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- Federal Certificate Offers New Hope for Americans in ‘Internal Exile’ (10/28/2020) - The title of this post is the title of our op-ed in The Crime Report in support of a bipartisan Senate bill that would authorize judges to issue a “Certificate of Rehabilitation” to qualified individuals with federal convictions. The bill in question was included in the Business Roundtable's "Second Chance Agenda," which was the subject of a post here two weeks ago. The op ed is reprinted below: Federal Certificate Offers New Hope for Americans in ‘Internal Exile’ The collateral consequences of a federal conviction have thrust many Americans into what some have termed an “internal exile.” Barriers that prevent full reintegration into society are liberally distributed in federal and state laws and regulations. Congress is now weighing a new form of relief—a Certificate of Rehabilitation—intended to address the absence of any general federal restoration of rights regime, leaving aside the once-robust, now rare and erratic presidential pardon power. Under the proposed RE-ENTER Act of 2019 (S. 2931), the certificates would be issued by a judge to alleviate the burdens of a criminal record. The concept was pioneered by New York more than half a century ago, and is currently authorized in 12 states. It has been recommended by the major national law reform organizations. Now more than ever, there is a pressing need for judicial relief to supplement the federal pardon power: President Donald Trump’s neglect of the Justice Department advisory process has produced a 3,000-case backlog of post-sentence pardon applications. So far, the RE-ENTER Act has been languishing in committee, despite bipartisan support. While the Senate is otherwise occupied at the moment, a recent endorsement by the Business Roundtable may have given it new momentum. It’s possible that S. 2931 will be considered in the lame duck session or reintroduced after the new Congress is seated. For tens of thousands of Americans, that would be welcome news. There are several things to like about the bill. The certificate has credibility, because it will be issued by a U.S. District Court after notice, with investigation by the Office of Probation and Pretrial Services, and the opportunity for input from the Department of Justice and victims. The court has wide discretion to consider a range of factors, but the Chief Probation Officer’s recommendation creates a rebuttable presumption in favor of issuance. The Federal Defender or appointed counsel may assist applicants in their petitions. Individuals are entitled to notice of the availability of certificates, and they may apply at sentencing if not sentenced to imprisonment, or after one year of post-release supervision. This opportunity could particularly benefit people who demonstrate rehabilitation following conviction for a more serious offense. Such individuals are often excluded entirely from relief measures such as the bipartisan Clean Slate Act of 2019 (H.R. 2348), which sets out a path for automatic sealing of non-conviction records and certain drug convictions, and petition-based sealing of some other nonviolent convictions. The downside of the legislation is that it gives certificates limited and uncertain legal effect. The operational part of the bill grants certificate holders limited relief from a handful of specific federal collateral consequences: A presumption against termination of federal housing benefits based on conviction; The right to be considered by federal judges as suitable for seating as grand or petit jurors; The right to have the certificate considered in connection with enlistment in the armed forces; A relaxation of required loss or suspension of federal benefits under 21 U.S.C. § 862 as part of a drug sentence; and The right to have the certificate “factor in favor of a clemency application” when the attorney general is considering a recommendation to the president. But there are many other federal collateral consequences that are not listed. Another part of the law appears to contemplate much more dramatic effects of the certificate. In grand, formal language, the bill explains that it is the “sense of Congress” that “a Federal certificate of rehabilitation shall act as an expungement of any prior conviction of an eligible offender for the purposes of any employment, licensing, education, housing, or other determination;” and, that a certificate should constitute “evidence of due care” in employment, housing and a variety of other contexts. It is unclear exactly what “expungement” means in this context since a certificate would not limit access to the record. Read broadly, this language may be intended to bar consideration of a certificate holder’s prior convictions in most public and private contexts. However, the Supreme Court has held that “sense of the Congress” statements are not binding law, even if included in a bill passed by both houses and signed by the President. The ambition of S. 2931, therefore, is much greater than its actual mandate. Given the power of Congress over at least federal activities, federally funded programs and the Federal Rules of Evidence, as well as under the Commerce Clause, it is not clear why the effects in the “sense of Congress” section were not made enforceable by law. We hope Congress will clarify and expand the bill, looking perhaps for models to the certificates issued in New York and Ohio, both of which relieve mandatory consequences and create a rebuttable presumption against adverse treatment by discretionary decision-makers. Another approach is offered by model laws from the American Law Institute, the Uniform Law Commission and the American Bar Association, which authorize relief at sentencing to remove specific economic barriers to reentry, with more comprehensive relief available to signify rehabilitation after a waiting period. The limits of this bill also reflect one of the unresolved problems in restoration law generally, which is the failure of most U.S. jurisdictions to deal with inter-jurisdictional issues. Even a pardon issued by one state is not always given effect by another. Here, the bill does not address whether states will give effect to a federal court’s certificate. S.2931 could take a major step toward addressing the inter-jurisdictional problem through making a reciprocal commitment to not impose federal consequences against anyone who has received relief from a state that agrees to give effect to a federal certificate. As between the states, the effect of state relief outside its borders could be dealt with through an interstate compact, like the one that already governs access to criminal records, with some national standards. But if it is “take it or leave it” as S. 2931 now stands, we will take it. People with certificates will submit them to potential employers, landlords and licensing agencies, many of whom will correctly conclude they mean something. Studies in Ohio found that individuals who had been issued certificates were more likely to get an invitation to interview from an employer than those without. There have been similar findings for housing rental applications, and at rates not far removed from rates for those without a criminal record. The presiding judge of the Cook County Criminal Court in Illinois called his state’s certificates “a tool for redeeming people,” and a legal aid lawyer in North Carolina noted that a court’s certification “makes what has happened since the crime a fully official part of that person’s record, for all employers to see.” At the end of the day, part of a loaf is better than none, and the RE-ENTER Act is an encouraging start.
