Tag: North Carolina

NC sex offender exclusion law held unconstitutional

Last week the Fourth Circuit held unconstitutional two key provisions of a North Carolina law that made it a felony for sex offenders to be within 300 feet of certain premises that are “intended primarily for the use, care, or supervision of minors” or on premises where minors “gather for regularly scheduled educational, recreational, or social programs.” The three-judge panel held that the first provision was overbroad under the First Amendment, while the second was unconstitutionally vague.  Interestingly, the state more or less ceded the First Amendment issue by failing to offer any evidence to meet its burden of proof regarding whether the law advanced the state’s interest in protecting minors.  This despite the fact that the district court warned the state in advance that failing to offer such evidence would be fatal to its defense of the provision. Although the decision sets an important precedent, it will not substantially affect the law in North Carolina — at least not yet.  A revised version of the law, intended to remedy the defects addressed in the original district court ruling, took effect back in September.  (The revising act would have automatically reinstated the previous version of the law had the Fourth Circuit sided with the state or ordered a stay.)  But, in his in-depth analysis of the holding, Professor Jamie Markham of the School of Government at the University of North Carolina suggests that similar provisions of the revised law may still be open to vagueness and First Amendment challenges even though they appear to remedy the specific deficiencies addressed by the Fourth Circuit. The North Carolina law joins the ranks of other sex offender residency and exclusion laws that have recently been struck down in Indiana and California. As concerns about the effects of such laws on homelessness and reintegration have grown, more courts appear to be willing to give these laws the scrutiny they deserve, demanding that states legislate with specificity and defend restrictions with more than just broad innuendo and fear-mongering.  Additional challenges to exclusionary laws are currently pending in a number of states, including New York and Florida. Below we republish David Post’s summary of the Fourth Circuit’s decision in Doe v. Cooper, originally published on the Washington Post’s Volokh Conspiracy blog. In an important decision, the U.S. Court of Appeals for the 4th Circuit on Wednesday struck down [Doe v. Cooper — opinion posted here] as unconstitutional under the First Amendment yet another “unconstitutional monstrosity” perpetrated by the North Carolina legislature in its unceasing efforts to make life as miserable as humanly possible for previously convicted (but now ostensibly “free”) sex offenders, and to deprive them of any hope of re-integrating into the communities in which they live. [Alert Conspiracy readers will recall that the Supreme Court has agreed to review a decision by the North Carolina Supreme Court that rejected a First Amendment challenge to a different section of the N.C. sex offender regulatory scheme — one that imposes criminal penalties on sex offenders who “access … commercial social networking websites” for any reason. Eugene and I have blogged extensively about this case: See here, here, here, and here]. In this case, the statute in question made it a Class H felony (punishable by “a presumptive term of imprisonment of 20 months) for sex offenders to “knowingly be” at any of the following locations: (1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds. (2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) . . . that are located in malls, shopping centers, or other property open to the general public. [Or] (3) At any place where minors gather for regularly scheduled educational, recreational, or social programs.  NCGS 14-208.18(a). The court held, first, that the provisions of subsection (3) are unconstitutionally vague; “neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity was criminalized by subsection (a)(3).” Two principal problems are evident in subsection (a)(3) which compel the conclusion it is unconstitutionally vague. In particular, a reasonable person, whether a restricted sex offender or a law enforcement officer, cannot reasonably determine (1) whether a program for minors is “regularly scheduled” or (2) what places qualify as those “where minors gather.” … The term “regular” means happening at fixed intervals. Even if a restricted sex offender or law enforcement officer knew precisely how often and where the “scheduled programs” took place, the statute provides no principled standard at all for determining whether such programs are “regularly scheduled.” Notably, subsection (a)(3) provides no examples to guide restricted sex offenders or law enforcement as to how frequently the programs would need to occur in order to be “regularly scheduled.” … Subsection (a)(3)’s “where minors gather” language is also without defining standards. For example, subsection (a)(3) does not explain how many minors must gather at the place. Subsection (a)(3) also does not explain whether a place where mixed groups of minors and adults gather, such as a community college that has some high school students or a church with a congregation of adults and minors, would be considered a restricted zone under subsection (a)(3). Additionally, the court found that subsection (a)(2) could not withstand “intermediate scrutiny” under the First Amendment: To pass intermediate scrutiny, a statute must materially advance[] an important or substantial [government] interest by redressing past harms or preventing future ones. In addition, it must have the right “fit.” That is, it cannot burden substantially more speech than is necessary to further the government’s legitimate interests. The burden of establishing the required fit is placed “squarely upon the government,” and North Carolina failed to meet it — by a goodly distance, failing to present any evidence whatsoever that the statute advanced the state’s interest in protecting minors in any way. At trial, the district court “put the State on notice that its limited evidence was inadequate to meet its burden of proof, but the State “explicitly declined to introduce any additional evidence.” [The State’s] decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. … The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with an appeal to “logic and common sense.” But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof. [T]he State cannot rest its case on the conclusory assertion that minors would be “more exposed to harm without [this] prohibition than with it.” Without empirical data or other similar credible evidence, it is not possible to tell whether subsection (a)(2) — and specifically its application to offenders with only adult victims — responds at all to the State’s legitimate interest in protecting minors from sexual assault.” That might seem an unspectacular point; if the State offers no evidence at all that the statutory prohibition does anything to ameliorate the evils at which it is aimed, it cannot possibly satisfy the State’s burden of demonstrating that the statute “materially advances” the State’s interest. It is noteworthy, however, because so many other courts have meekly accepted the “conclusory assertion,” based on “common sense,” that the statute does more good than harm, and does not burden more speech than necessary to accomplish that good. [In the other North Carolina case referred to above, for example, the state presented no evidence that the ban on accessing social networking sites was, in fact, effective in any way at protecting minors — but the North Carolina Supreme Court upheld it anyway]. So kudos to Judges Motz, Traxler and Agee. This is just what the federal courts are supposed to do when constitutional rights are at stake: hold the government’s feet to the fire, and demand that they demonstrate that have a damned good reason for doing what they’re doing. Read more

Reentry efforts undermined by collateral consequences

Author: Art Beeler Editor’s note: Earlier this week Attorney General Loretta Lynch announced that The Justice Department has christened the week of April 24-30 “National Reentry Week.”  In the announcement, the Attorney General highlighted  “the major steps [taken by the Obama administration] to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals contribute to their communities.”  The announcement prompted Art Beeler, a former warden in the federal correctional system and current member of the North Carolina Sentencing Commission, to consider the place that collateral consequences ought to have in our national dialog about reentry, recidivism, and public safety. As a warden with the Federal Bureau of Prisons for more than twenty years, I know that successful evidence-based reentry programs are essential if we are going to reduce recidivism and increase public safety.  So it was with great interest that I read U.S. Attorney General Loretta Lynch’s letter celebrating reentry week.  I applaud the growing focus on reentry programming, which is essential, but I believe that we must acknowledge that we will never achieve the goal of reintegrating those convicted of crimes back into society without fully addressing the problem posed by collateral consequences.  The federal government has already taken some steps a to reevaluate collateral consequences imposed by federal regulations, as the AG notes in her letter, but successful reentry efforts demand a full reevaluation of the intent and effect of collateral consequences at both the federal and state level. Though I have spent much of my career attempting to help those convicted of crimes transition back into society, I did not fully understand the impact of collateral consequences until late in my career.  Their significance hit home when I was giving a tour of the Federal Medical Center in Butner, North Carolina to participants of a reentry conference at Duke’s School of Law.  Joining us on the tour was a former inmate who had been invited by the Chief Judge for the Western District of North Carolina.  The man had been barbering for almost twenty years since his release and had no subsequent criminal involvement.  But his twenty-plus year-old federal drug conviction rendered him ineligible for the Small Business Administration he needed to open his own barber shop.  Hearing this, I suddenly became aware that collateral consequences were far more commonplace and restrictive than I had previously assumed. According to the National Inventory of the Collateral Consequences of Conviction (NICCC), there are over 47,000 collateral consequences imposed by state and federal law, many of which make it unnecessarily difficult for prisoners to succeed on the outside.  