Tag: juvenile

Second chance for some youthful sex offenders

On April 6, Arizona became the latest state to offer early relief from sex offender registration obligations to young people convicted of consensual sex offenses and sentenced to probation.  The law, HB 2539, allows individuals convicted before reaching age 22 of sexual conduct with a minor between the ages of 15 and 17 (so-called “Romeo and Juliet” offenders), to petition the court for relief from registration after completing probation.  If a petitioner meets all applicable criteria, the court must grant the petition unless it finds that a “denial is in the best interests of justice or tends to ensure the safety of the public.”  Similar laws authorizing early termination from registration for those convicted of youthful consensual offenses are in effect in ten other states, including Florida, Oregon, and Michigan. Laws requiring young people to register have come under increased scrutiny thanks to recent media coverage of their harsh effects and flimsy justifications — notably an article by Sarah Stillman published last month in the New Yorker (“The List”).   Much of the attention to registry of juveniles has been driven by mobilization around the issue by advocacy groups like Reform Sex Offender Laws (RSOL) and the Center on Youth Registration Reform (CYRR).  In 2013, Human Rights Watch issued a ground-breaking report on the issue, Raised on the Registry. Public registration of juveniles and young people convicted of sex offenses is widespread. According to one recent article, An estimated one-fourth of the people on the public sex offender registries were convicted as juveniles. Fifteen states post the names and photos of offenders who are minors on the online registries. Thirteen of the 20 states that lock up people in indefinite civil commitment—preventive, dubiously therapeutic detention for crimes not yet committed—include people who committed their offenses as juveniles. “The single age with the greatest number of offenders from the perspective of law enforcement was age 14,” according to the U.S. Department of Justice. Sex offender registries were created largely based on dubious assumptions about the recidivism rate of those convicted of sexual offenses.  But, as far as young people are concerned, that risk is generally unfounded, particularly given the nature of the offenses they are likely to commit.  The article continues: As Raised on the Registry powerfully showed, with little or no intervention these young people are virtually guaranteed not to “reoffend,” mainly because so many of them are penalized for engaging in sex play—things that, even if not always entirely consensual, are common among children and usually without long-lasting harm. Nicole Pittman, the author of the Human Rights Watch Report and Director of CYRR, told NPR in 2015, We are criminalizing normative child sexual behavior in a large fashion ….. We have kids that are on the registry for streaking at a football game, peeing at a park …. Rome-and-Juliet-type offenses where you have a 17-year-old dating a 14-year-old.  That person goes on the registry. For these young people, registration is a sentence to economic insecurity and public stigma that may last decades, if not a lifetime. According to a 2014 piece from The Huffington Post, Finding housing and employment are among the biggest challenges for juvenile offenders on the general sex offenders registry, which makes information like recent photos, home address and place of work publicly available. Many ex-offenders report being harassed, excommunicated or otherwise targeted once neighbors find them on the registry. It can have tragic results in some cases. “Suicide [among children placed on sex offender registries] is a possibility … even predictable,” David S. Prescott, a social worker and expert on treatment strategies for youth sex offenders told HRW. Many of the state laws requiring young people to register came about because of the federal Sex Offender Registration and Notification Act (SORNA) – also known as the Adam Walsh Act – a 2006 bill that requires lifetime registration of juveniles convicted as adults, as well as juveniles adjudicated of certain serious offenses in family court.  Many states have refused to implement these and other provisions of the Adam Walsh Act and have forgone federal funding as a result.  Arizona is among them, though it still requires registration of juveniles convicted in adult court and gives family courts discretion to require juvenile registration. Under Arizona law, juveniles required to register as a result of family court adjudications must remain on the registry until age 25.  Juveniles convicted in adult court remain on the registry for life, except that those sentenced to probation have an opportunity for removal during annual probation review hearings until they turn 22, or upon completion of probation.  HB 2539 extends a similar opportunity for relief to young Arizonans convicted between the ages of 18 and 21 of sexual relations with a minor over the age of 14. HB 2539 is by no means a game-changer since it will likely only benefit a small percentage of the youthful offenders that are required to register.  But hopefully its passage, and developments in the courts like the Pennsylvania Supreme Court’s 2014 ruling striking down that state’s lifetime registration requirements for juveniles, are a sign that legislatures and courts are ready to give some careful reconsideration to registry laws that ruin young lives while providing little public benefit. The CCRC maintains a chart that summarizes and compares the availability of relief from sex offender registration obligations in all 50 states, the federal system, and U.S. territories. You can find it at this link. Read more

