Study: Texas diversion provides dramatic benefits for people facing their first felony (4/3/2025) - NOTE: In light of renewed interest in state legislatures in judicially-administered diversion and deferred adjudication programs, we are re-publishing our 2021 report on a remarkable study of deferred adjudication in Texas by researchers Michael Mueller-Smith and Kevin Schnepel. We noted at the time that "The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction. by Margaret Love and David Schlussel (Feb 23, 2021). Increased use of diversion is a key feature of America’s new age of criminal justice reform. Whether administered informally by prosecutors or under the auspices of courts, diversionary dispositions aim to resolve cases without a conviction—and in so doing, conserve scarce legal resources, provide supportive services, reduce recidivism, and provide defendants with a chance to avoid the lingering stigma of a conviction record. Despite the growing popularity of diversion in this country and around the world, there has been little empirical study of its impacts on future behavior. Until now. By conjecture, the opportunity to steer clear of a criminal conviction might affect future behavior in opposing ways. An optimist might expect that diversion would motivate a person to avoid returning to court in the future, while preserving the ability to hold lawful employment, especially in places where criminal background checks are used to screen applicants. A skeptic might argue that diversion represents a lesser punishment that could increase offending by reducing either a specific or general deterrence effect. Without research showing the likelihood of one or the other outcome, policymakers, prosecutors, and judges have had to operate on untested assumptions, hoping for the best. This vacuum has now been filled by a new study of Texas’ court-managed diversion program by two economists, which should be welcome news for the optimists. Michael Mueller-Smith and Kevin Schnepel (2020) use detailed administrative data from Harris County (which covers the Houston area) to estimate the first causal impacts of a diversion program available to a large fraction of felony defendants in the state. Texas’ “deferred adjudication community supervision” allows defendants to plead guilty but have entry of a conviction deferred during a period of community supervision, with the case dismissed without a conviction upon successful completion. The arrangement must be approved by the judge. This diversion program is comparable to numerous programs administered by prosecutors and judges across the U.S., Europe, and several other countries—although many programs do not necessarily require a guilty plea. At the same time, Texas law has broad eligibility for its program compared to many otherwise-comparable American programs, making deferred adjudication potentially available to all defendants except those charged with DUI-related offenses, repeat drug trafficking near a school, a range of repeat sex crimes, and murder. The Mueller-Smith and Schnepel study finds that defendants without a prior felony conviction who participated in Texas’ deferred adjudication program experienced an immediate and dramatic reduction in subsequent offending. The total number of future convictions fell by 75% over a 10-year follow-up period, compared to similarly situated defendants who did not receive diversion. The results also suggest large improvements in labor market outcomes, including a 50% increase in formal employment rates. For the cohort studied over the longest period, “these positive effects persisted and expanded even 20 years out,” leading the authors to conclude that “diversion, at least at the critical juncture of someone’s first felony charge, has the potential to fundamentally alter an individual’s trajectory in life.” The circumstances that produced the subject data are somewhat unique: To measure the causal impacts of diversion, the analysis leverages two sudden lasting shifts in the use of diversion options (one in September 1994, another in November 2007) that each approximate an experiment where the treatment is randomly assigned to eligible felony defendants. The research design focuses on first-time felony defendants who are charged in the months preceding or following these abrupt changes, subjecting them almost arbitrarily to dramatically different case dispositions. As the study notes, “the main difference from the defendant’s perspective was that before the cut-off one could avoid a felony conviction, whereas afterwards a felony conviction was non-negotiable.” Defendants who, by chance, ended up charged at the “wrong” time and received a formal felony conviction for their first offense, went on to receive 1.6 to 1.7 additional criminal convictions and 50% lower employment rates during a 10-year follow-up period relative to their diverted peers. Perhaps the study’s most remarkable finding is that those who are often considered the most over-policed—young Black men with one or more misdemeanor convictions—gained the most from diversion. The results indicate that intervening for such individuals at a critical moment (when charged with a first felony offense) could significantly improve their life course. Interviewed for this post, one of the study authors commented about its potential impact for criminal justice policymakers: Given the trajectory toward more leniency in the U.S. criminal justice system, the results suggest that increases in diversion options may lead to lower rates of reoffending and higher rates of rehabilitation in the coming years. While much has been written about what doesn’t work in criminal justice policy in the U.S., this study provides compelling evidence for a successful intervention that both improves defendant outcomes and saves public resources. Diversion can be implemented without significant investments or changes to current infrastructure, making it a potential solution for U.S. criminal justice reform. The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction. Citation: Michael Mueller-Smith and Kevin T. Schnepel, Diversion in the Criminal Justice System, The Review of Economic Studies 1-54 (2020), accessible at https://academic.oup.com/restud/advance-article-abstract/doi/10.1093/restud/rdaa030/5856753. Note: The co-authors thank Michael Mueller-Smith, Jordan Hyatt, and Emily Greberman for their assistance in helping us understand the technical aspects of the Harris County study.
A closer look at racial disparities in California’s automatic record clearing (9/19/2022) - Numerous studies have demonstrated how Black Americans are treated more harshly at every stage of the criminal legal system—from over-policing to overcharging to more punitive sentencing. New research from California shows how eligibility limitations on criminal record relief perpetuate racial disparities in the criminal justice system, and have a disproportionately adverse effect on Black Americans. The study, by Alyssa Mooney, Alissa Skog, and Amy Lerman, and published in Law & Society Review, examined recent legislative changes to criminal record relief laws in California, one of the first states to automate relief. The study assessed the equity of California’s existing automatic record relief laws by examining the share of people with criminal records who are presently eligible for automatic record clearing, and variations across racial and ethnic groups. The authors found that 20% of all those convicted of any offense between 2000 and 2016 were eligible for automatic relief. An additional 33% were eligible to petition the court for relief, and 47% were ineligible for any relief at all by virtue of the nature of their conviction or terms of their sentence. But the study also found eligibility was lowest among Black people, with only 15% qualifying for automatic relief, and 29% for petition-based relief. Meanwhile, 21% of White people with convictions qualify for automatic relief, and another 35% are eligible by petition. As in other states, the California legislature has limited the types of convictions that are eligible for record relief, generally excluding those who spent time in state prison for more serious felonies. Because of the state prison limitation, the study shows 30% of Black people in California will never get relief from their records, compared to 15% of White people and 19% of people with convictions overall. In addition, if all ineligible felony convictions are factored in, the ineligibility rate increases to 40% for Black people, 28% for White people and to 32% overall. (Incomplete sentences, pending charges, and variable waiting periods make it hard to calculate eligibility percentages exactly, while missing data creates another set of problems.) The study then considered how several hypothetical changes to current California law would affect racial equity in eligibility for record clearing. First, the authors examined the effect of incorporating convictions currently eligible only by petition into automatic relief. Then the study considered the effects of automatically granting record relief after seven years for convictions now ineligible for any relief. Finally, the study considered the result if both of these changes were enacted. The study found that making relief automatic in cases where it is now "discretionary" (i.e., petition-based) would increase eligibility from 15% to 44% of Black Californians and from 21% to 56% of White Californians—but this would double the racial disparity for automatic relief from 6% to 12%. Enacting a seven-year “sunset” rule (making relief automatic seven years after completion of sentence) for those currently excluded from any record-clearing relief would would reduce disparity slightly by increasing overall eligibility to 58% of Black Californians and 63% of White Californians. If both of these potential reforms were enacted, eligibility for automatic relief would increase to 64% of Black Californians and 70% of White Californians. While some racial disparity remains, it would be no greater than the differential under existing law — and, more significant, the absolute number of people who qualified for automatic record relief would greatly increase. The study’s authors suggest that other states that have automated some record relief likely have similar racially disparate outcomes because felony convictions are largely excluded from eligibility. The study also points out that California also has a particular challenge in effectuating its new provisions for automatic record clearing, since many county agencies do not report the outcomes of criminal cases to the California Department of Justice. Because the DOJ administers automatic record relief by sending lists of eligible cases to courts, people with convictions in counties that do not report disposition data will be left without the relief for which they are legally eligible. Since the initial publication of the study, the California legislature has passed a bill, SB 731, that would incorporate several of the authors’ proposed reforms, which Governor Newsom is expected to sign into law. Another enrolled bill, SB 1106, will make additional cases eligible by removing at least some outstanding court debt as a bar to relief. CCRC will publish a comprehensive review of that legislation when it becomes law. The study’s authors plan to revise their eligibility estimates this fall, based on the new legislation.
Racial disparity in clean slate record clearing? California responds (8/25/2022) - Reproduced below is a press release describing new research by three California scholars published in the Law & Society Review, based on California sentencing data, showing how eligibility criteria for automatic record clearing "can inadvertently perpetuate racial inequity within the criminal justice system." This conclusion seems to us unsurprising, and likely has broader national application for two interrelated reasons: Prosecution policies nationwide have tended to result in more Blacks than Whites being convicted of more serious felonies resulting in prison sentences, while eligibility for automatic record clearance has to date been authorized primarily for non-convictions and misdemeanors (see sections 2 and 3 from the 50-state charts at this link from our Restoration of Rights website: https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside-2/.) The authors recommend that "to reduce the racial gap in criminal records, a change in policy needs to happen to extend record clearance eligibility to a wider range of cases—for example, people with felonies or those sent to prison who are currently excluded." The California legislature seems to have anticipated the recommendations in this report, for on August 18 it enrolled and sent to Governor Newsom's desk a bill that would extend existing automatic record clearing authority to most felonies after four felony-free years, and for the first time to felony non-conviction records. See SB 731. This makes California's "clean slate" law by far the most extensive in the country. While California's broad automatic record-clearing measures may be a hard sell in many other states, hopefully the conclusions of the research will lead other states to take steps to reduce racial inequity in their record clearing laws. The research also points to the need to reexamine prosecution and sentencing policies, which are perhaps inevitably reflected in record clearance laws. All too often White defendants are offered community-based diversionary dispositions aimed at avoiding a conviction record, while Black defendants charged with similar conduct are convicted and sentenced to prison. See, e.g., J.J. Prescott, Benjamin Pyle, and Sonja B. Starr, Understanding Violent-Crime Recidivism, 95 Notre Dame Law Review 1643 (2020). Hopefully this research from California will prompt reconsideration of these front-end prosecution policies, even if reducing racial disparity in record clearing may remain for a time a lagging indicator. The Law & Society article is behind a paywall ($48 for a PDF download), but we expect to post a more extensive discussion of the research and its accompanying policy recommendations shortly. We will update the California profile from the Restoration of Rights Project when Governor Newsom signs the bill into law. AMHERST, Mass. - Although they are well-intentioned, eligibility criteria for recent automatic criminal record relief laws used around the country can inadvertently perpetuate racial inequity within the criminal justice system. The latest issue of the Law & Society Review features innovative research on criminal record relief reform through the publication of “Racial Equity in Eligibility for a Clean Slate Under Automatic Criminal Record Relief Laws” by California-based scholars Alyssa C. Mooney (University of California, San Francisco), Alissa Skog (University of California, Berkeley) and Amy E. Lerman (University of California, Berkeley). Their article sheds light on racial inequities in eligibility among current relief laws in California and identifies two policy amendments that would reduce the share of Black men in California with a conviction record from 22% to 9%. There is currently a 15 percentage point difference between the share of Black men in California who have a conviction record versus white men, and these policy changes would narrow the gap to seven percentage points. “One of the explicit aims of record clearance policies is to undo the lasting stigma of a criminal record, which has been disproportionately harmful to Black Americans,” said Professor Lerman. “In our study, we analyze how different record clearance policies would interact with patterns in criminal records that map on to race, to try to predict in advance whether efforts to remove criminal records could create unintended consequences that actually increase racial inequity.” States have recently started enacting automatic criminal record relief laws. These laws allow authorities to regularly review data systems to provide relief for eligible individuals with arrests that never led to convictions. This includes most misdemeanors and low-level felony convictions. They are designed to take the burden of the court petition process off the shoulders of the person with a record. However, Mooney, Skog and Lerman show how these relief laws can unintentionally maintain racial disparities in criminal records. The authors then suggest ways in which relief laws could instead maximize their potential to reverse these harms. They argue that automating the record clearing process alone is not enough and that in order to reduce the racial gap in criminal records, a change in policy needs to happen to extend record clearance eligibility to a wider range of cases—for example, people with felonies or those sent to prison who are currently excluded. The study could inform future policy efforts, potentially helping policymakers to avoid the unintended consequences that can result from even well-intentioned efforts at reform. “One of the most important aspects of our study is it provides an example of how we can use data to try to predict the consequences of policies for racial equity before we pass those policies and experience their potentially unintended negative consequences or how they inadvertently do harm,” said Lerman. To assess equity in eligibility for criminal record relief, the authors use criminal history data from the California Department of Justice, consisting of 2,246,101 people who were arrested in the years 2000-2016. The authors first assess the share of people who are eligible to clear every conviction on their record under current laws and then examine how this varies across racial and ethnic groups. Next, they evaluate how specific recommended changes to the current eligibility requirements and the implementation of adjusted criminal record relief laws could address these racial inequalities. The authors find that one in five people with convictions in California met criteria for full conviction relief under the state’s automatic relief laws. However, the share of Black Americans eligible for relief was lower than white Americans, reproducing racial disparities in criminal records. This disparity (or difference) resulted from a higher likelihood of felony convictions, and among those, a higher likelihood of cases that were not eligible under current laws, even if the sentence was complete. Hinging eligibility on criminal records produced by historical racial discrimination in policing and prosecution—such as the prison sentence exclusion—confers disproportionate benefits of automatic relief to white people and must be examined and justified as an exclusionary criterion. The article includes a discussion of how its findings can reveal the persistent role of race in criminal justice reform, even in cases where the explicit intent is to reduce the harms of mass incarceration. The adjusted reform measures proposed by the authors aim to widen the criteria for automatic relief. Through these recommendations, relief eligibility would factor in discretionary convictions and include a “seven-year sunset rule,” which would provide relief for any conviction seven years after the sentence is complete. “Black-white and Latino-white disparities would be cut approximately in half, but would persist at 4.0 and 0.5 percentage points, respectively, among all adults, and 6.8 and 1.1 among men,” explained the authors. “The persistent disparities in records of a criminal conviction when both hypothetical reforms were incorporated suggest that Black people are more likely to have charges pending and/or incomplete sentences on a conviction.” The discussion also flags the severity of missing data across counties, and the dangers that criminal records may persist in online databases. Each of these phenomena may affect a significant proportion of those with criminal records, further amplifying racial inequalities when it comes to getting a clean slate. “Under the new law, eligible cases will be granted automatic relief in the state’s database, yet our findings highlight that missing case information from counties is a huge challenge for determining eligibility,” Mooney explained. “There is a need for more work on how administrative data quality affects equitable policy change, and whether county resources for data systems determine local effects of state reforms.” “One perennial challenge is notifying individuals that their records are cleared,” added Skog. “It is incredibly onerous—and often not possible—to locate current contact information for all individuals who will benefit from relief. Plus, there are critical privacy concerns surrounding notification.” Volume 56, Issue 3 is available online here. It includes seven articles and two book reviews. To read this full LSR article, visit the Wiley Online Library here.
