“Virginians with a felony conviction can now vote, but getting a job is no easier”

Lincoln Caplan, formerly of the editorial staff of The New York Times and now on the faculty at Yale Law School, has written a thoughtful piece about collateral consequences for the New Yorker.  It points out why Governor McAuliffe’s order restoring the vote to Virginians with a criminal record doesn’t help them deal with the myriad of legal restrictions that deny them opportunities, or with what he calls “a relentless form of social stigma.”  He concludes that relief measures like expungement, which are based on concealing the fact of conviction, may be less effective for felony-level crimes than more transparent measures like pardon or certificates of rehabilitation.  He concludes that “Forgiving, when someone has earned it, gives an individual a fresh start and, just as important, it helps restore the idea of rehabilitation in American justice.”

A featured piece by a well-regarded journalist in such a sophisticated venue may do a lot to bring the problem of collateral consequences to the attention of people in a position to do something about them.  We reprint portions of the article below. Read more

Will Prez Obama make federal contractors ban the box? [Update: Not now.]

 

Updated April 29:

According to comments late this week from senior White House adviser Valerie Jarrett, the President remains inclined to defer to Congress when it comes to making federal contractors ban the box:

Asked whether there was consideration of whether to take action to require federal contractors to “ban the box,” Jarrett said, “The president has supported federal legislation that would ban the box for federal contractors. He thinks that’s the best approach.”

The legislation in question appears to have stalled, as noted by its sponsor Rep. Elijah Cummings.  (In a tweet, Jarrett pointed advocates to a 2013 directive of the Office of Federal Contract Compliance reminding contractors of their obligation to comply with the EEOC guidance on criminal records.)

On the other hand, on Friday the administration made good on its November promise to require federal agencies to ban the box, when OPM announced a proposed rule requiring federal agencies to postpone inquiry into an applicant’s criminal record until after a conditional offer of employment has been made.

Also, marking the end of National Reentry Week, the President formally established the Federal Interagency Reentry Council, a Cabinet-level working group dedicated to “the rehabilitation and reintegration of individuals returning to their communities from prisons and jails.”  Originally convened by the Attorney General in 2011, the President’s action ensures that the Council will continue past the end of his Administration.

Original post from April 26:

As the White House inaugural National Reentry Week begins, advocacy organizations and Members of Congress are again calling on President Obama to use his executive authority to “ban the box” in federal contractor hiring, just as he announced he would do in federal agency hiring last November.

The call comes on the heels of a number of steps the Obama Administration has taken to improve the employment prospects of those with criminal histories, including the creation of the Fair Chance Business Pledge earlier this month.  Last fall, the President announced a number of additional reentry initiatives, including establishment of a Clean Slate Clearinghouse.  The President’s overall record on second-chance issues has been commendable, but he will have to move quickly to maximize his administration’s impact before the end of his term.

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Bids Sought for National Clean Slate Clearinghouse

Last November President Obama announced plans to create a National Clean Slate Clearinghouse, a joint project between the Departments of Labor and Justice that would “build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.”  In late February the Labor Department announced plans for a large-scale contract to establish the Clearinghouse, and sought information from likely bidders.  Since then, we have been curious about what the scope of the Clearinghouse project would be. Now we know.

This past Monday the Department of Labor issued an official solicitation for bids to develop the Clearinghouse, with the following general overview of the project:

The Clearinghouse will: 1) gather content, launch, host and update a national website that provides, among other things, state-by-state information on sealing, expungement, and other related legal services that lessen the negative impact of having juvenile and criminal records; and 2) develop tools and provide technical assistance to reentry service providers and legal aid organizations on how to use and expand access to sealing, expungement, and other legal services. The Clearinghouse will disseminate information in the area of record sealing and expungement, pardons, certificates of rehabilitation, correcting inaccurate juvenile and criminal records and other strategies to diminish the often lifelong economic and social consequences associated with having a juvenile or criminal record. In addition, the Clearinghouse will provide guidance on the removal of other employment barriers that do not provide a public safety benefit.

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“The Other F-word” – A journalist’s perspective on labeling people with a criminal record

On Monday we published a piece by CCRC Director Margaret Love titled “A plea to stop labeling people who have a criminal record,” which was critical of the media’s usage of “degrading” terms like “felon” and “offender” to describe people with criminal histories. Yesterday Bill Keller, Editor-in-Chief of The Marshall Project, responded to Ms. Love’s critique in a piece that provides an interesting look at the issue through the lens of his own experience as a journalist.  It also includes a response from the style editor of The New York Times on the specific subject of Ms. Love’s criticism.  We republish Mr. Keller’s piece below.

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State licensing laws unfairly restrict opportunities for people with criminal records

States are falling short when it comes to making occupational licensing opportunities available to people with criminal records. This is according to a report released this week by the National Employment Law Project (NELP).  Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Criminal Records examines the licensing laws of 40 states, and grades each state based on a number of criteria designed to assess how effective the law is at creating licensing opportunities for people with criminal records.  The report is a powerful advocacy piece demonstrating the need for nation-wide reform of licensing laws, though it bears noting that its limited scope may distort the bigger picture in some states.

Recent studies and policy discussions focusing on the difficulty people with criminal records have finding employment tend to ignore the fact that nearly 30% of American jobs require state licensure or certification — which is frequently denied based on a conviction.  The National Inventory of Collateral Consequences (NICCC) shows that there are over 25,000 formal occupational and business licensing restrictions imposed nationwide at the state or federal level.  Many of these restrictions apply regardless of a crime’s relationship to a particular license or the time since conviction.  Across the nation, over 10,000 of these restrictions are mandatory and apply automatically, forcing licensing bodies to reject applicants with certain records regardless of their qualifications or evidence of their rehabilitation.

