Author Archives: CCRC Staff

“Trump’s Theater of Pardoning”

The piece reprinted below is the first part of Bernadette Meyler’s contribution to a Symposium published by the Stanford Law Review on her book Theaters of Pardoning. It is as cogent a guide to understanding President Trump’s pardoning practices, and how they differ from those of his predecessors, as anything else we have seen. If, as Prof. Meyler argues, the message sent by Trump’s pardons is “the rejection of law,” it would be ironic (though entirely welcome) if they prompted Congress to reroute into the legal system much of the business heretofore committed exclusively to presidential pardoning, notably relief from the collateral consequences of a federal conviction. Then presidents could pardon to their heart’s delight, without worrying about the inherent unfairness of their actions.

“Trump’s Theater of Pardoning”

by Bernadette Meyler

Introduction

In many ways, President Trump has returned to a performance of pardoning more familiar to early modern England than to contemporary America. Largely eschewing bureaucratic processes, Trump has taken advantage of the political theater that pardoning can provide. Like some of the real-life and fictional kings who appear in my book, Theaters of Pardoning, Trump has also called law and legal regimes into question through his pardons, and, in doing so, asserted his own impunity from law. Ignoring the common law restrictions that had accreted around pardoning, Trump has chosen to interpret his power as absolute, unfettered by norms like refraining from judging in one’s own case and forgiving but not forgetting. And this is only the story of Trump’s formal pardons. As Kenji Yoshino’s essay in this Symposium elaborates, Trump’s numerous revisions of history represent even more pervasive efforts at enacting amnesty and oblivion.

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Sex offense registries in Europe and around the world

We are pleased to publish new research by Stephen Schulhofer about the treatment of sex offense registration in the UK, Canada, Australia, New Zealand, and the EU. The research, presented here with an introduction by Alessandro Corda, comes from material prepared for inclusion in an upcoming draft of the Model Penal Code: Sexual Assault and Related Offenses (full citation and disclaimer below).

Introduction: An Important Look at Foreign Policy and Practices Regarding Sex-Offense Collateral Consequences

By Alessandro Corda, Lecturer in Law, Queen’s University Belfast School of Law

The American Law Institute’s ongoing project aimed at reforming the Model Penal Code provisions on sexual assault and related offenses includes within its reach not only substantive criminal law provisions, but also collateral consequences applicable specifically to persons convicted of a sexual offense, in particular sex offense registries.

Sex offense registration and notification laws are a quintessential example of a collateral consequence of conviction that flourished during the so-called “tough-on-crime era.” The first sex offense registries in the United States were enacted in the late 1940s as a way “to inform the police of the whereabouts of habitual sex offenders.” The idea soon lost favor to so-called sexual psychopath laws. By the 1970s, however, such laws had likewise lost approval, “either being repealed or widely ignored as ineffective and unjust policies” (Hoppe, 2016, p. 577; see also Rice Leave, 2009). Everything changed in the 1990s, following high profile cases of abduction and sexual torture of children in the context of a climate of raising punitiveness.

The first state sex offense registration law was passed in Washington State in 1990 and applied to people convicted of certain sexual offenses. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act as part of the controversial Clinton Crime Bill, requiring states to implement sex offense registries. In 1996, the so-called Megan’s Law amended the 1994 Act to require each state to provide notification and information to communities about convicted sex offenders living in the area for public safety purposes.[*] Prior to that, individuals convicted of a sexual offense only had to register with local law enforcement agencies, with public notification procedures available under certain circumstances. The subsequent Sex Offender Registration and Notification Act of 2006 (SORNA), also known as the Adam Walsh Act, rewrote the law in its entirety to mandate the creation of a nationwide online registration and notification system and provided a set of minimum standards to be followed across the United States (Jones & Newburn, 2013, pp. 444-46; Logan, 2009, pp. 429 ff.). Since 2006, a number of federal bills have added to SORNA’s provisions to address issues such as online safety and international travel by registered individuals.

