WA lifetime ban on childcare work held unconstitutional

On February 21, 2019, the Washington State Supreme Court declared that a state regulation imposing a lifetime ban from ever obtaining a childcare license, or having unsupervised access to children in childcare, is unconstitutional as applied to Chrystal Fields.  The lifetime ban was triggered by Ms. Fields’ 1988 attempted second degree robbery conviction for trying to grab a woman’s purse in front of a drugstore.  (The licensing agency has a list of 50 permanently disqualifying convictions, one of which is robbery; an attempted offense is treated the same as a completed offense.)  The court held that the licensing agency’s failure to conduct an individualized determination of Ms. Fields’ qualifications violated her federal right to due process.  Fields v. Dep’t of Early Learning, No. 95024-5 (Wash. Feb. 21, 2019).  The full decision is available here.  A brief discussion of the case follows.

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Living with a marijuana conviction after legalization (updated)

Jacob Sullum, senior editor at Reason, has written a fabulous article about expungement of marijuana convictions in places that have since legalized marijuana: so far 10 states, DC, and the Northern Mariana Islands have legalized.  The piece is now available to the public at this link: http://reason.com/archives/2019/03/01/the-lingering-stench-of-mariju Sullum tells the stories of eleven individuals, from the jurisdictions that have legalized, who describe how their marijuana convictions have impacted their lives before and after legalization.  He documents the lingering legal and social sanctions that burden people long after they have served their sentences, sanctions that “seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use.”

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UK Supreme Court issues major ruling on employer access to criminal records

On January 30, 2019, the UK Supreme Court issued a significant decision largely upholding the UK’s categorical rules for when criminal records are disclosed to employers, but declaring two key rules incompatible with privacy rights under the European Convention on Human Rights.  The first rule in question, the so-called multiple conviction rule, automatically requires people who have more than one conviction to disclose all prior convictions on “standard” and “enhanced” records checks.  (As explained below, the UK disclosure scheme provides for three levels of checks, depending on the nature of the employment involved, the two specified being the more in-depth.)  The second rule requires that certain youth reprimands and warnings—administered without an admission or determination of criminal charges—be disclosed on both types of checks.  CCRC contributor Alessandro Corda posted about this case this past July when it was being considered by the court and Christopher Stacey, co-director of a charity organization that intervened in the case, who attended the three days of hearings, provided guest commentary. The decision has significant implications for the employability of people with criminal records in the UK and could offer policy lessons for the US.  It is therefore worth discussing in some detail.

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Sex offender registration litigation: punishment and free speech

In the past week, there were two notable developments regarding the constitutionality of state sex offender registration schemes. First, as noted by Douglas A. Berman at Sentencing Law and Policy, Michigan Attorney General Dana Nessel filed highly significant amicus briefs in two Michigan Supreme Court cases, “arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.”  Both of the Michigan cases involve constitutional challenges under the Ex Post Facto Clause to the retroactive application of the state registration requirement.  Michigan v Snyder, No. 153696; People v. Betts, No. 148981. In the second development, U.S. District Judge W. Keith Watkins of the Middle District of Alabama on Monday held that Alabama’s sex offender registration law (“ASORCNA”) violates the First Amendment by branding state-issued ID cards with “CRIMINAL SEX OFFENDER” and imposing extensive internet-use reporting requirements.  Doe v. Marshall, No. 2:15-CV-606-WKW (M.D. Ala. Feb. 11, 2019).  This case presents an interesting twist on the now-vulnerable theory espoused by the U.S. Supreme Court and many states that sex offender registration is not “punishment.” These two caselaw developments are discussed further below.

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“Executive Clemency in the United States”

This is the title of CCRC Executive Director Margaret Love’s new article for the Oxford Research Encyclopedia.  The article describes the historic role played by the executive pardon power in reducing punishments (including collateral ones) and explains clemency’s diminished vitality and reliability in modern times in most states and in the federal system.  Love concludes that “[i]t appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.” Here’s the abstract:

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