The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction. The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford.
An AP story about the perils of pardoning, picked up by newspapers and media outlets across the country, manages to convey three pieces of misinformation in its very first sentence. Riffing off a recent high profile pardon application, it begins like this: “Mark Wahlberg’s plea for a pardon has focused fresh attention on excusing criminal acts – something governors rarely do because it’s so politically risky.”
But pardons do not “excuse” crimes, they forgive them; governors have been pardoning more and more generously in recent years; and pardoning, like any other government program involving personal participation by a high profile elected official, is generally not risky if done in a responsible manner with good staff support and without apology.
The background checking policies of Uber and other ride-sharing companies like Lyft and Sidecar are again in the news, after an Uber driver with an extensive criminal record allege
dly raped a female passenger in New Delhi. Other horror stories of cab rides from hell with these popular “taxi aggregators” are surfacing. The New York Times reports that background check requirements for taxi drivers vary widely by jurisdiction, but are “generally more rigorous” than the sketchy services used by Uber and its competitors, and “usually include searches of private databases like F.B.I. records.” (Note to self: Must inform the “paper of record” that the FBI records system is not a “private database.”)
Uber et al. have so far successfully resisted most legislative efforts to require them to perform particular kinds of background checks using particular kinds of background checkers, using the good offices of well-connected lobbyists to avoid this annoying speed bump on their road to a public offering. But episodes like the New Delhi rape, and lawsuits for misleading consumers about the kinds of checks they do, may bring them around to a more responsible position. Read more
Actor-producer Mark Wahlberg has filed an application for pardon with the Governor of Massachusetts, seeking forgiveness for a 25-year old assault conviction that occurred when he was 16 years old. The “onetime ruffian from Dorchester” bases his request for pardon on his rehabilitation and contributions to society since his conviction. He also specifies his desire to avoid certain legal restrictions that he claims are impeding his business endeavors and civic activities.
By his own account, Mr. Wahlberg was a troubled teen who had a history of scrapes with the law by the time of the 1988 assault. He states in his pardon application that, if he
had not turned his life around with the help of “faith, hard work, and guidance from some incredible mentors,” he “would likely have ended up like so many of my childhood friends from Dorchester: dead or in prison for a prolonged period of time.” He expresses remorse for his actions on the night of the assault, as well as “any lasting damage that I may have caused the victims.” He does not specify what that damage might have been, though news reports indicate that it was serious and possibly permanent.
As to his reasons for seeking a pardon, he claims that “my prior record can potentially be the basis to deny me a concessionaire’s license in California and elsewhere, “an important consideration given my personal involvement in various restaurant ventures,” presumably a reference to the fast-expanding chain of Wahlburgers. He believes that, if pardoned, “I could not be denied a concessionaire’s license on the basis of my prior record,” which may or may not be the case.*
Wahlberg also proposes that a pardon would enable him to become “more active in law enfor
cement activities, including those that assist at-risk individuals.” He states that only a full and unconditional pardon would, under California law, enable him to “obtain a position as a parole or probation officer.” True enough, but an improbable ambition for an A-List movie star. He disavows in his application any immediate interest in obtaining a firearms permit — leading this writer to wonder if one is required on location.
Earlier this week, the Center for American Progress published a new report on the effect of the proliferation of criminal records in a nation of mass incarceration and criminalization. The report (“One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records”) explores the debilitating effect that a criminal record – including records for relatively minor offenses and for arrests that did not result in a conviction – can have on an individual’s access to housing, public assistance, education, family stability, and, in turn, their prospects for economic stability. The report’s authors are Rebecca Vallas of the Center for American Progress’s Poverty and Prosperity Program, and Sharon Dietrich of Community Legal Services of Philadelphia (and of our own CCRC Board).
The report makes the point that the proliferation of criminal records, and the ease with which they can be accessed, harms not only individuals but society as a whole. The collateral consequences of a criminal record result in employment losses of $65 billion a year in GDP according to one study cited. Another study estimates that the national poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the accompanying criminal record crisis. The report notes that the war on drugs and the “criminalization of poverty” has resulted in a disproportionately high incidence of justice system contact in communities of color. Criminal records are thus both a cause of poverty and a consequence of poverty.
When disgraced Illinois governor Rod Blagojevich was removed from office in 2009, he left behind more than the ugly controversy that would eventually lead to a 14-year federal prison sentence: he also left behind a 7-year backlog of over 2,500 clemency recommendations from the state’s Prisoner Review Board (“PRB”). Blago’s successor Pat Quinn declared in April 2009 his intention of “erasing the shameful logjam of cases in a methodical matter and with all deliberate speed,” stating that “Justice delayed is justice denied.” Since then, Governor Quinn has disposed of a total of 3,358 clemency petitions, granting more than a third of them. Of the 1,239 persons pardoned, most have also had their records expunged.
