Tag: Justice Department

Update on federal firearms restoration program

Last spring, the Department of Justice (DOJ) announced its intention to revive a long-dormant program to remove federal restrictions on firearm possession, including for those with a criminal record.  In July DOJ published for comment a proposed rule that would, when finalized, accomplish this for people who are determined to pose no public safety risk. See 18 U.S.C. § 925(c). See Trump’s Justice Department aims to restore gun rights for nonviolent offenders. The comment period closed on October 20, and it is therefore possible that a final rule will be published at any time to launch the revived program. This will open the door, for the first time in more than 30 years, to many individuals who have been unable to regain their firearm rights because of their criminal record. It is anticipated that thousands of people will want to apply for this relief, which will be administered by the Justice Department’s Office of the Pardon Attorney. We have some concerns about whether the demanding § 925(c) application process described in the proposed rule will deliver on its promise. For example, the document production requirements may be challenging for many people, especially those with dated minor convictions. See proposed 28 CFR § 107.1(d).  Hopefully, the final rule will facilitate application rather than discourage it for those unable to hire counsel. At a minimum, the revived § 925(c) process will provide an alternative to presidential pardon for people dispossessed because of a federal conviction. But relief under § 925(c) affects only restrictions on firearm possession arising under federal law, and will not affect analogous restrictions in the laws of most states. As a result, individuals who benefit from the federal restoration program will need to determine what their rights are under state law.  In all likelihood, states will also want to determine whether restrictions in their own laws should conform to or outlive federal ones. While the new federal restoration program may be good news for people who can successfully navigate it, the not-so-good news is that many of these same people (including those with federal convictions) will remain frustrated by restrictive state laws that permanently prohibit their possession of any firearm without regard to public safety risk. In June of 2025, CCRC published a report on state law firearm restrictions that will inform these determinations. CCRC’s report, Restoration of Firearm Rights After Conviction: A National Survey and Suggestions for Reform, offers a comprehensive picture of the differing ways states restrict and restore the right to possess a firearm for those dispossessed because of a criminal record, including relevant sections of statutory text to facilitate analysis and comparison. CCRC’s report concluded that most states restrict firearm rights too broadly and make restoration difficult, in potential violation of the Second Amendment. Our report found that only 13 states limit dispossession to violent crimes, and 34 states offer no route to firearm relief to residents convicted in another state or in federal court. Sixteen (16) states make pardon the exclusive way to regain state firearm rights, and not all of those states offer pardon as a reliable remedy. Even in those states where pardoning is frequent and regular, those with out of state or federal convictions may be out of luck (unless the state gives effect to pardons issued by other jurisdictions). Our research revealed that only 16 states provide a way to regain lost rights that is easily accessible to all state residents wherever they were convicted, usually from an administrative agency or a court in the county of their residence. That is the kind of relief system we recommend.  We are in the process of updating our report on state firearms dispossession laws to reflect new enactments in a dozen states since June, and we expect to republish it before Thanksgiving.  NOTE: One interesting additional development since June is that the Supreme Court has agreed to hear a case that could add to our understanding of how the Second Amendment applies to federal firearm restrictions. The case, United States v. Hemani, involves the federal prosecution of a Texas man for violating the prohibition on gun possession by anyone who is “an unlawful user of” any controlled substance. 18 U.S.C. § 922(g)(3). The district court found § 922(g)(3) unconstitutional as applied to Mr. Hemani, and the court of appeals agreed. The Justice Department has urged the Supreme Court to find § 922(g)(3) constitutional as analogous to Founding Era gun laws applicable to “habitual drunkards,” despite the absence of any record facts to support such a finding in Mr. Hemani’s case.  It has also argued that the impending revival of the § 925(c) relief program obviates any constitutional problem with this provision, which the proposed regulation explains applies only to those currently using drugs in violation of the law.  The Court’s willingness to hear the case suggests an openness to curbing aggressive federal firearm prosecution policies in cases implicating the Second Amendment.     Read more

