Tag: roberts

CCRC scholarship round-up – August 2019

Editor’s note:  This past year has seen a burgeoning of scholarship dealing with collateral consequences broadly defined, from lawyers, social scientists, and philosophers.  CCRC’s good friend Alessandro Corda has selected fifteen notable articles published in 2018-19, with information, links, and abstracts.  They are organized into five categories: (1) Legal collateral consequences (2) Collateral consequences and criminal procedure (3) Sex offender registration laws (4) Informal collateral consequences (5) Criminal records, expungement, sealing, and other relief mechanisms A complete and regularly updated collection of scholarship on issues relating to collateral consequences and criminal records can be found on our “Books & Articles” page.  From time to time we will preview and comment on new articles, and Alessandro has promised to provide another round-up by the end of the year.  We hope he will continue indefinitely in the role of CCRC’s official bibliographer.  (A PDF copy of this scholarship round-up is here.) Legal collateral consequences: Are Collateral Consequences Deserved? Brian Murray, Seton Hall Law School 95 Notre Dame L. Rev. (2020, forthcoming) While bipartisan passage of the First Step Act and state reforms like it will lead to changes in sentencing and release practices, they do little to combat the collateral consequences that ex-offenders face upon release. Because collateral consequences involve the state’s infliction of serious harm on those who have been convicted or simply arrested, their existence requires justification. Many scholars classify them as punishment, but modern courts generally diverge, deferring to legislative labels that classify them as civil, regulatory measures. This label avoids having to address existing constitutional and legal constraints on punishment. This Article argues that although collateral consequences occur outside of the formal boundaries of the criminal system, they align with utilitarian purposes for criminal punishment, such as incapacitation. Interpreting the nature of collateral consequences, legislative justifications during their creation and during reform efforts, and judicial doctrine confirms that decision-makers are operating on utilitarian terrain while cognizant of functional concerns in the criminal system. But these philosophical premises inhibit broad reform efforts relating to collateral consequences because public-safety and risk prevention rationales chase utility. The result is extra punishment run amok and in desperate need of constraints. This Article suggests a different approach to reforming collateral consequences: subjecting them to the constraints of retributivism by first asking whether they are deserved. Retributivist constraints emphasize dignity and autonomy, blameworthiness, proportionality, restoration, and impose obligations and duties on the state, suggesting many collateral consequences are overly punitive and disruptive of social order. This mode of analysis aligns with earlier Supreme Court precedent and accounts for retributivist constraints that already exist in present day sentencing codes. Proponents of rolling back collateral consequences should consider how utilizing desert principles as a constraint on punishment can alleviate the effects of collateral consequences on ex-offenders. ___________________________________________________________________  Third-Class Citizenship: The Escalating Legal Consequences of Committing a “Violent” Crime Michael M. O’Hear, Marquette University Law School 109 J. Crim. L. & Criminology 165 (2019) For many years, American legislatures have been steadily attaching a wide range of legal consequences to convictions — and sometimes even just charges — for crimes that are classified as “violent.” These consequences affect many key aspects of the criminal process, including pretrial detention, eligibility for pretrial diversion, sentencing, eligibility for parole and other opportunities for release from incarceration, and the length and intensity of supervision in the community. The consequences can also affect a person’s legal status and rights long after the sentence for the underlying offense has been served. A conviction for a violent crime can result in registration requirements, lifetime disqualification from employment in certain fields, and a loss of parental rights, among many other “collateral consequences.” While a criminal conviction of any sort relegates a person to a kind of second-class citizenship in the United States, a conviction for a violent crime increasingly seems even more momentous — pushing the person into a veritable third-class citizenship. This article provides the first systematic treatment of the legal consequences that result from a violence charge or conviction. The article surveys the statutory law of all fifty states, including the diverse and sometimes surprisingly broad definitions of what counts as a violent crime. While the article’s aims are primarily empirical, concerns are raised along the way regarding the fairness and utility of the growing length and severity of sentences imposed on “violent” offenders and of the increasingly daunting barriers to their reintegration into society. ________________________________________________________________ Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction Zachary Hoskins, University of Nottingham, Department of Philosophy Oxford University Press, 2019 People convicted of crimes are subject to a criminal sentence, but they also face a host of other restrictive legal measures: Some are denied access to jobs, housing, welfare, the vote, or other goods. Some may be deported, may be subjected to continued detention, or may have their criminal records made publicly accessible. These measures are often more burdensome than the formal sentence itself.  