New collection of research on sex offense registration

Cambridge University Press has just published a new book, edited by Professors Wayne A. Logan and J.J. Prescott, containing chapters from the nation’s leading social science researchers on the many important empirical questions surrounding sex offense registration and community notification (SORN).  Since SORN’s origin in the early 1990s, basic questions have existed regarding its effects, including whether it actually achieves its intended purpose of reducing sexual offending.

SORN surely numbers among the most significant social control methods of the past several decades.  Although the Supreme Court in 2003 rejected two constitutional challenges to SORN laws (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe), of late courts, including the Sixth Circuit Court of Appeals (Does v. Snyder, 2016), have cast a more critical eye, invalidating new generation SORN laws that have become more onerous and expansive in their reach.

An updated review of caselaw from Professor Logan on SORN and other collateral consequences triggered primarily by sex offenses will be included in the forthcoming fourth edition of Love, Roberts & Logan, Collateral Consequences of Arrest & Conviction: Law Policy & Practice (West/NACDL, 4th ed. 2021). Also, as readers might be aware, the American Law Institute, as part of its overhaul of the Model Penal Code’s sex offense-related provisions, has tentatively approved a slate of reforms advocating a vastly reduced approach to registration and discontinuation of community notification. (We plan a post about the MPC’s important new model in the near future.)

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Oregon’s expungement statute gets a much-needed overhaul

– Following George Floyd’s murder, NIKE and Metropolitan Public Defender, Oregon’s largest trial-level public defense service provider, became unlikely partners to improve Oregon’s expungement statute.

Oregon has allowed expungement of certain criminal records since 1972, but the law and process are so complicated and costly that only 5.5% of eligible residents ultimately obtain relief.  The statute is replete with exceptions, convictions block other convictions and non-convictions, the least serious convictions have a lengthy “look back” period of conviction-free conduct that regularly results in a 10-year waiting period, and non-person class B felonies have the longest waiting period in the nation (20 years). Even non-convictions are subject to the same 10-year look-back period as convictions, plus an additional three-year period of no other arrests, dismissals or acquittals.

The impact of Oregon’s dysfunctional system is felt most severely by its BIPOC community who are more likely to be arrested, charged and convicted.  Black Oregonians are almost four times as likely to have a criminal record as their white counterparts.  See Paperprisons.org.

Metropolitan Public Defender and NIKE’s pro bono group, frustrated by the complex law and process, were inspired by the Black Lives Matter protests following George Floyd’s murder.  They challenged themselves to create tangible change and co-wrote the proposal that became Senate Bill 397, with input from CCRC. Collaboration with prosecutors led to bipartisan support in the Oregon legislature (Senate 24-5, House 57-1) for the bill, which Governor Kate Brown is expected to sign. It will be effective January 1, 2022.

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Study reveals potential for racial bias in presidential pardon process

Last week the RAND Corporation published its long-awaited Statistical Analysis of Presidential Pardons, commissioned in 2012 by the Bureau of Justice Statistics to determine whether the Justice Department process for deciding who to recommend for a presidential pardon is tainted with “systematic” racial bias. The RAND study appears to have been a direct response to an investigative report published jointly in December 2011 by ProPublica and the Washington Post, which concluded based on an examination of pardon cases granted and denied during the administration of George W. Bush, that race was “one of the strongest predictors of a pardon.”

Specifically, the ProPublica study concluded that “White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities” while “Blacks have had the poorest chance” of receiving a pardon.

In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.)  At the same time, there was also “no question that non-Hispanic white petitioners as a group were more likely to receive a pardon than did black petitioners.”

The apparent contradiction between these two statements can be explained by the fact that white applicants were statistically more likely to satisfy the formal standards that apply to OPA decisions about which cases to recommend for pardon, suggesting that either the formal standards need revision or the pool of applicants needs to be expanded, or both.

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New Jersey puts “fair chance housing” on the national agenda

People with a record frequently experience challenges in obtaining or maintaining housing. For those who have been incarcerated, on supervision, charged, and/or arrested, the background check for rental applications can be a persistent obstacle. Lack of stable housing is a major roadblock to successful reintegration into the community or the pursuit of social and economic opportunities. It is therefore encouraging that states have begun to enact laws limiting record-based disqualifications in housing decisions.

