Category: Civil practice

50-state survey of relief from sex offender registration

We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law.  This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,” discussed on this site on April 15.  The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary.  But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves. We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals. It is risky to try to generalize about the results of our study,  However, we found that registration laws seem to fall into three general categories: 18 states provide a single indefinite or lifetime registration period for all sex offenses, but a substantial portion of these allow those convicted of less serious offenses to return to court after a specified period of time to seek removal; 19 states and the District of Columbia have a two-tier registration system, which requires serious offenders and recidivists to register for life but automatically excuses those convicted of misdemeanors and other less serious offenses from the obligation to register after a specified period of time, typically 10 years; 13 states and the federal system have a three-tier system, requiring Tier III offenders to register for life, and Tier I and Tier II offenders to register for a term of years, generally 15 and 25 years. Most states require recidivists to register for life.  About half the states have shorter terms or special termination provisions for juveniles.  Successful completion of deferred adjudication avoids registration in many states. Most of the states that authorize discretionary relief after a period of years specify the criteria that are to be considered by courts, and require that there be no intervening convictions of any kind. A number of states give specific effect to executive pardon, and a few others specify that a pardon must be for innocence before it will relieve registration.  Many states make no mention of pardon as a relief mechanism, but it is at least arguable that a full and unconditional pardon would relieve the obligation to register as well as other collateral consequences.  A number of states specify that general expungement or sealing provisions have no effect on the obligation to register.  However, as noted, deferred adjudication schemes may avoid registration in many states. Most states provide the same relief to those whose obligation to register derives from out-of-state convictions, but a few refer to require them to return to their jurisdiction of conviction for relief. You can view the chart here, and find it with the other 50 state charts on the Restoration of Rights page. We welcome feedback, both from those familiar with a particular state’s laws and from those who simply have questions about particular aspects of the chart.  Please send your comments to joshgaines@gmail.com. Read more

“Preventing Background Screeners from Reporting Expunged Criminal Cases”

In an article published this week by the Shriver Center, Preventing Background Screeners from Reporting Expunged Criminal Cases, Sharon Dietrich offers helpful advice for advocates on to how to combat the problem posed by the reporting of expunged and sealed criminal records by private commercial background screening services. Her advice is based partly on her own organization’s participation in litigation under the federal Fair Credit Reporting Act (“FCRA”) against one of the country’s larger background screeners — an experience that she recounts in detail. Dietrich identifies the problem of improper private reporting of expunged records as one that “threatens to undermine the whole strategy of broadening expungement as a remedy for the harm of collateral consequences.” She describes the underlying issue as follows:  [T]he commercial background-screening industry, which runs the lion’s share of the background checks obtained by employers and landlords, sometimes reports those expunged cases long after they have been removed from the public record. Companies in the background-screening industry typically maintain their own privately held databases of criminal cases from which they generate background checks. When updating their data from public sources (often state courts), these screeners often do not use methods to determine whether cases that were reported by their sources have been removed (i.e., expunged or sealed), and they continue to report them. Dietrich encourages advocates and their clients to be proactive about keeping their expunged records out of public hands by obtaining copies of their files from the larger background screeners (they are required to share them by law) and by reporting expungements directly to screeners. She also encourages advocates to pressure entities that sell criminal records, like the courts, to regularly provide buyers with expungment data and to require buyers to regularly remove expunged records from their databases. If expunged records are still being reported or have already been reported, Dietrich encourages considering litigation under the Fair Credit Reporting Act, which requires background screeners to follow “reasonable procedures” to ensure the accuracy of the records they report (“strict procedures” in the employment context). For a client who has sustained lost wages or other damages because of the reporting of an expunged or sealed case, litigation under the Fair Credit Reporting Act should bring relief. Individual cases are not overly complicated and have some deterrent effect if the client recovers a monetary award. Dietrich’s recounting of the litigation in Giddiens v. LexisNexis — in which her own organization, Community Legal Services of Philadelphia, brought a class action suit against LexisNexis under FCRA after it was discovered that one of CLS’s expungement clients had been denied employment based on a record that was expunged nearly 2 years earlier — offers a practical perspective on the choices, challenges, and outcomes that may be expected in large-scale FCRA litigation, as well as a look at how criminal data is obtained and shared by commercial providers. The case eventually settled and LexisNexis agreed to change its practices and to make cash payments to 300 identified class members. Dietrich’s reflection of the pros and cons of the litigation strategy and its outcome are particularly insightful. Sharon Dietrich’s full article is available at this link.  Registration with the Shriver Center website is required to view the article, but it is fast and free. NOTE: Last month, Community Legal Services filed a similar class action FCRA lawsuit in the Eastern District of Pennsylvania against commercial screener Realpage, Inc., alleging improper reporting of expunged convictions to landlords.  The complaint in that case can be viewed here. Read more