Most of these laws and rules were enacted with the well-intentioned goal of protecting public safety, but, by posing obstacles to successful reentry, many of these laws have the opposite effect.  I say this based on forty-two years of experience in correctional management, during which I have seen multitudes of prisoners enter, leave, and, all too-often, return to prison. Reducing recidivism requires expanding opportunities to those with criminal records, not reducing them.  My correction colleagues and I would often say, anecdotally, that if the sixty percent in the middle of the normal distribution curve of those released had not found a decent job with a living wage in 90-120 days, then they would likely return to criminal behavior and, inevitably, to prison. The reality underlying that assumption has been borne out in numerous of studies.  Most notably, a RAND study empirically demonstrated that inmate education and vocational training reduces recidivism.  The Second Chance Pell Pilot program (which is experimenting with reversing the 1994 policy barring prisoners from receiving Pell grants to fund college tuition) shows that the Administration recognizes this reality.  Critics of such programs wonder why prisoners should get a free ride while law-abiding citizens pay for their own educational costs.  The answer is simple: Because 95% of prisoners will be returning to the community, and we know that those who are better equipped to succeed pose less risk.  Everyone benefits when we remove the unreasonable barriers limiting opportunities for current and former inmates. But we cannot begin to address the problem posed by collateral consequences until we understand it.  Too many lawyers, legislators, and others involved in the system are unaware of the impact that these civil penalties have on reentry and recidivism, just as I was until fairly recently.   Studies and inventories of collateral consequences, like the NICCC and C-CAT maintained by the UNC-Chapel Hill School of Government here in North Carolina, are working to change that.  But reform requires policy-makers to pay attention.  In the past few years I have written several letters to legislators and policy-makers on the subject of collateral consequences.  Rarely have I received more than a generic response thanking me for my comments.  Hopefully, other interested parties are having better luck raising awareness. Focusing on sentencing reform and reentry programming is important, but they are only two pieces of the puzzle.  By failing to fully review the role of collateral consequences at all levels we are cutting a leg off of a three-legged stool and undercutting our efforts to encourage the success of returning citizens and the safety of our communities. About the Author: Art Beeler is a Clinical Assistant Professor at North Carolina Central University, and a Commissioner with the North Carolina Sentencing Commission. He retired as the Complex Warden at the federal correctional facility in Butner, North Carolina in 2009, after over three decades of service in the federal prison system.]   Read more

Updated North Carolina relief guide now available

At long last I have released the 2015 edition of my online guide to relief from a criminal conviction in North Carolina. This free guide, available here from the UNC School of Government, covers the various forms of relief available under North Carolina law, including expunctions, certificates of relief, petitions to restore firearm rights and terminate sex offender registration obligations, and other procedures. It includes changes made by the North Carolina General Assembly through the end of its 2015 legislative session. This edition of the guide is longer, reflecting the greater attention given by the North Carolina General Assembly to this area of law in recent years. North Carolina law now authorizes certificates of relief, patterned after the Uniform Collateral Consequences of Conviction Act. North Carolina also has expanded the opportunities to obtain an expunction. Expunctions are now available for older nonviolent felony convictions. Recent statutory changes prohibit public and private employers and educational institutions from inquiring about expunged charges and convictions and, further, require government agencies to advise applicants that they have the right not to disclose expunged information. People still must meet precise statutory criteria to be eligible for relief, however. Although North Carolina courts granted approximately 13,000 expunctions of dismissals in fiscal year 2013–14, they granted about 700 expunctions of convictions and other matters. See 2014 Expunctions Report [NCAOC and DOJ Joint Report Pursuant to G.S. § 15A-160] (Sept. 1, 2014) (providing data on expunctions from 2008 to 2014). The guide is intended to help lawyers, judges, and others navigate this surprisingly complex area of law. The guide includes a brief explanation of each type of relief along with a table identifying the requirements for each. Another feature of the guide, thanks to the School’s new website, is that it automatically adjusts to the screen of any electronic device, including mobile phones. Live links to statutes, forms, and other resources appear throughout the guide. Also included is a link to our online Collateral Consequences Assessment Tool (C-CAT), a free electronic