California’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights)

Prop 47 and restoration of rights 

California’s recently enacted Proposition 47 fundamentally alters the landscape for a handful of lower-level felony offenses in California. As discussed by Jeffery Aaron in a previous post, Prop 47 reclassifies eight offenses as misdemeanors, including simple drug possession offenses and theft of less than $950. Anyone with a qualifying conviction, who also does not have a disqualifying prior, can now petition under Prop 47 to have a felony reclassifiedimages as a misdemeanor. The most significant and immediate relief will be for people who are incarcerated for qualifying low-level felonies and who are now eligible for resentencing and release. Public defender offices around the state are busy filing those petitions.

But, Prop 47 also allows two other populations to petition for reclassification of their qualifying felonies to misdemeanors: People who are under supervision but not incarcerated (on probation, parole, or post-release community supervision), and people whose sentences were completed long ago. This aspect of the new law presents good opportunities for tens of thousands of Californians, and not insignificant implementation challenges.

Simply by reclassifying certain offenses from felonies to misdemeanors, Prop 47 can undo some of the most serious collateral consequences.  It’s clear from our experience providing reentry legal services to thousands of clients over the years that people with felony, as opposed to misdemeanor, convictions face increased barriers to employment, housing, and full and meaningful community reintegration and citizenship. For example, people with a felony conviction, even a decades-old low-level offense, can never serve on a jury in California. For many people, Prop 47 will reverse this lifetime disenfranchisement and move them one step closer to full civic engagement.

But unfortunately, many of the statuary and extra-legal barriers to successful reentry that block people convicted of felonies also apply to people with convictions for misdemeanors and criminal infractions. Consequently, Prop 47 relief alone is not a cure-all for collateral consequences, and for most people it’s not even the most important petition they can file to overcome the statutory disabilities they face.  The following section describes how Prop 47 relief interacts with other California relief mechanisms. Read more

Special interests succeed in watering down NJ Opportunity to Compete Act

In updating our book on New Jersey Collateral Consequences, J.C. Lore and I analyzed the provisions of New Jerseys’ new Opportunity to Compete Act, signed by Governor Christie in August and scheduled to become effective on March 15, 2015.   The Act applies a ban-the-box requirement to most public and private employers with more than 15 employees.  Having followed the bill through its passage in the House last spring, we were disappointed but not surprised to see that there were a number of employer-friendly amendments added to the Act just prior to final action in the Senate, with the result that there is a great deal of uncertainty about what the law actually accomplishes.  The important provisions omitted from the bill in the Senate, after lobbying by business and industry groups, includedstock-photo-usa-american-new-jersey-state-map-outline-with-grunge-effect-flag-insert-101188936

  • A prohibition on considering certain types of criminal histories, including conviction records after a certain number of years;
  • A private right of action against employers;
  • A definition of “initial employment application process” that permits inspection of criminal records at an earlier stage of the employment process;
  • A requirement that an employer make a good faith effort to discuss the applicants criminal record if it is of concern; and
  • A provision permitting negligent hiring suits in cases of “gross negligence.”

The bill as amended also preempted local ban-the-box laws, so that Newark’s more progressive ban-the-box ordinance appears to be on life support.

Attached are the enacted version of the New Jersey Opportunity to Compete Act, as well as the “advance law” with brackets to show which language was removed in the Senate.

EDITOR’S NOTE:  Much chastened, the author of the NACDL Restoration of Rights Resource has made appropriate modifications in the New Jersey profile.  Note that similar last-minute amendments also substantially weakened the Delaware ban-the-box law, omitting similar provisions that would have prohibited employers from considering certain types of criminal records, notably convictions more than 10 years old.  In the same fashion, last-minute amendments to Vermont’s Uniform Collateral Consequences of Conviction Act restricted its coverage to less serious offenses, disappointing its sponsors.

The lesson for advocates is that they must be eternally vigilant for last-minute lobbying by special interests to dilute provisions of progressive legislation intended to give people with a criminal record a fairer chance in the workplace. – ML

The “president’s idle executive power” and collateral consequences

In their Washington Post op ed on the President’s neglect of his pardon power posted earlier on this site, Rachel Barkow and Mark Osler are critical of the Justice Department’s us-department-of-justice-squarelogobureaucratic process for processing applications for executive clemency, which they argue takes a very long time and yields very little.  (The New York Times editorialized last year in a similar vein about how DOJ has effectively sidelined the president’s power as a tool for justice for more than 20 years.)  Barkow and Osler ask why Justice considered it necessary or wise to farm out the processing of thousands of petitions from federal prisoners to a private consortium called Clemency Project 2014, rather than reform the official process:  “such a short-term program does nothing to fix the problematic regular clemency process that will survive this administration unless action is taken.”