In Beyond Punishment?, Zachary Hoskins offers a philosophical examination of these burdensome legal measures, called collateral legal consequences. Drawing on resources in moral, legal, and political philosophy, Hoskins analyzes the various kinds of collateral consequences imposed in different legal systems and the important moral challenges they raise. Can collateral legal consequences ever be justified as forms of criminal punishment or as civil measures? Hoskins contends that, considered as forms of punishment, such restrictions should be constrained by considerations of proportionality and offender reform. He also argues that they may in a limited range of cases be permissible as risk-reductive civil measures. Whether considered as criminal punishment or civil measures, however, collateral legal consequences are justifiable in a far narrower range of cases than we find in current legal practice. Considering just how pervasive collateral legal consequences have become and their dramatic effects on offenders’ lives, Beyond Punishment? sheds valuable light on whether these restrictive measures are ever morally justified. ________________________________________________________________________ Wealth-Based Penal Disenfranchisement Beth A. Colgan, UCLA School of Law 72 Vand. L. Rev. 55 (2019) This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution—may prevent people of limited means from voting. The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least some offenses. The remaining jurisdictions allow for re-enfranchisement for most or all offenses under certain conditions. One often overlooked condition is payment of economic sanctions regardless of whether the would-be voter has the ability to pay before an election registration deadline. The scope of wealth-based penal disenfranchisement is grossly underestimated, with commentators typically stating that nine states sanction such practices. Through an in-depth examination of a tangle of statutes, administrative rules, and policies related to elections, clemency, parole, and probation, as well as responses from public disclosure requests and discussions with elections and corrections officials and other relevant actors, this Article reveals that wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia.  After describing the mechanisms for wealth-based penal disenfranchisement, this Article offers a doctrinal intervention for dismantling them. There has been limited, and to date unsuccessful, litigation challenging these practices as violative of the Fourteenth Amendment’s equal protection and due process clauses. Because voting eligibility is stripped of its fundamental nature for those convicted of a crime, wealth-based penal disenfranchisement has been subject to the lowest level of scrutiny, rational basis review, leading lower courts to uphold the practice. This Article posits that these courts have approached the validity of wealth-based penal disenfranchisement through the wrong frame—the right to vote—when the proper frame is through the lens of punishment. This Article examines a line of cases in which the Court restricted governmental action that would result in disparate treatment between rich and poor in criminal justice practices, juxtaposing the cases against the Court’s treatment of wealth-based discrimination in the Fourteenth Amendment doctrine and the constitutional relevance of indigency in the criminal justice system broadly. Doing so supports the conclusion that the Court has departed from the traditional tiers of scrutiny. The resulting test operates as a flat prohibition against the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense. Because such alternatives are available, wealth-based penal disenfranchisement would violate the Fourteenth Amendment under this approach. ___________________________________________________________________  Collateral Consequences and Criminal Justice: Future Policy and Constitutional Directions Gabriel J. Chin, University of California, Davis – School of Law 102 Marq. L. Rev. 233 (2018) National policy with respect to collateral consequences is receiving more attention than it has in decades. This article outlines and explains some of the reasons for the new focus. The legal system is beginning to recognize that for many people convicted of crime, the greatest effect is not imprisonment, but being marked as a criminal and subjected to legal disabilities. Consequences can include loss of civil rights, loss of public benefits, and ineligibility for employment, licenses, and permits. The United States, the 50 states, and their agencies and subdivisions impose collateral consequences—often applicable for life—based on convictions from any jurisdiction. However, because they were deemed “civil,” collateral consequences have been created and imposed with few constitutional limitations. In recent years, the American Law Institute, American Bar Association, and Uniform Law Commission all have proposed reforms, which are now being seriously considered in a number of jurisdictions. Meanwhile, scholars have advanced, and courts have sometimes accepted, an argument that they previously rejected, namely that collateral consequences can be of constitutional magnitude. As courts take collateral consequences more seriously, legislatures have begun to reduce the numbers of collateral consequences and provide legal mechanisms for the relief of those that remain. ________________________________________________________________________ The Collateral Consequence Conundrum: Comparative Genealogy, Current Trends, and Future Scenarios Alessandro Corda, Queen’s University Belfast School of Law in After Imprisonment, 77 Studies in Law, Politics and Society (Austin Sarat ed., 2018), pp. 69-97 Collateral consequences (CCs) of criminal convictions such as disenfranchisement, occupational restrictions, exclusions from public housing, and loss of welfare benefits represent one of the salient yet hidden features of the con- temporary American penal state. This chapter explores, from a comparative and historical perspective, the rise of the many indirect “regulatory” sanctions flowing from a conviction and discusses some of the unique challenges they pose for legal and policy reform. US jurisprudence and policies are contrasted with the more stringent approach adopted by European legal systems and the European Court of Human Rights (ECtHR) in safeguarding the often-blurred line between criminal punishments and formally civil sanctions. The aim of this chapter is twofold: (1) to contribute to a better understanding of the overreliance of the US criminal justice systems on CCs as a device of social exclusion and control, and (2) to put forward constructive and viable reform proposals aimed at reinventing the role and operation of collateral restrictions flowing from criminal convictions. ________________________________________________________________________ Collateral Consequences of Criminal Conviction: Law, Policy and Practice Margaret Colgate Love, Law Office of Margaret Love Jenny Roberts, Washington College of Law, American University Wayne A. Logan, Florida State University Law School West/NACDL, 3d ed. 2018-2019 This volume is a comprehensive resource for practicing lawyers, judges and policymakers on the legal restrictions and penalties that result from a criminal conviction over and above the court- imposed sentence. Today, many millions of Americans have a criminal record of some kind, potentially triggering a vast array of highly burdensome and stigmatizing consequences that can have life-long debilitating effects. This volume provides comprehensive discussion and analysis of these after-effects of the nation’s ongoing “tough on crime” policies, ranging from loss of civil rights and employment opportunities, to firearms dispossession, registration and residency restrictions, and immigration consequences. It also discusses state