Category: Diversion/deferred dispositions

Virginia poised to enact “transformative” record clearance law

Editor’s Note:  We are delighted to post a description of the broad new record relief bill now awaiting Governor Northam’s signature, by an attorney-advocate who was actively involved in the campaign to secure its passage. Rob Poggenklass describes the ambitious new law and how it came to be enacted, as well as likely next steps for record clearance in a jurisdiction that is swiftly becoming one of the nation’s leaders in record reforms. In addition to automatic sealing, the bill’s provisions for appointment of counsel, elimination of a fingerprint requirement for petitions, and regulation of private screening companies are particularly significant for reducing access barriers and ensuring effectiveness. The Virginia General Assembly has passed transformative legislation to allow sealing of convictions, including low-level felonies, for the first time in the Commonwealth, and to establish a system of automatic sealing of police and court records for many offenses. About 1.6 million Virginians have a criminal record, which creates significant barriers to employment, housing, education, and other necessities of life. The legislation reflects a compromise between an automatic expungement bill sponsored by Del. Charniele Herring and a mostly petition-based one brought by Sen. Scott Surovell. It also reflects the sustained work of directly impacted individuals and other advocates who organized and insisted on far-reaching, automatic, and equitable expungement legislation. The legislation must be signed by Governor Ralph Northam before it becomes law, but the governor is expected to sign it. After the House and Senate could not agree on record sealing legislation during a special session in the fall of 2020, the governor hired a mediator to help negotiate the compromise bill that passed both chambers in 2021. The legislation includes five key provisions. The bill: Establishes a system of automatic sealing for misdemeanor non-convictions, nine types of misdemeanor convictions, and deferred dismissals for underage alcohol and marijuana possession. Allows for contemporaneous sealing of felony acquittals and dismissals with the consent of the prosecuting attorney. Provides for sealing a broad range of misdemeanor and low-level felony convictions and deferred dismissals through a petition-based court process. Notably, court debt will not be a barrier to record clearance under the legislation. Introduces a system of court-appointed counsel for individuals who cannot afford an attorney for the petition-based sealing process. Forces private companies that buy and sell criminal records to routinely delete sealed records and creates a private right of action for individuals against companies that refuse to do so. Most provisions of the bill are not currently set to take effect until July 1, 2025, to give the Virginia State Police and the courts sufficient time to update their computer systems. Increased funding or other future action by the General Assembly could change the effective date. A push for racial equity gave rise to criminal legal reforms Virginia’s criminal legal system has disproportionately targeted Black people since colonial times. Virginia executed 185 Black people and 46 white people between 1900 and 1969. And while Virginia executed 73 Black people for non-murder offenses, the commonwealth never executed a single white person for a non-murder offense. As of 2018, Black people were 3.4 times more likely to be arrested for marijuana possession in Virginia. Although Black people comprise only 19% of Virginia’s population, 57% of all prisoners housed by the Virginia Department of Corrections are Black. Racial disparities are arguably worse for Virginia’s youth. A majority of children who are suspended from school and detained in local youth jails in Virginia are Black, as are 72% of young people committed to the Department of Juvenile Justice. Years of relentless advocacy from people impacted by the sordid state of Virginia’s criminal and juvenile legal systems finally moved Virginia to act, as well as a constellation of other factors: the global pandemic, the killing of George Floyd, sustained protests of the police in the capital city of Richmond, a new Democratic majority in the General Assembly, and a governor eager to move on racial justice issues because of an embarrassing blackface scandal. In a series of seemingly nonstop legislative sessions since January 2020, Virginia has passed bills to abolish the death penalty, decriminalize and then legalize marijuana, end jury sentencing, end driver’s license suspensions for court debt, end pretextual stops, end presumptions against bail, and dozens of other criminal legal reforms. Because of differing approaches taken by the Virginia House and Senate on expungement reform, however, the lifelong consequences of a criminal record that follow from racially disparate contact with the criminal legal system threatened to remain unaddressed. What’s allowed under current law Virginia is one of seven states that does not allow any record clearance for convictions. Since 1977, the commonwealth has provided for expungement of non-convictions, but only if the subject of the record files a civil suit in circuit court, gets fingerprinted at a law enforcement agency, and convinces a judge that continued dissemination of the record would constitute a manifest injustice. In a 2020 study, the Virginia State Crime Commission found Virginia courts issue an average of 4,000 non-conviction expungement orders each year, in a state where 1.6 million people have at least one criminal record. How this record sealing legislation came about Directly impacted individuals have pushed for many years to update and expand Virginia’s outdated