- HHS finalizes rules on child care worker screening (9/28/2016) - In February we posted about regulations proposed by the federal Department of Health and Human Services (HHS) to implement criminal history screening requirements for child care workers under recent changes to the Child Care and Development Block Grant Act of 2014. The CCRC joined a coalition of organizations led by the National Employment Law Project (NELP) in calling upon HHS to reconsider the proposed regulations. In a formal comment submitted to HHS, the coalition argued that the regulations contained screening standards that were more exclusionary than the Act requires, and that they would have a disparate impact on women, African Americans, and Latinos. HHS has now issued the final version of those regulations. Although the final rules are far from perfect, they do address a number of the concerns raised by the coalition. For example, they omit language that encouraged states to require self-disclosure of criminal history, provide greater protection from inaccurate criminal record reporting, and urge states adhere to the standards laid out in the EEOC guidance by providing individualized assessments for disqualifying offenses that are added by the states but not required by the federal law. Unfortunately, HHS chose not to back down on one of the most troubling provisions of the proposed regulations: criminal history screening of anyone age 18 or older residing in a license-exempt home that provides child care services. Screening of those individuals is not required by the Act itself. As the coalition's comments explained, the requirement will almost certainly have a disproportionately adverse impact on providers of color and their families: Expanding background checks to adult household members would have a disparate impact on low-income communities and communities of color, which have higher than average arrest and conviction rates. Based on the experience of our organizations serving these communities, it is clear that they constitute a significant proportion of license-exempt child care providers and are more likely to have multiple generations living in the same house. NELP has provided a brief summary of how the final regulations address (or fail to address) the coalition's recommendations: Recommendation: Consistent with the narrow language of the CCDBG Act of 2014, ACF should not extend background checks to individuals age 18 or older who reside in a non-relative, license-exempt CCDF provider’s home. Outcome: Our argument not to extend child care worker background checks to family members and others residing in the caregiver’s home was not successful (see pages 218-219). However, the preamble includes strong language cautioning states to narrowly limit disqualifying offenses for this group (“casting too wide a net could have adverse effects on the supply of family child care providers and other consequences for individuals returning from incarceration”) and urging states to include a waiver procedure modeled on the EEOC guidelines. Recommendation: In order to limit consideration of inaccurate conviction history information that disproportionately penalizes people of color, ACF should eliminate the preamble language urging states to require applicants to “self-disclose” their conviction records. Outcome: The final HHS regulations did not include the self-disclosure requirement (at pages 239-230), which is a significant victory. Recommendation: Consistent with the preamble language to the draft regulations, we urge ACF to adopt regulatory language incorporating the EEOC guidelines into the provision allowing the states to impose additional disqualifying offenses. Outcome: The preamble to the final regulations quoted extensively form our comments describing the need for an individualized assessment based on the EEOC guidelines when states add disqualifying offenses that are not mandated by the HHS regulations (see pages 252-253). HHS did not adopt our recommendation that the regulation (Section 98.43(h)) specifically reference the EEOC guidelines, but it did include helpful language in the preamble urging the states to follow the individualized assessment process detailed by the EEOC (“we strongly encourage Lead Agencies to follow recommendations to implement an individualized assessment and waiver process in particular for any other disqualifying crimes not listed in the Act. In addition to challenging the record for accuracy and completeness, an individualized review allows the Lead Agency to consider other relevant information, and to provide waivers where appropriate.”) Recommendation: Given the discriminatory impact of drug offenses on women of color, ACF should specifically reference the EEOC guidelines in the regulations authorizing the state to waive disqualifying drug offenses. Outcome: The preamble to the regulations also quoted extensively form our comments describing the discriminatory impact of drug offenses on women of color (see pages 250-251). HHS concluded that the states “must conduct the review processes in accordance with the EEOC’s current guidance on the use of criminal background checks in employment decisions, which requires individualized consideration of the nature of the conviction, age at the time of the conviction, length of time since the conviction, and relationship of the conviction to the ability to care for children, and other extenuating circumstances.” However, the final regulations (Section 98.43(e)(4)) retained the language of the draft regulations, stating that “the review process shall be consistent with title VII of the Civil Rights Act of 1964.” Thus, the regulations do not also reference the EEOC guidance, as we recommended. Recommendation: Given the reliance on FBI background checks, which routinely contain faulty information, ACF should adopt more protections governing appeals by workers challenging inaccurate background checks. Outcome: HHS made significant improvements to the regulations in this area based on our comments (which were quoted in full in the preamble, including our list of five specific “features of a fair and effective appeal process”). (Pages 246-249). In the preamble to the regulation (Section 98.43(e), HHS stated: “ACF strongly agrees with the worker protections described in this comment. While background checks are a necessary safeguard to protect children in child care, we are also mindful of the disproportionate impact that that they can have on low-income individuals of color. A robust and effective appeals process, that incorporates the elements described above, is critical to protect prospective child care staff members who have inaccurate or incomplete background check records. As such, we made changes to the regulatory language at 98.43(e)(2)(ii) and 98.43(e)(3) to incorporate many of these protections, while still preserving some State flexibility.” Most importantly, the new regulation requires the state to “attempt to verify the accuracy of the information challenged by the child care staff member, including making an effort to locate any missing disposition information related to the disqualifying crime.” This is a major victory, and it sets a precedent in federal law requiring states to track down missing dispositions in the state and FBI rap sheets, thus removing the burden from the worker to have to produce the missing or updated records. In addition, the final regulations require that the notice the worker receives in response to a challenge to the accuracy of the record “should indicate the State’s efforts to verify the accuracy of the information challenged by the child care staff member, as well as any additional appeal rights available to the child care staff member.” The final regulations and HHS's response to comments can be found here. See our initial post on the proposed regulations here.