database on the collateral consequences of a conviction in North Carolina, updated through 2015. The guide addresses questions I have received since release of the previous edition, reflected in the body of the guide and in a longer section of frequently addressed questions. Because few expunction matters are appealed, many of these questions have not been addressed by the North Carolina appellate courts. For example, North Carolina law allows a court to continue a case permanently, without entering judgment, after a person has pled guilty or has been found guilty. This disposition, called a prayer for judgment continued or PJC, is intended to keep a person’s record free of a conviction; but, for many purposes, such as sentencing in a later case or employment licensing, the law treats a PJC as the equivalent of a conviction. Can a PJC be expunged under North Carolina law? Because of the absence of a final judgment, trial courts have been uncertain how to proceed. The guide contains a longer analysis here, but my short answer is yes, a PJC may be expunged under the same circumstance as a conviction. The language of the expunction statutes as well as the policy reasons behind them support this result. One benefit of an online publication is that it can be easily updated. Please feel free to contact me if you have questions not addressed in the guide or other information you wish to share. For people with prior criminal convictions who are trying to regain their footing, this is an area of law worth further consideration. Read more

New York Times editors question efficacy of expungement laws

In an editorial titled “Job Hunting With a Criminal Record,” the editors of the New York Times tackle the problem of employment discrimination against the estimated 70 million Americans who “carry the burden of a criminal record.”  They question the efficacy of expungement and other popular “forgetting” strategies for dealing with employer aversion to risk, preferring the “longer term” approach of “a change in attitudes about people with criminal records.” The editorial points out that expungement laws typically apply only to “relatively minor transgressions,” require lengthy waiting periods, and include “significant exceptions” (e.g., they don’t apply to jobs and licenses requiring a background check, a large and growing segment of the labor market). In addition, “trying to keep anything secret in the 21st century is no sure thing.”  Finally, “record-sealing laws do not and cannot address the underlying problem of overcriminalization.” The editorial prefers “ban-the-box” laws that postpone inquiry into criminal record until a later stage in the employment process, and measures that protect against employer liability.  It might also have mentioned more transparent “forgiving” approaches to relief being developed in the states, like the Illinois and North Carolina certificates discussed in this recent report of the Marshall Project. If it is true, as the editorial concludes, that “everyone benefits when people with criminal records are not shut out from the opportunity to be productive members of society,” it is curious that people with federal convictions have no recourse but the antiquated and increasingly elusive remedy of a presidential pardon.  If President Obama is so evidently reluctant to use his constitutional power to forgive people who have served their sentences and led productive lives, he might consider supporting legislation authorizing courts to issue judicial certificates of good conduct (or whatever name is preferred) that would have the same effect as a pardon.  The American Law Institute and the Uniform Law Commission both have excellent models. Read more

Forgiving v. forgetting: A new redemption tool

The following thought-provoking piece about the growing popularity of judicial “certificates of good conduct” was first published in The Marshall Project (www.themarshallproject.org) a nonprofit news organization focused on the US criminal justice system. The “forgiving” approach to avoiding or mitigating collateral consequences is an important alternative to the “forgetting” approach advocated by proponents of expungement or sealing, which tend in any event to be limited to minor dated offenses or arrests not resulting in conviction.         Forgiving v. Forgetting:  For offenders seeking a new life, a new redemption tool. In February of 2003, a much younger Barack Obama rose before the Illinois State Senate to introduce a new piece of legislation that, he said, contained a compromise. The bill would help job-seekers who had long ago been convicted of a nonviolent crime (or two, at most) overcome the barriers to employment that came with having a criminal history. But the bill would do so without expunging their records. Instead, Obama’s bill would create a final, years-later stage on the timeline of these ex-offenders’ cases. They had already completed the stages of arrest, booking, indictment, plea bargaining or trial, sentencing, incarceration and/or probation. Now, ex-felons who had stayed crime-free for a few years would be eligible to come back to court and, in a full-blown hearing before a judge, attempt to “prove” that they had been rehabilitated. Any ex-offender who succeeded in doing so, Obama announced, would be granted one of two new legal documents, the Certificate of Good Conduct or the Certificate of Relief from