expungement law. Rep. Don McEachin, who previously served as a state senator, introduced a bill in 2010 that would have allowed individuals to expunge numerous convictions after a five-year waiting period. The bill failed in committee, 13–1 (McEachin was the lone dissenting vote). After Democrats recaptured the Virginia House in the fall of 2019, an opportunity arose. Legislators filed two dozen expungement bills in the 2020 regular session, most of which aimed to moderately expand the existing petition-based expungement process. A Senate bill that would have allowed expungement of alcohol and marijuana possession convictions for offenses before age 21 was sponsored by the Senate minority leader and passed that chamber unanimously. But the speaker of the house referred all 24 record clearance bills, including the Senate bill, to the Virginia State Crime Commission, a legislator-led body with full-time staff, to study and report back on the issue. When the governor called a special session in the summer of 2020 to address the pandemic and ongoing protests of police following the death of George Floyd, the list of racial justice issues to address in the criminal legal system was long but the ability to expunge past convictions was among them. During the special session, the Crime Commission produced a report on automatic expungement and a draft bill modeled after Pennsylvania’s Clean Slate Act. Herring carried House Bill 5146, which would have established a system of automatic expungement for non-convictions and more than 100 convictions, including some low-level felonies. The list of eligible convictions was revised by the time the bill reached the House floor, but the bill gathered bipartisan support and passed, 59–37. The Senate bill more closely resembled the bill that had passed the Senate during the 2020 regular session than the House bill. It sought to moderately expand the petition-based system to a few misdemeanor convictions. It passed, 38–2. A committee formed to reconcile differences between the two bills was unable to reach an agreement, and both bills died in the fall of 2020. Advocates supported the automatic expungement approach because of its potential to help more people. Sheba Williams, a Richmond woman whose experience in Virginia’s criminal legal system influenced her to start her own nonprofit, Nolef Turns, testified in support of Herring’s bill during the special session but urged the inclusion of even more offenses. Consumer protection advocates also warned that if the legislature passed a sweeping record clearance overhaul without regulating the private market for criminal records, Virginians would be no better off. After the special session, individuals directly impacted by criminal records organized to form the Virginia Expungement Council. The group held pro-automatic expungement rallies in Richmond and Charlottesville. Members of the group met with individual legislators and educated them on how their records continued to serve as barriers years after they had served their sentences. In January, the General Assembly returned for its regular session, this time in a Virginia election year. Herring introduced the same automatic expungement bill that passed the House during the special session but added a section to regulate private companies that buy and sell criminal records. Surovell introduced a very different bill to expand the petition-based system to include misdemeanor and low-level felony convictions. The House bill passed again with bipartisan support, 60–39, while the Senate bill passed on party lines, 21–18. Rather than wait for a committee of conference, in a highly unusual step Governor Northam stepped in to help the two patrons resolve the differences between the two bills. Herring and Surovell announced a compromise record sealing bill in mid-February. All Democrats and a handful of Republicans voted for the measure in each chamber, sending it to the governor’s desk. What the bill does, explained The bill defines sealing as restricting dissemination of any records related to an arrest, charge, or conviction held by either the Virginia State Police or the court system. Once sealed, records cannot be accessed by most private and public employers, landlords, home sellers, or insurance companies. Those entities will not be able to ask individuals about the existence of sealed records, nor will individuals be required to disclose them. The record sealing portions of the bill can be divided into three types: 1) automatic sealing, 2) contemporaneous sealing, and 3) petition-based sealing.    1)  Automatic sealing: Under the legislation, charges that qualify for automatic sealing include: Charges involving mistaken identity or unauthorized use of identifying information; Deferred dismissals for possession of marijuana and underage possession of alcohol; Convictions for the following misdemeanors: underage possession of alcohol, petit larceny, concealment, trespass after having been forbidden, instigating others to trespass, trespass on posted property, possession with the intent to distribute marijuana, possession of marijuana, and disorderly conduct; and Misdemeanor non-convictions (excluding traffic infractions). There are some exceptions for non-convictions, such as when the charge is dropped as part of a plea agreement. Non-convictions that do not qualify for automatic sealing can still go through the petition-based process. To qualify for automatic sealing, seven years must have passed since the conviction or deferred dismissal, the person must not have any new convictions during that time, and on the date of disposition, the person must not have been convicted of another offense that is ineligible for automatic sealing.     