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.

 

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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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“High Time for Marijuana Expungement”

Any state that legalizes or decriminalizes marijuana should automatically include an expungement provision that clears the criminal record of individuals who engaged in activities deemed lawful under the new legalization or decriminalization laws.  This is the thesis of my new article, “High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Laws.”  At the federal level, Senator Cory Booker’s recently reintroduced Senate Bill 597, the “Marijuana Justice Act of 2019,” would do just that: remove marijuana from the Schedule of Controlled Substances and expunge records of marijuana possession and use convictions.  At the same time, some local governments are focusing on more efficient and expeditious expungement processes.  Earlier this year, the San Francisco District Attorney partnered with Code for America to identify and process eligible marijuana cases, including past convictions dating back to 1975.  The Denver District Attorney launched “Turn Over a New Leaf Program,” which helps individuals who committed now-repealed marijuana-related offenses vacate the records of their convictions.  While Colorado has a marijuana sealing statute (Col. Rev. Stat. § 24-72-710 allows sealing of misdemeanor marijuana possession or use offenses if an individual files a petition, pays a filing fee plus $65, and proves that the offense is no longer considered a crime), the New Leaf Program has attorneys from the Denver City Attorney’s Office guide individuals through the process and ask courts to vacate, dismiss, and seal convictions for marijuana offenses that are no longer illegal.

However—as I document in my article—of the ten states that have legalized, only four states have enacted marijuana-expungement legislation; of the thirteen states that have decriminalized marijuana, only three have enacted marijuana-expungement legislation.  My article includes charts compiling the status of expungement statutes in states that have legalized or decriminalized recreational marijuana and includes a model marijuana expungement statute.  My article draws on previous scholarship in this area by Professor Douglas Berman (Leveraging Marijuana Reform to Enhance Expungement Practices) and CCRC fellow David Schlussel (The Mellow Pot-Smoker: White Individualism in Marijuana Legalization Campaigns).

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New drug policy center blends scholarship and public engagement

The Drug Enforcement and Policy Center (DEPC), which is housed at the Ohio State University Moritz College of Law, focuses on promoting and supporting interdisciplinary, evidence-based research, scholarship, education, community outreach and public engagement on the myriad issues and societal impacts surrounding the reform of criminal and civil laws prohibiting or regulating the use and distribution of traditionally illicit drugs.  DEPC examines the impact of modern drug laws, policies and enforcement on personal freedoms and human well-being, giving particularized and sustained attention to analyzing the rapid evolution of marijuana laws and the impacts of state-level reform efforts.  DEPC strives to advance scholarship from across academia, while also working with government actors, legal practitioners, public policy advocates and other stakeholders, in order to help shape and thoughtfully enrich public conversations about the intersecting fields of drug policy and criminal justice reform.

Questions relating to drug enforcement and policy intersect with collateral consequences in any number of ways.  One obvious example involves the on-going robust discussion of whether and how marijuana reforms at the state level should incorporate distinct provisions for the expungement of past marijuana convictions – a conversation now taking place in New Jersey as that state prepares to vote on legalization.  The Executive Director of DEPC, Professor Douglas Berman, wrote on this topic last year in his article for the Federal Sentencing Reporter titled “Leveraging Marijuana Reform to Enhance Expungement Practices.”

Another important question relates to whether people with a criminal record (including for long-ago drug crimes) should be barred from working or otherwise participating in the lucrative marijuana industry.

But other important (and uncertain) intersections abound.  For example, given the large number of drug arrests annually, are non-conviction records distinct and distinctly important in the drug enforcement arena?  We expect to consider this issue in our study of non-conviction records presently underway.  Also, given the tendency of some employment restrictions and other collateral consequences to focus on certain types of prior convictions, do past drug offenses present a uniquely problematic barrier for reentry?    DEPC is eager to help develop and promote research on these kinds of critical topics (and many more).

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