Outgoing Kentucky governor issues order restoring voting rights

Kentucky

UPDATE: Governor Matt Bevin rescinded Governor Beshear’s order on December 22, 2015, saying:

While I have been a vocal supporter of the restoration of rights, it is an issue that must be addressed through the legislature and by the will of the people.

Governor Bevins went on to sign a major felony expungement bill in April of 2016 that gives many with felony convictions the chance to restore their voting rights.

 

 

The outgoing Democratic governor of Kentucky has signed an executive order restoring the right to vote and hold public office to thousands of people convicted of non-violent felonies who have completed their sentences.  The order from Gov. Steve Beshear — who leaves office next month — estimates that about 180,000 people in Kentucky have served their sentences yet remain disenfranchised.  As a result of the order, 140,000 of those will become immediately eligible to register.

Before today, all convicted individuals were required to apply to regain their right to vote to the governor’s office, which approved restoration of voting rights on a case-by-case basis.  The order does not restore rights to those convicted of specified violent crimes, sex offenses, bribery or treason, who will still have to apply for discretionary restoration.

“All of our society will be better off if we actively work to help rehabilitate those who have made a mistake,” Beshear said. “And the more we do that, the more the entire society will benefit.”

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Interstate restoration of rights

Can people restored to full legal status in one state expect their status to be recognized if they move to another state, just as marriage is generally given interstate recognition?  Can a person convicted in one state qualify for restoration of rights in another? What about a federal offender seeking relief under state law, or a state offender seeking relief from federal collateral consequences?  Is there a role for Congress to play in ensuring fair treatment of people with a criminal record as they move around the country?  These questions are increasingly important both as a practical and theoretical matter, as collateral consequences multiply and begin to limit Americans’ right to travel.

So it is timely that Wayne Logan, a Florida State University law professor widely known for his work on sex offender registration and other collateral consequences, has published a fascinating new treatment of the issue titled ‘When Mercy Seasons Justice’: Interstate Recognition of Ex-Offender Rights.  The article, which appears in the UC Davis Law Review, examines the impact of federalism on the ability to obtain true relief from the collateral consequences of conviction in a mobile society.  It is an issue that is widely overlooked, and the article reminds us that a comprehensive discussion about the impact of collateral consequences must take into account their inter-jurisdictional effects. The true impact of collateral consequences and relief mechanisms must be measured by the interplay of laws between jurisdictions as well as by the interplay of laws within them. Read more

President issues order announcing reentry initiatives

On November 2, the President issued an executive order announcing a series of steps to encourage reentry and rehabilitation of individuals who have recently been released from prison.  Among other things, the order establishes a National Clean Slate Clearinghouse, and authorizes technical assistance to legal aid programs and public defender offices “to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.”

According to an article in the New York Times, the measures

are all relatively modest in scale, important to the president less for their individual effect than for the direction they keep the country moving. Collectively, they reflect a belief that former inmates should have greater leeway to apply for jobs and housing without disclosing criminal records that would hinder their chances.

The order also calls on Congress to establish a ban-the-box program for federal employers and contractors.  In the interim, it asks the Office of Personnel Management to “take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process.”  Presumably this means at a minimum that OPM should eliminate the criminal history question on its “Declaration for Federal Employment” form.  However, the order stops well short of recommending the more progressive steps proposed in a National Employment law Project report issued last January, including the revision of the federal “suitability” regulations to comply fully with the protections of Title VII of the Civil Rights Act of 1964.

