Category: Commentary

National law reform proposal on collateral consequences

A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction.  The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences.  [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.] In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief.   As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences.  The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone […]

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Felony Disenfranchisement: Setting the Record Straighter

Recently, a woman standing outside of a Berkeley grocery store asked if I wanted to register to vote. I asked her, “Can I vote if I’m on probation?” She looked at me with horror, gripped her clipboard, and physically recoiled from me and the cantaloupe I was holding. Once she regained some composure, she sincerely, confidently, and erroneously informed me that California’s laws prohibit voting while on probation. That encounter inspired me to draft these goals for all of the voter registration advocates (including me!) working the sidewalks this election season: 1: Practice not physically recoiling in horror from people we encounter in life. 2: Learn the voting laws in our jurisdictions to avoid disenfranchisement through disinformation. Each state has its own laws about voting following a felony conviction.  Two states never disenfranchise voters following conviction. (Hey, Maine! Hey, Vermont!) Some states permanently terminate the voting rights of outrageous numbers of its citizens: Florida’s draconian voting laws disenfranchise 10% of its total population. In 2000, Florida disenfranchised 600,000 citizens with felony convictions. That same year, its presidential race was decided by 537 votes.

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When collateral consequences drive the sentence: The David Becker case

In the wake of the Brock Turner case, a new controversy was ignited in Massachusetts last month when 18-year-old David Becker, a white college-bound athlete, received two years’ probation after pleading guilty to indecent assault of an unconscious woman at a house party.  As in the Turner case, many are outraged by a penalty they regard as too lenient and the result of white privilege.  However, any perceived injustice in the Becker case may be less about an abuse of judicial discretion than about the limited ability of judges to mitigate collateral consequences. Critics of the decision may be even more concerned to learn that David Becker was not actually convicted of a crime.  Instead, District Court Judge Thomas Estes accepted Becker’s guilty plea and ordered a “continuance without a finding” (known as a CWOF) for two years while Becker serves a term of probation.  If Becker completes the conditions of probation successfully, the charges against him will be dismissed and the record will be eligible for sealing. The fact that Becker was not convicted is significant because it allows him to avoid both registering as a sex offender and the numerous collateral consequences that would come with having a criminal record.

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Prez promises to catch up on pardons — but he’s far behind

We have wondered whether President Obama would ever turn his attention to what has become the red-headed stepchild of the clemency caseload: full pardons to restore rights and status after service of sentence.  To date President Obama has focused on commuting prison sentences, and has issued fewer pardons than any full-term president since the Civil War.  It appears that the time may be at hand. The Politico reported on Thursday that at a press conference the day after his most recent batch of sentence commutations, President Obama said he intended to grant more full pardons before the end of his term – a lot more. At a news conference at the Pentagon on Thursday, a reporter [Greg Korte of USA Today] noted that Obama has been the stingiest two-term president on forgiveness since John Adams.  Obama acknowledged that his administration has “focused more on commutations than we have on pardons.” “I would argue,” he continued, “that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.” The President also indicated that he did not intend to change his pardoning practices at the end of his term: “The process that […]

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“Prosecuting Collateral Consequences” is an important contribution

On Monday, the CCRC posted the abstract of an extensive new law review article, Prosecuting Collateral Consequences, 104 Georgetown L. J. 1197 (2016). The article, by a brand new University of North Carolina Law Professor, Elisha Jain, argues that new awareness of the collateral consequences of criminal conviction has extended the largely unreviewable discretion of public prosecutors into civil public policy decisions like deportation and licensing. This should not be news to anyone who has followed the developing scholarship in the field, but it is a point worth making at some length. The article makes unmistakable a point that is only now emerging among many participants in the criminal justice system: that because the collateral consequences of conviction are often, particularly as to minor crimes, more important than the direct consequences of conviction, sophisticated defense lawyers, prosecutors, and judges will make negotiating about collateral consequences a central feature of the plea bargaining process.

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