“On Lawyering” on collateral consequences

The following post was originally published at On Lawyering, CCRC President Rich Cassidy’s blog on the law and culture of lawyering. 

Judge Rules That That the Collateral Consequences of Conviction Justify the Release of a Drug Offender

“Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”[1]

Senior United States District Judge Fredric Block, in an opinion issued on May 24, [2] ruled that the collateral consequences faced by a 20 year old woman convicted of smuggling 602 grams of cocaine into the United States from Jamaica, justified a one year term of probation, even though she faced a guideline sentence of 33-41 months of imprisonment.

Judge Block reviewed the history of collateral consequences, concluding that “[t]oday, the collateral consequences of a felony conviction form a new civil death[,]”[3] referring to the scholarly work of my colleagues, Gabriel Jack Chin and Margaret Love. He decried the racially disparate impact of these laws, citing Michelle Alexander’s book, The New Jim Crow (2010). He noted the existence of collateral consequence reform efforts including an ABA Criminal Justice Standard [4]and the Uniform Collateral Consequence of Conviction Act.[5] He pointed out the sweeping breadth of collateral consequences, noting that according to the National Inventory of the Collateral Consequences of Conviction, nationwide there are some 50,000 federal and state statutes and regulations that impose collateral consequences and that some 70 to 100 million Americans are subject to them.[6]

Judge Block reviewed the state of the law, noting that while there is a split in the circuits, the law in the Second Circuit allows a sentencing judge to consider“the impact and significance of the collateral consequences facing a convicted felon as bearing upon a just punishment.”[7]

Finally, Judge Block put the idea into practice: he reviewed, in some detail, the collateral consequences the defendant faces, their likely impact on her life, and concluded:

[T]he collateral consequences Ms. Nesbeth will suffer, and is likely to suffer – principally her likely inability to pursue a teaching career and her goal of becoming a principal, Conn. Gen. Stat. §§ 10-145b, 145i – has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing.[8]

Read more

Federal defendant avoids prison because of collateral consequences

Yesterday U.S. District Judge Frederic Block (E.D.N.Y.) issued an extraordinary opinion explaining his decision to impose a non-prison sentence on a young woman convicted of importing cocaine, based on the severe collateral consequences that she faces.  While other federal courts have factored collateral consequences into the balancing of factors required by 18 U.S.C. § 3553(a), this is the first time a court has justified its action in such detail.  Calling the opinion “groundbreaking,” CCRC board member Jack Chin told the New York Times that it is “by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing: “It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives.”

Here is how the opinion begins:

Chevelle Nesbeth was convicted by a jury of importation of cocaine and possession of cocaine with intent to distribute. Her advisory guidelines sentencing range was 33-41 months. Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon.  I have incorporated those consequences in the balancing of the 18 U.S.C. § 3553(a) factors in imposing a one-year probationary sentence.

I am writing this opinion because from my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers—both prosecutors and defense counsel—as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant. And I believe that judges should consider such consequences in rendering a lawful sentence.

There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.  Many—under both federal and state law—attach automatically upon a defendant’s conviction.

The effects of these collateral consequences can be devastating.  As Professor Michelle Alexander has explained, “[m]yriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy.  These restrictions amount to a form of ‘civi[l] death’ and send the unequivocal message that ‘they’ are no longer part of ‘us.’”

Preparatory to sentencing Ms. Nesbeth, I afforded counsel the opportunity to opine as to whether collateral consequences should indeed be part of the § 3553(a) mix, and requested written submissions. The Government was essentially non-committal.

Not surprisingly, the Office of the Federal Defender—which represented Ms. Nesbeth—gave a positive response. Commendably, both parties’ submissions detailed the collateral consequences she faces.

Because of the significance which I attach to the need of the criminal justice system to embrace collateral consequences as a sentencing issue, I write extensively, addressing in turn: (I) The History of Collateral Consequences; (II) The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences; (III) The Governing Caselaw; (IV) Ms. Nesbeth’s Collateral Consequences and the Balancing of all § 3553(a) Factors; (V) The Shaping of the Sentence; and (VI) The Responsibilities of Counsel and the Probation Department.

