme Court. They put forward strong arguments on behalf of those who are unfairly affected by the criminal records disclosure regime.

Before discussing the case, let me briefly summarize the framework of the disclosure regime currently in place in the UK.  This regime and the ongoing court litigation should be particularly interesting to advocates and lawmakers in the U.S. who are working to reform their own regimes.

Following the adoption of the Rehabilitation of Offenders Act in 1974, adult and juvenile convictions automatically become “spent” after the passage of a certain amount of “rehabilitation” time following completion of the sentence if the punishment imposed in court did not exceed a certain threshold provided for by the law (currently, a custodial sentence of over four years). Convictions triggering a custodial sentence of more than four years can never become spent.  Required periods of post-sentence rehabilitation before a conviction is considered spent currently range from one to seven years for adult convictions, and from six months to three and a half years for juvenile offenses.  There is no rehabilitation period before criminal records not resulting in conviction are considered spent.

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BU Law Review publishes symposium on misdemeanors

In May 2018 the Boston University Law Review published a symposium titled “Misdemeanor Machinery: The Hidden Heart of the American Criminal Justice System.”  Links to the articles, which were presented at a conference held in November 2017, are below.  The conference also benefited from presentations by a number of distinguished academics, judges, and policy-makers, including Alexandra Natapoff, Issa Kohler-Hausmann, Jeffrey Fagan and retired Judge Shira Scheindlin.  The full list of speakers is available here.

A recurring theme throughout the conference was how misdemeanors impose significant collateral consequences, including in ways that are deeply disproportionate.  The articles offer valuable insight into how prosecutors, public defenders, lawmakers and judges ought to consider collateral consequences of misdemeanor arrests and convictions.  The entire symposium issue is well worth a read.

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“Managing Collateral Consequences in the Information Age”

“Managing Collateral Consequences in the Information Age” is the title of a symposium issue of the Federal Sentencing Reporter.  It is composed of papers prepared for a Roundtable conference on criminal records issues jointly sponsored by the American Law Institute and the National Conference of State Legislatures in January 2018, and associated primary source materials.  The issue’s Table of Contents shows the breadth and variety of topics covered. An introductory essay by Margaret Love summarizes the approach to managing collateral consequences in the revised sentencing articles of the Model Penal Code, and the seemingly contrary trends in criminal records management in state legislatures in recent years.  She describes each of the papers in the issue, and policy recommendations tentatively reached by participants in the January Roundtable.

  • Alessandro Corda of Queens University (Belfast) contributes a discussion of “American exceptionalism” in criminal records matters, and proposes a way of neutralizing their malign effect.
  • Scholars and practitioners describe how relief schemes work (or don’t work) in states as diverse as:
    • North Carolina (John Rubin, UNC/Government)
    • Tennessee (Joy Radice, UT/Law)
    • Nevada (Sen. Tick Segerblom and Nick Anthony, NV Legislature)
    • California (Jack Chin, UC Davis/Law; Eliza Hersh)
    • Indiana (Josh Gaines and Margaret Love, CCRC)
  • Douglas Berman and Nora Demleitner write about subsets of the collateral consequences problem (sex offender registration and marijuana decriminalization).
The issue also publishes the provisions of the Model Penal Code: Sentencing on non-conviction dispositions and on collateral consequences, and a collection of reports and other materials from the Collateral Consequences Resource Center.
The University of California Press has generously made available to non-subscribers the entire FSR issue for downloading at this link.
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SC legislature overrides veto to broaden expungement laws

On June 27, the South Carolina legislature took the extraordinary step of overriding Governor McMaster’s veto of a bill that expanded eligibility for expungement in several significant (if relatively modest) ways.  House Bill 3209 is now law, and will take effect in six months.  This is one of the very few times in recent years that a state legislature has overridden a governor’s veto of a bill intended to improve opportunities for people with a criminal record.

The new law, which will go into effect after six months, extends expungement eligibility to first offense simple drug possession (after three years) or possession with intent to distribute (after twenty years), and to conviction of repealed offenses.  It also repeals first offender limits on expungement eligibility for convictions in magistrates court (summary offenses) and in juvenile proceedings, and applies all of these authorities retroactively.  HR 3209 also restructures fee provisions and authorizes private donations to defray costs for those who cannot afford to pay the fee.  Finally, HR 3209 authorizes expungement for anyone convicted prior to passage of the Youthful Offender Act of 2010 who could have been eligible for sentencing as a first offender under that provision.  The YOA provides that individuals between the ages of 17 and 25 who are convicted of certain non-violent misdemeanors and minor felonies may be sentenced to probation and treatment, so the extension of that law’s relief to pre-2010 convictions is quite significant.  

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NC expands certificate law, taking three steps forward, one step back

The states are on a roll in passing new “second chance” legislation.  In addition to the extraordinary new Pennsylvania bill on automatic sealing we posted about earlier today, we’ve just learned that the North Carolina legislature has approved a bill modifying eligibility for judicial Certificates of Relief.  Certificates, which are available from the sentencing court one year after sentencing, remove mandatory collateral consequences (including in employment and licensing), certify that an individual poses no public safety risk, and provide negligent hiring protection.  The bill has been sent to the Governor for signature, we will inform you as soon as he has done so.   Hat’s off to our friends at the North Carolina Justice Center, who worked hard to get this bill passed!   

The bill will provide further relief and opportunity for people with multiple convictions.  The “one step back” referred to in the title of this post is that while the bill significantly expands eligibility for misdemeanors and the lowest level felonies, it also removes from eligibility one class of felony.   It is inevitable that there will occasionally be some last-minute counter-current in pressing for extension of relief provisions.   In North Carolina, what might have been cause for discouragement has evidently (and commendably) provided advocates with additional incentive to pursue a reform agenda and to educate employers about the value of certificates.   

Here is a description of the bill from Daniel Bowes at the NCJC:     (more…)

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