- Can the pardon power be revived through procedural reforms? (9/12/2016) - Mark Osler has posted a new piece arguing for an overhaul of the federal pardon process so that it more closely resembles efficient and productive state clemency systems. He argues that flaws in the process for administering the power, rather than a failure of executive will, have prevented President Obama from carrying out his ambitious clemency agenda directed atlong-sentenced drug offenders. Streamlining the process will enable presidents to use the power more generously and effectively. This seems to us to an oversimplified solution to the theoretical and practical problems with what President Obama has been trying to do. Moreover, at least in the absence of constitutional amendment, any structural changes in the federal pardon process would have to be reaffirmed by each new president, and would likely be opposed by the Justice Department and Congress. An alternative to trying to revive pardon as an integral part of the criminal justice system would be to concede that pardon cannot wholly compensate for shortcomings in the legal system, and work to develop statutory alternatives. Our preference would be for this alternative, and specifically to enlist the courts to shorten long prison sentences and avoid or mitigate collateral consequences. This is the approach proposed in the revised articles of the Model Penal Code: Sentencing. As President Obama's term winds down, we expect to post additional commentary on his use of the pardon power, and on proposals floated by his putative successors about the pressing systemic problems for which pardon is now seen as the sole solution. In the meantime, see these earlier posts on this subject: Prez promises to catch up on pardons — but he’s far behind Slate asks why presidents are granting less clemency; Justice answers Should DOJ be gatekeeper of president’s pardon power? Clemency is Not the Answer (Updated) “Poised to commute dozens of sentences, Obama remains the ‘Scrooge’ of pardons” The “president’s idle executive power” and collateral consequences
- “On Lawyering” on collateral consequences (5/27/2016) - The following post was originally published at On Lawyering, CCRC President Rich Cassidy's blog on the law and culture of lawyering. Judge Rules That That the Collateral Consequences of Conviction Justify the Release of a Drug Offender “Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”[1] Senior United States District Judge Fredric Block, in an opinion issued on May 24, [2] ruled that the collateral consequences faced by a 20 year old woman convicted of smuggling 602 grams of cocaine into the United States from Jamaica, justified a one year term of probation, even though she faced a guideline sentence of 33-41 months of imprisonment. Judge Block reviewed the history of collateral consequences, concluding that “[t]oday, the collateral consequences of a felony conviction form a new civil death[,]”[3] referring to the scholarly work of my colleagues, Gabriel Jack Chin and Margaret Love. He decried the racially disparate impact of these laws, citing Michelle Alexander’s book, The New Jim Crow (2010). He noted the existence of collateral consequence reform efforts including an ABA Criminal Justice Standard [4]and the Uniform Collateral Consequence of Conviction Act.[5] He pointed out the sweeping breadth of collateral consequences, noting that according to the National Inventory of the Collateral Consequences of Conviction, nationwide there are some 50,000 federal and state statutes and regulations that impose collateral consequences and that some 70 to 100 million Americans are subject to them.[6] Judge Block reviewed the state of the law, noting that while there is a split in the circuits, the law in the Second Circuit allows a sentencing judge to consider“the impact and significance of the collateral consequences facing a convicted felon as bearing upon a just punishment.”[7] Finally, Judge Block put the idea into practice: he reviewed, in some detail, the collateral consequences the defendant faces, their likely impact on her life, and concluded: [T]he collateral consequences Ms. Nesbeth will suffer, and is likely to suffer – principally her likely inability to pursue a teaching career and her goal of becoming a principal, Conn. Gen. Stat. §§ 10-145b, 145i – has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing.[8] Most District Court decisions have little, if any, significance beyond resolving the particular case before the judge. This decision is different. It’s a model for counsel and judges to bring collateral consequences to the center of the plea bargaining and sentencing process, where they belong. The reality is that for most criminal defendants, particularly those convicted of lesser crimes, principally misdemeanors, the direct consequence of convictions, such as fines, probation and even short periods of imprisonment, are almost ephemeral when compared to the long term — largely permanent — collateral consequences of conviction. It’s worth noting that Judge’s language consistently acknowledges a truth that the law, in crucial legal fiction, ignores: that collateral consequences are indeed “punishment.” Without that legal fiction — one that Jack Chin, among others, thinks should be attacked — collateral consequences imposed by legislation and regulation adopted after conviction would be unconstitutional as ex post facto laws. Judge Block’s opinion is a herald of a quiet revolution in criminal litigation leading to a future in which the participants in the criminal system, judges, prosecutors, and defense lawyers, focus on collateral consequences in dealing with the punishment phase of criminal cases. Perhaps it’s even the harbinger of a fundamental reassessment of the whole idea that a massive set of civil disabilities should be added to the punishment of a criminal sentence: While consideration of the collateral consequences a convicted felon must face should be part of a sentencing judge’s calculus in arriving at a just punishment, it does nothing, of course, to mitigate the fact that those consequences will still attach. It is for Congress and the states’ legislatures to determine whether the plethora of post- sentence punishments imposed upon felons is truly warranted, and to take a hard look at whether they do the country more harm than good.[9] ------ [1] Adam Goodheart, Lincoln, Looking For His Legacy Today, National Geographic, (April 2015). [2] United States v. Nesbeth, 15 –CR-18 (FB) (E. Dist. N.Y. May 24, 2016). Benjamin Weiser of The New York Times covered the story on Wednesday, U.S. Judge’s Striking Move in Felony Drug Case: Probation, Not Prison (May 25, 2016). [3] Id. at 6. [4] ABA STANDARDS FOR CRIMINAL JUSTICE, COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATIONS OF CONVICTED PERSONS. [5] UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT (2010). [6] Id. at 11, n.32, citing How to Get Around A Criminal Conviction, N.Y. TIMES, AT at 22(October 19, 2015). [7] Id. at 19. [8] Id. at 33. [9] Id. at 40 -41.
