Tag: Model Penal Code

New York certificate scheme found inaccessible and ineffective

  The certificate system for restoring rights after conviction in New York no longer serves its intended purposes, according to an investigation by City Limits.  The problem is that Certificates of Relief from Disabilities (CRD) are supposed to be a means to rehabilitation for people sentenced to probation, but the judges authorized to issue them see them (in the words of one public defender) “as a gold star, as a thing you get after you’ve been rehabilitated.”  The Parole Board appears similarly reluctant to issue Certificates of Good Conduct (CGC) to people leaving prison, even after a waiting period. The requirement of proof of rehabilitation as the price of a certificate has created what the City Limits investigation describes as “a catch-22”:   A conviction can bar someone from public housing. It can keep them from getting professional licenses—such as the ones required to direct funerals, or be a security guard or a home health aide, among many others. And employers stigmatize people with convictions, making it hard for them to get jobs.  These are the problems certificates were created to remedy, but also the problems people often have to surmount before they’re deemed worthy of one. When Governor Hugh Carey approved the two-track system in 1976 he declared that “Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime.”  But apparently this animating spirit of the law has been all but forgotten. For years New York was the only state to offer relief from collateral consequences as early as sentencing, and was hailed as a model for other jurisdictions.  Indeed, 10 years ago advocates urged the Connecticut legislature to implement reforms modeled after New York’s law.  Now it seems New York could take a lesson from its neighbor to the East, whose recently revised relief scheme provides early targeted relief to aid rehabilitation, and fuller recognition of rehabilitation some time later. Part of the problem is that New York’s system tries to do too much with a single certificate. That is, both certificates have essentially the same legal effect, except that one (CRD) is for probationers with no prior felonies, and the other (CGC) is for all others.  In contrast, the two-stage relief process Connecticut has adopted addresses both reentry and full restoration, similar to the Uniform Collateral Consequences of Conviction Act adopted in Vermont, and is conceptually and functionally preferable to New York’s two-track certificate system. The clear distinction in function between early and later relief in Connecticut makes it easier for each to fulfill its assigned role.  New York’s system is coceptually muddled and therefore functionally ineffective. The Connecticut system also avoids the problem identified by City Limits that more liberal issuance of certificates to facilitate reentry at an early stage may water down their value later on: “if more people got certificates as a matter of course, it could end up undermining the idea that they show that someone is rehabilitated.” The City Limits investigation also found that certificates are issued rarely because few New York lawyers and judges know about them: Roland Acevedo, a lawyer who’s sued employers for discriminating against people with criminal histories, says lawyers are often as unaware about certificates as the people they represent. He adds that some judges, despairing of a defense lawyer’s ignorance, will suggest to the lawyer that they apply for a certificate for their client—that is, apply to the very judge suggesting that they apply.   “A lot of lawyers don’t know so they don’t ask,” Acevedo says. “It’s amazing how many people don’t know this law.” This is not to say that New York certificates don’t work in certain cases, but those cases are likely to involve capable lawyers with clients who know exactly what they want: But for those that do [know about certificates], Certificates can be powerful. After getting convicted of tax evasion back in 2010, the Ciprianis were in danger of losing the liquor licenses that made their restaurants possible. But the family, “whose lawyers are undeniably more talented than their cooks,” as the New York Observer put it, got a Certificate of Relief at their sentencing, which ultimately allowed them keep the licenses. But lawyers say that rarely happens for the average person.     Read more