Putting teeth in Heller’s promise for people with a conviction: Second Amendment litigation round-up

Author, Alan Gura, describes in this post recent efforts to persuade federal courts that people who have lost their firearms rights by virtue of a criminal conviction may be entitled to claim the protections of the Second Amendment.  Alan himself has spearheaded this litigation for the Second Amendment Foundation, following up his Supreme Court victories in D.C. v. Heller and McDonald v. Chicago.   While successes have to date involved civil rights actions in behalf of people with dated non-violent convictions, these precedents may eventually find their way into felon-in-possession and related prosecutions. They also may portend, like the cases invalidating retroactive registration requirements, a greater willingness by courts to limit the scope of categorical collateral consequences that are considered unreasonable and unfair. Ed. *** When Congress enacted the federal Gun Control Act of 1968, with its broad provisions for the disarmament of potentially dangerous people, the Second Amendment laid dormant. Courts paid the Second Amendment cursory attention, considering the provision only when rubber-stamping it with an erroneous, unexamined “collective right” interpretation that rendered the right to arms a nullity. Some of the Gun Control Act’s Congressional sponsors were happy to parrot that view. S. Rep. 89-1866 at 68 (1966) (individual views). But Congress understood that the Act ensnared many people whose disarmament could not be justified as beneficial to society or basically just. As the title of a leading article on the subject asks, “Why Can’t Martha Stewart Have a Gun?” The task of ferreting out the hard luck and irrational cases fell to the Executive Branch, which would evaluate individual applications for relief based on personal circumstances, with unsuccessful applicants having recourse to judicial relief. 18 U.S.C. § 925(c). This process more or less worked, for many years, until anti-gun rights forces in Congress defunded the program in the mid-1990s. With the Government unable to print or process applications for relief, a growing number of people convicted of non-violent, sometimes not terribly egregious crimes found themselves forever prohibited from touching firearms. While some states provided an alternative relief process, many did not, and federal offenders could only pray for a presidential pardon to restore their rights. This injustice is nearing its end. In 2008, the Supreme Court clarified that people have an individual right to keep and bear arms. The rational basis test for gun restrictions went out the window. In came a burden on the Government to actually prove, and not merely assert, that each law restricting access to firearms is consistent with a fundamental constitutional right retained by the people. Categorical prohibitions leveled at people convicted of crimes, including the so-called “felon in possession” ban (though it also reaches many misdemeanants), could be upheld in a general sense. But most courts have now realized, just as Congress did in enacting the federal gun control scheme, that the traditional grounds for denying individuals the means of self-defense—dangerousness, untrustworthiness, a serious risk of unlawful violence—are not going to be satisfied when someone lies about having sold Imclone at 60 on insider information, or is convicted of “felony fishing without a license,” or has pled guilty to any misdemeanor that might be punished by over two years in jail (the alleged standard often employed by courts enforcing the “felon in possession” ban). Most of the early cases arose, as Second Amendment cases often do, in the criminal context. Courts had no trouble telling plainly dangerous criminals charged with being felons in possession that the Framers did not have them in mind when ratifying the Second Amendment, but were usually careful to leave the door open, as Congress did in enacting Section 925(c), for people who once erred but are not a threat today, if they ever were. For these individuals, one leading federal appellate case set the task as follows: To raise a successful as-applied challenge, [an individual] 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. United States v. Barton, 633 F.3d 168, 174 (3d Cir. 2011). The nation’s leading sponsor of landmark gun rights litigation, the Second Amendment Foundation, has