Tag: North Carolina

Michigan takes baby steps on criminal justice reform

Michigan spends one in five tax dollars on corrections so the state continues to explore strategies to safely reduce these costs.  In its most recent session, the legislature considered bold criminal justice reforms, but strenuous last minute objections from the Attorney General succeeded in halting much of the reform agenda. In the end, only a few reforms were implemented and most of them were passed in watered-down form. The new laws include (1) the establishment of a Criminal Justice Policy Commission; (2) narrow expansion of set-aside eligibility to victims of human trafficking; and (3) authorization for Certificates of Employability for prisoners who complete certain in-prison training programs.  A more ambitious (though still narrow) expansion of the set-aside law is currently on the Governor’s desk for signature.  These “baby steps” leave lots of room for improvement, but constitute a blueprint for future reform efforts. Sentencing reforms – why reform was suggested and what was actually achieved In 2013, led by consultants from the Council of State Governments, Michigan undertook an in-depth study of its sentencing system for its impact on public safety, recidivism, and state and local spending. The study included analysis of 7.5 million data records, and over 300 in-person meetings and calls with stakeholders, such as law enforcement officials and legislators. The study concluded that (1) people throughout Michigan with similar criminal histories and convictions get significantly different sentences; (2) the time a person will actually serve in prison or under supervision cannot be predicted; (3) resources are not prioritized to reduce recidivism; (4) high rates of recidivism generate unnecessary costs and public safety risks, and current funding does not adequately fund reentry programs; and (5) there is no effective mechanism to track sentencing outcomes. Reformers responded.  Leading the charge was Representative Joseph Haveman, a Republican representing one of the most conservative districts in the state. His proposals would have reduced the discretion of judges and the parole board, created consistency in sentencing and supervision, allowed certain offenders to leave prison on parole earlier, decreased probation time, and established swift and predictable sanctions for probation violations. Opposition came from those who wanted to keep the current level of judicial and parole board discretion, and from sheriffs who worried about higher costs to local jails. The strongest opposition came from Michigan Attorney General Bill Schuette, who sent letters to lawmakers urging them to reject the bills, claiming that they were being rushed through Michigan’s “lame duck” session.  In the end, the House “gutted” the bills and they died in the Senate. One residual part of Haveman’s package, however, soared through both chambers:  a Criminal Justice Policy Commission was established to review the effectiveness of sentencing guidelines, release and supervision policies, and the use of prisons and jails. Expansion of set-aside authority A set-aside, frequently called “expungement,” makes criminal records unavailable to anyone other than courts, law enforcement agencies, and certain agencies.  Until recently, persons were eligible for set-aside under Michigan law only if they had fewer than two prior “minor offenses,” a term that was very narrowly defined.  See Mich. Comp. Laws 780.621.   Amendments to this provision signed into law by the governor on January 12, 2014, enlarge the category of priors a person may and still remain eligible for set-aside, from “minor offenses” to “misdemeanors.”  (A traffic offense would not constitute a misdemeanor, unless it had been for operating while intoxicated).  In addition, a person convicted of not more than two misdemeanors and no felonies may apply to have either or both of the misdemeanor convictions set aside.  