Collateral Consequences Resource Center

President plans “aggressive” use of pardon power to commute drug sentences but perhaps not to relieve collateral consequences

March 24, 2015 CCRC Staff

For the third time in six weeks, President Obama has spoken on the record about his intention to make more “aggressive” use of his pardon power in the final months of his term to commute long drug sentences. It appears he really means it — and the only thing that may stop him from setting a modern record (perhaps even more impressive than the drug commutations of John Kennedy and Lyndon Johnson) is the pace of recommendations coming from the Justice Department via Clemency Project 2014. (Comments on his other recent statements are here and here.)

Hopefully the President will grant more full pardons as well, though his comments on that score have been less encouraging.

New York Times editors question efficacy of expungement laws

March 19, 2015 CCRC Staff

In an editorial titled “Job Hunting With a Criminal Record,” the editors of the New York Times tackle the problem of employment discrimination against the estimated 70 million Americans who “carry the burden of a criminal record.” They question the efficacy of expungement and other popular “forgetting” strategies for dealing with employer aversion to risk, preferring the “longer term” approach of “a change in attitudes about people with criminal records.”

The editorial points out that expungement laws typically apply only to “relatively minor transgressions,” require lengthy waiting periods, and include “significant exceptions” (e.g., they don’t apply to jobs and licenses requiring a background check, a large and growing segment of the labor market). In addition, “trying to keep anything secret in the 21st century is no sure thing.” Finally, “record-sealing laws do not and cannot address the underlying problem of overcriminalization.”

Forgiving v. forgetting: A new redemption tool

March 19, 2015 Eli Hager

The following thought-provoking piece about the growing popularity of judicial “certificates of good conduct” was first published in The Marshall Project (www.themarshallproject.org) a nonprofit news organization focused on the US criminal justice system. The “forgiving” approach to avoiding or mitigating collateral consequences is an important alternative to the “forgetting” approach advocated by proponents of expungement or sealing, which tend in any event to be limited to minor dated offenses or arrests not resulting in conviction.

Forgiving v. Forgetting:

For offenders seeking a new life, a new redemption tool.

In February of 2003, a much younger Barack Obama rose before the Illinois State Senate to introduce a new piece of legislation that, he said, contained a compromise. The bill would help job-seekers who had long ago been convicted of a nonviolent crime (or two, at most) overcome the barriers to employment that came with having a criminal history. But the bill would do so without expunging their records.

Instead, Obama’s bill would create a final, years-later stage on the timeline of these ex-offenders’ cases. They had already completed the stages of arrest, booking, indictment, plea bargaining or trial, sentencing, incarceration and/or probation. Now, ex-felons who had stayed crime-free for a few years would be eligible to come back to court and, in a full-blown hearing before a judge, attempt to “prove” that they had been rehabilitated.

New York Times weighs in on college applications and criminal records

March 15, 2015 CCRC Staff

The New York Times has published an editorial about the recently issued report of the Center for Community Alternatives on the deterrent effect of questions about criminal records on applications for admission to the State University of New York. (See the piece about the report “Boxed Out: Criminal History Screening and College Attrition” by CCA Director Alan Rosenthal published in this space 10 days ago.) The editorial notes that the 24 campuses of the CUNY system do not include “the box” asking about criminal record on their application forms and have reported no safety issues as a result. Perhaps this will be one of those rare cases where effective public advocacy highlighted in editorial pages will actually have a concrete result.

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

March 13, 2015 CCRC Staff

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).

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

March 12, 2015 CCRC Staff

The 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.

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

March 11, 2015 CCRC Staff

During 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:

California high court invalidates sex offender residency restrictions

March 10, 2015 Gabriel "Jack" Chin

In 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.

Expanding college opportunities for prisoners in California

March 9, 2015 Alan Rosenthal

Last 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.

Criminal history screening in college applications

March 4, 2015 Alan Rosenthal

Last 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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