2) Contemporaneous sealing: Felony acquittals and dismissals with prejudice can be sealed by the court immediately at the time of disposition, without filing a petition, if the Commonwealth’s attorney consents. If the prosecutor refuses or contemporaneous sealing is denied by the court, the individual can still petition to clear the record.    3) Petition-based sealing: The greatly expanded petition-based sealing portion of the bill covers a broad range of offenses. Nearly all other misdemeanor convictions, except DUI and domestic assault, are eligible if the person was not convicted of a new crime in the seven years after conviction or release from incarceration. Class 5 felonies (1–10 years in prison), Class 6 felonies (1­–5 years in prison), and felony larceny convictions (except certain DUI offenses) are eligible for petition-based sealing if the person has not been convicted of any offense in the ten years after the conviction or release from incarceration, whichever is later. Other conditions apply to petition-based sealing. For example, there is a lifetime limit of two on the number of sentencing events that an individual can have sealed. A person must also never have been convicted of an offense that carries a maximum of life in prison if they want another low-level felony or misdemeanor conviction sealed. Deferred dismissals for offenses other than marijuana and alcohol possession are also eligible for petition-based sealing. This is a change from the existing expungement law, which was designed to assist “an innocent person’s ability to obtain employment, an education and to obtain credit.” This is significant in light of a 2020 expansion of the deferred disposition law to include crimes against property for anyone not previously convicted of a felony. Court-appointed legal assistance:  Individuals who cannot afford an attorney for help with the petition-based sealing process can request one. The bill establishes a Sealing Fee Fund, which will collect filing fees from individuals who can afford them and use that money to pay court-appointed attorneys. Court debt no barrier:  Notably, court debt will not be a barrier to record clearance under the legislation. Clerks will continue to have access to records for the purpose of collecting court debt owed by individuals on sealed offenses. The legislation also removes the requirement that individuals seeking record clearance go to a law enforcement agency to get fingerprinted as part of the petition process. The prosecutor will supply that information instead. Regulation of private background screeners: The other major component of the bill addresses the regulation of private companies that buy and sell individuals’ criminal records. As advocates warned during the 2020 special session, these records can continue to appear on private background checks long after the public records have been sealed or expunged. The bill takes several steps to alleviate this problem. First, private companies (defined as “business screening services” under the bill) have an obligation to delete sealed records and must take steps to ensure they do not maintain sealed or inaccurate records. Second, these companies must register with the Virginia State Police to receive electronic copies of sealed records. Third, the companies must include the date they collected an individual record when they disseminate it. Fourth, the companies must allow individuals to request a copy of their own criminal history record information from the company. Finally, individuals or the attorney general may initiate a civil action to enforce this section of the legislation, and the companies may be forced to pay damages if they violate it. What’s next for record clearance in Virginia Advocates and legislators are already looking at ways to improve on the transformational bill that just passed. Del. Herring announced in late January that petition-based sealing of more serious offenses is “up next” in 2022. Other potential reforms include moving up the 2025 enactment date, eliminating the lifetime limit on offenses that can be sealed, reducing the waiting periods, and expanding the list of offenses that are automatically sealed to include more charges that disproportionately target Black people. Rob Poggenklass is an attorney at Legal Aid Justice Center in Charlottesville, Va., where he works on policy reforms and represents individuals impacted by the Virginia criminal and juvenile legal systems. He also teaches the Child Advocacy Clinic and Civil Rights Clinic at the University of Virginia Law School.  Previously, Rob led the Race Equity Project at Iowa Legal Aid, where he worked on reducing barriers to employment, housing, education and transportation for people with previous criminal legal involvement in his home state of Iowa.  We first met Rob several years ago when he invited CCRC to file an amicus brief on a petition for certiorari from the Iowa Supreme Court, in a case involving court debt as a bar to sealing that he was arguing while at Iowa Legal Aid. We are happy to see him transplanted to a jurisdiction evidently eager to become a national leader in record clearance.     Read more

Study: Texas diversion provides dramatic benefits for people facing their first felony