Justice Department will enforce limits on landlord background checks

Earlier this year the U.S. Department of Housing and Urban Development (HUD) issued new guidance asserting that housing policies that exclude people with criminal records may violate the non-discrimination provisions of the federal Fair Housing Act (FHA) if they fail to consider the nature, severity, and recency of criminal conduct and if they are not narrowly tailored to protect residents or property.  The Justice Department has taken the first step toward judicial enforcement of this guidance. On October 18 the Department’s Civil Rights Division filed a Statement of Interest in Fortune Society v. Sandcastle Towers Housing Development, a federal civil rights suit brought in the Eastern District of New York against a Brooklyn provider of low-income housing, claiming that it has a blanket policy of refusing to rent to individuals convicted of any non-traffic crime.  The Statement urges the court to decide the case based on the legal framework set forth in the HUD guidance, which employs a three-step analysis to determine whether criminal history-based housing exclusion policies amount to illegal racial discrimination prohibited by the FHA. Though the Statement does not address the factual dispute at issue in the case, it adopts HUD’s position that blanket bans based on criminal history are likely to violate the law in failing to require an individualized assessment of applicants, because African-American applicants are more likely to have criminal histories than their white counterparts. When the HUD guidance was issued, we predicted that it would effectively end the use of criminal background checks to automatically exclude potential renters, and greatly expand housing opportunities for all people with criminal histories, regardless of their race.  The Justice Department’s strong endorsement of the guidance is a hopeful step in that direction.   We reprint the Department’s press release below: The Justice Department filed a statement of interest today arguing that the Fair Housing Act (FHA) requires that landlords who consider criminal records in evaluating prospective tenants do not use overly broad generalizations that disproportionately disqualify people based on a legally protected characteristic, such as race or national origin. The statement of interest was filed in the U.S. District Court for the Eastern District of New York in Fortune Society Inc. v. Sandcastle Towers Housing Development Fund Corp. et al.  The case was brought by an organization that helps formerly incarcerated individuals find housing challenging the practices of an affordable rental apartment complex with 917 units in Far Rockaway, Queens. In the statement of interest, the department aims to assist the court in evaluating whether a housing provider’s policy that considers criminal records in an application process produces unlawful discriminatory effects in violation of the FHA.  Although the FHA does not forbid housing providers from considering applicants’ criminal records, the department states in its filing that “categorical prohibitions that do not consider when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then run a substantial risk of having a disparate impact based on race or national origin.” The brief explains that when a housing provider has a criminal record check policy with a disparate impact, the housing provider must “prove with evidence – and not just by invoking generalized concerns about safety – that the ban is necessary.”  Even then, the policy will still violate the FHA if there is a less discriminatory alternative. “This filing demonstrates the Justice Department’s steadfast commitment to removing discriminatory barriers that prevent formerly incarcerated individuals from restarting their lives,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division.  “Women and men who served their time and paid their debt to society need a place to live, yet unlawful housing policies can too often prevent successful reentry to their communities.  While not all criminal records policies adopted by landlords violate the Fair Housing Act, we will take action when they do.” “Landlords’ categorical refusals to rent to individuals who have served their debts to society can illegally discriminate against those individuals based on their race or national origin,” said U.S. Attorney Robert L. Capers of the Eastern District of New York.  “This office will continue to work to fight such discrimination.” In this case, the plaintiff argues that the Sandcastle complex had a policy of refusing to rent to individuals with prior convictions for felonies or misdemeanors other than traffic offenses.  The plaintiff argues that this policy has an unjustified disparate impact against prospective African-American and Hispanic tenants, in violation of the FHA.  In the statement of interest, the department does not take a position on the factual accuracy of the plaintiff’s arguments, but instead addresses the appropriate legal framework for analyzing its claim.  The legal framework set forth in the filing is consistent with the guidance released by the U.S. Department of Housing and Urban Development in April 2016 concerning how the FHA applies to the use of criminal records by providers or operators of housing and real-estate related transactions. Fortune Society Inc. v. Sandcastle Towers Housing Development Fund Corp. et al. was filed in the Eastern District of New York in 2014.  After the completion of pre-trial discovery, both parties have asked the court to enter judgment in their favor before trial.  Those requests, filed in September 2016, are now pending with the court. The Justice Department’s Statement of Interest is available here. More on the HUD guidance and its effect here.  The Shriver Center will host a free webinar on the HUD guidance featuring officials from the Justice Department and HUD on October 26.  More information is available here. Read more

New reports document federal progress on collateral consequences

The Presidential Memorandum that formally established the Reentry Council in April 2016 mandated a report documenting the Council’s accomplishments to date and plans moving forward.  The resulting report, The Federal Interagency Reentry Council: A Record of Progress and a Roadmap for the Future, was issued today. Also today the White House issued a fact sheet with new commitments to the Fair Chance Business Pledge. Finally, the Justice Department released a National Reentry Week After Action Report.  We will be taking a close look at these reports on the federal government’s recent efforts to address collateral consequences, and expect to post the results of our review shortly.     Read more