We will shortly take a closer look at this new federal initiative to blunt the impact of collateral consequences.  For now, we post the text of the entire order.  Read more

Obama again signals “expect few pardons from me”

Yesterday President Obama participated in a panel discussion of criminal justice issues moderated by Bill Keller of The Marshall Project and streamed to the public.  While the subject of clemency did not come up during the videotaped panel discussion, in a prior interview with Keller the President said that he intended to “speed up the process” of considering prisoner petitions seeking commutation of sentence.  At the same time, he again signaled that he was not similarly interested in cases involving dated convictions where a petitioner is seeking pardon to relieve collateral consequences:

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Updated North Carolina relief guide now available

ncsealcolorAt long last I have released the 2015 edition of my online guide to relief from a criminal conviction in North Carolina. This free guide, available here from the UNC School of Government, covers the various forms of relief available under North Carolina law, including expunctions, certificates of relief, petitions to restore firearm rights and terminate sex offender registration obligations, and other procedures. It includes changes made by the North Carolina General Assembly through the end of its 2015 legislative session.

This edition of the guide is longer, reflecting the greater attention given by the North Carolina General Assembly to this area of law in recent years. North Carolina law now authorizes certificates of relief, patterned after the Uniform Collateral Consequences of Conviction Act. North Carolina also has expanded the opportunities to obtain an expunction.

Expunctions are now available for older nonviolent felony convictions. Recent statutory changes prohibit public and private employers and educational institutions from inquiring about expunged charges and convictions and, further, require government agencies to advise applicants that they have the right not to disclose expunged information. People still must meet precise statutory criteria to be eligible for relief, however. Although North Carolina courts granted approximately 13,000 expunctions of dismissals in fiscal year 2013–14, they granted about 700 expunctions of convictions and other matters. See 2014 Expunctions Report [NCAOC and DOJ Joint Report Pursuant to G.S. § 15A-160] (Sept. 1, 2014) (providing data on expunctions from 2008 to 2014).

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Another federal expungement case from Brooklyn – is this the beginning of a trend?

On October 8, a former chief judge of the Eastern District of New York held that he was “constrained by controlling precedent” to deny the expungement petition of a woman who feared that her 23-year-old fraud conviction would prevent her from obtaining a nurse’s license.  See Stephenson v. United States, No. 10-MC-712.  Judge Raymond Dearie declined to find the “extreme circumstances” warranting expungement under Second Circuit precedent, noting that the petitioner before him was fully employed and that her aspiration to become a nurse was realistic, in light of the protection afforded her by New York’s nondiscrimination laws.  He proposed that his own willingness to certify her rehabilitation could help satisfy the “good moral character” standard for a nursing license. (Could this be the sort of “certificate of rehabilitation” contemplated by Judge John Gleeson in his second Jane Doe expungement case?  If so, it would seem to require no specific statutory authority for him to issue it to an individual he sentenced, no matter how long ago.)

Judge Dearie contrasted the case before him with the one in which Judge Gleeson ordered expungement in May, where the petitioner’s criminal record was having “a dramatic adverse impact on her ability to work,” citing Jane Doe I at *5.   The government has appealed Judge Gleeson’s expungement order.

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“Old Writ Could Give Ex-Offenders a New Start”

Joe Palazzolo has posted at the Wall Street Journal Blog an article describing an amicus brief filed yesterday in United States v. Jane Doe (Jane Doe II), one of two federal expungement cases before Judge John Gleeson that we’ve been following.  Argument in Jane Doe II is now scheduled for October 26.  (The government has appealed Judge Gleeson’s May 21 expungement order in Jane Doe I to the Second Circuit Court of Appeals.)  The brief begins like this:

This Court invited the views of Amica on the Court’s authority to issue “a certificate of rehabilitation in lieu of expungement” and the appropriateness of issuing such a certificate in this case. While there is no federal statute that authorizes a court to issue relief styled as a “certificate of rehabilitation,” Amica wishes to bring to the Court’s attention two mechanisms, each perhaps underappreciated but with deep historical roots, by which the Court may recognize an individual’s rehabilitation and otherwise address issues such as those raised by petitioner’s case. The first is by exercising its statutory authority to issue a writ of audita querela, which is available in extraordinary circumstances under the All Writs Act, 28 U.S.C. §1651, to grant a measure of relief from the collateral consequences of conviction. The second is by recommending to the President that he grant clemency.