Increased use of diversion is a key feature of America’s new age of criminal justice reform. Whether administered informally by prosecutors or under the auspices of courts, diversionary dispositions aim to resolve cases without a conviction—and in so doing, conserve scarce legal resources, provide supportive services, reduce recidivism, and provide defendants with a chance to avoid the lingering stigma of a conviction record. Despite the growing popularity of diversion in this country and around the world, there has been little empirical study of its impacts on future behavior. Until now. By conjecture, the opportunity to steer clear of a criminal conviction might affect future behavior in opposing ways. An optimist might expect that diversion would motivate a person to avoid returning to court in the future, while preserving the ability to hold lawful employment, especially in places where criminal background checks are used to screen applicants. A skeptic might argue that diversion represents a lesser punishment that could increase offending by reducing either a specific or general deterrence effect. Without research showing the likelihood of one or the other outcome, policymakers, prosecutors, and judges have had to operate on untested assumptions, hoping for the best. This vacuum has now been filled by a new study of Texas’ court-managed diversion program by two economists, which should be welcome news for the optimists. Michael Mueller-Smith and Kevin Schnepel (2020) use detailed administrative data from Harris County (which covers the Houston area) to estimate the first causal impacts of a diversion program available to a large fraction of felony defendants in the state. Texas’ “deferred adjudication community supervision” allows defendants to plead guilty but have entry of a conviction deferred during a period of community supervision, with the case dismissed without a conviction upon successful completion. The arrangement must be approved by the judge. This diversion program is comparable to numerous programs administered by prosecutors and judges across the U.S., Europe, and several other countries—although many programs do not necessarily require a guilty plea. At the same time, Texas law has broad eligibility for its program compared to many otherwise-comparable American programs, making deferred adjudication potentially available to all defendants except those charged with DUI-related offenses, repeat drug trafficking near a school, a range of repeat sex crimes, and murder. The Mueller-Smith and Schnepel study finds that defendants without a prior felony conviction who participated in Texas’ deferred adjudication program experienced an immediate and dramatic reduction in subsequent offending. The total number of future convictions fell by 75% over a 10-year follow-up period, compared to similarly situated defendants who did not receive diversion. The results also suggest large improvements in labor market outcomes, including a 50% increase in formal employment rates. For the cohort studied over the longest period, “these positive effects persisted and expanded even 20 years out,” leading the authors to conclude that “diversion, at least at the critical juncture of someone’s first felony charge, has the potential to fundamentally alter an individual’s trajectory in life.” The circumstances that produced the subject data are somewhat unique: To measure the causal impacts of diversion, the analysis leverages two sudden lasting shifts in the use of diversion options (one in September 1994, another in November 2007) that each approximate an experiment where the treatment is randomly assigned to eligible felony defendants. The research design focuses on first-time felony defendants who are charged in the months preceding or following these abrupt changes, subjecting them almost arbitrarily to dramatically different case dispositions. As the study notes, “the main difference from the defendant’s perspective was that before the cut-off one could avoid a felony conviction, whereas afterwards a felony conviction was non-negotiable.” Defendants who, by chance, ended up charged at the “wrong” time and received a formal felony conviction for their first offense, went on to receive 1.6 to 1.7 additional criminal convictions and 50% lower employment rates during a 10-year follow-up period relative to their diverted peers. Perhaps the study’s most remarkable finding is that those who are often considered the most over-policed—young Black men with one or more misdemeanor convictions—gained the most from diversion. The results indicate that intervening for such individuals at a critical moment (when charged with a first felony offense) could significantly improve their life course. Interviewed for this post, one of the study authors commented about its potential impact for criminal justice policymakers: Given the trajectory toward more leniency in the U.S. criminal justice system, the results suggest that increases in diversion options may lead to lower rates of reoffending and higher rates of rehabilitation in the coming years. While much has been written about what doesn’t work in criminal justice policy in the U.S., this study provides compelling evidence for a successful intervention that both improves defendant outcomes and saves public resources. Diversion can be implemented without significant investments or changes to current infrastructure, making it a potential solution for U.S. criminal justice reform. The deferred adjudication program in Texas represents the largest diversion program in the U.S. with over 200,000 participants during 2017 (the most recent year with state-wide caseload data available). Based on the findings of Mueller-Smith and Schnepel, this program may serve as a good model for other jurisdictions considering an expansion of diversion options, especially for people possibly facing their first felony conviction. Citation: Michael Mueller-Smith and Kevin T. Schnepel, Diversion in the Criminal Justice System, The Review of Economic Studies 1-54 (2020), accessible at https://academic.oup.com/restud/advance-article-abstract/doi/10.1093/restud/rdaa030/5856753. Note: The co-authors thank Michael Mueller-Smith, Jordan Hyatt, and Emily Greberman for their assistance in helping us understand the technical aspects of the Harris County study.     Read more

Legislative Report Card: “The Reintegration Agenda During Pandemic”

