Automated sealing nears enactment in Pennsylvania

[NOTE:  On June 30, HR 1419 was signed into law as Act 56.  Its provisions have been incorporated into the Pennsylvania profile of the Restoration of Rights Project.]

On Friday June 22, the Pennsylvania legislature took its final step toward passage of the so-called Clean Slate Act of 2018, delivering to Governor Wolf a bill (HR 1419) that he has already indicated he will sign.  When enacted, the Act will be the first state law providing for automated sealing of at least some conviction records, sparing individuals with qualifying records the trouble and expense of filing a formal petition for relief with a court.  Congratulations are due to the Community Legal Services of Philadelphia and the Center for American Progress for their sustained efforts over several years to enact this ground-breaking legislation, which will provide relief for “hundreds of thousands of Pennsylvanians with old and minor criminal convictions or who were arrested but not convicted.”  Their press release, linked here, notes that “[t]he bill enjoyed remarkably broad support, including from legislators and advocacy groups that rarely find common ground.”  

As soon as HR 1419 has been signed into law, we expect to incorporate into the Restoration of Rights Project a full analysis of its relevant provisions, which are fairly complex, and which become effective on different dates.  In the meantime, we note below what appear to be the bill’s most salient features.

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Justice Gorsuch on collateral consequences and due process

In Sessions v. Dimaya, 138 S. Ct. 1204 (2018), Justice Gorsuch provided the essential fifth vote to affirm a finding that the “residual clause” of the Armed Career Criminal Act was too vague to be applied in a deportation case. The residual clause defined a “crime of violence” as including “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” A crime constituting a crime of violence was deemed an “aggravated felony” requiring deportation and rendering a non-citizen ineligible for almost all forms of relief.

Justice Gorsuch’s concurring opinion contains at least two points important for the law of collateral consequences.  First, he is much more concerned with the seriousness of the deprivation rather than its categorization as civil or criminal when evaluating how much process is required under the Constitution.  Unimpressed with the line of cases that treated deportation as quasi-criminal, he notes:

grave as that penalty may be, I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions. Why, for example, would due process require Congress to speak more clearly when it seeks to deport a lawfully resident alien than when it wishes to subject a citizen to indefinite civil commitment, strip him of a business license essential to his family’s living, or confiscate his home? I can think of no good answer.

Id. at 1231 (Gorsuch J., concurring).1

His solution is to level up the process due (in this case, the necessary degree of specificity required of statutory provisions) in civil cases, rather than level down criminal protections: “any suggestion that criminal cases warrant a heightened standard of review does more to persuade me that the criminal standard should be set above our precedent’s current threshold than to suggest the civil standard should be buried below it.” Id. at 1229.

A second interesting point is his guidance for legislatures about how penalty clauses like the one at issue could be drafted.  He notes that “the statute here fails to specify which crimes qualify for [the label of crime of violence],” id. at 1231, and that “Congress remains free at any time to add more crimes to its list.” Id. at 1233.  Many collateral consequence provisions, among other statutes, have the character of the provision voided here: they disqualify based on a quite general description of the crimes that give rise to the consequence (e.g., crimes involving dishonesty), and ask courts or agencies to evaluate specific offenses one at a time to determine whether they fit the categorical criteria.  Only after that process of evaluation do we know whether the consequence applies.

Instead of courts or agencies guessing what legislatures had in mind, it would be perfectly practical instead for Congress and state legislatures, when drafting the law in the first instance, to go item by item through the criminal codes, actually determine whether specific provisions should result in disqualification, and provide a list of those triggering crimes in the statute creating the consequence.  This is the approach of a recent Kansas statute.  If Justice Gorsuch is right that the Constitution is structured to “ensure fair notice before any deprivation of life, liberty, or property could take place,” id. at 1228, this cataloging effort does not seem like too much to ask.

 

More states enact major “second chance” reforms

In recent weeks, three more states — Colorado, Louisiana and Vermont — have enacted laws intended to make it easier for people with a criminal record to find and keep employment, or otherwise to regain rights and status.

We are just now noting Wyoming’s enactment in March 2018 of general standards for professional and occupational licensure, which impose new restrictions on how criminal record may be taken into account by licensing agencies, and its amendment of more than a dozen specific licensing laws.

In the first five months of 2018 alone, a total of 21 states have enacted legislation to improve opportunities for people with a criminal record, with more similar laws evidently on the way.  States have enacted several different types of “second chance” laws this year, from expansion of voting rights to expansion of judicial authority to relieve collateral consequences at sentencing.

