Tag: Massachusetts

New research report: Four Years of Second Chance Reforms, 2013-2016

Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society.  It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences.  To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief.  Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction.  As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types.  The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process.  Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time.  Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible.  Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado’s new “order of collateral relief” provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction.  The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority.  These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<       Read more

When collateral consequences drive the sentence: The David Becker case

In the wake of the Brock Turner case, a new controversy was ignited in Massachusetts last month when 18-year-old David Becker, a white college-bound athlete, received two years’ probation after pleading guilty to indecent assault of an unconscious woman at a house party.  As in the Turner case, many are outraged by a penalty they regard as too lenient and the result of white privilege.  However, any perceived injustice in the Becker case may be less about an abuse of judicial discretion than about the limited ability of judges to mitigate collateral consequences. Critics of the decision may be even more concerned to learn that David Becker was not actually convicted of a crime.  Instead, District Court Judge Thomas Estes accepted Becker’s guilty plea and ordered a “continuance without a finding” (known as a CWOF) for two years while Becker serves a term of probation.  If Becker completes the conditions of probation successfully, the charges against him will be dismissed and the record will be eligible for sealing. The fact that Becker was not convicted is significant because it allows him to avoid both registering as a sex offender and the numerous collateral consequences that would come with having a criminal record. As in most states, Massachusetts requires only those who are convicted of sex offenses to register, and sex offender registration obligations are imposed by operation of law at the moment of conviction.  However, a Massachusetts court may choose to waive the registration requirements either upon a motion from the prosecution, or sua sponte if the sentence includes no immediate term of confinement. If Becker were convicted and a term of imprisonment were imposed, as prosecutors had recommended (and as many of critics of the disposition would have preferred), then he would have been required to register as a sex offender for 10 to 20 years, regardless of whether he served two days or two years. His educational, employment, and housing opportunities would all have been severely diminished, he would have suffered the severe social stigma reserved for sex offenders, and, at just 18 years old, his chances of leading a normal successful life would have declined significantly.  Because registration would be imposed by operation of law, Judge Estes would have been powerless to mitigate those consequences. This was not lost on the judge, who addressed the severity and automatic nature of sex offender registration explicitly at Becker’s sentencing hearing.  When the prosecution suggested that Becker could pose a risk to college classmates, Judge Estes interjected, saying: He’s not going to college if I adopt your recommendation. He’s going to jail and he’ll be a sex offender, and he’ll register for at least the next 20 years – I don’t think he’ll go to college at all. But the judge was also aware of the many other collateral consequences that would follow a conviction, even if probation were imposed and registration were waived.  After acknowledging the persuasiveness of the of the victim’s request for leniency (in which she said she did not want to “be responsible for ruining his life”), Judge Estes stated: If I found him guilty at this point, it would slam a lot of doors. [] There have already been significant collateral consequences to simply being charged with the offense in the first place. (The consequences of being charged became even more apparent when the University of Dayton, the college that Becker was set to attend, pulled his scholarship after the controversy erupted, even though no judgement of conviction had been entered.) Under Massachusetts law, Judge Estes could only keep those doors ajar by declining to convict Becker.  As in most states, Massachusetts judges have no authority to mitigate individual collateral consequences of conviction, so the only recourse available to a judge that believes the collateral consequences of a conviction would be too severe is to avoid conviction with a CWOF. If it seems that David Becker got off easy, it may be because Judge Estes’ hands were tied when it came to crafting a disposition that addressed the collateral consequences Becker would be subject to.  Deferred adjudication mechanisms like Massachusetts’s CWOF were created specifically to provide defendants with a second chance, and they are essential tools in the administration of justice; but they are also blunt tools that are not necessarily appropriate in every situation and can result in “all or nothing” decision-making. If sentencing judges had broad authority to mitigate individual collateral consequences by ordering relief from mandatory consequences (as provided for in the latest revision of the Model Penal Code) or issuing certificates of relief or rehabilitation to address discretionary ones, then one can envision a judge in Judge Estes’ position being more willing to enter a conviction and impose at least some jail time.  Regardless of whether that would have represented justice for Becker, his victim, or the public, the ability to mitigate individual collateral consequences would have given Judge Estes much more latitude to craft a disposition that most would agree fit the crime.   You can find more information about the availability of deferred adjudication mechanisms, including Massachusetts’ CWOF, in our state-by-state restoration of rights guides here.   Read more