Long waits for expungement frustrate public safety purposes

Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods.  If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison.  Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt. The preamble to the new Louisiana law says it is intended “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.”  But a felony offender is ineligible to apply for expungement until ten years after completion of sentence, long after recidivism has ceased to be a statistical risk.  In other words, the new law is not likely to do much if anything to “break the cycle of recidivism” or help people “reentering the community” (presumably from prison).  Even misdemeanants have to wait five years before they are eligible. The only people whose records can be expunged immediately are those who were never convicted to begin with. Wouldn’t people returning to the community from prison be more likely to benefit from supportive social services, rehabilitative programming, and assistance with obtaining transitional jobs and housing?  It is possible that the legislators expected the availability of expungement at some future time to provide an incentive to stay on the straight and narrow — but the reference to employment opportunities upon “reentering the community” suggests they had something more immediate in mind.   Relief after a long period of law-abiding conduct also serves a useful purpose to recognize a person’s full rehabilitation, but it does nothing to overcome obstacles faced by people upon their release from prison. The formulaic recitation of public safety-related purposes to justify providing relief from collateral consequences is not unique to Louisiana, and neither is the apparent contradiction with those purposes presented by extended eligibility periods.  New broad expungement schemes in Indiana, Minnesota and Arkansas also make felony offenders wait years without another run-in with the law before they can apply for relief.  Any notion that expungement of conviction records will facilitate reentry or discourage reoffending is either mistaken or disingenuous.   Expungement of arrest records is another matter, though concepts of “reentry” and “recidivism” don’t strictly apply where a person is not convicted. So this raises three questions:  1) why can’t we enact relief from collateral consequences at a time when it will in fact facilitate reentry and impact public safety; 2) why aren’t we doing more to avoid conviction in the first place; and 3) why are legislators and other government officials so hesitant to justify restoration of rights in terms of fairness and/or reward? The answer to Question #1 is that only a few states have enacted laws authorizing relief from collateral consequences as early as sentencing, when it could be of genuine help with reentry.  New York has had such a law for years, for first offenders sentenced to probation. Vermont, Colorado and New Jersey now also have laws authorizing the sentencing court to dispense with mandatory collateral consequences, and bills that would accomplish this have been introduced in several other states.  Relief at sentencing is a feature of both the Uniform Collateral Consequences of Conviction Act and the Model Penal Code: Sentencing, so perhaps this will be the wave of the future.  Note, however, that not a single state provides record-closing relief to convicted persons prior to completion of sentence, so advocates would do well to consider more transparent forms of relief during the period covered by the sentence. Question #2 gets a more hopeful answer:  more than half the states have opportunities for diversion and deferred adjudication followed by expungement or sealing.  This means that people charged with minor offenses can avoid a conviction record if they successfully completion of probation.  But again, this is not a “reentry” remedy strictly speaking since by definition the person never leaves the community.  And, in those jurisdictions that condition eligibility on a guilty plea, they may be subject to collateral consequences during the period of probation.  The new Model Penal Code: Sentencing has provisions implementing both diversion and deferred adjudication that do not require a formal plea, and whose specific goal is to enable people to avoid incurring collateral consequences. Since there is never a conviction, the person may answer honestly that they have never been convicted.  These provisions originated in the 1970s when reformers were interested in encouraging rehabilitation through sentencing, as we perhaps are again today. (I would note it is high time that the federal government expanded the only authority it now has for deferred adjudication, 18 USC 3706, from drug possession to any minor offense.) Question #3 is rhetorical.   Read more