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Updated: “Who Must Pay to Regain the Vote? A 50-State Survey”

We are pleased to publish an update of our 50-state report on how unpaid court debt blocks restoration of voting rights lost as a result of a felony conviction:

Who Must Pay to Regain the Vote? A 50-State Survey

This report examines the extent to which state reenfranchisement laws consider payment of legal financial obligations (LFOs), including fines, fees, and restitution, in determining whether and when to restore voting rights to people disenfranchised due to a felony conviction. (Our national survey discusses and ranks each state’s general approach to loss and restoration of voting rights based on conviction.)

We first published this research in July 2020 during litigation over Florida’s 2018 voting rights ballot initiative, which many expected would restore voting rights to more than a million people disenfranchised because of a felony conviction. However, the initiative was interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which drastically limited its anticipated reach. A federal district court found this system unconstitutional, but the U.S. Court of Appeals for the Eleventh Circuit reversed that conclusion in a 6-4 decision.

During the appeal, an amicus brief by the State of Texas, joined by seven other states, asserted that “States across the country have similar rules [to Florida] for felon voting” and that the district court’s holding “called into question the widespread practice” of permanently disenfranchising people who are not able to “pay their debts to society.”  As we demonstrated in our original report and amicus brief, the assertions in the Texas brief were not well-founded: few states have laws like Florida’s that indefinitely deny reenfranchisement based on any unpaid debt related to a disqualifying conviction.

This updated report documents whether and to what extent unpaid LFOs restrict voting rights in each state, and reflects developments in California, where voters early this month passed a constitutional amendment to restore voting rights to those on parole; and in Iowa, where the governor in August issued an executive order to restore voting rights after completion of incarceration and supervision, regardless of payment of LFOs.

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Business community endorses broad second-chance agenda

The Business Roundtable, which represents the CEOs of major U.S. companies, yesterday issued corporate and public policy recommendations to advance racial equity and justice in the wake of 2020’s triple crises disproportionately impacting communities of color: pandemic, recession, and protests in response to police violence.  The policy recommendations have six themes: employment, finance, education, health, housing, and the justice system.  The justice system policy report was developed with the assistance of CCRC’s Margaret Love and David Schlussel, who provided general advice in connection with the Roundtable’s consideration of second-chance policies.

The second-chance recommendations are extremely encouraging, signaling the business community’s embrace of a broad agenda for alleviating barriers to economic and social opportunities for people with a criminal record.

The Roundtable endorsed specific pending federal legislation dealing with automatic expungement, judicial certificates of relief, fines and fees reforms, and prison education and training programs.  The Roundtable also expressed support for expanding federal and state deferred adjudication (judicial diversion) policies, limiting the dissemination of dated conviction records in background checks, “banning the box” in hiring in all states, and relaxing state and federal hiring and occupational licensing bans.

As part of its action agenda, the Roundtable has committed to partnering on the creation of a business coalition to advance second-chance hiring by employers. Coalition members will exchange best practices, learn from subject matter experts, and develop and deploy tools to improve second-chance hiring, as part of a workforce diversity strategy.

Our recent national report, “The Many Roads to Reintegration,” which surveys the current state of the law on many of the issues addressed by the Roundtable recommendations–including employment, licensing, expungement, judicial certificates, deferred adjudication, and other forms of record relief–is available here.

The Roundtable’s full set of justice system recommendations are listed below.

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Michigan makes sealing of convictions automatic, including for some felonies

On October 12, Michigan Gov. Gretchen Whitmer signed a series of bills that will dramatically reform that state’s “set-aside” authority, colloquially known as “expungement.” The bills will establish a new automatic mechanism to expunge certain convictions without a person having to ask for it, and significantly expand eligibility for expungement under the existing petition-based application system.

