Should potentially severe collateral consequences trigger enhanced procedural protections?

In two recent law review articles, Professor Paul T. Crane of the University of Richmond School of Law proposes that courts and legislators—when deciding whether a criminal defendant is entitled to a particular procedural right—should take into account potential exposure to severe collateral consequences.  The two articles together mark a major contribution to the literature.  Much attention has focused on alleviating or eliminating collateral consequences after the criminal case is closed, via restoration of rights, clemency, expungement, and other forms of relief.  Also, lawmakers, courts, and prosecutors have increasingly turned to diversions and deferred adjudications to avoid a conviction record in the first instance.  However, far less attention has been paid to the procedural rights provided to criminal defendants facing potentially severe collateral consequences.  As Crane points out, collateral consequences are “generally deemed irrelevant for determining what procedural safeguards must be afforded.” In Crane’s first article, he argues that courts and legislatures ought to take into account a defendant’s exposure to potentially severe collateral consequences in determining whether procedural safeguards, such as the right to counsel and to a jury trial, apply.  In his second article, he proposes a framework for determining when defendants may be entitled to enhanced procedural protections.

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Iowa high court holds indigent attorney fees bar expungement

On May 10, the Iowa Supreme Court rejected an equal protection challenge to a requirement in Iowa law that applicants for expungement (sealing) of non-conviction records must first repay what they owe in court-appointed counsel fees.  This surprising decision strikes us as unfair on several levels, and out of step with what most other states provide where limiting public access to non-conviction records is concerned.  Rob Poggenklass of Iowa Legal Aid, which brought the case, describes the decision below. Update: A petition for certiorari is expected to be filed in the U.S. Supreme Court later this summer.  CCRC has agreed to file an amicus brief, which we expect will be joined by other organizations on “both sides of the aisle.”    Iowa Supreme Court finds collection of court-appointed attorney fees a rational precondition for expungement By Rob Poggenklass In State v. Doe, the state’s highest court held in a 4–3 decision that the legislature could condition eligibility for expungement on payment of fees owed to court-appointed counsel, just as it requires payment of other court debt.  In 2015, the General Assembly enacted chapter 901C, which entitles people to expungement of criminal cases that were dismissed or in which the person […]

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NY judge rules police need court order to access sealed arrests

Last Tuesday, a New York court found that the New York Police Department’s routine use and disclosure of sealed arrest information violates the state’s sealing statute.  The case, R.C. v. City of New York, concerns plaintiffs whose information the NYPD used or disclosed after their arrests terminated favorably in dismissals or acquittals, after prosecutors declined to prosecute, or after cases resulted in non-criminal violations.  In New York City, over 400,000 arrests—nearly half of all arrests—were sealed between 2014 and 2016.  The lawsuit, brought by The Bronx Defenders, seeks to enforce the sealing statute’s protection of those records. New York’s sealing statute—codified at Criminal Procedure Law §§ 160.50 and 160.55—requires that courts, prosecutors, and law enforcement agencies “seal” records when a case is terminated in a person’s favor or results in a non-criminal violation.  A “sealed” record “shall . . . not [be] made available to any person or public or private agency.”  The sealing requirement applies to “all official records and papers . . . relating to the arrest or prosecution . . . on file with the division of criminal justice services, any court, police agency, or prosecutor’s office.”  In addition, the statute requires that photographs and fingerprints be […]

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Abusing the pardon power is no joke

In the past we have commented in this space on constructive uses of the presidential pardon power, to reduce prison sentences and restore rights.  Today we reprint an op ed from Slate.com describing a recent episode allegedly involving its abuse, by Yale Law School Professor Eugene Fidell and CCRC Executive Director Margaret Love.  In addition, several bills have recently been introduced in Congress that would enact a statutory substitute for pardon where restoration of rights is concerned.  We will be following these bills closely, and commenting on them here from time to time. Trump’s DHS Pardon Promise Is As Serious As Anything in the Mueller Report By EUGENE R. FIDELL and MARGARET COLGATE LOVE APRIL 24, 2019 6:00 PM The week since the release of special counsel Robert Mueller’s report has felt like a whirlwind, with Congress considering how next to approach the unresolved questions raised about the conduct of Donald Trump and his administration, and the nation bracing for a potentially historic subpoena fight. At the same time, news around the Mueller report has overtaken news of another possible abuse of power by this president—allegations that Trump promised to pardon an official if he broke the law at the president’s request. While the […]

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Marijuana reformers schedule National Expungement Week

Adam Vine of Cage-Free Cannabis & Cage-Free Repair has asked us to let visitors to our site know about a series of events this fall promoting expungement and other forms of relief from collateral consequences.  They are available to assist in plannig local events during National Expungement Week, including but not limited to events aimed at marijuana convictions: The 2nd Annual National Expungement Week (N.E.W.) will be held from September 21-28, 2019. Advocates and organizers, primarily from the cannabis equity and justice movement, will once again host events across the U.S. that provide free legal services to people with eligible convictions. Last year, N.E.W. featured 18 events in 15 cities across the U.S., and the event helped 298 people begin the process clearing their records, while 450 people received services of some kind. One of the defining features of N.E.W. is the attempt to provide as many wraparound services as possible, which can include voter registration, employment advice, housing assistance, and other services that help people re-engage with their communities. N.E.W. is not focused exclusively on cannabis convictions in states that have legalized; some of our most successful events were held in states that criminalize marijuana possession. N.E.W. events welcome people with any convictions in any state that are eligible […]

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