Barkow and Osler focus on sentence commutations, and not on the other common type of clemency grant: a full pardon, typically sought by those who have fully served their court-imposed sentences, to avoid or mitigate collateral consequences.  In addition to the thousands of prisoner petitions awaiting consideration by DOJ’s Pardon Attorney, there are now more than 800 petitions for full pardon pending in the Justice Department.  Most of these petitions were filed by individuals who completed their court-imposed sentences long ago but remain burdened by legal restrictions and social stigma.  A majority of the pending petitions were filed years ago and have long since been fully investigated.  What can be holding things up?

Read more

Despite pardoning hundreds, out-going Illinois governor may leave significant clemency backlog

When disgraced Illinois governor Rod Blagojevich was removed from office in 2009, he left behind more than the ugly controversy that would eventually lead to a 14-year federal prison sentence: he also left behind a 7-year backlog of over 2,500 clemency recommendations from the state’s Prisoner Review Board (“PRB”).   Blago’s successor Pat Quinn declared in April 2009 his intention of “erasing the shameful logjam of cases in a methodical matter and with all deliberate speed,” stating that “Justice delayed is justice denied.”  Since then, Governor Quinn has disposed of a total of 3,358 clemency petitions, granting more than a third of them.  Of the 1,239 persons pardoned, most have also had their records expunged.

However, despite his admirable efforts to restore regularity to Illinois pardoning, it appears that Quinn may leave his successor almost as large a backlog as he himself inherited.  This is because, during  his six years in office, the PRB has forwarded over 3,000 additional recommendations to the governor’s desk, most of which have not been decided.  Unless Quinn somehow finds a way to dispose of this still-large backlog of cases between now and January, Blagojevich’s irresponsible neglect of his pardoning responsibilities will have created a kink in the administration of the pardon power in Illinois that may not be worked out for years to come.

If long waits have become the new normal for pardon applicants in Illinois, those seeking relief from collateral consequences would do well to consider the alternatives available under state law.  For example, Illinois courts are authorized to grant Certificates of Relief from Disabilities, which avoid numerous licensing restrictions and shield employers from negligent hiring liability; and, Certificates of Good Conduct, which relieve mandatory bars to employment and other opportunities and certify the recipient’s rehabilitation.  Courts are also authorized to seal and expunge records in certain cases.

You can read about the latest round of Governor Quinn’s pardons in this Chicago Tribune article.  More information about relief and restoration of rights in Illinois can be found in the NACDL Restoration of Rights resource here.

UPDATE:  In his final days in office, Governor Quinn pardoned more than 300 people, and denied about 1000 petitions. He left about 2000 petitions for his successor to act on.  Let us hope he has a similarly progressive view of pardoning.

New report describes public health consequences of incarceration

A new report from the Vera Institute, On Life Support: Public Health in the Age of Mass Incarceration, highlights the “contagious” health effects of incarceration on the already unstable communities to which most of the 700,000 inmates released from prison each year will return.  The report argues that high rates of incarceration among residents in these communities are “one of the major contributors to poor health in communities,” and that this has “further contributed to diminished educational opportunities, fractured family structures, stagnated economic mobility, limited housing options, and restricted access to essential social entitlements.”  In “a political landscape ripe for reform” of these cascading collateral consequences of conviction, the report finds significant promise in the Affordable Care Act:

The passage of the ACA in 2010 was a watershed moment in U.S. history. State and local governments are increasingly realizing the opportunities created by the ACA to develop partnerships between health and justice systems that simultaneously abate health disparities and enhance public safety. A number of the legislation’s key provisions—the expansion of Medicaid, increased coverage and parity for mental health and substance use services, and incentives for creating innovative service delivery models for populations with complex health needs—provide new funding streams and tools for policymakers to strengthen existing programs and develop solutions to reduce mass incarceration.90 The ACA creates critical opportunities for states, local governments, and healthcare stakeholders to greatly expand the capacity of their community health systems to better meet the needs of underserved populations, curb the flow of medically-underserved populations into jails and prisons, pursue collaborative programming to plug service gaps between health and justice systems, and ensure that people are able to receive services in the community that are essential for health. …