Last week the RAND Corporation published its long-awaited Statistical Analysis of Presidential Pardons, commissioned in 2012 by the Bureau of Justice Statistics to determine whether the Justice Department process for deciding who to recommend for a presidential pardon is tainted with “systematic” racial bias. The RAND study appears to have been a direct response to an investigative report published jointly in December 2011 by ProPublica and the Washington Post, which concluded based on an examination of pardon cases granted and denied during the administration of George W. Bush, that race was “one of the strongest predictors of a pardon.”
Specifically, the ProPublica study concluded that “White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities” while “Blacks have had the poorest chance” of receiving a pardon.
In a 224-page statistical analysis of how pardon petitions were evaluated by the Office of the Pardon Attorney (OPA) between 2001 and 2012, the RAND researchers “[did] not find statistically significant evidence that there are racial differences in the rates at which black and white petitioners receive [favorable] pardon recommendations.” (Note that sentence commutations were not a part of the RAND study.) At the same time, there was also “no question that non-Hispanic white petitioners as a group were more likely to receive a pardon than did black petitioners.”
The apparent contradiction between these two statements can be explained by the fact that white applicants were statistically more likely to satisfy the formal standards that apply to OPA decisions about which cases to recommend for pardon, suggesting that either the formal standards need revision or the pool of applicants needs to be expanded, or both.
CCRC’s Margaret Love and David Schlussel published an op-ed in the Washington Post on Monday: “Protesting should not result in a lifelong criminal record.” The piece begins:
Sparked by the killing of George Floyd on May 25, protesters across the country have been demonstrating against police violence and racism. As of June 4, the Associated Press tallied more than 10,000 arrests during and after protests, and the number has surely increased.
Most of those arrested will almost certainly be released without charges or have their charges dropped. Others will face charges and may be convicted. Regardless of the outcome, the mere fact of an arrest will leave a person with a criminal record in most states, creating long-term barriers to employment and housing, and in other areas of daily life. Protesters should not wind up with a lifelong criminal record.
States should provide for automatic expungement of records that do not result in a conviction, particularly where the government does not even bring charges. States should also expand the availability of relief for convictions.
. . . .
Our research indicates that automatic or expedited expungement of many non-conviction records is available in 15 states, thanks to recent reforms. Thirty-three additional states expunge or seal certain non-conviction records, but only after a person completes a court or administrative process, often with restrictive eligibility requirements and burdensome procedures, including waiting periods and even contested hearings.
Ironically, in most of these states it is harder to seal the record of an uncharged arrest, which does not find its way into a court document, than to seal charges that are dismissed or acquitted.
The District of Columbia, a center of the protest movement, has one of the most restrictive record-sealing laws in the country, and certainly the most complicated. Two states, Arizona and Wisconsin, do not expunge non-conviction records at all, and there is no statutory authority to expunge federal arrest records. Most states allow some convictions to be sealed, but eligibility criteria and procedural requirements tend to be restrictive.
Fortunately, legislative trends favor automatic expungement of non-conviction and minor conviction records in a growing number of states. In the wake of the current protests, lawmakers should accelerate this process.
. . . .
Read the full op-ed here or in today’s print edition.
The Washington Post reports that the White House has directed the Office of Personnel Management (OPM) to drop its proposal to expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work. OPM’s proposal, which we described in March, would have required applicants for federal jobs and contracting work to disclose participation in pretrial diversion programs in the last 7 years.
In March, we launched our non-conviction records project, a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals. The appearance of these records in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities. Our letter opposing the OPM proposal cited our research on diversions and pointed out that while “state lawmakers, judges, and prosecutors favor diversionary dispositions in appropriate cases to help people avoid the restrictions and stigma of a conviction, OPM’s proposal disfavors them by treating them like convictions.”
We are pleased to see the administration quash this ill-advised proposal, in the face of opposition from advocates on the left and right, lawmakers from both parties, and prosecutors and public defenders. At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, the federal government should be moving to reduce the collateral consequences of diversion (as Indiana and Wisconsin did in 2018 when they prohibited licensing boards from considering arrests not resulting in conviction, or California and Nevada did in 2017 when they prohibited employers from considering an applicant’s successful completion of diversion).
While every state legislature has in some way addressed the problem of reintegration since 2012, Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade. Now is the time for federal action in support of reintegration, as the withdrawal of the OPM proposal evidently recognizes.
The title of this post is the Washington Post’s “Fact Checker’s” assessment of a statement in Justice Alito’s concurrence in Packingham v. North Carolina about the recidivism rates of sex offenders. We reprint excerpts because of the importance of the issue to the Supreme Court’s collateral consequences jurisprudence:
“Repeat sex offenders pose an especially grave risk to children. ‘When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.’”
–Supreme Court Justice Samuel A. Alito Jr., concurring opinion in Packingham v. North Carolina, June 19, 2017
. . . . .
The Fact Checker normally doesn’t fact-check Supreme Court justices, and we certainly do not fact-check opinions. But the topic of sex offender recidivism is worth clarifying because it is often misconstrued, so we found Alito’s claim newsworthy. And this specific claim is an assertion of fact, rather than the justices’ actual opinion.
What do the data show?