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.

 

PA’s new pardon chief was just pardoned himself

Freed from prison nine years ago, Brandon Flood is new secretary of Pa.’s pardon board

Philadelphia Inquirer, April 7, 2019

by Will Bunch

This column will probably come as something of a shock to all the people in Harrisburg who only know Brandon Flood – a bow-tied, bespectacled policy wonk with sartorial flair – as the persona that he laughingly calls “Urkel Brandon,” in a homage to one of TV’s most famous nerds.

Flood, now 36, readily admits most folks who know him from nearly a decade as a legislative aide or lobbyist will be shocked to learn of his past that includes boot camp for juvenile offenders, a physical scuffle with Harrisburg’s then-police chief, and finally felony convictions and two lengthy prison stints for dealing crack cocaine and carrying an unlicensed gun.

But starting last week, Flood’s turnaround saga has become a talking point and a mission statement for his new job as secretary of the five-member Pennsylvania Board of Pardons – anchoring one leg of a broader push in Harrisburg for criminal justice reform, aimed at giving more convicted felons a chance for clemency or to wipe their slate clean with a pardon.

What makes Flood’s appointment even more remarkable is that – to steal a phrase from TV infomercial lore – he’s not just Pennsylvania’s new top pardons administrator, he’s also a client. Gov. Wolf signed off on Flood’s own board-approved pardon, erasing his past convictions, just a few weeks before Flood stepped in as secretary.

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Updated report on 2018 fair chance and expungement reforms

On January 10, 2019, we released a report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  Since that time, we discovered five additional laws enacted in 2018 (in AL, PA, OR, MO, and the U.S. Virgin Islands), and have updated our report accordingly.

In 2018, 32 states, the District of Columbia, and the U.S. Virgin Islands enacted at least 61 new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime. The CCRC report analyzes last year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.

Last year saw the most productive legislative year since a wave of “fair chance” reforms began in 2013.  CCRC documented these earlier developments in reports on the 2013-2016 reforms and 2017 reforms.  In the period 2012–2018, every state legislature has in some way addressed the problem of reintegration.  Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.

The state laws enacted in 2018 aim to break down legal and other barriers to success in the courts, the workplace, the pardon process, and at the ballot box:

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