Category: Policy

The New Southern Strategy Coalition works on criminal records reform in the South

“I don’t know why everyone is talking about the New Jim Crow; in the South the old one never went away.” – 2013 New Southern Strategy Coalition conference participant

Introduction

The New Southern Strategy Coalition is a collaborative network of Southern advocacy groups and their national allies, originally convened in 2011 and dedicated to reducing the negative consequences of a criminal record in the South.  Because the South has always been seen as a region resistant to criminal justice reform, many national groups do not have a presence there, and state-based advocacy efforts are generally underfunded and understaffed. The voices of those most affected are missing from southern state capitols, and the region is often left out of the national dialogue altogether.

NSSC addresses these challenges by providing opportunities for southern organizations to network and share information about regional best practices to minimize legal barriers to reentry. The premise is that state-specific reform efforts in the South will be supported and magnified by the Coalition’s collective goals operating across a unified landscape.  NSSC holds regional conferences to discuss effective reform strategies, provides training and materials, ensures that the voices of directly affected individuals are included in a meaningful way, and uses web-based and social media tools to leverage reform efforts.

Read more

Special interests succeed in watering down NJ Opportunity to Compete Act

In updating our book on New Jersey Collateral Consequences, J.C. Lore and I analyzed the provisions of New Jerseys’ new Opportunity to Compete Act, signed by Governor Christie in August and scheduled to become effective on March 15, 2015.   The Act applies a ban-the-box requirement to most public and private employers with more than 15 employees.  Having followed the bill through its passage in the House last spring, we were disappointed but not surprised to see that there were a number of employer-friendly amendments added to the Act just prior to final action in the Senate, with the result that there is a great deal of uncertainty about what the law actually accomplishes.  The important provisions omitted from the bill in the Senate, after lobbying by business and industry groups, includedstock-photo-usa-american-new-jersey-state-map-outline-with-grunge-effect-flag-insert-101188936

  • A prohibition on considering certain types of criminal histories, including conviction records after a certain number of years;
  • A private right of action against employers;
  • A definition of “initial employment application process” that permits inspection of criminal records at an earlier stage of the employment process;
  • A requirement that an employer make a good faith effort to discuss the applicants criminal record if it is of concern; and
  • A provision permitting negligent hiring suits in cases of “gross negligence.”

The bill as amended also preempted local ban-the-box laws, so that Newark’s more progressive ban-the-box ordinance appears to be on life support.

Attached are the enacted version of the New Jersey Opportunity to Compete Act, as well as the “advance law” with brackets to show which language was removed in the Senate.

EDITOR’S NOTE:  Much chastened, the author of the NACDL Restoration of Rights Resource has made appropriate modifications in the New Jersey profile.  Note that similar last-minute amendments also substantially weakened the Delaware ban-the-box law, omitting similar provisions that would have prohibited employers from considering certain types of criminal records, notably convictions more than 10 years old.  In the same fashion, last-minute amendments to Vermont’s Uniform Collateral Consequences of Conviction Act restricted its coverage to less serious offenses, disappointing its sponsors.

The lesson for advocates is that they must be eternally vigilant for last-minute lobbying by special interests to dilute provisions of progressive legislation intended to give people with a criminal record a fairer chance in the workplace. – ML

The “president’s idle executive power” and collateral consequences

In their Washington Post op ed on the President’s neglect of his pardon power posted earlier on this site, Rachel Barkow and Mark Osler are critical of the Justice Department’s us-department-of-justice-squarelogobureaucratic process for processing applications for executive clemency, which they argue takes a very long time and yields very little.  (The New York Times editorialized last year in a similar vein about how DOJ has effectively sidelined the president’s power as a tool for justice for more than 20 years.)  Barkow and Osler ask why Justice considered it necessary or wise to farm out the processing of thousands of petitions from federal prisoners to a private consortium called Clemency Project 2014, rather than reform the official process:  “such a short-term program does nothing to fix the problematic regular clemency process that will survive this administration unless action is taken.”

