Disclosure of nonconviction records may violate European Convention on Human Rights

This is the most recent in a series of posts by Professors James Jacobs and Elena Larrauri 250px-Tudor_Rose.svgcomparing criminal records disclosure policies in the United States and Europe.  The decision of the European Court discussed below invalidated a policy of the United Kingdom authorizing broad disclosure of non-conviction records relating to child victims.  (The U.K.’s policies on disclosure are closer to those of the U.S. than they are to those of continental countries.)  While the U.K. has subsequently narrowed its disclosure policy, it remains to be seen whether even as amended the U.K.’s disclosure policy will pass muster under the European Convention on Human Rights.

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Publishers not liable for internet posting of “erased” arrest records

When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media.  A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute.  But the contemporaneous news accounts remained available on line, and the publishers refused to remove them.

Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute.  The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.”  The Second Circuit affirmed. See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).

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Ohio pardons provide “only forgiveness, not forgetfulness”

images.carduinalOn January 28, 2015, the Ohio Supreme Court settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records.  In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states.  The majority evidently found this conclusion an unhappy one, lamenting that “until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness.”

“Only forgiveness.”  Is pardon then such a second class prize?  What makes an official determination of the recipient’s good character by the state’s highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred?  If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do.

As will come clear from the following discussion, I do not share the Radcliff majority’s evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself).

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Ohio certificates remove mandatory bars to jobs and licenses

February 2, 2013 was an historic day in Ohio. The Ohio legislature added a new judicial restoration mechanism: the Certificate of Qualification for Employment (CQE). The CQE, contained in Ohio Rev. Code §2953.25, provides new hope to the 1 in 6 Ohioans who have a criminal conviction and as a result are ineligible for certain jobs and licenses because of a mandatory collateral sanction (of which there are many in Ohio law).  To date 242 Ohioans have received a CQE, and more are expected to apply when word gets around that this relief is available.

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Expungement resources now online from Papillon Foundation

143_PapillonLogo_Black.aiMost people with a criminal record have a general understanding of the value of expunging or sealing their criminal records.  However, figuring out how to actually obtain such relief in a particular jurisdiction, and understanding its specific effects, is not so easy.  The Papillon Foundation aims to change that by offering practical internet-based information about the process for obtaining expungement and sealing in all 50 states. We spoke with the Foundation’s founder Alan Courtney not long ago to find out more about how the Foundation helps people clean up their record and take charge of their past.    Read more

SBA to relax some rules on loans to people with a record, but most left in place

600px-US-SmallBusinessAdmin-Seal.svgIn December 2014, Amy Solomon, Senior Advisor to the Assistant Attorney General for the Office of Justice Programs in the Justice Department, testified before the U.S. Senate Addiction Forum about the review of collateral consequences federal agencies had been conducting under the auspices of the Federal Reentry Council.  She reported that most of the agencies participating in the review had concluded their collateral consequences were “appropriately tailored for their purposes.”  However, she also reported that Small Business Administration (SBA) had proposed amendments to its regulations to allow people on probation or parole to qualify for loans from its microloan program.  (The change, proposed almost a year ago, has still not become final.)

We decided to take a look at the SBA’s proposed rule change, and at the SBA regulatory scheme more generally, to see how having a criminal record affects small business eligibility for government-backed loans. Read more

Bedside pardon shows “soft on crime” label losing power

We were struck by this recent headline: “Gov. McAuliffe makes pardon from hospital, where he will remain overnight.”   The Virginia governor was recuperating from a procedure to drain his lungs made necessary by a holiday fall from a horse, when he called reporters to his hospital room to witness a grant of “conditional pardon” (Virginia’s term for a sentence commutation) to an autistic man jailed for assaulting a police officer, to permit him to go to a secure treatment center in Florida for help rather than being warehoused for years in a Virginia prison.  It is likely that McAuliffe wanted to show himself fully able to conduct state business. But it seems significant that he chose this particular official act to make the point.

The bookend episode that immediately comes to mind is Bill Clinton’s well-publicized departure from the campaign trail in 1992 to fly home to Arkansas to sign Ricky Ray Rector’s death warrant. Rector had shot himself in the head after murdering a police officer and was effectively lobotomized — and so unable to appreciate his circumstances that he asked to save the pecan pie from his last meal for “later.”

There may be no more telling sign that the “soft of crime” label is losing its power over elected officials than McAuliffe’s decision to publicize this bedside act of mercy.

Good news, bad news: New York’s drug law reform and collateral consequences

The Vera Institute has issued a first-rate assessment of the effect of the Rockefeller drug law reforms in New York City.  See End of an Era?  The Impact of Drug Law Reform in New York City.   The report found that as a result of the reforms far more people were diverted out of the justice system and into treatment, thus avoiding conviction and the attendant collateral consequences.  On the other hand, for those not diverted, the report found that the repeal of mandatory minimums led prosecutors to look for other ways to leverage plea bargains, leading to more felony convictions and more severe collateral consequences than under the old laws.  Sentencing reformers in other jurisdictions should take note.

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Expungement of criminal records in Europe (Spain)

This is the fourth post in a series about European law and policy on criminal records by Professors Jacobs and Larrauri.  Prior posts noted that public access is never allowed where a record has been expunged.  This post discusses the types of records that are eligible for expungement, how the expungement process works, and what the effect of expungement is.   (Professor Larrauri’s more detailed discussion of “judicial rehabilitation” in Europe is available here.)  – Eds. 

spainJust as there are variations in eligibility for and consequences of expungement in U.S. states, there are differences in detail in continental European countries. We focus on Spain, which we know best, though we have no reason to believe that Spain is an outlier when it comes to European countries’ law and policy.  (As in most all criminal record matters, the U.K. is more like the U.S. than continental Europe, making expunged records more accessible to the public than they are on the Continent.)

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Is pardon making a comeback? Probably not, but law reform may be

A recent issue of Governing Magazine reports that pardoning is “making a comeback” after decades of neglect.  It would be nice if it were true.

But the evidence of comeback is thin. Almost all of the jurisdictions where pardoning is thriving today are the same ones where it was thriving a decade ago.  In a dozen states, including Connecticut, Delaware, Georgia, Nebraska, South Carolina and South Dakota, pardon has never been neglected, much less abandoned by responsible officials. In these jurisdictions and a handful of others, pardon has deep roots in the justice system and is supported by accountable institutions of government.

It is certainly true that Pat Quinn of Illinois and Jerry Brown of California have made generous use of the power of their office after years in which the pardon power in their states languished unused.  Terry McAuliffe of Virginia is a newcomer to the small group of governors who evidently feel that pardoning is a responsibility of office.  All three are to be commended for it.  But three swallows do not make a summer.

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