Tag: Chin

New Mexico a new leader in criminal record reforms

This year, New Mexico enacted three significant laws restoring rights and opportunities to people with a criminal record, continuing a recent trend of major reforms in this area. The three measures involve adopting most of the provisions of the Uniform Collateral Consequences of Conviction Act, authorizing automatic expungement for a broad range of marijuana offenses as part of legalization, and expanding existing law regulating public employment and licensure to prohibit consideration of many types of convictions. A fourth new law significantly limits burdens imposed by court debt. These developments follow 2019 reforms introducing expungement into the state’s legal system for the very first time—through a comprehensive system of petition-based relief for most types of criminal records—and adopting a private sector ban-the-box law. For these 2019 reforms, New Mexico earned an “honorable mention” for a productive legislative season in our reintegration report card for that year. This year’s noteworthy follow-up measures, summarized below, make New Mexico a contender for CCRC’s “reintegration champion” award in 2021. Expungement and collateral consequences relief Two years ago, New Mexico enacted a comprehensive expungement law that extended to most non-conviction records after a one-year waiting period, and to conviction records for all but the most serious violent and sexual crimes after conviction-free waiting periods ranging from two to ten years upon a court finding that “justice will be served.” (See the New Mexico profile of our Restoration of Rights Project for more details.) This year, New Mexico enacted SB 2, described in our report last month on marijuana legalization and expungement, which will automatically expunge a wide range of marijuana arrests and convictions. In another major development, New Mexico became the second state (following Vermont) to adopt most of the provisions of the Uniform Collateral Consequences of Conviction Act (UCCCA), by enacting SB 183. New Mexico’s UCCCA supplements its expungement laws in several ways, by authorizing relief from collateral consequences as early as sentencing, and by recognizing out-of-state record relief. It requires collection of all collateral consequences in state law and their publication on the internet. It requires defense counsel to notify their client about mandatory collateral consequences in preliminary proceedings and prior to entering into a plea, and the court and other government agencies are required to confirm such notice at sentencing and on release. Section 10 of New Mexico’s UCCCA authorizes the court on petition, at or after sentencing, to relieve one or more mandatory collateral consequences, “if granting the petition will materially assist the individual in obtaining or maintaining employment, education, housing, public benefits or occupational licensing” and generally facilitate the defendant’s reintegration. A Section 10 order is “evidence of a person’s due care in hiring, retaining, licensing, leasing to, admitting to a school or program or otherwise transacting business or engaging in activity with the individual to whom the order was issued if the person knew of the order at the time of the alleged negligence or other fault.” Perhaps the most unusual and forward-looking features of New Mexico’s UCCCA, also adopted by Vermont, involve the relief extended to individuals with federal and out-of-state convictions: state agencies are required to recognize relief from other jurisdictions, and state courts are authorized to grant Section 10 relief to individuals with federal and out-of-state convictions. These steps toward coordinating relief across jurisdictions will hopefully not be lost on other state legislatures.  As CCRC’s board chair Jack Chin recognized in his introduction to our survey of the national landscape of record relief last fall, In a mobile, federal society, relief must be coordinated across jurisdictions, including within a single state. Most jurisdictions impose collateral consequences based on out-of-jurisdiction convictions, but it is not so clear that they give effect to out-of-jurisdiction relief or open their own relief systems to outsiders. People should not, ideally, be required to seek relief from multiple jurisdictions to avoid collateral consequences flowing from a single conviction. The New Mexico UCCCA excepts certain consequences related to sex offenses, driver’s license suspension, firearms dispossession, and law enforcement certification. The law is effective January 1, 2022, but will not affect imposition of a collateral consequence until six months after publication of the consequences provided for in Section 4. Public employment and occupational licensing The third new law, discussed in a posting last week, revised New Mexico’s 1970’s-era law regulating public employment and licensure to prohibit consideration of many different types of convictions, including those that have been expunged or pardoned, juvenile adjudications, and convictions that are “not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.” The new law also prohibits consideration of misdemeanor convictions by public employers and licensing agencies, including even convictions involving sexual or violent conduct except in the narrowest circumstances, giving New Mexico the broadest misdemeanor protections in the nation.  (New Mexico’s public employers and licensing boards were already prohibited under existing law from considering non-conviction records, and felony convictions that were not “directly related” to the employment or occupation at issue.) Relief from court debt Another noteworthy new law, though not directly providing for record relief or restoration of rights, significantly limits the burdens imposed by court debt, particularly for juveniles. HB 183 requires the court to pay the cost of court-appointed counsel, as well as the cost of a court-appointed guardian ad litem and witness travel in juvenile cases. It also bars imposition of any court costs, fees or fines on juveniles. Fines and fees and other court costs are not only a significant burden on individuals and communities, but they may also serve as barriers to restoring voting rights, obtaining expungement, and pursuing economic opportunities. Other relevant legislative action New Mexico’s legislature left a House-passed bill on the table that would have restricted disenfranchisement to the period of actual incarceration.  It would also have directed efforts to encourage people leaving prison to register to vote.  We hope the legislature will return to the issue of voting when it reconvenes. Read more

