International travel restrictions based on criminal record

Collat_ConsequencesBelow is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about restrictions on international travel based on criminal record.  The first section discusses the subject in general terms, while the second section describes restrictions on travel to Canada for individuals with a foreign conviction, and the methods of overcoming these restrictions.  (An earlier post described methods of neutralizing Canadian convictions for purposes of travel to the U.S.)

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Minnesota’s sweeping new expungement law takes effect

Beginning January 1st, 2015, many Minnesotans will have a meaningful shot at a second chance through criminal records expungement. For decades, many individuals have relied upon (and often languished under) a court’s inherent authority to expunge (or seal) criminal records, but recent Minnesota Supreme Court decisions effectively eviscerated that remedy. Without a legislative act expressly granting judicial authority to seal records held within executive branch agencies, the majority of petitioners were granted orders sealing only court records—leaving numerous publicly accessible criminal records untouched.

The new law, passed with bipartisan support and building upon momentum gained with last year’s Ban the Box for private employers, changes that.   It provides new authority for expunging (sealing) both criminal and juvenile records held by executive branch agencies; requires data mining companies to observe expungements, protects employers and landlords hiring and renting to individuals with expunged records, addresses victimization and housing evictions, and clarifies a number of procedural issues.  The standard for granting expungement remains that under current law, requiring the court to balance private and public interests.

While by no means a silver bullet, this new legislation will help a significant number of Minnesotans currently locked out of employment, housing, licensure, education, and countless other of life opportunities, by providing a true opportunity for a second chance.

Here is an explanation of the new law’s specific provisions. 

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Jerry Brown takes back a pardon . . . really?

Jerry Brown reportedly regretted one of his 105 Christmas Eve pardons, after learning from an LA Times article that the recipient had recently been disciplined by federal financial regulators.  He therefore announced that he was rescinding his grant, claiming that the pardon was not yet final because the Secretary of State had not signed the document evidencing it.

This is not the first time that a governor or president has had second thoughts about a pardon, but it is unusual for a chief executive to attempt to undo one that has been made public.  Governor Brown’s attempt to retract the pardon may or may not be effective, but it certainly reflects unfortunate disarray in the administration of the pardon power in California for which other deserving pardon candidates may end up paying.

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American criminal record exceptionalism (I): A Spanish comparison

spainA comparative perspective is extremely useful for appreciating the status of individual criminal record information in the U.S.   In this and future blog posts, we would like to share information about criminal record law and policy in continental Europe and the U.K., including some important decisions of the European Court of Human Rights.

We begin with Spain, the continental European country we know best. On the basis of past and on-going research, we believe that Spain’s law and policy on criminal records is representative of continental Europe. This is not surprising because, to some extent, all E.U. member states share a legal tradition and are subject to E.U. laws and ECHR’s judgments. However, to be sure, there are some national differences among E.U. member states.

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Criminal records and the Obama immigration initiative

The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges.

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Clean slate remedies help overcome collateral consequences

Eliza Hersh, director of the Clean Slate Clinic at the East Bay Community Law Center and one of CCRC’s contributing authors, has co-authored a most persuasive op ed in the LA Times, which we are pleased to reprint here in full.  

Should a shoplifting conviction be an indelible scarlet letter? Not in California

What exactly is the appropriate punishment for someone who commits a low-level, nonviolent crime? Should a conviction for minor drug possession, shoplifting or writing a bad check result in a lifetime of stigma and denied opportunities, or do people with criminal records deserve a second chance?

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A pardon celebrates the life of a public defender

One of the 12 pardons granted by President Obama on December 17 went to Albert Stork of Delta, Colorado, long-time advocate for indigent criminal defendants on the rural Western Slope.  Al Stork pled guilty in 1987 to filing a false tax return, and served six months in federal prison. While his conviction came about in an unusual way, what makes Al’s case so special is what he did with his life afterwards.

Al Stork’s conviction arose out of his family circumstances. In the early 1980s, one of his two older brothers was an elected prosecutor in Colorado’s Sixteenth Judicial District; the other was a fugitive from Colorado authorities, having spent most of his life (as Al put it) “either in jail or on the lam.” Al himself, then in his early 20s, was leading what his defense lawyer described years later as “an unexceptional and unmotivated middle class life,” working construction and selling a little marijuana on the side.

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“Arrests as Regulation”

Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the same kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access.

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Can a taxi license be revoked based on arrest alone?

I went to college, and practiced law, with Dan Ackman, an outstanding New York lawyer who represents taxi drivers in a variety of contexts.  One of his cases, pending in the Southern District of New York, Nnebe v. Daus, challenges the TLC’s alleged practice of automatic license suspension a upon arrest for a felony or specified misdemeanor, and automatic revocation upon conviction, even if the charges had no temporal, physical or logical relationship to driving a cab.  The Second Circuit previously held that automatic revocation was constitutional, but directed a trial on whether the post-deprivation hearing was sufficient.  The case was remanded, tried, and is now pending a decision before Judge Sullivan.  The case has important implications for collateral consequences; mere arrests should not be the basis for any important decision, other than an inquiry into the actual facts, and even a conviction for an unrelated offense should not be the basis for  license revocation.

Wisconsin high court holds youthful offenders entitled to “a fresh start”

The Wisconsin statute that allows courts to expunge certain conviction records of youthful offenders, Wis. Stat. § 973.015, provides that the court must make its decision about whether to expunge at the time of sentencing, conditioned upon the defendant successfully completing his or her sentence.

Often, young defendants receive a probationary term for crimes that are eligible for expungement (all misdemeanors, as well as certain felonies in the lower levels of severity). Prior case law has established that, although expungement is conditional upon successful completion of probation in this situation, the court may not defer ruling on the expungement request.

In State v. Hemp, the Wisconsin Supreme Court clarified that expungement occurs automatically if the statutory conditions are met, and that a defendant is not required after completing probation to apply to the sentencing court for entry of the expungement order. Importantly, the court also provided some guidance regarding the legal effect of expungement that will be of interest to job applicants who have had a previous conviction expunged.

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