Category: Administrative law

Criminal records and the Obama immigration initiative

The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges. The advisory explains DAPA thus: DAPA offers benefits similar to the Deferred Action for Childhood Arrivals (DACA) program that has existed since 2012. It provides “deferred action,” which means that, even though the individual is undocumented and subject to deportation, the government agrees to “defer” any actions to remove them. While deferred action does not provide a pathway to lawful permanent resident status (a green card) or citizenship, it will allow recipients to remain in the U.S. and obtain an employment authorization document that will entitle them to work here legally. The DAPA crimes bars are similar to those under the DACA program, in making ineligible for relief anyone convicted of a felony, a “significant” misdemeanor, or three misdemeanors. But what constitutes a disqualifying felony and misdemeanor differs under the two programs. Also it is clear that juvenile dispositions and expunged convictions are not an absolute bar to DACA, but this has not yet been clarified for DAPA. (Other than these special deferred action programs, expungement has little effect in immigration proceedings.) A DAPA-disqualifying “aggravated felony” may include some misdemeanors, if a sentence of a year or more was imposed (including suspended sentences), or if it involves sexual abuse or fraud exceeding $10,000.  “Significant” misdemeanors include domestic violence, unlawful possession of a firearm, drug sales, burglary, DUI, or any case where the sentence imposed is 90 days or more (excluding suspended sentences).  Convictions or conduct relating to a “criminal street gang” as defined in 18 U.S.C. § 521(a) are also a bar to DAPA. A state crime of which immigration status is an essential element will not be disqualifying, but a federal immigration offense (such as illegal re-entry) is likely to be. The advisory suggests defense strategies to avoid a disqualifying disposition, including negotiating for pre-plea diversion or deferred sentencing, for consecutive sentences of less than 90 days each,or for a more severe non-jail sentence in exchange for a reduced charge. Counsel are advised to explore reducing a felony to a misdemeanor, where that is permitted under state law, as in California and Indiana. Multiple misdemeanor convictions arising from the same incident only count as one conviction, for purposes of the bar based on three misdemeanor convictions. The advisory contains links to a variety of other practice resources for defense attorneys representing non-citizens, including an advisory for clients potentially eligible for DACA. Read more

“Arrests as Regulation”

Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the same kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access. Here is the abstract: For some arrested individuals, the most important consequences of their arrest arise outside the criminal justice system. Arrests alone — regardless of whether they result in conviction — can lead to a range of consequences, including deportation, eviction, license suspension, custody disruption, or adverse employment actions. But even as courts, scholars, and others have drawn needed attention to the civil consequences of criminal convictions, they have paid relatively little attention to the consequences of arrests in their own right. This Article aims to fill that gap by providing an account of how arrests are systemically used outside the criminal justice system. Noncriminal justice actors who rely on arrests — such as immigration enforcement officials, public housing authorities, employers and licensing authorities, child protective service providers, among others — routinely receive and use arrest information for their own objectives. They do so not because arrests are the best regulatory tools, but because they regard arrests as proxies for information they value, and because arrests are often easy and inexpensive to access.     But when noncriminal justice actors rely on arrests, they set off a complicated and poorly understood web of interactions with the criminal justice system. Regulatory bodies and others that make decisions based on arrests can coordinate and pool resources with prosecutors and police officers, achieving a level of enforcement that neither could achieve alone, or they can make decisions that undermine important aspects of the criminal justice process. This Article maps different regulatory interactions based on arrests, and illustrates the need for greater oversight over how arrests are used and disseminated outside the criminal justice system. Jain shows how immigration officials use arrests to expand the reach of interior enforcement efforts through the efforts of state and local law enforcement, public housing officials rely on arrests to identify existing tenants who are potentially in breach of their lease, and employers and professional licensing authorities use arrest information to monitor off-duty workers.  Some employers suspend or terminate at-will employees based on the arrest. Many employers are automatically notified by law enforcement agencies whenever an employee is arrested.  (In New York this includes home health care workers, security guards, and taxi drivers.)  Because neither the arresting officer nor the jail has a role in initiating the notification, the arrested individual will not be informed of the notification at the time of arrest.  Until 2006, New York City taxi drivers, for example, were automatically suspended for a wide range of arrests, including misdemeanor welfare fraud or forgery.  (The New York taxi litigation, Nnebe v. Daus, is the subject of a recent post.)  As a matter of due process, a licensee may be entitled to a hearing before a license is revoked, but not before an unpaid period during which the license is suspended. Notice of arrests is also frequently mandated in the child welfare and education contexts. Jain  makes the case that use of arrests to grant or deny benefits has a number of negative systemic consequences: In a variety of settings, noncriminal actors rely on arrests as a means of achieving their own regulatory agendas. This use of arrests can serve important societal interests. But it can come at a significant cost. It can magnify the effect of unwise or unjustified policing and arrest decisions. Across a number of settings, arrests are an overbroad and imperfect proxy for the information that noncriminal justice actors value. This fact, combined with inadequate oversight and a lack of transparency in how arrest information is used, can create serious consequences for arrested individuals – ones that far outstrip any penalty imposed by the criminal justice system. Moreover, when actors outside the criminal justice system rely on arrests, one potential effect is to expand the enforcement powers of both actors.  In delegating front-end screening discretion to individual police officers, they magnify the effects of underlying and problematic police practices based on racial profiling.  Noncriminal justice actors may also work against certain criminal law enforcement goals —such as when they deport, evict, or terminate individuals after a demonstrably unlawful arrest. These consequences can undermine the aims of prosecutors and police who seek to encourage witnesses to come forward and report crime. Jain has little faith that the exercise of administrative discretion in civil settings can place appropriate limits on the power of police to tag people in ways that are counterproductive to a healthy social order.  Noncriminal justice actors who rely on arrests are driven by their own organizational priorities, and they take an instrumental view of arrests that is at odds with the principle that an arrest alone is not indicative of guilt. Jain argues that a more reliable way of introducing transparency and procedural fairness in the use of arrest information is through restrictions on sharing and storing of arrest information. Prompt and automatic expungement of arrest records that do not result in charges is one important step, so that they are available going forward only to law enforcement.  She also proposes that a third party (“one that is not committed to either the goals of criminal law enforcement actors or to the interests of the noncriminal actor”) may be in the best position to systemically evaluate considerations such as “whether the underlying arrest information is accurate, whether it provides a meaningful informational proxy, whether it disproportionately affects certain groups, whether the evaluation process is fair and transparent, and whether the use of arrests has undesirable or unintended public policy consequences.”  It is not clear what such a third party might look like, although Massachusetts’ Criminal Offender Records Information (CORI) system performs such a function, at least on paper.  Through CORI, Massachusetts regulates dissemination of criminal history information to non-justice actors, ensuring both accuracy and appropriate restrictions on dissemination. We agree with Jain that it is high time to start talking about “how arrests regulate individuals outside the criminal justice sphere, and to evaluate when and whether it is appropriate to allow an individual police officer’s decision to arrest to do so much work.” Read more

Indiana’s new expungement law the product of “many, many compromises”

In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country.  Under the new law, courts are empowered to “expunge” most criminal records, after waiting periods keyed to the seriousness of the offense.  The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere.  This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation. We recently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states.  Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation.  But in an age of bipartisan support for criminal justice reform, apparently anything can happen.   Rep. McMillin told us how he was able to persuade his colleagues in the legislature by careful groundwork, and overcome opposition from prosecutors and courts by making what he described as “many, many compromises.” One of the most important of those compromises was limiting use of criminal records rather than limiting public access to them, at least in the case of more serious offenses. Before letting Rep. McMillan describe in his own words how he secured passage of this relief scheme, here is a brief description of the law’s most salient features. (A more detailed description can be found here.)     All criminal records (except convictions involving serious violence, public corruption, and sexual offenses) are eligible for expungement from the court of conviction, after waiting periods ranging from one year (for non-conviction records) to ten years (for the most serious eligible felonies). After the court has issued an expungement order, records not resulting in conviction and records of misdemeanors and minor felonies are automatically sealed.  After a record is sealed, even a prosecutor may not access it without a court order. Expunged records of more serious convictions “remain public,” although they must be “clearly and visibly marked or identified as being expunged.”  