Law firm steps up to aid reentry

Recently I was speaking with Matt Benjamin, a lawyer at Gibson, Dunn & Crutcher LLP in New York, who told me about a very important pro bono effort that he and his colleagues at the firm launched two years ago to serve clients in the “Alternatives to Incarceration” programs of the U.S. District Court for the Eastern District of New York.  While the clients are generally represented in their criminal cases by public defenders, they frequently need help with a variety of civil issues, from employment and housing to immigration and family law issues.

Because I think this path-breaking effort should serve as a model for other law firms and law schools around the country — just as the Eastern District’s ATI programs should serve as a model for other federal courts — I wanted to provide more information about it here.

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Prez promises to catch up on pardons — but he’s far behind

We have wondered whether President Obama would ever turn his attention to what has become the red-headed stepchild of the clemency caseload: full pardons to restore rights and status after service of sentence.  To date President Obama has focused on commuting prison sentences, and has issued fewer pardons than any full-term president since the Civil War.  It appears that the time may be at hand.

The Politico reported on Thursday that at a press conference the day after his most recent batch of sentence commutations, President Obama said he intended to grant more full pardons before the end of his term – a lot more.

At a news conference at the Pentagon on Thursday, a reporter [Greg Korte of USA Today] noted that Obama has been the stingiest two-term president on forgiveness since John Adams.  Obama acknowledged that his administration has “focused more on commutations than we have on pardons.” “I would argue,” he continued, “that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.”

The President also indicated that he did not intend to change his pardoning practices at the end of his term: “The process that I’ve put in place is not going to vary depending on how close I get to the election.”

President Obama will no doubt grant more full pardons before the end of his term, in addition to more commutations.  But it will be a tall order for him to match his predecessors even “roughly” in absolute number of pardons.  For example, George W. Bush granted 189 pardons, Bill Clinton granted 396, and Ronald Reagan granted 393.  Jimmy Carter and Gerald Ford granted 593 and 382 full pardons, respectively. By contrast, after seven and a half years Obama has granted a total of only 66 full pardons (not counting the four pre-conviction pardons granted to Iranians prior in last year’s foreign policy “swap”).  Only George H.W. Bush had issued fewer grants nearing the end of his tenure — and to be fair he served only one term and received far fewer applications.

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New era for expungement reform? Too soon to tell.

A new article in the Harvard Law & Policy Review evaluates some of the recent legislative efforts to deliver relief from the burden of collateral consequences through new or expanded expungement laws.  In “A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels,” Brian Murray argues that many of the newer record-closing laws are far too modest in scope and effect to have much of an impact on the problem of reintegration, citing Louisiana and Maryland enactments as examples of relief that is both too little and too late.  He admires Indiana’s broad new expungement scheme, which limits use of records as well as access to them, regarding it (as do we) as an enlightened exception to a general legislative aversion to risk.  He considers recent legislation in Minnesota to fall into a middle category — and we could add Arkansas as another state to have recently augmented and clarified older record-closing laws.  Our round-up of new expungement laws enacted just this year finds very little consistency from state to state, with Kentucky, Tennessee, Missouri and New Jersey all experimenting with different approaches.

Murray appreciates the need for a multifaceted approach to the problem of criminal records, and recognizes the doctrinal and practical shortcomings of a reform agenda that depends primarily on concealment.  His bottom line, with which we agree, is that “[s]kepticism regarding the benefits of expungement in the information age, coupled with the incremental nature of legislative reform, leads to the conclusion that expungement law must continue to develop as one piece in a larger puzzle.”

 

New York City agency called on the carpet for employment discrimination

At least on paper, New York City has the strongest legal protections in the Nation for people with a criminal record, and for employers and others who are willing to give them a chance. The State’s vaunted certificates of relief remove mandatory legal disabilities and certify rehabilitation, and are available to any and all defendants.  Governor Cuomo has shown his interest in restoration of rights by adopting a broad reform agenda, and the City’s ban-the-box law is among the broadest in the Nation.  Both State and City have broad human rights laws intended to protect people with a criminal record from unwarranted discrimination.  But with all this web of beneficent laws and rules and policies, some City agencies apparently still have not gotten the word.

In a decision handed down on July 12, a New York judge chastised the City’s Department of Education for refusing to license a woman as a school bus attendant based solely on a 2010 conviction for petty larceny, an action for which he found no basis in fact or law. Read more

Federal sentencing and collateral consequences II

This piece follows up on the CCRC practice resource titled “Federal sentencing and collateral consequences,” available here.

 

Should federal courts be required to take collateral consequences into account when they impose a sentence – or should they at least be permitted to consider them?  Should courts also be authorized to provide federal defendants some relief from collateral consequences after their sentences have been served?   Some courts are already doing this without specific authorization, as was pointed out in a letter sent last week to the U.S. Sentencing Commission by one of its advisory committees, urging that the Commission take up the subject of collateral consequencdes as a priority for the coming year.

The Practitioners Advisory Group (PAG) urged the Commission to recognize collateral consequences as presenting issues of concern to federal courts for which it should provide some guidance:

The collateral consequences of conviction – specifically, the legal penalties and restrictions that take effect automatically without regard to whether they are included in the court’s judgment – can frequently be the most important aspect of punishment from a defendant’s perspective. In a number of recent cases, courts have has imposed a more lenient sentence in consideration of the severe collateral consequences the defendant would experience. In other cases, courts have sought creative ways to relieve defendants from the effect of collateral consequences that persist long after the sentence has been fully served. We briefly describe below the ways in which collateral consequences affect the work of sentencing courts. We urge the Commission to take this matter under advisement in the months ahead, looking toward a hearing in the spring.

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