and federal laws applicable to access to and use of criminal records, and the informal consequences that exist apart from formal legal restrictions. It serves as a single go-to resource for lawyers, judges, and policymakers as they negotiate the often complex and obscure statutes and regulations that come into play as a consequence of arrest and conviction. ____________________________________________________________________  Collateral Consequences of Punishment: A Critical Review and Path Forward David S. Kirk, University of Oxford, Department of Sociology Sara Wakefield, Rutgers School of Criminal Justice 1 Annual Review of Criminology 171 (2018) The unprecedented growth of the penal system in the United States has motivated an expansive volume of research on the collateral consequences of punishment. In this review, we take stock of what is known about these collateral consequences, particularly in the domains of health, employment, housing, debt, civic involvement, families, and communities. Yet the full reckoning of the formal and informal consequences of mass incarceration and the tough-on-crime era is hindered by a set of thorny challenges that are both methodological and theoretical in nature. We examine these enduring challenges, which include (a) the importance of minimizing selection bias, (b) consideration of treatment heterogeneity, and (c) identification of causal mechanisms underlying collateral consequences. We conclude the review with a focused discussion on promising directions for future research, including insights into data infrastructure, opportunities for policy tests, and suggestions for expanding the field of inquiry. ___________________________________________________________________  Collateral consequences and criminal procedure Incorporating Collateral Consequences into Criminal Procedure Paul T. Crane, U.S. Department of Justice, Criminal Division 54 Wake Forest L. Rev. 1 (2019) A curious relationship currently exists between collateral consequences and criminal procedures. It is now widely accepted that collateral consequences are an integral component of the American criminal justice system. Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants. Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process. Specifically, a conviction’s collateral consequences, no matter how severe, are typically treated as irrelevant when determining whether a defendant is entitled to a particular procedural protection. This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure. Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines. After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial. ______________________________________________________________________  Wrongful Collateral Consequences Abigail E. Horn, Lawyer 87 Geo. Wash. L. Rev. 315 (2019) Collateral consequences of criminal convictions perpetuate racial hierarchy, disadvantage individuals and families, undermine communities, and harm the public by hindering reentry efforts. This Article is the first to systematically expose another overlooked characteristic of collateral consequences—the extent to which they are imposed wrongfully. Wrongful collateral consequences are those that attach erroneously and in clear violation of the law. The causes are structural. Imposing collateral consequences requires a two-step matching process. First, an administrator must match a person to his or her criminal-records data. Second, an administrator must match the criminal- records data to the law enacting the collateral consequence—to determine whether the consequence should lawfully attach. These steps are simple to state, but difficult to implement. Errors occur at both steps. Wrongful collateral consequences arise because criminal-records data is notoriously incomplete and inaccurate. They also arise because the laws enacting collateral consequences are structurally complex—legislators employ catchall clauses to enumerate the triggering offenses and complex duration clauses to prescribe the length of the consequences. Reforms are possible. Two would get at the root causes: improving criminal-records data and simplifying collateral-consequence laws. Other reforms would leave in place the existing structure but should be implemented immediately: improvements in procedural due process, creative plea bargaining by criminal-defense counsel, and quality controls by administrators who do the two-step matching. These reforms would prevent wrongful collateral consequences at the margins, but not eradicate the problem. Wrongful collateral consequences ultimately present yet another reason why collateral consequences, and the caste system they create, are misguided and unjust. _______________________________________________________________  Sex offender registration laws Beyond Panic: Variation in the Legislative Activity for Sex Offender Registration and Notification Laws Across States Over Time Robert Lytle, Department of Criminal Justice at the University of Arkansas at Little Rock 30 Criminal Justice Policy Review 451 (2019) Nationwide moral panic has long served as a primary explanation for sex offense laws. These laws, however, remain primarily left to state legislatures, which implies potential variation in their content over time. Variation in legislative content, to the degree that it represents implementation, not only suggests differential consequences for registrants and communities, but also it would raise questions to the sufficiency of moral panic as a sole explanation for sex offense policy change. I build upon earlier work by exploring variation in the content and timing of sex offender registration and notification (SORN) reform in all 50 states over time. After documenting variation in these laws, I present the ways in which SORN legislative content has evolved differently across states. In addition, the timing of legislative reforms differed not only across states but also within states over time. These findings have implications for existing theoretical assertions regarding criminal justice policy. ___________________________________________________________________  Challenging the Punitiveness of “New-Generation” SORN Laws Wayne A. Logan, Florida State University College of Law 21 New Crim. L. Rev. 426 (2018) Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This article examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto–based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.  _______________________________________________________________  Informal collateral consequences Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and the Rise of a New Penal Entrepreneurialism Alessandro Corda, Queen’s University Belfast School of Law Sarah E. Lageson, Rutgers School of Criminal Justice British Journal of Criminology (2019, online first) The privatization of punishment is a well-established phenomenon in modern criminal justice operations. Less understood are the market and technological forces that have dramatically reshaped the creation and sharing of criminal record data in recent years. Analyzing trends in both the United States and Europe, we argue that this massive shift is cause to reconceptualize theories of penal entrepreneurialism to more directly address the role of technology and commercial interests. Criminal records, or proxies for them, are now actively produced and managed by third parties via corporate decision-making processes, rather than government dictating boundaries or outsourcing duties to private actors. This has led to what we term ‘disordered punishment’, imposed unevenly and inconsistently across multiple platforms, increasingly difficult for both government and individuals to control. ______________________________________________________________________  Criminal Employment Law Benjamin Levin, University of Colorado Law School 39 Cardozo L. Rev. 2265 (2019) This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal legal system. But private employers act without constitutional or significant structural checks. Therefore, I argue that the criminal system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment. Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market. And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers. ___________________________________________________________________ Privatizing Criminal Stigma: Experience, Intergroup Contact, and Public Views about Publicizing Arrest Records Sarah E Lageson, Rutgers School of Criminal Justice Megan Denver, Northeastern University School of Criminology and Criminal Justice Justin T. Pickett, University of Albany School of Criminal Justice 21 Punishment & Society 315 (2019) Current U.S. policy allows private companies to publish arrest records prior to conviction in print and online sources, yet little is known regarding the extent to which people actively search for criminal records or whether the public supports these policies. Utilizing two large public opinion surveys (N = 1008 and N = 1601), we find that approximately 15% of Americans searched online for conviction records last year (an estimated 38 million people), but that a strong majority (88%) oppose the publication of arrest records by private companies. We measure correlates of opposition to record disclosure and find that having high-quality interpersonal contact with an arrestee diminishes support for publicizing arrest records and also tempers views of recidivism risk for those with nonviolent convictions. Findings suggest that learning firsthand about the negative consequences of contemporary criminal labels changes popularly held views on the value of immediate arrest record disclosure. _____________________________________________________________________  The Collateral Consequences of Incarceration for Housing David S. Kirk, University of Oxford, Department of Sociology In Handbook on the Consequences of Sentencing and Punishment Decisions (Beth M. Huebner & Natasha A. Frost eds., 2018), pp. 53-68. The ability to obtain safe, decent, and affordable housing is critical to the successful reentry and reintegration of formerly imprisoned individuals back into society. Yet many convicted individuals face significant barriers to securing housing, both in the private and the public market. One barrier includes the so-called “invisible punishments”—that is, the legal and regulatory sanctions beyond the criminal sentence imposed in court. For instance, certain classes of felons may be automatically and even permanently banned from receiving public housing benefits or vouchers. A second related barrier is the stigma of a criminal record. Easy access to criminal records makes it easy and efficient for landlords and other real estate professionals to access criminal history information about a prospective tenant or buyer. In fact, because of the vast racial and ethnic disproportionality in the criminal justice system, the use of criminal records in housing decisions has civil rights implications in accordance with the Fair Housing Act. A third barrier is a lack of income in combination with a dearth of affordable housing in the U.S. The employment prospects of the average convicted individual are already dismal, and an ever-growing body of research demonstrates that job prospects and wages are further undermined by criminal conviction. Without stable income, one’s housing prospects are sorely curtailed. This chapter will review what is known about the housing experiences of formerly incarcerated individuals as well as the consequences of these barriers to stable housing. ________________________________________________________________________ Criminal records, expungement, sealing, and other relief mechanisms Expungement of Criminal Convictions: An Empirical Study J.J. Prescott, University of Michigan Law School Sonja B. Starr, University of Michigan Law School Harv. L. Rev. (Forthcoming 2020). Date Posted on SSRN: March 16, 2019 Laws permitting the expungement of criminal convictions are a key component of modern criminal justice reform efforts and have been the subject of a recent upsurge of legislative activity. This debate has been almost entirely devoid of evidence about the laws’ effects, in part because the necessary data (such as sealed records themselves) have been unavailable. We were able to obtain access to deidentified data that overcomes that problem, and we use it to carry out a comprehensive statewide study of expungement recipients and comparable non-recipients. We offer three key sets of empirical findings. First, among those legally eligible for expungement, just 6.5% obtain it within five years of eligibility. Drawing on patterns in our data as well as interviews with expungement lawyers, we point to reasons for this serious “uptake gap.” Second, those who do obtain expungement have extremely low subsequent crime rates, comparing favorably to the general population—a finding that defuses a common public-safety objection to expungement laws. Third, those who obtain expungement experience a sharp upturn in their wage and employment trajectories; on average, within two years, wages go up by 25% versus the pre-expungement trajectory, an effect mostly driven by unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work. ____________________________________________________________________ Criminal Records, Positive Credentials and Recidivism: Incorporating Evidence of Rehabilitation Into Criminal Background Check Employment Decisions  Megan Denver, Northeastern University School of Criminology and Criminal Justice Crime and Delinquency (2019, online first) Decision makers increasingly incorporate “evidence of rehabilitation” into criminal background checks. Positive credentials can decrease criminal record stigma and improve employment outcomes, but we lack research on whether