The CCRC is seeking a lawyer to join its staff to work primarily on the Restoration of Rights Project (RRP). The primary duties of the RRP Legal Analyst, as described in the position description below, involve collecting and analyzing the law and practice in each U.S. jurisdiction relating to restoration of rights; and, updating the on-line resources that comprise the RRP. An important part of the job is identifying and tracking bills relating to restoration of rights as they become law, which has become an increasingly important and challenging task in the past several years. In conducting legal research, preparing reports, and responding to inquiries, the RRP Legal Analyst will have a unique opportunity to engage with CCRC staff and lawyers across the country who are working in this emerging area of scholarship and practice.
The RRP Legal Analyst position is part-time, though applicants should be prepared to commit to at least 15-20 hours per week for at least six months. The position may be particularly attractive to individuals seeking a flexible work schedule and workplace. The position will be compensated on an hourly basis, starting at a base rate of $26.50 per hour, a rate that may be negotiable depending on experience.
Applicants should have familiarity with criminal law and procedure, and preferably with the legislative process, and they should have proven research and writing skills. Please see the position description for further details. A letter of interest, resume and writing sample, as well as the names of references, should be sent to Margaret Love, CCRC executive director, at firstname.lastname@example.org.
I am delighted to announce that David Schlussel will join CCRC as its first Fellow at the end of this month. Most recently, David served as a law clerk for the Honorable David O. Carter on the U.S. District Court for the Central District of California. While attending law school at Berkeley, David represented clients in juvenile delinquency, school discipline, and clean slate proceedings as a clinical student for the East Bay Community Law Center. He also interned at public defender offices, taught outreach courses in Juvenile Hall, and wrote a law review note on marijuana, race, and collateral consequences. David has been interested in inequities in the criminal justice system since college, when he volunteered as a GED tutor at the New Haven jail.
During his fellowship year, David will be maintaining CCRC resources, including the Restoration of Rights Project; reporting on new laws and developments in the courts; and drafting analytical pieces on significant scholarship and research relating to collateral consequences. One of his first assignments will be preparing a round-up of the “second chance” legislation enacted during 2018 – to date, more than 50 separate laws in thirty-two states. During his tenure, David hopes to participate in drafting an amicus brief, an opportunity that could come very soon with a major new challenge to Pennsylvania’s sex offender registration scheme pending in the Pennsylvania Supreme Court.
David’s piece on California’s new occupational licensing law that will post later today on the site is the first of what I expect will be many of his thought-provoking analyses of significant new “second chance” legislation.
The national trend toward expanding opportunities for restoration of rights after conviction has continued to accelerate throughout 2018. By our count, so far this year alone 31 states have broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans. On November 6, Florida could take the most politically momentous step of the year if its voters approve a ballot initiative amending the state constitution to re-enfranchise more than a million and a half individuals who are now permanently barred from voting because of a past felony conviction. We expect to publish a full report on these 2018 reforms, similar to the report we published last winter on 2017 laws, by the end of the year. Expect it to feature the broad occupational licensing reforms enacted in more than a dozen states since last spring.
Another important series of second chance reforms this year has accompanied marijuana decriminalization. These reforms are documented and analyzed by Professor Douglas Berman in an important new paper titled “Leveraging Marijuana Reform to Enhance Expungement Practices.” Published in a symposium issue of the Federal Sentencing Reporter devoted to various aspects of collateral consequences and criminal records management, Professor Berman’s paper showcases issues that will becomes increasingly important as the War on Drugs winds down. Professor Berman is the executive director of Ohio State University’s Drug Enforcement and Policy Center, whose official launch is November 2. We expect that the Center under his management will give restoration of rights an important place on its policy agenda.
The abstract of Professor Berman’s article follows: Read more
On July 2, 2018, New Hampshire’s Governor Sununu signed into law SB 589, making his state the 10th so far in 2018 to approve comprehensive limits on consideration of criminal record in occupational and professional licensing. Like enactments earlier this year in Indiana, Kansas, Tennessee, and Wisconsin, New Hampshire’s new law is intended to ensure that people with the requisite professional qualifications will not be unfairly denied a license based on their record of arrest or conviction. In this respect, it reflects the provisions of the Institute for Justice’s model occupational licensing act.
New Hampshire’s new law, which goes into effect on August 31, authorizes individuals to seek a preliminary determination as to whether their criminal record will be disqualifying, and allows disqualification only based on a demonstrated public safety concern arising from the facts and circumstances of an individual’s situation. It requires a board to give reasons for denial in writing, to explain what remedial measures an individual may take to address the board’s concerns, and limits the amount of the fee the board may charge to render its determination. Finally, it requires each board to report annually on the number of licenses granted and denied to people with a criminal record. The provisions of the new law are explained in further detail below.
