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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

“Presidential pardons have lost their true purpose”

The op ed below by CCRC Executive Director Margaret Love appeared in the Washington Post this afternoon.  Love argues that focusing on the political message sent by the Arpaio pardon obscures a more fundamental problem with pardoning in today’s federal system: It has all but ceased to play the role the framers intended of advancing fairness and proportionality.  She urges a reconnection with the true redemptive purposes of pardoning: to mitigate collateral consequences, recognize rehabilitation, and encourage reintegration. The recent preview of CCRC’s forthcoming study of state relief mechanisms shows that in at least a dozen states pardon continues to serve those purposes. President Trump’s pardon of former Arizona sheriff Joe Arpaio has stirred up a hornet’s nest. The pardon is certainly controversial and admittedly unusual, coming even before a court had imposed a sentence. But Trump’s action, whatever its merits, is by no means unprecedented. Presidents have in the past used their pardon power to interrupt a criminal prosecution and deliver a political message — and not always a popular one. To understand how Trump’s action fits within the framework of pardons past, consider another case in which law enforcement officials were similarly charged with civil rights violations. In March 1981,only weeks into his first term, President Ronald Reagan pardoned W. Mark Felt and Edward S. Miller, two high-ranking FBI officials then appealing a conviction for their roles in approving so-called black-bag jobs to spy on members of the Weather Underground through illegal wiretaps and break-ins. Like the Arpaio pardon, the Felt and Miller pardons fulfilled promises the president had made on the campaign trail; like Trump, Reagan argued the pardons were justified by the two men’s long careers in government — though he stopped short of commending their actions. (Felt later admitted that he was “Deep Throat,” the key source for Post reporters Bob Woodward and Carl Bernstein as they uncovered President Richard Nixon’s Watergate scandal.) Since then, a number of high-profile pardons have taken on a political tone, including President George H.W. Bush’s Iran-contra pardons and President George W. Bush’s commutation of I. Lewis “Scooter” Libby’s prison sentence. Like the Arpaio pardon, these grants were not handled through the established Justice Department pardon process, and they all stirred up similar public outrage. But focusing on the political message sent by the Arpaio pardon obscures a more fundamental problem with pardoning in today’s federal system: It has all but ceased to play the role the framers intended of advancing fairness and proportionality. Until about 40 years ago, hundreds of pardons were granted each year to ordinary people convicted of garden-variety crimes. A substantial percentage of those who applied for this official forgiveness received it. But since about 1980, pardoning has become irregular and increasingly arbitrary, with grant rates in the single digits and processing times extending for years. President Barack Obama, for example, used the pardon power to commute many long prison sentences, but he largely neglected the cases of people who had completed their sentences and were seeking relief from their convictions’ lingering civil consequences and social stigma. The result of this neglect is that more than 2,000 applications for full pardon are pending in the Justice Department, with no sign that any will soon be granted. At the same time, there has never been a greater need for some mechanism in the federal justice system to mitigate the damage done to our social fabric by decades of mass prosecution. Nationwide, severe conviction-based legal restrictions coupled with the now-ubiquitous practice of criminal background checking have marginalized a substantial percentage of our population, burdened their families and communities, and deprived the country of capable people willing to join the workforce. It is encouraging that in the past half-dozen years, almost every state has enacted some form of relief from these so-called collateral consequences. Just last week Illinois Gov. Bruce Rauner (R) signed a sweeping law authorizing courts to limit public access to most state criminal records after a three-year eligibility waiting period. Other states such as Nevada, Missouri and Indiana, have enacted broad remedial legislation. But there has been no similar interest in Congress in creating a statutory alternative to pardon that would mitigate or avoid collateral consequences for federal offenders. Meanwhile, the Justice Department, the longtime gatekeeper of the pardon power, continues to hold it in an iron grip. This disadvantages not only individuals seeking official forgiveness but also the person responsible for dispensing it. In failing to encourage the president in the regular and respectable use of his constitutional power, the Justice Department has instead encouraged its abuse. Rather than seeing presidential pardons as a way to recognize the redemptive power of the justice system, federal prosecutors have often regarded pardons with suspicion — as antithetical and even threatening to what they do. This shortsighted and parochial attitude has ill-served three successive presidents and resulted in an administrative system that is inefficient, arbitrary and unfair. It’s time we reconnect with the original values laid out for presidential pardons — what Alexander Hamilton described as “the benign prerogative.” If the Arpaio pardon provides the occasion for getting such a conversation started, it will have done both the presidency and the nation a great service. Read more