Slate asks why presidents are granting less clemency; Justice answers

Slate has posted a new piece by Leon Neyfakh entitled “The Pardon Process Is Broken.”  The piece points out that “presidents are granting clemency far less often than they once did,” and asks “Why?”  It answers its own question by distilling an article by Margaret Love to be published in the Toledo Law Review, which argues that the low grant rate reflects overwhelmingly negative recommendations from the Justice Department.  In response to Slate’s invitation, Justice had the following comments on Love’s proposal: The mission of the Department of Justice is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. The work of the Office of the Pardon Attorney is an integral part of the Department’s mission. These comments seem to concede the point that the Office of the Pardon Attorney has ceased to operate as an independent source of advice for the president in clemency matters, but instead has become an extension of the law enforcement agenda of the Department’s prosecutors.  They evidence the key role the Justice Department has played in the atrophy of the constitutional pardon power. A further examination of Justice Department clemency statistics since the 1930’s reveals an even more dramatic decline in favorable Justice Department recommendations in the past 25 years than is reported in the draft of Love’s article posted here 10 days ago. Between 1932 and 1988 the percentage of total cases acted on by the president that had been sent to him with the Justice Department’s blessing averaged around 30%.  The percentage of cases sent forward with a favorable recommendation dropped to single digits beginning with the presidency of George H.W. Bush, and it has dropped even lower in the past 15 years.  Under President Obama, the likely paucity of favorable recommendations from Justice has resulted in the lowest grant rate to date:  President Obama has made a total of 153 grants (89 commutations and 64 full pardons) while denying almost 9000 applications, for an overall grant rate of 1.6%. The absolute numbers also tell a tale: President Obama has granted more sentence commutations than any president since Richard Nixon, but fewer full pardons than any president since John Adams.  Pardon is the only clearly established way for federal offenders to avoid or mitigate collateral consequences. If Justice is unwilling to recommend pardons to the President, might it direct federal offenders to an alternative source of relief from collateral consequences?  That also does not appear to be in the cards: in a case currently pending before Judge John Gleeson in the Eastern District of New York, Justice has taken the position that a federal court has no authority to expunge a conviction or issue a certificate of rehabilitation. It remains to be seen whether Justice will recommend more pardons to the White House or, better yet, support legislative efforts to give courts the power to dispense with collateral consequences that it now finds lacking. Read more

Should DOJ be gatekeeper of president’s pardon power?

Last week Sentencing Law & Policy highlighted a new article by CCRC director Margaret Love that examines the Justice Department’s historical role in administering the president’s pardon power.  The article (“Justice Department Administration of the President’s Pardon Power: A Case Study in Institutional Conflict of Interest”) concludes that an institutional conflict of interest has made Justice a progressively less responsible and effective steward of the constitutional power, and urges the president to relocate the pardon program to the Executive Office of the President.  The article, to be published in a forthcoming issue of the University of Toledo Law Review, can be downloaded here.  Here is its abstract: The president’s constitutional pardon power has been administered by the attorney general since before the Civil War, but this arrangement has never been adequately explained or justified. On its face it appears rife with conflict of institutional interests: how could the agency responsible for convicting people and putting them in prison also be tasked with forgiving them and setting them free? In spite of these apparently antithetical missions, the Justice Department managed the pardon program in a low-key and reliable manner for well over a century, staffing it with a handful of career lawyers operating on a shoestring budget, and churning out hundreds of favorable clemency recommendations each year for the president’s consideration. While there were occasionally controversial grants there were never scandalous ones, and the president was able to use his power to good effect in wartime and in peace. It is only in the past two decades that questions have been raised about the integrity and functionality of the pardon process, focusing squarely on the agency and individuals standing as gatekeeper to the president’s power. President Obama’s decision in early 2014 to launch a large-scale clemency initiative, and the Justice Department’s unprecedented decision to rely upon a consortium of private organizations to manage it, make this a propitious time to consider whether the presidency is well-served by an arrangement making officials responsible for prosecuting crime the primary source of clemency advice. This essay concludes that the culture and mission of the Justice Department have in recent years become determinedly and irreconcilably hostile to the beneficent purposes of the pardon power, and to its regular use by the president. The only way to deal with the institutional conflict that produced and perpetuates this situation is to transfer the pardon program to the president’s direct supervision in the Executive Office of the President. This move will have a variety of benefits, including facilitating the president’s ability to oversee the workings of the criminal justice system, for which he has a special responsibility under the Constitution. More specifically, it will introduce salutary political accountability to federal prosecutions through presidential oversight and potential revision. Finally, it will give the president control for the first time in decades over his own “benign prerogative.” Read more