tasked me with making full use of this avenue for relief. We are carefully selecting deserving cases to put some teeth behind Heller’s promise, and demonstrate the absurdity of the Government’s shotgun-approach to firearms disabilities. In light of the Supreme Court’s renewed interest in the constitutional avoidance doctrine, some of our cases also challenge the overly-aggressive statutory interpretation of the federal prohibition with which courts have become unfortunately comfortable. There is, after all, no question that the constitutional questions raised by disarming plainly non-threatening individuals are significant. The early results are promising. We’re two for two in Pennsylvania. Suarez v. Holder, No. 14-968-WWC, 2015 U.S. Dist. LEXIS 19378 (M.D. Pa. Feb. 18, 2015); Binderup v. Holder, No. 13-6750-JKG, 2014 U.S. Dist. LEXIS 135110 (E.D. Pa., Sept. 25, 2014). Julio Suarez, a decorated Army veteran, holder of a security clearance, and elder in his church, faced a lifetime prohibition of Second Amendment rights owing to a quarter-century old Maryland misdemeanor conviction for carrying a handgun without a license. Suarez can’t recidivate—his state doesn’t require a license to carry a handgun, and he’s eligible for a license to carry a handgun concealed. But the government claimed that the bad facts of his 1990 arrest—Suarez had a .12 BAC at the time he was stopped (though not convicted of DUI or any other traffic offense)—meant that he should continue to lose his fundamental rights today. Daniel Binderup’s only offense was a misdemeanor charge for “corruption of minors,” stemming from a long ago consensual affair with an employee just shy of her 18th birthday. Obviously, nobody approves of that conduct—including the state of Pennsylvania, which does not consider him a sex offender and has long ago restored his gun rights (Binderup received a sentence of probation), and Binderup’s wife, who forgave him. The couple has now been married for over 40 years, and has raised two wonderful kids. Like Suarez, Binderup is a stable and productive member of society. The judges in both cases saw nothing that would indicate either gentleman poses any sort of firearms threat beyond that posed by any other law-abiding, responsible citizen. The Government has appealed its loss in Binderup, and we expect it to do the same in Suarez. In both cases, the Government fails to comprehend what an “as applied” challenge means, citing piles of statistics for the proposition that anyone convicted of a crime, without exception, might recidivate. Its briefing extends the argument even to non-violent property offenses. But so what? Binderup and Suarez’s offenses didn’t involve the threat of force. And even if they had, neither of these individuals are likely to recidivate. If generalized recidivism studies can defeat Binderup and Suarez’s cases, then they can defeat all as-applied challenges, effectively overruling Barton and the growing list of appellate precedents confirming real limits on the scope of categorical prohibitions. The weakness of the Government’s claims is underscored by its resort, at least in Binderup’s case, to argument by ad hominem. I won’t repeat here some of the names the Government called my client in the briefing, but the district court was decidedly unimpressed by that approach, and I don’t believe that the court of appeals will like it any better. Moral disapproval is to be expected when one transgresses the law, but it does not suffice to permanently deprive people of their fundamental rights. Of course, the ultimate solution is for Congress to re-fund Section 925(c)’s administrative relief program. Doing so would not entirely eliminate the Second Amendment cause of action, but it would prevent an onslaught of constitutional challenges that the Government cannot possibly defend. The judiciary, and the civil rights bar, will be sure to drive home this point as frequently as necessary in the immediate future. *** About the Author: Alan Gura practices in the areas of civil and appellate litigation, and civil rights law at Gura & Possessky in Alexandria, Virginia. He successfully argued two landmark constitutional cases before the U.S. Supreme Court, D.C. v. Heller and McDonald v. Chicago, and is currently spearheading efforts to persuade federal courts that people with a criminal conviction may be entitled to claim the protections of the Second Amendment. Read more