However, despite his admirable efforts to restore 
regularity to Illinois pardoning, it appears that Quinn may leave his successor almost as large a backlog as he himself inherited. This is because, during his six years in office, the PRB has forwarded over 3,000 additional recommendations to the governor’s desk, most of which have not been decided. Unless Quinn somehow finds a way to dispose of this still-large backlog of cases between now and January, Blagojevich’s irresponsible neglect of his pardoning responsibilities will have created a kink in the administration of the pardon power in Illinois that may not be worked out for years to come.
If long waits have become the new normal for pardon applicants in Illinois, those seeking relief from collateral consequences would do well to consider the alternatives available under state law. For example, Illinois courts are authorized to grant Certificates of Relief from Disabilities, which avoid numerous licensing restrictions and shield employers from negligent hiring liability; and, Certificates of Good Conduct, which relieve mandatory bars to employment and other opportunities and certify the recipient’s rehabilitation. Courts are also authorized to seal and expunge records in certain cases.
You can read about the latest round of Governor Quinn’s pardons in this Chicago Tribune article. More information about relief and restoration of rights in Illinois can be found in the NACDL Restoration of Rights resource here.
UPDATE: In his final days in office, Governor Quinn pardoned more than 300 people, and denied about 1000 petitions. He left about 2000 petitions for his successor to act on. Let us hope he has a similarly progressive view of pardoning.
This week’s New Yorker features an article by Ryan Lizza about potential democratic candidates. One, James Webb, former U.S. Senator from Virginia, has a history of interest in prisons and reentry of people with convictions. The article states:
“In the Senate, he pushed for creating a national commission that would study the American prison system, and he convened hearings on the economic consequences of mass incarceration. He says he even hired three staffers who had criminal records. ‘If you have been in prison, God help you if you want to really rebuild your life,’ Webb told me. ‘We’ve got seven million people somehow involved in the system right now, and they need a structured way to reënter society and be productive again.’ He didn’t mention it, but he is aware that the prison population in the U.S. exploded after the Clinton Administration signed tough new sentencing laws.”
Of course, reentry is not necessarily a partisan issue; President George W. Bush also cared about it, calling America “the land of second chance” in his 2004 State of the Union address, and signing into law the Second Chance Act. It will be interesting to see if prison spending and reentry become issues in the primaries or the general election.
On November 10, The Crime Report posted a profile of CCRC Board member Glenn Martin and the organization he founded, Just Leadership USA. Just Leadership is dedicated to cutting the US prison population in half by 2030 and to training formerly incarcerated individuals to become leaders in promoting criminal justice reform. Martin himself spent six years in the New York prison system, and later served for more than a decade in key positions at The Fortune Society and Legal Action Center.
The profile describes Martin’s participation last October in an unprecedented meeting between Obama Administration officials and leaders of the community of formerly incarcerated individuals, organized by the Attorney General Office’s Interagency Reentry Council. The meeting focused on sentencing reform, but it presented an unusual opportunity to challenge some stereotypes about who should be at the table when reform is discussed.
At its core, Martin said, Just Leadership challenges some people’s broad assumption that formerly incarcerated people “can’t read or write” or smartly weigh in on the socially and emotionally tangled issues of crime, courts and corrections.
For the most part, the individuals leading that discussion tend not to have been imprisoned. Although many of them play significant roles in the courts, corrections and policing, some harbor ideals and opinions that are not always grounded in fact, Martin argues.
“You don’t achieve a moral argument for reform if you do what [so-called] progressives have been doing for years, serving up the ‘perfect prisoner’ who is the first-time, non-violent drug offender . . . . That person . . . actually doesn’t go to prison. I’ve never met him. That’s the person who went home from the courthouse. By the time [most] people end up in prison, they have multiple convictions.”
The Collateral Consequences Resource Center website launches on Tuesday, November 18, 2014. We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.
The legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects. The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation. Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served. Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind. Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention. People with a record are organizing to promote change.
The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions. The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: Contact Us.
Oklahoma is the most recent state to expand its expungement laws to make more people eligible f
or record-clearing at an earlier date. While the specific changes adopted by the Oklahoma legislature are relatively modest, involving reduced waiting periods and fewer disqualifying priors, they are significant as part of a national trend toward enlarging this type of “forgetting” relief for people with minor criminal records. Details of Oklahoma’s law are available here.
Other states that have enacted new expungement laws or broadened existing ones in the past two years include Alabama, Arkansas, Colorado, Indiana, Minnesota, and Tennessee.
Alabama’s new expungement law is the first record-closing law in that state and applies only to non-conviction records. Arkansas and Minnesota broadened or consolidated existing expungement schemes that were already quite extensive. The Indiana expungement scheme is entirely new and particularly comprehensive and progressive. (An analysis of the new law by its primary sponsor in the Indiana legislature will be posted in this space very soon.) The effect of this type of “forgetting” relief varies widely from state to state, from complete destruction of records in states like Pennsylvania and Connecticut to more limited relief in Kansas and Indiana, where expunged records remain accessible to some employers as well as law enforcement.
The other type of individualized judicial relief from collateral consequences that is growing in popularity relies not on limiting public access to a person’s criminal record, but instead on Read more