On June 18, New Jersey Governor Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances. The NAACP New Jersey State Conference, Latino Action Network, Fair Share Housing Center, and New Jersey Religious Action Center of Reform Judaism led organizational advocacy for the measure. Senator Troy Singleton, one of the bill’s primary sponsors, cited the “staggering amount of data on the national level that shows securing housing is one of the key barriers to reducing recidivism,” according to the New York Times. “This measure will allow those who have paid their debt to society to move forward with their lives in a productive manner.” Another sponsor, Assemblyman Benjie Wimberly, noted that “We’re fighting generational poverty, homelessness, and hopelessness through social justice reform measures such as this one.”

With New Jersey’s legislation—following on the heels of laws enacted in 2019 in Colorado, Illinois, and New York, legislation in D.C. in 2017, and a slew of local ordinances since 2016— “fair chance housing” has arrived on the national reintegration agenda. While many states have adopted reforms that limit the use of criminal records in employment and occupational licensing, until these recent developments housing does not appear to have been a priority for lawmakers, at least at the state level.

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New Mexico a new leader in criminal record reforms

This year, New Mexico enacted three significant laws restoring rights and opportunities to people with a criminal record, continuing a recent trend of major reforms in this area. The three measures involve adopting most of the provisions of the Uniform Collateral Consequences of Conviction Act, authorizing automatic expungement for a broad range of marijuana offenses as part of legalization, and expanding existing law regulating public employment and licensure to prohibit consideration of many types of convictions. A fourth new law significantly limits burdens imposed by court debt. These developments follow 2019 reforms introducing expungement into the state’s legal system for the very first time—through a comprehensive system of petition-based relief for most types of criminal records—and adopting a private sector ban-the-box law.

For these 2019 reforms, New Mexico earned an “honorable mention” for a productive legislative season in our reintegration report card for that year. This year’s noteworthy follow-up measures, summarized below, make New Mexico a contender for CCRC’s “reintegration champion” award in 2021.

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“The Mark of Policing: Race and Criminal Records”

This is the title of an important symposium piece by Eisha Jain published by the Stanford Law Review, in which she urges that “racial reckoning in policing” include consideration of the negative credentialing effect of arrest records. Using the sociological framework of “marking,” Jain shows how unjustified arrests “both magnify and conceal race-based discrimination.” She argues that “Reckoning with race in the criminal justice system requires recognizing that the problem is not just the police: It is with a legal regime that entrenches racial subordination through criminal records.”

The good news is that many of the criminal record reforms of the last several years provide for automatic or expedited expungement or sealing of non-conviction records. (See our 50-state chart on “Process for expunging or sealing non-convictions” and our Model Law on Non-Conviction Records recommending automatic expungement.) But the bad news is that even the laws streamlining the sealing of non-conviction records in two dozen states frequently fail to extend to records of uncharged arrests, which can linger in police files and repositories long after court records have been sealed. In the hands of police agencies, they may lead to further policing abuses. Disseminated through background checks and the internet they limit employment, housing, and other opportunities. When considering how to neutralize the effect of non-conviction records, jurisdictions must concern themselves with this neglected source of racial inequity.

Here is the abstract of Professor Jain’s article:

This Essay argues that racial reckoning in policing should include a racial reckoning in the use of criminal records. Arrests alone—regardless of whether they result in convictions—create criminal records. Yet because the literature on criminal records most often focuses on prisoner reentry and on the consequences of criminal conviction, it is easy to overlook the connections between policing decisions and collateral consequences. This Essay employs the sociological framework of marking to show how criminal records entrench racial inequality stemming from policing. The marking framework recognizes that the government creates a negative credential every time it creates a record of arrest as well as conviction. Such records, in turn, trigger cascading consequences for employment, housing, immigration, and a host of other areas. The credentialing process matters because it enables and conceals race-based discrimination, and because a focus on the formal sentence often renders this discrimination invisible. This Essay considers how adopting a credentialing framework offers a way to surface, and ultimately to address, how race-based policing leaves lasting marks on over-policed communities.