Read more

Study shows certificates work to create job opportunities

A new empirical study provides important evidence that “certificates of recovery/relief” can be effective in facilitating employment opportunities for people with a criminal record.  Two University of South Carolina criminologists have concluded that employers in Ohio are willing to look beyond the criminal histories of job applicants who have been issued a Certificate of Qualification for Employment (CQE) from a state court. The study, which involved sending fictitious resumes to over 300 employers in the Columbus area, found that individuals with a felony drug conviction were more than three times as likely to receive a job interview or offer if they had received a CQE.

Although the study’s findings are described as preliminary, they fill an important gap in our knowledge of the effectiveness of Ohio’s CQE, and by inference of similar certificate schemes in other jurisdictions.  Such schemes have to date been justified on the basis of assumptions and anecdotal evidence, with little hard data to vouch for their potency.  The abstract follows:

Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis. The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer.

 

Read more

Expungement expansion round-up (2016 edition)

More and more states are enacting new expungement and sealing laws, or expanding existing ones, some covering convictions for the first time.  The first four months of 2016 alone saw courts given significant new authority to limit access to criminal records in four states, and bills have been introduced in several others that promise more new laws in months to come.

In April, Kentucky authorized expungement of felonies for the first time, while New Jersey reduced waiting periods for some offenses and made expungement automatic for some others.  Also in April, Maryland’s Governor Hogan signed that state’s Justice Reinvestment Act, permitting expungement of misdemeanor convictions for the first time.  Beginning in November, Pennsylvania courts will have new authority to seal misdemeanor offenses, and follow-up bills have been introduced in both houses to make sealing automatic for most non-felony records after a waiting period.  There are also several pending proposals to significantly expand existing expungement laws in Oklahoma, Missouri, and Rhode Island.

We take a closer look at each of these new expungement authorities below.

The new laws evidence the growing momentum behind second-chance reforms.  They also show how expansion of expungement and sealing mechanisms can be an incremental process.  For example, the legislatures in Maryland and Pennsylvania first tested the waters by giving courts new authority to mitigate low-level conviction records in relatively limited ways, with both following up shortly after with proposals to increase both the availability and effectiveness of those mechanisms.  Meanwhile, states with fairly robust expungement mechanisms already in place, like New Jersey, Missouri, and Kentucky, have taken steps to make relief available sooner and to more people.  Relatedly, in the first four months of 2016, six more states enacted or expanded state-wide ban-the-box laws limiting inquiry about criminal records at early stages of the hiring process, bringing the total to 23.

Read more

Access to healthcare a lifesaver for halfway house residents

logo_dhhs_lrgOn April 29th the U.S. Department of Health and Human Services announced a shift in policy that will for the first time allow released prisoners residing in “halfway houses” to take advantage of the services made available through the Affordable Care Act’s Medicaid Expansion.  The change will provide much-needed medical and rehabilitative services to countless former inmates that would not otherwise have access to essential healthcare resources.  It may seem like a minor change but as a practical matter it is likely to do more to encourage successful reentry than any other single policy decision in recent years.

Until now, halfway house residents have been excluded from coverage because of an interpretation of the Medicaid statute that considered halfway house residents to be “inmates of public institutions” – a category of persons that are statutorily ineligible for Medicaid coverage.  The new DHHS guidance removes those in halfway houses from that category so long as they have “freedom of movement and association while residing in the facility.”  It also clarifies that individuals on parole and probation are not “inmates” and are eligible for coverage.

Read more

Collateral consequences inventory may move to NRRC

nicccThe National Inventory of Collateral Consequences (NICCC), a comprehensive interactive catalog of collateral consequences and relief mechanisms, will soon become a part of the federally funded National Reentry Resource Center (NRRC).  The NICCC, described by the Justice Department as an integral part of its Smart on Crime initiative, was developed by the American Bar Association between 2011 and 2014 under a grant from the National Institute of Justice (NIJ).  The NRRC, also closely tied to the Administration’s reentry strategy, was established in 2011 by the Council of State Governments and has been supported by grants from a number of federal agencies, including NIJ, and by private foundations.  Now the government has decided to consolidate the two projects under the Bureau of Justice Assistance (BJA).

