Obama clemency process reportedly “more backlogged than it was before”

USA Today reports that unexpected administrative complications continue to delay the clemency initiative launched by the Obama administration last year.  More than a year after the Justice Department sought assistance from private organizations in identifying federal prisoners deserving of sentence commutation, that ancillary process has submitted only 31 cases for favorable presidential action.  In light of the fact that more than 1500 volunteer lawyers have been working since last fall on cases assigned by Clemency Project 2014, this modest number is surprising.

Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.

The result is a system that appears even more backlogged than it was before the initiative began.

Federal judge expunges conviction to avoid collateral consequences

In what appears to be an unprecedented action (at least if it stands), a federal judge has expunged the concededly valid conviction of a woman he sentenced 13 years before, whose difficulties in finding and keeping employment evidently moved him to take extraordinary measures.  In Doe v. United States, Judge John Gleeson (EDNY) commented on the “excessive and counterproductive” employment consequences of old convictions:

Doe’s criminal record has prevented her from working, paying taxes, and caring for her family, and it poses a constant threat to her ability to remain a law-abiding member of society. It has forced her to rely on public assistance when she has the desire and the ability to work. Nearly two decades have passed since her minor, nonviolent offense. There is no justification for continuing to impose this disability on her. I sentenced her to five years of probation supervision, not to a lifetime of unemployment.

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New Maryland law allows “shielding” of some misdemeanor convictions

Earlier this month, Maryland governor Larry Hogan signed the Second Chance Act of 2015, 2015 Md. Laws 313 (HB 244), which allows eligible persons to petition a court for “shielding” (or sealing) certain misdemeanor records.  This is the first time Maryland has authorized limits on public access to conviction records other than nuisance offenses and offenses that have been pardoned.

The new law, which goes into effect on October 1, is a significant step forward in the treatment of conviction records in the state.  However, its effect may not be as sweeping as many would like. Only a handful of misdemeanor offenses are eligible for relief, and records that have been generally shielded from public access remain available to a significant number of employers and licensing entities. We take a more detailed look at the new law below.

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The real experts in criminal justice reform

The following piece by CCRC board member Glenn Martin first appeared on May 18 in the blog of the National Council on Crime and Delinquency

For me, exiting a New York state prison in 2000 after serving six years was a rebirth. As a lifelong New Yorker, born and raised in Brooklyn’s Bedford-Stuyvesant neighborhood, my mission started to crystallize. I wanted to be a voice for the countless intelligent, earnest, and genuinely good people that I was leaving behind. Reflecting on the 2.3 million people in US prisons and jails and another 5.6 million under correctional supervision—mostly young black and brown men and women—I kept asking myself, “If prison is where we send bad people who do bad things, where do we send good people who do bad things?” I was first bound by handcuffs in 1995, and though I haven’t known their debilitating grip for years, the hypocrisy and destructiveness of our criminal justice system has remained with me ever since.

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Professional careers jeopardized by old charges

A local office of the Wisconsin State Public Defender recently assisted two former clients who encountered obstacles with their respective legal and medical careers (minor details have been changed to ensure client confidentiality).  These examples show that old criminal cases, even for relatively minor charges, can cause employment difficulties and frustrate professional advancement many years later.

The first former client recently passed an out-of-state bar examination, and he disclosed on his license application a 20-year-old Wisconsin misdemeanor charge.  When he called for assistance in interpreting the online court records, he learned (to his relief) that what he had always thought was a criminal conviction had actually been reduced to a non-criminal ordinance violation.  Although the original criminal charge remains accessible in Wisconsin’s court records, he was able to amend his license application to report that he does not have any criminal conviction record.  (It is not clear what effect a misdemeanor conviction would have had on his licensure, but now he won’t have to find out.) Read more

Collateral consequences of conviction in Greece

Collateral Consequences of Conviction in Greece[1]

by Dimitra Blitsa

1. Access to Greek Criminal Records 

In Greece, a criminal record is created for every adult[2] person who has been irrevocably convicted of a misdemeanor or a felony (i.e. by a decision not subject to an appeal before the Supreme Court). Unlike in the U.S. but consistent with continental European countries, a Greek criminal record does not contain arrest information. Individual criminal history records are considered “sensitive personal data.” Disclosure and access is restricted to protect the convicted person’s privacy and to promote rehabilitation. Although Greek court proceedings are open to the public, court records are not available for public inspection.

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Copyright dispute roils federally-funded database of collateral consequences

Copyright-symbol-with-a-lockShould a compilation of collateral consequences mandated by federal law and prepared with federal funds be freely available to states and members of the public?  The Uniform Law Commission says yes, the American Bar Association says no.

In an article posted on May 18, the Wall Street Journal pulled back the curtain on an on-going dispute between the ULC and the ABA over copyright restrictions the ABA has imposed on data in the National Inventory of Collateral Consequences (NICCC).  The ULC is concerned that restrictions on access and use of the NICCC data are likely to stymie adoption of the Uniform Collateral Consequences of Conviction Act (UCCCA), which requires that states create their own inventories.  The ABA contends that the existence of other potentially conflicting databases would create undesirable confusion about the meaning of the law.  An excerpt from the WSJ piece (a companion to another article on collateral consequences published the same day), follows: Read more

50-state survey of relief from sex offender registration

We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law.  This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,” discussed on this site on April 15.  The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary.  But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.

We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals. Read more

Georgia high court extends Padilla to parole eligibility

The Supreme Court of Georgia has extended the doctrine of Padilla v. Kentucky to a failure to advise about parole eligibility.  In Alexander v. State, decided on May 11, a defendant sentenced to a 15-year prison term for child molestation sought to set aside his guilty plea on grounds that his defense counsel had not warned him that, as a recidivist, he would not be eligible for parole.  The Georgia high court agreed that this failure constituted deficient performance under the doctrine of Strickland v. Washington, overruling its 1999 precedent holding that the Sixth Amendment did not require a defense lawyer to advise a client about this “collateral consequence” of conviction. The Georgia court distinguished its 2010 post-Padilla decision declining to find a warning by the court necessary, finding a clear constitutional distinction between defense counsel’s Sixth Amendment obligation to advise a client considering a guilty plea and the court’s due process obligation to warn a defendant in the same situation.

At the same time, the court declined to approve a lower court’s earlier extension of Padilla to sex offender registration, reserving for another day the question whether this consequence is “a drastic measure” that is “intimately related” to the criminal case.  Most of the post-Padilla decisions involving parole eligibility have rested on the dubious pre-Padilla erroneous advice exception to the collateral consequences rule, an exception that the Alexander court firmly rejected.

27 Senators urge Obama to “ban the box” in federal hiring

A group of 27 U.S. Senators have written to President Obama urging him to implement “fair chance” hiring in federal government employment.   The Senators — all Democrats, led by Sherrod Brown (D-OH) and Cory Booker (D-NJ) — asked the President to issue an executive order directing federal agencies and contractors to postpone inquiry into criminal records until a later point in the hiring process.  The so-called ban-the-box movement in the states has been gaining steam and has been largely bipartisan, with executive orders issued most recently in Georgia and Vermont.  Some of the largest employers in the country, including Walmart, Target, Home Depot and Koch Industries have also stopped asking about prior convictions at the beginning of the job application process.

The press release and letter are here.  A January 2015 report from the National Employment Law Project suggests that the details of a presidential executive order may be difficult to work out, given the decentralized nature of federal hiring and the applicability of formal background check requirements to a substantial number of federally-funded jobs.

 

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