The blog post describing the brief is reprinted in full after the jump.

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After prison, a lifetime of discrimination

The problem of mass incarceration was highlighted by the Pope’s visit last week to a Philadelphia jail, and by an HBO Special that aired earlier this week on the President’s visit last summer to a federal prison.  But the public has not yet had an occasion to focus on the broader and deeper problem of mass conviction that has consigned an entire generation of African American men to second class citizenship, and their communities to continued poverty and alienation.  The mere fact of a criminal record has placed a Mark of Cain on millions of Americans who never spent a day behind bars.

In this morning’s New York Times columnist David Brooks points out that the growth in state prison systems is driven by the sheer number of people prosecuted rather than sentence length, and he faults prosecutors for charging twice as many arrestees as in the past. But if it is true, as Brooks argues, that most people sent to prison nowadays spend about the same amount of time there as they did thirty years ago, the true crisis in our criminal justice system is represented by the lifetime of social marginalization and discrimination that follows them upon their release.

In New York, Governor Cuomo has taken important steps toward dealing with the problem of over-prosecution that looms large behind that of over-incarceration. It is time for elected leaders in other states to take similar steps, and time for President Obama to address the problem of collateral consequences for those with a federal conviction.  For example, in his conversations with federal inmates aired on HBO he spoke admiringly of ban-the-box programs.  It would be fitting if he implemented such a policy in the employment and contracting for which his Administration is responsible.  He might also consider pardoning deserving individuals,or supporting alternative relief mechanisms through the courts.  Hopefully in his final year he will turn his attention in that direction.

New York governor adopts progressive collateral consequences agenda

Governor Cuomo has accepted all 12 recommendations made by his Council on Community Re-entry and Reintegration. The Council was created in July 2014 and tasked with “identifying barriers formerly incarcerated people face and making recommendations for change.”

Governor Cuomo’s 12 executive actions include:  adoption of anti-discrimination guidance for public housing; adoption of uniform guidelines for evaluating candidates for occupational licensing, and a presumption in favor of granting a license to a qualified applicant; revision of 10 licensing and employment regulations that imposed stricter standards than required by statute;  adoption of a “fair hiring” policy for state employment that will delay a background check until well into the hiring process; and streamlining the process for obtaining certificates of relief from disabilities and certificates of good conduct.

Council Chair Rossana Rosado said, “We accomplished our goals this year but our work is far from over. As we look to address many more of the systemic barriers encountered in re-entry, we will not lose sight of New York’s role as a leader in combating the devastating impact and stigma of second class citizenship that so many of our fellow New Yorkers face, especially men of color.”

The Council will continue to build on this successful first year by promoting a range of educational opportunities to improve chances of employment, addressing barriers to health care, seeking to reduce the potential for extortion from public exposure of criminal records and continuing to seek solutions to housing people with criminal convictions consistent with fairness and public safety.

While DOJ appeals his expungement order, Judge Gleeson’s other expungement case goes forward

The Justice Department has decided to pursue its appeal of Judge John Gleeson’s May 21 order expunging the conviction of a woman who could not keep a job because of her criminal record.  Its brief in U.S. v. Doe (Jane Doe I) can be accessed here.

Meanwhile, briefing is underway in Judge Gleeson’s second expungement case (Jane Doe II), in which he has also asked the parties and a “policy expert” to advise him on his authority to issue a “certificate of rehabilitation.”   Judge Gleeson commented to the New York Times on the general problem of collateral consequences:

“As a society we really need to have a serious conversation on this subject of people with convictions’ never being able to work again,” Judge Gleeson wrote in an email. “A strong argument can be made that the answer to this problem should be more systemic, through legislation, not on a case-by-case basis in individual judges’ courtrooms.”

Petitioner’s brief in Jane Doe II is due on October 5, the brief of the “policy expert” is due on October 8, and argument has been scheduled for October 15. The government’s brief is here, and briefs of petitioner and amicus will be posted here when filed.

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