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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Scarlet Letter law can move forward — for now

A federal judge in the Northern District of California has declined to block enforcement of the so-called “Scarlet Letter” provision of the recently-enacted International Megan’s Law (IML). U.S. District Judge Phyllis Hamilton ruled on April 12 that a challenge to the requirement that sex offenders’ passports be marked with a unique identifier was not ripe for injunctive relief, “because significant steps must be taken before the passport identifier can be implemented,” and because “it is unclear how the provision will be implemented.” The court also held that the plaintiffs did not have standing to challenge a separate IML provision requiring notification of a registered sex offender’s intended foreign travel.

Respecting the IML passport identifier provision, the court pointed out that

the statutory language makes clear that no such requirement is yet in effect, and that it will not take effect until after the Secretaries of Homeland Security and State and the Attorney General have developed a process for implementation, submitted a joint report to Congress regarding this proposed process, and, finally, certified that the process has been successfully implemented. See IML §§ 8(f), 9(a)-(b).

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Second chance for some youthful sex offenders

On April 6, Arizona became the latest state to offer early relief from sex offender registration obligations to young people convicted of consensual sex offenses and sentenced to probation.  The law, HB 2539, allows individuals convicted before reaching age 22 of sexual conduct with a minor between the ages of 15 and 17 (so-called “Romeo and Juliet” offenders), to petition the court for relief from registration after completing probation.  If a petitioner meets all applicable criteria, the court must grant the petition unless it finds that a “denial is in the best interests of justice or tends to ensure the safety of the public.”  Similar laws authorizing early termination from registration for those convicted of youthful consensual offenses are in effect in ten other states, including Florida, Oregon, and Michigan.

Laws requiring young people to register have come under increased scrutiny thanks to recent media coverage of their harsh effects and flimsy justifications — notably an article by Sarah Stillman published last month in the New Yorker (“The List”).   Much of the attention to registry of juveniles has been driven by mobilization around the issue by advocacy groups like Reform Sex Offender Laws (RSOL) and the Center on Youth Registration Reform (CYRR).  In 2013, Human Rights Watch issued a ground-breaking report on the issue, Raised on the Registry.

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Japan restricts entry to many convicted people

Japan has perhaps the strictest conviction-related bars to entry of any country, extending broadly to many felonies (and even some misdemeanors) and without regard to length of stay or purpose.  Even when entry to other countries has been granted with an administrative waiver, as to Canada, U.S. executives of Japanese-based companies have found their landing rights denied when attempting to attend meetings at their Japanese headquarters. Protests to the Japanese Consulate in the United States have been unsuccessful.

Specifically, the Japanese Ministry of Justice has interpreted the restrictions imposed by Japan’s Immigration Control and Refugee Recognition Act to bar entry to anyone sentenced to more than a year in prison, and anyone convicted of a drug offense, felony or misdemeanor, no matter how dated or minor.

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Federal expungement case argued in court of appeals

On April 7 a panel of the Court of Appeals for the Second Circuit heard argument in United States v. Jane Doe (Jane Doe I).  At issue in that case is whether U.S. District Judge John Gleeson acted within his authority when he expunged the conviction of a woman he had sentenced some 14 years earlier, based on his finding that her conviction had proved an insurmountable bar to the jobs in home health care for which she was qualified.  Judge Gleeson directed that the government seal the records of Ms.Doe’s conviction, stating that he had sentenced her “to five years of probation supervision, not to a lifetime of unemployment.”  The government appealed, arguing that a federal court has no authority to expunge or seal a conviction record, particularly the record of a valid conviction. Briefs in the case can be viewed here.

The panel did not appear persuaded by the government’s argument that the Supreme Court’s 1994 decision in Kokkonen v. Guardian Life, 511 U.S. 375 (1994)(refusing ancillary jurisdiction to enforce state law civil claims), meant that federal courts have no jurisdiction to expunge the record of a federal criminal case.  The import of the government’s argument would be to overrule the Circuit’s leading expungement case from the 1970s, United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977), which held that federal courts have ancillary jurisdiction to grant expungement on equitable grounds in extraordinary circumstances.  No judge on the panel expressed any support for overruling Schnitzer, and the government seemed reluctant to ask for it.  At the same time, Schnitzer involved expungement of an arrest that the government did not pursue, not a valid conviction.   That distinction seemed to have some appeal for one judge on the panel, who suggested that the holding in Schnitzer might not apply where conviction as opposed to arrest is at issue.

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HUD limits housing exclusion based on criminal history

hudseal_teal_1On Monday the Department of Housing and Urban Development (HUD) announced that housing policies that exclude people with criminal histories may be illegal under the federal Fair Housing Act (FHA) if the policy fails to consider the nature, severity, and recency of the criminal conduct and is not narrowly tailored to protect residents and property. The new HUD guidance, which applies to private landlords and realtors as well as to public housing authorities (PHAs), stresses that exclusions based solely on arrest records violate the FHA, which prohibits housing discrimination based on race, color, national origin, and other protected classes.[1]

The new guidance should end landlord reliance on electronic background checks to automatically exclude potential renters or purchasers, and greatly expand housing opportunities available to people with criminal histories, whether or not they are members of classes specifically protected by the FHA.  As the New York Times reported on Monday:

Lawyers who represent former prisoners said they expected HUD’s stance to lead landlords to revise their screening policies to avoid litigation. The guidance … could also lead to more and stronger lawsuits against those who continue to deny housing based on criminal history.

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“Get to Work or Go to Jail”

A new report from the UCLA Labor Center with the snappy title of  “Get To Work or Go To Jail” describes how the criminal justice system may compromise employment opportunities in more ways than one, placing workers on community supervision or in debt at the mercy of employers.  Noah Zatz of the UCLA Law faculty, one of the report’s co-authors, summarizes the report’s conclusions as follows:

When many people consider work and the criminal justice system, they commonly focus on how difficult it is for people coming out of jail to find work. “Get to Work or Go To Jail: Workplace Rights Under Threat” goes further by exploring how the criminal justice system can also lock workers into bad jobs. Workers on probation or parole, facing criminal justice debt, or owing child support face a disturbing threat: get to work or go to jail. Because these workers face incarceration for being unemployed, the report finds that they cannot afford to refuse a job, quit a job, or to challenge their employers- and they can even be forced to work for free. This report identifies how the criminal justice system endows employers with this power.

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Challenge to “Scarlet Letter” travel law moves forward

Last week a federal judge heard the first arguments in a lawsuit challenging certain provisions of the recently-enacted International Megan’s Law (IML),* including one mandating that the passport of any American required to register for a sex offense involving a minor be marked in “a conspicuous location” with a “unique identifier” of their sex offender status.  Other challenged provisions of the law authorize the Departments of Homeland Security and Justice to notify destination nations of forthcoming visits from those individuals. On Wednesday the court heard a motion for a preliminary injunction that would block enforcement of the challenged provisions of the law pending the suit’s final outcome. See Doe v. Kerry, Case 3:16-cv-00654 (N.D. Ca.).

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Traveling to Mexico with a criminal record

MexicoMap550Searching for information on whether people with a criminal record may encounter problems traveling to Mexico, we found nothing relevant on the website of the Mexican Embassy in the U.S..  The State Department website contains only a very general warning:

Prior Criminal Convictions: U.S. citizens should be aware that Mexican law permits immigration authorities to deny foreigners entry into Mexico if they have been charged or convicted of a serious crime in Mexico or elsewhere.

However, the website of the Mexican Embassy in Canada explains Mexico’s policy in somewhat greater detail, listing the crimes that are likely to result in a refusal of entry:

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