CCRC’s new report documents legislative efforts in 2020 to reduce the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. In total, 32 states, D.C., and the federal government enacted 106 bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a record. Our Legislative Report Card recognizes the most (and least) productive state legislatures last year. Hands down, Michigan was the Reintegration Champion of 2020 with 26 new record reform laws, while Utah was runner-up, and seven other states were commended for their work. LEGISLATIVE REPORT CARD This year Michigan gets the top mark as our Reintegration Champion for the most consequential legislative record of any state in 2020, enacting a remarkable 26 bills addressing record relief, diversion, occupational licensing, driver’s license suspension, sex offense registration, and public benefits. Most notably, Michigan’s new “clean slate” record relief scheme is even more ambitious than the reform that earned New Jersey the title of Reintegration Champion in 2019. Like New Jersey, Michigan substantially expanded the number of convictions eligible for petition-based sealing and directed the development of an automated sealing system applicable retroactively to a wide range of misdemeanor and felony convictions going back decades. Unlike New Jersey’s automation program, which has no timetable for coming online, the Michigan scheme by law must be made operational within two years. Michigan also significantly expanded record relief for juvenile records and marijuana offenses. In other relevant reforms, Michigan limited the kinds of criminal records that can be considered by occupational licensing agencies, barred suspension of driver’s licenses for a range of legal violations unrelated to dangerous driving, repealed bans on federal food and family assistance due to felony drug convictions, and revised its sex offender registration scheme. Utah is runner-up for our Reintegration Champion award, based on a prolific legislative record that addressed issues as various as diversion, occupational licensing, and record-sealing in a total of seven separate laws. Utah’s productive 2020 followed an equally productive 2019, when its legislature authorized automated expungement of many misdemeanor convictions and non-conviction records and took major steps toward regulating occupational licensing agencies. Honorable mention for a productive legislative season goes to seven states. California, Louisiana, and Virginia each enacted a number of new authorities intended to promote reintegration, and California restored the vote to parolees by a ballot measure amending the state’s constitution. Virginia’s legislature deserves special recognition for having enacted 10 separate laws after many years of producing little or nothing related to restoration of rights. Idaho, Iowa, Missouri, and Rhode Island all passed impressive schemes to regulate consideration of criminal record in occupational licensure for the first time. Low marks go to four of the states that enacted no record reform laws at all in 2020. While there are many states in this category this year, likely because of the distractions and burdens of the pandemic, the legislatures of Alaska, Kansas, Massachusetts, and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2019, a year when almost every other state passed at least some law limiting access to and use of criminal records. We conclude by noting that many of 2020’s new laws were enacted after state legislatures were virtually shut down by the pandemic. (Indeed, several provisions of the most recent federal pandemic stimulus bill qualify for inclusion in this report.) This seems to us evidence that criminal record reform is now regarded as central to the Nation’s legislative agenda. We anticipate that in the coming year Congress and states that have been comparatively cautious in their recent law-making will be inspired to take larger steps to limit discrimination based on criminal record, as they see what more ambitious jurisdictions have already been able to accomplish. — The full report is available here. A more comprehensive 50-state grading system is incorporated into our national report The Many Roads to Reintegration and accompanying Reintegration Report Card. Read more

“The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020”

In each of the past five years, CCRC has issued an end-of-year report on legislative efforts to reduce the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life.[i] These reports document the progress of what has become a full-fledged law reform movement to restore individuals’ rights and status following their navigation of the criminal law system. Our 2020 report, linked here, shows a continuation of this legislative trend. While fewer states enacted fewer laws in 2020 than in the preceding two years, evidently because of the disruptions caused by the pandemic, the fact that there was still considerable progress is testament to a genuine and enduring public commitment to a reintegration agenda. In 2020, 32 states, the District of Columbia, and the federal government enacted 106 legislative bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a criminal record. As in 2019, in 2020 a majority of the new laws involve what we have come to call “record relief,” measures that operate directly on the criminal record itself to reduce its negative effect. Record relief may limit public access through expungement or sealing, vacate or pardon the conviction, or avoid a conviction record through diversion or deferral of judgment. Other restoration laws regulate discretionary decisionmakers that control access to the workplace, public benefits, and education. Still others expand the franchise, and curb driver’s license suspensions based on unpaid court debt or grounds unrelated to driving offenses. Also, again this year we publish a legislative Report Card recognizing the most (and least) productive