New report describes public health consequences of incarceration

A new report from the Vera Institute, On Life Support: Public Health in the Age of Mass Incarceration, highlights the “contagious” health effects of incarceration on the already unstable communities to which most of the 700,000 inmates released from prison each year will return.  The report argues that high rates of incarceration among residents in these communities are “one of the major contributors to poor health in communities,” and that this has “further contributed to diminished educational opportunities, fractured family structures, stagnated economic mobility, limited housing options, and restricted access to essential social entitlements.”  In “a political landscape ripe for reform” of these cascading collateral consequences of conviction, the report finds significant promise in the Affordable Care Act:

The passage of the ACA in 2010 was a watershed moment in U.S. history. State and local governments are increasingly realizing the opportunities created by the ACA to develop partnerships between health and justice systems that simultaneously abate health disparities and enhance public safety. A number of the legislation’s key provisions—the expansion of Medicaid, increased coverage and parity for mental health and substance use services, and incentives for creating innovative service delivery models for populations with complex health needs—provide new funding streams and tools for policymakers to strengthen existing programs and develop solutions to reduce mass incarceration.90 The ACA creates critical opportunities for states, local governments, and healthcare stakeholders to greatly expand the capacity of their community health systems to better meet the needs of underserved populations, curb the flow of medically-underserved populations into jails and prisons, pursue collaborative programming to plug service gaps between health and justice systems, and ensure that people are able to receive services in the community that are essential for health. …

“The president’s idle executive power: pardoning”

As the presidential pardon of everyone’s favorite Thanksgiving galliformes makes front-page news across the country (a tradition that the many human clemency petitioners who have spent years awaiting action must struggle to find the whimsy in), two law professors take the federal clemency system to task in a new Washington Post opinion piece.  In the piece, professors Rachel E. Barkow (NYU) and Mark Osler (University of St. Thomas) argue that the long and multi-tiered review process for federal clemency petitions could be significantly improved if the president would minimize the Justice Department’s involvement in the process while shifting responsibility to a bi-partisan review commission.  From the article:

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Ohio’s on-line inventory of collateral consequences – a useful tool for defense lawyers

Kelley Williams-Bolar was a single mother in Akron Ohio, a teacher’s aide who was studying to become a teacher herself.  Her story made headlines in 2011, when she was accused of misusing her father’s home address to enroll her two young daughters in a public school they were not entitled to attend.  After her own home was burglarized, Kelley had enrolled the girls in their grandfather’s school district, so they could spend each afternoon after school safely at their grandfather’s house.  To make this possible she had signed a “grandparent affidavit” saying that the girls lived with their grandfather.  The new school district ultimately rejected the affidavit, and she withdrew the girls from tohio_sealheir new school at the end of the school year.

Ohio’s “grandparent affidavit” form contains a printed warning, advising that anyone who submits a false affidavit can be charged with “Falsification, a first degree misdemeanor.”  But that warning gave no hint of what would actually happen to Kelley.  Eighteen months after her daughters left the new school, the district attorney charged Kelley with felony Grand Theft, claiming she had “stolen” tens of thousands of dollars’ worth of tuition for her children.

Particularly given Kelley’s career aspiration to be a teacher, her defense lawyer could have made good use of a new online resource called CIVICC (Civil Impacts of Criminal Convictions), a computerized compendium of state collateral consequences linked to the crimes that trigger them.  (Kelley’s felony conviction was eventually reduced to a misdemeanor by Governor John Kasich, high level intervention that cannot be counted on to substitute for effective advocacy.)

At the CIVICC website, counsel in a case like Kelley’s could run a quick search using the keyword “theft,” and learn right away that conviction on the Grand Theft charge would expose her to 509 possible collateral consequences (“civil impacts”) under Ohio law, burdens she would bear long after her criminal sentence was complete.

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Reduced charge more harmful than original?

An earlier post highlighted the dilemma that some young Wisconsin defendants face because of the narrow scope of the law on sealing conviction records.  The court can seal the record of certain convictions, but the record of dismissed charges remains accessible to the public in a searchable online database.  Therefore, the dismissal can increase the potential for prospective employers to learn of an applicant’s legal troubles.

Now the Wisconsin Court of Appeals has held that the court may not seal the record of a nSeal-of-Wisconsinon-criminal violation.  Kenosha County v. Frett, 2014AP6 (Wis. Ct. App. Nov. 19, 2014).  The appellate court reviewed the statutory language and concluded that references to 1) the maximum term of imprisonment for sealable offenses; 2) “completion of the sentence”; and 3) “certificate of discharge” from the “detaining or probationary authority” showed that the procedure applies only to criminal convictions.

For a young woman cited in 2012 in Kenosha County for underage drinking, now a college student in New York, the decision means that the record of her conviction for the amended charge of littering remains publicly accessible.  If she had been convicted of drug possession or fraud she might have been able to close the book on this episode.

