“A Plan to Restructure (and Revive) Pardoning After Trump”

The title of this post is the title of my second piece for Lawfare on the future of presidential pardoning after the unjust and irregular practices that characterized pardoning under President Trump.  In response to critics who urge that responsibility for pardon advice should be removed from the Justice Department, I argue for restoring the pardon program to its historic place as an independent and respected part of that agency, so it can be an effective counterweight to the punitive views of prosecutors that have in the past frustrated pardoning.  Reestablishing a functional institutional connection between the president’s power and the rest of the justice system will better serve both the presidency and the public interest in a more compassionate approach to criminal law enforcement. I suggest that Merrick Garland, whose Senate Judiciary Committee confirmation hearing to become attorney general begins on Monday, will understand how to reset the balance between pardon and justice to the benefit of both.

This is a follow-up to my Washington Post op ed, in which I argued that the presidential pardon power has been burdened with too many routine functions, and that the new administration should seek to restore a degree of practical efficiency to pardoning by working with Congress to reassign many of these functions to the courts — including shortening prison sentences and restoring lost rights.

The second piece is reprinted below:

A Plan to Restructure (and Revive) Pardoning After Trump

The overarching theme that emerges from four years of Donald Trump’s pardoning is an approach to government authority as transactional and personality based, rather than principled, structured, and process based. From the nation’s earliest days, unruly pardon has been harnessed to the rule-of-law virtues of the justice system, secured since the 19th century by its relationship to the Justice Department and by presidents respecting that relationship. Trump ostentatiously rejected that relationship from the start.

Trump not only detached the pardon power from the structure and operation of the justice system but he also used his power to challenge and frustrate that system. His pardons have been described by Bernadette Meyler as a throwback to the theatrical pardoning of the 17th century English kings and playwrights, enlarged and darkened by self-interest.

In the wake of Trump’s abusive and frequently haphazard pardoning, there have been calls to reform the process by which the president receives advice in pardon matters by stripping the Justice Department of its long-standing gatekeeper role. While reform of the pardon process is certainly in order, it would be a profound mistake to institutionalize Trump’s detachment of pardon from the justice system as these reformers urge.
(more…)

Read more

Access Barriers to Felony Expungement: The Case of Illinois

Currently, 33 states authorize the expungement or sealing of at least some felony convictions.i However, recent research has shown that only a small percentage of eligible individuals actually complete the court petition process required to obtain this relief in most jurisdictions.ii In the fall of 2020, as an outgrowth of its work surveying record relief laws in the 50 states, the Collateral Consequences Resource Center (CCRC) decided to take a closer look at barriers that prevent people with felony convictions from accessing relief intended to benefit them.

Ideally, the most efficient way to overcome access barriers would be to make sealing automatic, dispensing with the requirement of filing individual petitions. However, the move toward automatic sealing is in its early stages,iii and we anticipate that petitions will remain the primary way to clear felony conviction records in most states for the foreseeable future. Accordingly, it is important to minimize barriers to petition-based relief at every level.

In order to minimize barriers, they must first be identified and documented. We have therefore begun work on a project to analyze barriers to petition-based sealing of felonies in a number of different states. This will hopefully encourage those states to reform their process to retain only substantive and procedural requirements that are truly necessary from a policy perspective, and to shift burdens now placed on individual applicants to the government wherever practicable. At the same time, the revealed difficulty of accessing petition-based relief on an equitable basis would be a strong incentive to consider automation, and the costs and benefits of each process could more easily be compared.

As a preliminary step toward launching this project, we collaborated with Beth Johnson and her partners in the Rights and Restoration Law Group (RRLG) to develop a survey instrument that collects information about access barriers to felony expungement across four domains: (1) resource and knowledge; (2) eligibility; (3) process; and (4) effectiveness. We tested our survey instrument with practitioners from several states. Beth and her team took the survey for their home state of Illinois and analyzed the strengths and weaknesses of the state’s record-sealing system.iv

We are publishing the RRLG Illinois report that follows as a pilot for additional state-specific studies. It provides detailed descriptions of the Illinois system’s strengths and weaknesses in the four areas identified above, and makes recommendations for reform. RRLG’s survey responses are in the appendix.

The Illinois report is available as a PDF here, and included in this post below.

We hope to be able to broaden this project to work with practitioners from additional states to complete the survey and write up case studies, on the basis of which we could recommend state-specific reforms as well as more general best practices. In addition to this project, we have been collaborating with Jessica K. Steinberg, director of the Prisoner & Reentry Clinic at GW Law, on an initiative in which the clinic has created a survey tool and conducted data collection on pro se access barriers to felony expungement in 34 states, with a white paper planned for later this year.