Federal Certificate Offers New Hope for Americans in ‘Internal Exile’

The title of this post is the title of our op-ed in The Crime Report in support of a bipartisan Senate bill that would authorize judges to issue a “Certificate of Rehabilitation” to qualified individuals with federal convictions.  The bill in question was included in the Business Roundtable’s “Second Chance Agenda,” which was the subject of a post here two weeks ago.  The op ed is reprinted below: Federal Certificate Offers New Hope for Americans in ‘Internal Exile’ The collateral consequences of a federal conviction have thrust many Americans into what some have termed an “internal exile.” Barriers that prevent full reintegration into society are liberally distributed in federal and state laws and regulations. Congress is now weighing a new form of relief—a Certificate of Rehabilitation—intended to address the absence of any general federal restoration of rights regime, leaving aside the once-robust, now rare and erratic presidential pardon power. Under the proposed RE-ENTER Act of 2019 (S. 2931), the certificates would be issued by a judge to alleviate the burdens of a criminal record. The concept was pioneered by New York more than half a century ago, and is currently authorized in 12 states. It has been recommended by the major national law reform organizations. Now more than ever, there is a pressing need for judicial relief to supplement the federal pardon power: President Donald Trump’s neglect of the Justice Department advisory process has produced a 3,000-case backlog of post-sentence pardon applications. So far, the RE-ENTER Act has been languishing in committee, despite bipartisan support. While the Senate is otherwise occupied at the moment, a recent endorsement by the Business Roundtable may have given it new momentum. It’s possible that S. 2931 will be considered in the lame duck session or reintroduced after the new Congress is seated. For tens of thousands of Americans, that would be welcome news. There are several things to like about the bill. The certificate has credibility, because it will be issued by a U.S. District Court after notice, with investigation by the Office of Probation and Pretrial Services, and the opportunity for input from the Department of Justice and victims. The court has wide discretion to consider a range of factors, but the Chief Probation Officer’s recommendation creates a rebuttable presumption in favor of issuance. The Federal Defender or appointed counsel may assist applicants in their petitions. Individuals are entitled to notice of the availability of certificates, and they may apply at sentencing if not sentenced to imprisonment, or after one year of post-release supervision. This opportunity could particularly benefit people who demonstrate rehabilitation following conviction for a more serious offense. Such individuals are often excluded entirely from relief measures such as the bipartisan Clean Slate Act of 2019 (H.R. 2348), which sets out a path for automatic sealing of non-conviction records and certain drug convictions, and petition-based sealing of some other nonviolent convictions. The downside of the legislation is that it gives certificates limited and uncertain legal effect. The operational part of the bill grants certificate holders limited relief from a handful of specific federal collateral consequences: A presumption against termination of federal housing benefits based on conviction; The right to be considered by federal judges as suitable for seating as grand or petit jurors; The right to have the certificate considered in connection with enlistment in the armed forces; A relaxation of required loss or suspension of federal benefits under 21 U.S.C. § 862 as part of a drug sentence; and The right to have the certificate “factor in favor of a clemency application” when the attorney general is considering a recommendation to the president. But there are many other federal collateral consequences that are not listed. Another part of the law appears to contemplate much more dramatic effects of the certificate. In grand, formal language, the bill explains that it is the “sense of Congress” that “a Federal certificate of rehabilitation shall act as an expungement of any prior conviction of an eligible offender for the purposes of any employment, licensing, education, housing, or other determination;” and, that a certificate should constitute “evidence of due care” in employment, housing and a variety of other contexts. It is unclear exactly what “expungement” means in this context since a certificate would not limit access to the record. Read broadly, this language may be intended to bar consideration of a certificate holder’s prior convictions in most public and private contexts. However, the Supreme Court has held that “sense of the Congress” statements are not binding law, even if included in a bill passed by both houses and signed by the President. The ambition of S. 2931, therefore, is much greater than its actual mandate. Given the power of Congress over at least federal activities, federally funded programs and the Federal Rules of Evidence, as well as under the Commerce Clause, it is not clear why the effects in the “sense of Congress” section were not made enforceable by law. We hope Congress will clarify and expand the bill, looking perhaps for models to the certificates issued in New York and Ohio, both of which relieve mandatory consequences and create a rebuttable presumption against adverse treatment by discretionary decision-makers. Another approach is offered by model laws from the American Law Institute, the Uniform Law Commission and the American Bar Association, which authorize relief at sentencing to remove specific economic barriers to reentry, with more comprehensive relief available to signify rehabilitation after a waiting period. The limits of this bill also reflect one of the unresolved problems in restoration law generally, which is the failure of most U.S. jurisdictions to deal with inter-jurisdictional issues. Even a pardon issued by one state is not always given effect by another. Here, the bill does not address whether states will give effect to a federal court’s certificate. S.2931 could take a major step toward addressing the inter-jurisdictional problem through making a reciprocal commitment to not impose federal consequences against anyone who has received relief from a state that agrees to give effect to a federal certificate. As between the states, the effect of state relief outside its borders could be dealt with through an interstate compact, like the one that already governs access to criminal records, with some national standards. But if it is “take it or leave it” as S. 2931 now stands, we will take it. People with certificates will submit them to potential employers, landlords and licensing agencies, many of whom will correctly conclude they mean something. Studies in Ohio found that individuals who had been issued certificates were more likely to get an invitation to interview from an employer than those without. There have been similar findings for housing rental applications, and at rates not far removed from rates for those without a criminal record. The presiding judge of the Cook County Criminal Court in Illinois called his state’s certificates “a tool for redeeming people,” and a legal aid lawyer in North Carolina noted that a court’s certification “makes what has happened since the crime a fully official part of that person’s record, for all employers to see.” At the end of the day, part of a loaf is better than none, and the RE-ENTER Act is an encouraging start. Read more