However, all expungement orders similarly limit the use to which a criminal record can be put, as described below. Expungement may be granted by the court without a hearing unless the prosecutor objects.  Those filing for expungement of a conviction must pay the filing fees required for filing a civil action ($141), and this requirement may not be waived. Defendants are not permitted to waive the right to seek expungement as part of a plea agreement. A petitioner may seek to expunge more than one conviction at the same time, but may be granted expungement only once in his or her lifetime. If the first petition fails, there is a three-year waiting period before a person may reapply, and the only convictions expungeable are those in the original petition. It is unlawful discrimination for any person to refuse to employ or license a person because of a conviction or arrest record that has been expunged or sealed, and a person may not be questioned about a previous criminal record except in terms that exclude expunged convictions or arrests. Expunged convictions are not admissible as evidence of negligence in a civil action against a person who relied on the expungement order, and they may not be reported by credit reporting companies. The Attorney General may enforce the provisions relating to credit reporting companies through injunction and fines, and a private individual injured by a violation of these sections may recover damages, court costs and attorney fees. The Indiana courts have published a detailed explanation of the law and sample petitions for expungement that are tailored to the particular categories of eligible cases, to enable a person to seeking expungement without hiring a lawyer. * * * * * * * * * Here is our interview with Rep. McMillin: How did you get interested in the subject of criminal records? As a former prosecutor, and now someone who does some criminal defense work while serving in the legislature, I think I have seen the justice system from several sides.  Also, as a fiscal conservative it just makes practical sense to me that when somebody has served their court-imposed sentence there has to be a pathway back into society for them. Without this, we can’t expect them to become productive members of society.  The Indiana Constitution requires our criminal justice system to be based upon the principles of reformation and not vindication. I firmly believe that our expungement law moves substantially in that direction. How did you build support for the concept of expungement among your colleagues in the legislature? This was a process that played out over several years.  We proceeded in incremental steps, building on existing law and gaining supporters from various constituencies. We started by expanding an existing provision of the Indiana code that allowed courts to reduce a minor felony to a misdemeanor upon completion of the sentence, to allow people to come back after a waiting period to get the felony reduced, as long as they had no further charges.  I thought if I could just start the conversation with a simple bill that did not involve more serious offenses I would be able to get people to see how detrimental having a felony conviction can be for someone who wants to get back into the work force.  I took a practical approach, and was able to persuade some of my fiscally conservative colleagues that there can be economic benefits through the reduction of recidivism.  After getting that initial language enacted I came back the next session to work on full expungement, and found that there was support on both sides of the aisle as many people were able to see the benefits. There were those who had general objections to the legislation, some for ideological reasons, some for practical reasons, but we were able to overcome all of them with solid logic when it came to debating this issue.  We were even able to win over some of the prosecutors, enough that the opposition of the holdouts didn’t derail the legislation’s chances.  One of the most effective supporters was the Indianapolis Chamber of Commerce, which helped me convince people that expungement could be beneficial to business owners and economy as a whole. Obviously there were a lot of compromises we had to make, and it’s not hard to see what some of them were, like the lifetime limit to one expungement, the prohibition on seeking expungement of offenses committed after a petition has been denied, and the filing fee that is hefty for many.  Certain violent and sexual offenses had to be excluded from coverage or it would have torpedoed the effort before we got it off the ground. It was sometimes difficult to give up some things just to get the bill passed, while still ending up with a law that actually made a difference. We were able to resist several offers to compromise that would have simply gutted the bill.  We had to keep our eye on the core purposes of the legislation, which are to restore rights and give people a fair chance in the workplace and elsewhere.  We will see how the law works.  If some of the compromises we made need to be revisited, we can do that.  In fact, in the 2014 session we made quite a number of reasonably minor adjustments in the law, notably to permit more government entities including licensing agencies access to sealed records. How were you able to defuse opposition from the prosecutors? Because I anticipated the prosecutors would be the main opponents, I reached out to them early in the process, and worked with the ones who were willing to consider the concept. Here again I took a practical view, asking if they really wanted people they had prosecuted to return to the system, or whether they wanted them to succeed.  