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.

“The Evolution of a Prison Reformer”

On November 10, The Crime Report posted a profile of CCRC Board member Glenn Martin and the organization he founded, Just Leadership USA.  Just Leadership is dedicated to cutting the US prison population in half by 2030 and to training formerly incarcerated individuals to become leaders in promoting criminal justice reform.  Martin himself spent six years in the New York prison system, and later served for more than a decade in key positions at The Fortune Society and Legal Action Center.

The profile describes Martin’s participation last October in an unprecedented meeting between Obama Administration officials and leaders of the community of formerly incarcerated individuals, organized by the Attorney General Office’s Interagency Reentry Council.  The meeting focused on sentencing reform, but it presented an unusual opportunity to challenge some stereotypes about who should be at the table when reform is discussed.

At its core, Martin said, Just Leadership challenges some people’s broad assumption that formerly incarcerated people “can’t read or write” or smartly weigh in on the socially and emotionally tangled issues of crime, courts and corrections.

For the most part, the individuals leading that discussion tend not to have been imprisoned. Although many of them play significant roles in the courts, corrections and policing, some harbor ideals and opinions that are not always grounded in fact, Martin argues.

“You don’t achieve a moral argument for reform if you do what [so-called] progressives have been doing for years, serving up the ‘perfect prisoner’ who is the first-time, non-violent drug offender . . . .  That person . . . actually doesn’t go to prison. I’ve never met him. That’s the person who went home from the courthouse. By the time [most] people end up in prison, they have multiple convictions.”

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The Collateral Consequences Resource Center Goes Live!

The Collateral Consequences Resource Center website launches on Tuesday, November 18, 2014.  We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.

ccrc inkscapelogostackedThe legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects. The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation. Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served.  Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind. Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention. People with a record are organizing to promote change.

The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions. The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: Contact Us.

 

“Second Chances for Teen Offenders”

This New York Times editorial urges states to seal or expunge juvenile records “so that young offenders are not permanently impaired by their youthful transgressions.”  It describes a new study from the Juvenile Law Center that concludes “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to [juvenile] records.”

The first juvenile courts were established more than a century ago on the principle that children deserve special care under the law because they are vulnerable, because their transgressions tend to be nonviolent and because they can be expected, on the whole, to outgrow their youthful misbehavior.

These presumptions are borne out by data showing that 95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood. But because some juvenile court records remain open to the public when they should have been sealed or expunged, these young people can be denied jobs, housing and even admission to college.

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North Carolina offers detailed on-line guide to relief from a criminal conviction

We’ve just learned that the School of Government at the University of North Carolina has produced a detailed and well-organized online guide to obtaining relief from a North Carolina criminal conviction. You can view the guide here.  The guide explains in one place the various mechanisms available in North Carolina for obtaining relief from collateral consequences, including expunctions, judicial certificates of relief, and other procedures.

The guide supplements the School’s Collateral Consequences Assessment Tool, C-CAT, an online tool enabling users to identify the potential consequences of a criminal conviction in North Carolina.  C-CAT is user-friendly and has been kept up to date with new laws enacted since its launch two years ago.

The relief guide is organized by the type of relief being sought and includes tables breaking down the specific requirements for relief. It describes special relief provisions for sex offender registration and firearms dispossession, as well as for drug crimes and juvenile adjudications.  Features of the online guide include keyword searching, live links to internal and external cross-references such as statutes and forms, cases and opinions, and periodic updates. The guide was prepared by John Rubin, Albert Coates Professor of Public Law and Government.

This guide is the most detailed and user-friendly one we have seen, and should be a model for other jurisdictions.

Civil rights lawsuit filed against rental complex for excluding people with a criminal record

The Fortune Society has charged a Queens landlord with civil rights violations for refusing to rent to people with a criminal record. From the New York Times report on the lawsuit filed in federal district court on October 30:

The lawsuit was brought against the owners and manager of the Sand Castle, a rental complex in Far Rockaway, Queens, with more than 900 apartments. The suit is one of the latest efforts in a nationwide push to make it easier to integrate people emerging from prisons back into their communities.

Concern over legal restrictions that hinder former prisoners’ efforts to find jobs and homes, long voiced by advocates of criminal justice reform, has taken on a broader urgency in recent years. Faced with stark fiscal pressures and rising criticism, many state governments have been rethinking practices that led to record levels of incarceration. Nationwide, about 700,000 people a year are currently being released from prison
…

Bars against former offenders in housing are said to be common around the country, although some landlords apply them only partially — barring sex offenders or arsonists, for example, or allowing those convicted of misdemeanors but not felons. The ability of landlords to easily look up criminal backgrounds on the Internet is believed to have increased the practice.

The Fortune Society’s press release on the suit can be found here.

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