- Will Prez Obama make federal contractors ban the box? [Update: Not now.] (4/29/2016) - Updated April 29: According to comments late this week from senior White House adviser Valerie Jarrett, the President remains inclined to defer to Congress when it comes to making federal contractors ban the box: Asked whether there was consideration of whether to take action to require federal contractors to “ban the box,” Jarrett said, “The president has supported federal legislation that would ban the box for federal contractors. He thinks that’s the best approach.” The legislation in question appears to have stalled, as noted by its sponsor Rep. Elijah Cummings. (In a tweet, Jarrett pointed advocates to a 2013 directive of the Office of Federal Contract Compliance reminding contractors of their obligation to comply with the EEOC guidance on criminal records.) On the other hand, on Friday the administration made good on its November promise to require federal agencies to ban the box, when OPM announced a proposed rule requiring federal agencies to postpone inquiry into an applicant's criminal record until after a conditional offer of employment has been made. Also, marking the end of National Reentry Week, the President formally established the Federal Interagency Reentry Council, a Cabinet-level working group dedicated to "the rehabilitation and reintegration of individuals returning to their communities from prisons and jails." Originally convened by the Attorney General in 2011, the President's action ensures that the Council will continue past the end of his Administration. Original post from April 26: As the White House inaugural National Reentry Week begins, advocacy organizations and Members of Congress are again calling on President Obama to use his executive authority to "ban the box" in federal contractor hiring, just as he announced he would do in federal agency hiring last November. The call comes on the heels of a number of steps the Obama Administration has taken to improve the employment prospects of those with criminal histories, including the creation of the Fair Chance Business Pledge earlier this month. Last fall, the President announced a number of additional reentry initiatives, including establishment of a Clean Slate Clearinghouse. The President's overall record on second-chance issues has been commendable, but he will have to move quickly to maximize his administration's impact before the end of his term. The 170,000 federal contractors employ a full 25% of the nation's workforce, and all of them are subject to Executive regulation via the terms of their contracts. As such, the President has significant authority to regulate private sector hiring policies. He also has an efficient means of enforcing those regulations through termination of contracts with noncompliant employers. To date, however, the President has deferred to Congress where regulation of contractors is concerned, urging it to pass the Fair Chance Act which would extend a ban-the-box policy to contractors by statute. But since that announcement, the Fair Chance Act has languished in committee, and it seems increasingly unlikely that a policy that applies to contractors will become a reality before the end of the President's term unless the President implements it himself. Last Wednesday, Representative Elijah Cummings (D-MD), the Act's sponsor, acknowledged its dim prospects in urging the President not to wait for Congress. In an open letter, joined by 21 other Members, he wrote: On November 2, 2015, you also explained that "Congress should pass legislation that builds on today's announcement. " We agree, and have been working diligently with our colleagues in Congress to advance the Fair Chance Act (H.R. 3470), which would extend ban the box policies to all three branches of the federal government and prime federal contractors. However, without a clear path forward for the legislation, we are respectfully calling upon you to drive these issues forward with executive action. Yesterday, a coalition of 136 advocacy organizations (including the CCRC) led by the National Employment Law Project (NELP) wrote to the President urging him to extend fair chance hiring policies to federal contractors. As the NELP letter points out, the additional burden on many large federal contractors would be slight since they are already subject to ban-the-box laws at the state level: [B]ecause most of the nation’s largest federal contractors operate across state lines, they are already subject to multiple state and local ban-the-box laws. Indeed, seven states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island) and many of the nation’s largest cities (including Baltimore, Chicago, New York City, Philadelphia, Seattle, San Francisco, and Washington, D.C.) have fair hiring mandates in place covering private sector employers.[2. Many other states ban-the-box in public hiring, but none of those policies extend to state contractors.] As a result, roughly 25 percent of the nation’s civilian workforce (or over 40 million workers) are employed in a state or locality where private sector employers are obligated to comply with a ban-the-box law. Thus, abundant precedent exists to help pave the way for a federal executive order regulating the nation’s private contractors. Additionally, many large federal contractors have already chosen to adopt ban-the-box policies of their own accord, including Xerox, Google, and Koch Industries/Georgia Pacific. In his speech announcing the federal agency ban-the-box policy this past November, President Obama said, Now, a lot of time, [a] record disqualifies you from being a full participant in our society -- even if you’ve already paid your debt to society. It means millions of Americans have difficulty even getting their foot in the door to try to get a job much less actually hang on to that job. That's bad for not only those individuals, it's bad for our economy. It’s bad for the communities that desperately need more role models who are gainfully employed. So we’ve got to make sure Americans who’ve paid their debt to society can earn their second chance. Banning the box in federal contractor hiring would go a long way toward achieving this goal, by giving countless American workers the opportunity to demonstrate their employment qualifications before employers become aware of their criminal histories. But the clock is counting down on the President's chance to make that important change a part of his legacy. You can read entirety of the Congressional letter here, and the letter from the NELP-led coalition here.