Disabilities. The certificate would represent an official assurance to employers – though, again, short of full expungement – that the ex-offender should no longer be judged for his or her crimes. More concretely, the good conduct certificate would make the ex-offender eligible for a range of municipal jobs, including in the public schools, the transit system, and the parks; the certificate of relief would remove barriers to a range of licenses, from real estate to barbering, cosmetology, and mortician’s licenses. Finally, any private employer who hired the now officially rehabilitated ex-offender would be insulated from liability suits claiming negligent hiring. Obama’s bill was passed and went into effect one year later. Ever since, the granting of so-called Certificates of Rehabilitation has become an increasingly popular compromise version of full expungement in courts around the country. Between 2009 and 2014, nine states and Washington, D.C. began issuing the documents, also called certificates of relief, recovery, achievement, or employability. “These certificates are a remarkably dynamic new option,” says Kari Hamel, a civil legal aid attorney in North Carolina who is working to make the certificates – available in that state since 2011 – more accessible to more people with criminal records. “It’s a way of showing employers that the crime someone committed probably wasn’t committed yesterday. It makes what has happened since the crime a fully official part of that person’s record, for all employers to see.” “That’s the key,” she adds. “Rehabilitation is absolutely a part of a person’s history of trouble with the law, it’s just the second part, the positive part.” Paul Biebel, the presiding judge for Chicago’s criminal court, agrees that the certificates are a promising new option. “Only over the last few years have we seen more of these coming through the court,” he says of the certificates, “but I feel very strongly that they are an additional tool in a judge’s toolbox to evaluate people. We judges are prepared to send people to prison. But now, if the evidence proves rehabilitation, we also have a tool for redeeming people.” The new certificates have burst onto the scene amid emerging bipartisan consensus that the consequences for committing low-level nonviolent crimes – including the collateral consequences, such as difficulty getting a job[1] years later – should not be interminable. The Redeem Act, a bill sponsored by Senators Cory Booker and Rand Paul that would expand expungement for crimes committed as a juvenile, has picked up steam in Congress. President Obama, meanwhile, has highlighted the issue of the long-term impact of criminal records, particularly through his My Brother’s Keeper[2] initiative. This consensus is rooted in the fact that between 70 and 100 million Americans have an arrest, charge or conviction in their pasts. And, with the rise of the Internet, even a minor run-in with the law has been transformed from a temporary experience into a permanent one. This does not mesh well with the American ideal of self-reinvention. Yet despite the emerging agreement that many ex-offenders deserve second chances, not everyone agrees that these new certificates are the best way to go about providing redemption. Sharon Dietrich is one such critic. Dietrich is a civil legal aid attorney in Philadelphia and the author of “One Strike and You’re Out,” a report on the collateral consequences of criminal records, and she believes full expungement is always preferable to certificates. “Forgetting,” she says, “either by expunging someone’s record altogether or by permanently sealing it, is a much better solution than forgiving, which is what these certificates claim to do.” The certificates are a “weak compromise,” she adds, because they “rely on employers to do the right thing. But most employers will ignore the document that says you’ve been rehabilitated, and focus instead on the part about how you were arrested.” Supporters of the certificates argue that “forgetting” is a pipe dream. For one thing, law enforcement agencies often resist expungement, because it purges the record of information that might be useful in future investigations. James Jacobs, a professor of law at New York University and the author of “The Eternal Criminal Record,” says that even if expungement were more available, it would be a kind of “fraud” in the age of the Internet. “Expungement is not amnesia,” he says. “The information remains out there on the Internet. These private background check companies [such as LexisNexis, HireRight, and FirstAdvantage] have no incentive to remove expunged or out-of-date information.” Background checks on job applicants are frequently inaccurate[3] even without expungement, he said. Then again, certificates are not useful at all if ex-offenders – and employers – do not know about them, or do not know who is eligible. And even once ex-offenders know about the option, the process of affirmatively filing for a certificate is extremely complex. The burden to prove rehabilitation is on the applicant, not the prosecution. To be successful requires gathering documents from multiple agencies, letters of support from community members, and proof of sobriety, then arranging all of it into a narrative that demonstrates “rehabilitation.” In other words, the success of these certificates depends heavily on local lawyers, primarily