According to a grant solicitation issued by the BJA earlier this month, bidders for a $5 million grant to administer the NRRC grant must “propose a plan to transfer” the NICCC and keep it up to date at an approximate annual cost of $100,000.  The solicitation does not make clear what if any conditions apply to the transfer of the NICCC, or what if any continuing role the ABA would have for its maintenance, and we must assume the government has determined that it should be permanently transferred to whatever organization wins the bid for the NRRC.  Bids are due by June 2. Read more

Challenge to SORNA retroactivity reaches Pennsylvania Supreme Court

In the last few years, Pennsylvania’s courts have taken an active role in defining the propriety and scope of the state’s sex offender registration program.  Following on the heels of a December 2014 decision striking down sex offender registration for juveniles, the Pennsylvania Supreme Court recently agreed to hear a sweeping challenge to the retroactive application of Pennsylvania’s adult sex offender registry. The new law, generally referred to as SORNA (Sex Offender Registration and Notification Act), took effect on December 20, 2012 as part of an effort to comply with the federal laws governing sex offenders.  SORNA replaced a more lenient registration scheme where the majority of people convicted of sexual crimes had to register for only ten years.  SORNA changed the paradigm and drastically increased the number of people included on the registry, the time periods for which they would have to register, and the number of things they have to report.  Of the close to 19,500 people on the registry today, roughly three quarters have to register for the rest of their lives without any chance of removal.

In addition to making most offenders lifetime registrants, SORNA reclassified thousands of people who were ten year registrants under the old law and retroactively increased their terms of registration – in most instances to life.  Hundreds of registrants sued, raising a number of different challenges to the law.  Until now, the Pennsylvania Supreme Court has refused to get involved.

Read more

Feds nudge colleges to go “beyond the box”

1024px-US-DeptOfEducation-Seal.svgThe Department of Education (DOE) is asking colleges and universities to reconsider the use of criminal record inquiries on admissions applications in a new report released on Monday. The report, Beyond the Box: Increasing Access to Higher Education for Justice-Involved Individuals, looks at how broad inquiries into applicants’ criminal histories may deter people with criminal records from applying for post-secondary educational opportunities.  It also suggests steps schools can take to ensure that their admission processes promote second chances for qualified applicants with criminal records, including banning the box on initial applications.

According to the report, “A survey of postsecondary institutions found that 66 percent of them collect CJI [criminal justice information] for all prospective students, and another 5 percent request CJI only for some students.”   The Common Application, a uniform application used by nearly 700 schools, has since 2006 asked whether a person has been convicted of a misdemeanor or felony, “or other crime.”   Some schools that use the Common Application allow applicants to opt out of disclosure, or delay criminal history inquiries until a preliminary admissions decision has been made.  Other schools use their own non-standard applications which may require disclosure of convictions, arrests, or mere allegations of misconduct.

Read more

NYT says NO to “the other f-word,” and YES to Gov. McAuliffe

The New York Times has two great Sunday editorials on issues relating to collateral consequences.  One deals with the issue of labeling people with a criminal record, of special concern when headline writers seem unable to resist using what Bill Keller at the Marshall Project recently called “the other F-word.”  The editorial points out that ugly demeaning labels like “convict” and “felon” are “an unfair life sentence.”  Let us hope the message reaches newsrooms across the country, and that journalists (especially headline writers) will find another way of describing people with a criminal record.

The Times also has another very fine editorial on Virginia Governor McAuliffe’s restoration of the vote to more than 200,000 individuals, pointing out that his authority under the Virginia Constitution is indisputable.

A very good day for the editorial staff of the Gray Lady, whose editorial page is setting an example of enlightened thinking about criminal law issues – notably including the collateral consequences of conviction.

“Vermont sheriff risks his career by hiring a sex offender”

Vermonter Rich Cassidy, who chairs the CCRC Board, drew our attention to this extraordinary story of courage and compassion and plain good sense in the Green Mountain State.  Published last week in the Vermont weekly Seven Days, it tells the story of LaMoille County Sheriff Roger Marcoux Jr.’s decision to take a chance on Timothy Szad, described as “a gifted carpenter and diligent worker” who is also “Lamoille County’s most notorious criminal.”

Here are a few introductory paragraphs to a story well worth reading in full.

In 2000, Szad stalked and sexually assaulted a 13-year-old boy in the southern Vermont woods. He went to jail for his crime and served the maximum sentence. But his punishment didn’t end when he got out, in 2013. His release was widely publicized, which generated something of a vigilante reaction. So he embarked on a cross-country journey in search of a new home. When no place would have him, he wound up back in Vermont — this time, in sleepy Hyde Park.

Read more

1 … 35 36 37 38 39 … 58