Prez promises to catch up on pardons — but he’s far behind

We have wondered whether President Obama would ever turn his attention to what has become the red-headed stepchild of the clemency caseload: full pardons to restore rights and status after service of sentence.  To date President Obama has focused on commuting prison sentences, and has issued fewer pardons than any full-term president since the Civil War.  It appears that the time may be at hand. The Politico reported on Thursday that at a press conference the day after his most recent batch of sentence commutations, President Obama said he intended to grant more full pardons before the end of his term – a lot more. At a news conference at the Pentagon on Thursday, a reporter [Greg Korte of USA Today] noted that Obama has been the stingiest two-term president on forgiveness since John Adams.  Obama acknowledged that his administration has “focused more on commutations than we have on pardons.” “I would argue,” he continued, “that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.” The President also indicated that he did not intend to change his pardoning practices at the end of his term: “The process that I’ve put in place is not going to vary depending on how close I get to the election.” President Obama will no doubt grant more full pardons before the end of his term, in addition to more commutations.  But it will be a tall order for him to match his predecessors even “roughly” in absolute number of pardons.  For example, George W. Bush granted 189 pardons, Bill Clinton granted 396, and Ronald Reagan granted 393.  Jimmy Carter and Gerald Ford granted 593 and 382 full pardons, respectively. By contrast, after seven and a half years Obama has granted a total of only 66 full pardons (not counting the four pre-conviction pardons granted to Iranians prior in last year’s foreign policy “swap”).  Only George H.W. Bush had issued fewer grants nearing the end of his tenure — and to be fair he served only one term and received far fewer applications. As of the beginning of June there were 1378 applications for full pardon awaiting President Obama’s action (in addition to more than 12,000 applications for commutation of sentence).  He has granted only two full post-sentence pardons in the past 30 months, both in December 2014.  If he is serious about wanting to match his predecessors in number of pardon grants, and not wanting to bunch grants at the end of his term, he had better get started on his pardoning regime soon. The absolute number of applications for full pardon filed under President Obama has been higher than in any Administration since FDR, when more than 30% of pardon applications were granted. By contrast, the percentage of pardon requests granted by President Obama to date has been about 2.5%.  This has meant that people with federal convictions have had little hope of avoiding or mitigating collateral consequences. Steve Nelson reported on the President’s ambitious undertaking in U.S. News (“Obama Says He Will Catch Up on Pardons, But He’s Far Behind”): President Barack Obama said Thursday he intends to issue about as many pardons as his predecessors by the time he leaves office in January. But Obama has a long way to go – to date he’s pardoned fewer people than any president since James Garfield, who was fatally shot in 1881 after less than three months in office. . . . . “It concerns me that this really important part of the clemency caseload has been so neglected,” says Margaret Love, who served as the U.S. pardon attorney from 1990 to 1997 under Presidents George H.W. Bush and Bill Clinton. “It’s bad enough that the president is the only way to go for people who have served their sentence and are seeking relief from collateral consequences and restoration of their rights,” she told U.S. News shortly before the president’s news conference. “But when the president says ‘the door is closed, I’m not home for you,’ that’s very troublesome. I’m not sure he appreciates that that in effect is what he’s said.” . . . . The possible explanations for Obama’s stingy pardon-giving vary, but it’s a frustration for Love’s clients seeking a sense of forgiveness before they die or the ability to become U.S. citizens despite minor and decades-old convictions. One possible reason for the president’s inaction is caution inspired by recent history. Obama noted this Thursday, saying clemency “is politically risky” and that “everyone remembers that Willie Horton ad” that was used to attack 1988 Democratic presidential nominee Michael Dukakis. He said advisers “earlier in my presidency” advised him to be cautious. Abner Mikva, Clinton’s third White House counsel, said he spoke with Obama even before he took office and recalled “a lengthy discussion about Marc Rich,” the wealthy fugitive and Democratic donor who Clinton controversially pardoned in his final days in office. “I think he was very, very dismayed by the Marc Rich pardon … [and] how even a good president can be corrupted by the pardons process,” Mikva said. A second possible explanation is the deluge of petitions coming into the pardon office after the Justice Department in 2014 announced its Clemency Initiative for nonviolent offenders whose crimes today would receive shorter sentences. Obama gave indication this, too, could be a contributing factor, mentioning financial constraints. This explanation is supported by the resignation letter of Deborah Leff, who left her post as U.S. pardon attorney in January, saying there was insufficient staffing to handle a flood of petitions, meaning “thousands of petitioners seeking justice will lie unheard.” Leff wrote that because of the influx, “I have been instructed to set aside thousands of petitions for pardon and traditional commutation.” A third possible explanation is offered by Love: that pardon requests are, without correction from Obama, being unnecessarily slowed by Justice Department prosecutors who also could alleviate clemency system burdens by going to court to shorten sentences. The former pardon attorney says the Justice Department – whose deputy attorney general reviews pardon attorney decisions before they are sent to the White House – could seek to use a statute known for allowing “compassionate release” of prisoners to shorten unreasonably long sentences. The law allows reductions if there are “extraordinary and compelling reasons.” “It doesn’t make sense to try to deal with a systemic problem affecting thousands of people through the clemency power. Some solution through the courts has got to be found,” she says. “Even if the president does another thousand of these [commutation] cases, there still will be many left behind.” . . . Love says she would not recommend that Obama do last-minute research on Google to find prisoners worthy of a pardon, as he needs to insulate himself from controversies such as those faced by Clinton and instead go with vetted cases in moderately sized batches. . . . Love also says a long-term fix is necessary and that states may offer a good model for reform, with laws being passed that mitigate collateral consequences of conviction. She views Delaware as a model, where regular public meetings are held to address pardons. “George W. did whatever the department sent to him. He ate his spinach and he ate it promptly. And occasionally he would ask why he wasn’t getting more,” she says. “All [Obama] needs to say is, ‘I want to do some pardons’.” Read more

