Tag: love

State courts question mandatory lifetime sex offender registration

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. Juvenile registration requirements On December 29, 2014 the Pennsylvania Supreme Court ruled that the state Sex Offender Registration and Notification Act (SORNA) violates juvenile offenders’ due process rights through the use of an irrebuttable presumption of recidivism.  See In the Interest of J.B., 2014 Pa. LEXIS 3468 (Pa. 2014).  The court noted that “the common view of registered sexual offenders is that they are particularly dangerous,”  and that consequently registration “negatively affects juvenile offenders ability to obtain housing, schooling, and employment, which in turn hinders their ability to rehabilitate.”  Citing research demonstrating the difference between juvenile and adult offenders, notably where sex offenses are involved (“many acts of delinquency involve immaturity, impulsivity, and sexual curiosity rather than hardened criminality”), the court held that “individualized risk assessment, as used in other provisions of SORNA, provides a reasonable alternative means of determining which juvenile offenders pose a high risk of recidivating” so as to warrant their registration. Given that juvenile offenders have a protected right to reputation encroached by SORNA’s presumption of recidivism, where the presumption is not universally true, and where there is a reasonable alternative means for ascertaining the likelihood of recidivating, we hold that the application of SORNA’s current lifetime registration requirements upon adjudication of specified offenses violates juvenile offenders’ due process rights by utilizing an irrebutable presumption. The Pennsylvania court joined the Ohio Supreme Court in invalidating lifetime sex offender registration requirements imposed on juveniles.  In re C.P., 967 N.E.2d 729 (Ohio, 2012) (invalidating on state and federal cruel and unusual punishment and procedural due process grounds automatic, lifetime registration imposed on juvenile tried in juvenile system). Meanwhile, federal courts have persisted in upholding categorical registration requirements imposed on juveniles under the Adam Walsh Act.  See U.S. v. Juvenile Male, 670 F.3d 999 (9th Cir. 2012), cert. denied, 133 S. Ct. 234 (2012) (rejecting equal protection, cruel and unusual punishment, procedural and substantive due process challenges against automatic, lifetime registration). On the general issue of juveniles being subject to registration and notification requirements, see Amy E. Halbrook, Juvenile Pariahs, 65 Hastings L.J. 1 (2013); Human Rights Watch, Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US, available at . http://www.hrw.org/reports/2013/05/01/raised-registry; Stephanie Forbes, Comment, Sex, Cells, and SORNA: Applying Sex Offender Registration Laws to Sexting Cases, 52 Wm. & L. Rev. 1717 (2011).  Adult registration requirements Adults have also caught a few breaks in state court from increasingly harsh registration and notification requirements.  In 2011, the Ohio Supreme Court granted a challenge to the state’s amended registration law under the state’s constitutional ban on non-remedial retroactive laws, finding that “all doubt has been removed” as to whether the state’s law is punitive in character. State v. Williams, 952 N.E.2d 1108 (Ohio 2011). Earlier, the Indiana Supreme Court held that the increasingly onerous features of Indiana’s law, including in-home visits by police and the requirement that registrants carry a personal identification card at all times, violated the state constitution’s ex post facto provision. Wallace v. State, 905 N.E.2d 371 (Ind. 2009).  See also State v. Letalien, 985 A. 2d 4 (Me. 2009)(more burdensome later-enacted registration requirement violated ex post facto); Doe v. Sex Offender Registry, 882 N.E. 2d 298 (Mass. 2008)(due process violation in failure to give man subjected to new registration requirement opportunity to show that he posed no risk).  For recent examples of state court invalidation of registration requirements under state ex post facto provisions, see Doe v. Dep’t of Pub. Safety & Corr. Servs., 40 A.3d 39 (Md. 2013); Starkey v. Okla. Dep’t of Corr., 305 P.3d 1994 (Okla. 2013).* As in situations involving juveniles, federal courts have persisted in finding that registration requirements fail to qualify as constitutional punishment, even in their augmented post-Adam Walsh Act form.  See, e.g., U.S. v. W.B.H., 664 F.3d 848 (11th Cir. 2011), cert. denied, 133 S. Ct. 524 (2012).  The state/federal duality is exemplified by the Alaska Supreme Court’s 2008 decision disagreeing with the Smith majority’s opinion that Alaska’s registration law was not punitive. See Doe v. State, 189 P.3d 999 (Alaska 2008). For a discussion of constitutional challenges to sex offender registration and notification requirements, and other sex offense-related residency and associational restrictions, see Chapters 2 and 3 of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (2013).  Wayne Logan will shortly be posting his new article on relief from registration requirements, discussed in an earlier post here. *NOTE:  See also Doe v. New Hampshire, ___ N.H. ___ , No. 2013-496 (2015)(lifetime-registration-without-review provision of state law, pursuant to which petitioner was denied public housing, made requirement punitive for ex post facto purposes; the requirement could be enforced against petitioner only if he was promptly given an opportunity for either a court hearing, or an administrative hearing subject to judicial review, at which he was permitted to demonstrate that he no longer posed a risk sufficient to justify continued registration.)   Read more