- Federal sentencing and collateral consequences (4/15/2016) - This practice resource is available in PDF format here. A follow-up piece, "Federal sentencing and collateral consequences II," is here. Federal courts are frequently asked to take into account the collateral consequences of conviction in determining what sentence to impose under the criteria in 18 U.S.C. § 3553(a). It is generally permissible for them to do so, and in line with current proposals of national law reform organizations. At the same time, courts must guard against the risk of socioeconomic bias favoring more privileged defendants who have the most to lose in the civil sphere, and who are likely to enjoy more vigorous and effective advocacy around collateral consequences. The following discussion first reviews a federal court’s general obligation to understand the collateral consequences that apply in a particular case, and to ensure that a defendant considering a guilty plea has been adequately advised about them. It then reviews post-Booker case law approving below-guideline sentences based on the severe collateral penalties applicable to a particular defendant, such as loss of employment, extraordinary family circumstances, sex offender registration, and even reputational harm (“the stigma of conviction”). Finally, it discusses cases in which courts of appeal have refused to approve deep sentencing discounts based on collateral consequences in circumstances suggesting a bias favoring middle-class defendants. I. Understanding applicable collateral consequences and ensuring that the defendant has been advised about them In general, the constitutional obligation of advisement is defense counsel’s under the Sixth Amendment, not the court’s.[1] The one situation in which judicial advisement is required under the Federal Rules of Criminal Procedure is where a defendant considering a guilty plea is not a citizen. See FRCrP 11(b)(1)(O). That said, a federal court is permitted (even if not required) to inform itself about the collateral consequences that may apply in a particular case in order to decide whether to take such consequences into account when fashioning a sentence. See Part II, infra. In a few recent cases, collateral consequences have been the basis for judicial expungement of a conviction record. The court may ask the probation office, which is part of the judicial branch, for information about collateral consequences, and probation ought to be informed about collateral consequences in any event so that it can assist defendants with reentry and reintegration. It would also be appropriate for a federal court to ask defense counsel to advise it about the collateral consequences that may apply to a particular defendant, since they may be relevant to the overall sentence. Similarly, the court may ask defense counsel for reassurance that counsel has advised the defendant about applicable collateral consequences before accepting a guilty plea or imposing a sentence, if only as a prophylactic measure to guard against subsequent claims of ineffective assistance. The court’s authority to direct probation and defense counsel to inform it about collateral consequences stems both from its inherent power to manage its proceedings and from its authority under 18 U.S.C. § 3553(a) to craft a just and appropriate sentence. In state court the judicial advisement obligation may be more robust, both under the state constitution and applicable court rule, such as where sex offender registration or firearms dispossession may result from conviction. However, such notice has generally not been required in the federal system. Case law developments, notably in the past few years since the Supreme Court’s decision in Padilla v. Kentucky, are described in Chapters 4 and 8 of Love et al., Collateral Consequences of Criminal Conviction: Law Policy and Practice (West/NACDL, 2016 ed.). While notice about collateral consequences may not be mandated in the federal system beyond the immigration context, either by counsel or court, such notice has been recognized as sound practice by the major national law reform and professional organizations of lawyers. The Uniform Law Commission and the American Law Institute have both proposed that sentencing courts should ensure that a defendant has been informed about collateral consequences that might affect willingness to plead, and at sentencing. See Uniform Collateral Consequences of Conviction Act §§ 5, 6 (2010) (UCCCA); Model Penal Code: Sentencing, Tentative Draft No. 3, § 6x.04(1) (2014). The ABA Standards for Criminal Justice also impose this requirement. See Collateral Sanctions and Discretionary Disqualification of Convicted Persons, Standards 19-2.3, 19-2.4(b) (2003). Moreover, the ABA Standards specifically permit a sentencing court to take into account collateral consequences in shaping a sentence. See id., Standard 19-2.4(a) (“The legislature should authorize the sentencing court, and the court should consider, applicable collateral consequences in determining an offender’s overall sentence.”). The ABA Standards also require the sentencing court to ensure that the overall penalty (presumably including collateral consequences) is not unduly severe. See Sentencing, Standards 18-6.1, 18-6.2, 18-3.12(e) (1993). Both the UCCCA and the Model Penal Code: Sentencing recommend giving the court authority to dispense with mandatory collateral penalties at the time of sentencing, which is a more direct way of approaching the problem of unduly severe collateral consequences, although it necessarily reaches only mandatory legal consequences. See UCCCA §§ 10, 11; Model Penal Code: Sentencing, Tentative Draft No. 3, § 6x.04 (2) (2014). These proposals are included in the Appendix of Love, et al., supra. State courts may also be permitted to take into account collateral consequences in crafting a sentence. A number of state legislatures have anticipated this approach, authorizing their sentencing courts to dispense with collateral consequences at the time of sentencing. See Colo. Rev. Stat. §§ 18-1.3-107, 18-1.3-213, 18-1.3-303; 730 Ill. Comp. Stat. Ann. § 5/5-5.5-15(b); N.J. Stat. Ann. § 2A:168A-7; N.Y. Correct. Law §§ 700-706. These provisions are discussed in § 7:23 of Love et al., supra. II. Factoring collateral consequences into a federal sentence A number of federal courts of appeal have upheld the relevance of collateral consequences to a determination of “just punishment” and the need for deterrence under 18 U.S.C. § 3553(a), allowing them as a basis for varying downwards from the guidelines range. Second Circuit: Approved as reasonable a variance from guidelines of 78-97 months to 20 months, because the defendant’s conviction for violating rules against communicating with a prisoner “made it ‘doubtful that [he] could pursue’ his career as an academic or translator.” United States v. Stewart, 590 F. 3d 93, 141 (2d Cir. 2009). The court commented that “[i]t is difficult to see how a court can properly calibrate a ‘just punishment’ if it does not consider the collateral effects of a particular sentence.” Fourth Circuit: Affirmed a 36-month variance for a child pornography defendant, based in part on the fact that he lost his teaching certificate and state pension as a result of his conduct: “Consideration of these facts is consistent with § 3553(a)’s directive that the sentence reflect the need for ‘just punishment’ and ‘adequate deterrence.’” United States Pauley,511 F.3d 468, 474 (4th Cir. 2007). Seventh Circuit: Affirmed 50-month variance from guidelines of 121-151 in child pornography case, in part because conviction ruined 24-year-old music student’s future career as a teacher and church musician, and imposed lifelong stigma. United States v. Wachowiak,496 F.3d 744 (7th Cir. 2007). See also United States v. Owens, 145 F.3d 923 (7th Cir. 1998) (affirming downward departure based on extraordinary family circumstances, including that defendant’s wife and three young children might have to move to public housing and receive welfare benefits if defendant received a prison sentence). Eighth Circuit: Affirmed a 7-month variance for a defendant convicted of insider trading and money laundering, based in part on how the defendant “suffered atypical punishment such as the loss of his reputation and his company.” United States v. Anderson, 533 F.3d 623, 633 (8th Cir. 2008). See alsoUnited States v. Garate, 543 F.3d 1026 (8th Cir. 2008) (court properly considered lasting effects of registering as a sex offender in deciding to impose below-guideline sentence). A research memorandum prepared in 2010 by the Federal Defender’s Sentencing Resource Counsel collects a number of district court cases, from these circuits and others, in which post-Booker variances (or, in a few cases, pre-Booker departures) were based on collateral consequences such as loss of employment or professional license, extraordinary family circumstances, and other unusual collateral effects of conviction/imprisonment. Sex offender registration and even reputational harm (“the stigma of conviction”) have also been cited as collateral consequences warranting a variance. There are limits, however. Recent court of appeals cases from the 6th and 10th Circuits evidence a reluctance to approve deep sentencing discounts based on collateral consequences, largely because of the resulting risk of socioeconomic bias in favor of more privileged defendants who have the most to lose in the civil sphere. See § 3553(a)(6) (need to avoid unwarranted disparity). Such defendants will also, with the benefit of better lawyers, be more likely to advocate effectively for sentence reductions based on actual or potential collateral consequences, including reputational harm, and may even be able to avoid prison entirely. In a recent decision involving the conviction of a state legislator for bribery, the Tenth Circuit invalidated a sentence in which the sentencing court had varied from a guideline range of 41-51 months to probation, citing the adverse effects on the defendant of “publicity, loss of law license, and deterioration of physical and financial health.” United States v. Morgan, 2015 U.S. App. LEXIS 19402, *62 (10th Cir. 2015). The court commented that “it is impermissible for a court to impose a lighter sentence on white-collar defendants than on blue-collar defendants because it reasons that white-collar offenders suffer greater reputational harm or have more to lose by conviction.” Id. at *68 (citing United States v. Prosperi, 686 F.3d 32, 47 (1st Cir. 2012)). See also United States v. Stall, 581 F.3d 276, 286 (6th Cir. 2009) (affirming variance to probation in child pornography case based in part on collateral consequences, but commenting that “We do not believe criminals with privileged backgrounds are more entitled to leniency than those who have nothing left to lose”).[2] Like the Tenth Circuit in Morgan, the Sixth Circuit has recently invalidated as substantively unreasonable sentences in three cases where the court relied upon the claimed severity of collateral consequences to justify large variances resulting in probation or token prison sentences. In United States v. Bistline, the court of appeals reversed as substantively unreasonable a child pornography defendant’s sentence to a single night’s confinement in the court lock-up where the guideline range was 63-78 months, finding insufficient deterrence in the requirement of registration and “the publication of that registration to the community and to his friend and neighbors.” 665 F.3d 758, 765 (6th Cir. 2012).[3] More recently, in a bank and wire fraud case, the Sixth Circuit held squarely that “[t]he collateral consequences of the defendant’s prosecution and conviction are ‘impermissible factors’ when fashioning a sentence that complies with [§ 3553(a)].” United States v. Musgrave, 761 F.3d 602, 608 (6th Cir. 2014). In Musgrave the court invalidated a variance from a guideline range of 57-71 months to one day’s confinement, based on the defendant’s having “already ‘been punished extraordinarily’ by four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life.” Id. The court of appeals stated categorically that “when a district court varies downward on the basis of the collateral consequences of the defendant’s prosecution and conviction, the defendant’s sentence will not reflect the seriousness of the offense, nor will it provide just punishment.” Id. See also United States v. Peppel, 707 F. 3d 627, 641 (6th Cir. 2013) (district court improperly relied in securities fraud case on CEO defendant’s “chosen profession and status in the community” to impose a 7-day sentence, varying from a guidelines range of 97-121 months). The 11th Circuit also rejected a substantial variance based on personal characteristics of the defendant on a “no middle class discount” theory, without specifically mentioning collateral consequences. See United States v. Kuhlman, 711 F.3d 1321 (11th Cir. 2013) (20-level variance avoiding prison time for a chiropractor convicted of $3 million health care fraud substantively unreasonable). The extent of the variances in these cases, resulting in no more than a token prison term, seems to distinguish them from cases cited earlier in this memo, in which collateral consequences were properly given some weight in reducing a prison sentence but not effectively eliminating it entirely. [1] While courts have no constitutional obligation to advise a defendant about collateral consequences as a matter of due process, in a few recent federal cases a court’s specific and unequivocal advisement about immigration consequences was held to “cure” deficient advice of counsel. See U.S. v. Fazio, 795 F.3d 421 (3d Cir. 2015); U.S. v. Hernandez-Monreal, 404 Fed. Appx. 714 (4th Cir. 2010). This issue is discussed in Love et al., Collateral Consequences of Criminal Conviction: Law Policy and Practice § 4:14 (West/NACDL, 2016 ed.). [2] In Stall the court suggested that the sentence there was attributable in significant part to “the failure of prosecutors to defend their sentencing recommendations vigorously.” Id. at 286. In United States v. Bistline, discussed in text, the court characterized Stall as “more a cautionary tale about prosecutorial neglect, than . . . a precedent important to our decision here.” 665 F. 3d 758, 768 (6th Cir. 2012). [3] On remand, the sentencing court imposed essentially the same sentence, and the court of appeals again reversed, remanding for reassignment. United States v. Bistline, 720 F.3d 631 (6th Cir. 2013). On the third sentencing, the court imposed a sentence of 366 days, which the court of appeals affirmed though it was an 80% reduction from the low end of the guidelines. See United States v. Bistline, 605 Fed. Appx. 529 (6th Cir. 2015), cert denied, 136 S. Ct. 169 (2015).