Minnesota’s sweeping new expungement law takes effect

Beginning January 1st, 2015, many Minnesotans will have a meaningful shot at a second chance through criminal records expungement. For decades, many individuals have relied upon (and often languished under) a court’s inherent authority to expunge (or seal) criminal records, but recent Minnesota Supreme Court decisions effectively eviscerated that remedy. Without a legislative act expressly granting judicial authority to seal records held within executive branch agencies, the majority of petitioners were granted orders sealing only court records—leaving numerous publicly accessible criminal records untouched. The new law, passed with bipartisan support and building upon momentum gained with last year’s Ban the Box for private employers, changes that.   It provides new authority for expunging (sealing) both criminal and juvenile records held by executive branch agencies; requires data mining companies to observe expungements, protects employers and landlords hiring and renting to individuals with expunged records, addresses victimization and housing evictions, and clarifies a number of procedural issues.  The standard for granting expungement remains that under current law, requiring the court to balance private and public interests. While by no means a silver bullet, this new legislation will help a significant number of Minnesotans currently locked out of employment, housing, licensure, education, and countless other of life opportunities, by providing a true opportunity for a second chance. Here is an explanation of the new law’s specific provisions.  Overview: The new law revamps Minnesota Statute 609A, which currently allows for the sealing of certain drug charges, juveniles who were prosecuted as adults, and criminal proceedings not resulting in convictions or guilty pleas (i.e., dismissals and acquittals). The new law will allow courts to seal records of those who have successfully completed diversion programs, as well as those who were convicted of petty misdemeanors, misdemeanors, gross misdemeanors, and certain low-level non-violent felonies. This expansion of the statutory remedy grants courts the authority to seal records held by executive branch agencies such as the Bureau of Criminal Apprehension (the primary source of criminal information for employment, professional licensure, and housing background checks), the Department of Human Services, and the police. This addresses a major gap that for the last several years has rendered the criminal expungement remedy illusory for the majority of petitioners. Eligibility: Under the new law, persons will be eligible for a “full expungement” (sealing of both judicial and executive branch records) in the following situations:[1] 1) All pending actions or proceedings resolved in the petitioner’s favor (i.e., by acquittal or dismissal); 2) Completion of all terms of a diversion or stay of adjudication, and petitioner has not been charged with a new crime for at least one year since successful completion of program or stay; 3) Conviction of a petty misdemeanor or misdemeanor conviction (or stayed sentence), and petitioner has not been convicted of a new crime for at least two years since completion of sentence;[2] 4) Conviction of a gross misdemeanor conviction (or stayed sentence) and petitioner has not been convicted of a new crime for at least four years since completion of sentence;[3] 5) Conviction of specified low-level, non-violent felonies (or stayed sentence) and petitioner has not been convicted of a new crime for at least five years since completion of sentence. The fifty eligible felonies range from fairly common fifth degree controlled substance and sale of simulated controlled substance offenses, as well as theft of $5000 or less, receiving stolen goods, and aggravated forgery, to more obscure matters such as rustling and livestock theft and altering livestock certificate. The exhaustive list of eligible felonies can be found at Minn. Stat. 609A.02(b)1-50. Standard:  As under current law, expungement remains an extraordinary remedy granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with 1) the possible disadvantages to the public and public safety if the record were sealed and 2) the burden on courts and public authorities to issue, enforce, and monitor an expungement order. To this end, courts may grant select records expunged while leaving others unsealed. However, if a prosecutor agrees to the sealing of a criminal record, the court must (“shall”) expunge the record in eligible cases without requiring a petition unless it determines the interests of the public and public safety outweigh the record bearer’s interests. Crime Victims: The new bill also grants further relief to individuals whose criminal matters were a result of victimization: if the court finds that the context and circumstances of the underlying crime indicate a nexus between the criminal record and the person’s status as a crime victim, the expungement shall restore the person to his or her status prior to the arrest. In doing so, the person shall not be guilty of perjury if he or she fails to acknowledge the record in response to any inquiry made for any purpose. In making the determination, the court may request a statement from a victim services organization or licensed health care provider. See Minn. Stat. 609A.03 subd. 6a. Confirmation of Expungement: Helpfully, the new bill allows for the petitioner to request each agency and jurisdiction that receives the order granting expungement send a letter to the petitioner confirming that the record has been expunged. See Minn. Stat. 609A.03 subd. 8. Remedy for Violated Order: The new bill allows for an individual whose record has been expunged to bring an action under Minnesota’s Data Practices Act against a government entity that knowingly opens or exchanges the expunged record. See Minn. Stat. 609A.04.  Private Data Mining Records: The new bill closes the gap on private data mining records: if a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record. Minn. Stat. 332.70 subd 3a. Employer and Landlord Protection: The new bill extends further protection for employers and landlords who hire or rent to individuals with expunged criminal histories: information relating to a criminal history record of an employee, former employee, or tenant that has been expunged prior to the act giving rise to the civil action may not be introduced as evidence in a civil action against a private employer or landlord. See Minn. Stat. 609A.03 Subd. 5 (e). Housing Eviction Expungements: The new bill allows the court to expunge records relating to a housing eviction at the time judgment in favor of the defendant is entered, or any time thereafter upon motion of the defendant. Minn. Stat. 504B.345, subd 1 (c)2. Limitations of Criminal Record Expungement Order: While the new law allows for more records to be sealed, it also grants criminal justice agencies the authority to open, use, and exchange sealed records without a court order, for investigation, prosecution, sentencing, or probation, or other correctional purposes. If the expunged record had been an acquittal or dismissed matter, the agency must obtain an ex parte court order to access the record. Further limitations include the accessibility of expunged records of conviction without a court order for purposes of evaluating prospective employees within criminal justice agencies and for background checks in education-related employment, unless the expungement order is directed specifically at the Board of Teaching or the licensing division of the Department of Education. The court may also order an expunged record opened upon request by the victim of the underlying offense, if the court has found that the record is substantially related to a matter for which the individual who has been victimized is before the court. Notably, the expunged record that is opened or exchanged remains subject to the expungement order in the hands of the person receiving the record. That is, the record may not be used or shared outside the purposes listed above. Juvenile Record Expungement: For matters resolved in juvenile court, petitioners can file for an expungement under Minn. Stat. 260B.198 subd. 6. Not unlike 609A, the juvenile statutory remedy preexisted the new law; however, its vague language (allowing the courts to expunge an “adjudication of delinquency at any time it deems advisable”) was recently interpreted by the Minnesota Supreme Court to grant the lower court the ability to seal only the order adjudicating the juvenile delinquent, rather than the entire executive branch agency’s file (e.g., the arrest record or the charging document), rendering the remedy essentially meaningless.[4] However, as of January 1st, 2015, the court may expunge all records relating to a juvenile delinquency matter at any time if the expungement of the record would yield a benefit to the individual that outweighs the detriment to the public and public safety in sealing the record and the burden on the court and public agencies in issuing, enforcing, and monitoring the order. See Minn. Stat. 260B.198 subd. 6 paragraph (b) 1-8 for indicia the court will consider in making the determination.   * * * * * * * * *   [1] The Volunteer Lawyers Network’s Chris Hanrahan addresses ambiguities of timing and notice in his article, Using the New Second Chance Expungement Law. Josh Esmay from the Council on Crime and Justice offers quick tips to petitioners in this Minnesota Public Radio article. [2] The bill specifically excludes from expungement relief any convictions for domestic abuse, sexual assault, violations of orders for protection, no contact orders, and harassment restraining orders, and stalking. However, this exclusion (Minn. Stat. 609A.02 subd. 3(c)) is set to expire on July 15, 2015. [3] See above. [4] See In re Welfare of J.J.P., 831 N.W.2d 260 (Minn. 2013) Read more