rehabilitative factors used in such assessments are correlated with recidivism. The current study examines more than 1,000 state-mandated criminal background checks in the rapidly growing health care sector. Everyone in the sample received an initial denial and requested reconsideration by submitting evidence of rehabilitation. The findings indicate prior employer recommendations and program completion are positively correlated with clearance to work, but conditional on contesting in the first place, none of the evidence of rehabilitation factors are negatively correlated with recidivism. Persistently pursuing an employment opportunity through a contestation process may, in itself, signal rehabilitation and lower risk. ______________________________________________________________________  Credentialing Decisions and Criminal Records: A Narrative Approach Megan Denver, Northeastern University School of Criminology and Criminal Justice Alec C. Ewald, University of Vermont, Department of Political Science 56 Criminology 715 (2018) Decision makers such as employers and state occupational licensing officials are often encouraged or required to incorporate evidence of rehabilitation into hiring decisions when applicants have criminal records. Current policy movements at the local, state, and federal levels may increase the use of such individualized assessments. Yet little is known about which types of information these decision makers use, how they evaluate evidence, and how they ultimately make determinations. We examine a sample of 50 unarmed security guard licensing decisions in New York State using content analysis. We find that administrative law judges rely on a narrative framework to document whether applicants currently have a prosocial identity and merit licensure. Judges typically describe one of two prosocial identity narratives for successful applicants: The applicant demonstrates achieving meaningful change, or his or her criminal record represents an aberration. Two factors seem vital to these assessments: applicants’ postconviction trustworthiness, as demonstrated through good conduct or inferred through positive appraisals, and credible testimony. In narrative explanations, personal responsibility and adult milestones are often discussed, reflecting a judicial nod to the notion of a “transition to adulthood.” The results hold implications for scholars and policy makers examining employment barriers, stigma remediation, and collateral sanctions for individuals with criminal records. ______________________________________________________________________ Criminal Records and Employment: A Survey of Experiences and Attitudes in the United States Megan Denver, Northeastern University School of Criminology and Criminal Justice Justin T. Pickett, University of Albany School of Criminal Justice Shawn D. Bushway, University of Albany, Department of Public Administration & Policy 35 Justice Quarterly 584 (2018) Ban-the-Box (BTB) legislation, which bans employers from asking about criminal history records on the initial job application, is arguably the most prominent policy arising from the prisoner reentry movement. BTB policies assume: 1) most employers ask about criminal records, and 2) inquiries occur at the application stage. However, we lack reliable information about the validity of these assumptions or about public attitudes towards criminal background checks, which limits our understanding of the potential scope of this innovative policy. Using survey data from a national probability sample, we estimate that in the past year, over 31 million U.S. adults were asked about a criminal record on a job application. According to our survey, virtually all of the criminal record inquiries occurred at the application stage, highlighting the potential of BTB. However, we also found that the public is sharply divided on whether to prevent employers from asking on applications, as per BTB. Read more

Erasing the line between felony and misdemeanor

Two provocative new scholarly articles examine the extent to which the crisp line historically drawn in law between felonies and misdemeanors is becoming increasingly ephemeral.  In Informed Misdemeanor Sentencing, Jenny Roberts points out that conviction of a misdemeanor has become exponentially more serious in recent years as the associated collateral consequences have increased in number and severity.  She urges judges to “explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.”  She recommends that sentencing courts should make “more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.” Jack Chin and John Ormonde make essentially the same point about the blurring of the old distinction between felony and misdemeanor in a forthcoming article in the Minnesota Law Review.  In Infamous Misdemeanors and the Grand Jury Clause, they point out that “[i]n the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment.”  They conclude that, because of the stigma that attaches to any criminal record, the Fifth Amendment requires that “many more federal offenses should be prosecuted by grand jury indictment than is now the practice.” It is impossible to determine exactly how many of the 48,000 consequences collected in the National Inventory of the Collateral Consequences of Conviction are triggered by a misdemeanor conviction, but so many legal and regulatory consequences attach to specific categories of offenses that include misdemeanors (e.g., drug crimes, sexual offenses, crimes involving dishonesty), it is likely a substantial portion.  Moreover, given the ubiquity of criminal background checking pervading every area of modern life, even a criminal record involving dismissed misdemeanor charges may result in discrimination and exclusion. Below are the abstracts for these two articles: Jenny Roberts, Informed Misdemeanor Sentencing, 46 Hofstra Law Review 177 (2017)   There is no such thing as a low-stakes misdemeanor. The misdemeanor sentence itself, which can range from time served to up to twelve years in some jurisdictions, is often significant. But the collateral consequences of such a conviction can be far worse, affecting a person’s work and home lives for decades, and sometimes for the rest of their lives. As a result of misdemeanor convictions, defendants can be fired from their jobs, barred from future employment in many fields, deported, evicted from public housing together with their entire family, and refused housing by private landlords.Under most theories of punishment, a judge at sentencing does not simply look back to the crime and its circumstances but also looks forward at the defendant’s future. Judges imposing sentences in misdemeanor cases should focus forward much more heavily than back, and should consider the collateral effects of a misdemeanor conviction on the defendant’s future. Viewed through that more expansive lens, and given the broad discretion of judges