How Europe manages access to criminal records – a model for U.S. reformers (7/27/2022) - We are pleased to republish a book review by CCRC Executive Director Margaret Love of a collection of essays about how European countries manage access to criminal records. The philosophy and values underpinning the EU approach revealed in these essays are so different from our own that their product will make record reformers in the U.S. green with envy. For example, the review points out that one of the foundational premises of European systems of criminal records is that giving the public broad access would be “contrary to ‘fundamental’ considerations of privacy and human dignity protected by the European Convention on Human Rights, which implicitly limit loss of liberty and public stigmatization through disclosure of a past crime.” Accordingly, employers and other non-law enforcement entities can have access to criminal records only if their subject explicitly authorizes it, and even then a request will be permitted only in specified circumstances where a criminal record is deemed relevant. Individuals asked to produce their record may decide that the uncertainty of benefit is not worth the risk of exposure. In this fashion, individuals may take responsibility for achieving their own social redemption even if they lose an economic opportunity. Only a “dystopian account” of the Australian system of accessing criminal records will seem familiar to U.S. practitioners. Here is the review by CCRC’s Margaret Love, which originally appeared in Criminal Law and Criminal Justice Books: FUNDAMENTAL RIGHTS AND LEGAL CONSEQUENCES OF CRIMINAL CONVICTION Editors: Sonja Meijer, Harry Annison & Ailbhe O’Loughlin Publisher: Hart Publishing: 2019. 312 pages. Reviewer: Margaret Love ǀ June 2022 Scholars writing about the consequences of criminal conviction in the United States have generally paid little attention to analogous laws and policies in other countries. Even those critical of the ‘American Way of Punishment’ rarely bother to examine more enlightened practices from other countries with which we tend to compare ourselves. (A notable exception is the recent interest in studying prison conditions in some European countries for what they can teach U.S. corrections authorities about rehabilitating those serving prison sentences (see, e.g., Ahalt et al., 2020).) For more than a half century, there has only been one study comparing the so-called ‘collateral consequences’ of conviction in this country with those in other countries. Nora Demleitner’s admirable 2018 essay is the only serious comparative treatment of collateral consequences in America and Europe since Mirjan Damaska’s two-part article published in 1968 (Damaska, 1968; Damaska, 1968; Demleitner, 2018). Given the importance of this subject for criminal justice reform in the United States, scholars and advocates in this country ought to welcome the essays in this new volume by European scholars and practitioners, aptly described by its editors as “a significant and under-researched area of law and criminology” (p. 3). And yet some U.S. readers (including this reviewer) will find many of these essays hard going because the foundational premises of European legal systems are simply not replicated in our own. One of these premises, which is unquestioned (and usually unstated) in each of the essays in the volume, is that giving the public broad access to criminal records would be contrary to ‘fundamental’ considerations of privacy and human dignity protected by the European Convention on Human Rights, which implicitly limit loss of liberty and public stigmatization through disclosure of a past crime. Substantive concepts like utility and proportionality also constrain European lawmakers in authorizing access to records. Other individual rights, such as the right to work and to participate in civic affairs, are less universally protected in European constitutions but still have an outsize limiting influence on collateral consequences in many countries. As a result, American reformers looking for guidance and inspiration from the European experience must approach this book with humility and constrain their envy. The European emphasis on privacy and dignity explain why laws and policies focus on access to criminal records, as opposed to formal restrictions on employment, housing, and voting. Thus, we learn from these essays that, in many if not most European countries, specific legal limits on individual rights and opportunities are rarely imposed by law on a categorical basis (driver’s license suspensions are one exception), although restrictions on opportunities and benefits may be imposed by courts as part of an individual’s sentence. We also learn that most of what we call collateral consequences are administered by giving certain parties the right to require applicants to produce their criminal records, and to reject those whose record is considered disqualifying. In no case may anyone (other than law enforcement) access a record directly; they must ask its subject to produce it. Moreover, the record that an individual produces for an authorized individual will have been curated by public officials at the records repository so that it contains only information considered directly related to the opportunity or benefit on offer. This is critical: in most cases employers and other authorized persons will not see all of a person’s criminal record, but only those parts of it that are officially deemed relevant in the specific circumstances. Individuals asked to produce their record may decide that the uncertainty of benefit is not worth the risk of exposure. In this fashion, individuals may take responsibility for achieving their own social redemption even if they lose an economic opportunity. An overarching programmatic goal explains why criminal records are not easily accessible in European countries and are easily expunged: supporting the desistance process and recognizing desistance once achieved. Indeed, the law in some countries recognizes a “right to legal rehabilitation…underpinned by human dignity” (p. 11). Essays on the management of criminal records in Germany, Hungary, Switzerland, and Greece illustrate how these assumptions of reintegration and rehabilitation inform specific disclosure policies in these countries, and how restoration policies focus on an individual’s record of desistance rather than their risk of recidivism. By contrast, a “dystopian account” of Australia’s increasing reliance on preventive and data-driven policing, most notably in its immigration policies, should provide “a cautionary tale” for European lawmakers here and abroad who might be tempted to adopt features of that country’s “jurisprudence of risk” (p. 11). One would be forgiven for thinking that America’s approach to those with a criminal record has quite a bit in common with Australia’s. Indeed, Nora Demleitner could have been describing Australia’s philosophy when she noted that “punitiveness, attitudes of exclusion, and fear of the risk of reoffending lead to offenders virtually ‘exiting’ American society, often without hope of reentry from outside this virtual—and for immigrant offenders physical—border” (Demleitner, 2018, p. 488). England and other countries in the United Kingdom have taken a different path on disclosure of criminal records since enactment of its Landmark Rehabilitation of Offenders Act in 1974, gradually but systematically shifting the balance further away from individual rehabilitation and closer to protection of the public through broader disclosures. Still, even in the UK, criminal records are available only from a central state registry according to a three-tiered system of access and only when their subject authorizes disclosure to an authorized individual. While a system of ‘filtering’ allows for offenses to be gradually omitted from a person’s background over time, the regime’s original commitment to reintegration has been eroded over time for both adults and juveniles. Still, in contrast to records systems in the U.S., the UK has a single records system from which all authorized disclosures are made, so that it is exponentially easier to administer. In short, as described in this fascinating volume, European legal systems incorporate basic privacy limits on disclosure of criminal record information that advocates in the United States have found hard to secure against an unchecked public desire for information about others with whom they may interact, reinforced by our long history of demonizing people with a criminal record. The premium the European legal system places on individual privacy means that the government maintains strict controls over who is privy to criminal record information and under what circumstances, and rations access through a graduated system of disclosure depending upon demonstrated need. In America, the ‘right to be forgotten’ has never existed in legal or social principle and disappeared as a practical matter with the closing of the frontier. And our government has never stepped up to defend individuals’ privacy rights once they run afoul of the law. This may at last be changing, as American legislatures are at last recognizing the damage done to our social and economic fabric by creating such a large class of what Nora Demleitner first called “internal exiles” (Demleitner, 1999, p. 157). Reformers in this country may invoke the European experience as they advocate for limiting access to and use of criminal records in service to a shared ideal of rehabilitation. This volume will be an invaluable tool in this effort. References: Ahalt, Cyrus, Haney, Craig, Ekhaugen, Kim & Williams, Brie. 2020. “Role of a US–Norway Exchange in Placing Health and Well-Being at the Center of US Prison Reform.” American Journal of Public Health. 110(S1): S27–S29. Damaska, Mirjan R. 1968. “Adverse Legal Consequences of Conviction and their Removal: A Comparative Study (Part 1).” Journal of Criminal Law, Criminology & Political Science. 59(3): 347–60. Damaska, “Adverse Legal Consequences of Conviction and their Removal: A Comparative Study (Part 2).” Journal of Criminal Law, Criminology & Political Science. 59(4): 542–68. Demleitner, Nora V. 2018. Collateral Sanctions and American Exceptionalism. In Kevin R. Reitz (Ed.), American Exceptionalism in Crime and Punishment (pp. 487–526). Oxford University Press. Demleitner, “Preventing Internal Exile: The Need for Restrictions on Collateral Consequences.” Stanford Law & Policy Review. 11(1): 153–71. Margaret Love, Executive Director, Collateral Consequences Resource Center.
“Public opinion and the politics of collateral consequence policies” (1/6/2022) - The title of this post is the title of an intriguing new academic article by Travis Johnston and Kevin H. Wozniak of the University of Massachusetts, Boston. The two find "little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies." Here is the abstract: We analyze data from a national sample of the U.S. population to assess public support for policies that deny former offenders’ access to job training programs, food stamps, and public housing. We find that Americans generally oppose benefit restrictions, though support for these policies is higher among Republicans and people with higher levels of racial resentment. We also find that a legislator’s criminal justice reform positions generally do not significantly affect voters’ evaluation of him or her, and even voters with more punitive attitudes toward collateral consequence policies support legislators who advance particular kinds of reform proposals. These findings provide little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies. We discuss the implications of these findings for American and comparative studies of the politics of punishment. A link to the article is here.
“The Future of the President’s Pardon Power” (9/13/2021) - The Collateral Consequences Resource Center is pleased to announce a series of online panels on successive Tuesdays in September, starting on September 14, that will explore in depth the use of the pardon power by President Donald Trump, and how it both reflects recent trends in pardoning and is likely to influence pardoning in the future. The first panel, on September 14, will discuss Trump’s abandonment of the bureaucratic tradition in pardoning and what this reveals both about his concept of office and about the nature of the constitutional power. The second panel, on September 21, will consider whether Trump's pardons may prompt much-needed reforms in sentencing law and practice. The third panel, on September 28, will consider possible changes in how the pardon power is administered resulting from its idiosyncratic use by President Trump, and whether the Justice Department should remain responsible for advising the president in pardon matters. This series is jointly organized by CCRC, the Drug Enforcement and Policy Center at The Ohio State University Moritz College of Law, the Federal Sentencing Reporter, and the David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance at Villanova University Charles Widger School of Law. The panels are based on the essays in Volume 33, Issue 5 of the Federal Sentencing Reporter. Margaret Love, executive director of CCRC, curated and introduced the FSR essays, and recruited participants for the panels. Register for each panel here. PANEL 1: Donald Trump’s Theatre of Pardoning: What Did We Learn? September 14, 2021 | 12:30 – 2:00 p.m. EDT | Zoom Panelists: Frank Bowman, Floyd R. Gibson Missouri Endowed Professor of Law, University of Missouri School of Law Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School Amy Povah, founder, CAN-DO Justice through Clemency Kenneth Vogel, The New York Times Moderator: Margaret Love, executive director, Collateral Consequences Resource Center, former U.S. Pardon Attorney PANEL 2: Supplementing the Pardon Power: Second Looks and Second Chances Tuesday, September 21, 2021 | 12:30 – 2:00 p.m. EDT | Zoom Panelists: Jack Chin, Edward L. Barrett Jr. Chair of Law, Martin Luther King, Jr. Professor of Law, and Director of Clinical Legal Education, University of California, Davis, Law School John Gleeson, attorney and former United States District Judge of the United States District Court for the Eastern District of New York Judge Beverly Martin, U.S. Court of Appeals for the Eleventh Circuit JaneAnne Murray, professor of practice, University of Minnesota Law School Moderator: Carter Stewart, executive vice president, Andrew W. Mellon Foundation, and former U.S. Attorney for the Southern District of Ohio PANEL 3: Managing the Pardon Power: Should the Justice Department Remain the Gatekeeper? Tuesday, September 28, 2021 | 12:30 – 2:00 p.m. EDT | Zoom Panelists: Rachel Barkow, Vice Dean and Charles Seligson Professor of Law, New York University School of Law Jeffrey Crouch, assistant professor of American politics, School of Public Affairs, American University Paul J. Larkin, Jr., Rumpel Senior Legal Research Fellow, The Heritage Foundation Margaret Love, executive director, Collateral Consequences Resource Center, former U.S. Pardon Attorney Moderator: Douglas Berman, Newton D. Baker-Baker & Hostetler Chair in Law and executive director, Drug Enforcement and Policy Center
“After Trump: The Future of the President’s Pardon Power” (7/4/2021) - This is the title of the new issue of the Federal Sentencing Reporter, which is now available online. As explained by the FSR editors in the issue's introduction, FSR is continuing its tradition of exploring each president's pardoning practices at the end of their term: This Issue of the Federal Sentencing Reporter shines a light on the state of clemency today, with an emphasis on the federal system and events of the Trump administration. This Issue thus continues an FSR tradition of exploring federal clemency practices under each president, starting in 2001 after President Bill Clinton created controversies with final-day pardons. Over the last twenty years, an array of commentators have analyzed the actions (and inactions) of four presidents, each of whom embraced quite different goals, perspectives, and strategies. In addition to bringing thoughtful new perspectives to recent events, the articles assembled today by guest editor Margaret Love, the indefatigable advocate, scholar, and former Pardon Attorney, offer a roadmap to, in her words, “restore legitimacy to the pardon power and its usefulness to the presidency.” The editors of FSR are — once again — deeply grateful for Ms. Love’s efforts and expertise. I was honored that the editors again asked me to be guest editor of the pardon issue, which (along with a recent RAND study of racial bias in the pardon process) will hopefully provide useful guidance to the Biden Administration in a period when the uses of the power and its administration are being reconsidered. The abstract of my introductory essay follows: The guest editor’s introduction aims to provide an overview of Donald Trump’s extraordinary record of pardoning, and a road map to the essays in the Issue. Together the essays discuss ways to restore legitimacy to the pardon power and increase its usefulness to the presidency, by limiting some of the pardon power’s most extreme uses; supplementing the pardon power with statutory mechanisms to reduce prison sentences and mitigate collateral consequences, so that the president is no longer personally responsible for so much routine criminal justice business; and, managing the pardon power in a way that serves the presidency and not the parochial interests of federal prosecutors. All of these ideas and arguments together suggest that the way to restoring pardon’s democratic legitimacy and usefulness to the president lies in shrinking the portfolio of routine chores for which pardon is now exclusively responsible, and in restoring the independence and stature of the pardon advisory process within the Justice Department. It would be both fitting and deeply ironic if Donald Trump’s irregular and undemocratic pardoning led to a more coherent and meaningful use of the constitutional power in the service of an enlightened presidential policy agenda, to a renewed commitment to the historically close relationship between pardon and the justice system, and even to a transformation of the Justice Department’s unforgiving prosecutorial culture. Here are the articles in this new FSR issue: "After Trump: Restoring Legitimacy to the Pardon Power" by Margaret Colgate Love "Transforming the Theater of Pardoning" by Bernadette Meyler "Donald Trump and the Clemency Process" by Matthew Gluck and Jack Goldsmith "Are Blanket Pardons Constitutional?" by Frank O. Bowman, III "Article II and the Pardon Power: Did the Framers Drop the Ball? by Daniel T. Kobil "War Crime Pardons and Presidential (Self-) Restraint" by Daniel Maurer Debevoise’s Holloway Project and “Second Looks”: How Challenging One Discrete Racial Inequity in Federal Criminal Justice Can Help Produce Systemic Change by John Gleeson Judicial Restoration of Rights as an Auxiliary to the Pardon Power by JaneAnne Murray Has the Time Come for Relief for Federal Convictions? by Gabriel J. Chin and David Schlussel The Office of the Pardon Attorney: What Comes Next? by Jeffrey Crouch Second Look = Second Chance: Turning the Tide through NACDL’s Model Second Look Legislation (NACDL report), by JaneAnne Murray et al.
