Author Archives: Margaret Love

Margaret Love

Margaret Love is CCRC's Executive Director. A former U.S. Pardon Attorney, she represents applicants for executive clemency in her private practice in Washington, D.C.. She is lead co-author of Collateral Consequences of Criminal Conviction: Law, Policy, and Practice (4th ed. 2021), and served as an advisor to the ALI Model Penal Code: Sentencing.

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“More Justice and Less Harm: Reinventing Access to Criminal History Records”

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:

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National law reform proposal on collateral consequences

A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction.  The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences.  [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.]

In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief.   As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences.  The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone searching for innovative ways to lighten the burden of a criminal record.

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Scholarship round-up II – two new articles by Jack Chin

CCRC board member Jack Chin, Professor of Law at U.C. Davis, has recently posted two important articles about collateral consequences.  One is a general overview of various recent proposals to reform the way collateral consequences are treated in the justice system, which will be published as part of a report on scholarship on criminal justice reform edited by Professor Eric Luna. The other argues that under the Grand Jury Clause of the Constitution certain federal misdemeanors may only be prosecuted by indictment because of the severe collateral consequences they carry.   Chin and his co-author John Ormonde propose that “[m]ore thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge,” thereby sparing less serious offenders from the stigma of a criminal record.  Because federal law makes no provision for sealing or expunging nonconviction records, even dismissed charges will appear on a rap sheet. Read more

Restrictions on access to criminal records: A national survey

We have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement.  This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records.  The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004.  We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials.

A brief overview of research methodology and conclusions follows.

Background

A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life.  Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse.  In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety.  One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.”  Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.

At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions. The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.
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When does the Second Amendment protect a convicted person’s right to bear arms?

Earlier this month eight judges of the Court of Appeals for the Third Circuit blocked enforcement of a federal gun control law in two cases involving Pennsylvanians convicted of non-violent misdemeanors many years ago, invoking the Second Amendment’s right to bear arms.  The appeals court affirmed lower court decisions upholding the constitutional right of Daniel Binderup and Julio Suarez to possess firearms despite the fact that they are barred by federal statute from doing so.  Seven other judges of the appeals court thought the Second Amendment should never be applied on a case-by-case basis to convicted individuals, and proposed that the federal statutory bar should determine the constitutional issue.  The 174-page appellate decision in Binderup v. Holder has been widely reported but only in the most general terms, and not always entirely accurately.

Other as-applied Second Amendment challenges to firearms dispossession statutes are percolating through the courts.  For example, Hamilton v. Palozzi will be argued next month in the Fourth Circuit, offering another opportunity for a court to hold that people convicted of non-violent crimes should not lose their firearms rights, there under a state dispossession statute rather than a federal one.  Because the constitutional issues may shortly be before the Supreme Court for resolution, it seemed worth taking a closer look at the Binderup holding.

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When collateral consequences drive the sentence: The David Becker case

In the wake of the Brock Turner case, a new controversy was ignited in Massachusetts last month when 18-year-old David Becker, a white college-bound athlete, received two years’ probation after pleading guilty to indecent assault of an unconscious woman at a house party.  As in the Turner case, many are outraged by a penalty they regard as too lenient and the result of white privilege.  However, any perceived injustice in the Becker case may be less about an abuse of judicial discretion than about the limited ability of judges to mitigate collateral consequences.

Critics of the decision may be even more concerned to learn that David Becker was not actually convicted of a crime.  Instead, District Court Judge Thomas Estes accepted Becker’s guilty plea and ordered a “continuance without a finding” (known as a CWOF) for two years while Becker serves a term of probation.  If Becker completes the conditions of probation successfully, the charges against him will be dismissed and the record will be eligible for sealing.

The fact that Becker was not convicted is significant because it allows him to avoid both registering as a sex offender and the numerous collateral consequences that would come with having a criminal record.

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Law firm steps up to aid reentry

Recently I was speaking with Matt Benjamin, a lawyer at Gibson, Dunn & Crutcher LLP in New York, who told me about a very important pro bono effort that he and his colleagues at the firm launched two years ago to serve clients in the “Alternatives to Incarceration” programs of the U.S. District Court for the Eastern District of New York.  While the clients are generally represented in their criminal cases by public defenders, they frequently need help with a variety of civil issues, from employment and housing to immigration and family law issues.

Because I think this path-breaking effort should serve as a model for other law firms and law schools around the country — just as the Eastern District’s ATI programs should serve as a model for other federal courts — I wanted to provide more information about it here.

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What (if anything) does the Virginia voting rights decision tell us about the president’s pardon power?

On July 22, 2016, the Virginia Supreme Court struck down a series of executive orders issued by Governor Terry McAuliffe restoring voting and other civil rights to more than 200,000 convicted individuals.  See Howell v. McAuliffe (Va. 2016).  The court, in a 4-to-3 decision, disputed the governor’s assertion that his restoration power was absolute under the state’s Constitution. “We respectfully disagree,” the majority justices wrote. “The clemency power may be broad, but it is not absolute.”   Governor McAuliffe responded to the court’s action by promising to restore the vote on an individual basis to everyone affected by his orders, starting with the 13,000 who had already registered to vote.  More details of the reaction to the court’s ruling are reported here.

The Virginia court’s decision is interesting for what it may tell us about the possibility of class-wide grants of clemency, whether full pardon or sentence commutation, under the president’s pardon power. In finding limits on the governor’s restoration power under the Virginia constitution, the court relied upon two other constitutional provisions that have no analogue in the U.S. Constitution.

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Missouri expands expungement in a big way

missouri_flagLast week Missouri Governor Jay Nixon signed a bill that will dramatically expand the availability of expungement for people convicted of state crimes. The new law (SB-588), which will go into effect in 2018, extends expungement relief to a broad range of felonies and misdemeanors, and reduces the waiting period for expungeable felonies from 20 years to only 7 years following completion of sentence, and the waiting period for misdemeanors from 10 to 3 years. On the other hand, it will limit the number of times that a person may seek expungement during their lifetime and limit the effect of expungement. In particular, it will allow certain employers and licensing agencies to consider expunged convictions as a basis for disqualification, and in a few cases to disqualify automatically based on an expunged conviction.

Under current law, only a handful of misdemeanors and a single felony (passing bad checks) are eligible for expungement. When the new law takes effect, all misdemeanors and all non-Class A felonies will be eligible, subject to a long list of excepted offenses. The list of exceptions includes more serious offenses such as “dangerous” and violent felonies, sexual offenses, and a number of weapons and corruption offenses. As the Riverfront Times reported last week,

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“Divergent moral vision” — Collateral consequences in Europe and the U.S.

A new article in the Stanford Law Review discusses the radically different forms of punishment in the United States and Europe, which its author attributes at least in part to differing moral visions of wrongdoing and wrongdoers.  In Two Cultures of Punishment, Joshua Kleinfeld argues that while Americans tend to regard serious offenders as “morally deformed people rather than ordinary people who have committed crimes,” European cultures “affirm even the worst offenders’ claims to social membership and rights.”

Kleinfeld illustrates this “divergent moral vision” by the very different approach European countries take to collateral consequences. (The other two areas discussed in the article are lengthy prison terms and capital punishment).  Whereas in this country people convicted of crime are subject to a lifetime of legal restrictions and social stigma analogous to older forms of civil death, and are effectively consigned to a kind of “internal exile,” in Europe people who have committed a crime benefit from numerous measures to encourage their reintegration.

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