Tag: Virginia

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

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

What (if anything) does the Virginia voting rights decision tell us about the president’s pardon power?

On July 22, 2016, the Virginia Supreme Court struck down a series of executive orders issued by Governor Terry McAuliffe restoring voting and other civil rights to more than 200,000 convicted individuals.  See Howell v. McAuliffe (Va. 2016).  The court, in a 4-to-3 decision, disputed the governor’s assertion that his restoration power was absolute under the state’s Constitution. “We respectfully disagree,” the majority justices wrote. “The clemency power may be broad, but it is not absolute.”   Governor McAuliffe responded to the court’s action by promising to restore the vote on an individual basis to everyone affected by his orders, starting with the 13,000 who had already registered to vote.  More details of the reaction to the court’s ruling are reported here. The Virginia court’s decision is interesting for what it may tell us about the possibility of class-wide grants of clemency, whether full pardon or sentence commutation, under the president’s pardon power. In finding limits on the governor’s restoration power under the Virginia constitution, the court relied upon two other constitutional provisions that have no analogue in the U.S. Constitution. In limiting the so-called “Restoration Clause” of the Virginia Constitution, the court relied primarily on its “Suspension Clause,” which prohibits suspension of laws by the executive. All agree that the Governor can use his clemency powers to mitigate a general rule of law on a case-by-case basis. But that truism does not mean he can effectively rewrite the general rule of law and replace it with a categorical exception. The express power to make exceptions to a general rule of law does not confer an implied power to change the general rule itself. The unprecedented scope, magnitude, and categorical nature of Governor McAuliffe’s Executive Order crosses that forbidden line. The court also noted the apparent inconsistency between a blanket class-wide restoration and the requirement, also in the state constitution, that the governor report annually to the legislature on each individual grant.  In this regard, the court noted that the only Virginia governors who have in the past seriously considered blanket restoration (including Hillary Clinton’s choice for Vice President Tim Kaine) concluded that they did not have the power to dispense with disenfranchisement on any but a case-by-case basis. All of the dissenting justices would have rejected the suit on standing grounds, while two also thought the Restoration Clause trumped the Suspension Clause. The U.S. Constitution contains nothing analogous to Virginia’s Suspension Clause, and no requirement that the president report to Congress on his pardons.  Indeed, the Article II pardon power has always been thought unlimited.  That said, no president has ever sought to restore rights to convicted individuals, or commute prison sentences, on a blanket basis. The closest thing is President Jimmy Carter’s blanket amnesty to Vietnam draft evaders, and even in that case only a small percentage of those covered by the amnesty had been convicted.  Moreover, any convicted individual who wished to claim coverage under the Carter order was required to have his eligibility certified by the Pardon Attorney in the Justice Department.  That looks a lot like the sort of case-by-case procedure that had been followed by the Ford Clemency Board several years before. All other large-scale federal clemency grants to convicted individuals, including post-war grants by Presidents Theodore Roosevelt (Philippine Insurrection), Harding (World War I), and Truman (World War II and Korean War), and Ford (Vietnam War) were on a case-by-case basis.  Class-wide amnesties (such as those issued by President Washington to the Whiskey Rebels, by President Madison to deserters during the War of 1812, by Presidents Lincoln and Johnson during and after the Civil War, and by Presidents Harrison and Cleveland to Mormon bigamists when Utah became a state) all applied to individuals who had not yet been convicted. In short, quite apart from the political and practical problems involved with using the pardon power to restore civil rights or reduce prison sentences automatically to an entire class of individuals, there seems to be little historical foundation for proposals that President Obama do so.  That said, there may be presidential actions short of a full and unconditional grant of clemency that would allow quicker favorable action on the thousands of petitions that are presently pending in the Justice Department.  That possibility will be the subject of another piece in this space. Read more