New collection of research on sex offense registration (7/1/2021) - 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.) The Logan and Prescott collection promises to be an invaluable resource as policy-makers begin to consider whether SORN laws should be retooled or perhaps done away with altogether. Here’s the SSRN abstract for the book: Despite being in existence for over a quarter century, costing multiple millions of dollars and affecting the lives of hundreds of thousands of individuals, sex offender registration and community notification (SORN) laws have yet to be subject to a book-length treatment of their empirical dimensions, examining their premises, coverage, and impact on public safety. This volume, edited by Professors Wayne A. Logan and J.J. Prescott, assembles the leading researchers in the field to provide an in-depth look at what have come to be known as “Megan’s Laws,” offering a social science-based analysis of one of the most important and controversial criminal justice system initiatives undertaken in modern times. The editors attach the title page, table of contents, and preface of the volume. Here's the SSRN link https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3865283 and a link to the Cambridge website https://www.cambridge.org/us/academic/subjects/law/criminal-law/sex-offender-registration-and-community-notification-laws-empirical-evaluation?format=HB. For information on relief from sex offense registration obligations, see our 50-state chart on the topic: https://ccresourcecenter.org/state-restoration-profiles/50-state-comparison-relief-from-sex-offender-registration-obligations/.
“Tribal Pardons: A Comparative Study” (5/21/2021) - 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.
“Certifying Second Chances” (3/24/2021) - This is the title of a provocative new article by Cara Suvall, Assistant Clinical Professor of Law at Vanderbilt Law School, and Director of the Youth Opportunity Clinic. The article, forthcoming in the Cardozo Law Review, catalogues and analyzes the costs and burdens that deter people from accessing certificates intended to enhance employment opportunities. Professor Suvall focuses particular attention on certificate programs in Tennessee, Georgia, and New York, which vary widely in eligibility criteria, administration, and legal effect. She highlights the learning, compliance, and psychological barriers that limit effectiveness of existing certificate programs, and describes proposals to lower those barriers. Here is the abstract: Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences—invisible punishments that inhibit opportunity in all facets of a person’s life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone. But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out of reach. A major problem, I argue, is the administrative burdens involved in accessing these remedies. Because of these hurdles, people with fewer resources—the population that would most benefit from the help—are the ones most likely to find these second chances out of reach. The Article closely examines one increasingly popular type of second-chance program: certificate laws that remove employment barriers. Building on recent research identifying the low usage rates of petition-based second-chance programs, this Article catalogues and analyzes the costs and burdens placed on people attempting to access employment certificates. Of particular concern is not only these low usage rates themselves, but also the identity of those least likely to access these interventions. Second-chance programs like employment certificates that provide a way forward for people with greater resources while leaving behind those without may be more harmful than helpful when placed in the larger context of mass criminalization and social change, even if they help the small number of individuals who do access them. In contrast, a well-designed second-chance initiative that appropriately considers administrative burdens and the way that interventions like employment certificates fit in to the broader picture of social change could provide short-term benefits to people with criminal records while also bolstering larger-scale reforms to the criminal legal system.
Study measures gap between availability and delivery of “second chance” relief (3/19/2021) - Professor Colleen V. Chien of Santa Clara University has published a major empirical study in the Michigan Law Review that examines the gap between eligibility for and actual delivery of relief from contact with the criminal justice system, a construct she calls the “second chance gap.” (The term is defined with examples here.) Last week, Chien led a team of law students, researchers and data analysts from Santa Clara University in launching the Paper Prisons Initiative, a project that draws on her study’s methodology to estimate this gap for each state’s record relief laws. During the current wave of criminal record reforms that began around 2013, every state legislature has taken steps to chip away at the negative effects of a record through authorizing or expanding expungement, sealing, and other forms of record relief. At the same time, it has become evident that bureaucratic and structural obstacles prevent many of these laws from achieving their full promise—particularly when they require a potential beneficiary to navigate a complex and burdensome judicial or administrative process. Last June, Professors Sonja B. Starr and J.J. Prescott published the first broad-based empirical study of a state law limiting public access to criminal records, revealing that just 6.5% of those eligible for relief in Michigan successfully completed the application process within five years. This conclusion has given additional impetus to the movement to make record-sealing automatic: six states now authorize “clean slate” relief for a range of conviction records, 16 states do so for non-conviction records, and clean slate campaigns are underway in several additional states. In “America’s Paper Prisons: The Second Chance Gap,” Professor Chien provides a more general perspective on the gap between eligibility and delivery of second chance relief documented for Michigan by Starr and Prescott. In her article, Chien looks at three forms of relief from contact with the criminal justice system—record-clearing, restoration of voting rights, and shortening prison sentences. Based on her analysis, the paper concludes that in many cases only a small fraction of those eligible for relief (usually less than 10%) have received it. Most notably, she uses novel data collection and analysis to estimate that at least 20 to 30 million American adults have non-conviction records that appear to be clearable under existing law but that have not been cleared. In follow-up state-specific papers available on the Paper Prisons Initiative website, she and her team have estimated the second chance expungement gap in convictions relief for a number of states. I. The first part of “America’s Paper Prisons” explores the reasons for the “second chance gap”: In the same way that the accused remain innocent until proven guilty in the U.S. criminal justice system, many second chance programs require defendants to “prove” that they deserve second chances before awarding them. As such, getting one’s second chance through petition-based processes may include enduring a bureaucratic process, amassing information through a variety of sources, and being evaluated by an adjudicative or administrative body. The high cost of doing so in many cases may be insurmountable. Chien divides the barriers that contribute to the second chance gap into three categories: administrative barriers, like informational and transactional costs; structural barriers, like a requirement to pay court debt and participate in a formal court hearing; and substantive barriers, like perceptions that the costs of the process outweigh its benefits.[1] II. The second part of Chien’s paper estimates the second chance gap for an assortment of relief mechanisms, drawing on both original data collection and secondary sources. Chien uses two metrics: the “uptake gap,” which measures the share of individuals over time who are eligible and have not applied or not received relief; and the “current gap,” which looks at the share of individuals at the certain moment in time who are eligible but have not received relief. Her analysis shows, on a nearly uniform basis, that only a small percentage of eligible individuals obtain relief in petition-based programs. The relief mechanisms she studies confer different benefits, are animated by differing policy objectives, and vary in eligibility criteria and administrative process. Still, a general pattern is clear across the following second chance gaps that Chien presents: Early release of prisoners During President Obama’s Clemency Initiative, only an estimated 3% of candidates who were eligible under the program’s criteria actually received clemency.[2] Under the federal statute allowing release of federal prisoners for “extraordinary and compelling reasons” (a.k.a. “compassionate release”), just 2 federal prisoners were granted release during a 13-month period in 2015-16.[3] Two California ballot measures, one allowing resentencing and reduction in classification for people convicted of certain theft and drug possession felony convictions (Prop. 47), and another allowing the same for certain marijuana convictions (Prop. 64), had 9% and 3% estimated uptake rates, respectively. Restoration of voting rights In 12 states that require people who have lost their voting rights due to a felony conviction to apply for restoration of their rights—either through a pardon application, judicial restoration procedure, or other administrative process—an estimated 12% of those who had completed their incarceration and supervision time had regained their voting rights over the course of various sampled time periods.[4] Expungement or sealing of criminal records Chien and researchers at Santa Clara and Columbia Universities provide an estimate of the national “current gap” in non-conviction relief. They created a novel dataset of 60,000 criminal histories of gig-economy jobseekers randomly chosen at the state level, with background checks between 2017-18, and analyzed them with reference to the non-conviction record-clearance laws of all 50 states. They conclude that an estimated 28 million American adults have non-conviction records that are either fully or partially clearable (state-by-state results are also provided in the appendices). Estimated uptake rates for the expungement of eligible conviction records are generally low across several states, based on original analysis by Chien and the Paper Prisons Initiative. The following are uptake estimates for expungement of eligible conviction records: Washington (<3%); New York (<1%); North Carolina (~13%); Michigan (6.5%), Connecticut (~<3%); and for the expungement of either conviction or non-conviction records: Oregon (~6%), Colorado (5%), Delaware (6%), Iowa (~22%); Missouri (1%), Minnesota (~6%).[5] III. The third part of the paper examines practices to narrow the second chance gap, with a menu of insights for those designing and implementing record reforms. Chien illustrates how small differences in how a law is drafted or implemented can lead to divergent outcomes, even when the burden of delivering relief is placed on the government. For example, Alaska and Vermont both have rules purporting to restrict the dissemination of non-conviction records after specified time periods. Alaska prohibits online publication of a case sixty days after all charges result in acquittal or non-dismissal. Vermont courts seal records 12 months after a dismissal or finding of no probable cause. But while Vermont non-conviction records almost never appear on background checks, Alaskan records do, likely owing to the Vermont state repository’s decision not to report information on non-convictions even before the 12-month waiting period has run. This section includes a useful discussion of how to draft eligibility criteria to allow for implementation at scale, including avoiding “hard-to-ascertain criteria” that present administrability problems. For instance, determining whether fines and fees have been paid is a constant challenge, very specific offenses grade and classification requirements are not always recorded, and specific disposition criteria are vulnerable to changes in definition and “unclean” (inaccurate or incomplete) data (Table 5). IV. Chien’s final section discusses several open policy and research questions concerning access to relief (the inequities of debt-related barriers to automated relief[6]; the challenges of unclean data and ambiguous dispositions) and the effect of relief (the persistence of sealed records on the internet and in electronic databases[7]; the lack of notice to beneficiaries of automatic relief). Chien also tackles a concern at the intersection of automatic record relief and racial discrimination in hiring. Studies have found that “Ban the Box” policies, which prohibit criminal history inquiries until later in the hiring process, can lead employers—in the absence of this information—to discriminate against young men of color on the assumption that they have criminal records. Professors Jennifer Doleac and Sarah Lageson, who conducted some of these studies, argued last year that a similar harmful effect might result from broad-based automatic sealing laws. Here, Chien distinguishes automatic sealing from Ban the Box by arguing that because automatic sealing does not apply to all records, but only to a subset of records that meet specific eligibility criteria, employers “won’t know what they are missing,” and as a result will be less likely to replace individualized determinations with generalized discrimination. However, Chien acknowledges the need for more data and research, and that implementation matters. Another open question not addressed here is the extent to which access barriers can be diminished short of a full “clean slate” solution. While there is growing support for automatic relief, especially when it comes to restoring voting rights and clearing many criminal records, it seems that individualized review is likely to remain the norm in the near term for questions like early release from prison or sealing a serious felony conviction. In many cases, full discretionary review may be replaced with a presumption in favor of relief, which can be overcome following official objection. Moreover, even when a discretionary decision is required, barriers can be minimized by such measures as assigning administrative tasks to the government and providing counsel to those who need it (two key provisions in Virginia’s “transformative” new record-sealing legislation). Overall, Prof. Chien’s study makes wide-ranging contributions to the field of criminal record relief, bringing to the fore the urgency and challenges of narrowing the second chance gap. CCRC was pleased to assist with Chien’s analysis of state laws for expunging non-conviction records. We are also a partner on the new Paper Prisons Initiative, which “conducts empirical research to draw attention to the tens of millions of Americans burdened by contact with the criminal justice system despite being eligible for relief from this contact,” and which has already produced reports estimating the “second chance gap” for record relief in 10 states. [1] By comparison, Starr and Prescott attribute the low uptake of Michigan expungements to six likely factors: (1) lack of information; (2) administrative hassle and time constraints; (3) fees and costs; (4) distrust and fear of the criminal justice system; (5) lack of counsel; and (6) insufficient motivation. [2] Chien cites a study of the Initiative by the U.S. Sentencing Commission that attributed at least some part of this gap to President Obama’s decision to apply the criteria announced at the outset of the Initiative more flexibly, and to other administrative issues. In the end, only 5% of those who received commutations satisfied all of the announced criteria. See Glenn Schmitt et al, U.S. Sent’g Comm’n, An Analysis of the Implementation of the 2014 Clemency Initiative (2017), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20170901_clemency.pdf. [3] Chien notes that the requirement that the Bureau of Prisons support a prisoner’s petition for compassionate release was repealed by the First Step Act in 2018, resulting in a substantial increase in petitions granted by federal courts. In 2020 health risks due to COVID-19 led to many more grants. [4] Chien notes that this estimated percentage may be low because it does not account for the small subset of offenses ineligible for reenfranchisement or for felony-reenfranchisement waiting times. It also does not appear to account for people who have completed incarceration and supervision but remain ineligible to restore their voting rights due to outstanding court debt, in at least some of the states in question (i.e., Alabama, Arizona, Tennessee). [5] The uptake estimates are derived from the Paper Prisons Initiative's multi-year comparison of estimated eligible records with estimated expungement rates (except the Michigan estimate, which is based on the Prescott and Starr empirical study). These figures, provided by Chien, were updated from the time of her paper’s publication to take into account a November 2020 SEARCH report, and are available on the Paper Prisons website, https://paperprisons.org, within the individual state expungement or sealing gap reports. See Becki Goggins et al.; Survey of State Criminal History Information Systems, 2020: A Criminal Justice Information Policy Report, SEARCH (2020), available at https://www.ncjrs.gov/pdffiles1/bjs/grants/255651.pdf. [6] Notably, Pennsylvania enacted legislation last year eliminating unpaid fines and fees (excluding restitution and a filing fee) as barriers to existing automated and petition-based sealing. [7] Virginia’s newly enrolled record-sealing legislation includes a provision requiring that private companies that buy and sell criminal records to routinely delete sealed records (this is also the current practice of Pennsylvania state courts). The bill creates a private right of action for individuals against companies that refuse to do so.
