NH Supreme Court takes aim at federal felon-in-possession statute

In an important decision for firearms-related collateral consequences, the New Hampshire Supreme Court relied on the Second Amendment to carve out an exception to the so-called federal felon-in-possession statute, declining to follow relevant federal court precedents. At stake is whether state or federal courts have the last word on the scope of the exceptions in 18 U.S.C. 921(a)(20).  In DuPont v. Nashua Police Department, the court held that a man convicted of a misdemeanor DUI, who as a result lost his right to possess a firearm under state and federal law, was able to avoid federal firearms disability by virtue of the restoration of his state firearms rights, even though he lost none of the traditional “core” civil rights (vote, office, jury).  In order to get to this result, the court had to conclude that the right to possess a firearm is itself a civil right, whose loss and restoration under state law is sufficient to satisfy the “civil rights restored” requirement in 921(a)(20), thus creating a narrow but significant exception to the U.S. Supreme Court’s holding in Logan v. United States.

While the holding in DuPont applies only to a limited class of misdemeanants (those who lost and regained state firearms rights), the decision may be the opening salvo in a state backlash against federal efforts to define the scope of state relief recognized in 921(a)(20).

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When is a sex offender not a sex offender in Ohio?

pixelohio_blankenshipThe Ohio Supreme Court is considering whether a young man whose conviction requires him to register as a sex offender should be excused from this collateral consequence on grounds that it violates the state constitution’s prohibition on cruel and unusual punishment.  The transcript of the March 10 oral argument in Blankenship v. State of Ohio, Case no. 2014-0363, suggests that the Ohio high court may be poised to invalidate the mandatory sex offender classifications in Ohio law as applied to a 21-year-old who had a consensual sexual relationship with a 15-year-old.  In 2011 the court ruled in State v. Williams that the state’s registration scheme is punitive and thus may not constitutionally be applied retroactively, so it would be a short step for the court to find that the mandatory registration requirement constitutes cruel and unusual punishment in this case.

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President promises a more “open” pardon process, more pardon grants

1024px-Pascal_Dagnan-Bouveret_(1852-1929)_-_Les_Bretonnes_au_pardon_-_Lissabon_Museu_Calouste_Gulbenkian_21-10-2010_13-52-01During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term.

Responding to a criminal defense attorney who asked what she could do to “increase the number of federal pardons,” the President explained that he was taking a “new approach” to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term.  He said he had asked the Attorney General to “open up” the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief:

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California high court invalidates sex offender residency restrictions

326746prIn a remarkable, unanimous decision, the California Supreme Court held on March 2, 2015 that residence restrictions for sex offenders on parole were unconstitutional as applied.  Although the case technically addressed the situation of four named plaintiffs in San Diego County, the decision calls into doubt the statute’s validity in the entire state.

In re Taylor tested the Sexual Predator Punishment and Control Act: Jessica’s Law, which, like many overwrought and unwise laws was enacted by initiative.  Passed in 2006, it added Section 3003.5(b) to the Penal Code, making it “unlawful for any person for whom registration is required . . . to reside within 2000 feet of any public or private school, or park where children regularly gather.”  In 2010, in an earlier stage of the case, the Court rejected claims brought by that the law was invalid on its face because it was unconstitutionally retroactive under California law, or because it violated state or federal prohibitions on ex post facto laws.  However, the plaintiffs pursued the argument that the law was unconstitutional as applied; the trial court, California Court of Appeals, and Supreme Court agreed.

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Expanding college opportunities for prisoners in California

DegreesofFreedom2015_ReportCoverLast week was an exciting one for proponents of the expansion of college opportunities for people who are currently incarcerated or who have criminal records.  Two reports were released that propose strategies to break the cycle of recidivism, promote public safety, and de-escalate mass incarceration by opening up post-secondary educational opportunities.  It is fitting that both reports come at a time when America is reflecting on the events of “Bloody Sunday” in Selma, Alabama, fifty years ago, and envisioning where the momentum of Black Lives Matter will take us.  It is the intersection of an historic civil rights struggle, the human rights movement that confronts “mass criminalization” and the racial divide in the U.S. today.

The Stanford Criminal Justice Center and the Warren Institute at the UC Berkeley School of Law issued a report from the Renewing Communities Initiative, Degrees of Freedom: Expanding College Opportunities for Currently and Formerly Incarcerated Californians.  It was released just days after the Center for Community Alternatives (CCA) in cooperation with the Education from the Inside Out Coalition (EIO Coalition), issued its report, Boxed Out: Criminal History Screening and College Application Attrition, the subject of an earlier post on March 4, 2015.

 

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Criminal history screening in college applications

BoxedOut.untitledLast week the Center for Community Alternatives in cooperation with the Education from the Inside Out Coalition released Boxed Out: Criminal History Screening and College Application Attrition. With this new study and report we build upon our 2010 study, The Use of Criminal History Records in College Admissions Reconsidered. The Reconsidered study showed that a growing number of colleges and universities are asking about criminal history information during the application process: two-thirds of the colleges and universities we surveyed reported that they do so. Yet, as we discussed in the Reconsidered study, there is no empirical evidence to indicate that criminal history screening makes college campuses any safer.

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Wisconsin attorneys volunteer to help students facing expulsion

raceclassExpulsion or suspension from school, not surprisingly, does not bode well for academic success.  Students are much less likely to graduate when they miss significant time in school or have to change schools because they have been suspended or expelled.

Incidents at school can have other serious and lasting consequences.  In Wisconsin, because 17-year-olds are considered adults when charged with criminal violations, high school students can face probation, jail, or prison, as well as all the adverse collateral consequences associated with a criminal record.  One serious consequence unique to students is that alleged misconduct in school can also result in a suspension or expulsion from school.

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Putting teeth in Heller’s promise for people with a conviction: Second Amendment litigation round-up

Alan Gura describes in this post recent efforts to persuade federal courts that people who have lost their firearms rights by virtue of a criminal conviction may be entitled to claim the protections of the Second Amendment.  Alan himself has spearheaded this litigation for the Second Amendment Foundation, following up his Supreme Court victories in D.C. v. Heller and McDonald v. Chicago.   While successes have to date involved civil rights actions in behalf of people with dated non-violent convictions, these precedents may eventually find their way into felon-in-possession and related prosecutions. They also may portend, like the cases invalidating retroactive registration requirements, a greater willingness by courts to limit the scope of categorical collateral consequences that are considered unreasonable and unfair. Ed.

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Georgia becomes first state in South to ban the box

Job seekers applying for work with the state of Georgia will no longer need to disclose prior criminal convictions on their initial applications.” The order provides that this new policy “will allow returning citizens an opportunity to explain their unique circumstances in person to a potential employer.” Read more

New York certificate scheme found inaccessible and ineffective

 

The certificate system for restoring rights after conviction in New York no longer serves its intended purposes, according to an investigation by City Limits.  The problem is that Certificates of Relief from Disabilities (CRD) are supposed to be a means to rehabilitation for people sentenced to probation, but the judges authorized to issue them see them (in the words of one public defender) “as a gold star, as a thing you get after you’ve been rehabilitated.”  The Parole Board appears similarly Read more

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