NH Supreme Court takes aim at federal felon-in-possession statute

In an important decision for firearms-related collateral consequences, the New Hampshire Supreme Court relied on the Second Amendment to carve out an exception to the so-called federal felon-in-possession statute, declining to follow relevant federal court precedents. At stake is whether state or federal courts have the last word on the scope of the exceptions in 18 U.S.C. 921(a)(20).  In DuPont v. Nashua Police Department, the court held that a man convicted of a misdemeanor DUI, who as a result lost his right to possess a firearm under state and federal law, was able to avoid federal firearms disability by virtue of the restoration of his state firearms rights, even though he lost none of the traditional “core” civil rights (vote, office, jury).  In order to get to this result, the court had to conclude that the right to possess a firearm is itself a civil right, whose loss and restoration under state law is sufficient to satisfy the “civil rights restored” requirement in 921(a)(20), thus creating a narrow but significant exception to the U.S. Supreme Court’s holding in Logan v. United States. While the holding in DuPont applies only to a limited class of misdemeanants (those who lost and regained state firearms rights), the decision may be the opening salvo in a state backlash against federal efforts to define the scope of state relief recognized in 921(a)(20). Gregory DuPont’s 1998 Massachusetts DUI carried a potential maximum prison sentence of two and a half years, thus rendering him ineligible, under both Massachusetts and federal law, to possess a firearm.  In 2005, the Massachusetts Firearm Licensing Review Board (FLRB) restored DuPont’s firearms rights, finding that he was “a suitable person to possess a license to carry firearms.”  In 2007, the City of Nashua (NH) issued DuPont a license to carry a pistol or revolver, and in 2009 the New Hampshire Department of Safety (DOS) issued him an armed security guard license. In 2013, when DuPont applied to the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for a Curios and Relics License, a background check revealed that the 1998 state conviction was disqualifying under federal firearms law.  As a result, the federal license was denied and DuPont’s state licenses were revoked.  The state trial court denied DuPont’s appeal, reasoning that DuPont could not “be deemed suitable to possess a license to carry a pistol or revolver” because, “[u]nder applicable federal law, which New Hampshire must follow under the Supremacy Clause of the U.S. Constitution, [he] cannot possess a firearm.”  The circuit court agreed, relying on Logan v. United States, 552 U.S. 23 (2007), to hold that because DuPont had never lost any of the “core” civil rights (vote, jury, office) he could not benefit from the “civil rights restored” exception under 18 U.S.C. § 921(a)(20)(B).  The court explained that the right to carry a gun “is a constitutional, not civil, right.” The state high court disagreed, relying on the Second Amendment to hold that Massachusetts’ restoration of his firearms rights was enough to bring him within the “civil rights restored” proviso: The Sixth Circuit has opined that Heller “suggests that a handgun possession ban . . . might infringe a civil right.” United States v. Sanford, 707 F.3d 594, 597 (6th Cir. 2012) . . . . In addition, the Supreme Court has referred, in an unrelated context, to the loss of the right to bear arms as the deprivation of a civil right. See Nat. Fedn. of Indep. Business v. Sebelius, 132 S. Ct. 2566, 2600 (2012) (noting that “[a]n individual who disobeys” a law passed under Congress’s Commerce Clause power “may be subjected to criminal sanctions . . . [which] can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections”). The court reasoned that when Congress used “civil rights restored” as a touchstone for regaining firearms rights it meant that “by reinvesting a person with core civic responsibilities, the state vouches for the trustworthiness of that person to possess firearms (unless that right is withheld).” Thus, as the petitioner puts it: “The right[s] to vote, hold office and sit on a jury are simply surrogates for an underlying state determination/vouching for a person’s trustworthiness to possess a firearm.” We find it unlikely that Congress intended to credit the restoration of “core rights” as indicative of trustworthiness, but exclude the restoration of the very right at issue – the right to possess firearms – from the trustworthiness calculus. Cf. Coram v. State, 996 N.E.2d 1057, 1077 (Ill. 2013) (Karmeier, J., writing separately) (opining that “whether a person previously convicted of an offense constitutes a present danger with a weapon going forward, and whether that individual’s rights to keep and bear arms should be restored . . . , logically, should be the core question” instead of “quibbling over what rights irrelevant to that question have been restored, or, as some cases would have it, how many of those rights”). Put another way, 921(a)(20) reflects “the general intent of Congress to redirect enforcement efforts against firearms owners that have a demonstrated potential for serious unlawful activity.”  The court quoted the Ninth Circuit’s statement in U.S. v. Valerio that “[b]y contrast to the right to vote, no civil right could be more relevant to a felon’s future dangerousness than the right to possess firearms.” 441 F.3d 837, 842 (9th Cir. 2006). The court therefore concluded that the “civil rights” contemplated by § 921(a)(20) must include the right to keep and bear arms, and that restoration of that civil right alone (if no others are lost) brings a conviction within the § 921(a)(20) exemption.  It distinguished Logan by pointing out that, unlike the the defendant in that case, DuPont had received a “status-altering dispensation,” a “token of forgiveness” from Massachusetts through the FLRB’s determination thatv his gun rights should be restored. As previously noted, the FLRB specifically found that the petitioner was “a suitable person to possess a license to carry firearms, and his right to possess a firearm therefore is fully restored in the Commonwealth.” Given our conclusion that the right to keep and bear arms is a civil right for purposes of § 921(a)(20), the petitioner has had one civil right “restored” in the Logan sense. Accordingly, we conclude that Logan does not exclude the petitioner from § 921(a)(20)’s exemption. Further, even though only one civil right was lost and restored, this was enough to bring petitioner’s 1998 conviction within § 921(a)(20)’s exemption, based on precedent holding that the exemption does not require a “full” restoration of rights. The FOPA amendment . . . exempted felons to whom the convicting jurisdiction extended a subsequent gesture of forgiveness, or partial forgiveness, by means of pardon, expungement, or restoration of civil rights. The theory was no doubt that such a subsequent forgiveness should be credited as an acknowledgment of rehabilitation or an affirmative gesture of goodwill that merited exemption from the firearms bar. . . . [T]he ultimate question is whether the state, by its “gesture of forgiveness,” has “vouche[d] for the trustworthiness of that person to possess firearms (unless that right is withheld).” . . .  The gesture of forgiveness here – explicit restoration of firearm rights – vouches for that trustworthiness more directly than any other. In asserting a state’s right to interpret the scope of the exemption in 921(a)(20), the New Hampshire court specifically declined to follow federal court decisions involving convictions for misdemeanor domestic violence, in which restoration of gun rights by itself was found insufficient to bring a prior conviction within the exemption. We decline to follow those cases. We conclude that our interpretation of § 921(a) better fulfills Congress’s purpose of “defer[ring] to a State’s dispensation relieving an offender from disabling effects of a conviction.” Logan, 552 U.S. at 37. Here, Massachusetts acted clearly and directly to remove the restriction the petitioner’s 1998 conviction had placed upon his civil right to keep and bear arms. We hold that Massachusetts thereby restored the petitioner’s civil rights within the meaning of § 921(a)(20).       Read more

