Category: Commentary

DC’s non-conviction sealing law is uniquely complex and restrictive

Last year, 20 states enacted reforms expanding access to expungement, record-sealing, and other forms of record relief. Many legislatures, including the District of Columbia Council, are considering reform proposals this session. Given the progressive steps taken by the District in the past year to expand opportunities for people with a criminal record to vote and obtain occupational licensing, we are optimistic that the Council will enact significant improvements to its lagging record-sealing law. Compared to states across the country, DC’s record relief law is very prohibitive and unusually complex. First, its non-conviction sealing scheme is “one of the most restrictive” in the country (as we described it in our Model Law on Non-Conviction Records). Second, to seal a misdemeanor conviction, an 8-year waiting period must be satisfied (far longer than most states), and then a series of rules exclude individuals based on a long list of ineligible offenses and a variety of disqualifying prior and subsequent records. Finally, DC allows only a single specific felony conviction to be sealed,1 while 34 states allow a range of felonies to be sealed or expunged. This post explains how DC’s law on sealing of non-conviction records in particular does not fare well in […]

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“A Plan to Restructure (and Revive) Pardoning After Trump”

The title of this post is the title of my second piece for Lawfare on the future of presidential pardoning after the unjust and irregular practices that characterized pardoning under President Trump.  In response to critics who urge that responsibility for pardon advice should be removed from the Justice Department, I argue for restoring the pardon program to its historic place as an independent and respected part of that agency, so it can be an effective counterweight to the punitive views of prosecutors that have in the past frustrated pardoning.  Reestablishing a functional institutional connection between the president’s power and the rest of the justice system will better serve both the presidency and the public interest in a more compassionate approach to criminal law enforcement. I suggest that Merrick Garland, whose Senate Judiciary Committee confirmation hearing to become attorney general begins on Monday, will understand how to reset the balance between pardon and justice to the benefit of both. This is a follow-up to my Washington Post op ed, in which I argued that the presidential pardon power has been burdened with too many routine functions, and that the new administration should seek to restore a degree of practical efficiency […]

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Sex offense registries in Europe and around the world

We are pleased to publish new research by Stephen Schulhofer about the treatment of sex offense registration in the UK, Canada, Australia, New Zealand, and the EU. The research, presented here with an introduction by Alessandro Corda, comes from material prepared for inclusion in an upcoming draft of the Model Penal Code: Sexual Assault and Related Offenses (full citation and disclaimer below). Introduction: An Important Look at Foreign Policy and Practices Regarding Sex-Offense Collateral Consequences By Alessandro Corda, Lecturer in Law, Queen’s University Belfast School of Law The American Law Institute’s ongoing project aimed at reforming the Model Penal Code provisions on sexual assault and related offenses includes within its reach not only substantive criminal law provisions, but also collateral consequences applicable specifically to persons convicted of a sexual offense, in particular sex offense registries. Sex offense registration and notification laws are a quintessential example of a collateral consequence of conviction that flourished during the so-called “tough-on-crime era.” The first sex offense registries in the United States were enacted in the late 1940s as a way “to inform the police of the whereabouts of habitual sex offenders.” The idea soon lost favor to so-called sexual psychopath laws. By the 1970s, […]

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Updated: “Who Must Pay to Regain the Vote? A 50-State Survey”

We are pleased to publish an update of our 50-state report on how unpaid court debt blocks restoration of voting rights lost as a result of a felony conviction: Who Must Pay to Regain the Vote? A 50-State Survey This report examines the extent to which state reenfranchisement laws consider payment of legal financial obligations (LFOs), including fines, fees, and restitution, in determining whether and when to restore voting rights to people disenfranchised due to a felony conviction. (Our national survey discusses and ranks each state’s general approach to loss and restoration of voting rights based on conviction.) We first published this research in July 2020 during litigation over Florida’s 2018 voting rights ballot initiative, which many expected would restore voting rights to more than a million people disenfranchised because of a felony conviction. However, the initiative was interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which drastically limited its anticipated reach. A federal district court found this system unconstitutional, but the U.S. Court of Appeals for the Eleventh Circuit reversed that conclusion in a 6-4 decision. During the appeal, an amicus brief by the State of Texas, […]

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Michigan makes sealing of convictions automatic, including for some felonies

On October 12, Michigan Gov. Gretchen Whitmer signed a series of bills that will dramatically reform that state’s “set-aside” authority, colloquially known as “expungement.” The bills will establish a new automatic mechanism to expunge certain convictions without a person having to ask for it, and significantly expand eligibility for expungement under the existing petition-based application system. “This is a historic day in Michigan. These bipartisan bills are a game changer for people who are seeking opportunities for employment, housing, and more, and they will help ensure a clean slate for hundreds of thousands of Michiganders,” said Governor Whitmer. “This is also an opportunity to grow our workforce and expand access to job training and education for so many people. I am proud to sign these bills today alongside Lieutenant Governor Gilchrist and many of the bipartisan leaders who worked on them.” “Everyone deserves the chance to build a good life for themselves and their families. But far too many people enter the criminal justice system and end up cut off from those opportunities and are pushed toward a cruel cycle of poverty and crime. That’s not right, and it creates bad outcomes for all of us,” said Republican House Speaker […]

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