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“Challenging the Punitiveness of ‘New-Generation’ SORN Laws“

Wayne Logan has a terrific new article on the recent challenges to sex offender registration and notification laws, forthcoming in the New Criminal Law Review.  Here is the abstract:

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.

Civil death lives!

The first and foremost collateral consequence in Colonial America was civil death; based on the grim fact that felonies were punished by execution, upon conviction, the law began to wrap up the convict’s affairs.  As the law developed, capital punishment ceased to be the default punishment, and civil death was seen as too harsh for a felon who might serve a probationary sentence instead of being executed or even going to prison at all.  The Rhode Island Supreme Court recently issued an opinion demonstrating that this ancient doctrine is not entirely obsolete.

In Gallup v. Adult Correctional Institutions, the court upheld dismissal of a complaint alleging that the state negligently allowed the plaintiff, a prisoner serving life, to be assaulted by another inmate.  The court pointed to the state’s civil death statute, which applies to prisoners serving life in an adult correctional institution. Such persons “shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction.”  Of U.S. jurisdictions, only Rhode Island, New York, and the Virgin Islands maintain civil death, and New York’s statute has many exceptions.  There is, accordingly, not much modern law on the scope of civil death statutes.

One wonders whether the Rhode Island statute could really extend to the full scope of its language; could a lifer be denied, for example, freedom of religion and speech under the U.S. and/or Rhode Island constitutions?  Suggesting that the answer is “no” is the fact that the court granted the plaintiff leave to plead a 42 U.S.C. § 1983 action based on the same underlying facts; the court recognized that a state statute cannot eliminate federal rights.

That acknowledgement raises the hard question of the extent to which the federal Constitution protects the property, right to marry, and “civil rights and relations” of even a person serving a life sentence.

NJ high court bars retroactive application of Megan’s Law

The New Jersey Supreme Court on Wednesday held 2014 amendments to Megan’s Law enhancing certain penalties for sex offenders who violate parole requirements unenforceable against four defendants based on the ex post facto clauses of both the state and federal constitutions. The court, in a unanimous ruling, vacated the convictions and sentences of four paroled sex offenders who committed minor violations of their parole conditions and mounted a challenge to the laws. The ruling vacates the individuals’ third-degree convictions for the parole violations.
“A law that retroactively increases or makes more burdensome the punishment of a crime is an ex post facto law,” wrote Justice Barry Albin for the court. “The Amendment, therefore, is an ex post facto law that violates our Federal and State Constitutions as applied to defendants.”  The four sex offenders—Melvin Hester, Mark Warner, Linwood Roundtree and Anthony McKinney—after completing their sentences for the original crimes, were placed on community supervision for life, according to the decision. That means that they must register their addresses with local law enforcement, and inform law enforcement if they change their addresses.  Those registration requirements were enacted by the state Legislature in 1994 after a 7-year-old Hamilton Township girl, Megan Kanka, was sexually assaulted and murdered by a convicted sex offender, Jesse Timmendequas, who was living in her neighborhood. The requirements that paroled sex offenders register their whereabouts later became federal law.

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President Trump supports opportunities for people with a criminal record

In an editorial published on May 21, the New York Times commended President Trump for remarks at a White House conference on prison reform last week, in which he expressed support for improved employment opportunities for people with a criminal record:

“A friend of mine told me that when people get out of prison, they’re all excited.” Mr. Trump said. “And then they go and they have that stigma; they can’t get a job. People don’t want to hire them. They can’t get that chance. When we talk about our national program to hire American, this must include helping millions of former inmates get back into the work force as gainfully employed citizens.”
It appears that most of the relevant discussion at the conference last week was about a House bill aimed at preparing federal prisoners for reentry, addressing such issues as good time credit and halfway house placement.  It also appears that the prospects for federal prison reform this year are dim, given the wide gulf between the pending House bill and the insistence of Senate leadership on including provisions for sentencing reform.  Nonetheless, the President’s words will be very useful for those working in state legislatures to restore rights and status.  Already in 2018, at least 13 states have enacted laws either reforming occupational licensure or extending record-clearing laws, and bills are awaiting the governor’s signature in another five.  We are already starting work on a report summarizing legislative accomplishments in 2018 that will be modeled on “Second Chance Reforms in 2017” published last fall.

