Expungement of criminal records in Europe (Spain)

This is the fourth post in a series about European law and policy on criminal records by Professors Jacobs and Larrauri.  Prior posts noted that public access is never allowed where a record has been expunged.  This post discusses the types of records that are eligible for expungement, how the expungement process works, and what the effect of expungement is.   (Professor Larrauri’s more detailed discussion of “judicial rehabilitation” in Europe is available here.)  – Eds. 

spainJust as there are variations in eligibility for and consequences of expungement in U.S. states, there are differences in detail in continental European countries. We focus on Spain, which we know best, though we have no reason to believe that Spain is an outlier when it comes to European countries’ law and policy.  (As in most all criminal record matters, the U.K. is more like the U.S. than continental Europe, making expunged records more accessible to the public than they are on the Continent.)

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Is pardon making a comeback? Probably not, but law reform may be

A recent issue of Governing Magazine reports that pardoning is “making a comeback” after decades of neglect.  It would be nice if it were true.

But the evidence of comeback is thin. Almost all of the jurisdictions where pardoning is thriving today are the same ones where it was thriving a decade ago.  In a dozen states, including Connecticut, Delaware, Georgia, Nebraska, South Carolina and South Dakota, pardon has never been neglected, much less abandoned by responsible officials. In these jurisdictions and a handful of others, pardon has deep roots in the justice system and is supported by accountable institutions of government.

It is certainly true that Pat Quinn of Illinois and Jerry Brown of California have made generous use of the power of their office after years in which the pardon power in their states languished unused.  Terry McAuliffe of Virginia is a newcomer to the small group of governors who evidently feel that pardoning is a responsibility of office.  All three are to be commended for it.  But three swallows do not make a summer.

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Louisiana’s new expungement law: How does it stack up?

Louisiana has far and away the largest prison population of any state in the country (847 per 100,000 people — Mississippi is second with 692 per), but until last year there was little that those returning home after serving felony sentences could do to unshackle themselves from their criminal records and the collateral consequences that accompany them. While Louisiana has for years authorized expungement of misdemeanor convictions and non-conviction records, the only relief available to convicted felony offenders was a governor’s pardon — very few of which have been granted in Louisiana in recent years. Most people convicted of a felony in the state, no matter how long ago and no matter how serious the conduct, were stuck with it.* That’s why we were interested to learn that in 2014 Louisiana enacted a brand new freestanding Chapter 34 of its Code of Criminal Procedure to consolidate and extend the law governing record expungement to many felonies.

We decided to find out what the new law offers to those with felony records, and how it stacks up against the three other new comprehensive expungement schemes in Arkansas, Indiana, and Minnesota. We found that while a relatively large number of people with felony convictions are newly eligible for expungement relief, the law’s effectiveness is hampered by 1) unreasonably long waiting periods and 2) limited effectiveness in mitigating collateral consequences related to employment and licensure. Read more

Moral panic over sex offenses results in cruel and self-defeating overpunishment

logo(4)National Lawyers Guild Review Editor-in-Chief Nathan Goetting has published a thought-provoking piece in the most recent issue of the Review, commenting on America’s “moral panic” over sexual offenses, which has “created self-defeating policies, unconstitutional laws, and cruel punishments.”   Among those punishments are a plethora of collateral consequences that stigmatize and shame without regard to actual risk.  We reprint the editorial here in its entirety, with permission.      

It should go without saying that human sexuality is rife with complexity and mystifying contradictions. It’s a puzzle palace from which all sorts of behaviors—routine, bizarre, and sometimes dangerous—can emanate. Yet our criminal laws and procedures regarding sex crimes respond to this swirling welter of incomprehensible impulses with stubborn and self-defeating simplicity. We choose to punish that which we fear to understand, as if learning what motivates the behavior is to show a little too much sympathy and solidarity with “perverts,” toward whom only contempt can be shown. As with suspected terrorists since 9/11, our mercilessness leaves no room for anything else, not even enlightened self-interest.

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A tale of two (or three) pardoners from Illinois

64133-004-53FEB8CC Illinois Governor Pat Quinn spent his first and last days in office considering pardons.  On April 10, 2009, referring to the hundreds of cases left untouched by his impeached predecessor Rod Blagojevich, he declared that “Justice delayed is justice denied,” and promised that “My administration is fully-committed to erasing this shameful log jam of cases in a methodical manner and with all deliberate speed.”

Quinn was as good as his word.  His interest in erasing the pardon backlog never flagged, even during his two reelection campaigns.  By the time he left office earlier this week, he had acted on more than 5,000 pardon applications and granted full pardons to 1,789 people, more than any other Illinois governor in history.  In his final week he also pardoned a man found innocent by the courts, making him eligible for compensation from the state, and commuted a number of prison sentences, freeing two men whose guilt had been drawn into question.

Far from being critical, the press was full of praise for his courage and compassion.  It was a fitting way to ring the curtain down on a tenure that saw the pardon power restored to a respectable and fully operational role in the Illinois criminal justice system.

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