“This is a historic day in Michigan. These bipartisan bills are a game changer for people who are seeking opportunities for employment, housing, and more, and they will help ensure a clean slate for hundreds of thousands of Michiganders,” said Governor Whitmer. “This is also an opportunity to grow our workforce and expand access to job training and education for so many people. I am proud to sign these bills today alongside Lieutenant Governor Gilchrist and many of the bipartisan leaders who worked on them.”

“Everyone deserves the chance to build a good life for themselves and their families. But far too many people enter the criminal justice system and end up cut off from those opportunities and are pushed toward a cruel cycle of poverty and crime. That’s not right, and it creates bad outcomes for all of us,” said Republican House Speaker Lee Chatfield. “These bills are an important step to righting that wrong and helping good people who’ve paid their debt get back on their feet. I am glad we were able to find common ground on this important issue and deliver reform that will help people statewide.” 

It is estimated that the bills will make hundreds of thousands of Michiganders eligible for expungement for the first time, and that relief will be delivered automatically to a significant percentage of them when the automatic feature is expected to become operative in October 2022 (subject to necessary appropriation and a potential 180-day extension). The other bills signed into law, including one that streamlines expungement for marijuana misdemeanors, are effective immediately.

This legislative package makes Michigan the sixth state to enact an automatic conviction-sealing law covering a range of offenses. It also makes Michigan the third state to make relief automatic for some felony convictions, joining New Jersey and California. (An additional three states plus California have enacted more specialized laws to automatically seal low-level marijuana convictions.)

The specific provisions of the Michigan bills, as well as automatic sealing laws in other states, are discussed below.

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The Reintegration Report Card

We are pleased to publish “The Reintegration Report Card,” a new resource that ranks and grades all 50 states on how their laws address voting rights, record relief (including expungement and pardon), fair employment, and occupational licensing for people with a criminal record.

This Report Card supplements our recent 50-state report, “The Many Roads to Reintegration.” That report surveys U.S. laws aimed at restoring rights and opportunities after arrest or conviction. It grades the states on nine different types of restoration laws, including voting rights, six different record relief remedies, and laws regulating consideration of criminal record in employment and occupational licensing. Based on these grades, the report includes an overall ranking of the states and D.C.

This Report Card provides the grades and rankings in a more easily accessible form. It also includes a brief narrative summary of how each state’s law stacks up in the different graded categories. Our hope is that these summaries will suggest ways in which a state might improve its laws and hence its overall ranking. An appendix collects all the grades and rankings (the rankings are also at the end of this post).

We emphasize once again that our grades are based solely on the text of each state’s law, leaving more nuanced judgments about their actual operation to practitioners, researchers, and the law’s intended beneficiaries. We expect to look more closely at the operation of some of the record relief laws in the near future, and welcome comments and suggestions from those who have experience with them. In the meantime, we hope our grades will challenge, encourage, and inspire additional reforms in the months and years ahead.

The Reintegration Report Card is available at this link. For more details and legal citations for each state, see the Restoration of Rights Project. For essays surveying each topic, consult “The Many Roads to Reintegration.”

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Michigan to be sixth state with automatic conviction relief

*Update (10/12/20): Gov. Whitmer signed the legislation into law.

On September 23, the Michigan legislature approved a series of bills that would dramatically reform that state’s “set-aside” authority, colloquially known as “expungement.” The bills, which are headed to Gov. Gretchen Whitmer for signature, would significantly expand eligibility for expungement under the existing petition-based application system, and establish a new automatic mechanism to expunge certain convictions without a person having to ask for it.

It is estimated that the bills will make hundreds of thousands of Michiganders eligible for expungement for the first time, and that relief will be delivered automatically to a significant percentage of them when the automatic feature becomes operative in October 2022. The other provisions of the bills are effective immediately.

This package would make Michigan the sixth state to enact an automatic conviction-sealing law covering a range of offenses. It would also make Michigan the third state to make relief automatic for some felony convictions, joining New Jersey and California. (An additional three states plus California have enacted more specialized laws to automatically seal low-level marijuana convictions.)

