Category: Civil practice

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

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

Discipline for schoolgirls differs by race and skin tone

The New York Times this morning describes data from the U.S. Department of Education’s Office for Civil Rights showing that African-American girls tend to face more serious school discipline than white girls.  “For all the attention placed on problems that black boys face in terms of school discipline and criminal justice, there is increasing focus on the way those issues affect black girls as well.”  Black girls who get in trouble at school are also more frequently referred to the criminal justice system, where they can incur a criminal record that sticks with them into adulthood. The article tells the story of 12-year-old Mikia, who was charged with a crime after she and a friend wrote graffiti on the walls of a gym bathroom at Dutchtown Middle School in Henry County, Georgia.  The incident was a surprise to her parents, since Mikia was a good student who had not been in any trouble before: Even more of a surprise was the penalty after her family disputed the role she was accused of playing in the vandalism and said it could not pay about $100 in restitution. While both students were suspended from school for a few days, Mikia had to face a school disciplinary hearing and, a few weeks later, a visit by a uniformed officer from the local Sheriff’s Department, who served her grandmother with papers accusing Mikia of a trespassing misdemeanor and, potentially, a felony. As part of an agreement with the state to have the charges dismissed in juvenile court, Mikia admitted to the allegations of criminal trespassing. Mikia, who is African-American, spent her summer on probation, under a 7 p.m. curfew, and had to complete 16 hours of community service in addition to writing an apology letter to a student whose sneakers were defaced in the incident. Her friend, who is white, was let go after her parents paid restitution. Michael J. Tafelski, a lawyer from the Georgia Legal Services Program who represented Mikia in the school disciplinary hearing, said his office had filed a complaint with the Justice Department claiming racial discrimination and a violation of the Civil Rights Act: “I’ve never had a white kid call me for representation in Henry County,” Mr. Tafelski said.   “What kid needs to be having a conversation with a lawyer about the right to remain silent?” he said. “White kids don’t have those conversations; black kids do.” A study conducted by Villanova sociologists shows that skin tone also affects the rate of school discipline. Among a cohort of African Americans, girls with darker skin tone were three times more likely to be suspended than girls with lighter skin tone: There are different gender expectations for black girls compared with white girls, said Lance Hannon, a Villanova sociology professor who conducted the analysis. And, he said, there are different expectations within cross-sections of black girls. “When a darker-skinned African-American female acts up, there’s a certain concern about their boyish aggressiveness,” Dr. Hannon said, “that they don’t know their place as a female, as a woman.” The long-term damage done by school disciplinary practices is aggravated when it is perceived as unfair: Catherine E. Lhamon, the assistant secretary for civil rights at the Department of Education, whose office published a report on school discipline in March that offered recommendations for how to improve disciplinary practices in schools, said the discrepancies in disciplinary practices were not lost on young girls of color. “The felt experience of too many of our girls in school is that they are being discriminated against,” she said.  “The message we send when we suspend or expel any student is that that student is not worthy of being in the school,” Ms. Lhamon said. “That is a pretty ugly message to internalize and very, very difficult to get past as part of an educational career.” When school discipline results in a criminal record, it is difficult to get past as part of life in general. 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

“Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level”

Amy Meek just sent us her colorfully titled and important new article recently published in the Ohio State Law Journal, about the collateral consequences imposed by municipal and county ordinances.  As far as I know, this is the first serious effort to address consideration of conviction in connection with opportunities and benefits controlled at the local level.  As the abstract below suggests, many types of entrepreneurial opportunities likely to be attractive to people with a criminal record are subject to governmental regulation below the state level. Because these local ordinances and regulations are rarely included in collections of state collateral consequences, they are invisible to defendants and unavailable to their counsel and the court at the time of plea or sentencing.  Only in a few large municipalities, notably New York City, are criminal justice practitioners even aware of this locally created and administered system of restrictions and exclusions.  For example, with the exception of the District of Columbia, municipal and county rules and regulations are not included in the NIJ-funded National Inventory of the Collateral Consequences of Conviction (NICCC). The potential for interaction between state and local authorities is a particularly intriguing subject that Professor Meek explores in her recommendations for legislative reform. Here is the abstract: Some of the most severe collateral consequences of criminal convictions are imposed through city and county ordinances and policies. This Article offers the first in-depth examination of these municipal policies, including permits and licensing ordinances, registration and exclusion zones, third-party background-check requirements, and local hiring policies. Some municipal ordinances, such as residential restrictions on sex offenders, impose far harsher sanctions than their state counterparts, effectively banishing certain individuals from the community. In addition, municipal licensing ordinances limit access to occupations — such as street vending, operating a food cart, or driving a taxicab — that offer valuable entrepreneurial opportunities to individuals with criminal convictions. Often invisible to defendants at the time of sentencing, these local policies have been used as a way to exile “undesirables” by effectively barring them from living, working, or participating in public life in their communities. This Article offers suggestions for legislative reform to address the patchwork of collateral consequences that can lead to exile at the local level. States may pass laws preempting municipal restrictions, or municipalities can lead the way by adopting collateral consequences ordinances (such as the one unanimously passed in New Haven, Connecticut) that mitigate the impact of these restrictions by setting uniform standards and informing attorneys and the public. We expect to post a more extensive discussion and analysis of Professor Meek’s article as soon as we can. In addition, the Center board has been discussing the possibility of developing a template that could be used by local jurisdictions to create their own on-line catalogue of rules and policies governing consideration of conviction in employment, licensing, housing, and other benefits and opportunities controlled at the local level.  Optimally, this template would be compatible with and permit interaction with the one used to compile the NICCC inventory, so that defense lawyers and others could go to one place to find all of the consequences potentially relevant to their situation.  We expect to post a link to the NICCC as soon as certain technical problems with that resource have been ironed out. Read more