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

How risky is pardoning? Not as risky as committing uninformed journalism

An AP story about the perils of pardoning, picked up by newspapers and media outlets across the country, manages to convey three pieces of misinformation in its very first sentence.  Riffing off a recent high profile pardon application, it begins like this:  “Mark Wahlberg’s plea for a pardon has focused fresh attention on excusing criminal acts – something governors rarely do because it’s so politically risky.” But pardons do not “excuse” crimes, they forgive them; governors have been pardoning more and more generously in recent years; and pardoning, like any other government program involving personal participation by a high profile elected official, is generally not risky if done in a responsible manner with good staff support and without apology. The AP article (Steve LeBlanc, “Wahlberg Plea Underscores Risk of Issuing Pardons”) supports its tired “politically risky” thesis with three examples from the last twenty years of governors’ pardons gone bad: two involve bad staffing, and the third dubious causality.  (Mr. LeBlanc could have found plenty more examples of poor pardon staffing resulting in executive embarrassment in the recent annals of presidential pardoning.) The article does not mention that Massachusetts is one of only a handful of states whose governors have stubbornly refused to use their beneficent executive power even in the most sympathetic cases.  It fails to see any irony in Governor Patrick’s delay in acting on expanded criteria for issuing pardons he announced almost a year ago.  It also does not mention that pardoning has been alive and well for some time in more than a dozen states, and has enjoyed a renaissance under current governors in Illinois and California. While former Maryland governor Robert Ehrlich is no longer the only responsible living pardoner in the country, as this writer once proposed, he certainly has the right idea about pardon being “part of the job” for any governor.  Ehrlich has embarked on a commendable campaign to educate governors to this idea.  It would be nice if more members of the working press were interested in encouraging responsible executive action instead of using misinformation to discourage it.  At least the editorial pages seem to have figured it out. Read more