Dozens of new expungement laws already enacted in 2021

This year is turning out to be another remarkable year for new record relief enactments. In just the first six months of 2021, 25 states enacted no fewer than 51 laws authorizing sealing or expungement of criminal records, with another 5 states enrolling 11 bills that await a governor’s signature. Three of these states authorized sealing of convictions for the first time, seven states passed laws (or enrolled bills) providing authority for automatic sealing, and a number of additional states substantially expanded the reach of their existing expungement laws. This post hits the highlights of what may well be the most extraordinary six-month period in the extraordinary modern period of criminal record reform that begin in 2013.  The only closely comparable period is the first six months of 2018, when 11 states enacted major reforms limiting consideration of criminal records in occupational licensing.  Further details of the laws mentioned below can be found in the relevant state profiles from the Restoration of Rights Project. (An earlier post noted new occupational licensing laws in 2021, and subsequent ones will describe significant extensions of the right to vote so far this year, and summarize the more than 100 record reforms enacted to […]

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“After Trump: The Future of the President’s Pardon Power”

This is the title of the new issue of the Federal Sentencing Reporter, which is now available online. As explained by the FSR editors in the issue’s introduction, FSR is continuing its tradition of exploring each president’s pardoning practices at the end of their term: This Issue of the Federal Sentencing Reporter shines a light on the state of clemency today, with an emphasis on the federal system and events of the Trump administration.  This Issue thus continues an FSR tradition of exploring federal clemency practices under each president, starting in 2001 after President Bill Clinton created controversies with final-day pardons.  Over the last twenty years, an array of commentators have analyzed the actions (and inactions) of four presidents, each of whom embraced quite different goals, perspectives, and strategies.  In addition to bringing thoughtful new perspectives to recent events, the articles assembled today by guest editor Margaret Love, the indefatigable advocate, scholar, and former Pardon Attorney, offer a roadmap to, in her words, “restore legitimacy to the pardon power and its usefulness to the presidency.”  The editors of FSR are — once again — deeply grateful for Ms. Love’s efforts and expertise.

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New collection of research on sex offense registration

Cambridge University Press has just published a new book, edited by Professors Wayne A. Logan and J.J. Prescott, containing chapters from the nation’s leading social science researchers on the many important empirical questions surrounding sex offense registration and community notification (SORN).  Since SORN’s origin in the early 1990s, basic questions have existed regarding its effects, including whether it actually achieves its intended purpose of reducing sexual offending. SORN surely numbers among the most significant social control methods of the past several decades.  Although the Supreme Court in 2003 rejected two constitutional challenges to SORN laws (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe), of late courts, including the Sixth Circuit Court of Appeals (Does v. Snyder, 2016), have cast a more critical eye, invalidating new generation SORN laws that have become more onerous and expansive in their reach. An updated review of caselaw from Professor Logan on SORN and other collateral consequences triggered primarily by sex offenses will be included in the forthcoming fourth edition of Love, Roberts & Logan, Collateral Consequences of Arrest & Conviction: Law Policy & Practice (West/NACDL, 4th ed. 2021). Also, as readers might be aware, the American Law Institute, as part of […]

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Oregon’s expungement statute gets a much-needed overhaul

– Following George Floyd’s murder, NIKE and Metropolitan Public Defender, Oregon’s largest trial-level public defense service provider, became unlikely partners to improve Oregon’s expungement statute. Oregon has allowed expungement of certain criminal records since 1972, but the law and process are so complicated and costly that only 5.5% of eligible residents ultimately obtain relief.  The statute is replete with exceptions, convictions block other convictions and non-convictions, the least serious convictions have a lengthy “look back” period of conviction-free conduct that regularly results in a 10-year waiting period, and non-person class B felonies have the longest waiting period in the nation (20 years). Even non-convictions are subject to the same 10-year look-back period as convictions, plus an additional three-year period of no other arrests, dismissals or acquittals. The impact of Oregon’s dysfunctional system is felt most severely by its BIPOC community who are more likely to be arrested, charged and convicted.  Black Oregonians are almost four times as likely to have a criminal record as their white counterparts.  See Paperprisons.org. Metropolitan Public Defender and NIKE’s pro bono group, frustrated by the complex law and process, were inspired by the Black Lives Matter protests following George Floyd’s murder.  They challenged themselves to […]

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Study reveals potential for racial bias in presidential pardon process

Last week the RAND Corporation published its long-awaited Statistical Analysis of Presidential Pardons, commissioned in 2012 by the Bureau of Justice Statistics to determine whether the Justice Department process for deciding who to recommend for a presidential pardon is tainted with “systematic” racial bias. The RAND study appears to have been a direct response to an investigative report published jointly in December 2011 by ProPublica and the Washington Post, which concluded based on an examination of pardon cases granted and denied during the administration of George W. Bush, that race was “one of the strongest predictors of a pardon.” Specifically, the ProPublica study concluded that “White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities” while “Blacks have had the poorest chance” of receiving a pardon. In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.)  At the […]

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