Although the Frett case did not involve the reduction of criminal charges, the decision means that some defendants might prefer to have a sealed criminal conviction than to have a public record of a reduced, non-criminal charge (the public record of the reduced charge also shows the original charges).

The Frett decision may be appealed to the Wisconsin Supreme Court, and policymakers are considering statutory amendments to expand judicial authority to seal records.  For now, however, non-criminal dispositions and dismissals are publicly accessible in situations in which some criminal convictions can be sealed.

New reports evaluate national policy on juvenile record confidentiality

This month the Juvenile Law Center released an impressive pair of reports evaluating national policy on public access to juvenile criminal records. The first report, Juvenile Records: A National Review of State Laws on Confidentiality, Sealing and Expungement, provides a national overview of state laws, and proposes standards to mitigate exposure to collateral consequences as a result of a juvenile record.  150xNxJLC.jpg.pagespeed.ic.w0Eyk4Lh56The report also makes recommendations for policy-makers, courts, defense attorneys, and youth-serving agencies. Supplementing the national overview are fact sheets on the law in each state, including the availability and effect of expungement or sealing, and an overview of the process for obtaining such relief. (These fact sheets can be found by clicking on the relevant state on the map here).

A second complementary report, Failed Policies, Forfeited Futures: A Nationwide Scorecard on Juvenile Records, scores each state on the degree to which it meets the Center’s ideal standards for juvenile record protection. The Center based its evaluation of the states on its “core principles for record protection” including:

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Canada stiffens policy on sealing of criminal records – but it still looks pretty liberal from here

A couple of news items about an increase in clemency applications in Canada made me curious to learn more about how restoration of rights works in our Northern neighbor.

Canada has long had a policy of virtually automatic sealing of criminal records through what is known as a “record suspension” (before 2012, called a “pardon”).  The Criminal Records Act (CRA) makes record suspension available from the Parole Board of Canada for any offense except sex crimes involving children, and to any individual except those convicted of multiple serious crimes, after waiting periods of five years from completion of sentence for “summary” offenses and 10 years for “indictable” offenses.  (Prior to 2012 the waiting periods were three and five years.)  Non-conviction records may be purged sooner.

Once a record has been suspended, all information pertaining to convictions is taken out of the Canadian Police Information Centre and may not be disclosed without permission from the Minister of Public Safety.  The CRA states that no employment application form within the federal public service may ask any question that would require an applicant to disclose a conviction.  It is unlawful under Section 3 of the Canadian Human Rights Act to discriminate in employment or housing or union membership against anyone based upon “an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”

In 2012-13 the PBC ordered more than 6600 pardons and records suspensions, 97% of all applications received.  (According to the PBC website, since 1970 more than 460,000 Canadians have received pardons and record suspensions. “96 percent of these are still in force, indicating that the vast majority of pardon/record suspension recipients remain crime-free in the community.”)

The 2012 amendment of the CRA to extend the eligibility waiting periods has resulted in an increase in applications for the extraordinary remedy of “clemency,” which has higher standards but no eligibility waiting period.  Clemency, formally known as the “Royal Prerogative of Mercy” (RPM), may be granted in federal cases by the Governor General or the Governor in Council (i.e. Federal Cabinet), and applications are staffed by the PBC.   Clemency is intended “only for rare cases in which considerations of justice, humanity and compassion override the normal administration of justice.” All other avenues of relief must have been exhausted, and there must be must be “clear and strong evidence of injustice or undue hardship.”  In contrast to the thousands of ordinary records suspensions granted each year in Canada, there are only a handful of these extraordinary clemency grants.  In 2012 there were 52 RPM applications and only 12 grants.

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The Democrat who would be the “Reentry President”: James Webb

This week’s New Yorker features an article by Ryan Lizza about potential democratic candidates.  One, James Webb, former U.S. Senator from Virginia, has a history of interest in prisons and reentry of people with convictions.  The article states:

Jim Webb speaks about his bill about Iran in Washington“In the Senate, he pushed for creating a national commission that would study the American prison system, and he convened hearings on the economic consequences of mass incarceration. He says he even hired three staffers who had criminal records. ‘If you have been in prison, God help you if you want to really rebuild your life,’ Webb told me. ‘We’ve got seven million people somehow involved in the system right now, and they need a structured way to reënter society and be productive again.’ He didn’t mention it, but he is aware that the prison population in the U.S. exploded after the Clinton Administration signed tough new sentencing laws.”

Of course, reentry is not necessarily a partisan issue; President George W. Bush also cared about it, calling America “the land of second chance” in his 2004 State of the Union address, and signing into law the Second Chance Act.  It will be interesting to see if prison spending and reentry become issues in the primaries or the general election.