from civil legal aid[4] organizations, taking a grassroots approach to informing people about what certificates are available and how to file for them. In New York, for instance, one of the few states to begin offering the certificates before Illinois, an average of only 261 per year were issued between 1995 and 2005. Between 2007 and 2010, as civil legal aid organizations started educating ex-offenders about the certificates, that number shot up to 2,040 per year. More recently, two of the most robust approaches to making these new certificates more accessible and understandable are underway in Illinois and North Carolina. In Chicago, Cabrini-Green Legal Aid has led the effort to inform people about the certificates. CGLA operates a Help Desk at the downtown Chicago courthouse, as well as a dial-in hotline, to educate ex-offenders about the certificates and get them started with the application process. And, according to Cynthia Cornelius, CGLA’s director of client and community services, the organization has recently begun to meet with and educate local employers. “None of this works unless employers know what these certificates are,” she says, “and why they should respect job applicants who have earned the certificates.” But making the certificates a useful option is not only about education, it is also about representation. So, in a statewide effort called Second Chances,[5] sixteen of the Illinois’ largest law firms have partnered with CGLA, supplying hundreds of pro bono lawyers to help process petitions for certificates. Down in North Carolina, the first step was to make the certificates available under the law, as Obama did in Illinois. Despite the anti-progressive climate in the state legislature, says Bill Rowe, chief counsel of the North Carolina Justice Center, securing “certificate legislation” was politically feasible. “Democrat or Republican, we all know someone here in North Carolina with a minor mistake holding them back,” says Rowe, “and minor mistakes are the types of mistakes we’re talking about forgiving with these certificates, not major mistakes. It’s not a ‘them’ issue, like some of the other divisive issues in the legislature; it’s an ‘us’ issue.” With the certificates in place, the next step was getting the word out. Hamel, the civil legal aid attorney, explains that Legal Aid of North Carolina operates mobile legal clinics deep in the Blue Ridge mountains, informing the people there about the certificates. Before each clinic, Hamel notifies the local newspapers in the towns where she is headed, asks the radio stations to broadcast PSAs, and contacts local domestic violence shelters and V.A. centers to get people to come out for the clinic. To bring employers on board, Hamel has help from Ben David, a local D.A. in Wilmington, North Carolina, who has convened the Hometown Hires program. David meets regularly with hundreds of the top employers in southeastern North Carolina to convince them to hire people with criminal records, especially people who have these certificates. “This is about working on criminal records,” David says, “which takes a lot of time, because it’s about the long-term, not just the open-and-shut part of the case. But as a D.A., I feel I should take active steps to stop prosecuting folks who are just trying to get jobs, and these certificates and the other new options, I think, are a way of stopping the endless prosecution of job seekers.” But in the end, says Jacobs, even with robust information campaigns, certificates are “not a magic bullet.” “If everyone gets a certificate,” he says, “then the certificate has no credibility, and employers won’t respect it. So we can’t give certificates to people who don’t deserve one.” But the hard truth, Jacobs says, is that a considerable fraction of people with criminal histories do not deserve a certificate, because they “are still struggling with drug addiction, mental illness, and tremendous deficits. They are not rehabilitated to the point of deserving a certificate, but they do deserve our help.” In other words, rehabilitation for most ex-offenders requires actually working with them while they are being rehabilitated, not just rewarding them afterward if they can do it on their own. “Finding a route back to where some of these people have never been,” says Jacobs: “That requires more than just a certificate.”     [1] Over 80 percent of employers run criminal background checks, according to the Society for Human Resource Management. [2]  My Brother’s Keeper initiative is a collaboration between the White House and local businesses, foundations, and cities, aimed at creating more jobs and civic opportunities for young men of color [3] In 2012, 600,000 job applicants received inaccurate FBI background checks. For these reasons, Jacobs argues, ex-offenders are better off if they are equipped with an affirmative document, like a certificate, with which they can respond when employers inevitably find something damning on the Internet. [4] The right to counsel is not guaranteed when there is no active criminal prosecution, which is why civil legal aid lawyers, not criminal defenders, are responsible for helping people with these certificates. [5] The Second Chances program is part of the nationwide IMPACT Project, a project inspired by Vice President Joe Biden to encourage pro bono lawyers to work more closely with legal aid lawyers.     Read more