Wisconsin high court holds youthful offenders entitled to “a fresh start”

The Wisconsin statute that allows courts to expunge certain conviction records of youthful offenders, Wis. Stat. § 973.015, provides that the court must make its decision about whether to expunge at the time of sentencing, conditioned upon the defendant successfully completing his or her sentence. Often, young defendants receive a probationary term for crimes that are eligible for expungement (all misdemeanors, as well as certain felonies in the lower levels of severity). Prior case law has established that, although expungement is conditional upon successful completion of probation in this situation, the court may not defer ruling on the expungement request. In State v. Hemp, the Wisconsin Supreme Court clarified that expungement occurs automatically if the statutory conditions are met, and that a defendant is not required after completing probation to apply to the sentencing court for entry of the expungement order. Importantly, the court also provided some guidance regarding the legal effect of expungement that will be of interest to job applicants who have had a previous conviction expunged. Criteria for expungement Defendant Hemp had been granted expungement for a felony offense of possession of marijuana with intent to deliver, and had successfully completed his probation term.  However, local officials had not filed the necessary papers to enable the court to expunge his conviction record.  Hemp subsequently filed a petition for expungement (to require the court to act upon its earlier, condition order granting expungement). However, between his completion of probation and his follow-up regarding expungement, Hemp had been charged with possession of marijuana, and the prosecutor charged this offense as a felony because of the previous marijuana conviction.  Hemp’s attorney on the new charge recognized that by effectuating the earlier expungement order, Hemp could get the new charge reduced to a misdemeanor for possession, first offense. The lower court, its sympathy for the defendant likely diminished by his pending charge, ruled that the defendant had the responsibility for providing the sentencing court with proof that he had successfully completed probation and that his delay in doing so provided a basis to deny expungement. The Wisconsin Supreme Court disagreed.  It interpreted the statute to require of the defendant only that he complete probation successfully (and that he not be convicted of another offense during the probation term), but not that he also complete the administrative tasks of either the Department of Corrections or court personnel.  Because Hemp had satisfied the statutory criteria, he was automatically entitled to have the previous expungement order effectuated. Expungement erases conviction, not just court record The Hemp opinion also supports a broad interpretation of the legal effect of expungement in Wisconsin: the court stated that the statute “offers young offenders a fresh start without the burden of a criminal record and a second chance at becoming law-abiding and productive members of the community.” Expungement allows individual defendants a chance to move past the barriers that can be created by a criminal record by giving them “an incentive to rehabilitate,” which, in turn, “promotes the public’s safety” [citations omitted].  Indeed, expungement allows “offenders to . . . present themselves to the world—including future employers – unmarked by past wrongdoing.” This “unmarked by past wrongdoing” statement helps resolve ambiguity regarding whether expungement means that the conviction no longer exists or simply that court records are no longer publicly accessible. The unanimous decision provides support for a job applicant answering “no” to a question about prior convictions if his or her only conviction has been expunged.  At the same time, a cautious applicant may decide to disclose the expunged conviction voluntarily to some employers, since expungement does not affect law enforcement records and certain employers may learn of the underlying legal history through a background check.  Nonetheless, the Hemp decision not only benefits the individual defendant, but also supports the policy of exempting young defendants from many of the consequences that accompany a criminal conviction.   Read more