International travel restrictions based on criminal record

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.) 2:61. International travel restrictions — In general* A conviction can restrict a U.S. citizen’s freedom to travel outside the United States in several ways. First, domestic laws revoke passports for individuals convicted of designated offenses. When a person is convicted of a felony drug offense for conduct that involved international travel, for example, his passport will be revoked under federal law[1]. The revocation period lasts for the full duration of the sentence imposed for the drug offense[2]. Persons with a felony conviction ordinarily will not qualify for “trusted traveler” programs operated by U.S. Customs and Border Protection, such as the Global Entry program (“expedited clearance for pre-approved, low-risk travelers upon arrival in the United States”), or the NEXUS, SENTRI and FAST programs (pre-cleared personal and commercial travel across the U.S. borders with Canada and Mexico).[3]  All applicants for these programs “undergo a rigorous background check and interview before enrollment.”  Ironically, in light of the stated purpose of these programs to expedite international travel, persons who apply and are rejected based on criminal history may find themselves routinely selected for further examination when entering the United States. Foreign laws may also restrict the travel of individuals convicted in U.S. courts.   Some countries, most notably Canada, prohibit individuals convicted of certain offenses from entry.[4]  However, countries that only require travelers to present their passport for admission generally do not screen for a criminal record.  Canada is a special case, as the Canada Border Services Agency (CBSA) border agents have access to the National Crime Information Center (NCIC) database, using the traveler’s passport, which allows them to see any conviction going back to a traveler’s 18th birthday.[5] Other countries do not have immediate access to the NCIC database, which means that this issue only arises if the individual is applying for a visa to visit, work, study, or immigrate.  On visa applications, there is usually a question regarding criminal convictions and arrests, and failure to answer truthfully may have serious consequences.  U.S. citizens may also be asked to present a “certificate of good conduct” or “lack of a criminal record” for a variety of reasons for use abroad including adoption, school attendance, or employment.[6] Some countries do not automatically exclude individuals with prior convictions from entry but require certain convicted individuals to apply to the country for pre-clearance prior to travel.[7]  Individuals with criminal records who wish to travel internationally should first contact the local U.S. embassy of the nation they wish to visit for up-to-date information about the nation’s policies regarding admission.   2:62. International travel restrictions – Canada Before travelling to Canada, individuals with a criminal history should verify their entry status, since even seemingly minor offenses may render an individual inadmissible to Canada. The Canadian Immigration and Refugee Protection Act (IRPA)[8] states that a foreign national may be inadmissible on the grounds of criminality if convicted outside of Canada of an offense that, if committed in Canada, would constitute an “indictable offense” under an Act of Parliament.[9]  Thus, simply, any offense committed outside of Canada that would be considered indictable in Canada results in criminal inadmissibility. Any offense that could be treated as either summary or indictable is known as a hybrid offense. Hybrid offenses, a majority of the offenses in the Canadian criminal code, are considered to be indictable offenses for the purposes of Canadian immigration.  Summary offenses do not result in inadmissibility.[10] A significant part of the application process to overcome inadmissibility is determining the equivalence of foreign offenses with Canadian offenses.  It does not matter how lightly or severely a given crime is treated in the country where it occurred, or whether it is styled as a felony or misdemeanor.  Thus, a misdemeanor under U.S. law may render an individual inadmissible to Canada while someone with a felony conviction may not be inadmissible.[11]  In some cases it is possible to argue non-equivalence or equivalence to a minor offense to circumvent the inadmissibility regulations and allow the individual to enter without applying for permission. Once the equivalence has been established, it is important to determine the maximum authorized sentence under Canadian law, which will be relevant to determining the cost and likelihood of success when applying for relief from criminal inadmissibility.  Offenses that carry a maximum sentence of 10 years or more under Canadian law are considered serious criminality and relief is more difficult to obtain.  Non-serious criminality is a conviction for an offense with a maximum sentence of less than 10 years. The processing times and fees for applications involving non-serious criminality are less. When a foreign conviction is determined to be an indictable offense under Canadian law, whether it will render the traveler inadmissible depends on several factors: How long ago the conviction occurred; The severity/nature of the offense in Canada; How many offenses the individual has been convicted of; and Whether the individual can demonstrate they are unlikely to reoffend.