Ohio certificates remove mandatory bars to jobs and licenses

February 2, 2013 was an historic day in Ohio. The Ohio legislature added a new judicial restoration mechanism: the Certificate of Qualification for Employment (CQE). The CQE, contained in Ohio Rev. Code §2953.25, provides new hope to the 1 in 6 Ohioans who have a criminal conviction and as a result are ineligible for certain jobs and licenses because of a mandatory collateral sanction (of which there are many in Ohio law).  To date 242 Ohioans have received a CQE, and more are expected to apply when word gets around that this relief is available. The legal effect of a CQE is to lift mandatory collateral consequences that operate as a bar to employment or professional licensing under Ohio law:  [A CEQ] lifts the automatic bar of a collateral sanction, and a decision-maker may consider on a case-by-case basis whether to grant or deny the issuance or restoration of an occupational license or an employment opportunity, notwithstanding the individual’s possession of the certificate. Any Ohio resident with a conviction under Ohio law may apply for the CQE one year after completing their sentence for a felony, or after six months for a misdemeanor.  Those who were subject to the supervision of the state correctional system must submit an online application to the Ohio Department of Rehabilitation and Correction (DRC). If the petition passes the DRC review – for completeness only — the applicant then files it in the Ohio common pleas court in the county of his or her residence. One shortcoming in the bill is that Ohio residents with out-of-state or federal convictions are ineligible to apply for a certificate, though they are exposed to the same collateral sanctions, nor are people with Ohio convictions who don’t reside in the state. See § 2953.25(A)(6)(defining “offense” as “any felony or misdemeanor under the laws of this state”) and § 2953.25(B)(5) (petition shall be filed in “the court of common pleas of the county in which the individual resides,” and court shall notify “the prosecuting attorney of the county in which the individual resides that the individual has filed the petition”).  We hope this shortcoming will be fixed in the coming legislative session.  (We note that Ohio’s sealing statutes somewhat anomalously apply to out-of-state and federal convictions. Like most judicial restoration statutes, the CQE statute requires the court to make certain findings of fact after a thorough background investigation.  The standard for issuing a certificate is whether the individual has established by a preponderance of the evidence that (a) granting the petition will materially assist in obtaining employment or occupational licensing; (b) the individual has a substantial need for the relief in order to live a law-abiding life; and (c) granting the petition would not pose an unreasonable risk to the safety of the public or any individual.   Ohio Rev. Code Ann. § 2953.25(C)(3).  The certificate is “presumptively revoked” if the individual is convicted of or pleads guilty to a felony offense committed after issuance of the certificate.  § 2953.25(H). The court where the application is filed must notify the court where the conviction occurred that the applicant has filed a request for a CQE, and must also notify the prosecutor and the victims and seek their views.  The application process is explained in greater detail here. Why would a CQE make an applicant more attractive to an employer?  There are two reasons:  first, the statute protects an employer from a negligent hiring claim if the CQE recipient, after being hired, demonstrates dangerousness or commits a felony.  Second, a CQE issued by the court may reassure the employer that the applicant has been fully investigated by a court.  Finally, a certificate may give the employer a measure of protection from bad publicity. The CQE remedy offers hope to so many Ohioans whose only available remedy to avoid mandatory employment-related penalties resulting from their conviction was a pardon. But it is not an easy process. The CQE applicant must complete a 16 page online application. It can be a daunting process for those applicants with limited education or even access to a computer. Enter the University of Akron School of Law and its Reentry Clinic. Started in March 2008, the Reentry Clinic offers assistance with judicial sealings and gubernatorial pardons. In June 2013, the clinic expanded its program to include helping clients with the CQE application process. Once a month, the law school holds a free clinic for individuals interested in applying for a CQE.  Staffed by volunteer law students, the CQE clinic assists applicants with completing and submitting the online application. It also offers follow-up assistance to those attendees who need help printing and filing their applications. Since the first CQE clinic in June 2013, over 1000 clients have come to the clinic. Volunteers have completed 391 CQE applications, and many of these have received CQEs. The law school is expanding its CQE clinic other parts of Ohio, thanks to a grant from the Ohio State Bar Foundation, and will replicate the Akron model in Cleveland, Youngstown, Toledo and Columbus. It will collaborate with Towards Employment, the Youngstown mayor’s office, the University of Toledo Law School and Capital University Law School to hold the clinics in each city. The grant also provides funding to educate Ohio employers about the benefits of the CQE, and funds a survey of CQE recipients to gauge the success of the CQE. The law school has already begun the survey, and reports from a small sample of CQE applicants are positive. Half of those surveyed reported that the CQE had assisted them with either getting a job or improving their position with their current employer. Stay tuned for more reports from Ohio on this exciting new remedy. For more information about the CQE clinic, you may visit the clinic website, or contact Professor Joann Sahl, jsahl1@uakron.edu.     Read more