Discipline for schoolgirls differs by race and skin tone

The New York Times this morning describes data from the U.S. Department of Education’s Office for Civil Rights showing that African-American girls tend to face more serious school discipline than white girls.  “For all the attention placed on problems that black boys face in terms of school discipline and criminal justice, there is increasing focus on the way those issues affect black girls as well.”  Black girls who get in trouble at school are also more frequently referred to the criminal justice system, where they can incur a criminal record that sticks with them into adulthood. The article tells the story of 12-year-old Mikia, who was charged with a crime after she and a friend wrote graffiti on the walls of a gym bathroom at Dutchtown Middle School in Henry County, Georgia.  The incident was a surprise to her parents, since Mikia was a good student who had not been in any trouble before: Even more of a surprise was the penalty after her family disputed the role she was accused of playing in the vandalism and said it could not pay about $100 in restitution. While both students were suspended from school for a few days, Mikia had to face a school disciplinary hearing and, a few weeks later, a visit by a uniformed officer from the local Sheriff’s Department, who served her grandmother with papers accusing Mikia of a trespassing misdemeanor and, potentially, a felony. As part of an agreement with the state to have the charges dismissed in juvenile court, Mikia admitted to the allegations of criminal trespassing. Mikia, who is African-American, spent her summer on probation, under a 7 p.m. curfew, and had to complete 16 hours of community service in addition to writing an apology letter to a student whose sneakers were defaced in the incident. Her friend, who is white, was let go after her parents paid restitution. Michael J. Tafelski, a lawyer from the Georgia Legal Services Program who represented Mikia in the school disciplinary hearing, said his office had filed a complaint with the Justice Department claiming racial discrimination and a violation of the Civil Rights Act: “I’ve never had a white kid call me for representation in Henry County,” Mr. Tafelski said.   “What kid needs to be having a conversation with a lawyer about the right to remain silent?” he said. “White kids don’t have those conversations; black kids do.” A study conducted by Villanova sociologists shows that skin tone also affects the rate of school discipline. Among a cohort of African Americans, girls with darker skin tone were three times more likely to be suspended than girls with lighter skin tone: There are different gender expectations for black girls compared with white girls, said Lance Hannon, a Villanova sociology professor who conducted the analysis. And, he said, there are different expectations within cross-sections of black girls. “When a darker-skinned African-American female acts up, there’s a certain concern about their boyish aggressiveness,” Dr. Hannon said, “that they don’t know their place as a female, as a woman.” The long-term damage done by school disciplinary practices is aggravated when it is perceived as unfair: Catherine E. Lhamon, the assistant secretary for civil rights at the Department of Education, whose office published a report on school discipline in March that offered recommendations for how to improve disciplinary practices in schools, said the discrepancies in disciplinary practices were not lost on young girls of color. “The felt experience of too many of our girls in school is that they are being discriminated against,” she said.  “The message we send when we suspend or expel any student is that that student is not worthy of being in the school,” Ms. Lhamon said. “That is a pretty ugly message to internalize and very, very difficult to get past as part of an educational career.” When school discipline results in a criminal record, it is difficult to get past as part of life in general. Read more

Collateral consequences and the curious case of Mark Wahlberg

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