The Collateral Consequences Resource Center Goes Live!

The Collateral Consequences Resource Center website launches on Tuesday, November 18, 2014.  We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.

ccrc inkscapelogostackedThe legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects. The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation. Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served.  Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind. Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention. People with a record are organizing to promote change.

The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions. The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: Contact Us.

 

“Second Chances for Teen Offenders”

This New York Times editorial urges states to seal or expunge juvenile records “so that young offenders are not permanently impaired by their youthful transgressions.”  It describes a new study from the Juvenile Law Center that concludes “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to [juvenile] records.”

The first juvenile courts were established more than a century ago on the principle that children deserve special care under the law because they are vulnerable, because their transgressions tend to be nonviolent and because they can be expected, on the whole, to outgrow their youthful misbehavior.

These presumptions are borne out by data showing that 95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood. But because some juvenile court records remain open to the public when they should have been sealed or expunged, these young people can be denied jobs, housing and even admission to college.

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Dismissed charges not always the best outcome?

Which is a better outcome for a defendant in a criminal case: a) dismissal of all charges; or b) finding of guilt with probation or fine? Although most defendants and their attorneys would without hesitation choose option a), the choice is not always clear cut for some young defendants in in at least one Midwestern state.

So why might a former client say that “I can’t get a job because the charges against me were dismissed“? Or ask “ Why didn’t my lawyer tell me to plead guilty?” How is there a potential advantage of a conviction compared to dismissal?

In Wisconsin, computerized court records make it easy for the public, including prospective employers, to see public records of court cases, including charges that have been dismissed. However, a statute (Wis. Stat. sec. 973.015) allows for certain records to be sealed, depending upon the defendant’s age and the classification of the crime. However, the statute does not allow for sealing records in cases that resulted in dismissal, so they remain accessible through computerized searches.

Therefore, if a defendant is greatly concerned about the potential effect of the record on future employment (or other effect on reputation), an expunged record may be preferable to a public record of a dismissed charge. The defense attorney should at least be aware of the options and explain them to the client, rather than assuming which option the client would prefer. This example also shows that it is critically important for defense lawyers to be aware of the relief that may be available to avoid or mitigate collateral consequences.

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Minnesota project examines how different life would be with a criminal record

weareallcriminals
WeAreAllCriminals.org

One in four people in the United States has a criminal record. It’s a record used by the vast majority of employers, legislators, landlords, and licensing boards to craft policies and determine the character of an individual.  In our electronic and data age, it typically does not disappear, regardless of how long it’s been or how far one’s come. The effect is an endless sentence, precluding countless opportunities to move on or move up in life.

But what about the other 75%?

We Are All Criminals is a documentary project that looks at the three in four people in the US who have the luxury of living without an official reminder of a past mistake.  Participants tell stories of crimes they got away with.  They are doctors and lawyers, social workers and students, retailers and retirees who consider how very different their lives could have been had they been caught; these confessions are juxtaposed with stories of people who were caught for similar offenses.

The stories are of youth, boredom, intoxication, and porta potties. They are humorous, humiliating, and humbling in turn. They are privately held memories without public stigma; they are criminal histories without criminal records.

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More states rely on judicial expungement to avoid collateral consequences

Oklahoma is the most recent state to expand its expungement laws to make more people eligible fOklahomauntitledor record-clearing at an earlier date.  While the specific changes adopted by the Oklahoma legislature are relatively modest, involving reduced waiting periods and fewer disqualifying priors, they are significant as part of a national trend toward enlarging this type of “forgetting” relief for people with minor criminal records.  Details of Oklahoma’s law are available here.

Other states that have enacted new expungement laws or broadened existing ones in the past two years include Alabama, Arkansas, Colorado, Indiana, Minnesota, and Tennessee.

Alabama’s new expungement law is the first record-closing law in that state and applies only to non-conviction records.  Arkansas and Minnesota broadened or consolidated existing expungement schemes that were already quite extensive.  The Indiana expungement scheme is entirely new and particularly comprehensive and progressive. (An analysis of the new law by its primary sponsor in the Indiana legislature will be posted in this space very soon.)  The effect of this type of “forgetting” relief varies widely from state to state, from complete destruction of records in states like Pennsylvania and Connecticut to more limited relief in Kansas and Indiana, where expunged records remain accessible to some employers as well as law enforcement.

The other type of individualized judicial relief from collateral consequences that is growing in popularity relies not on limiting public access to a person’s criminal record, but instead on Read more