Tag: Delaware

Increase in Delaware pardons “driven by getting jobs”

Delaware Governor Jack Markell has granted more than 1500 pardons in his six years in office, substantially more than any of his predecessors.  According  to articles by Chris Barrish and Jonathan Starkey in the Delaware News Journal, the “dramatic increase” in the number of people applying for pardon in Delaware has been “driven by getting jobs.”  In defending his record of generous pardoning, Governor Markell noted that the state had adopted 50 new background check requirements for employment in the past several years, and that people with convictions need a governor’s pardon to enable them to overcome the stigma of conviction to obtain employment and stay on the road to rehabilitation.  The two articles are here and here. In Delaware the governor cannot grant a pardon unless he receives an affirmative recommendation from the Board of Pardons, a five-member body of high state officials that is chaired by the Lieutenant Governor.  (The Delaware pardon process is explained in greater detail here.)  This system both protects and encourages the governor in using his constitutional power.   In recent years the board considers about 50 cases each month, and recommends favorably in about 85% of the cases that come before it.  The governor in turn grants over 90% percent of the cases recommended to him by the board. The hearings before the board in the colonial-era court house in Dover are a rare study in retail justice, likely made possible by the small size of the state, the seriousness with which the high- level board approaches its work, and the culture of pardoning that has existed in the state since colonial times.   Anyone with a criminal conviction can apply for a pardon, but the five-member Board of Pardons advises prospective applicants that it likes to see a period of good behavior of at least three years since their sentence was completed, including probation and payment of fines.   Before an application can reach the governor’s desk, it has to be approved at a public meeting by three members of the board, composed of lieutenant governor, treasurer, auditor, secretary of state and Chancery Court chief judge. Monthly board hearings can include testimony from the offender, an attorney, prosecutors and victims. The board also considers requests for commutation — a sentence reduction for someone in prison.   Members give the greatest weight to the recommendation by the Attorney General’s Office, which is notified of every case and reviews the person’s criminal history. The prosecutor’s position, said the current board chair, Secretary of State Jeffrey W. Bullock, is “the most important single factor.” Those who seek pardons for more serious offenses also must undergo a psychiatric evaluation that includes the “probability of the applicant again committing any crime.”   At the Pardon Board’s meeting last week in Dover, 46 people were scheduled — burglars, thieves, shoplifters and low-level drug and alcohol violators, but also a methamphetamine trafficker and a cocaine trafficker. Each hearing lasted between five and 15 minutes, with members either ruling immediately or conferring in private before announcing their decision. The state’s current Attorney General Matthew Denn, who now assists the board in staffing pardon cases, chaired the pardon board as Lieutenant Governor, and so is familiar with the types of considerations and process used in pardon cases. Members of the Board commented for the record on the importance of pardons in helping people obtain employment: Board of Pardons members are cognizant of the stigma of a criminal record in Delaware’s tough job market. “Without employment and the opportunity to live responsibly, recidivism might be even higher,” chairman Jeffrey W. Bullock said. “It’s a vicious circle for a lot of people and one that society has not found a way to deal with effectively.”   Nearly eight in 10 Delaware inmates sentenced to more than a year in prison are arrested again for a serious offense within three years of their release, a 2013 state report said. Wilmington attorney Thomas A. Foley said most applicants find themselves locked out of job opportunities by an old minor offense such as shoplifting or drug possession.   Pardons are “driven by getting jobs,” Foley said. “It could make a difference with human resources if the governor has recognized they they resurrected their lives and has forgiven them.”   Fred Calhoun, president of the state Fraternal Order of Police, countered that too many people claim they can’t get a job because of their record. “It’s not a good excuse,” he said. “Don’t do the crime.” In one case heard at the Board’s most recent meeting, a former All-State basketball player with a 2008 cocaine trafficking conviction sought a pardon to enable him to become a high school coach.  The Board commended his progress toward rehabilitation but told him he would have to wait another two years before it would consider recommending a pardon: Michael Smack, 38, currently has a job delivering furniture, and coaches a summer team of high school-age players. While the board deliberated in private, Smack said that “with a felony, I ain’t got a shot’’ to get hired as a school coach. With a pardon it looks better on my record.”   Board members told Smack they were impressed he had been crime-free for seven years, but told him to stay straight for another two years and then submit a new application. Smack took the denial in stride. “I’m all right. I just have to come back in a couple of years,” he said. Wilmington attorney Michael W. Modica said pride is another reason people seek pardons. “For many people, it’s symbolic, official recognition that they have changed, have grown into productive members of society,” he said. “A lot of my clients want it for their children, to show official recognition that this was an aberration, an isolated incident.”   A man the board recommended for a pardon Thursday for a 30-year-old drug dealing conviction said he had lived crime free, kept a good job and raised a productive family, but the taint of his crime haunted him.   “It’s like an invisible tattoo. No one else can see it but you,” he said. “I wish I could make it go away.”   Read more