Is pardon making a comeback? Probably not, but law reform may be

A recent issue of Governing Magazine reports that pardoning is “making a comeback” after decades of neglect.  It would be nice if it were true. But the evidence of comeback is thin. Almost all of the jurisdictions where pardoning is thriving today are the same ones where it was thriving a decade ago.  In a dozen states, including Connecticut, Delaware, Georgia, Nebraska, South Carolina and South Dakota, pardon has never been neglected, much less abandoned by responsible officials. In these jurisdictions and a handful of others, pardon has deep roots in the justice system and is supported by accountable institutions of government. It is certainly true that Pat Quinn of Illinois and Jerry Brown of California have made generous use of the power of their office after years in which the pardon power in their states languished unused.  Terry McAuliffe of Virginia is a newcomer to the small group of governors who evidently feel that pardoning is a responsibility of office.  All three are to be commended for it.  But three swallows do not make a summer. For the most part pardoning in the United States remains a timid exercise in tokenism, and the vitality of pardon in most jurisdictions still depends on the personal predilections of the particular elected chief executive.  Most are not very interested in an activity that has few rewards and many pitfalls.   Our President is a case in point.  A number of current governors have refused to use their pardon power at all, some invoking bogus separation of powers arguments (Scott of Wisconsin), others making empty promises (Hickenlooper of Colorado). The Marshall Project recently published an article asking if pardon was still the third rail of American politics. Apparently most governors think it is, whatever changes there may have been in the public mood. Legislative alternatives to pardon It seems to me that if governors and presidents are reluctant to use the power of their office to temper what Alexander Hamilton called the “necessary severity” of the criminal code, they have an obligation to see that the legal system addresses the needs pardon serves. Ohio Governor John Kasich did that when he supported legislation to authorize courts to issue “certificates of qualification for employment” to help people with convictions overcome legal restrictions that bar them from certain jobs.   Governors in Indiana, Louisiana, Minnesota and Vermont have also recently signed legislation giving courts the power to do what they are evidently reluctant to do themselves.  That is an acceptable alternative approach to governing, both in theory and in practice. Indeed, pardon was never supposed to be a substitute for law reform, and courts or administrative agencies are likely to be fairer and more accessible than an elected official. Unfortunately, there is no indication that the Obama Administration is interested in supporting legislation that would ameliorate the adverse effects of a criminal record, though this is one of the few areas in which there is bipartisan support for reform in Congress.  The President’s failure to give criminal justice reform more than a passing mention in the State of the Union address, and only in the context of police/community relations, was discouraging. Many U.S. jurisdictions are attempting to deal with the problems created by mass incarceration, by reducing the number of people who go to prison and by improving social services to keep those who do from going back.  Mass conviction has produced a separate and less tractable set of problems, including proliferation of collateral consequences that discourage rehabilitation, and creation of a permanent class of second class citizens defined by their criminal record. The laboratories of democracy have not yet produced a single legislative solution that can command consensus.  Reform efforts in some jurisdictions involve limiting public access to criminal records through expungement or sealing, an approach that has both practical and theoretical drawbacks.  Other jurisdictions have adopted the more transparent judicial certificates recommended by the 2010 Uniform Collateral Consequences of Conviction Act and the 2014 Model Penal Code: Sentencing. Indiana’s approach combining the two may be the wave of the future. With a clear problem demanding a legislative solution, the recommendation of the National Association of Criminal Defense Lawyers looks appealing: The three branches of government, on the federal, state, and local levels, should undertake a comprehensive effort to promote restoration of rights and status after conviction.   This is a major effort that requires a multi-faceted approach.  It should include enactment of laws to circumscribe or repeal existing collateral consequences, and  a resolve to stop enacting new ones. More fundamentally, government entities, the legal profession, the media and the business community must promote a change in the national mindset to embrace concepts of redemption and forgiveness, including a public education campaign to combat erroneous and harmful stereotypes and labels applied to individuals who have at one point or another committed a crime.  As a cornerstone of this movement, the United States and the states and territories should establish a “National Restoration of Rights Day” to recognize the need to give individuals who have successfully fulfilled the terms of a criminal sentence the opportunity to move on with their lives. This will take leadership at a national level.  Given the support for collateral consequences reform in Congress and in governor’s mansions across the country, perhaps we will get it. Read more

More states rely on judicial expungement to avoid collateral consequences

Oklahoma is the most recent state to expand its expungement laws to make more people eligible for record-clearing at an earlier date.  While the specific changes adopted by the Oklahoma legislature are relatively modest, involving reduced waiting periods and fewer disqualifying priors, they are significant as part of a national trend toward enlarging this type of “forgetting” relief for people with minor criminal records.  Details of Oklahoma’s law are available here. Other states that have enacted new expungement laws or broadened existing ones in the past two years include Alabama, Arkansas, Colorado, Indiana, Minnesota, and Tennessee. Alabama’s new expungement law is the first record-closing law in that state and applies only to non-conviction records.  Arkansas and Minnesota broadened or consolidated existing expungement schemes that were already quite extensive.  The Indiana expungement scheme is entirely new and particularly comprehensive and progressive. (An analysis of the new law by its primary sponsor in the Indiana legislature will be posted in this space very soon.)  The effect of this type of “forgetting” relief varies widely from state to state, from complete destruction of records in states like Pennsylvania and Connecticut to more limited relief in Kansas and Indiana, where expunged records remain accessible to some employers as well as law enforcement. The other type of individualized judicial relief from collateral consequences that is growing in popularity relies not on limiting public access to a person’s criminal record, but instead on removing legal barriers and providing reassurances to employers and other decision-makers.  Judicial certificate programs have been enacted in the past year by Vermont and Rhode Island, following similar programs enacted in 2012 in Ohio and North Carolina. This more transparent “forgiving” relief tends to apply to a broader range of offenses than expungement, and may meet less resistance from law enforcement, business and the media than record-closing laws. Mainstream law reform organizations like the Uniform Law Commission and the American Law Institute have adopted the “forgiving” as opposed to the “forgetting” model of relief represented by expungement and sealing statutes.  Vermont is the first state to enact the Uniform Collateral Consequences of Conviction Act in its entirety, as described here.  The ALI’s approval of the Model Penal Code: Sentencing collateral consequences provisions is described here. A 50-state summary chart of judicial relief provisions, prepared for the NACDL Restoration of Rights Project, is available here.  The Wall Street Journal will publish a national study of expungement laws sometime in the next few weeks. Read more