In the meantime, here are links to the survey questions used for this report. We invite anyone interested to complete it, to help us gather data for this undertaking:

Part I. Resource & Knowledge Barriers: https://forms.gle/MxRYtcpvMahYybcM7

Part II. Eligibility Barriers: https://forms.gle/RHQo92DedtddqyrJ7

Part III. Process Barriers: https://forms.gle/nAjUHKwKjmbKzXMZ9

Part IV. Effectiveness Barriers: https://forms.gle/t2iNh1RPJDPLDkXm7

(more…)

Read more

After a haul of record relief reforms in 2020, more states launch clean slate campaigns

Yesterday, the Clean Slate Initiative, a bipartisan national effort to automate the clearing of criminal records, announced four new state campaigns in Texas, New York, Oregon, and Delaware, joining ongoing campaigns in Louisiana, Connecticut, and North Carolina to advocate for automatic record relief legislation.

This announcement follows a productive year for record relief reforms in 2020, when Michigan became the sixth state to enact automatic relief for a range of conviction records, the most expansive such authority enacted to date. In total, 20 states enacted 35 bills and two ballot measures creating or expanding record relief (i.e. expungement, sealing, set-aside) last year. Michigan, along with three other states, also enacted major legislation expanding eligibility for petition-based conviction relief. Kentucky and North Carolina authorized the automatic sealing of many non-conviction records (with simplified petitions for others), consistent with a 2019 model law on non-conviction records developed by a group of practitioners under CCRC’s leadership. Other reforms addressed marijuana offenses, victims of human trafficking, juvenile records, and more.

Below we summarize 2020’s record relief reforms, broken down into six categories: general conviction relief (9 states, 14 laws), automatic conviction relief (4 states, 5 laws), non-conviction records (4 states, 4 laws), marijuana offenses (6 states, 5 laws, 2 ballot measures), offenses by victims of human trafficking (3 states, 3 bills), and juvenile records (5 states, 6 laws). Seven bills that were vetoed are described at the end. (Our full report on 2020 legislation is available here. Further detail about a particular jurisdiction’s record relief laws can be found in the CCRC Restoration of Rights Project, which includes both individual state profiles and 50-state comparison charts for conviction and non-conviction records.)

(more…)

Read more

Illinois set to become fifth state to cover criminal record discrimination in its fair employment law

NOTE: Governor Pritzker signed S1480 into law on March 23.

In our recent report on criminal record reforms enacted in 2020, we noted that there were only four states that had fully incorporated criminal record into their fair employment law as a prohibited basis of discrimination. These states (New York, Wisconsin, Hawaii, and California) provide that employers can only disqualify a person based on their record if it meets a specific standard, such as being related to the work in question or posing an unreasonable risk to public safety. Illinois will become the fifth state to take this important step as soon as Governor Pritzker signs S1480.

Illinois has been working up to this, having amended its Human Rights Act in 2019 to prohibit employment discrimination based on “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.” With S1480, Illinois has now taken the final step of incorporating criminal record fully into the law’s structure, which includes authorization to file a lawsuit in the event administrative enforcement is unsatisfactory. A preliminary analysis of the new Illinois law indicates that it now offers more protection for more people with a criminal record in the employment context than any state in the Nation other than California.

The provisions of the Illinois bill, enrolled and sent to the governor for signature on February 12, are described below.  We then compare them with the laws in the four other states that incorporate criminal record into their fair employment law. This post notes the handful of additional states that have fortified their record-related employment protections in recent years, then summarizes relevant reforms that were enacted in 2020.

(more…)

Read more

Online Criminal Records Impose ‘Digital Punishment’ on Millions

We are pleased to republish this excellent article by Andrea Cipriano, which describes a new study of online non-conviction records, with permission from The Crime Report. The study concludes that law enforcement records may remain freely available online indefinitely, notwithstanding state laws calling for automatic expungement of such records. (For more information on expungement of non-conviction records, see CCRC’s 50-state chart and CCRC’s model law on the subject.)  

Online Criminal Records Impose “Digital Punishment’ on Millions of Americans

by Andrea Cipriano    February 9, 2021

An analysis of Internet data portals that house personally identifiable information (PII) of people involved in the justice system found that compromising information on millions of Americans has been posted online by criminal justice agencies, even if they have not been convicted of a crime.

“Public records…are less likely to reveal information about the criminal justice system itself, and instead more likely to reveal information about people arrested [for] – but often not convicted of – crimes,” said researchers from Rutgers, Loyola Chicago, and UC-Irvine who conducted the analysis.

The analysis, published in the Law & Social Inquiry Journal, concluded that the amount of data accessible online effectively operates as a “digital punishment.” They noted that old arrest and criminal court data is easily accessible because of local law enforcement and court databases, and individuals named in the data have virtually no ability to wipe it from the records.

The researchers, Sarah Esther Lageson of Rutgers University-Newark School of Criminal Justice, Elizabeth Webster of Loyola University, and Juan R. Sandoval of University of California, Irvine, analyzed 200 government websites operated by law enforcement, criminal courts, corrections, and criminal record repositories across the country.

They found what they called an “impressive” amount of personally identifiable information, ranging from photographs to home addresses and birth dates.

The likelihood that this can lead to “identity theft, stalking, discrimination, and harassment” should persuade legislators and justice authorities to develop greater privacy protections, the researchers said.

(more…)

Read more