state legislatures in 2020. Hands down, Michigan was the Reintegration Champion of 2020 with 26 new record reform laws, while Utah was runner-up, and seven other states were commended for their work. We will publish this Report Card separately tomorrow. The body of the report itself provides topical discussions of last year’s reform measures, followed by an appendix documenting the laws by jurisdiction. More detailed analysis of each state’s laws is available in the CCRC Restoration of Rights Project. (A general roundup of criminal justice reforms in 2020 is also available at The Appeal’s Political Report.) *** Looking ahead to 2021 The legal landscape at the end of 2020 shows states continuing to experiment with different types of relief to advance a reintegration agenda. The crisis of the pandemic may have slowed the legislative momentum seen in 2019, but it certainly did not bring it to a halt. Approaches to record reform continue to vary widely from state to state, with respect to the type of relief, the specifics of who is eligible for it, the mechanics of delivery, and its effect. Yet despite this variety it is clear that there has been no flagging in the lively national conversation about how best to limit unwarranted record-based discrimination. In 2021, we predict a continuing expansion of record-clearing opportunities, both for conviction and non-conviction dispositions. We also expect additional efforts to automate record relief, which in turn will necessitate simplification of eligibility criteria and improved records management by courts and repositories, which should lead to better coordination of state and federal records systems and more reliable criminal background checks. Elimination of bars to occupational licensing will also continue to be a top priority, given the bipartisan support for these regulatory reforms. So will expansion of diversionary and deferred dispositions, which we were pleased to see in the Business Roundtable’s “second chance agenda.” We also hope for continued progress toward restored voting rights for—at the very least—all citizens living in the community, without regard to whether they have completed the terms of their sentence or paid off court-ordered financial obligations.  Other issues that should be addressed by the states are the extension of fair employment and housing laws to cover discrimination based on criminal record, matters of particular importance during a pandemic and economic crisis. Finally, we hope that Congress will work to develop and make available to people with federal convictions the same type of statutory restoration mechanisms that are available for people with state convictions, to supplement if not largely replace presidential pardons as a routine record relief mechanism. For example, the absence of any statutory or administrative mechanism for restoring firearms rights to people with a federal conviction has swelled pardon case backlogs at the Justice Department in the past 25 years, and this issue should be addressed by the incoming administration. Congress could also usefully expand the existing federal deferred adjudication statute[ii] to cover any probation-eligible offense, since avoiding a conviction record is infinitely preferable to trying to neutralize one after the fact. Another area that Congress should reconsider is how federal statutes treat state non-conviction dispositions like diversion and deferred adjudication, including under the immigration laws, Fair Credit Reporting Act, Small Business Administration assistance, and criminal history provisions of the Federal Sentencing Guidelines.[iii] In short, in 2021 we expect to see a continuation of recent years’ commitment to fair treatment of people with a criminal record, in legislatures, in state houses, and in courts. In this regard, three projects we intend to focus on this year are improving access to petition-based felony expungement, putting together a set of best practices for court-managed diversionary programs, and advising jurisdictions in developing a reasonably attainable legislative package of record reforms. We will develop an agenda of statutory and regulatory reforms for the federal system as well. We will also look for opportunities to advocate for improvements in specific laws and record relief programs, and to participate as amicus curiae in promising litigation involving restoration of rights. Throughout, we will encourage a conversation about the vexing problem of unclear and inconsistent terminology that frustrates the development of a consistent national record relief policy.  And, of course, we will continue to update the Restoration of Rights Project as laws are enacted, report periodically on significant new authorities, and sum up each year’s work at its conclusion. The full report is available here. [i] See CCRC annual reports on new legislation describing new restoration and record relief laws from 2013 through 2019, accessible at https://ccresourcecenter.org/resources-2/resources-reports-and-studies/: Pathways to Reintegration: Criminal Record Reforms in 2019 (2020); Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018 (2019); Second Chance Reforms in 2017: Roundup of new expungement and restoration Laws (2018); Four Years of Second Chance Reforms, 2013 – 2016: Restoration of Rights & Relief from Collateral Consequences (2017). [ii] 18 U. S. C. § 3607, the so-called Federal First Offender Act. [iii] See Federal laws that give effect to state relief mechanisms, Federal: Restoration of Rights & Record Relief, CCRC Restoration of Rights Project (Last updated Nov. 2, 2020), https://ccresourcecenter.org/state-restoration-profiles/federalrestoration-of-rights-pardon-expungement-sealing/#E_Federal_laws_that_give_effect_to_state_relief_mechanisms. Read more

Are Trump’s Pardons a Blessing in Disguise?

