When does the Second Amendment protect a convicted person’s right to bear arms?

Earlier this month eight judges of the Court of Appeals for the Third Circuit blocked enforcement of a federal gun control law in two cases involving Pennsylvanians convicted of non-violent misdemeanors many years ago, invoking the Second Amendment’s right to bear arms.  The appeals court affirmed lower court decisions upholding the constitutional right of Daniel Binderup and Julio Suarez to possess firearms despite the fact that they are barred by federal statute from doing so.  Seven other judges of the appeals court thought the Second Amendment should never be applied on a case-by-case basis to convicted individuals, and proposed that the federal statutory bar should determine the constitutional issue.  The 174-page appellate decision in Binderup v. Holder has been widely reported but only in the most general terms, and not always entirely accurately. Other as-applied Second Amendment challenges to firearms dispossession statutes are percolating through the courts.  For example, Hamilton v. Palozzi will be argued next month in the Fourth Circuit, offering another opportunity for a court to hold that people convicted of non-violent crimes should not lose their firearms rights, there under a state dispossession statute rather than a federal one.  Because the constitutional issues may shortly be before the Supreme Court for resolution, it […]

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Felony Disenfranchisement: Setting the Record Straighter

Recently, a woman standing outside of a Berkeley grocery store asked if I wanted to register to vote. I asked her, “Can I vote if I’m on probation?” She looked at me with horror, gripped her clipboard, and physically recoiled from me and the cantaloupe I was holding. Once she regained some composure, she sincerely, confidently, and erroneously informed me that California’s laws prohibit voting while on probation. That encounter inspired me to draft these goals for all of the voter registration advocates (including me!) working the sidewalks this election season: 1: Practice not physically recoiling in horror from people we encounter in life. 2: Learn the voting laws in our jurisdictions to avoid disenfranchisement through disinformation. Each state has its own laws about voting following a felony conviction.  Two states never disenfranchise voters following conviction. (Hey, Maine! Hey, Vermont!) Some states permanently terminate the voting rights of outrageous numbers of its citizens: Florida’s draconian voting laws disenfranchise 10% of its total population. In 2000, Florida disenfranchised 600,000 citizens with felony convictions. That same year, its presidential race was decided by 537 votes.

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Indiana courts interpret new expungement law

On September 15, 2016, the Indiana Court of Appeals reversed a lower court’s denial of expungement to a woman convicted 13 years before of forgery and drug-dealing, holding that the court abused its discretion in denying relief where the case fully met the statutory standards. The decision provides a window into how one of the Nation’s most expansive new expungement laws is being interpreted and enforced by the courts of the state. Judging by this decision, the approach to restoration of rights in this otherwise-conservative state remains encouraging. Here is Olivia Covington’s article from the Indiana Lawyer reporting on the decision, with a link to its full text.

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SUNY bans the box on admissions application

On September 14, the Board of Trustees of the State University of New York (SUNY), the nation’s largest comprehensive university system, voted to ban the box in its admissions process.  It is the first university system in the country to reverse its decision to engage in criminal history screening and remove the question from its admissions application. The resolution laying out the policy change references the advocacy of the Education From the Inside Out (EIO) Coalition, including a 2015 case study of SUNY conducted by the Center for Community Alternatives, “Boxed Out: Criminal History Screening and College Application Attrition.”  That study found that about two-thirds of the nearly 3,000 SUNY applicants who disclose a felony conviction each year do not complete the application process (compared to only 21 percent of the overall pool of applicants) and thus are never considered for admission.  It concluded that this is the result of the daunting – and sometimes impossible – supplemental process triggered by that disclosure as well as the stigmatizing nature of the inquiry itself.

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When collateral consequences drive the sentence: The David Becker case

In the wake of the Brock Turner case, a new controversy was ignited in Massachusetts last month when 18-year-old David Becker, a white college-bound athlete, received two years’ probation after pleading guilty to indecent assault of an unconscious woman at a house party.  As in the Turner case, many are outraged by a penalty they regard as too lenient and the result of white privilege.  However, any perceived injustice in the Becker case may be less about an abuse of judicial discretion than about the limited ability of judges to mitigate collateral consequences. Critics of the decision may be even more concerned to learn that David Becker was not actually convicted of a crime.  Instead, District Court Judge Thomas Estes accepted Becker’s guilty plea and ordered a “continuance without a finding” (known as a CWOF) for two years while Becker serves a term of probation.  If Becker completes the conditions of probation successfully, the charges against him will be dismissed and the record will be eligible for sealing. The fact that Becker was not convicted is significant because it allows him to avoid both registering as a sex offender and the numerous collateral consequences that would come with having a criminal record.

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