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.)
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.
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.
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. Read more
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
Notwithstanding the Supreme Court’s decisions in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) and Smith v. Doe, 538 U.S. 84 (2003), state courts are coming to different conclusions under their own constitutions about whether sex offender registration and notification laws constitute punishment for purposes of due process and ex post facto analysis. The Pennsylvania Supreme Court is the most recent to invalidate mandatory registration requirements imposed on juveniles, but several state supreme courts have limited the retroactive application of registration requirements to adults under an ex post facto analysis.
Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about restrictions on international travel based on criminal record. The first section discusses the subject in general terms, while the second section describes restrictions on travel to Canada for individuals with a foreign conviction, and the methods of overcoming these restrictions. (An earlier post described methods of neutralizing Canadian convictions for purposes of travel to the U.S.)
Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about challenges to firearms-related collateral consequences based on the constitutional right to bear arms. Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms rights after conviction, will be interested to know that the government has appealed the district court’s decision in Binderup v. Holder cited in note 8, discussed here a few weeks ago.
Binderup is a civil rights action in which the federal court in the Eastern District of Pennsylvania held that the federal felon-in-possession statute could not constitutionally be applied to an individual convicted of a non-violent sex offense in 1998 and sentenced to probation. This case, the first in which a federal court invalidated a federal statute on Second Amendment grounds, is likely to provide an early opportunity for the court of appeals to consider an issue that most commentators and some courts believe was left unresolved by the Supreme Court in D.C. v. Heller.