Labels and stereotypes in the President’s immigration speech

obama-immigration-speechThe President’s decision to take unilateral executive action to insulate certain undocumented immigrants from the immediate threat of deportation has provoked outrage in some quarters and profound relief in others.   The legal issues raised by this decision are important and debatable, some of its line-drawing is problematic, and its success stands or falls on the uncertain terrain of bureaucratic discretion.  No doubt its political implications are yet to be revealed.

But amid all the uncertainty, one thing is clear.  In his speech announcing the initiative the President said, repeatedly and definitively, that no one with a criminal record would benefit from his reprieve.   Thus, he emphasized that enforcement resources would remain focused on “actual threats to our security,” by which he meant “Felons, not families. Criminals, not children.”   Again, it is possible to benefit from the law if you can “pass a criminal background check” (whatever that means), but “[i]f you’re a criminal, you’ll be deported.”   Even people convicted of misdemeanors will not be spared under the new DHS enforcement priorities.

Entirely apart from the wisdom or fairness of the immigration policy choice involved in this broad blanket exclusion (and there are good reasons to be critical of it), it was disheartening to hear the President present it in such unfortunate language.  The ugly labels of “felon” and “criminal” do, after all, at least technically describe a status shared by 25% of adult Americans.  Labels like these serve only to demonize and exclude, and they are fundamentally at odds with our national policy of encouraging rehabilitation to reduce crime.  There were other ways the President could have justified continuing his policy of deporting based on criminal record than by using words that do more to stir up fear of “the other” than to describe relevant functional attributes.

The President’s words suggest that people who have been convicted of a crime are evermore to be regarded as “felons” and “criminals,” categorically threatening to our safety and security, and uniformly deserving to be segregated and sent away.  But he himself pardoned such a person less than two years ago, precisely to keep her from being deported. And he is surely aware of the bipartisan conversation now underway about the need to curb over-criminalization, one of the few matters on which Republicans and Democrats can agree.   It is tempting to take linguistic shortcuts when politically expedient, but it is a temptation he might have resisted without jeopardizing his larger objective.

It is time we stopped using negative stereotypes and labels to describe people who at some point in their past have committed a crime, in the immigration context or otherwise.  It is no longer acceptable to describe undocumented immigrants as “illegal aliens.”  Our language needs a similar makeover where past convictions are concerned.

Playing nice in criminal court: “Crashing the Misdemeanor System”

As the Supreme Court recently acknowledged in Lafler v. Cooper (2012), American criminal justice “is for the most part a system of pleas, not a system of trials.”  Nowhere is that statement truer than in the lower courts, where millions of misdemeanor arrests are resolved, or, to use the lingo of the criminal court, “disposed of,” without even a whiff of a trial.

In a provocative New York Times Op-Ed, “Go to Trial: Crash the Justice System,” Michelle Alexander raised the prospect of organizing people to refuse to plea bargain.  Professor Jenny Roberts takes a cue from Alexander and manages to be even more rebellious.  In Crashing the Misdemeanor System, 70 Wash. & Lee L. Rev. 1089 (2013), she urges much more specifically that defense attorneys focus their energy on taking down extant misdemeanor systems that are best characterized as guilty plea mills.

Roberts argues that “the most minor misdemeanor conviction has serious implications for so many people,” and bemoans the fact that nevertheless most misdemeanors are given short shrift by all institutional players — judges, prosecutors and defense attorneys alike.  Her article is a clarion call for defense attorneys to reimagine, refocus and reinvigorate their misdemeanor practice, especially in an era of massive arrests for minor crimes made popular by Broken Windows, or quality-of-life, policing.

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Sexting prosecutions derailed by concerns about collateral consequences

The District Attorney of Oneida County (WI) has decided not to file criminal charges against forty teenagers implicated in a widespread sexting scandal in the Rhinelander school district.  His decision was reportedly based on concerns raised by parents and others about the collateral consequences of a criminal record.  In a joint press release, school officials and the local sheriff noted that felony charges could have limited students’ future employment prospects:

Although Wisconsin law does consider incidents such as this as felony offenses, and it does not have disciplinary alternatives for such offense, criminal charges were not filed against the students involved, which could be detrimental to the future of the students and, in turn, could be harmful to our community as these students will not be allowed to enter certain occupations

Under Wisconsin law, anyone convicted of a felony, no matter how minor, is permanently barred from obtaining over 100 professional licenses, and subject to many other adverse effects that may last a lifetime.

Instead of charging the students criminally, the school district is bringing in a Wisconsin Department of Justice special agent to give presentations to the students and parents about the seriousness of taking inappropriate photographs and distributing them on social media. Ten of the forty students who sexted on school grounds got one-day suspensions, and students who behavior violated the school athletic code were suspended for certain events.

The editor wonders whether such a resolution would be likely in an urban school setting.

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