Excessive filing fees frustrate new expungement schemes

How much is a clean slate worth?  That’s the question many people with criminal records are asking in Kentucky, Louisiana, and Tennessee, where the cost of filing for expungement is (or will soon be) between $450 and $550.  To put that into perspective:  In Kentucky, the $500 fee required to expunge an eligible felony conviction under a new law that takes effect in July will equal nearly half of the monthly wages of a full-time worker earning the state’s $7.25 minimum wage.  The relative cost will be even higher for the many people who have difficulty securing steady full-time employment because of their criminal record.  The high filing fee puts relief effectively out of reach for most of those it was intended to benefit,  even if they elect to file without retaining a lawyer.

There is a major disconnect between these exorbitant fees and the policy rationale that has led many states to create or expand expungement opportunities in recent years.  Expungement improves the employment prospects of people with criminal records, allowing them to achieve a degree of economic stability that in turn discourages further criminal behavior.  People held back from economic stability by their criminal records are the people that are likely to benefit most from expungement, and the social advantages of expungement are most keenly experienced among this population.  But these are the very people least likely to be able to afford to pay high application fees.

According to an article by Maura Ewing published by the Marshall Project earlier this week that takes a closer look at the issue, Kentucky, Louisiana, and Tennessee are outliers among states that allow for expungement in charging such high fees:

Many states charge $150 or less to apply for expungement … and some states offer a waiver if the applicant is too poor to pay.

In the 17 states that allow for expungement of low-level felonies, “the application fee is generally in line with standard court fees.”

So why are the application fees in those three states so high, and where does that money go?  Ewing found that while Louisiana’s fees were considered necessary to cover the costs of an inefficient and underfunded justice system, the fees in Kentucky and Tennessee were driven solely by the prospect of generating general revenue.  From the article:

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New Yorker comments on collateral consequences

Lincoln Caplan writes in this week’s New Yorker about Judge Frederic Block’s decision last week to reduce a woman’s prison sentence because of the life-altering collateral penalties she faced on account of her drug conviction.  After describing the facts of the case and the judge’s reasoning, Caplan concludes with the following comments about what Jeremy Travis has called “invisible ingredients in the legislative menu of criminal sanctions”:

The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time. As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.” They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”

The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.

One of the most significant things about Mr. Caplan’s comments is that they make clear he believes collateral consequences are “punishment,” not “regulation,” and should be treated as such.  Courts are beginning to regard them as such as well for purposes of applying constitutional principles.  See, for example, the three cases now pending in the Pennsylvania Supreme Court, where the validity of the state’s new sex offender registration scheme is at stake. States are increasingly looking at lifetime registration as punishment under their own state constitutions.  So it should not be long before the U.S. Supreme Court is asked to reconsider its 2003 holdings that such collateral consequences are immune from constitutional challenge based on the Due Process and Ex Post Facto clauses.

“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]

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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.

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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.

 

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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.

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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.

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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.

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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.

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