- New federal screening requirements for child care workers (2/25/2016) - Child care workers in every state are subject to rigorous criminal background checks that may result in mandatory bars to employment. Until now, each state has been generally free to define its own standards regarding screening for criminal history. That is about to change. By September of next year, states receiving funds under the federal Child Care and Development Block Grant (CCDBG) Act of 2014 (which appropriates over $ 2.5 billion each year to fund state child care and child welfare programs) must adopt minimum federally-defined screening standards for child care workers or risk loss of funding. The revised statutory standards subject current and prospective child care workers to a multi-level criminal background check and disqualify from employment anyone convicted of crimes against children, specified violent crimes, and drug crimes within the past 5 years. States may opt to waive the disqualification for drug crimes on a case-by-case basis, but they are also free to adopt conviction-based disqualifications that are more restrictive than the law requires. If the new CCDBG standards were not bad enough, the Department of Health and Human Services has issued proposed rules that would make them worse. On Monday, the CCRC joined a coalition of organizations led by the National Employment Law Project in calling on HHS to rethink proposed rules that would implement the new screening requirements. A formal comment filed by the coalition details the ways in which the proposed rules fail to adequately address the disparate impact that the requirements could have on women, African Americans, and Latinos, and takes issue with requirements in the rules that are more exclusionary than the Act requires. As observed in the comment: The diverse profile of the child care workforce justifies close scrutiny of the proposed Administration for Children and Families (ACF) regulations. Sixteen percent of child care workers are African American (compared to 11 percent of the total U.S. workforce) and another 22 percent are Latino (compared to 16 percent of the total U.S. workforce). These workers typically endure long hours while earning especially low wages (averaging just $21,490 annually), and qualifying for few, if any, benefits. Given these challenges, child care workers are especially likely to reside and work in low-income communities that are most affected by over-criminalization and mass incarceration. The child care workforce is also overwhelmingly represented by women (96 percent), and women now constitute the fastest growing segment of the correctional population. Arrest data from 2003 to 2012 indicates that arrests of women in the United States increased by 3 percent, while the rate declined by 13 percent for men. The rise in arrest rates has corresponded with a major increase in incarceration rates for women as well (exceeding the rate of men by 1.5 times, from 1980 to 2010),11 and the criminalization of African American girls in schools. However, women with an arrest or conviction record pose a low risk to public safety because they tend to enter the criminal justice system for non-violent crimes that are often drug-related or driven by poverty. In fact, women have markedly lower rates of recidivism than men. Given the diverse nature of the child care workforce, the comment urges HHS to incorporate into its implementing rules language from the Equal Employment Opportunity Commission’s guidance on criminal background screening in compliance with Title VII of the Civil Rights Act of 1964. Among other things, the EEOC guidance calls for an individualized assessment of employees and applicants that takes into account whether a particular conviction is related to the position and any mitigating factors. The coalition urges that incorporation of these standards will encourage states to implement robust procedures governing waivers for drug crimes and any additional disqualifications defined by state law. The comment also questions a provision that would require background screening for anyone age 18 or older residing in a license-exempt home that provides child care services – a requirement not mandated by the Act itself. In addition to concerns about administrative over-reach and the increased costs that the expanded checks will saddle providers with, the comment explains that expanding background checks to adult household members would have a disparate impact on low-income communities and communities of color, which have higher than average arrest and conviction rates. Based on the experience of our organizations serving these communities, it is clear that they constitute a significant proportion of license-exempt child care providers and are more likely to have multiple generations living in the same house. Finally, the comment urges HHS to omit language encouraging self-reporting of criminal history (which may result in the reporting of inaccurate and irrelevant, though potentially harmful, information) and to encourage states to create effective procedures for appealing the results of inaccurate background checks. Revising the proposed rules to address these concerns would be consistent with HHS’s active participation in the Obama Administration’s Federal Interagency Reentry Council, which is charged with “remov[ing] federal barriers to successful reentry so that motivated individuals—who have served their time and paid their debts—are able to compete for jobs, attain stable housing, support their children and families, and contribute to their communities,” and with Title VII and existing HHS policies that address unreasonable barriers to employment and reentry. Since the Act does not do any favors for child care workers with criminal backgrounds, one can only hope that HHS will administer it in a way that strikes a reasonable balance between public safety and fairness to those that deserve a second chance. The full comment can be found here.
