Misdemeanants win challenge to federal firearms law

The Third Circuit has held that the federal bar to gun possession by convicted individuals cannot constitutionally be applied to two misdemeanants convicted years ago who were not sentenced to prison.  In a fractured opinion, the Third Circuit sitting en banc ruled that the two challengers never lost their Second Amendment rights, and that the government offered no persuasive justification for depriving them of the right to bear arms.  Five concurring judges thought the ruling too narrow, and would have limited this collateral consequence to individuals posing a public safety risk.  Seven judges would not allow any “as applied” Second Amendment challenges to the federal bar to gun possession by convicted individuals.

We plan to post analyses of the opinion in coming days.  In the meantime, here is Gene Volokh’s analysis from the Washington Post:

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Michigan sex offender registration amendments held unconstitutional

A federal appeals court has concluded that Michigan’s amendments to its Sex Offender Registration Act (SORA) “impose[] punishment” and thus may not constitutionally be applied retroactively.  See Does v. Snyder, No. 15-1536 (6th Cir. Aug. 25, 2016).  Here is the concluding analysis from the Sixth Circuit’s unanimous panel decision reaching this result:

So, is SORA’s actual effect punitive?  Many states confronting similar laws have said “yes.”  See, e.g., Doe v. State, 111 A.3d 1077, 1100 (N.H. 2015); State v. Letalien, 985 A.2d 4, 26 (Me. 2009); Starkey v. Oklahoma Dep’t of Corr., 305 P.3d 1004 (Okla. 2013); Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009); Doe v. State, 189 P.3d 999, 1017 (Alaska 2008).  And we agree.  In reaching this conclusion, we are mindful that [consistent with the Supreme Court’s holding in Smith v. Doe, 538 U.S. 84, 92 (2003)] states are free to pass retroactive sex-offender registry laws and that those challenging an ostensibly non-punitive civil law must show by the “clearest proof” that the statute in fact inflicts punishment.  But difficult is not the same as impossible. Nor should Smith be understood as writing a blank check to states to do whatever they please in this arena.

A regulatory regime that severely restricts where people can live, work, and “loiter,” that categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, and that requires time-consuming and cumbersome in-person reporting, all supported by — at best — scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe, is something altogether different from and more troubling than Alaska’s first-generation registry law.  SORA brands registrants as moral lepers solely on the basis of a prior conviction.  It consigns them to years, if not a lifetime, of existence on the margins, not only of society, but often, as the record in this case makes painfully evident, from their own families, with whom, due to school zone restrictions, they may not even live.  It directly regulates where registrants may go in their daily lives and compels them to interrupt those lives with great frequency in order to appear in person before law enforcement to report even minor changes to their information.

We conclude that Michigan’s SORA imposes punishment.  And while many (certainly not all) sex offenses involve abominable, almost unspeakable, conduct that deserves severe legal penalties, punishment may never be retroactively imposed or increased.  Indeed, the fact that sex offenders are so widely feared and disdained by the general public implicates the core countermajoritarian principle embodied in the Ex Post Facto clause.  As the founders rightly perceived, as dangerous as it may be not to punish someone, it is far more dangerous to permit the government under guise of civil regulation to punish people without prior notice.  Such lawmaking has “been, in all ages, [a] favorite and most formidable instrument[] of tyranny.” The Federalist No. 84, supraat 444 (Alexander Hamilton).  It is, as Justice Chase argued, incompatible with both the words of the Constitution and the underlying first principles of “our free republican governments.” Calder, 3 U.S. at 388–89;accord The Federalist No. 44, supra at 232 (James Madison) (“[E]x post facto laws . . . are contrary to the first principles of the social compact, and to every principle of sound legislation.”). The retroactive application of SORA’s 2006 and 2011 amendments to Plaintiffs is unconstitutional, and it must therefore cease.

 

Judge Gleeson to speak about collateral consequences

Capitalizing on the growing interest in the employment discrimination faced by people with a criminal record, Cornell University’s ILR School will host a program next month featuring Judge John Gleeson on “The Role of Courts in Managing Collateral Consequences.”  Details of the program, which will take place in Manhattan on September 29, are here.  Last year, Judge Gleeson expunged the conviction of a woman he had sentenced 13 years before, and later issued a “federal certificate of rehabilitation” to one of the woman’s codefendants. While the 2nd Circuit recently reversed Judge Gleeson’s expungement order, the government did not appeal his certificate order.

Participating with Judge Gleeson on the Cornell program are New York Supreme Court Justice Matthew D’Emic, who recently presided over a mass certificate ceremony in Brooklyn; and Michael Pope, Director of Legal Services for Youth Represent, who last month won a significant victory for a woman whose shop-lifting conviction had resulted in her rejection as a school bus attendant in New York City.  Ted Potrikus, President and CEO of the Retail Council of New York State, and Margaret Love, Executive Director of the CCRC, will also participate.  Registration is now open for the program, which carries CLE credit. Read more

“Racial profiling in hiring: A critique of new ban-the-box studies”

In June we covered two recent studies that concluded ban-the-box policies tend to decrease minority hiring because some employers use race as a proxy for criminal history.  In other words, in the absence of information about applicants’ criminal history, some employers assume that minority applicants have a record and exclude them on this assumption.  The result is that ban-the-box policies increase opportunities for whites with a criminal record but decrease them overall for minorities, and thus encourage unlawful discrimination.  Some observers, including one of the study authors, advocated for the repeal of ban-the-box policies based on those conclusions.  Last week, the National Employment Law Project (NELP) published a critique of those studies, pointing out that any adverse effect on racial minorities is ultimately the product of unlawful discrimination barred by Title VII of the Civil Rights Act of 1964, not banning the box.  In NELP’s view, the solution is “a robust reform agenda that creates jobs for people with records and dismantles racism in the hiring process, not [rolling] back the clock on ban-the-box.”  We republish the summary and introduction of NELP’s critique below.  

 

Two recent studies claim that “ban the box” policies enacted around the country detrimentally affect the employment of young men of color who do not have a conviction record.  One of the authors has boldly argued that the policy should be abandoned outright because it “does more harm than good.” It’s the wrong conclusion.  The nation cannot afford to turn back the clock on a decade of reform that has created significant job opportunities for people with records.  These studies require exacting scrutiny to ensure that they are not irresponsibly seized upon at a critical time when the nation is being challenged to confront its painful legacy of structural discrimination and criminalization of people of color.

Our review of the studies leads us to these top-line conclusions: (1) The core problem raised by the studies is not ban-the-box but entrenched racism in the hiring process, which manifests as racial profiling of African Americans as “criminals.”  (2) Ban-the-box is working, both by increasing employment opportunities for people with records and by changing employer attitudes toward hiring people with records.  (3) When closely scrutinized, the new studies do not support the conclusion that ban-the-box policies are responsible for the depressed hiring of African Americans.  (4) The studies highlight the need for a more robust policy response to both boost job opportunities for people with records and tackle race discrimination in the hiring process—not a repeal of ban-the-box laws.

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New reports document federal progress on collateral consequences

The Presidential Memorandum that formally established the Reentry Council in April 2016 mandated a report documenting the Council’s accomplishments to date and plans moving forward.  The resulting report, The Federal Interagency Reentry Council: A Record of Progress and a Roadmap for the Future, was issued today.

Also today the White House issued a fact sheet with new commitments to the Fair Chance Business Pledge.

Finally, the Justice Department released a National Reentry Week After Action Report. 

We will be taking a close look at these reports on the federal government’s recent efforts to address collateral consequences, and expect to post the results of our review shortly.