Should clemency substitute for the rule of law? “A Modest Proposal” says no

We cross-post a recent comment about the Obama clemency initiative from Professor Doug Berman’s Sentencing Law and Policy blog because it proposes to supplement the constitutional pardon power with a relief mechanism built into the legal system (there, a sentence reduction by the court rather than presidential commutation).  It reflects the institutional and practical concerns of Enlightenment philosopher Cesare Beccaria, who proposed in 1764 that Clemency is a virtue which belongs to the legislator, and not to the executor of the laws; a virtue which ought to shine in the code, and not in private judgment. Beccaria’s view that clemency should “shine in the code” has a special resonance where collateral consequences are concerned since pardons have become so rare in recent years. Indeed, Judge John Gleeson might have invoked Beccaria when he expunged the conviction of a woman who was unable to find employment because of her criminal record.  We intend to keep arguing in this space for a statutory restoration remedy for the federal system, whatever form it may take.    Sentencing Law and Policy Friday June 5, 2015 Former Pardon Attorney: “A Modest Proposal to Expedite the Administration’s Clemency Initiative” Regular readers know I have given lots of space this week to coverage and criticism of federal clemency efforts.  I am pleased to continue now with a guest post via former Pardon Attorney Margaret Love, which she sent my way under the title “A Modest Proposal to Expedite the Administration’s Clemency Initiative”: Mark Osler’s post in this space on June 4 (“Another View on Clemency Project 2014”) recounts his unsuccessful effort several years ago to persuade the Administration to establish a presidential commission, similar to the one that handled cases of Vietnam draft evaders and deserters during the Ford Administration, to review and recommend clemency relief for the thousands of prisoners serving prison sentences imposed more than a decade ago that are now generally considered far too severe.  He suggests that the reason the Administration chose not to follow this path relates to its doubt that Congress would fund such an effort. Instead, the Justice Department chose to address the problem of excessive sentences by asking a consortium of private organizations to manage it through the volunteer efforts of the private bar. We will never know whether Professor Osler’s commission idea would have worked, or whether lack of funding was the reason it was rejected.  But it does appear that the structure put in place instead to manage the Administration’s clemency initiative has (in his words) “struggled with the overwhelming number of cases (over 30,000) referred to it.” It did not help that the Administrative Office for U.S. Courts sharply limited the role that Federal Public Defender Organizations could play in the clemency initiative, by declaring that CJA funds could not be spent on clemency representations.  Many, including myself, believe that the sentencing expertise and advocacy of the Federal Defenders is critical to implementing the sort of large scale program of sentence reduction the Administration evidently had in mind. But there is another approach that might have been taken by the Administration that would have ensured a central role for the Federal Defenders.  This approach, which might still be taken, would make extraordinary sentence reduction the responsibility of the federal courts as well as of the President.  Bringing cases back to court would not require new legislation or new funds, since there is already on the books a judicial sentence reduction authority that could achieve the same result as executive clemency, through court proceedings where CJA appointments are clearly authorized.  And, because a large scale sentence reduction program is already underway in the federal courts, economies of scale are possible. Specifically, 18 U.S.C. § 3582(c)(1)(A)(i) provides that a court may at any time reduce a sentence upon motion of the Bureau of Prisons for “extraordinary and compelling reasons.” The Sentencing Commission is authorized under 28 U.S.C. § 994(t) to establish policy for courts considering BOP motions under § 3582(c)(1)(A)(i), which it has done under USSG ¶ 1B1.13.  Under this policy guideline, “extraordinary and compelling reasons” that may justify sentence reduction include terminal illness, a physical or medical condition that diminishes a person’s ability to provide self-care in a prison environment, the death or incapacitation of a child’s only caregiver, and any other reason that may be determined to be “extraordinary and compelling” by the Director of BOP.  It is noteworthy that several of the organizations represented on the Clemency Project 2014 steering committee are on record with the Sentencing Commission as favoring a more expansive menu of “extraordinary and compelling reasons” warranting sentence reduction, including one that now seems prescient: “the defendant would have received a significantly lower sentence under a subsequent change in applicable law that has not been made retroactive.” Less than two years ago BOP issued a new policy statement with a list of circumstances in which it may seek a sentence reduction, a list that is evidently not intended to be exhaustive. See Program Statement 5050.46, as amended (August 12, 2013).  Accordingly, there is no reason why BOP could not determine, with or without an amendment to ¶ 1B1.13, that “extraordinary and compelling reasons” exist in any case meeting the criteria set forth by the Deputy Attorney General as warranting a grant of clemency. The coincidence of the standards in the two contexts would be particularly fitting in light of the fact that the judicial sentence reduction authority in § 3582(c)(1)(A)(i) was originally enacted in 1976, at the Justice Department’s instance, to expedite sentence reductions that previously had required a clemency application to be submitted to the President through the Office of the Pardon Attorney. There are in addition other reasons why it would be appropriate to supplement the clemency initiative with a statutory sentence reduction initiative implemented through the courts, including a general preference for a judicial decision-maker under federal sentencing law and policy, and for a congressionally authorized approach over an extra-legal use of executive power. Most scholars agree that clemency ought always to be a second choice where the law provides a remedy for sentencing unfairness or undue severity, as it does in this case.  See, e.g., Daniel J. Freed & Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 Fed. Sent. Rptr. 119, 124 (2001) (“Wherever a rule can be structured to guide the discretion of judges or administrative agencies in determining – with reasons – whether to mitigate the sentences of similarly situated offenders, we think such a system should ordinarily be accorded priority over one that relies exclusively upon the unstructured, unexplained discretion of a president to grant or deny individual pardons or commutations.”) Traditionally, the Federal Defenders have played a central role in proceedings involving judicial consideration of sentence reduction under § 3582(c)(2) where guideline ranges have been lowered, even though there is no constitutional right to counsel in such proceedings.  They are key players in the massive effort to reduce sentences now underway under the so-called “Drugs Minus Two” guidelines amendment. There is no reason why the Defenders should not play a similar role in judicial sentence reduction proceedings under § 3582(c)(1).  There does not appear to be any relevant difference between the two types of proceedings as far as the discretionary appointment power in 18 U.S.C. § 3006A(a)(2) is concerned. In the interests of judicial economy, these proceedings might even be combined. All it would take to make this happen would be a resolve on the part of the Department of Justice to use this statute for the purpose it was originally intended. Augmenting the Administration’s sentence reduction program through broader use of a judicial sentence reduction mechanism, which the Justice Department’s own Inspector General has repeatedly criticized as underutilized (most recently for aging prisoners), would accomplish the Administration’s goals in reducing unduly severe sentences, while at the same time regularizing sentence reduction through the courts pursuant to statute.  It would put sentence reduction on a sounder long-term footing that is more consistent with the principles of determinate sentencing, be more predictable and accountable as a practical matter, and respond to any concerns about the unaccountable use of executive power. Many years ago, when I was serving as Pardon Attorney, then-Deputy Attorney General Philip Heymann asked me why we should ask the President to commute the sentence of an elderly prisoner when (he said) “we can do the job ourselves.”  Now I would ask the new DAG the same question. Read more