NYT says NO to “the other f-word,” and YES to Gov. McAuliffe

The New York Times has two great Sunday editorials on issues relating to collateral consequences.  One deals with the issue of labeling people with a criminal record, of special concern when headline writers seem unable to resist using what Bill Keller at the Marshall Project recently called “the other F-word.”  The editorial points out that ugly demeaning labels like “convict” and “felon” are “an unfair life sentence.”  Let us hope the message reaches newsrooms across the country, and that journalists (especially headline writers) will find another way of describing people with a criminal record. The Times also has another very fine editorial on Virginia Governor McAuliffe’s restoration of the vote to more than 200,000 individuals, pointing out that his authority under the Virginia Constitution is indisputable. A very good day for the editorial staff of the Gray Lady, whose editorial page is setting an example of enlightened thinking about criminal law issues – notably including the collateral consequences of conviction. Read more

A plea to stop labeling people who have a criminal record

On April 22, Virginia Governor Terry McAuliffe issued an executive order restoring civil rights to more than 200,000 individuals once convicted of felonies.  His courageous action is welcome and long overdue, and there are now only three states nationwide that permanently disenfranchise people based on a felony conviction.  The Governor’s press release promises new restoration orders on a regular monthly basis as additional individuals become eligible — the model followed in Iowa between 2005 and 2011, when convicted individuals were restored to the franchise under a similar executive process before it was discontinued by a Republican governor. The one sour note on an otherwise happy occasion was the pervasive use of the word “felon” in print and media accounts to describe the beneficiaries of Governor McAuliffe’s action.  This ugly stigmatizing label has been broadly criticized as counterproductive to reintegration efforts, perpetuating stereotypes about people with a criminal record and encouraging discrimination against them.  While the Governor himself was careful with his language, not a single major newspaper reporting on his action could resist including the word in its headline. It is not that hard to avoid.  For example, instead of announcing that “Virginia Governor Restores Voting Rights to Felons,” the New York Times might just as accurately have told us that “Virginia Governor Restores Voting Rights to Thousands” — and in the bargain conveyed an additional useful piece of information about the scope of the order.  Over the weekend, the Washington Post could have told us that “Governor McAuliffe’s Move on Voting Rights Upends 2017 Races,” and anyone who cared would have known exactly what was meant. The problem is not confined to headline-writers, or to journalists new to the issues.  Senior reporters at The Times used the word “felon” 37 times in two articles published on April 23. One of the articles added the meaningless prefix “ex-,” seeming to concede the problem without dealing meaningfully with it. The one bright spot at The Times — and a very bright one at that — was provided by its editorial board, which put Governor McAuliffe’s action in the larger voting rights context and avoided labels entirely, showing that where there’s a will there’s a way. On the eve of National Reentry Week, it seemed timely to reprint a piece written several years ago for The Crime Report, in an earlier (and evidently unsuccessful) effort to persuade journos of good will to stop using the term because of its negative effects in an increasingly important area of public policy.   What’s in a Name? A Lot, When the Name is “Felon” March 13, 2012 By Margaret Colgate Love At a recent conference of journalists at John Jay College, I raised an issue I have about language in the media:  the frequent use of the word “felon” to describe a person who has been convicted of a crime. One recent example, in a Washington Post story this month, is headlined: “Erhlich plans law school clinic, training program for felons seeking pardons.” “Felon” is an ugly label that confirms the debased status that accompanies conviction.  It identifies a person as belonging to a class outside many protections of the law, someone who can be freely discriminated against, someone who exists at the margins of society. In short, a “felon” is a legal outlaw and social outcast. But the word “felon” does more work than that. It arouses fear and loathing in most of us.  I confess that it arouses those visceral feelings in me.  I do not want to live or work around felons.  I do not want to socialize with them. The word “felon” conjures up images of large, scary people (men, of course) whose goal in life is to steal my things and hurt me, the staple weekend fare on MSNBC.  Affixing an “ex-” changes nothing. Felons deserve a wide berth and whatever opprobrium they get. I make a living representing people who have been convicted of a crime.  They are, for the most part, very interesting and thoughtful people who have a great deal to offer society.  In many cases, it is precisely their experience in the criminal justice system that has made them this way. So it is hard for me to think of my clients as “felons.”  And yet that is the label they must bear, in the workplace, in their communities, and in society at large.  It is an unhelpful label and in many cases it is deeply unfair.   My clients come to me because they hate the label, because they want it removed, because they think they don’t deserve it. And they are right.  They are all right. In the Middle Ages, and even in the early days of our own Republic, felony convictions were hanging affairs, and civil death statutes simply anticipated the impending corporal end.  After the Civil War, felonies expanded to include many minor property crimes (Mississippi’s infamous “pig law” is illustrative), and prosecution became a convenient way of disenfranchising and re-enslaving the recently-freed black population. In the late 20th century, the war on crime made conviction an industry, and reinforced status as punishment.  These days, you don’t have to do anything particularly evil to be condemned to what sentencing scholar Nora Demleitner has called “internal exile.” The “felon” label now applies to more than 20 million Americans. A journalist friend at the John Jay conference pointed out that “felon” is convenient shorthand, helpful for headlines, certainly evocative.   How could I argue? But labeling people as “felons” is also fundamentally at war with efforts to reduce the number of people in prison, to facilitate reentry, and to encourage those who have committed a crime, or even many crimes, to become law-abiding and productive citizens. Social liberals and fiscal conservatives alike pay lip service to the supposed American ideal of second chances. But our language, like our law, points in the opposite direction.  We have schooled ourselves to avoid other stigmatizing labels that in the past were used to distance mainstream society from ethnic and racial minorities, and those groups from each other, because we understood that labels function to distract and excuse us from the hard work of building community. The word “felon” (and for that matter other less ugly but still degrading labels like “offender,” with or without the feckless prefix “ex-“) is no less dysfunctional.   We can do better. So, my journalist friend asked, what word can we use instead?   What snappy alternative sobriquet can we give the headline writers to describe this class of people with a criminal record? Perhaps there isn’t a single word, and perhaps that is precisely the point.  We can say first that our brothers and sisters are people, then (if relevant) we can also say that they are people who have been convicted of a felony. Skilled writers can find ways to avoid using words that are toxic.  Even headline writers can be weaned from them.  Journalists play a key role in advancing the cause of social justice, and they do it through the language they use. It is time to junk the label “felon” and restock our language toolkit.   Read more

