“Third-Class Citizenship” for people with a “violent” record

Professor Michael M. O’Hear of Marquette University Law School has an important new article titled “Third-Class Citizenship: The Escalating Legal Consequences of Committing a ‘Violent’ Crime.”  This marks the first effort to systematically study the full legal consequences of a “violent” criminal charge or conviction, including the collateral consequences that uniquely apply to violent crimes.  O’Hear documents the growing network of these consequences, noting that recent criminal justice reforms tend to exclude people with “violent” as well as “sexual” offenses from relief available to other individuals with criminal records.

O’Hear canvasses the wide range and reach of legal definitions of what actually qualifies as a “violent” crime, concluding that many of these definitions “sweep in large numbers of offenses that lie outside core understandings of what constitutes violence.”  After this, the article provides a 50-state overview of the statutory consequences of a violent charge or conviction, and raises concerns about whether these consequences are proportional, provide fair notice, and promote public safety.

The abstract of the article, to be published in a forthcoming issue of Northwestern University Law School’s Journal of Criminal Law and Criminology, follows:

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Symposium on felony disenfranchisement set for Friday in Missouri

On Friday, April 12, a day-long symposium on felony disenfranchisement will be held at the University of Missouri in Columbia, MO.  The event, hosted by the Missouri Law Review and Kinder Institute on Constitutional Democracy, is open to the public.

Three panels of scholars will address: (1) the historical origins of conviction-based disenfranchisement and its consequences for democracy—featuring CCRC board member Gabriel “Jack” Chin, among other panelists; (2) felony disenfranchisement, voting rights, and elections; and (3) the democratic challenges of voting rights restoration.  Pamela S. Karlan will deliver the keynote.

For further reference, see our 50-state comparison chart documenting the loss and restoration of voting rights across the country; Gabriel “Jack” Chin’s recent book review: “New book argues collateral consequences can’t be justified”; and our comment on Professor Beth Colgan’s article on how inability to pay economic sanctions associated with a criminal conviction results in continuing disenfranchisement nationwide.

PA high court will again review sex offender registration

Two years ago, the Pennsylvania Supreme Court shook up long-settled orthodoxy by ruling that the state’s sex offender registration law, otherwise known as SORNA (Sexual Offender Registration and Notification Act) was punishment. The case, Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2018), presented the Court with two questions: whether people who committed their crimes before the adoption of the law could continue to be registered without running afoul of the state Constitution’s Ex Post Facto Clause, a fairness doctrine that prevents governments from retroactively applying greater punishments to conduct than could have been applied at the time of the crime; and, second, whether the law more broadly violates due process by unfairly labeling a person as sexually dangerous without first proving that fact and without giving the person an opportunity to challenge that message. While the Court answered the first question with a resounding yes, it punted on the second.

The effect of that decision meant that although Pennsylvania was forced to reduce the length of registration for many people who had committed their crimes many years before, or in many cases remove them from the registry altogether, it did little to change how the law would be applied moving forward.  SORNA was largely left undisturbed for the roughly 1500 new people added to the registry every year.  The due process issue left undecided by the Pennsylvania high court in Muniz is now again before that court, and this time it will be harder to avoid deciding it.

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Bumper crop of new expungement laws expected in 2019

Earlier this year we reported that, in 2018, legislatures enacted an unprecedented number of new laws aimed at restoring rights and opportunities for people with a criminal record.  (Last year 32 states, D.C., and the U.S. Virgin Islands enacted 61 new laws to facilitate reentry and reintegration.)  The first quarter of 2019 has already produced a baker’s dozen of new restoration laws, some quite significant, indicating that this year is likely to be every bit as productive as last.  The 13 new laws enhance access to record-clearing relief, occupational licensing and employment, and executive clemency.  Also notable, if only for the sheer number of people who will benefit when the law goes into effect on July 1, is the Virginia legislature’s accession to Governor Ralph Northam’s request that it “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” which will immediately reinstate driving privileges to more than 627,000 Virginians.

This year to date, state lawmakers have focused most of their attention on improving access to record-clearing: 8 of the 13 new laws expand eligibility for expungement and sealing and streamline applicable procedures.  The two most significant new laws were enacted in Western states.  Utah’s HB 431—signed by Governor Gary Herbert on March 28, 2019—provides for automated sealing relief for certain non-conviction, infraction, and misdemeanor conviction records.  When it takes effect on May 1, 2020, it will be the nation’s second “clean slate” law in operation (Pennsylvania’s first-in-the-Nation 2018 clean slate law will be implemented over a 12-month period beginning in June 2019).  Utah also clarified that employers may not ask about—and an applicant for employment need not disclose—expunged convictions (except under narrow exceptions for public employment).

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New book argues collateral consequences can’t be justified

University of Nottingham philosophy professor Zachary Hoskins has written an important new book about “collateral legal consequences” (CLCs), just published by Oxford University Press.  Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction engages cases and statutes from the United States and other countries, but it is primarily a philosophical interrogation of the legitimacy of CLCs, not an analysis of legal doctrine or constitutional limitations.

A core principle is the powerful one that harsh treatment and disadvantage requires justification, particularly when hardships are imposed on specific groups.  Beyond Punishment argues that CLCs could be justified as criminal punishment to some degree, but that legitimate punishment is that which is necessary and sufficient to pay one’s debt to society. The way CLCs actually operate in the United States often does not fit into this category.  First, CLCs are not characterized as punishment (and therefore are exempt from the constitutional limitations on criminal punishment) but as civil, regulatory measures.  Second, they are often imposed years after completion of the criminal sentence.

A non-punitive rationale might be that by breaching the social contract, people with convictions are not entitled to the benefits of that contract.  But this proves too much–because someone jaywalked in 1989 does not mean they can legitimately be robbed or defrauded today.  If breaching the social contract justifies only a proportional as opposed to an unlimited response, most CLCs go too far. Beyond Punishment also criticizes public safety as a justification for CLCs, for essentially the same reason: The more or less random and arbitrary imposition of collateral consequences is unduly harsh on some, while others who should be restrained for the same reason but have no criminal conviction are not subject to CLCs.

Beyond Punishment’s careful analysis and precise definitions make a strong case that CLCs are, as Justice Kennedy said about imprisonment itself, disabling “too many persons for too long.”  But the tradition of American constitutional jurisprudence, anyway, has not been to require rigorous fairness or precise justification for hard treatment.  Even with regard to incarceration, the Eighth Amendment’s prohibition on cruel and unusual punishment has not been much of a limitation on brutal sentences for minor crimes.  This is, to some extent, good news as well as bad.  While courts have proved, thus far, of only limited help in reining in collateral consequences and other criminal sanctions, legislatures are as unconstrained in repealing or mitigating them as they were in imposing them in the first place.  Legislators and voters, as well as students and lawyers, will be hard-pressed to justify our current system of CLCs after reading this book.