[12] If travelers can prove that they have not been convicted of an offense that would render them inadmissible because they have received a deferral or conditional discharge or because the offense has been expunged or pardoned, applying for relief is not required. Criminally inadmissible visitors to Canada may petition for a “Criminal Rehabilitation” from the Canadian consulate if at least 5 years have passed since the completion of their sentence, including payment of fines and completion of probation or parole.[13] If granted, such a document overcomes barriers to entry. If fewer than 5 years have passed, an individual with a significant economic or humanitarian & compassionate reason to travel to Canada may request a Temporary Resident Permit (TRP), to temporarily overcome inadmissibility.[14]  An individual who has only one non-serious conviction (conviction for an offense carrying a maximum sentence of less than 10 years under Canadian law) may also be “deemed rehabilitated”[15] if more than 10 years have passed from the completion of all conditions of their sentence (or five years in the case of two or more summary offenses).[16] Only a lawyer certified by one of the provincial bar associations in Canada, or a certified Canadian immigration consultant, is authorized to represent an individual in a Canadian immigration application, including Criminal Rehabilitation and TRP applications.[17]   * * * * * * * * * * * * * * * *   * The authors wish to thank Marisa Feil of Montreal, Canada, for her contributions to §§ 2:61 and 2:62. [1] 22 U.S. Code § 2714 (a) http://www.law.cornell.edu/uscode/text/22/2714 [2] 22 U.S. Code 2714 (c). [3] These programs are described at http://www.cbp.gov/travel/trusted-traveler-programs. [4] IRPA S.C. 2001, c.27 s.36(2). [5] http://www.cbsa-asfc.gc.ca/agency-agence/reports-rapports/pia-efvp/atip-aiprp/infosource-eng.html.  See § 2:62. [6] See http://travel.state.gov/content/passports/english/abroad/legal-matters/criminal-record-check.html. [7] In the United Kingdom, for example, individuals with criminal records are encouraged to seek entry clearance prior to travel. Clearance will ordinarily be denied for “conviction in any country including the United Kingdom of an offense which, if committed in the United Kingdom, is punishable with imprisonment for a term of twelve months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offense had occurred in the United Kingdom.” U.K. Imm. R. 320(18). [8] IRPA S.C. 2001, c.27 s.36(2)   http://laws-lois.justice.gc.ca/eng/acts/I-2.5/. [9] Immigration and Refugee Protection Act, SC 2001, c 27, s.36 http://laws-lois.justice.gc.ca/eng/acts/I-2.5/.  Canada does not use the misdemeanor/felony classification system; offenses in Canada are either summary or indictable offenses, depending on the authorized punishment. [10] Summary offenses under the Canadian Criminal code include Trespassing at Night, Causing a disturbance, or taking a motor vehicle without consent (not Theft of an automobile).  http://www.cic.gc.ca/english/resources/manuals/enf/enf02-eng.pdf [12] http://www.cba.org/cba/cle/PDF/IMM11_Sedai_ENF14%20%282008-04-21%29.pdf. [13] IRPA S.C. 2001, c.27 s..36(3).  The application for Criminal Rehabilitation is available with instructions at http://www.cic.gc.ca/english/information/applications/rehabil.asp. [14] http://www.cic.gc.ca/english/information/inadmissibility/permits.asp. [15] Immigration and Refugee Protection Act, SC 2001, c 27 s. 18(2). [16] http://www.cic.gc.ca/english/information/inadmissibility/rehabilitation.asp. [17] http://www.cic.gc.ca/english/information/representative/rep-who.asp.  The penalty for a receiving compensation on this type of application by an unauthorized representative is a fine of up to $100,000. http://news.gc.ca/web/article-en.do?nid=824719. Read more

Second Amendment challenges to felon-in-possession laws

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. Alan Gura, who represents Mr. Binderup and argued both Heller and McDonald v. City of Chicago in the Supreme Court, has promised to give us a comment about the Binderup appeal and other pending Second Amendment challenges to felony dispossession laws involving people with dated non-violent convictions.  The tricky and fascinating question presented by these as-applied challenges is what criteria should be used to test whether an individual with a criminal conviction is within the class “historically barred barred from Second Amendment protections” or is “no more dangerous than a typical law-abiding citizen.” U.S. v. Barton, 633 F.3d 168, 174 (3d Cir. 2011). (Note from ML: I was told several years ago that a substantial percentage of the requests for presidential pardon pending in the Justice Department — perhaps as many as half — are from people seeking restoration of firearms privileges.  Judging from my own clientele, this seems about right.  It strikes me as exceedingly strange that people with dated non-violent federal convictions should have to petition the president himself to regain what we may soon learn are their constitutional rights, but that is the situation the Supreme Court left us with its dubious 1995 decision in Beecham v. U.S. and its equally dubious decision 13 years later in Heller.  