The title of this post is the title of my piece in Lawfare arguing that, in response to President Trump’s reckless pardoning,  Congress should reroute many of pardon’s routine functions into the federal courts. The piece is reprinted below: Are Trump’s Pardons a Blessing in Disguise? As President Trump’s irregular and self-serving pardons roll out, incoming President Biden has been urged to repair or replace the process for advising the president on the use of this extraordinary constitutional power. It makes sense that critics have directed their ire and reform energies toward the mechanics of the pardon process, particularly since President Trump is on the record as disdaining it. But improvements in the process will not solve the problem laid bare by this president’s reckless pardoning. We should instead be asking more basic questions about what if any role the pardon power should play in the ordinary operation of the federal justice system. That system has asked far too much of pardon in recent years, and increased demand has played a major role in the power’s abuse. Congress needs to reroute many of pardon’s routine functions into the federal courts. The Demise of Ordinary Pardoning  Of course, increased demand is not the only thing that has led to abusive pardoning. As Bill Clinton learned to his sorrow, abuse has also followed from institutional hostility within the very agency responsible for housing the pardon process. The system for administering the pardon power set up at the end of the 19th century, which required pardon petitioners to make their case in the first instance to the Justice Department, was designed to avoid compromising the president or wasting his time.  It was also designed to ensure that the pardon power would be able to function as an integral part of the justice system.  Under policies approved by the president at the time, a case would be sent to the president for favorable action only after the Department’s pardon attorney had reviewed and recommended it. What had been a functional symbiosis for more than a century broke down in the war on crime of the 1980s, and presidents could no longer count on the Justice Department’s role as gatekeeper and steward of their constitutional power. So, while it is tempting to blame President Trump for sidelining a pardon process that has traditionally been seen as working for ordinary people, and for replacing it with one seen as favoring those with special influence, the Justice Department’s pardon process has been in trouble for many years.  The current White House workaround should come as no surprise to anyone who has watched its gradual slide into irrelevance since Ronald Reagan’s administration.  The key event that precipitated its decline was the attorney general’s delegation of responsibility for advising the president to subordinate officials. This all but guaranteed that the process would be taken hostage by the “tough on crime” views of federal prosecutors, who professed to have little regard for the very idea of pardons. As pardon attorney during the administrations of George H.W. Bush and Bill Clinton, I was continually frustrated by the hostility of the prosecutors to whom I reported, who evidently feared that pardon would undo their hard work. In particular, they were unreceptive to suggestions that pardons could tell good news about their work by showcasing rehabilitation and redemption as goals of the criminal process. As a result, the Justice Department sent few favorable pardon recommendations to the White House. At the end of his term, Clinton regretted having pardoned so little, and sought more favorable recommendations so that he could match President Reagan’s pardoning record. But by that time the Justice Department’s pardon program had been essentially shut down, with famously unfortunate results. The damage to the pardon program by Clinton’s endgame was not repaired during the next two presidencies, largely because of the Justice Department’s resistance to reform. The Department’s disregard for pardoning is evidenced by the fact that there has been no appointed pardon attorney during the entire Trump presidency. This recent history reveals that the final rejection of the established pardon process by President Trump was only a matter of time. And the numbers do not lie. A review of docket entries of the Justice Department’s pardon office reveals that only two out of President Trump’s 49 most recent grants of pardon or commutation, and a total of seven out of the total 94 grants to date, were likely recommended through the ordinary operation of the official pardon process. While some of the remaining 87 grantees had petitions pending with the pardon office, various details—the facts set forth in White House press releases, the timing of the filings, the known relationships between the recipients and the administration—make it exceedingly unlikely that they would have been among those independently recommended by the pardon office.  All of the 87 appear to have been selected by the president to take full advantage of the theater that pardoning can provide. The Road to Reform  It is understandable that reforming the pardon process would be seen as a path to fortifying the power itself against future abuse. Most critics (including the editorial board of the New York Times) believe there is no alternative to stripping the Justice Department of its advisory responsibilities based on a supposed conflict of interest with its prosecutorial duties (a conflict that took over 100 years to emerge). A few believe the Department’s role is salvageable if the right person is put in charge. Some propose the appointment of an independent commission to advise on pardon matters, both to expand the role of pardon in the justice system and as a hedge against Justice Department obstructionism. I believe this single-minded focus on how the pardon power is administered misses the mark.   