Tag: Crime Report

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

A plea to stop labeling people who have a criminal record

On April 22, Virginia Governor Terry McAuliffe issued an executive order restoring civil rights to more than 200,000 individuals once convicted of felonies.  His courageous action is welcome and long overdue, and there are now only three states nationwide that permanently disenfranchise people based on a felony conviction.  The Governor’s press release promises new restoration orders on a regular monthly basis as additional individuals become eligible — the model followed in Iowa between 2005 and 2011, when convicted individuals were restored to the franchise under a similar executive process before it was discontinued by a Republican governor. The one sour note on an otherwise happy occasion was the pervasive use of the word “felon” in print and media accounts to describe the beneficiaries of Governor McAuliffe’s action.  This ugly stigmatizing label has been broadly criticized as counterproductive to reintegration efforts, perpetuating stereotypes about people with a criminal record and encouraging discrimination against them.  While the Governor himself was careful with his language, not a single major newspaper reporting on his action could resist including the word in its headline. It is not that hard to avoid.  For example, instead of announcing that “Virginia Governor Restores Voting Rights to Felons,” the New York Times might just as accurately have told us that “Virginia Governor Restores Voting Rights to Thousands” — and in the bargain conveyed an additional useful piece of information about the scope of the order.  Over the weekend, the Washington Post could have told us that “Governor McAuliffe’s Move on Voting Rights Upends 2017 Races,” and anyone who cared would have known exactly what was meant. The problem is not confined to headline-writers, or to journalists new to the issues.  Senior reporters at The Times used the word “felon” 37 times in two articles published on April 23. One of the articles added the meaningless prefix “ex-,” seeming to concede the problem without dealing meaningfully with it. The one bright spot at The Times — and a very bright one at that — was provided by its editorial board, which put Governor McAuliffe’s action in the larger voting rights context and avoided labels entirely, showing that where there’s a will there’s a way. On the eve of National Reentry Week, it seemed timely to reprint a piece written several years ago for The Crime Report, in an earlier (and evidently unsuccessful) effort to persuade journos of good will to stop using the term because of its negative effects in an increasingly important area of public policy.   What’s in a Name? A Lot, When the Name is “Felon” March 13, 2012 By Margaret Colgate Love At a recent conference of journalists at John Jay College, I raised an issue I have about language in the media:  the frequent use of the word “felon” to describe a person who has been convicted of a crime. One recent example, in a Washington Post story this month, is headlined: “Erhlich plans law school clinic, training program for felons seeking pardons.” “Felon” is an ugly label that confirms the debased status that accompanies conviction.  It identifies a person as belonging to a class outside many protections of the law, someone who can be freely discriminated against, someone who exists at the margins of society. In short, a “felon” is a legal outlaw and social outcast. But the word “felon” does more work than that. It arouses fear and loathing in most of us.  I confess that it arouses those visceral feelings in me.  I do not want to live or work around felons.  I do not want to socialize with them. The word “felon” conjures up images of large, scary people (men, of course) whose goal in life is to steal my things and hurt me, the staple weekend fare on MSNBC.  Affixing an “ex-” changes nothing. Felons deserve a wide berth and whatever opprobrium they get. I make a living representing people who have been convicted of a crime.  They are, for the most part, very interesting and thoughtful people who have a great deal to offer society.  In many cases, it is precisely their experience in the criminal justice system that has made them this way. So it is hard for me to think of my clients as “felons.”  And yet that is the label they must bear, in the workplace, in their communities, and in society at large.  It is an unhelpful label and in many cases it is deeply unfair.   My clients come to me because they hate the label, because they want it removed, because they think they don’t deserve it. And they are right.  They are all right. In the Middle Ages, and even in the early days of our own Republic, felony convictions were hanging affairs, and civil death statutes simply anticipated the impending corporal end.  After the Civil War, felonies expanded to include many minor property crimes (Mississippi’s infamous “pig law” is illustrative), and prosecution became a convenient way of disenfranchising and re-enslaving the recently-freed black population. In the late 20th century, the war on crime made conviction an industry, and reinforced status as punishment.  These days, you don’t have to do anything particularly evil to be condemned to what sentencing scholar Nora Demleitner has called “internal exile.” The “felon” label now applies to more than 20 million Americans. A journalist friend at the John Jay conference pointed out that “felon” is convenient shorthand, helpful for headlines, certainly evocative.   How could I argue? But labeling people as “felons” is also fundamentally at war with efforts to reduce the number of people in prison, to facilitate reentry, and to encourage those who have committed a crime, or even many crimes, to become law-abiding and productive citizens. Social liberals and fiscal conservatives alike pay lip service to the supposed American ideal of second chances. But our language, like our law, points in the opposite direction.  We have schooled ourselves to avoid other stigmatizing labels that in the past were used to distance mainstream society from ethnic and racial minorities, and those groups from each other, because we understood that labels function to distract and excuse us from the hard work of building community. The word “felon” (and for that matter other less ugly but still degrading labels like “offender,” with or without the feckless prefix “ex-“) is no less dysfunctional.   We can do better. So, my journalist friend asked, what word can we use instead?   What snappy alternative sobriquet can we give the headline writers to describe this class of people with a criminal record? Perhaps there isn’t a single word, and perhaps that is precisely the point.  We can say first that our brothers and sisters are people, then (if relevant) we can also say that they are people who have been convicted of a felony. Skilled writers can find ways to avoid using words that are toxic.  Even headline writers can be weaned from them.  Journalists play a key role in advancing the cause of social justice, and they do it through the language they use. It is time to junk the label “felon” and restock our language toolkit.   Read more