in misdemeanor sentencing and lack of existing guidance for that discretion, the sentencing function of judges in misdemeanor cases is in serious need of study and reform. This Article’s goal is two-fold. First, it contextualizes judicial responsibility for misdemeanor sentencing in the realities of the lower criminal courts, where a number of structural and systemic barriers — including violations of the right to counsel and pressures on judges to move cases along rapidly — affect but do not excuse the way judges go about sentencing. Second, the Article calls for judges to undertake “informed misdemeanor sentencing,” which draws on principles of proportionality and parsimony in determining the just sentence in a misdemeanor case. Accordingly, judges should explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate. In addition, judges should bring parsimony into the sentencing process by making more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction. Gabriel Jackson Chin & John Ormonde, Infamous Misdemeanors and the Grand Jury Clause, 102 Minnesota Law Review___ (2018)(forthcoming). Under an overlooked body of constitutional law, many more federal offenses must be prosecuted by grand jury indictment than is now the practice. Current rules provide that felonies must be prosecuted by grand jury indictment, but misdemeanor charges may be based on a prosecutor’s information, or even a “ticket” issued by a law enforcement officer. However, serious consequences fall on people convicted of federal misdemeanors, including deportation, sex offender or other criminal registration, ineligibility for public benefits, and loss of civil rights. In the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment. The Court held that infamous offenses were ones potentially resulting in stigmatizing punishments degrading the offender’s status, indicating that the person is less than a full member of the community. These include corporal punishment, incarceration in a prison or penitentiary (as opposed to a jail), loss of civil rights or imposition of civil disabilities, and convictions implying moral turpitude. Many federal misdemeanors carry these consequences. And federal misdemeanors are much more likely to be dismissed without trial than felonies. More thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge. As a result, thousands of Americans would avoid the stigma of a criminal record where it is unwarranted. This is what the framers of the Constitution intended. 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

International travel restrictions based on criminal record

Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about restrictions on international travel based on criminal record.  The first section discusses the subject in general terms, while the second section describes restrictions on travel to Canada for individuals with a foreign conviction, and the methods of overcoming these restrictions.  (An earlier post described methods of neutralizing Canadian convictions for purposes of travel to the U.S.) 2:61. International travel restrictions — In general* A conviction can restrict a U.S. citizen’s freedom to travel outside the United States in several ways. First, domestic laws revoke passports for individuals convicted of designated offenses. When a person is convicted of a felony drug offense for conduct that involved international travel, for example, his passport will be revoked under federal law[1]. The revocation period lasts for the full duration of the sentence imposed for the drug offense[2]. Persons with a felony conviction ordinarily will not qualify for “trusted traveler” programs operated by U.S. Customs and Border Protection, such as the Global Entry program (“expedited clearance for pre-approved, low-risk travelers upon arrival in the United States”), or the NEXUS, SENTRI and FAST programs (pre-cleared personal and commercial travel across the U.S. borders with Canada and Mexico).[3]  All applicants for these programs “undergo a rigorous background check and interview before enrollment.”  Ironically, in light of the stated purpose of these programs to expedite international travel, persons who apply and are rejected based on criminal history may find themselves routinely selected for further examination when entering the United States. Foreign laws may also restrict the travel of individuals convicted in U.S. courts.   Some countries, most notably Canada, prohibit individuals convicted of certain offenses from entry.[4]  However, countries that only require travelers to present their passport for admission generally do not screen for a criminal record.  Canada is a special case, as the Canada Border Services Agency (CBSA) border agents have access to the National Crime Information Center (NCIC) database, using the traveler’s passport, which allows them to see any conviction going back to a traveler’s 18th birthday.[5] Other countries do not have immediate access to the NCIC database, which means that this issue only arises if the individual is applying for a visa to visit, work, study, or immigrate.  On visa applications, there is usually a question regarding criminal convictions and arrests, and failure to answer truthfully may have serious consequences.  U.S. citizens may also be asked to present a “certificate of good conduct” or “lack of a criminal record” for a variety of reasons for use abroad including adoption, school attendance, or employment.[6] Some countries do not automatically exclude individuals with prior convictions from entry but require certain convicted individuals to apply to the country for pre-clearance prior to travel.[7]  Individuals with criminal records who wish to travel internationally should first contact the local U.S. embassy of the nation they wish to visit for up-to-date information about the nation’s policies regarding admission.   2:62. International travel restrictions – Canada Before travelling to Canada, individuals with a criminal history should verify their entry status, since even seemingly minor offenses may render an individual inadmissible to Canada. The Canadian Immigration and Refugee Protection Act (IRPA)[8] states that a foreign national may be inadmissible on the grounds of criminality if convicted outside of Canada of an offense that, if committed in Canada, would constitute an “indictable offense” under an Act of Parliament.[9]  Thus, simply, any offense committed outside of Canada that would be considered indictable in Canada results in criminal inadmissibility. Any offense that could be treated as either summary or indictable is known as a hybrid offense. Hybrid offenses, a majority of the offenses in the Canadian criminal code, are considered to be indictable offenses for the purposes of Canadian immigration.  Summary offenses do not result in inadmissibility.[10] A significant part of the application process to overcome inadmissibility is determining the equivalence of foreign offenses with Canadian offenses.  