Kansas most recent state to revise occupational licensing law

On May 10, Governor Brownback of Kansas signed into law the most recent entrant in the occupational licensing reform sweepstakes, making his state the seventh in the past six weeks to enact substantial progressive legislation.  The new law borrows a number of features from the Institute of Justice‘s model occupational licensing law, including prohibiting consideration of non-conviction records, and convictions not “directly related to protecting the general welfare,” and affording aspiring applicants an opportunity for a  preliminary assessment of their eligibility and an “informal, written advisory opinion.”  It adds a feature from the recently enacted Indiana licensing law that bars consideration of most convictions after five years.  The new law also addresses health care licensure and employment.  Here’s a description of the new law that we just posted in the Restoration of Rights Project.

Occupational and professional licensing

Kan. Stat. Ann. § 74-120, originally enacted in 1972, provides as follows:

Notwithstanding any other provision of law, any person, board, commission or similar body who determines the qualifications of individuals for licensure, certification or registration may consider any felony conviction of the applicant, but such a conviction shall not operate as a bar to licensure, certification or registration.

In May 2018 this general licensing statute was amended to add several additional provisions. See HB 2386, available here: http://www.kslegislature.org/li/b2017_18/measures/documents/hb2386_enrolled.pdf. The 2018 amendments require licensing boards to “list the specific civil and criminal records that could disqualify an applicant from receiving a license, certification or registration.” Kan. Stat. Ann. § 74-120(b)(1). Importantly, boards “may only list any disqualifying criminal records or civil court records that are directly related to protecting the general welfare and the duties and responsibilities for such entities.”  Moreover, ”in no case shall non-specific terms, such as moral turpitude or good character, or any arrests that do not result in a conviction be used to disqualify an individual’s application for licensure, certification, or registration.” Id.

Licensing boards are prohibited from considering an otherwise disqualifying criminal record or civil court record if five years have passed since the individual satisfied the sentence imposed and the individual has had no other convictions during that time. Kan. Stat. Ann. § 74-120(b)(2). However, boards may consider felony convictions, Class A misdemeanor convictions, and any conviction for which licensure could conflict with federal law, regardless of the time passed since the conviction. Id.

The amendments also provide individuals the opportunity to petition a licensing board at any time for a preliminary “informal, written advisory opinion concerning whether the individual’s civil or criminal records will disqualify the individual from obtaining such license, certification or registration.” Kan. Stat. Ann. § 74-120(b)(3). The board must respond to the petition within 120 days of receipt, and may not charge more than $50 for the response; however, the advisory opinion is not binding. Id.

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Appreciating the full consequences of a misdemeanor

Misdemeanor punishment is often deemed lenient, especially in the shadow of mass incarceration’s long prison sentences.  A typical sentence for a misdemeanor commonly consists of probation and a fine.  The full collateral and informal consequences of that misdemeanor, however, will often be far more punitive.  Those consequences can include months in jail, either pretrial or as a consequence of failing to pay fines and fees; reduced employment and earning capacity triggered by arrest and conviction records; the loss of housing, public benefits, financial aid, and immigration status.  In other words, the full punitive consequences of a misdemeanor are far from lenient, and the extra-judicial consequences can so far outweigh the legal sentence that it hardly makes sense to refer to them as “collateral.”

Misdemeanors have traditionally received short shrift in the legal scholarship and in the public debate over criminal justice.  But this inattention is a mistake.  Misdemeanors make up 80 percent of U.S. criminal dockets.  Most convictions in this country are for misdemeanors—this is what our criminal system does most of the time to the most people.  For a brief overview of major issues and misdemeanor scholarship, you can take a look at this survey, Misdemeanors, 11 Ann. Rev. L. & Soc. Sci. 255 (2015).

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New expungement legislation: Maryland and Oklahoma

The trend toward expanding expungement and sealing laws is continuing.  In the last week of April, the governors of Maryland and Oklahoma signed bills enlarging eligibility criteria and reducing waiting periods, joining Florida and Utah with new record-sealing enactments in 2018.  The provisions of these two newest laws are described below.  Similar legislation is well along in Illinois, Pennsylvania, Tennessee and Vermont.  Vermont S 173, enrolled and awaiting the governor’s signature, is of particular interest since it makes expungement automatic in some categories without the requirement of a petition or filing fee (“unless either party objects in the interest of justice”).   We are tracking these pending bills and will add them to the Restoration of Rights Project if and when they are enacted.

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