Expungement resources now online from Papillon Foundation

Most people with a criminal record have a general understanding of the value of expunging or sealing their criminal records.  However, figuring out how to actually obtain such relief in a particular jurisdiction, and understanding its specific effects, is not so easy.  The Papillon Foundation aims to change that by offering practical internet-based information about the process for obtaining expungement and sealing in all 50 states. We spoke with the Foundation’s founder Alan Courtney not long ago to find out more about how the Foundation helps people clean up their record and take charge of their past.    Prior to 2008, Alan Courtney was an California attorney. As a specialist in transactional law, he had no particular experience with the obstacles faced by those trying to rebuild their lives after a criminal conviction. That all changed in 2008 when Courtney found himself behind bars for a white-collar felony conviction. There, Courtney witnessed firsthand how difficult overcoming those obstacles can be and how hopeless the prospects of those faced with them can seem. He recalls: Over and over again, inmates would tell stories of how they could not get a job, could not go to school, could not get housing, could not provide for their families, and how their lives were doomed.  Family members spoke of the harshness and severity of not only the prison, but life after. Upon his release in 2011, Courtney was faced with some of the challenges he had heard so much about from his fellow inmates.   No longer able to practice law, he decided to devote much of his time to helping others overcome the barriers to reentry. The Foundation, a non-profit organization founded by Courtney and his wife, was the result of those efforts.  Its primary mission is to provide free information to help individuals expunge or seal their criminal records and mitigate the collateral consequences that accompany them.  As expressed on its website, the Foundation’s goal is to “create a compassionate opportunity for people who want to clean up their criminal record for a fresh beginning.” To Courtney, offering those of limited means the tools and materials they need to seek relief on their own is essential to fostering hope in the face of the uncertainty posed by reentry. The Foundation’s name reflects this sentiment: “Papillon” is the name of the titular character in the 1973 film that depicts a man’s unshakable will to survive while incarcerated in a hellish French prison colony. The Foundation’s presence is largely virtual, the cornerstone of the organization being its expansive website that provides a wealth of practical information about record-sealing in all U.S. states and territories, as well as many foreign jurisdictions. For those looking to leave their criminal histories in the past, the site’s go-to pages are the easy to understand summaries of each state’s relief mechanisms and eligibility standards. These summaries are supplemented by a long list of links to official instructions, forms, and statutes as well as links to state-specific how-to guides and contact information for legal aid organizations. To provide an example of the exhaustiveness of these resources, the California page contains 13 links to expungement self-help guides, 41 links to county-specific forms and instructions, 21 links legal aid and reentry organizations, links to official state-wide sealing and clemency forms, and instructions on how to request copies of your own record, among many other things. The site also provides “know your rights” information about private criminal record providers, contact information for advocacy resources, and a number of relevant studies and reports. To someone visiting the site for the first time, the amount of information available can be overwhelming; but if you’re looking for usable information to guide you through the expungement or sealing process, there’s a good chance you’ll find it here by digging around a bit.  Fortunately, Courtney tells us that the website will soon be updated with a new design that will make it easier for people to find the forms and instructions necessary to clear their criminal record. Courtney is careful to emphasize that the Foundation does not provide legal advice or referrals to lawyer, though the site does have a list of legal aid organizations who do restoration of rights work. The Papillon Foundation’s website is a truly impressive resource, and we will be watching its future growth and development. An obligatory word of caution, though: Our own experience maintaining the state-by-state resources posted on the CCRC has shown that keeping abreast of all of the legal developments regarding expungement, sealing, and other relief is a monumental task. This is a complex area of the law, and it is one that seems to be in a constant state of flux. As such, those interested in obtaining relief would be well-advised to seek legal advice, from a legal aid office or clean slate clinic for those of limited means, to make sure than any information from unofficial sources is accurate and up to date. Read more