Rather, we should be asking more basic questions about what (if any) role pardons should play in the ordinary operation of the federal justice system. The core problem that has led to pardon’s abuse is that the legal system asks too much of it, with the result that too many people need and want what is and always has been a scarce resource. For people with federal convictions, the law makes pardon the exclusive remedy for shortening prison sentences, restoring lost rights, and certifying a convicted individual’s rehabilitation—functions that in most states are performed under statutory schemes. The law makes the president exclusively responsible—by way of the constitutional pardon power—for restoring the right to possess firearms and to qualify for many business and professional licenses after a federal conviction. Indeed, I have been told that applications for pardon to regain firearms rights may constitute nearly half the pardon caseload, which my own practice confirms. It is beyond absurd to make the president a one-man gun licensing bureau for people convicted of nonviolent federal crimes who just want to go hunting again. Relying on pardon to temper the severity of the law might have been appropriate in a time when Congress issued private bills to grant relief to constituents, and courts relied on common law writs to enforce their orders. But a modern justice system cannot run efficiently or fairly on such antique and unreliable remedies, of which pardon is indisputably one. I do not advocate curtailing the president’s pardon power, and the Biden administration can decide how it wishes to administer that power. I hope it will restore at least the appearance of fairness and regularity to the process (even if it will continue to function, as it always has, more or less like a lottery). But I also hope that reform of the pardon process can be accomplished without creating a new bureaucracy with all the trappings of the administrative state, with the elevated caseloads that would go with it.  It is folly to expect to harness unruly pardon—whose operation is by definition arbitrary—to compensate for failures in the legal system, or to manage the expectations of the thousands of supplicants who would doubtless be lined up with petitions in hand on the day the new agency’s doors opened. The alternative to systematic reliance on pardoning is what the late Professor Dan Freed described twenty years ago as “the more demanding road toward democratic reform.”  The incoming administration should urge Congress to offload some of pardon’s exclusive functions onto the legal system by enacting robust statutory relief mechanisms, for those in prison and for those who have fully served their sentences, as a majority of states have done in recent years.  In other words, Congress should enact laws to reroute much of the business that currently comes into the pardon process into alternative channels, preferably the federal courts. If the pardon process were not bogged down by thousands of petitions from people who simply want to regain the rights of citizenship (or perhaps to gain those rights for the first time), the president could use his constitutional power in a far more expansive and policy-oriented manner to encourage reform of the justice system, to counter its overreaches, and to tell good news about its operation. Congress has already begun to reroute work that used to be done exclusively through the pardon power.  Federal courts were given authority two years ago in the First Step Act to consider petitions filed by federal prisoners to reduce their sentences in cases involving “extraordinary and compelling reasons.”  The Biden administration should ensure that this standard is given a broad interpretation, to enable courts to take account of such equitable circumstances as changes in the law and extraordinary rehabilitation. In addition, the incoming administration should work with Congress to give courts authority to issue certificates of restoration of rights that would have the same legal effect as a presidential pardon, as a bipartisan bill now pending in Congress could easily be amended to do. The new administration should also take steps to enable people to regain firearms rights by application to an administrative agency or a court if they are no danger to public safety (though there is an emerging body of Second Amendment caselaw that may beat Congress to the punch). Finally, Congress should expand opportunities in federal law to avoid saddling people with a conviction record in the first place. There is some interest in the House Judiciary Committee in revising an existing statute whereby courts could offer individuals charged with less serious offenses a deferred judgment, where satisfactory completion of a term of supervision leads to dismissal of the charges and expungement of the record.  The Business Roundtable has proposed a menu of law reforms to promote reintegration and second chances, which include amending this deferred adjudication statute. In the end, President Trump’s abuse of his pardon power could be seen as a blessing in disguise if it provides the opportunity to wean the federal criminal justice system from its dependence upon presidential action for routine relief. Only if freed from its more workaday responsibilities can presidential pardon play the constructive role that the Framers intended. Read more