It does not matter how lightly or severely a given crime is treated in the country where it occurred, or whether it is styled as a felony or misdemeanor.  Thus, a misdemeanor under U.S. law may render an individual inadmissible to Canada while someone with a felony conviction may not be inadmissible.[11]  In some cases it is possible to argue non-equivalence or equivalence to a minor offense to circumvent the inadmissibility regulations and allow the individual to enter without applying for permission. Once the equivalence has been established, it is important to determine the maximum authorized sentence under Canadian law, which will be relevant to determining the cost and likelihood of success when applying for relief from criminal inadmissibility.  Offenses that carry a maximum sentence of 10 years or more under Canadian law are considered serious criminality and relief is more difficult to obtain.  Non-serious criminality is a conviction for an offense with a maximum sentence of less than 10 years. The processing times and fees for applications involving non-serious criminality are less. When a foreign conviction is determined to be an indictable offense under Canadian law, whether it will render the traveler inadmissible depends on several factors: How long ago the conviction occurred; The severity/nature of the offense in Canada; How many offenses the individual has been convicted of; and Whether the individual can demonstrate they are unlikely to reoffend.[12] If travelers can prove that they have not been convicted of an offense that would render them inadmissible because they have received a deferral or conditional discharge or because the offense has been expunged or pardoned, applying for relief is not required. Criminally inadmissible visitors to Canada may petition for a “Criminal Rehabilitation” from the Canadian consulate if at least 5 years have passed since the completion of their sentence, including payment of fines and completion of probation or parole.[13] If granted, such a document overcomes barriers to entry. If fewer than 5 years have passed, an individual with a significant economic or humanitarian & compassionate reason to travel to Canada may request a Temporary Resident Permit (TRP), to temporarily overcome inadmissibility.[14]  An individual who has only one non-serious conviction (conviction for an offense carrying a maximum sentence of less than 10 years under Canadian law) may also be “deemed rehabilitated”[15] if more than 10 years have passed from the completion of all conditions of their sentence (or five years in the case of two or more summary offenses).[16] Only a lawyer certified by one of the provincial bar associations in Canada, or a certified Canadian immigration consultant, is authorized to represent an individual in a Canadian immigration application, including Criminal Rehabilitation and TRP applications.[17]   * * * * * * * * * * * * * * * *   * The authors wish to thank Marisa Feil of Montreal, Canada, for her contributions to §§ 2:61 and 2:62. [1] 22 U.S. Code § 2714 (a) http://www.law.cornell.edu/uscode/text/22/2714 [2] 22 U.S. Code 2714 (c). [3] These programs are described at http://www.cbp.gov/travel/trusted-traveler-programs. [4] IRPA S.C. 2001, c.27 s.36(2). [5] http://www.cbsa-asfc.gc.ca/agency-agence/reports-rapports/pia-efvp/atip-aiprp/infosource-eng.html.  See § 2:62. [6] See http://travel.state.gov/content/passports/english/abroad/legal-matters/criminal-record-check.html. [7] In the United Kingdom, for example, individuals with criminal records are encouraged to seek entry clearance prior to travel. Clearance will ordinarily be denied for “conviction in any country including the United Kingdom of an offense which, if committed in the United Kingdom, is punishable with imprisonment for a term of twelve months or any greater punishment or, if committed outside the United Kingdom, would be so punishable if the conduct constituting the offense had occurred in the United Kingdom.” U.K. Imm. R. 320(18). [8] IRPA S.C. 2001, c.27 s.36(2)   http://laws-lois.justice.gc.ca/eng/acts/I-2.5/. [9] Immigration and Refugee Protection Act, SC 2001, c 27, s.36 http://laws-lois.justice.gc.ca/eng/acts/I-2.5/.  Canada does not use the misdemeanor/felony classification system; offenses in Canada are either summary or indictable offenses, depending on the authorized punishment. [10] Summary offenses under the Canadian Criminal code include Trespassing at Night, Causing a disturbance, or taking a motor vehicle without consent (not Theft of an automobile).  http://www.cic.gc.ca/english/resources/manuals/enf/enf02-eng.pdf [12] http://www.cba.org/cba/cle/PDF/IMM11_Sedai_ENF14%20%282008-04-21%29.pdf. [13] IRPA S.C. 2001, c.27 s..36(3).  The application for Criminal Rehabilitation is available with instructions at http://www.cic.gc.ca/english/information/applications/rehabil.asp. [14] http://www.cic.gc.ca/english/information/inadmissibility/permits.asp. [15] Immigration and Refugee Protection Act, SC 2001, c 27 s. 18(2). [16] http://www.cic.gc.ca/english/information/inadmissibility/rehabilitation.asp. [17] http://www.cic.gc.ca/english/information/representative/rep-who.asp.  The penalty for a receiving compensation on this type of application by an unauthorized representative is a fine of up to $100,000. http://news.gc.ca/web/article-en.do?nid=824719. Read more

Second Amendment challenges to felon-in-possession laws

Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about challenges to firearms-related collateral consequences based on the constitutional right to bear arms.  Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms rights after conviction, will be interested to know that the government has appealed the district court’s decision in Binderup v. Holder cited in note 8, discussed here a few weeks ago. Binderup is a civil rights action in which the federal court in the Eastern District of Pennsylvania held that the federal felon-in-possession statute could not constitutionally be applied to an individual convicted of a non-violent sex offense in 1998 and sentenced to probation.  This case, the first in which a federal court invalidated a federal statute on Second Amendment grounds, is likely to provide an early opportunity for the court of appeals to consider an issue that most commentators and some courts believe was left unresolved by the Supreme Court in D.C. v. Heller. Alan Gura, who represents Mr. Binderup and argued both Heller and McDonald v. City of Chicago in the Supreme Court, has promised to give us a comment about the Binderup appeal and other pending Second Amendment challenges to felony dispossession laws involving people with dated non-violent convictions.  The tricky and fascinating question presented by these as-applied challenges is what criteria should be used to test whether an individual with a criminal conviction is within the class “historically barred barred from Second Amendment protections” or is “no more dangerous than a typical law-abiding citizen.” U.S. v. Barton, 633 F.3d 168, 174 (3d Cir. 2011). (Note from ML: I was told several years ago that a substantial percentage of the requests for presidential pardon pending in the Justice Department — perhaps as many as half — are from people seeking restoration of firearms privileges.  Judging from my own clientele, this seems about right.  It strikes me as exceedingly strange that people with dated non-violent federal convictions should have to petition the president himself to regain what we may soon learn are their constitutional rights, but that is the situation the Supreme Court left us with its dubious 1995 decision in Beecham v. U.S. and its equally dubious decision 13 years later in Heller.  He should hope the courts will relieve him of this burden, and instruct his Attorney General to stand down on Binderup.)   2:36. Firearms restrictions– Second Amendment challenges to felony dispossession laws In 2008, the Supreme Court held in District of Columbia v. Heller[1] that the Second Amendment confers a personal, fundamental right to possess a firearm, thus opening an entirely new basis for defending against the application of statutes making it a crime for convicted felons to possess firearms.[2] Heller itself anticipated and sought to deflect constitutional challenges to conviction-based firearms restrictions by declaring them to be “longstanding” and “presumptively lawful”[3] but some lower courts have characterized this statement as dictum, and scholars have questioned its historical accuracy.[4] While every federal court to have considered the issue post-Heller has rejected a Second Amendment challenge to the federal statute barring convicted felons from possessing firearms,[5] three federal courts of appeal have suggested that categorical firearms bans may not survive rational basis review as applied to individuals convicted of nonviolent felonies.[6]    In U.S. v. Barton, the Third Circuit noted that a successful “as applied” challenger must present facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections. For instance, a felon convicted of a minor, non-violent crime might show that he is no more dangerous than a typical law-abiding citizen. Similarly, a court might find that a felon whose crime of conviction is decades-old poses no continuing threat to society.[7] The first case to sustain an as-applied challenge to the federal felon-in-possession statute relied upon this language from Barton in finding that an individual convicted of a non-violent sex offense and sentenced to probation sixteen years before could not be prosecuted under it.[8]  Earlier,  the North Carolina Supreme Court relied upon the “right to bear arms” provision of its state constitution in refusing to apply a newly enacted categorical dispossession statute to an individual whose conviction was decades old, whose firearms rights had been restored under an earlier law, and who had long since demonstrated his rehabilitation.[9]   [1] District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). [2] Cf. §3:11 (Substantive challenges based on rights guaranteed by the Constitution—Right to bear arms). [3] See Heller, 554 U.S. at 626-27 (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons”). But see id. at 722 (Breyer, J., dissenting) (noting that there is no factual basis for the assertion that such prohibitions are “longstanding”). [4] See Alexander C. Barrett, Taking Aim at Felony Possession, 93 B.U.L. Rev. 163, 194-196 (2013)(“even if some felons were historically understood to be barred from possessing firearms, the common law term ‘felony’ applied to only a few select categories of serious crimes at the time the Second Amendment was ratified, while in modern times, vast categories of ‘non-dangerous’ activities qualify as felonious”); ; Nelson Lund, Two Faces of Judicial Restraint (or Are There More?) in McDonald v. City of Chicago, 63 Fla. L. Rev. 487, 502 (2011) (observing that the dictum was “casually tossed off by Justice Scalia” and has “no basis in prior Supreme Court case law and [was] not supported by evidence of the original meaning of the Second Amendment”); C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 Harv. J.L. & Pub. Pol’y 696, 699 (2009) (observing that “a lifetime ban on any felon possessing any firearm is not ‘‘longstanding’’ in America”); Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1374 (2009) (“[S]o far as I can determine, no colonial or state law in eighteenth-century America formally restricted the ability of felons to own firearms.”); Adam Winkler, Heller’s Catch 22, 56 UCLA L. Rev. 1551, 1561, 1563 (2009) (“Bans on ex-felons possessing firearms were first adopted in the 1920s and 1930s, almost a century and a half after the Founding.”). [5] 18 U.S.C.A. §922(g). [6] See U.S. v. Smoot, 690 F.3d 215, 221 (4th Cir. 2012), cert. denied, 133 S. Ct. 962, 184 L. Ed. 2d 747 (2013) (dispossession would be improper if a litigant could demonstrate that he fell within “the scope of Second Amendment protections for ‘law-abiding responsible citizens to use arms in defense of hearth and home’”); U.S. v. Barton, 633 F.3d 168, 173 (3d Cir. 2011)(“As the Government concedes, Heller’s statement regarding the presumptive validity of felon gun dispossession statutes does not foreclose Barton’s as-applied challenge.”); U.S. v. Williams, 616 F.3d 685, 692 (7th Cir. 2010) (“[T]here must exist the possibility that [a firearm] ban could be unconstitutional in the face of an as-applied challenge.”); see also U.S. v. McCane, 573 F.3d 1037, 1049 (10th Cir. 2009) (Tymkovich, J., concurring) (“Non-violent felons, for example, certainly have the same right to self-defense in their homes as non-felons.”). But see U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010), cert. denied, 131 S. Ct. 1674, 179 L. Ed. 2d 645 (2011) (en banc) (explaining why §922(g) may constitutionally be applied to an individual repeatedly convicted of misdemeanor domestic violence). [7] U.S. v. Barton, 633 F.3d at 174. [8] See Binderup v. Holder, 2014 U.S. Dist. LEXIS 135110 (E.D. Pa. 2014).  Perhaps significantly, this successful as-applied challenge to 18 U.S.C. § 922(g)(1) was brought as a civil rights action under the Declaratory Judgment Act, rather than raised as a defense to a criminal prosecution. [9] See Britt v. State, 363 N.C. 546, 681 S.E.2d 320 (2009).  Following the Britt decision, North Carolina amended its firearms law to permit individuals who have lived in North Carolina for at least one year, who have a single non-violent felony conviction and no violent misdemeanors, to petition the court in their county of residence twenty years after their civil rights were restored for restoration of firearms rights.  N.C. Gen Stat. § 14-415.4.     Read more