Study: Texas diversion provides dramatic benefits for people facing their first felony (2/23/2021) - Increased use of diversion is a key feature of America’s new age of criminal justice reform. Whether administered informally by prosecutors or under the auspices of courts, diversionary dispositions aim to resolve cases without a conviction—and in so doing, conserve scarce legal resources, provide supportive services, reduce recidivism, and provide defendants with a chance to avoid the lingering stigma of a conviction record. Despite the growing popularity of diversion in this country and around the world, there has been little empirical study of its impacts on future behavior. Until now. By conjecture, the opportunity to steer clear of a criminal conviction might affect future behavior in opposing ways. An optimist might expect that diversion would motivate a person to avoid returning to court in the future, while preserving the ability to hold lawful employment, especially in places where criminal background checks are used to screen applicants. A skeptic might argue that diversion represents a lesser punishment that could increase offending by reducing either a specific or general deterrence effect. Without research showing the likelihood of one or the other outcome, policymakers, prosecutors, and judges have had to operate on untested assumptions, hoping for the best. This vacuum has now been filled by a new study of Texas’ court-managed diversion program by two economists, which should be welcome news for the optimists. Michael Mueller-Smith and Kevin Schnepel (2020) use detailed administrative data from Harris County (which covers the Houston area) to estimate the first causal impacts of a diversion program available to a large fraction of felony defendants in the state. Texas’ “deferred adjudication community supervision” allows defendants to plead guilty but have entry of a conviction deferred during a period of community supervision, with the case dismissed without a conviction upon successful completion. The arrangement must be approved by the judge. This diversion program is comparable to numerous programs administered by prosecutors and judges across the U.S., Europe, and several other countries—although many programs do not necessarily require a guilty plea. At the same time, Texas law has broad eligibility for its program compared to many otherwise-comparable American programs, making deferred adjudication potentially available to all defendants except those charged with DUI-related offenses, repeat drug trafficking near a school, a range of repeat sex crimes, and murder. The Mueller-Smith and Schnepel study finds that defendants without a prior felony conviction who participated in Texas’ deferred adjudication program experienced an immediate and dramatic reduction in subsequent offending. The total number of future convictions fell by 75% over a 10-year follow-up period, compared to similarly situated defendants who did not receive diversion. The results also suggest large improvements in labor market outcomes, including a 50% increase in formal employment rates. For the cohort studied over the longest period, “these positive effects persisted and expanded even 20 years out,” leading the authors to conclude that “diversion, at least at the critical juncture of someone’s first felony charge, has the potential to fundamentally alter an individual’s trajectory in life.” The circumstances that produced the subject data are somewhat unique: To measure the causal impacts of diversion, the analysis leverages two sudden lasting shifts in the use of diversion options (one in September 1994, another in November 2007) that each approximate an experiment where the treatment is randomly assigned to eligible felony defendants. The research design focuses on first-time felony defendants who are charged in the months preceding or following these abrupt changes, subjecting them almost arbitrarily to dramatically different case dispositions. As the study notes, “the main difference from the defendant’s perspective was that before the cut-off one could avoid a felony conviction, whereas afterwards a felony conviction was non-negotiable.” Defendants who, by chance, ended up charged at the “wrong” time and received a formal felony conviction for their first offense, went on to receive 1.6 to 1.7 additional criminal convictions and 50% lower employment rates during a 10-year follow-up period relative to their diverted peers. Perhaps the study’s most remarkable finding is that those who are often considered the most over-policed—young Black men with one or more misdemeanor convictions—gained the most from diversion. The results indicate that intervening for such individuals at a critical moment (when charged with a first felony offense) could significantly improve their life course. Interviewed for this post, one of the study authors commented about its potential impact for criminal justice policymakers: Given the trajectory toward more leniency in the U.S. criminal justice system, the results suggest that increases in diversion options may lead to lower rates of reoffending and higher rates of rehabilitation in the coming years. While much has been written about what doesn’t work in criminal justice policy in the U.S., this study provides compelling evidence for a successful intervention that both improves defendant outcomes and saves public resources. Diversion can be implemented without significant investments or changes to current infrastructure, making it a potential solution for U.S. criminal justice reform. The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction. Citation: Michael Mueller-Smith and Kevin T. Schnepel, Diversion in the Criminal Justice System, The Review of Economic Studies 1-54 (2020), accessible at https://academic.oup.com/restud/advance-article-abstract/doi/10.1093/restud/rdaa030/5856753. Note: The co-authors thank Michael Mueller-Smith, Jordan Hyatt, and Emily Greberman for their assistance in helping us understand the technical aspects of the Harris County study.
Online Criminal Records Impose ‘Digital Punishment’ on Millions (2/11/2021) - We are pleased to republish this excellent article by Andrea Cipriano, which describes a new study of online non-conviction records, with permission from The Crime Report. The study concludes that law enforcement records may remain freely available online indefinitely, notwithstanding state laws calling for automatic expungement of such records. (For more information on expungement of non-conviction records, see CCRC's 50-state chart and CCRC’s model law on the subject.) Online Criminal Records Impose "Digital Punishment' on Millions of Americans by Andrea Cipriano February 9, 2021 An analysis of Internet data portals that house personally identifiable information (PII) of people involved in the justice system found that compromising information on millions of Americans has been posted online by criminal justice agencies, even if they have not been convicted of a crime. “Public records…are less likely to reveal information about the criminal justice system itself, and instead more likely to reveal information about people arrested [for] – but often not convicted of – crimes,” said researchers from Rutgers, Loyola Chicago, and UC-Irvine who conducted the analysis. The analysis, published in the Law & Social Inquiry Journal, concluded that the amount of data accessible online effectively operates as a “digital punishment.” They noted that old arrest and criminal court data is easily accessible because of local law enforcement and court databases, and individuals named in the data have virtually no ability to wipe it from the records. The researchers, Sarah Esther Lageson of Rutgers University-Newark School of Criminal Justice, Elizabeth Webster of Loyola University, and Juan R. Sandoval of University of California, Irvine, analyzed 200 government websites operated by law enforcement, criminal courts, corrections, and criminal record repositories across the country. They found what they called an “impressive” amount of personally identifiable information, ranging from photographs to home addresses and birth dates. The likelihood that this can lead to “identity theft, stalking, discrimination, and harassment” should persuade legislators and justice authorities to develop greater privacy protections, the researchers said. Online Forever The researchers estimated that over the course of 10 years, police departments have released 101 million arrest records onto the Internet, including 45.7 million booking photos. On top of that, state criminal courts will release over 147 million court records, which can all then be “scraped, mined, shared by private websites, and remain online indefinitely.” Most of this information is sensitive, including not only full names, birthdates and home addresses, but the physical characteristics of arrestees, detainees, and defendants. It amounts to extended “digital punishment” because it potentially undermines their ability to fully reintegrate into civil society. Potentially compromising information available online can be used to block loans, reject applications for a specialized license, or prevent someone from landing a job or obtaining employment, education, and housing. Even more troubling: there was no way of verifying the accuracy of the information, the researchers noted. “Without careful concerns for accuracy and privacy, many legally innocent people will find their data in a variety of private sector endeavors,” they wrote, citing an example where a police department might arrest a person for a serious charge, which prosecutors decline to pursue or judges dismiss due to a lack of evidence. Moreover, they found that 92 percent of states post some type of pre-conviction record on the Internet, creating due process and presumption-of-innocence problems, where many face being treated as a guilty party despite being innocent. The researchers found that 32 percent of police departments in their study kept PII online even after a person was released from custody, leaving their information embedded on the Internet forever. ‘Justice by Geography’ Policies governing sealing or expunging records differ across state lines, meaning that where an individual lived or committed an offense could determine whether her privacy was protected. The authors called this “justice by geography.” The researchers ranked each state according to its level of privacy protection. On a scale of 0-25, with 25 indicating the most widespread public availability of personal information, Florida ranked as the most open with a score of 21, followed by Illinois and Indiana with 20, and Minnesota and New Jersey with a score of 19. On the other side of the spectrum, New Hampshire (2.5) and Massachusetts (3) had the lowest rankings, proving to be states that prioritize individual’s privacy, and placed importance on giving individuals with criminal records a “second chance” to turn their lives around. To put these results in perspective, the researchers include a screenshot from a publicly available personal identifier inmate database detailing inmate’s information from Montana — a state that scored an 11. Within this Montana’s database, a third-party can identify the year and place of birth, citizenship status, tattoos, hair, eye and skin color, and even which hand is their dominant hand. Montana, they pointed out, is only the middle ground. See Also: Our Nation is Fragmented Over Criminal Record Relief: Report Striking a Balance? The researchers recommended striking a balance between maintaining public access to state criminal justice operations and ongoing developments and the need for personal privacy. “A better balance between public punishment and surveillance and personal privacy could more accurately reflect both legislative intent and legitimate public interests,” the authors wrote. Their recommendations included: Limiting non-criminal justice-related personal identifiable information (such as addresses and birthdays) from posting on public websites; Following additional privacy elements and record sealing practices; Requiring users to register with the government website to access data; Implementing restrictions for bulk downloads and web scraping; and, Reconsidering the public release of pre-conviction records. Criminal justice agencies should be held to the “same standard of openness that have been implemented at the arrestee and defendant levels,” the study said. “There is often scant information about prison conditions, parole hearings, and prosecutorial charging and bargaining discretion,” the authors continued. “Law enforcement maintains near-total control over other forms of data, such as disciplinary files, police shooting data, or the contents of gang databases.” The authors said their study was “a first step toward understanding how the criminal legal system distributes not only punishment and stigma but also the ability to maintain digital privacy rights at all.” Sarah Esther Lageson, Ph.D., is a Sociologist and an Assistant Professor at Rutgers University-Newark School of Criminal Justice. Elizabeth Webster is an Assistant Professor in the Department of Criminal Justice and Criminology at Loyola University in Chicago. Juan R. Sandoval is a Doctoral Student in the Department of Criminology, Law and Society in the School of Social Ecology at the University of California, Irvine. The full study can be accessed here. Additional reading: ‘Reintegration Portfolio’ Launched to Help People with Criminal Records Break Down Job Barriers Andrea Cipriano is a staff writer for The Crime Report.