- Should DOJ be gatekeeper of president’s pardon power? (8/31/2015) - Last week Sentencing Law & Policy highlighted a new article by CCRC director Margaret Love that examines the Justice Department's historical role in administering the president's pardon power. The article ("Justice Department Administration of the President's Pardon Power: A Case Study in Institutional Conflict of Interest") concludes that an institutional conflict of interest has made Justice a progressively less responsible and effective steward of the constitutional power, and urges the president to relocate the pardon program to the Executive Office of the President. The article, to be published in a forthcoming issue of the University of Toledo Law Review, can be downloaded here. Here is its abstract: The president’s constitutional pardon power has been administered by the attorney general since before the Civil War, but this arrangement has never been adequately explained or justified. On its face it appears rife with conflict of institutional interests: how could the agency responsible for convicting people and putting them in prison also be tasked with forgiving them and setting them free? In spite of these apparently antithetical missions, the Justice Department managed the pardon program in a low-key and reliable manner for well over a century, staffing it with a handful of career lawyers operating on a shoestring budget, and churning out hundreds of favorable clemency recommendations each year for the president’s consideration. While there were occasionally controversial grants there were never scandalous ones, and the president was able to use his power to good effect in wartime and in peace. It is only in the past two decades that questions have been raised about the integrity and functionality of the pardon process, focusing squarely on the agency and individuals standing as gatekeeper to the president’s power. President Obama’s decision in early 2014 to launch a large-scale clemency initiative, and the Justice Department’s unprecedented decision to rely upon a consortium of private organizations to manage it, make this a propitious time to consider whether the presidency is well-served by an arrangement making officials responsible for prosecuting crime the primary source of clemency advice. This essay concludes that the culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president. The only way to deal with the institutional conflict that produced and perpetuates this situation is to transfer the pardon program to the president’s direct supervision in the Executive Office of the President. This move will have a variety of benefits, including facilitating the president’s ability to oversee the workings of the criminal justice system, for which he has a special responsibility under the Constitution. More specifically, it will introduce salutary political accountability to federal prosecutions through presidential oversight and potential revision. Finally, it will give the president control for the first time in decades over his own “benign prerogative.”
- Amicus invited in federal expungement case (8/7/2015) - For those following developments in the federal expungement case currently pending before Judge John Gleeson in the Eastern District of New York, Jane Doe v. United States (Jane Doe II), the following order was entered by the court on August 6: ORDER: Margaret Love, a nationally-recognized authority on collateral consequences and co-author of the treatise Collateral Consequences of a Criminal Conviction: Law, Policy and Practice (NACDL/West 2013), is respectfully invited to submit an amicus brief addressing the issues raised in my July 28, 2015 Order (i.e., the authority of the court to enter a certificate of rehabilitation and the appropriateness of doing so in this case) as well as any other matters that may be relevant to the adjudication of defendant's motion. The government's brief is due on August 28, and petitioner's brief is due September 11. Argument is scheduled for September 18. Meanwhile, no briefing schedule has yet been set in the appeal of Judge Gleeson's May 21 expungement order in the first Jane Doe case.
- Federal expungement case gets curiouser and curiouser (7/29/2015) - Visitors to this site are familiar with the expungement order issued by Federal District Judge John Gleeson on May 21. See Jane Doe v. United States, now on appeal to the Second Circuit. A second Jane Doe, a codefendant of the first, applied for expungement on June 23, and on June 29 Judge Gleeson ordered the government to show cause on or before August 28 why her application should not be granted. A hearing has been scheduled for September 18. Yesterday the Judge issued a new order directing the government to include in its briefing "its view as to whether I have authority to enter a certificate of rehabilitation in lieu of expungement, and if so, the appropriateness of entering such a certificate in this case." It is not clear exactly what Judge Gleeson might have in mind by a "certificate of rehabilitation," since there is no specific authority in federal law for a court to grant relief so styled, whatever its legal effect, just as there is no specific authority for a federal court to expunge a conviction. Responding to the first Jane Doe's petition for relief, Judge Gleeson relied upon the court's inherent authority to expunge her thirteen-year-old conviction "because of the undue hardship it has created for her in getting – and especially keeping – jobs." He remarked that "I sentenced her to five years of probation supervision, not to a lifetime of unemployment." It is possible that Judge Gleeson has in mind the authority New York State courts have, in cases where a first felony offender is sentenced to probation, to issue a "Certificate of Relief from Disabilities" (CRD), which lifts legal barriers in New York law and has a limited effect under the nondiscrimination provisions of Article 23A of New York's Corrections Law. But since the second Jane Doe was sentenced to a 15-month prison term, she would not have been eligible for this relief even if sentenced by a New York court, but would have had to apply to the Parole Board for a Certificate of Good Conduct (which has much the same legal effect as a CRD). As it is, both Jane Does are eligible, like other federal offenders residing or doing business in New York, for a state law certificate from New York's parole board. However, we are unaware that a CRD or any other type of state relief has ever been granted by a federal court in New York. Indeed, we are unaware of any case in any State where a federal court has ordered relief from collateral consequences under a provision of state law. (If anyone knows of such a case, we welcome enlightenment.) It is true that federal sentencing judges are routinely asked by the U.S. Pardon Attorney for their recommendations in pardon cases that appear meritorious. However, it is not clear whether either of Judge Gleeson's Jane Does has applied for a presidential pardon. If they were to do so, the likelihood of their pardon applications being considered any time soon, at least in the ordinary course, is quite small. We look forward to seeing the government's brief when it is filed.