Municipal and county ordinances also regulate employment and business opportunities, including such important entry-level employment as taxi driver and street vendor, though ordinances are not catalogued in the NICCC and so were not included in the NELP report. Read more

A plea to stop labeling people who have a criminal record

On April 22, Virginia Governor Terry McAuliffe issued an executive order restoring civil rights to more than 200,000 individuals once convicted of felonies.  His courageous action is welcome and long overdue, and there are now only three states nationwide that permanently disenfranchise people based on a felony conviction.  The Governor’s press release promises new restoration orders on a regular monthly basis as additional individuals become eligible — the model followed in Iowa between 2005 and 2011, when convicted individuals were restored to the franchise under a similar executive process before it was discontinued by a Republican governor.

The one sour note on an otherwise happy occasion was the pervasive use of the word “felon” in print and media accounts to describe the beneficiaries of Governor McAuliffe’s action.  This ugly stigmatizing label has been broadly criticized as counterproductive to reintegration efforts, perpetuating stereotypes about people with a criminal record and encouraging discrimination against them.  While the Governor himself was careful with his language, not a single major newspaper reporting on his action could resist including the word in its headline. Read more

A wide-ranging look at sex offender registration in PA and beyond

The Cumberland County (Pennsylvania) Sentinel recently published a series of articles by Joshua Vaughn that examine the operation and effect of sex offender registration laws from a variety of perspectives. We summarize the articles with links to the Sentinel’s website.

Finding statistics to fit a narrative

Original article

Vaughn traces the “frightening and high risk of recidivism” for untreated sex offenders that Justice Kennedy used to support the Supreme Court’s holdings in McKune v. Lile (2002) and Smith v. Doe (2003) to an unsourced “anecdotal quip” in a 1986 article from Psychology Today suggesting sex offender recidivism rates as high as 80%.  That figure found its way into a Justice Department practitioner’s guide for treating incarcerated sex offenders, which in turn was cited by the Solicitor General’s amicus brief in McKune. Vaughn, asking how such a questionable statistic could turn out to be a “linchpin fact” in two extremely influential Supreme Court cases, proposes that the Court relied on the Solicitor General, who in turn relied on the practice guide without doing his own research.

Vaughn reports that the Justice Department “now states on its website that the rate at which released sexual offenders are rearrested for new sexual offenses is as low as 3 to 10 percent,” evidently referring to a report of the Bureau of Justice Statistics.

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Federal sentencing and collateral consequences

This practice resource is available in PDF format here.  A follow-up piece, “Federal sentencing and collateral consequences II,” is here.

 

Federal courts are frequently asked to take into account the collateral consequences of conviction in determining what sentence to impose under the criteria in 18 U.S.C. § 3553(a). It is generally permissible for them to do so, and in line with current proposals of national law reform organizations.  At the same time, courts must guard against the risk of socioeconomic bias favoring more privileged defendants who have the most to lose in the civil sphere, and who are likely to enjoy more vigorous and effective advocacy around collateral consequences.

The following discussion first reviews a federal court’s general obligation to understand the collateral consequences that apply in a particular case, and to ensure that a defendant considering a guilty plea has been adequately advised about them.  It then reviews post-Booker case law approving below-guideline sentences based on the severe collateral penalties applicable to a particular defendant, such as loss of employment, extraordinary family circumstances, sex offender registration, and even reputational harm (“the stigma of conviction”).  Finally, it discusses cases in which courts of appeal have refused to approve deep sentencing discounts based on collateral consequences in circumstances suggesting a bias favoring middle-class defendants.

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Federal sentences and collateral consequences

courtsFederal courts are frequently asked to take into account the collateral consequences of conviction in determining what sentence to impose under the criteria in 18 U.S.C. § 3553(a). It is generally permissible for them to do so, and in line with current proposals of national law reform organizations.  At the same time, courts must guard against the risk of socioeconomic bias favoring more privileged defendants who have the most to lose in the civil sphere, and who are likely to enjoy more vigorous and effective advocacy around collateral consequences.

The following discussion first reviews a federal court’s general obligation to understand the collateral consequences that apply in a particular case, and to ensure that a defendant considering a guilty plea has been adequately advised about them.  It then reviews post-Booker case law approving below-guideline sentences based on the severe collateral penalties applicable to a particular defendant, such as loss of employment, extraordinary family circumstances, sex offender registration, and even reputational harm (“the stigma of conviction”).  Finally, it discusses cases in which courts of appeal have refused to approve deep sentencing discounts based on collateral consequences in circumstances suggesting a bias favoring middle-class defendants.     Read more

Kentucky expungement offers fresh start to thousands

 

State Seal ColorOn Wednesday Kentucky Governor Matt Bevin signed a bill giving state courts authority for the first time to expunge felony convictions.  The new law, HB 40, allows people convicted of specified non-violent class D felonies who have been crime-free for 5 years to petition to have their conviction vacated, charges dismissed, and record expunged.  Expunged records are deleted from official databases (including law enforcement), will not show up in background checks, and need not be acknowledged.  The court and other agencies “shall reply to any inquiry that no record exists on the matter.”

Democrats in the Kentucky House had worked for years to pass similar legislation, but were unsuccessful until one man’s moving testimony before the Senate Judiciary Committee galvanized bipartisan support for the bill.  According to the AP,

At least 62,000 convicted felons in Kentucky will have the opportunity to wipe their records clean in part because a 45-year-old man convicted of stealing car radios 27 years ago convinced a powerful Republican lawmaker to change his mind.

West Powell, who has not had a run-in with law enforcement in 27 years, told the Committee:

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