“Trump’s Theater of Pardoning” (12/6/2020) - The piece reprinted below is the first part of Bernadette Meyler's contribution to a Symposium published by the Stanford Law Review on her book Theaters of Pardoning. It is as cogent a guide to understanding President Trump's pardoning practices, and how they differ from those of his predecessors, as anything else we have seen. If, as Prof. Meyler argues, the message sent by Trump’s pardons is “the rejection of law,” it would be ironic (though entirely welcome) if they prompted Congress to reroute into the legal system much of the business heretofore committed exclusively to presidential pardoning, notably relief from the collateral consequences of a federal conviction. Then presidents could pardon to their heart's delight, without worrying about the inherent unfairness of their actions. "Trump's Theater of Pardoning" by Bernadette Meyler Introduction In many ways, President Trump has returned to a performance of pardoning more familiar to early modern England than to contemporary America. Largely eschewing bureaucratic processes, Trump has taken advantage of the political theater that pardoning can provide. Like some of the real-life and fictional kings who appear in my book, Theaters of Pardoning, Trump has also called law and legal regimes into question through his pardons, and, in doing so, asserted his own impunity from law. Ignoring the common law restrictions that had accreted around pardoning, Trump has chosen to interpret his power as absolute, unfettered by norms like refraining from judging in one’s own case and forgiving but not forgetting. And this is only the story of Trump’s formal pardons. As Kenji Yoshino’s essay in this Symposium elaborates, Trump’s numerous revisions of history represent even more pervasive efforts at enacting amnesty and oblivion. Pardoning as Political Theater Within Anglo-American history, pardoning has adopted two contrasting forms: one routine and bureaucratic, happening without fanfare, and the other dramatic and subject to popular critique, acclaim, and discussion.[1] Several factors distinguish the two varieties of pardoning, including the process by which a decision to pardon is made, the prominence of the pardoner as a figure within the pardon, and the public reception of the pardon. During the past century, the bureaucratic pardon in America has come to be associated on the federal level with the Office of the Pardon Attorney, which has reviewed pardon applications since the late nineteenth century.[2] In recent decades, presidents have overwhelmingly relied on the recommendations of the Office in determining whether or not to grant pardons.[3] Not so with Donald Trump. Instead, President Trump has revitalized the theatrical version of pardoning that had seemed to atrophy under his predecessors. As Robert Weisberg observes in his essay for this Symposium, many have noted this theatricality in passing, and, in the words of the Los Angeles Times editorial board, “It’s as if he were still starring on a reality TV show that ended every week with a climactic ‘You’re pardoned!’”[4] It is instructive, however, to return to early modernity—including, as Peter Brooks’s contribution to this Symposium demonstrates, European as well as English contexts—to understand the characteristics and significance of theatrical pardoning.[5] Within that context, pardoning represented “one of the marks of sovereignty,” or a supreme power above the law, and often served to aggrandize the majesty of the King rather than simply omitting punishment for an offender.[6] Oftentimes, the pardon wasn’t deserved; the recipient had not reformed or repented, and the pardon, whether taking place on the political or theatrical stage, served not justice but the plot.[7] The timing of the pardon was also crucial; in plays, and sometimes in life, it arrived unexpectedly to shift the scene from tragedy to comedy.[8] And the theater involved was sometimes of the page rather than the stage.[9] Finally, the impact of the performance was not localized with the event but reverberated long afterwards through controversy among the audience and citizenry.[10] President Trump’s pardons revive many of these elements. While he has pardoned the fewest people of any recent president during his first three years in office, public discussion of and controversy over his pardons have outstripped those of any modern president.[11] Rather than continuing in the vein of bureaucratic pardoning produced by the work of the Office of the Pardon Attorney, Trump has instead appeared to select the vast majority of pardon recipients because of their celebrity, his personal connection with them, political ties, or the nature of the law under which they were convicted.[12] As Robert Weisberg elaborates upon the aesthetics of these pardons, Trump has extended his status “as emperor of his shows” on reality TV, where he “made subjective choices of winners and losers,” to his role as a presidential “disruptor of rules and norms of government,” through, among other devices, pardoning.[13] In all of these pardons, Trump himself has been front and center and the pardon has served to aggrandize his own power. Comparing the textual form of President Trump’s pardons with those of President Obama visually demonstrates the prominence of Trump and his own power within his clemency grants. President Obama generally pardoned multiple people at a time, prefacing the enumeration of their names with a statement of the processes that led to these pardons, and delegated the power to sign specific clemency grants to the Pardon Attorney.[14] By contrast, Trump has announced most of his pardons individually and emphasized his own actions by placing his name in enormous bold letters at the beginning of the document then specifically referring to his constitutional power.[15] In this case, the document furnishes a striking performance of Trump’s exercise of sovereignty through pardoning. In the aftermath of pardoning, Trump has also integrated pardon recipients into his own public performance, highlighting the significance of the pardon as prospective and legal rather than retrospective and pertaining to culpability. Most recently, he staged an appearance of the military officers he had pardoned of war crimes at his own fundraising event.[16] President Trump’s performance of pardoning has exalted himself over both pardon recipients and the rule of law. The theatrical foregrounding of pardoning within Trump’s regime stages pardoning as a personal and sovereign decision rather than an outcome of routine or bureaucratic processes. The result is an emphasis on Trump himself and his decisions about what is or is not properly sanctioned. The visibility of the theatrical pardon conveys a message, and that message is, as the following Part discusses, the rejection of law. Pardoning as a Rejection of Law Continued here. [1] See Bernadette Meyler, Theaters of Pardoning 3 (2019); see also Jim Phillips, The Operation of the Royal Pardon in Nova Scotia, 1749-1815, 42 U. Toronto L.J. 401, 414-21 (1992) (emphasizing the theatrical aspects of the pardon process in Nova Scotia and their political importance in contrast with earlier arguments for the exclusively legal and bureaucratic functions of pardoning). [2] For a discussion of the history of the Office of the Pardon Attorney, see Jeffrey Crouch, The Presidential Pardon Power 21-23 (2009). Rachel Barkow has associated that office with an endorsement of administrative procedures over the President’s independent power to exercise mercy, arguing that “[t]hose attacking clemency are . . . using key administrative law concepts to frame their critiques.” Rachel E. Barkow, Essay, The Ascent of the Administrative State and the Demise of Mercy, 121 Harv. L. Rev. 1332, 1350 (2008). [3] Crouch, supra note 2, at 21. [4] Editorial, Trump Is Politicizing (and Personalizing) the Pardon Process, L.A. Times (May 18, 2019, 3:10 AM), https://perma.cc/8V8T-7FS4; see also Robert Weisberg, The Drama of the Pardon, the Aesthetics of Governing and Judging, 72 Stan. L. Rev. Online 80 (2020). [5] Peter Brooks, The Ends of Pardoning, 72 Stan. L. Rev. Online 73 (2020). [6] Meyler, supra note 1, at 82-84, 262-67. [7] See id. at 16, 36-43. [8] Id. at 20-25. In Peter Brooks’s words, the “moment of pardoning” in the final act of Pierre Corneille’s Cinna, ou la clémence, “irrupts into the play as a kind of gratuitous gesture of the sovereign.” Brooks, supra note 5, at 76. [9] See, for example, Michel Foucault’s mention of the letter of pardon, discussed in Meyler, supra note 1, at 15. When researching images for the cover of my book, I realized how few artistic renderings of pardon scenes exist from even the most popular Shakespeare plays. This may reflect the fact that the pardon itself is not as visually arresting as the events leading up to it or the pardon’s reception and aftermath. [10] Meyler, supra note 1, at 6-13. As Robert Weisberg describes this phenomenon, in his essay for this Symposium, “[t]he pardons are anticlimaxes that disrupt the usual expectations.” Weisberg, supra note 4, at 83. [11] Although President Obama commuted many sentences, primarily in drug cases, he did not grant that many outright pardons, fitting within the trend of diminishing presidential pardons. See Margaret Colgate Love, Obama’s Clemency Legacy: An Assessment, 29 Fed. Sent. R. 271, 272 (2017) (“The 142 pardons granted in the final weeks of his term, more than twice the total number granted in the previous seven-plus years, enabled Obama to avoid being labeled the stingiest full-term president in history.”). Trump has been even more sparing of his pardon power if one looks numerically at the tally. As of February 21, 2020, he has granted a total of twenty-five pardons. Pardons Granted by President Donald Trump, U.S. Dep’t of Justice, https://perma.cc/QXW8-CKBE (last updated Feb. 19, 2020). At the same time, media attention has focused extensively on his use of the pardon power, already resulting in over 100 articles and op-eds in mainstream media by my count. Jeffrey Crouch has even credited Trump with “single-handedly reinvigorat[ing] the clemency power” due to the prominence of his pardons. Jeffrey Crouch, President Donald J. Trump and the Clemency Power: Is Claiming “Unfair” Treatment for Pardon Recipients the New “Fake News”?, in Presidential Leadership and the Trump Presidency: Executive Power and Democratic Government 91, 91 (Charles M. Lamb & Jacob R. Neiheisel eds., 2020). [12] For articles suggesting these motivations, see Crouch, supra note 11, at 91-92; Kevin Liptak, Trump’s Pardons Appear Prompted by TV, Friends and Politics, CNN (May 21, 2019, 7:53 AM ET), https://perma.cc/FR3Z-GGQ5. [13] Weisberg, supra note 4, at 80. [14] See, e.g., Exec. Office of the President, Executive Grant of Clemency (Jan. 17, 2017) https://perma.cc/7PQG-FANA (“After considering the applications for executive clemency of the following named persons and a letter from the Department of Justice recommending executive clemency in each case, I hereby grant full and unconditional pardons to the following named persons for those offenses against the United States described in each such recommendation . . . .”). [15] Exec. Office of the President, Executive Grant of Clemency of Joseph M. Arpaio (Aug. 25, 2017), https://perma.cc/L9CA-6TJ6 (“Donald J. Trump, President of the United States of America, To all to whom these presents shall come, greeting: Be it known that this day, I, Donald J. Trump, President of the United States, pursuant to my powers under Article II, section 2, clause 1 of the Constitution, have granted unto . . . .”). [16] Maggie Haberman, Trump Brings 2 Officers He Cleared of War Crimes Onstage at Fund-Raiser, N.Y. Times (Dec. 8, 2019), https://perma.cc/B5PX-TSVY.
The Purgatory of Digital Punishment (8/17/2020) - It doesn’t matter whether they’re accurate—criminal records are all over the internet, where anyone can find them. And everyone does. By SARAH ESTHER LAGESON On a frozen December day in Minneapolis, William walked into a free legal aid seminar, to try to fix his criminal record. Lumbering toward a lawyer, his arms full of paperwork, William tried to explain his situation quickly. “I want to show you my record here that I got from my probation officer. Here.” Frustrated, William waved papers in the air. After an employer and a landlord both denied his applications following private background checks, William started to suspect something was wrong with his criminal record. When he finally got a copy, the data made no sense. One arrest was dated to 1901. Another arrest was linked to an active warrant. “Now, here’s a thing about it. I got one [conviction] in ’82; that was the last time I was in jail.” William paused to scan the document. “And that was that charge here. All of this,” he said, pointing to the paper, “is not me.” It seemed as if someone with a similar name—and a far more extensive criminal history—had been matched to William’s identity in a state police or court record database. He quickly realized that not only was his record incorrect, but it had spread across databases used by background check companies—and was posted on the internet. It was as if someone had stolen his identity—but instead of using his identity to buy something, they used it to slip stolen goods into his pocket. The lawyers warned William of the Kafkaesque bureaucracy he would face. He had to fix the mismatched identity with the state police, ask the court to fix the 1901 data error, and close the mistaken (but open) warrant. Because he could not afford a lawyer, William had to rely on free legal aid or deal directly with the courts and state bureaus himself. This wasn’t what he wanted to hear. He had been trying for months to get help. The first time he’d tried to meet with a volunteer attorney, he was given an incorrect address and walked around downtown Minneapolis for hours trying to find the office. All of this confusion and frustration led him to the seminar today. He was about ready to give up. “It’s too much. It’s too frustrating,” William said. “You know, you ain’t done nothing in 30-something years and then all of a sudden you want to get an apartment and you can’t. You’re just stuck the way you are at. That’s just terrible. It’s a bad feeling. It’s like I’ve been on a standstill.” The problems William faced are rapidly multiplying across the country, in various forms. Incorrect or misleading records from years past pop up on Google searches. Criminal convictions that accurately appear on one background check don’t appear on another. Sealed, expunged, and juvenile records that are legally hidden from public view continue to live on across databases and websites. Criminal records and background checks have become a lucrative and central part of American life, ushered in by the creation of more records as our criminal justice system expanded over the past several decades and paired with greater demands for more access to these records. This is because the American public not only uses criminal records to make important decisions about whom we employ or rent to, but also as fodder for entertainment, voyeurism, and public shaming. Data brokers pay courts for bulk data sets that are repackaged with other sources of public and consumer data and then sold to background check services, market research companies, and even back to law enforcement. Websites post mug shots and charge people staggering fees to have their photos removed. Mobile apps purport to update users about sex offenders and recent arrestees in their neighborhood while simultaneously collecting and monetizing subscriber data. Google search results for a person’s name are accompanied by a litany of titillating background check and reputation management advertisements, and the search engine giant profits from this clickbait. All of this “data” is marked with rampant error and misleading information. Records now begin at the very early stages of arrest and extend across a person’s entire lifetime, whether or not they are found guilty. As records are downloaded, sold, and shared, they quickly become decontextualized and stale. This proliferation leads to a particular form of anxiety: Criminal record subjects are nearly always uncertain about where their records can be found and what will appear on them, even if charges were dismissed or their record sealed or expunged by the courts. Often, a person never knows what is on her criminal record because there isn’t one single criminal record to consult. The internet’s version is often wildly different than the state’s version. The consequences seep into everyday life. People begin to engage in digital avoidance—doing everything within their power to prevent someone else from Googling them, even if this means avoiding positive parts of life, like seeking better employment or housing, setting up an online dating profile, volunteering at their kid’s school, or meeting people in their neighborhood. Shana, in Florida, was arrested once in her life after a disruption at a nightclub nearly a decade ago. A few years ago, her mug shot appeared on a website demanding hundreds of dollars to have it taken down. She looks terrified in it. “Embarrassment is an understatement,” she said. “You are ashamed of your identity. It creates a self-doubt that permeates nearly every aspect of your life. … I have thoughts and feelings that I cannot ever be who I was. There is a sense of paranoia and fear of who might search your name and see the trail of tabloid sites. These thoughts are a daily thing now. It is beyond horrible.” Justin, in rural Indiana, was pulled over and booked for reckless driving in 2005 while in his early 20s. He appeared on an online roster of arrestees the next morning, and his arrest is still lodged in Google search results for his name to this day. This low-level record was legally sealed, but he cannot land a job. “It’s been painful,” he says. “You wouldn’t know the kind of guilt and shame I experience when I am overlooked by every employer I apply to because these records continue to exist, or the amount of pain it causes me to feel like I’ve failed my family.” Albert, in New Jersey, passed the background check for a new apartment. At age 82, he was 12 years past a forgery conviction and in the process of expunging his record. But vestiges of his record stayed on the internet. Days before Albert was due to move, his new landlord called him and told him, “I forgot to tell you it’s my policy to Google everyone’s name, and I see that you have a record here for fraud.” Albert sighed as he recounted the disappointment. “There was no changing his mind.” He lost the apartment. “I have to sort out four sources of this record,” he continued. “The police, the jail, the court, and the internet. The internet. That’s the biggest problem.” Though the circumstances vary, these experiences all point to the failures of data and technology companies to effectively modernize criminal justice operations. Through uneven rollouts and competing legal and political mandates, data-driven criminal justice churns out millions of publicly available criminal records each year—a messy spillover far from the original intent