As a result of amendments to 780.621 enacted in the fall of 2014, victims of human trafficking are now permitted to apply to set aside a conviction committed as a result of the trafficking. This new legislation allows more people to apply for a set-aside, but does not go as far as Minnesota’s new law, which extends expungement to a broader range of offenses, requires data-mining companies to honor expungements, addresses victimization and housing evictions, and protects landlords and employers.   [NOTE:  Another law enlarging the basic set-aside authority was signed by the governor in early 2015.  Under this bill, which has been in the works for years, a person who is convicted of not more than one felony offense and not more than two misdemeanors offenses may petition the court to set aside the felony offense.] Certificates of Employability Lastly, a bill authorizing a Certificate of Employability for certain persons currently serving a prison term in Michigan’s Department of Corrections provides some protection against liability for hiring or renting to the holder of a Certificate.  Under PA 360 of 2014, an employer or other person may introduce a Certificate as evidence of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise transacting business or engaging in activity with someone who has the Certificate, if the employer knew of the Certificate when hiring or otherwise engaging with its holder.  Like other states with similar employer protections–such as Ohio,[2] Tennessee,[3] and North Carolina,[4] and New York[5] — the Michigan law protects anyone who knows about the Certificate. However, in contrast with those states, most Michigan citizens with a criminal record are not eligible for a Certificate.[6]  The Michigan Chamber of Commerce, which opposes a ban-the-box proposal for job applications, supported the Certificate legislation. The Michigan Department of Corrections is authorized to issue Certificates only to incarcerated people no more than 30 days before release, and only if all of the following apply: (a) The prisoner successfully completed a career and technical education course; (b) The prisoner received no major misconducts during the two years preceding his or her release; (c) The prisoner received no more than three minor misconducts during the two years preceding his or her release; and (d) The prisoner received a “silver level” or better on his or her national work-readiness certificate, or a similar score as determined by the Department on an alternative job skills assessment test administered by the Department.  The Certificate is only valid for 4 years after issuance. Because nearly 80% of Michigan felony offenders since 1999 have been sentenced to community-based sanctions, the vast majority of Michiganders with a felony record will not be eligible for a Certificate. Also ineligible are those who are no longer incarcerated, so that the 163,861 people who have moved from the Department of Corrections to parole since 2000 will be unable to qualify, and neither will people with federal convictions or convictions from other jurisdictions. Finally, people currently at MDOC will be eligible only if they have access to education and training programs, which vary by facility throughout the state. Still, to those who are currently incarcerated by the Department of Corrections, receive education, get training, and are awarded a work-readiness certificate, the Employability Certificate may be helpful – if only for 4 years. Heather Garretson is a Scholar in Residence at City University of New York Law School, the premier public interest law school in the country.  She is a former federal prosecutor, defense attorney, and Professor of Law at Western Michigan University Cooley Law School in Grand Rapids, Michigan. [1] House Bill 5025, MCL 780.621,amended [2] Ohio Rev. Code Ann § 2953.25(G). [3] Tenn. Code Ann § 40-29-107(n)(1). [4] N.C. Gen. Stat. § 15A-173.5 [5] N.Y. Exec. Law § 296(15) [6] Iowa and Ohio have certificates that are similarly limited to prisoners, but neither of them include protections against negligent hiring. See Iowa Code § 906.19(2), Ohio Rev. Code Ann. §§ 2961.21.     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