Managing collateral consequences in the sentencing process

A new paper by CCRC editor Margaret Love describes how the newly revised sentencing articles of the Model Penal Code manage collateral collateral consequences by integrating them into the sentencing process.  The article, published in the Wisconsin Law Review, compares the new MPC provisions with the collateral consequences provisions of the original 1962 Code.  Here is the abstract: The debased legal status that results from a criminal conviction makes possible a regime of restrictions and exclusions that feels like punishment to those who are subject to it and looks like punishment to the community.  Policy makers are beginning to understand that the goal of reintegrating criminal offenders into society is not well served by a legal system that makes them permanently ineligible for many of its benefits and opportunities and effectively marks them as social outcasts.  Because courts have failed to address issues of severity and proportionality raised by punitive mandatory collateral penalties, and because legislatures have been unwilling to dial them back in any meaningful fashion, reformers have turned to the sentencing system to restore collateral consequences to an appropriate regulatory role.     One such reform proposal is the American Law Institute’s Model Penal Code: Sentencing (MPC), which integrates collateral consequences into a sentencing system that gives the court rather than the legislature responsibility for shaping and managing criminal punishment in particular cases.  Just as the court decides what sentence it will impose within a statutory range, the court also decides which mandatory collateral penalties will apply and for how long.  This gives sentencing courts new tools to further the rehabilitative goals of sentencing, and at the same time it enables them to avert issues of proportionality an Read more