of criminal recordkeeping. The data are often outdated, incorrect, and bought and sold in private markets by data companies. Documenting everything from a police stop to a prison sentence, thousands of different types of records take on a digital life of their own as they are bought and sold and reposted across the internet. The result is “digital punishment,” where mere suspicion or a brush with the law can have lasting consequences. There’s a strong set of incentives for the criminal justice system to release data to the private sector. Lacking the necessary budget and expertise to maintain digital records themselves, busy and overburdened criminal justice agencies have turned, over the past two decades, to technological solutions offered by IT companies. Newly digital operations produce volumes of data, including the names, photographs, and home addresses of people arrested or charged with a crime, transforming what used to consist of millions of paper records into a valuable commodity. In digital criminal justice operations, a person’s disgrace is almost always up for sale. Regardless of factual or legal guilt, these records rapidly multiply across the private sector background checking and personal data industries. Once the personal data industry controls the information, there is no stopping its spread, leading to the errors in William’s record that cost him a job, or the Google search results that cost Albert his new apartment. Not only does digital punishment unequally stigmatize people already targeted by the criminal justice system because of their race or neighborhood, but it creates privacy inequalities. Members of these already sidelined communities are less likely to have the ability to address, remedy, or overcome a criminal record. The ability to curate an online reputation or challenge a government record is inextricably linked (and proportional) to one’s relationship with technology and one’s capacity to argue for the right to privacy in the first place. Though the errors in his record are not his fault, William is tasked with fixing them. Shana’s arrest photo is a profitable commodity for entertainment and extortion markets. But she must come up with the time and money to track down the source every time her booking photo or criminal record appears on the internet, and then she would need the legal skills to negotiate with, pay off, or sue every company that profited from her arrest data. In digital criminal justice operations, a person’s disgrace is almost always up for sale and available instantly for public consumption. A hard-earned and nearly spotless reputation can be tarnished indefinitely with just a few clicks of a mouse. The result is that many people now live in terror of their digital reputation. Perhaps we’ve opened Pandora’s box and our digital biographies have become irreparably cemented to our identities. Artificial intelligence, machine learning, facial recognition, and biometrics are increasingly incorporated into the tracking, surveillance, and record-keeping practices of the state. There will be voices pushing for transparency in data collection practices and privacy for the sharing of individual data, while corporations that buy and sell criminal records will seek to evade regulation. Eventually, background checks will probably get better, due to consumer demand and improvements to information technologies. But the reality for the short term is that millions of people in America will spend the rest of their lives digitally marked, their identities warehoused into vast collections of mug shots, jailhouse rosters, and court documents. There is no easy escape from digital punishment—punishment that is perpetual, and not determined by judge or jury. Americans have long been susceptible to claims about the need to crack down on crime and accept increasingly harsh penalties, leading to the war on drugs and mass incarceration. Data-driven advances in criminal justice operations have expanded an already wide net. The explosion of digital punishment has come without critical discussion of causes and consequences. But policy shifts can slow digital punishment. There is enormous potential for reform that better addresses the relationship between criminal punishment, individual privacy, and governmental oversight in the digital age. Medical records and credit reports are regulated and protected in the U.S., partly to protect this personal information from falling into the wrong hands or being leveraged against a person. Criminal records could be treated the same way. Background check companies could be held legally accountable for reporting incorrect or outdated data. The private sector can remedy this pain without legal regulation. Google could import aspects of the European “right to be forgotten” for those whose records have been sealed, expunged, or illegally disclosed. Facebook could stop allowing mug shots to be posted before a criminal conviction, or at least turn off the racist and terrifying commentary that follows. Digital punishment is not the inevitable outcome of digital life. Technological advances do not determine their own fate; people and organizations use technologies and share data for specific ends. Decisions for how to collect, organize, and disclose records is a human-powered process. The ways we use criminal records—and the power of the private market to distribute this data—is a political choice. The openness and lifelong punishment of a criminal record looks very different outside of America, where rehabilitation policies are valued over punishment. The justice system and information technology systems are both operating at unforeseen levels of activity. Humming along, each system touches more and more lives each day. And there are serious consequences to this confluence. As criminal records drift online, the internet exacts a criminal-like penalty—guilt-by-Google—before, or even without, prosecution or conviction. The widespread public release and sale of criminal justice data is leading to new forms of everlasting punishment. Our data handling and processing practices need not be at the mercy of tech innovation and invariably encroaching systems of surveillance, though. Our current state of affairs is the result of very human processes. Policies are the result of choices. And we can always choose differently. This article is adapted from Digital Punishment: Privacy, Stigma, and the Harms of Data-Driven Criminal Justice by Sarah Esther Lageson, published by Oxford University Press. It was first published by Slate on June 24, 2020. Sarah Esther Lageson is an assistant professor of sociology at the Rutgers University–Newark School of Criminal Justice. She has written extensively on the subject of criminal records technology, and was an adviser to CCRC's Model Law on Non-Conviction Records. Last summer CCRC Board Chair Jack Chin reviewed an article by Professors Lageson and Alessandro Corda comparing how criminal records are treated in Europe and the United States. Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and The Rise of A New Penal Entrepreneurialism, The British Journal of Criminology, Volume 60, Issue 2, March 2020, Pages 245–264.
How to expand expungement: base it in retribution instead of rehabilitation (6/8/2020) - A thoughtful new article by Brian Murray recommends a new way of conceptualizing expungement that should make it easier for reformers to justify facilitating access to this record relief. In “Retributive Expungement,” forthcoming in the University of Pennsylvania Law Review, Murray argues that expungement should be seen as a way to end warranted punishment rather than to recognize and incentivize rehabilitation. The argument goes that if the legal and social disadvantages of a criminal record function as part and parcel of the criminal sentence imposed by the court, as opposed to a loosely related system of civil penalties that are activated by other laws and other actors, then the court has an obligation at some point to discharge it. While this argument is not new, Murray places it squarely in a modern retributivist framework. In an earlier era, the drafters of the 1962 Model Penal Code embraced this idea of tying up the loose ends of criminal punishments through court-ordered dispensation, although they chose a more transparent form of remedy in judicial vacatur or set-aside. Before that, this function of ending punishment was performed by executive pardon. In modern times, as ubiquitous background checking has made a criminal record a lasting Mark of Cain, most agree that the record should be made unavailable for private and most public purposes at some point, unless disclosure is ordered by the court for some purpose authorized by law. Facilitating access to this record relief should be easier with the theoretical frame proposed by Murray. Here is the abstract and a link: Expungement relief was introduced in the mid-twentieth century to reward and incentivize rehabilitation for arrestees and ex-offenders and to protect their privacy. Recently, many states have broadened their expungement remedies, and those remedies remain useful given the negative effects of public criminal records on reentry. But recent scholarship has suggested an “uptake gap,” meaning many who are eligible never obtain relief. Despite broadening eligibility, petitioners face substantial obstacles to filing, pre-hearing hurdles, waiting periods, and difficult standards of review without the assistance of counsel. And even when expungement is granted, the recipients are basically left on their own to guarantee the efficacy of the remedy. Some of these attributes of expungement were originally conceived as features, designed to ensure only the most rehabilitated received relief, allowing the state to continue to pursue public safety objectives with public criminal records. But the cold reality of expungement procedure leaves many petitioners facing insurmountable obstacles that amplify the effects of the punishment originally imposed. In exploring this reality, this Article illustrates that expungement procedure is stuck in a rehabilitative and privacy-centric paradigm. While this framework inspired the creation of expungement remedies and recent reforms, it also has justified onerous procedural obstacles and the placing of the burden of persuasion on the petitioner rather than the state. Outside of automated expungement, which is still relatively rare and restricted to only certain types of petitions, most expungement regimes in substance or through procedure invert what should be the state’s burden to justify retention of criminal records that enable extra punishment by state and private actors. An alternative theoretical basis for expungement is necessary to convince policymakers and decision-makers of the need for broader substantive and procedural reform. This Article suggests a different paradigm: retributive based expungement. It proposes that incorporating retributive constraints that already underlie the criminal system can benefit petitioners. Plenty of arrestees do not deserve stigma and ex-offenders have done their time, meaning punitive stigma from public criminal records can amount to unwarranted punishment. A retributive-minded expungement procedure would all but guarantee expungement in the case of arrests, where the desert basis is questionable, and would place the burden of proof on the state for convictions once desert has been satisfied. As such, this approach can supplement the case for broader eligibility, automated expungement, and favorable pre-hearing procedures that limit the uptake gap. It also has legal and political viability given that many states already maintain retributivist constraints on sentencing and given that huge swaths of the public perceive desert as a crucial component of any criminal justice issue. In fact, some states are already moving in this direction and can serve as a model for the rest of the country. In short, retributivist constraints can trim procedural overgrowth to supplement substantive reforms that already recognize the disproportionate effects of a public criminal record.
Broken records: criminal history errors cost jobs and housing (12/20/2019) - Ariel Nelson of the National Consumer Law Center has authored an important new report, Broken Records Redux, which describes how errors by criminal background check companies harm consumers seeking jobs and housing. In particular, the report shows how background screeners continue to include sealed and expunged records in criminal background check reports, omit disposition information, misclassify offenses, mismatch the subjects of records, and include other misleading information. The report also examines problems arising from the use of automated processes to evaluate prospective employees and tenants. This report, a sequel to a 2012 NCLC report on criminal background errors, observes that since 2012 advocates and federal agencies have litigated many actions for violations of the Fair Credit Reporting Act (FCRA), leading to settlements and judgments requiring background screeners to reform their processes and pay millions in penalties and relief to consumers. Despite these lawsuits, "companies continue to generate inaccurate reports that have grave consequences for consumers seeking jobs and housing." Based on these issues, the report recommends a broad array of legislative and regulatory changes at the federal and state level. Accompanying the report is an article: Fertile Ground for FCRA Claims, which describes FCRA violations that can result from "inaccurate, incomplete, or outdated" background checks. This new report also provides support for policy recommendations in our recently released Model Law on Non-Conviction Records, including restrictions on the dissemination of expunged records and records indicating no disposition by commercial providers of criminal records. "For expungement and clean slate laws to succeed in removing barriers to employment and housing, they must take into account issues like background check reporting, data aggregation, and the use of stale data," says Nelson, the author of the NCLC report. "I'm happy to see that CCRC's Model Law on Non-Conviction Records provides guidance for addressing those issues."
Model law proposes automatic expungement of non-conviction records (12/11/2019) - An advisory group drawn from across the criminal justice system has completed work on a model law that recommends automatic expungement of most arrests and charges that do not result in conviction. Margaret Love and David Schlussel of the Collateral Consequences Resource Center served as reporters for the model law. It is available in PDF and HTML formats. “Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination,” says Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia, and one of the advisors of the model law project. "Over the years, my legal aid program has seen thousands of cases where non-convictions cost people jobs." In proposing broad restrictions on access to and use of non-conviction records, the project aims to contribute to conversations underway in legislatures across the country about how to improve opportunities for people with a criminal record. Already in 2019, states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction. The group regards its model as the first step in a broader law reform initiative that will address conviction records as well. Law enforcement officials make over 10 million arrests each year, a substantial percentage of which do not lead to charges or conviction. Records of these arrests have become widely available as a result of digitized records systems and a new commerce in background screening and data aggregation. These checks often turn up an “open” arrest or charges without any final disposition, which may seem to an employer or landlord more ominous than a closed case. Very few states have taken steps to deal with the high percentage of records in repositories and court systems with no final disposition indicated. Paul McDonnell, Deputy Counsel for New York’s Office of Court Administration and a project advisor, noted: “Criminal records that include no final disposition make it appear to the untrained eye that an individual has an open, pending case, which can have serious results for that person. New York has recently made legislative progress in addressing this problem, though more can be done.” Current state and federal laws restricting access to and use of non-conviction records have limited application and are hard to enforce. Eligibility criteria tend to be either unclear or restrictive, and petition-based procedures tend to be burdensome, expensive, and intimidating. In recent years, lawmakers and reform advocates have expressed a growing interest in curbing the widespread dissemination and use of non-convictions, leading some states to simplify and broaden eligibility for relief, reduce procedural and financial barriers to access, and in a handful of states to make relief automatic. Rep. Mike Weissman, a Colorado State Representative and model law project advisor, noted that Colorado has recently overhauled its laws on criminal records with broad bipartisan support. “It is heartening to see similar reforms underway in other states, both red and blue, as well. I commend the practitioners and researchers who helped formulate the model law for illustrating avenues for further progress in reducing collateral consequences.” The model law would take this wave of criminal record reforms to a new level. It recommends that expungement be immediate and automatic where all charges are terminated in favor of an accused. Uncharged arrests should also be automatically expunged after a brief waiting period, as should dismissed or acquitted charges in cases where other charges result in conviction. Cases that indicate no final disposition should also be expunged, unless there is indication that they are in fact pending. The model law also recommends that expunged non-conviction records should not be used against a person in a range of criminal justice decisions, including by law enforcement agencies. It would prohibit commercial providers of criminal background checks from disseminating expunged and dated non-conviction records, and civil decision-makers from considering them. David LaBahn, President of the national Association of Prosecuting Attorneys, indicated that organization's support for the model law, stating that the collateral consequences of non-convictions “do not serve to make the community safer,” and that “the current structures in place to expunge a non-conviction record can be confusing and difficult for the layperson to navigate alone.” This model law sets the stage for jurisdictions to address record relief for convictions more generally, and its structure and principles can be brought to bear on that important work. The Collateral Consequences Resource Center organized this model law project. An early draft of the model law was discussed at an August 2019 Roundtable conference at the University of Michigan that was supported by the Charles Koch Foundation. The model law report was supported by Arnold Ventures. Read the model law in PDF or HTML.