See the full essay here.

New occupational licensing laws in 2021

In the first five months of 2021, seven states and the District of Columbia enacted nine separate laws improving opportunities for people with a criminal record to obtain occupational licenses. This continues a four-year trend begun in 2017 that has seen 33 states and the District of Columbia enact 54 separate laws regulating consideration of criminal record in the licensing process.

Our report on new legislation in 2020 noted that “[o]f all the criminal record reforms enacted during this modern reintegration reform era, no other approaches the regulation of occupational licensing agencies in terms of breadth, consistency, and likely efficacy.” Laws enacted during this four-year period have “transformed the licensing policy landscape across the Nation and opened opportunities in regulated professions for many thousands of people.” The only period of law reform that rivals the present one came during the early 1970s, when many of the laws now being revised and extended were first enacted. The effectiveness of advocacy efforts by the Institute for Justice and National Employment Law Project in influencing this trend cannot be overstated.

So far during 2021, the U.S. jurisdiction to have enacted the most ambitious and comprehensive licensing scheme is the District of Columbia, and its new law (described in detail below) is one of the most progressive in the nation. New Jersey, New Mexico and Washington had not previously legislated in this area for many years, and all three extended and improved laws first enacted in the 1970s. Arizona, Georgia, Ohio, and Tennessee extended recently enacted laws, with Arizona legislating for the fourth time in this area in as many years!

The nine new laws are described below, and have been added to the state profiles and 50-state charts of the Restoration of Rights Project.

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“Tribal Pardons: A Comparative Study”

This is the title of a fascinating new working paper by Andrew Novak, Assistant Professor of Criminology, Law and Society at George Mason University, about a little-studied issue: collateral consequences of tribal convictions and how they are mitigated or avoided.  This is an important topic not currently addressed in our national resources on restoration of rights and record relief.  Here is the abstract:

This paper surveys American Indian tribal justice systems to assess whether collateral consequences attach to convictions and whether a pardon or expungement process exists to remove tribal convictions. Tribal criminal jurisdiction is often limited to lesser crimes and only those occurring on a reservation by members of the tribe; with exceptions, other cases are transferred to U.S. state or federal court. The framework of the tribal pardon power varies widely across jurisdictions: it may be exercised by a tribal executive, a tribal legislature or council, a specially appointed pardons board or committee, a vote of the tribal membership, or some combination of the above. Some jurisdictions instead have a traditional peacemaking, forgiveness, or reconciliation ritual process in lieu of a true pardon or expungement process.

Many Indian tribes impose collateral consequences for convictions both in tribal court and in state or federal court. Most commonly, these consequences restrict tribal membership and rights, including the right to vote in tribal elections or hold tribal office, but they may extend to housing, gaming licenses, tribal employment, and other areas. Many tribal jurisdictions do not have a pardon or expungement process, despite having collateral consequences attach to convictions. Several tribal courts have considered whether their tribal constitutions create an implied pardon power where one is not specifically provided for in tribal law. As a normative matter, this paper takes the position that tribal jurisdictions should have a pardon or expungement process (or its equivalent in indigenous law) where collateral consequences attach to conviction.

The draft of this working paper is available here.

People with records excluded from growing occupations

People with arrest and conviction records continue to demand that employers and policymakers remove unfair barriers to work. Their demands have spurred much-needed legislative change, including “fair chance licensing” laws that reform restrictions on working in occupations requiring a government license or certification. Such changes are crucial to achieving racial equity. Decades of biased policing and charging have left Black and Latinx communities with disproportionately high rates of records, thus compounding the economic disinvestment and other disadvantages resulting from structural racism.

In support of fair chance licensing advocacy efforts, the National Employment Law Project (NELP) recently developed a set of short fact sheets evaluating the legal barriers that face people with records who desire to work in growing occupations in eight states–Colorado, Delaware, Indiana, Louisiana, Michigan, Ohio, Oregon, and Tennessee. Given the confusing tangle of statutory and regulatory restrictions in most states, focusing on growing professions in high-demand industries may prove to be an important strategy for state advocates who seek to maximize job opportunities for people with records.

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