The specific provisions of the Michigan bills, as well as automatic sealing laws in other states, are discussed below.

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NC court rules vote may not be denied based on court debt

On September 4, a North Carolina state court issued a major decision on restoration of voting rights.  In North Carolina, voting rights lost upon a felony conviction are automatically restored upon “unconditional discharge” of sentence or unconditional pardon.  A three-judge panel, observing that “unconditional discharge” can be delayed for up to eight years because of unpaid restitution and other financial obligations, ruled that conditioning the vote on payment of money violates the state constitution’s guarantee of equal protection and ban on property qualifications in voting.  The court held, in a 2-1 ruling, that the state may not withhold the vote from people whose only remaining aspect of their sentence–other than regular conditions of probation–is payment of a financial obligation. The dissenting judge opined that people convicted of felonies have no “fundamental interest” in voting.

The court issued a summary judgment order and preliminary injunction requiring the state to allow individuals to register to vote immediately if: (1) their “only remaining barrier to obtaining a ‘unconditional discharge’ other than regular conditions of probation…is the payment of a monetary amount”; or (2) they have been discharged from probation and owed a monetary amount upon termination of probation, including if the amount was reduced to a civil lien.

Forward Justice, Protect Democracy, and Arnold & Porter represent the plaintiffs in the case: Community Success Initiative, the North Carolina State Conference of the NAACP, Justice Served NC, Inc, and Wash Away Unemployment. Forward Justice’s press release is here.

Meanwhile, the questions raised by Florida’s “pay-to-vote” system remain under consideration by the federal court of appeals for the 11th Circuit.  CCRC filed an amicus brief in that case describing how court debt affects restoration of voting rights in all 50 states. The full court heard argument in the case Jones v. DeSantis on August 18, but it is not clear whether there will be a decision before the October 5 deadline to register to vote in that state.

Expungement, sealing & set-aside of convictions: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

Last month we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.” So far, we have previewed the report in draft chapters covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing,” as well as several sections of the chapter on record relief, a term comprising the various remedies that revise or supplement a person’s criminal record to reduce or eliminate barriers to opportunity in civil society. The sections published so far are “pardon policy and practice,” “deferred adjudication,” “non-conviction records,” and “judicial certificates of relief.”

This final installment of the record relief chapter concerns expungement, sealing, and set-aside of conviction records. These remedies alleviate the stigma and discrimination of a conviction record by restricting access to the record and/or vacating the conviction. At the end of the section, we include a report card with grade for each state’s misdemeanor and felony conviction relief laws.

We expect to publish the entire “Many Roads” report later this week.  In addition to a series of “report cards” on specific relief mechanisms, it will include an ranking of states for the effectiveness of their overall combined relief schemes.

A PDF of the section on conviction relief is available here. The full text follows, with end notes.

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Judicial certificates of relief: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

Last month we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.” So far, we have previewed the report in draft chapters covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing,” as well as several sections of the chapter on record relief, a term comprising the various remedies that revise or supplement a person’s criminal record to reduce or eliminate barriers to opportunity in civil society. The sections published so far are “pardon policy and practice,” “deferred adjudication,” and “non-conviction records.”

This installment of the record relief chapter concerns judicial certificates, orders that courts or parole boards in a dozen states are authorized to issue to convicted individuals with the dual purpose of avoiding mandatory collateral consequences and helping to overcome discretionary ones. Later this week we will publish the final major section of this chapter, on conviction relief via expungement, sealing, and set-aside.

We expect to publish the entire “Many Roads” report by the end of the month. In addition to a series of “report cards” on specific relief mechanisms, it will include an ranking of states for the effectiveness of their overall combined relief schemes.

A PDF of the section on judicial certificates is available here. The full text follows, with end notes.

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