Federal fair chance hiring proposal advances

The following note was received today from the National Employment Law Project: We wanted to report back on the exciting progress in support of the federal fair chance hiring initiative, which builds on the momentum from the sign-on letter to the President that your organizations endorsed. On March 25th, representatives from NELP, All of Us or None, PICO National Network and the Southern Coalition for Social Justice met with White House and Labor Department officials to present the letter signed by nearly 200 organizations and urge immediate federal action.  The news about the sign-on letter and the White House meeting was covered in an excellent exclusive that appeared in Politico (check it out) the day of the meeting.  The sign-on letter was also featured in an op-ed by a Florida small business owner (and a member of our partners at the Main Street Alliance) in The Guardian, in an NNPA syndicated story picked up by several news outlets, as well as in a National Law Review story. In addition, thanks to the active engagement of your organizations, the social media around the initiative is also picking up steam. The Facebook image (attached) produced over 60,000 views, and it was shared by nearly 1,000 people.  During the one-hour “tweet storm” on the 25th, there were 250 unique tweets using the #FairChance or #BanTheBox hashtags (a special shout out goes to Danny Glover, whose tweet led the way with most retweets).  In just a few short months, we’re building a serious social media following thanks again to all of you. Based on the feedback we received at the meetings on the 25th, all the support from your organizations, the press and the social media is getting the Administration’s attention – they have made clear that they are taking a serious look at the proposal to issue an Executive Order and Presidential Memo to extend fair chance hiring/ban the box to federal contractors and the federal hiring process.   Now, it’s all about  continuing to build the grassroots and public pressure to move the Administration to act.  Your continued active involvement is critical to the success of the effort. On another positive note, we wanted to also share the news that Virginia Governor McAuliffe issued a strong executive order today extending fair chance hiring to all state positions (and urging the private sector to do the same).  McAuliffe’s action got the attention of Valerie Jarrett, President Obama’s Senior Advisor, who tweeted out her support using the #BantheBox hashtag.  Please take minute to retweet it as well. Thanks again everyone for all your amazing support! We’ll be in touch soon with more details and next steps. Best, Maurice Maurice Emsellem, Director Access and Opportunity Program National Employment Law Project (510) 663-5700 Read more