I had to persuade them that expunging a record did not reflect badly on the prosecution or create problems for law enforcement.  While their ideas were substantially different than mine, I felt it was important to incorporate many of them, and so we were able to reach a middle ground. That is how we came to have a multi-tiered system, with limits on sealing for more serious offenses, a role for prosecutors in the expungement process, the possibility of unsealing in the event of a new crime, and a lifetime limit of one expungement.   This is not to say that prosecutors across Indiana ended up supporting expungement. In fact many of them remain its most ardent opponents. However, asking for their input early and making them a part of the process instead of a constant and united opponent was instrumental in getting the job done. What about other sources of opposition or support? Many judges objected and some of the clerks were opposed to the additional work that the legislation would make for them.  The credit reporting companies were also not happy but they did not mount any substantial resistance.  As noted, the business community was surprisingly supportive.  Many employers liked the protections afforded them in the bill — including not being held responsible for information there were not permitted to have.  Governor Pence was a supporter from the beginning.  Early in his term he adopted a slogan that “Indiana should be the worst place to commit a crime, but the best place to get a second chance.” This slogan fit perfectly into the concept of this legislation. How has the law been working in its first year? Once the law was passed, the courts took a proactive role in carrying out their new responsibilities.  They took it upon themselves to develop a variety of forms for different kinds of cases, and publish them on a website so that people could apply for expungement without the need to hire a lawyer.   Legal services organizations have been spreading the word around the state, and are helping to clarify what appears to have been some initial confusion because of the law’s complexity.  There have been a few kinks, and as I said we have already passed several bills to make slight adjustments mostly of a procedural nature.  I anticipate that there will more a few more tweaks this year.  Thankfully the concept has been received wonderfully by the public so making the changes at this point is relatively easy and meets little resistance. Why is the relief called “expungement” if many records remain open to the public? I get this question frequently, and yes I agree it is a bit confusing to use a term that ordinarily implies some limits on access.  The original concept was that an expungement order would seal all records except for law enforcement purposes.  But that was not an approach that I could sell, in or out of the legislature, especially for more serious offenses.  As the bill ended up with tiered approaches, there really was not a single term that fit the whole — and as we studied what other states do, I am not even sure the term “expungement” has a single meaning. Also, even if a record is actually destroyed, it may be impossible to ever remove all evidence of it.   In the end, I was convinced that “expungement” was the best term to use to ensure that people who need relief would take advantage of it.  There’s no doubt that most people believe that you only get a second chance if your record is clear in a literal sense.  But even where a record is sealed, our law does not permit people to deny that they were arrested or convicted; rather, they cannot be asked about a record that has been expunged.  In this way we were able to reconcile keeping the record open with the core concept of restoring rights.  By limiting the use of a record we hope to clear away the cloud that these individuals have been living under. What advice do you have for legislators in other states and for advocates who want to try to develop a comprehensive scheme like Indiana’s? To begin with, to pass a bill like this you have to have someone in a leadership role who really understands the inside and out of the criminal justice system, and who is willing to live and breathe this concept through the entire legislative process and see it all the way through to completion. You have to start the conversation very early, and learn patience. It takes a long time to convince people who may only have a passing interest (or no real interest at all) in something like this, and no personal experience with the justice system, to understand why it is a good idea and why they should take the perceived risk of supporting this concept. In the political world it is very easy for those who oppose this concept to get their hooks into legislators early by telling them that this is “soft on crime” and that it will damage them politically to support it. In order to combat this I think it is necessary for the legislator who is carrying the bill to spend one-on-one time sitting down with other legislators. While advocates are important and certainly should be recruited, I find that nothing is as persuasive as the legislators themselves discussing the concept.  The other really important thing is to secure the support of the business community.   