The New Southern Strategy Coalition works on criminal records reform in the South

“I don’t know why everyone is talking about the New Jim Crow; in the South the old one never went away.” – 2013 New Southern Strategy Coalition conference participant Introduction The New Southern Strategy Coalition is a collaborative network of Southern advocacy groups and their national allies, originally convened in 2011 and dedicated to reducing the negative consequences of a criminal record in the South.  Because the South has always been seen as a region resistant to criminal justice reform, many national groups do not have a presence there, and state-based advocacy efforts are generally underfunded and understaffed. The voices of those most affected are missing from southern state capitols, and the region is often left out of the national dialogue altogether. NSSC addresses these challenges by providing opportunities for southern organizations to network and share information about regional best practices to minimize legal barriers to reentry. The premise is that state-specific reform efforts in the South will be supported and magnified by the Coalition’s collective goals operating across a unified landscape.  NSSC holds regional conferences to discuss effective reform strategies, provides training and materials, ensures that the voices of directly affected individuals are included in a meaningful way, and uses web-based and social media tools to leverage reform efforts. NSSC hopes to lay the foundation for a stronger movement for the reform of reentry policies, both in the South and nationally. While the Coalition recognizes that minimizing interactions with the criminal justice system is the ultimate goal, we have chosen the lens of reentry and collateral consequences as an effective reform tool in a region that has not dealt with its legacy of racism, and which unabashedly declares support for “law and order” policies.  Opening the dialogue with efforts to reduce recidivism paves the way for a broader conversation about drug policy and front-end criminal justice reform. NSSC’s vision is that all people throughout the nation have American citizenship rights to fair and equitable opportunities to thrive and succeed politically, socially and economically. Our mission is to be a diverse, Southern-based catalytic force for change, working with national allies and people directly impacted by the criminal justice system and their families, to remove the barriers they face to full participation in society, using direct services, education, organizing, advocacy, and litigation. The Need for a Southern Coalition The Coalition is particularly important for two reasons. First, the South has been ground zero in the build-up of the U.S. prison population. Overall, the United States has the highest rate of incarceration in the world, but it is the South that has led this growth trend. Nationwide one in 31 adults is behind bars, on probation or on parole, but in Georgia, for example, one in 13 adults is under correctional control. Second, Southern states tend to have more restrictive barriers to reentry than in other regions, perpetuating a cycle of arrest and recidivism.  This was established by the Legal Action Center’s seminal report, After Prison: Roadblocks to Reentry.   Given the disproportionate effect of these barriers on communities of color, the need for a regional effort becomes clear.  Research has shown that a criminal record constitutes more of a barrier to employment for black men than it does for white men as reported by Devah Pager in Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration. The last census found 47% of Black Americans live in the 14 states encompassed by the New Southern Strategy Coalition, and recent reports indicate a trend of black migration to the South. Our experience as southern-based advocates teaches us that reform strategies that work in California or New York are not always effective in Alabama or Mississippi. Also, conservative southern legislators, who dominate our state houses, are generally more interested in what is happening around the region rather than what is happening in other parts of the country. There are many underfunded and understaffed Southern state and local groups that care about these issues and want to become more involved in advocating for change. Unfortunately, national funders are often reluctant to invest in the South because of the lack of infrastructure and capacity of non-profit and advocacy organizations. (See Grantmakers for Southern Progress.) A goal of the Coalition is to strengthen the capacity of these organizations, and through partnership, produce greater results than each group could accomplish on their own. Structure and Activities of the Coalition NSSC is led by a steering committee that consists of several state-based organizations – Georgia Justice Project, The Southern Coalition for Social Justice (North Carolina), South Carolina Appleseed Legal Justice Center, LifeLine to Success (Tennessee), and One Voice Mississippi – and two national partners – the National H.I.R.E. Network and the National Employment Law Project. Members have largely donated their time over the last three years to bring the idea of the Coalition to fruition. Beyond the steering committee, NSSC is a loose network of individuals and organizations working on reentry and criminal justice reform. Over 90 individuals, representing over 57 different organizations, have participated in the Coalition by attending one or both of the regional meetings or as presenters on the webinars. NSSC held regional meetings in 2011 in Atlanta, GA and in 2013 in Durham, NC.  In 2014, state meetings were held in Mississippi and Tennessee.  The NSSC has also hosted several webinars, with its latest webinar coming up on Wednesday, December 3rd, “Reactions to Ferguson from Arch City Defenders.” Please join this effort by signing up on the website, www.newsouthernstrategy.org.  After joining, you will receive an email with a passcode that will allow you to log into the members section of the website.  It may take up to one week to receive the passcode.   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

North Carolina offers detailed on-line guide to relief from a criminal conviction

We’ve just learned that the School of Government at the University of North Carolina has produced a detailed and well-organized online guide to obtaining relief from a North Carolina criminal conviction. You can view the guide here.  The guide explains in one place the various mechanisms available in North Carolina for obtaining relief from collateral consequences, including expunctions, judicial certificates of relief, and other procedures. The guide supplements the School’s Collateral Consequences Assessment Tool, C-CAT, an online tool enabling users to identify the potential consequences of a criminal conviction in North Carolina.  C-CAT is user-friendly and has been kept up to date with new laws enacted since its launch two years ago. The relief guide is organized by the type of relief being sought and includes tables breaking down the specific requirements for relief. It describes special relief provisions for sex offender registration and firearms dispossession, as well as for drug crimes and juvenile adjudications.  Features of the online guide include keyword searching, live links to internal and external cross-references such as statutes and forms, cases and opinions, and periodic updates. The guide was prepared by John Rubin, Albert Coates Professor of Public Law and Government. This guide is the most detailed and user-friendly one we have seen, and should be a model for other jurisdictions. Read more