Algorithms, Race, and Reentry: A Review of Sandra G. Mayson’s Bias In, Bias Out (11/5/2019) - In true Minority Report fashion, state actors are increasingly relying on algorithms to assess the risk a person will commit a future crime. Unlike Minority Report, these algorithms simply estimate the likelihood of rearrests; they do not offer the absolute answer to future criminal behavior that condemned the defendant, Tom Cruise, in the 2002 action film. Still, criminal justice actors are using many types of algorithmic risk assessments to inform their decisions in pre-trial investigations, bail recommendations and decisions, and post-trial sentencing and parole proceedings. Sandra G. Mayson’s article[1], Bias In, Bias Out, published this year in the Yale Law Journal, explains how these algorithms could reflect and project past and present racial bias in the criminal justice system and elsewhere. At its core, an algorithm specifies individual traits that are correlated with crime commission. If the data show that people of color are arrested more frequently, then the algorithm will predict more arrests for people of color. In this sense, an accurate algorithm “holds a mirror to the past” by “distilling patterns in past data and projecting them into the future.” Mayson provides an in-depth, yet easy-to-follow explanation of why race neutrality is unattainable when the base rates of arrest differ across racial groups. These mirror-like algorithms give us the opportunity to clearly view the racial disparity in arrests and convictions. Is there something wrong with this image, and what should we do now that we’ve seen it? Mayson’s analysis begins by focusing on the first of these questions—is there something wrong with the image we are seeing in our algorithmic mirror? If there are different offending rates across racial groups for a given underlying crime, then this image represents an accurate depiction of actual crime rates. If, however, there are not different offending rates across racial lines, with differential arrest rates merely the result of enforcement strategies, then the image depicts how people of color are targeted for arrest with greater frequency. Mayson does not dwell on this point, for good reason: unless we know true offending rates, it is impossible to know which of these scenarios is our reality. The next question: what should we do now that we have seen this image? It may seem that the answer to this question depends on the answer to the first question, whether you think the image accurately reflects rates of crime commission. However, Mayson’s solution responds to either scenario, a difference in offending rates or a difference in enforcement practices. Before she explains how she would enact her “supportive” response, Mayson explains why the typical responses to the impossibility of a race-neutral algorithm are unproductive. In response to the increasing use of algorithms, some scholars have called for “colorblind” algorithms (algorithms that do not take into account race or proxies for race) or “algorithmic affirmative action” (algorithms that are programmed to predict the same rate of adverse outcomes or same percentage of false-positives or false-negatives for each racial group). Both of these attempts at equality distort the algorithmic mirror, and thus corrupt the accuracy of the predictions. Mayson argues that such clouding of the data could harm communities of color. Forcing the algorithm to deliver these equal rates of either false-positives or false-negatives will likely lead to a higher error rate in predictions. Take bail decisions, for instance. Since there are more arrestees of color, more persons of color who are going to commit future offenses will be released (because of the compromised algorithm). This “wrongful” release will hurt communities of color because the majority of crime is intraracial. Moreover, “colorblind” algorithms could harm defendants of color because in some instances a person’s race could be a mitigating factor in her risk assessment. For example, Mayson recounts her experience as a public defender in New Orleans where multiple past arrests for a black man simply proved that he had been living in New Orleans, while multiple arrests for a white man likely showed something more ominous. An ideal algorithm would not be blind to race; it would consider the racial context of each factor, in each jurisdiction. This type of specialized decision-making would only be possible with a machine-learning program. Rather than try to remedy the algorithms, some people have advocated ignoring the algorithm completely. Rejecting these algorithms would mean that criminal justice actors would be left to make their own subjective decisions informed by their own biases. Mayson argues that the algorithm’s predictions are more transparent than individual’s choices; therefore, the algorithm can more readily be held accountable for the racial disparity it predicts. Mayson embraces the algorithm. She calls for the most competent algorithm possible, one that will deliver the most accurate predictions. Her solution ultimately responds to both scenarios—an underlying difference in offending rates and a difference in enforcement. The algorithmic assessment of risk is just that, an assessment of risk, not an assessment of blame. Because of this important distinction, Mayson suggests an approach that is supportive rather than coercive or punitive in bail decision making. She discusses the usual coercive responses of custodial detention and GPS monitoring that both are costly and may not work effectively to prevent future crime. She suggests instead that the courts take a “supportive, needs-oriented response,” one that would help eliminate the barriers that arrested and convicted persons face in their quest to lead lawful lives. Instead of the default response being one of incapacitation, the court system should strive to help the defendant succeed and avoid future crime commission. Mayson appears to model this solution on a program for which she was a volunteer as a law clerk. The Supervision to Aid Reentry (STAR) program, run by Magistrate Judge Rice of the U.S. District Court for the Eastern District of Pennsylvania and Judge Restrepo of the U.S. Court of Appeals for the Third Circuit, focused on individuals who were at risk for committing future violent crimes. The STAR reentry team worked on obtaining housing, education, counseling, and substance-abuse treatment for defendants. Meanwhile, law students enrolled in a clinic helped defendants navigate the court system to restore their driver’s licenses and pay fines. A university psychology department developed a cognitive-behavioral therapy option for defendants. Overall, Mayson and others have reported, the program was successful. This type of supportive response would aspire to mitigate a possible difference in enforcement. Although criminal justice actors would still target people of color, this targeted response would offer help rather than arrest and detention. In addition, Mayson advocates responding to a possible difference in underlying offending rates by using algorithms to diagnose areas of need. She believes that any difference in offending rates is the result of years of inequality and disadvantage. An algorithm could first diagnose the areas that are in need by showing us which areas possess the most at-risk individuals for future crime commission. Then, public or private funding could target these areas and establish community-support programs, and greater investments in schools and housing. A supportive response would hope to counteract some of the structural disadvantage faced by these communities. Thus, Mayson’s proposed approaches responds to either idea of the image in the algorithmic mirror. On the one hand, Mayson proposes tackling institutional inequality in response to the image of actual difference in offending rates. On the other hand, she seeks to mitigate the effect of a difference in enforcement by shifting from a punitive response to a supportive one. The primary problems I see are not with Mayson’s evaluation of the risk-assessment tools, but with her proposed “solutions.” The approaches she advocated would be costly, and, realistically, would be small-scale and jurisdiction-dependent. The algorithms themselves, at least in Mayson’s view, would need to be calibrated to a particular region and its racial context in order to most accurately predict crime commission. On the other end, the response to the risk assessments would be individualized and intensive. Who is going to pay for all of this? One can certainly expect that many officials and judges would prefer to continue with custodial detention and GPS monitoring because the infrastructure for such programs already exists. Programs like STAR are not only costly, but also hard to reproduce on a large-scale. These programs seem to require the help of either a full-time staff, or an army of university volunteers (or free labor sources like over-eager law students). Such intensive support is not going to be possible in less urban areas that do not have access to university resources. Moreover, the support imagined is individualized for the defendant, and thus tailored to helping the defendant succeed in that region. Some larger, less homogenous states would have difficulty enacting state-wide policy guidelines or restrictions because the help a defendant needs could vary depending by locality in the state. Moreover, counties or municipalities themselves would need to devise these programs with state funds. That may be politically tricky, and without strict state guidelines and oversight, localities could devise drastically different programs—such that similarly situated defendants in the same state would not receive the same treatment. And what do we do with these algorithmic risk assessments in jurisdictions that reject Mayson’s solution because it is too costly, or otherwise not feasible for their region—perhaps simply due to lack of political will? Mayson mentions that jurisdictions are increasingly turning to algorithmic tools at every stage of the criminal justice process, from investigation to sentencing. If we accept Mayson’s belief that these tools are reproducing racial inequality, is there a way to address that problem short of a complete overhaul of extant criminal justice procedures and responses? Essentially, we need a Plan B. Finally, even if all of Mayson’s ideal approaches were adopted, there are downsides. People of color would be faced with greater government interference in their lives. Mayson accepts an algorithm that produces a higher rate of false-positives for people of color because she calculates that outcomes will improve the lives of the larger communities. That may well not pan out. Some states following Mayson’s logic may implement mandatory education programs, mandatory mental health treatment, or mandatory substance-abuse treatment. State power, in the form of “supportive” programs, would still infringe, at a higher rate, on the liberty of people of color. There could, and likely should be a discussion about whether programs like STAR are productive or beneficial for communities of color. But we should keep in mind that at the end of the day, such programs would still be state policing of black lives. [1] Sandra G. Mayson, Bias in, Bias Out, 128 Yale L.J. 2218 (2019).
CCRC scholarship round-up – August 2019 (8/7/2019) - Editor's note: This past year has seen a burgeoning of scholarship dealing with collateral consequences broadly defined, from lawyers, social scientists, and philosophers. CCRC's good friend Alessandro Corda has selected fifteen notable articles published in 2018-19, with information, links, and abstracts. They are organized into five categories: (1) Legal collateral consequences (2) Collateral consequences and criminal procedure (3) Sex offender registration laws (4) Informal collateral consequences (5) Criminal records, expungement, sealing, and other relief mechanisms A complete and regularly updated collection of scholarship on issues relating to collateral consequences and criminal records can be found on our “Books & Articles” page. From time to time we will preview and comment on new articles, and Alessandro has promised to provide another round-up by the end of the year. We hope he will continue indefinitely in the role of CCRC’s official bibliographer. (A PDF copy of this scholarship round-up is here.) Legal collateral consequences: Are Collateral Consequences Deserved? Brian Murray, Seton Hall Law School 95 Notre Dame L. Rev. (2020, forthcoming) While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release. Because collateral consequences involve the state’s infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, they align with utilitarian purposes for criminal punishment, such as incapacitation. Interpreting the nature of collateral consequences, legislative justifications during their creation and during reform efforts, and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system. But these philosophical premises inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility. The result is extra punishment run amok and in desperate need of constraints. This Article suggests a different approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints emphasize dignity and autonomy, blameworthiness, proportionality, restoration, and impose obligations and duties on the state, suggesting many collateral consequences are overly punitive and disruptive of social order. This mode of analysis aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders. ___________________________________________________________________ Third-Class Citizenship: The Escalating Legal Consequences of Committing a “Violent” Crime Michael M. O’Hear, Marquette University Law School 109 J. Crim. L. & Criminology 165 (2019) For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions — and sometimes even just charges — for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification from employment in certain fields, and a loss of parental rights, among many other “collateral consequences.” While a criminal conviction of any sort relegates a person to a kind of second-class citizenship in the United States, a conviction for a violent crime increasingly seems even more momentous — pushing the person into a veritable third-class citizenship. This article provides the first systematic treatment of the legal consequences that result from a violence charge or conviction. The article surveys the statutory law of all fifty states, including the diverse and sometimes surprisingly broad definitions of what counts as a violent crime. While the article’s aims are primarily empirical, concerns are raised along the way regarding the fairness and utility of the growing length and severity of sentences imposed on “violent” offenders and of the increasingly daunting barriers to their reintegration into society. ________________________________________________________________ Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction Zachary Hoskins, University of Nottingham, Department of Philosophy Oxford University Press, 2019 People convicted of crimes are subject to a criminal sentence, but they also face a host of other restrictive legal measures: Some are denied access to jobs, housing, welfare, the vote, or other goods. Some may be deported, may be subjected to continued detention, or may have their criminal records made publicly accessible. These measures are often more burdensome than the formal sentence itself. In Beyond Punishment?, Zachary Hoskins offers a philosophical examination of these burdensome legal measures, called collateral legal consequences. Drawing on resources in moral, legal, and political philosophy, Hoskins analyzes the various kinds of collateral consequences imposed in different legal systems and the important moral challenges they raise. Can collateral legal consequences ever be justified as forms of criminal punishment or as civil measures? Hoskins contends that, considered as forms of punishment, such restrictions should be constrained by considerations of proportionality and offender reform. He also argues that they may in a limited range of cases be permissible as risk-reductive civil measures. Whether considered as criminal punishment or civil measures, however, collateral legal consequences are justifiable in a far narrower range of cases than we find in current legal practice. Considering just how pervasive collateral legal consequences have become and their dramatic effects on offenders’ lives, Beyond Punishment? sheds valuable light on whether these restrictive measures are ever morally justified. ________________________________________________________________________ Wealth-Based Penal Disenfranchisement Beth A. Colgan, UCLA School of Law 72 Vand. L. Rev. 55 (2019) This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution—may prevent people of limited means from voting. The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for re-enfranchisement for most or all offenses under certain conditions. One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline. The scope of wealth-based penal disenfranchisement is grossly underestimated, with commentators typically stating that nine states sanction such practices. Through an in-depth examination of a tangle of statutes, administrative rules, and policies related to elections, clemency, parole, and probation, as well as responses from public disclosure requests and discussions with elections and corrections officials and other relevant actors, this Article reveals that wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia. After describing the mechanisms for wealth-based penal disenfranchisement, this Article offers a doctrinal intervention for dismantling them. There has been limited, and to date unsuccessful, litigation challenging these practices as violative of the Fourteenth Amendment’s equal protection and due process clauses. Because voting eligibility is stripped of its fundamental nature for those convicted of a crime, wealth-based penal disenfranchisement has been subject to the lowest level of scrutiny, rational basis review, leading lower courts to uphold the practice. This Article posits that these courts have approached the validity of wealth-based penal disenfranchisement through the wrong frame—the right to vote—when the proper frame is through the lens of punishment. This Article examines a line of cases in which the Court restricted governmental action that would result in disparate treatment between rich and poor in criminal justice practices, juxtaposing the cases against the Court’s treatment of wealth-based discrimination in the Fourteenth Amendment doctrine and the constitutional relevance of indigency in the criminal justice system broadly. Doing so supports the conclusion that the Court has departed from the traditional tiers of scrutiny. The resulting test operates as a flat prohibition against the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense. Because such alternatives are available, wealth-based penal disenfranchisement would violate the Fourteenth Amendment under this approach. ___________________________________________________________________ Collateral Consequences and Criminal Justice: Future Policy and Constitutional Directions Gabriel J. Chin, University of California, Davis – School of Law 102 Marq. L. Rev. 233 (2018) National policy with respect to collateral consequences is receiving more attention than it has in decades. This article outlines and explains some of the reasons for the new focus. The legal system is beginning to recognize that for many people convicted of crime, the greatest effect is not imprisonment, but being marked as a criminal and subjected to legal disabilities. Consequences can include loss of civil rights, loss of public benefits, and ineligibility for employment, licenses, and permits. The United States, the 50 states, and their agencies and subdivisions impose collateral consequences—often applicable for life—based on convictions from any jurisdiction. However, because they were deemed “civil,” collateral consequences have been created and imposed with few constitutional limitations. In recent years, the American Law Institute, American Bar Association, and Uniform Law Commission all have proposed reforms, which are now being seriously considered in a number of jurisdictions. Meanwhile, scholars have advanced, and courts have sometimes accepted, an argument that they previously rejected, namely that collateral consequences can be of constitutional magnitude. As courts take collateral consequences more seriously, legislatures have begun to reduce the numbers of collateral consequences and provide legal mechanisms for the relief of those that remain. ________________________________________________________________________ The Collateral Consequence Conundrum: Comparative Genealogy, Current Trends, and Future Scenarios Alessandro Corda, Queen’s University Belfast School of Law in After Imprisonment, 77 Studies in Law, Politics and Society (Austin Sarat ed., 2018), pp. 69-97 Collateral consequences (CCs) of criminal convictions such as disenfranchisement, occupational restrictions, exclusions from public housing, and loss of welfare benefits represent one of the salient yet hidden features of the con- temporary American penal state. This chapter explores, from a comparative and historical perspective, the rise of the many indirect “regulatory” sanctions flowing from a conviction and discusses some of the unique challenges they pose for legal and policy reform. US jurisprudence and policies are contrasted with the more stringent approach adopted by European legal systems and the European Court of Human Rights (ECtHR) in safeguarding the often-blurred line between criminal punishments and formally civil sanctions. The aim of this chapter is twofold: (1) to contribute to a better understanding of the overreliance of the US criminal justice systems on CCs as a device of social exclusion and control, and (2) to put forward constructive and viable reform proposals aimed at reinventing the role and operation of collateral restrictions flowing from criminal convictions. ________________________________________________________________________ Collateral Consequences of Criminal Conviction: Law, Policy and Practice Margaret Colgate Love, Law Office of Margaret Love Jenny Roberts, Washington College of Law, American University Wayne A. Logan, Florida State University Law School West/NACDL, 3d ed. 2018-2019 This volume is a comprehensive resource for practicing lawyers, judges and policymakers on the legal restrictions and penalties that result from a criminal conviction over and above the court- imposed sentence. Today, many millions of Americans have a criminal record of some kind, potentially triggering a vast array of highly burdensome and stigmatizing consequences that can have life-long debilitating effects. This volume provides comprehensive discussion and analysis of these after-effects of the nation’s ongoing “tough on crime” policies, ranging from loss of civil rights and employment opportunities, to firearms dispossession, registration and residency restrictions, and immigration consequences. It also discusses state and federal laws applicable to access to and use of criminal records, and the informal consequences that exist apart from formal legal restrictions. It serves as a single go-to resource for lawyers, judges, and policymakers as they negotiate the often complex and obscure statutes and regulations that come into play as a consequence of arrest and conviction. ____________________________________________________________________ Collateral Consequences of Punishment: A Critical Review and Path Forward David S. Kirk, University of Oxford, Department of Sociology Sara Wakefield, Rutgers School of Criminal Justice 1 Annual Review of Criminology 171 (2018) The unprecedented growth of the penal system in the United States has motivated an expansive volume of research on the collateral consequences of punishment. In this review, we take stock of what is known about these collateral consequences, particularly in the domains of health, employment, housing, debt, civic involvement, families, and communities. Yet the full reckoning of the formal and informal consequences of mass incarceration and the tough-on-crime era is hindered by a set of thorny challenges that are both methodological and theoretical in nature. We examine these enduring challenges, which include (a) the importance of minimizing selection bias, (b) consideration of treatment heterogeneity, and (c) identification of causal mechanisms underlying collateral consequences. We conclude the review with a focused discussion on promising directions for future research, including insights into data infrastructure, opportunities for policy tests, and suggestions for expanding the field of inquiry. ___________________________________________________________________ Collateral consequences and criminal procedure Incorporating Collateral Consequences into Criminal Procedure Paul T. Crane, U.S. Department of Justice, Criminal Division 54 Wake Forest L. Rev. 1 (2019) A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, are typically treated as irrelevant when determining whether a defendant is entitled to a particular procedural protection. This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure. Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines. After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial. ______________________________________________________________________ Wrongful Collateral Consequences Abigail E. Horn, Lawyer 87 Geo. Wash. L. Rev. 315 (2019) Collateral consequences of criminal convictions perpetuate racial hierarchy, disadvantage individuals and families, undermine communities, and harm the public by hindering reentry efforts. This Article is the first to systematically expose another overlooked characteristic of collateral consequences—the extent to which they are imposed wrongfully. Wrongful collateral consequences are those that attach erroneously and in clear violation of the law. The causes are structural. Imposing collateral consequences requires a two-step matching process. First, an administrator must match a person to his or her criminal-records data. Second, an administrator must match the criminal- records data to the law enacting the collateral consequence—to determine whether the consequence should lawfully attach. These steps are simple to state, but difficult to implement. Errors occur at both steps. Wrongful collateral consequences arise because criminal-records data is notoriously incomplete and inaccurate. They also arise because the laws enacting collateral consequences are structurally complex—legislators employ catchall clauses to enumerate the triggering offenses and complex duration clauses to prescribe the length of the consequences. Reforms are possible. Two would get at the root causes: improving criminal-records data and simplifying collateral-consequence laws. Other reforms would leave in place the existing structure but should be implemented immediately: improvements in procedural due process, creative plea bargaining by criminal-defense counsel, and quality controls by administrators who do the two-step matching. These reforms would prevent wrongful collateral consequences at the margins, but not eradicate the problem. Wrongful collateral consequences ultimately present yet another reason why collateral consequences, and the caste system they create, are misguided and unjust. _______________________________________________________________ Sex offender registration laws Beyond Panic: Variation in the Legislative Activity for Sex Offender Registration and Notification Laws Across States Over Time Robert Lytle, Department of Criminal Justice at the University of Arkansas at Little Rock 30 Criminal Justice Policy Review 451 (2019) Nationwide moral panic has long served as a primary explanation for sex offense laws. These laws, however, remain primarily left to state legislatures, which implies potential variation in their content over time. Variation in legislative content, to the degree that it represents implementation, not only suggests differential consequences for registrants and communities, but also it would raise questions to the sufficiency of moral panic as a sole explanation for sex offense policy change. I build upon earlier work by exploring variation in the content and timing of sex offender registration and notification (SORN) reform in all 50 states over time. After documenting variation in these laws, I present the ways in which SORN legislative content has evolved differently across states. In addition, the timing of legislative reforms differed not only across states but also within states over time. These findings have implications for existing theoretical assertions regarding criminal justice policy. ___________________________________________________________________ Challenging the Punitiveness of “New-Generation” SORN Laws Wayne A. Logan, Florida State University College of Law 21 New Crim. L. Rev. 426 (2018) Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This article examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto–based litigation would affect the viability of SORN vis-à-vis current and future potential registrants. _______________________________________________________________ Informal collateral consequences Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and the Rise of a New Penal Entrepreneurialism Alessandro Corda, Queen’s University Belfast School of Law Sarah E. Lageson, Rutgers School of Criminal Justice British Journal of Criminology (2019, online first) The privatization of punishment is a well-established phenomenon in modern criminal justice operations. Less understood are the market and technological forces that have dramatically reshaped the creation and sharing of criminal record data in recent years. Analyzing trends in both the United States and Europe, we argue that this massive shift is cause to reconceptualize theories of penal entrepreneurialism to more directly address the role of technology and commercial interests. Criminal records, or proxies for them, are now actively produced and managed by third parties via corporate decision-making processes, rather than government dictating boundaries or outsourcing duties to private actors. This has led to what we term ‘disordered punishment’, imposed unevenly and inconsistently across multiple platforms, increasingly difficult for both government and individuals to control. ______________________________________________________________________ Criminal Employment Law Benjamin Levin, University of Colorado Law School 39 Cardozo L. Rev. 2265 (2019) This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal legal system. But private employers act without constitutional or significant structural checks. Therefore, I argue that the criminal system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment. Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market. And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers. ___________________________________________________________________ Privatizing Criminal Stigma: Experience, Intergroup Contact, and Public Views about Publicizing Arrest Records Sarah E Lageson, Rutgers School of Criminal Justice Megan Denver, Northeastern University School of Criminology and Criminal Justice Justin T. Pickett, University of Albany School of Criminal Justice 21 Punishment & Society 315 (2019) Current U.S. policy allows private companies to publish arrest records prior to conviction in print and online sources, yet little is known regarding the extent to which people actively search for criminal records or whether the public supports these policies. Utilizing two large public opinion surveys (N = 1008 and N = 1601), we find that approximately 15% of Americans searched online for conviction records last year (an estimated 38 million people), but that a strong majority (88%) oppose the publication of arrest records by private companies. We measure correlates of opposition to record disclosure and find that having high-quality interpersonal contact with an arrestee diminishes support for publicizing arrest records and also tempers views of recidivism risk for those with nonviolent convictions. Findings suggest that learning firsthand about the negative consequences of contemporary criminal labels changes popularly held views on the value of immediate arrest record disclosure. _____________________________________________________________________ The Collateral Consequences of Incarceration for Housing David S. Kirk, University of Oxford, Department of Sociology In Handbook on the Consequences of Sentencing and Punishment Decisions (Beth M. Huebner & Natasha A. Frost eds., 2018), pp. 53-68. The ability to obtain safe, decent, and affordable housing is critical to the successful reentry and reintegration of formerly imprisoned individuals back into society. Yet many convicted individuals face significant barriers to securing housing, both in the private and the public market. One barrier includes the so-called “invisible punishments”—that is, the legal and regulatory sanctions beyond the criminal sentence imposed in court. For instance, certain classes of felons may be automatically and even permanently banned from receiving public housing benefits or vouchers. A second related barrier is the stigma of a criminal record. Easy access to criminal records makes it easy and efficient for landlords and other real estate professionals to access criminal history information about a prospective tenant or buyer. In fact, because of the vast racial and ethnic disproportionality in the criminal justice system, the use of criminal records in housing decisions has civil rights implications in accordance with the Fair Housing Act. A third barrier is a lack of income in combination with a dearth of affordable housing in the U.S. The employment prospects of the average convicted individual are already dismal, and an ever-growing body of research demonstrates that job prospects and wages are further undermined by criminal conviction. Without stable income, one’s housing prospects are sorely curtailed. This chapter will review what is known about the housing experiences of formerly incarcerated individuals as well as the consequences of these barriers to stable housing. ________________________________________________________________________ Criminal records, expungement, sealing, and other relief mechanisms Expungement of Criminal Convictions: An Empirical Study J.J. Prescott, University of Michigan Law School Sonja B. Starr, University of Michigan Law School Harv. L. Rev. (Forthcoming 2020). Date Posted on SSRN: March 16, 2019 Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge of legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to deidentified data that overcomes that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable non-recipients. We offer three key sets of empirical findings. First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility. Drawing on patterns in our data as well as interviews with expungement lawyers, we point to reasons for this serious “uptake gap.” Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population—a finding that defuses a common public-safety objection to expungement laws. Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within two years, wages go up by 25% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work. ____________________________________________________________________ Criminal Records, Positive Credentials and Recidivism: Incorporating Evidence of Rehabilitation Into Criminal Background Check Employment Decisions Megan Denver, Northeastern University School of Criminology and Criminal Justice Crime and Delinquency (2019, online first) Decision makers increasingly incorporate “evidence of rehabilitation” into criminal background checks. Positive credentials can decrease criminal record stigma and improve employment outcomes, but we lack research on whether rehabilitative factors used in such assessments are correlated with recidivism. The current study examines more than 1,000 state-mandated criminal background checks in the rapidly growing health care sector. Everyone in the sample received an initial denial and requested reconsideration by submitting evidence of rehabilitation. The findings indicate prior employer recommendations and program completion are positively correlated with clearance to work, but conditional on contesting in the first place, none of the evidence of rehabilitation factors are negatively correlated with recidivism. Persistently pursuing an employment opportunity through a contestation process may, in itself, signal rehabilitation and lower risk. ______________________________________________________________________ Credentialing Decisions and Criminal Records: A Narrative Approach Megan Denver, Northeastern University School of Criminology and Criminal Justice Alec C. Ewald, University of Vermont, Department of Political Science 56 Criminology 715 (2018) Decision makers such as employers and state occupational licensing officials are often encouraged or required to incorporate evidence of rehabilitation into hiring decisions when applicants have criminal records. Current policy movements at the local, state, and federal levels may increase the use of such individualized assessments. Yet little is known about which types of information these decision makers use, how they evaluate evidence, and how they ultimately make determinations. We examine a sample of 50 unarmed security guard licensing decisions in New York State using content analysis. We find that administrative law judges rely on a narrative framework to document whether applicants currently have a prosocial identity and merit licensure. Judges typically describe one of two prosocial identity narratives for successful applicants: The applicant demonstrates achieving meaningful change, or his or her criminal record represents an aberration. Two factors seem vital to these assessments: applicants’ postconviction trustworthiness, as demonstrated through good conduct or inferred through positive appraisals, and credible testimony. In narrative explanations, personal responsibility and adult milestones are often discussed, reflecting a judicial nod to the notion of a “transition to adulthood.” The results hold implications for scholars and policy makers examining employment barriers, stigma remediation, and collateral sanctions for individuals with criminal records. ______________________________________________________________________ Criminal Records and Employment: A Survey of Experiences and Attitudes in the United States Megan Denver, Northeastern University School of Criminology and Criminal Justice Justin T. Pickett, University of Albany School of Criminal Justice Shawn D. Bushway, University of Albany, Department of Public Administration & Policy 35 Justice Quarterly 584 (2018) Ban-the-Box (BTB) legislation, which bans employers from asking about criminal history records on the initial job application, is arguably the most prominent policy arising from the prisoner reentry movement. BTB policies assume: 1) most employers ask about criminal records, and 2) inquiries occur at the application stage. However, we lack reliable information about the validity of these assumptions or about public attitudes towards criminal background checks, which limits our understanding of the potential scope of this innovative policy. Using survey data from a national probability sample, we estimate that in the past year, over 31 million U.S. adults were asked about a criminal record on a job application. According to our survey, virtually all of the criminal record inquiries occurred at the application stage, highlighting the potential of BTB. However, we also found that the public is sharply divided on whether to prevent employers from asking on applications, as per BTB.