You should also find examples of individuals who have been battling for years if not decades to be successful in society while carrying the weight of a criminal record. Their anecdotal testimony can be extremely powerful. I also recommend reaching out to those you anticipate will oppose the bill and asking them to help with the bill. If they are not on the inside helping they will be on the outside opposing. Even if the “help” they are giving is not always consistent with the concept you are trying to advance, you are still much better off having those people working with you on developing language than trying to kill any language that you come up with. It is helpful to defuse opposition if you couch the conversation in terms of the social and economic benefit to society rather than always talking about the benefit to the individuals who might seek expungement. It is very important to make people see that while our human compassion should want to give people a second chance, our duty is to be fiscally responsible to our constituents, and that for numerous reasons (recidivism, costs of incarceration, costs of providing welfare, public safety, etc.) this concept is the right one for all of our constituents. In the end, you really do have to be willing to compromise, recognizing that if you get the key concepts enacted you can always come back later and change the details.     Read more

Federal agencies reportedly (mostly) satisfied with their collateral consequences

In 2013, the Justice Department launched its Smart on Crime Initiative, which included a call for federal agencies to review collateral consequences in their own rules and policies, to determine which could be narrowed or amended without jeopardizing public safety. According to an NPR report, the results of that long-anticipated review are now in: Amy Solomon was appointed by Attorney General Holder to oversee the twenty federal agencies charged with reviewing their regulations and policies for potential changes. She reports that hundreds of regulations were reviewed, but the vast majority were deemed “appropriately tailored for their purposes,” including HUD’s discretionary housing policies. So far, only three agencies have submitted changes. In assessing the “appropriately tailored” conclusion in the context of HUD housing policies, NPR reporter Monica Haywood tells the story of Maurice Alexander, a 67-year-old man who was turned away from subsidized housing in the District of Columbia based on a six-year-old misdemeanor threat conviction, despite guidance from HUD encouraging property owners and agents “to develop policies and procedures that allow ex-offenders to rejoin the community.” The HUD guidance urges property owners to consider all relevant information when reviewing applications from people with a criminal record, including evidence of rehabilitation and “probability of favorable future conduct.” Haywood concludes that, “If Alexander’s case is any indication, owners may not be taking HUD’s advice.” The D.C. Housing Authority determined that he was eligible for three properties in his area, but he received three rejection letters, each specifically citing his criminal record as the reason he was denied.  As a result, his plans to move into subsidized housing were derailed, and he became homeless. Even with help from the Legal Aid Society of the District of Columbia, he wasn’t able to find housing until November, nearly seven months later. The problem is that when even when decision-makers have discretion “to review case-specific mitigating circumstances, such as how long ago the crime was committed, and how the offender has behaved since,” in practice they generally prefer not to take a risk.  The result is categorical rejection based upon status alone.  If challenged, an agency may relent in a particular case, but continue to enforce the “just say no” rule in all others. It now appears that most federal agencies are willing to go along with this result where their own regulations and policies are concerned. In considering what might be done to put some teeth into his exhortation to federal agencies to ensure that people with a criminal record are treated fairly, the Attorney General might consider what Colorado has recently done to ensure agency accountability. Under a law enacted in 2013, Colorado licensing agencies must now report in a public hearing on whether collateral consequences in their regulations and policies “serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104(9)(b)(VIII.5).  To assist the legislature in determining agency compliance, the department of regulatory agencies is required to prepare an analysis for each agency that includes “data on the number of licenses or certifications that were denied, revoked, or suspended based on a disqualification and the basis for the disqualification.” Id.  Any proposal to regulate a new profession or occupation must evaluate any proposed disqualification based on criminal record by these same standards.  Colo. Rev. Stat. §§ 24-34-104.1(2)(f), (4)(b)(IV).  Colorado backs up its new procedures with a general anti-discrimination law that governs consideration of conviction in most licensed professions.  See Colo. Rev. Stat. § 24-5-101(1)(a). Colorado is not the only state that polices its agencies, holding them to account for their treatment of people with a criminal record with evidence-based practices.  Many states include provisions in their administrative codes that compel fair consideration of conviction, and provide for the enforcement of these provisions through the courts.  See 50-state chart here.  It is unfortunate that the federal government does not.  Absent the kind of transparency and data-driven accountability that Colorado has introduced into its regulatory scheme, the default rule will inevitably be rejection. Read more