Is pardon making a comeback? Probably not, but law reform may be

A recent issue of Governing Magazine reports that pardoning is “making a comeback” after decades of neglect.  It would be nice if it were true. But the evidence of comeback is thin. Almost all of the jurisdictions where pardoning is thriving today are the same ones where it was thriving a decade ago.  In a dozen states, including Connecticut, Delaware, Georgia, Nebraska, South Carolina and South Dakota, pardon has never been neglected, much less abandoned by responsible officials. In these jurisdictions and a handful of others, pardon has deep roots in the justice system and is supported by accountable institutions of government. It is certainly true that Pat Quinn of Illinois and Jerry Brown of California have made generous use of the power of their office after years in which the pardon power in their states languished unused.  Terry McAuliffe of Virginia is a newcomer to the small group of governors who evidently feel that pardoning is a responsibility of office.  All three are to be commended for it.  But three swallows do not make a summer. For the most part pardoning in the United States remains a timid exercise in tokenism, and the vitality of pardon in most jurisdictions still depends on the personal predilections of the particular elected chief executive.  Most are not very interested in an activity that has few rewards and many pitfalls.   Our President is a case in point.  A number of current governors have refused to use their pardon power at all, some invoking bogus separation of powers arguments (Scott of Wisconsin), others making empty promises (Hickenlooper of Colorado). The Marshall Project recently published an article asking if pardon was still the third rail of American politics. Apparently most governors think it is, whatever changes there may have been in the public mood. Legislative alternatives to pardon It seems to me that if governors and presidents are reluctant to use the power of their office to temper what Alexander Hamilton called the “necessary severity” of the criminal code, they have an obligation to see that the legal system addresses the needs pardon serves. Ohio Governor John Kasich did that when he supported legislation to authorize courts to issue “certificates of qualification for employment” to help people with convictions overcome legal restrictions that bar them from certain jobs.   Governors in Indiana, Louisiana, Minnesota and Vermont have also recently signed legislation giving courts the power to do what they are evidently reluctant to do themselves.  That is an acceptable alternative approach to governing, both in theory and in practice. Indeed, pardon was never supposed to be a substitute for law reform, and courts or administrative agencies are likely to be fairer and more accessible than an elected official. Unfortunately, there is no indication that the Obama Administration is interested in supporting legislation that would ameliorate the adverse effects of a criminal record, though this is one of the few areas in which there is bipartisan support for reform in Congress.  The President’s failure to give criminal justice reform more than a passing mention in the State of the Union address, and only in the context of police/community relations, was discouraging. Many U.S. jurisdictions are attempting to deal with the problems created by mass incarceration, by reducing the number of people who go to prison and by improving social services to keep those who do from going back.  Mass conviction has produced a separate and less tractable set of problems, including proliferation of collateral consequences that discourage rehabilitation, and creation of a permanent class of second class citizens defined by their criminal record. The laboratories of democracy have not yet produced a single legislative solution that can command consensus.  Reform efforts in some jurisdictions involve limiting public access to criminal records through expungement or sealing, an approach that has both practical and theoretical drawbacks.  Other jurisdictions have adopted the more transparent judicial certificates recommended by the 2010 Uniform Collateral Consequences of Conviction Act and the 2014 Model Penal Code: Sentencing. Indiana’s approach combining the two may be the wave of the future. With a clear problem demanding a legislative solution, the recommendation of the National Association of Criminal Defense Lawyers looks appealing: The three branches of government, on the federal, state, and local levels, should undertake a comprehensive effort to promote restoration of rights and status after conviction.   This is a major effort that requires a multi-faceted approach.  It should include enactment of laws to circumscribe or repeal existing collateral consequences, and  a resolve to stop enacting new ones. More fundamentally, government entities, the legal profession, the media and the business community must promote a change in the national mindset to embrace concepts of redemption and forgiveness, including a public education campaign to combat erroneous and harmful stereotypes and labels applied to individuals who have at one point or another committed a crime.  As a cornerstone of this movement, the United States and the states and territories should establish a “National Restoration of Rights Day” to recognize the need to give individuals who have successfully fulfilled the terms of a criminal sentence the opportunity to move on with their lives. This will take leadership at a national level.  Given the support for collateral consequences reform in Congress and in governor’s mansions across the country, perhaps we will get it. Read more

Special interests succeed in watering down NJ Opportunity to Compete Act

In updating our book on New Jersey Collateral Consequences, J.C. Lore and I analyzed the provisions of New Jerseys’ new Opportunity to Compete Act, signed by Governor Christie in August and scheduled to become effective on March 15, 2015.   The Act applies a ban-the-box requirement to most public and private employers with more than 15 employees.  Having followed the bill through its passage in the House last spring, we were disappointed but not surprised to see that there were a number of employer-friendly amendments added to the Act just prior to final action in the Senate, with the result that there is a great deal of uncertainty about what the law actually accomplishes.  The important provisions omitted from the bill in the Senate, after lobbying by business and industry groups, included A prohibition on considering certain types of criminal histories, including conviction records after a certain number of years; A private right of action against employers; A definition of “initial employment application process” that permits inspection of criminal records at an earlier stage of the employment process; A requirement that an employer make a good faith effort to discuss the applicants criminal record if it is of concern; and A provision permitting negligent hiring suits in cases of “gross negligence.” The bill as amended also preempted local ban-the-box laws, so that Newark’s more progressive ban-the-box ordinance appears to be on life support. Attached are the enacted version of the New Jersey Opportunity to Compete Act, as well as the “advance law” with brackets to show which language was removed in the Senate. EDITOR’S NOTE:  Much chastened, the author of the NACDL Restoration of Rights Resource has made appropriate modifications in the New Jersey profile.  Note that similar last-minute amendments also substantially weakened the Delaware ban-the-box law, omitting similar provisions that would have prohibited employers from considering certain types of criminal records, notably convictions more than 10 years old.  In the same fashion, last-minute amendments to Vermont’s Uniform Collateral Consequences of Conviction Act restricted its coverage to less serious offenses, disappointing its sponsors. The lesson for advocates is that they must be eternally vigilant for last-minute lobbying by special interests to dilute provisions of progressive legislation intended to give people with a criminal record a fairer chance in the workplace. – ML Read more