The following post on Justice Kennedy’s contributions to sentencing and corrections reform appeared earlier this week on Douglas Berman’s Sentencing Law and Policy blog. While it does not involve collateral consequences directly, it seems fitting that CCRC recognize the significant contributions the Justice made to criminal law, notably in his statements off the bench about the injustice and inhumanity of excessive punishment. One of the most vivid memories I have of the 2008 ABA Roundtable conference whose proceedings were published in the FSR symposium issue discussed below, is of Justice Kennedy’s enthusiastic description of the federal reentry court that had recently been established in Oregon, one of the first of its kind. He made sure we all appreciated, as we discussed sentencing issues, that the consequences of a criminal case have adverse effects on individuals long after they have served their court-imposed sentence. In the decade since that conference, the idea that collateral consequences are an integral part of punishment that must at some point end, is one that that has taken root in new laws and practices in almost every state.
We’ve noted in recent posts the numerous states that, just in the past three or four months, have enacted broad occupational licensing reforms affecting people with a criminal record. Many of these new laws have been influenced by a model developed by the Institute for Justice (IJ), a libertarian public interest law firm that has been litigating and lobbying to reduce barriers to work for more than two decades. In turn, states like Indiana, Kansas, Tennessee and Wisconsin have built upon IJ’s model to enact even more progressive schemes intended to ensure that people with the requisite professional qualifications will not be unfairly excluded based on a record of arrest or conviction.
Now IJ has incorporated many of these progressive refinements into its original model licensing law, the Occupational Licensing Review Act (OLRA), and broken out the provisions relating to criminal records into a free-standing model act specifically directed at managing collateral consequences in the occupational licensing context, the new Collateral Consequences in Occupational Licensing Act (CCOLA).
[NOTE: On June 30, HR 1419 was signed into law as Act 56. Its provisions have been incorporated into the Pennsylvania profile of the Restoration of Rights Project.]
On Friday June 22, the Pennsylvania legislature took its final step toward passage of the so-called Clean Slate Act of 2018, delivering to Governor Wolf a bill (HR 1419) that he has already indicated he will sign. When enacted, the Act will be the first state law providing for automated sealing of at least some conviction records, sparing individuals with qualifying records the trouble and expense of filing a formal petition for relief with a court. Congratulations are due to the Community Legal Services of Philadelphia and the Center for American Progress for their sustained efforts over several years to enact this ground-breaking legislation, which will provide relief for “hundreds of thousands of Pennsylvanians with old and minor criminal convictions or who were arrested but not convicted.” Their press release, linked here, notes that “[t]he bill enjoyed remarkably broad support, including from legislators and advocacy groups that rarely find common ground.”
As soon as HR 1419 has been signed into law, we expect to incorporate into the Restoration of Rights Project a full analysis of its relevant provisions, which are fairly complex, and which become effective on different dates. In the meantime, we note below what appear to be the bill’s most salient features.
Note: This is the first of what we anticipate will be a series of reports on some of the more progressive restoration schemes enacted in the past several years.
Marion County Deputy Prosecutor Andrew Fogle says the four years since Indiana enacted a broad “second chance” law have been like “the Wild West.” Fogle, who oversees petitions for expungement for his office in Indiana’s most populous county, agreed to be interviewed about what may be the Nation’s most comprehensive and creative scheme to overcome the adverse effects of a criminal record. We also spoke about the law to a number of criminal defense attorneys and legal service providers in the State.
Indiana’s expungement law, first enacted in 2013 and amended several times since, extends to all but the most serious offenses, although the effect of relief as well as the process for obtaining it differs considerably depending on the offense involved. Perhaps most important, the term “expungement” doesn’t have the same meaning in Indiana as it has in most states, because it doesn’t necessarily result in limiting access to the record.
A new California regulation took effect last week that puts employers on notice that adverse action based on criminal history may violate state law prohibitions on racial discrimination. The regulation closely tracks a 2012 guidance issued by the U.S. Equal Employment Opportunity Commission, which asserts that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity.
The California regulation adopts, in broad terms, the same position and standards put forth in the EEOC guidance, but applies them to the state’s Fair Employment and Housing Act (FEHA), which prohibits employment discrimination on grounds that are substantially similar to those enumerated in Title VII. Like the EEOC guidance, the new FEHA regulation sets forth a number of factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.”
The fact that the regulation was promulgated by the state’s Department of Fair Housing and Employment, which may sue to enforce the FEHA, may give California employers that have not already conformed their practices to the EEOC guidance an incentive to do so. Moreover, the new regulation ought to make it easier for individuals to challenge criminal history screening practices by giving them a clear basis for action under California law.
This is the title of an important new article published by Alessandro Corda in the Howard Law Journal proposing a radical way of addressing the malign social impact of our current policies on public access to arrest and conviction records. Corda traces the evolution of record dissemination policies and practices since the 1950s, contrasting the American and European experience where “informal collateral consequences” are concerned. He critiques “partial remedial measures” like expungement and certificates of rehabilitation, and argues for making publication of a defendant’s record an “ancillary sanction” ordered (or not) by the court at sentencing.
While this solution may at first blush seem a bit ambitious, there are states (like Wisconsin) whose sentencing courts can offer the promise of set-aside and expungement upon successful completion of sentence, and that is indeed how the federal Youth Corrections Act operated before its repeal in 1984.
At the very least, Corda makes a convincing case that strong measures are necessary to mitigate the permanent stigma of a criminal record in the information age. The historical and international material will be of particular value to those currently working on this problem in legislatures across the country. Here is the abstract: