Tag: California

Clean slate remedies help overcome collateral consequences

Eliza Hersh, director of the Clean Slate Clinic at the East Bay Community Law Center and one of CCRC’s contributing authors, has co-authored a most persuasive op ed in the LA Times, which we are pleased to reprint here in full.   Should a shoplifting conviction be an indelible scarlet letter? Not in California What exactly is the appropriate punishment for someone who commits a low-level, nonviolent crime? Should a conviction for minor drug possession, shoplifting or writing a bad check result in a lifetime of stigma and denied opportunities, or do people with criminal records deserve a second chance? In November, California voters took a clear stand on these issues when they passed Proposition 47 and reclassified eight nonviolent felonies to misdemeanors for people without prior serious convictions. Proposition 47 allows for the resentencing of many who have been convicted of such crimes, reducing the amount of time they serve, lowering state and county incarceration costs and chipping away at decades of overly punitive criminal-justice policies. But this common sense reform alone won’t necessarily change the lifelong punishment experienced by many people with a criminal record. Today, a criminal record — even for a low-level misdemeanor or infraction — acts like an indelible scarlet letter. Until relatively recently, employers, landlords and others rarely requested criminal records, which could be accessed only by sifting through physical files in a local courthouse. With the post-9/11 push for more background checks, the advent of online databases and the steep increase in the number of people with convictions, criminal records have become a serious barrier to employment, housing, education and other forms of civic participation for millions of Californians. New fair-chance hiring laws help reduce discrimination against people with criminal records by removing conviction history questions from initial job applications and postponing background checks until later in the process. But California has an additional remedy. Laws long on the books allow judges to dismiss old convictions, a recognition that people who have successfully completed their sentences should be free to rejoin society without disabling consequences. The dismissal remedy doesn’t erase the record completely, and it is not available in all cases, but it can restore rights and reduce barriers for many people. People who have successfully completed their sentences should be free to rejoin society without disabling consequences.- These dismissal laws, however, are obscure and complex. The process can require a lot of paperwork and a court appearance, or even multiple appearances in more than one county. As a result, far too many Californians remain saddled with convictions that are otherwise eligible for dismissal. The East Bay Community Law Center, a teaching law office affiliated with UC Berkeley School of Law, tries to address these problems. Since establishing its Clean Slate Clinic a decade ago, the center has helped several thousand people obtain record-clearing remedies with the aim of reducing the collateral consequences of convictions and lowering the risk of recidivism. Under the supervision of attorneys, law students interview the clinic’s clients, draft their declarations, prepare them for court hearings and, if necessary, later represent them in civil and administrative proceedings to redress unlawful discrimination in employment, housing and professional licensing. The process can be long and emotional. People with criminal records are grappling with painful episodes from the past and hopeful aspirations for the future. But the results can be equally rewarding. While Berkeley law students have been serving clean-slate clients, University of California researchers have been studying the results. We already know that clean-slate interventions increase a person’s ability to get a job and provide him or her with a profound sense of relief: No more skeletons in the closet. But the benefits go far beyond that: In surveys, focus groups and in-depth interviews, people who’ve had their records cleared express a sense of accomplishment (increased confidence and self-esteem), a sense of hope (a focus on the future) and a sense of agency (control over their lives). Significantly, the clean-slate process itself — not just the outcome — appears to create a kind of status enhancement ritual, or rite of passage, helping people move from their old life into a new one. Proposition 47 takes an important step toward addressing the consequences of mass incarceration in California. Tens of thousands of people will benefit from it. The Legislative Analyst’s Office estimates that the state and counties will each save hundreds of millions of dollars annually as a result of lower incarceration rates. But rebuilding lives and communities will not flow automatically from the new law. As we take additional measures to reverse the most damaging effects of our tough-on-crime policies, we will need to invest time and resources in clean-slate programs that help people with criminal records go through the challenging process of re-integrating into our families, communities and society. Read more

How risky is pardoning? Not as risky as committing uninformed journalism

An AP story about the perils of pardoning, picked up by newspapers and media outlets across the country, manages to convey three pieces of misinformation in its very first sentence.  Riffing off a recent high profile pardon application, it begins like this:  “Mark Wahlberg’s plea for a pardon has focused fresh attention on excusing criminal acts – something governors rarely do because it’s so politically risky.” But pardons do not “excuse” crimes, they forgive them; governors have been pardoning more and more generously in recent years; and pardoning, like any other government program involving personal participation by a high profile elected official, is generally not risky if done in a responsible manner with good staff support and without apology. The AP article (Steve LeBlanc, “Wahlberg Plea Underscores Risk of Issuing Pardons”) supports its tired “politically risky” thesis with three examples from the last twenty years of governors’ pardons gone bad: two involve bad staffing, and the third dubious causality.  (Mr. LeBlanc could have found plenty more examples of poor pardon staffing resulting in executive embarrassment in the recent annals of presidential pardoning.) The article does not mention that Massachusetts is one of only a handful of states whose governors have stubbornly refused to use their beneficent executive power even in the most sympathetic cases.  It fails to see any irony in Governor Patrick’s delay in acting on expanded criteria for issuing pardons he announced almost a year ago.  It also does not mention that pardoning has been alive and well for some time in more than a dozen states, and has enjoyed a renaissance under current governors in Illinois and California. While former Maryland governor Robert Ehrlich is no longer the only responsible living pardoner in the country, as this writer once proposed, he certainly has the right idea about pardon being “part of the job” for any governor.  Ehrlich has embarked on a commendable campaign to educate governors to this idea.  It would be nice if more members of the working press were interested in encouraging responsible executive action instead of using misinformation to discourage it.  At least the editorial pages seem to have figured it out. Read more

Collateral consequences and the curious case of Mark Wahlberg

Actor-producer Mark Wahlberg has filed an application for pardon with the Governor of Massachusetts, seeking forgiveness for a 25-year old assault conviction that occurred when he was 16 years old.   The “onetime ruffian from Dorchester”  bases his request for pardon on his rehabilitation and contributions to society since his conviction.  He also specifies his desire to avoid certain legal restrictions that he claims are impeding his business endeavors and civic activities. By his own account, Mr. Wahlberg was a troubled teen who had a history of scrapes with the law by the time of the 1988 assault. He states in his pardon application that, if he had not turned his life around with the help of “faith, hard work, and guidance from some incredible mentors,” he “would likely have ended up like so many of my childhood friends from Dorchester: dead or in prison for a prolonged period of time.”   He expresses remorse for his actions on the night of the assault, as well as “any lasting damage that I may have caused the victims.” He does not specify what that damage might have been, though news reports indicate that it was serious and possibly permanent. As to his reasons for seeking a pardon, he claims that “my prior record can potentially be the basis to deny me a concessionaire’s license in California and elsewhere, “an important consideration given my personal involvement in various restaurant ventures,” presumably a reference to the fast-expanding chain of Wahlburgers.   He believes that, if pardoned, “I could not be denied a concessionaire’s license on the basis of my prior record,” which may or may not be the case.* Wahlberg also proposes that a pardon would enable him to become “more active in law enfor cement activities, including those that assist at-risk individuals.”  He states that only a full and unconditional pardon would, under California law, enable him to “obtain a position as a parole or probation officer.”  True enough, but an improbable ambition for an A-List movie star.  He disavows in his application any immediate interest in obtaining a firearms permit — leading this writer to wonder if one is required on location. Wahlberg offers another “more complex” reason for wanting a pardon: The more complex answer is that receiving a pardon would be a formal recognition that I am not the same person that I was on the night of April 8, 1988.    It would be formal recognition that someone like me can receive official public redemption if he devotes himself to personal improvement and a life of good works. My hope is that, if I receive a pardon, troubled youths will see this as an inspiration and motivation that they too can turn their lives around and be formally accepted back into society. It would also be an important capstone to the lessons that I try to teach my own children on a daily basis. Wahlberg’s pardon quest faces formidable procedural hurdles under Massachusetts law, though he may be able to take advantage of a special fast-track procedure for “particularly meritorious” applications put in place by Governor Patrick last January.  And, no pardons have been granted by a Massachusetts governor since 2002. (Governor Patrick has indicated his intention to grant four pardons, the first of his tenure, but any pardon grants must be approved by the State’s Executive Council, an elected body that has announced its intention to hold hearings on the four cases.) Wahlberg’s barebones description of the episode that led to his conviction, as well as his apparent failure to recognize the serious injuries he caused his victims and to apologize to them, may also be held against him. Finally, his road to redemption may have been somewhat rockier than would be suggested by the dated nature of his criminal record, and the redemption itself of relatively recent vintage. All the same, whenever a celebrity with a plausible case for pardon comes forward to request relief, it reminds the public of why the pardon power exists in the first place, both for the person requesting it and for the person of whom it is requested:  to recognize redemption, to set an example for others, and to avoid the legal disabilities and stigma that linger years after the fact of conviction.  Whatever the merits of Wahlberg’s request for pardon, and whatever its fate, it shines a light on a beneficent power that has atrophied in Massachusetts.  Hopefully it will encourage the revival of ordinary pardoning for the dozens of ordinary individuals whose futures may depend on it.  As one Boston defense lawyer told the Boston Globe, “If someone high-profile like Wahlberg wants to get a pardon and he’s able to secure a hearing then maybe it gives a road map to the rest of us.” LATE BREAKING NEWS – In a bit of good news for Mark Wahlberg’s otherwise-foundering pardon bid, one of his victims has come forward to say that 1) Wahlberg didn’t hurt him that badly; and 2) he forgives him.   On December 11, the Daily Mail reported that Johnny Trinh, who was thought to have been blinded by Wahlberg in the 1988 attack that resulted in his conviction, actually incurred this injury years before while fighting Communists in the Vietnam War.  “He did hurt me, but my left eye was already gone. He was not responsible for that.”  Now living in Arlington, Texas, Trinh told the Daily Mail that he is happy for Wahlberg to be given a pardon: “He was young and reckless but I forgive him now. Everyone deserves another chance.”   Trinh said that he would like to meet Wahlberg face-to-face to tell him he doesn’t bear a grudge.  Note to MW:  Go see Trinh if you want that pardon. * It appears that a pardon would preclude consideration of Wahlberg’s record by Massachusetts licensing authorities, but it is far from clear what effect a Massachusetts pardon would be given by licensing authorities of other states.  See Blackwell v. Haslam, 2013 WL 3379364 (Tenn. Ct. App. Jun 28, 2013) (remanding for consideration whether giving effect to a Georgia pardon restoring firearms rights to a drug offender violates Tennessee’s public policy against restoring firearms rights to violent drug offenders). In most U.S. jurisdictions, the conduct underlying the conviction could still be considered notwithstanding a pardon.See generally Flynn Patrick Carey, Extending the Home Court Advantage:  A Call to Update the Arizona Civil Rights Restoration Scheme, 48 Az. L. Rev. 1129 (2006), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=961965.    Read more

California’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights)

Prop 47 and restoration of rights  California’s recently enacted Proposition 47 fundamentally alters the landscape for a handful of lower-level felony offenses in California. As discussed by Jeffery Aaron in a previous post, Prop 47 reclassifies eight offenses as misdemeanors, including simple drug possession offenses and theft of less than $950. Anyone with a qualifying conviction, who also does not have a disqualifying prior, can now petition under Prop 47 to have a felony reclassified as a misdemeanor. The most significant and immediate relief will be for people who are incarcerated for qualifying low-level felonies and who are now eligible for resentencing and release. Public defender offices around the state are busy filing those petitions. But, Prop 47 also allows two other populations to petition for reclassification of their qualifying felonies to misdemeanors: People who are under supervision but not incarcerated (on probation, parole, or post-release community supervision), and people whose sentences were completed long ago. This aspect of the new law presents good opportunities for tens of thousands of Californians, and not insignificant implementation challenges. Simply by reclassifying certain offenses from felonies to misdemeanors, Prop 47 can undo some of the most serious collateral consequences.  It’s clear from our experience providing reentry legal services to thousands of clients over the years that people with felony, as opposed to misdemeanor, convictions face increased barriers to employment, housing, and full and meaningful community reintegration and citizenship. For example, people with a felony conviction, even a decades-old low-level offense, can never serve on a jury in California. For many people, Prop 47 will reverse this lifetime disenfranchisement and move them one step closer to full civic engagement. But unfortunately, many of the statuary and extra-legal barriers to successful reentry that block people convicted of felonies also apply to people with convictions for misdemeanors and criminal infractions. Consequently, Prop 47 relief alone is not a cure-all for collateral consequences, and for most people it’s not even the most important petition they can file to overcome the statutory disabilities they face.  The following section describes how Prop 47 relief interacts with other California relief mechanisms. Interaction of Prop 47 with other relief mechanisms In California, meaningful protection against employment discrimination on the basis of a conviction—felony or misdemeanor—comes from a complicated web of local, state, and federal laws and regulations, including sections of the Penal, Labor, and Business and Professions Codes, the federal Fair Credit Reporting Act and its California analogue, and local ordinances. Most of our reentry clients become employable through these steps: First, we help them petition to obtain set-aside and dismissal relief pursuant to Penal Code sections 1203.4 (felony and misdemeanor probation cases), 1203.4a (misdemeanor and infraction non-probation cases), and 1203.41 (felony jail cases) for all convictions. (Note:  While these authorities are sometimes called “expungement,” there is no true record-closing remedy for most cases; these “dismissed” convictions remain on a person’s record and in public court records, do not restore driving privileges or gun rights, and still must be reported for many types of employment). Second, we help them navigate the complicated obligations of disclosure, and where applicable, invoke the protections under Labor Code section 432.7(a) that prohibit some—but not all—prospective employers from inquiring about or considering dismissed convictions for some—but not all—jobs. Third, if a background check company reports dismissed convictions to a potential employer in violation of the law (and chances of that are unfortunately high), we help them invoke protections under the Fair Credit and Reporting Act and its California analogue, and try to convince the background check provider to disseminate a corrected report check in a timely way. Fourth, we work to convince the employer to make the hire despite the erroneous background check, and if the employer declines to reconsider, we invoke the protections of Title VII of the Civil Rights Act, where applicable, and local ordinances, such as San Francisco’s Fair Chance Ordinance. Note that there are different, even more complicated laws, regulations, and processes covering the 30% of jobs in California that require fingerprint clearances. If threading this needle sounds daunting, imagine what it’s like for people doing it without the benefit of legal advocacy. Prop 47 creates a welcome additional reentry remedy to the web of reentry and restoration laws in California, but also creates additional complexities.  There are many different routes to relief in California, depending on the disposition of the criminal case, and Prop 47 reclassification may not be the only or even the best route available.  For example, someone who is a licensed security guard who has an old conviction for simple possession of drugs may be eligible for Prop 47 reclassification, but he may also be eligible for a reduction of a felony to a misdemeanor pursuant to Penal Code section 17(b). If he receives Prop 47 relief, he continues to face a lifetime firearm ban. If he obtains 17(b) relief, he may have his firearm rights restored, and can apply for a license as an armed security guard, a pathway to employment with family-sustaining wages — something out of reach for many in the reentry population, even those who do have jobs. More broadly, people will need to affirmatively file for Prop 47 relief, and for some offenses prove eligibility. In order to take full advantage of protections that limit collateral consequences of conviction beyond reclassification, they need to determine if they are eligible for other reentry remedies and file for those in all of their cases in all counties, including but not limited to early termination of probation, set-aside and dismissal, Certificate of Rehabilitation, restoration of rights for veterans pursuant to Penal Code section 1170.9, juvenile record sealing, and reduction of felony fines and fees. And the many people who will learn that they are ineligible for Prop 47 relief will need advice about other legal remedies that can help them realize their goals in reentry. Immigration It is particularly important that non-citizens understand the impact of Pro 47 relief in their cases. Changing a felony to a misdemeanor could have many important consequences for immigrants.  It could expand relief from removal for some, and eliminate the basis of removal for others. Crucially, Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA)—announced by President Obama November 20, 2014—are barred to immigrants with a single felony conviction and certain misdemeanor convictions. Reclassifying an offense as a misdemeanor under Prop 47 could create an opportunity for temporary relief from removal and work authorization that would otherwise be unavailable to many individuals. Additionally, when combined with another momentous change this year to California’s Penal Code under SB 1310, which reduced the maximum on misdemeanors from 365 to 364 days, Prop 47 reclassification could eliminate a ground of deportability. The timing of relief is also important to consider. Immigrants who would benefit from the 1-day reduction in the misdemeanor maximum should wait until January 1, 2015, when the new law, Penal Code section 18.5, goes into effect, before seeking relief under Prop 47. But, at the same time, Prop 47 will unfortunately do little to mitigate the disastrous immigration consequences of most drug convictions. With the exception of DAPA/DACA eligibility (which is available to otherwise qualifying individuals with one misdemeanor drug possession conviction), almost all other drug convictions, even if reclassified as a misdemeanor under Prop 47, will continue to be grounds for mandatory removal. Summary  The release of people from prison currently serving sentences for low-level offenses is an unmitigated success of Prop 47. For people no longer in custody and who have completed their sentences, Prop 47 is a welcome addition to the tangle of laws that form California’s reentry policy. However, to fully realize Prop 47’s promise to limit the counterproductive, costly, and inhumane collateral consequences of low-level felony convictions, implementation of this law must include reentry legal services to help people address the unique issues in their cases. And it’s not clear that county public defender offices have the expertise or resources to take on this full range of legal advocacy—which includes immigration, employment, consumer, and administrative law—for their thousands of past clients. It’s important to figure out, and quickly, how to make these services widely available. California has only three years to get this right.   This post was co-authored by Meredith Desautels. Meredith is a staff attorney in the racial justice program at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and directs the Lawyers’ Committee’s Second Chance Legal Clinic. Rose Cahn, a Soros Justice Fellow at the Lawyers’ Committee specializing in post-conviction relief for noncitizens, also contributed substantially to this piece.  Read more

California’s Proposition 47 and collateral consequences: Part I (sentencing consequences)

In the general election on November 4, 2014, California voters approved Proposition 47 with almost 60% of the vote.  The Proposition will impact a wide range of sentences in California courts, and in the federal courts as well.  A number of crimes that could be, and often were, charged in California as felonies, such as commercial burglary, forgery, grand theft, and certain drug crimes, will now be charged as misdemeanors, so that their effect on a person’s criminal history will be substantially diminished.  A whole range of state felony drug offenses that could result in enhanced sentences in federal drug cases, even life imprisonment, or career offender status under the United States Sentencing Guidelines, have overnight become relatively harmless misdemeanors. Significantly, Proposition 47 applies not only to persons who are currently “serving a sentence,” but also to those who have already fully served their sentences.  This means that thousands of people with California felony convictions can under certain circumstances petition to have their case recalled, the crime re-designated a misdemeanor, and be resentenced.  Once reduced to misdemeanors, qualifying crimes can be set aside under California Penal Code § 1203.4 (felony or misdemeanor cases sentenced to probation) or 1203.4a (misdemeanor cases sentenced to prison).  These provisions allow a defendant to withdraw his plea of guilty, enter a not guilty plea, and have the judge dismiss the case.  The record can then be expunged. The importance of this retroactive effect of the new law cannot be over-estimated.  While Proposition 47 gained popular support as a way of reducing California’s prison population, its broadest and most significant long-term effect may be to reduce the impact of collateral consequences on people in the community.  For criminal defense lawyers, Proposition 47 offers a significant way to reduce a client’s exposure in subsequent prosecutions. It is amazing that just a few months ago, a defendant with two prior felony drug possessions in state court, and currently charged with drug distribution in federal court, faced a mandatory sentence of life imprisonment.  Now he can have those California priors reduced to misdemeanors, and then dismissed, so that, under certain circumstances, they can no longer be used to enhance the federal sentence.  Generally, convictions that are set-aside for reasons not involving innocence or errors of law will still result in criminal history points.  Counsel might argue in resentencing that the reduction from felony to misdemeanor supports a finding that the conviction over-represents the defendant’s criminal history. People whose federal sentences were enhanced in the past by crimes that are now misdemeanors under state law may be able to seek relief, after their state convictions are set aside. Custis v. United States, 511 U.S. 485, 497 (1994).    Johnson v. United States, 544 U.S. 295, 303 (2005), cited both Custis and Daniels v. United States, 532 U.S. 374, 381 (2001), for the proposition that “a defendant given a sentence enhanced for a prior conviction is entitled to a reduction if the earlier conviction is vacated.” Finally, Prop 47 may offer support to those seeking clemency.  When a person’s record of multiple felonies is suddenly transformed into multiple misdemeanors, the case for commutation of sentence becomes even more convincing. The Proposition provides relief to anyone convicted in the past of a wide range of property and drug crimes, as long as the person does not have a “disqualifying prior.”  Disqualifying priors include offenses requiring sex offender registration, and specified violent offenses.  For example, the crime of 2nd degree burglary/commercial burglary where the value of the property did not exceed $950, becomes a new misdemeanor called “shoplifting.”   If the value of a forgery or theft involves less than $950, the crime becomes a misdemeanor.  Similar treatment is given to felony insufficient check funds convictions, and receiving stolen property.  Simple possession of heroin, “concentrated cannabis,” and methamphetamine, once charged as felonies, are now misdemeanors. Simply by going to court to have their felony charges converted to misdemeanors, people can end up with a criminal record that looks very different, and has a very different effect. There are a huge number of eligible Proposition 47 cases out there.  For example, by the Friday following the November 4th election, San Diego County Public Defenders had submitted nearly 5000 petitions for conversion of felonies to misdemeanors.  There are a lot of resources already on the web, for example http://www.safeandjust.org/recordchange.  More will doubtless be appearing in the days ahead. (Ed. Note:  The impact of Prop 47 in the civil context, notably on employment and licensing opportunities, and on immigration status, will be the subject of Part II of this article.)  Read more