CCRC scholarship round-up – August 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. Read more

Erasing the line between felony and misdemeanor

Two provocative new scholarly articles examine the extent to which the crisp line historically drawn in law between felonies and misdemeanors is becoming increasingly ephemeral.  In Informed Misdemeanor Sentencing, Jenny Roberts points out that conviction of a misdemeanor has become exponentially more serious in recent years as the associated collateral consequences have increased in number and severity.  She urges judges to “explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.”  She recommends that sentencing courts should make “more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.” Jack Chin and John Ormonde make essentially the same point about the blurring of the old distinction between felony and misdemeanor in a forthcoming article in the Minnesota Law Review.  In Infamous Misdemeanors and the Grand Jury Clause, they point out that “[i]n the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment.”  They conclude that, because of the stigma that attaches to any criminal record, the Fifth Amendment requires that “many more federal offenses should be prosecuted by grand jury indictment than is now the practice.” It is impossible to determine exactly how many of the 48,000 consequences collected in the National Inventory of the Collateral Consequences of Conviction are triggered by a misdemeanor conviction, but so many legal and regulatory consequences attach to specific categories of offenses that include misdemeanors (e.g., drug crimes, sexual offenses, crimes involving dishonesty), it is likely a substantial portion.  Moreover, given the ubiquity of criminal background checking pervading every area of modern life, even a criminal record involving dismissed misdemeanor charges may result in discrimination and exclusion. Below are the abstracts for these two articles: Jenny Roberts, Informed Misdemeanor Sentencing, 46 Hofstra Law Review 177 (2017)   There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant. But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords.Under most theories of punishment, a judge at sentencing does not simply look back to the crime and its circumstances but also looks forward at the defendant’s future. Judges imposing sentences in misdemeanor cases should focus forward much more heavily than back, and should consider the collateral effects of a misdemeanor conviction on the defendant’s future. Viewed through that more expansive lens, and given the broad discretion of judges in misdemeanor sentencing and lack of existing guidance for that discretion, the sentencing function of judges in misdemeanor cases is in serious need of study and reform. This Article’s goal is two-fold. First, it contextualizes judicial responsibility for misdemeanor sentencing in the realities of the lower criminal courts, where a number of structural and systemic barriers — including violations of the right to counsel and pressures on judges to move cases along rapidly — affect but do not excuse the way judges go about sentencing. Second, the Article calls for judges to undertake “informed misdemeanor sentencing,” which draws on principles of proportionality and parsimony in determining the just sentence in a misdemeanor case. Accordingly, judges should explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate. In addition, judges should bring parsimony into the sentencing process by making more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction. Gabriel Jackson Chin & John Ormonde, Infamous Misdemeanors and the Grand Jury Clause, 102 Minnesota Law Review___ (2018)(forthcoming). Under an overlooked body of constitutional law, many more federal offenses must be prosecuted by grand jury indictment than is now the practice. Current rules provide that felonies must be prosecuted by grand jury indictment, but misdemeanor charges may be based on a prosecutor’s information, or even a “ticket” issued by a law enforcement officer. However, serious consequences fall on people convicted of federal misdemeanors, including deportation, sex offender or other criminal registration, ineligibility for public benefits, and loss of civil rights. In the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment. The Court held that infamous offenses were ones potentially resulting in stigmatizing punishments degrading the offender’s status, indicating that the person is less than a full member of the community. These include corporal punishment, incarceration in a prison or penitentiary (as opposed to a jail), loss of civil rights or imposition of civil disabilities, and convictions implying moral turpitude. Many federal misdemeanors carry these consequences. And federal misdemeanors are much more likely to be dismissed without trial than felonies. More thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge. As a result, thousands of Americans would avoid the stigma of a criminal record where it is unwarranted. This is what the framers of the Constitution intended. Read more