He should hope the courts will relieve him of this burden, and instruct his Attorney General to stand down on Binderup.)   2:36. Firearms restrictions– Second Amendment challenges to felony dispossession laws In 2008, the Supreme Court held in District of Columbia v. Heller[1] that the Second Amendment confers a personal, fundamental right to possess a firearm, thus opening an entirely new basis for defending against the application of statutes making it a crime for convicted felons to possess firearms.[2] Heller itself anticipated and sought to deflect constitutional challenges to conviction-based firearms restrictions by declaring them to be “longstanding” and “presumptively lawful”[3] but some lower courts have characterized this statement as dictum, and scholars have questioned its historical accuracy.[4] While every federal court to have considered the issue post-Heller has rejected a Second Amendment challenge to the federal statute barring convicted felons from possessing firearms,[5] three federal courts of appeal have suggested that categorical firearms bans may not survive rational basis review as applied to individuals convicted of nonviolent felonies.[6]    In U.S. v. Barton, the Third Circuit noted that a successful “as applied” challenger must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections. For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.[7] The first case to sustain an as-applied challenge to the federal felon-in-possession statute relied upon this language from Barton in finding that an individual convicted of a non-violent sex offense and sentenced to probation sixteen years before could not be prosecuted under it.[8]  Earlier,  the North Carolina Supreme Court relied upon the “right to bear arms” provision of its state constitution in refusing to apply a newly enacted categorical dispossession statute to an individual whose conviction was decades old, whose firearms rights had been restored under an earlier law, and who had long since demonstrated his rehabilitation.[9]   [1] District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). [2] Cf. §3:11 (Substantive challenges based on rights guaranteed by the Constitution—Right to bear arms). [3] See Heller, 554 U.S. at 626-27 (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”). But see id. at 722 (Breyer, J., dissenting) (noting that there is no factual basis for the assertion that such prohibitions are “longstanding”). [4] See Alexander C. Barrett, Taking Aim at Felony Possession, 93 B.U.L. Rev. 163, 194-196 (2013)(“even if some felons were historically understood to be barred from possessing firearms, the common law term ‘felony’ applied to only a few select categories of serious crimes at the time the Second Amendment was ratified, while in modern times, vast categories of ‘non-dangerous’ activities qualify as felonious”); ; Nelson Lund, Two Faces of Judicial Restraint (or Are There More?) in McDonald v. City of Chicago, 63 Fla. L. Rev. 487, 502 (2011) (observing that the dictum was “casually tossed off by Justice Scalia” and has “no basis in prior Supreme Court case law and [was] not supported by evidence of the original meaning of the Second Amendment”); C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 696, 699 (2009) (observing that “a lifetime ban on any felon possessing any firearm is not ‘‘longstanding’’ in America”); Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374 (2009) (“[S]o far as I can determine, no colonial or state law in eighteenth-century America formally restricted the ability of felons to own firearms.”); Adam Winkler, Heller’s Catch 22, 56 UCLA L. Rev. 1551, 1561, 1563 (2009) (“Bans on ex-felons possessing firearms were first adopted in the 1920s and 1930s, almost a century and a half after the Founding.”). [5] 18 U.S.C.A. §922(g). [6] See U.S. v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012), cert. denied, 133 S. Ct. 962, 184 L. Ed. 2d 747 (2013) (dispossession would be improper if a litigant could demonstrate that he fell within “the scope of Second Amendment protections for ‘law-abiding responsible citizens to use arms in defense of hearth and home’”); U.S. v. Barton, 633 F.3d 168, 173 (3d Cir. 2011)(“As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge.”); U.S. v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) (“[T]here must exist the possibility that [a firearm] ban could be unconstitutional in the face of an as-applied challenge.”); see also U.S. v. McCane, 573 F.3d 1037, 1049 (10th Cir. 2009) (Tymkovich, J., concurring) (“Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons.”). But see U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010), cert. denied, 131 S. Ct. 1674, 179 L. Ed. 2d 645 (2011) (en banc) (explaining why §922(g) may constitutionally be applied to an individual repeatedly convicted of misdemeanor domestic violence). [7] U.S. v. Barton, 633 F.3d at 174. [8] See Binderup v. Holder, 2014 U.S. Dist. LEXIS 135110 (E.D. Pa. 2014).  Perhaps significantly, this successful as-applied challenge to 18 U.S.C. § 922(g)(1) was brought as a civil rights action under the Declaratory Judgment Act, rather than raised as a defense to a criminal prosecution. [9] See Britt v. State, 363 N.C. 546, 681 S.E.2d 320 (2009).  Following the Britt decision, North Carolina amended its firearms law to permit individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, to petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights.  N.C. Gen Stat. § 14-415.4.     Read more