Barkow and Osler focus on sentence commutations, and not on the other common type of clemency grant: a full pardon, typically sought by those who have fully served their court-imposed sentences, to avoid or mitigate collateral consequences.  In addition to the thousands of prisoner petitions awaiting consideration by DOJ’s Pardon Attorney, there are now more than 800 petitions for full pardon pending in the Justice Department.  Most of these petitions were filed by individuals who completed their court-imposed sentences long ago but remain burdened by legal restrictions and social stigma.  A majority of the pending petitions were filed years ago and have long since been fully investigated.  What can be holding things up?

Read more

Despite pardoning hundreds, out-going Illinois governor may leave significant clemency backlog

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.

New report describes public health consequences of incarceration

A new report from the Vera Institute, On Life Support: Public Health in the Age of Mass Incarceration, highlights the “contagious” health effects of incarceration on the already unstable communities to which most of the 700,000 inmates released from prison each year will return.  The report argues that high rates of incarceration among residents in these communities are “one of the major contributors to poor health in communities,” and that this has “further contributed to diminished educational opportunities, fractured family structures, stagnated economic mobility, limited housing options, and restricted access to essential social entitlements.”  In “a political landscape ripe for reform” of these cascading collateral consequences of conviction, the report finds significant promise in the Affordable Care Act:

The passage of the ACA in 2010 was a watershed moment in U.S. history. State and local governments are increasingly realizing the opportunities created by the ACA to develop partnerships between health and justice systems that simultaneously abate health disparities and enhance public safety. A number of the legislation’s key provisions—the expansion of Medicaid, increased coverage and parity for mental health and substance use services, and incentives for creating innovative service delivery models for populations with complex health needs—provide new funding streams and tools for policymakers to strengthen existing programs and develop solutions to reduce mass incarceration.90 The ACA creates critical opportunities for states, local governments, and healthcare stakeholders to greatly expand the capacity of their community health systems to better meet the needs of underserved populations, curb the flow of medically-underserved populations into jails and prisons, pursue collaborative programming to plug service gaps between health and justice systems, and ensure that people are able to receive services in the community that are essential for health. …

“The president’s idle executive power: pardoning”

As the presidential pardon of everyone’s favorite Thanksgiving galliformes makes front-page news across the country (a tradition that the many human clemency petitioners who have spent years awaiting action must struggle to find the whimsy in), two law professors take the federal clemency system to task in a new Washington Post opinion piece.  In the piece, professors Rachel E. Barkow (NYU) and Mark Osler (University of St. Thomas) argue that the long and multi-tiered review process for federal clemency petitions could be significantly improved if the president would minimize the Justice Department’s involvement in the process while shifting responsibility to a bi-partisan review commission.  From the article:

Read more

Ohio’s on-line inventory of collateral consequences – a useful tool for defense lawyers

Kelley Williams-Bolar was a single mother in Akron Ohio, a teacher’s aide who was studying to become a teacher herself.  Her story made headlines in 2011, when she was accused of misusing her father’s home address to enroll her two young daughters in a public school they were not entitled to attend.  After her own home was burglarized, Kelley had enrolled the girls in their grandfather’s school district, so they could spend each afternoon after school safely at their grandfather’s house.  To make this possible she had signed a “grandparent affidavit” saying that the girls lived with their grandfather.  The new school district ultimately rejected the affidavit, and she withdrew the girls from tohio_sealheir new school at the end of the school year.

Ohio’s “grandparent affidavit” form contains a printed warning, advising that anyone who submits a false affidavit can be charged with “Falsification, a first degree misdemeanor.”  But that warning gave no hint of what would actually happen to Kelley.  Eighteen months after her daughters left the new school, the district attorney charged Kelley with felony Grand Theft, claiming she had “stolen” tens of thousands of dollars’ worth of tuition for her children.

Particularly given Kelley’s career aspiration to be a teacher, her defense lawyer could have made good use of a new online resource called CIVICC (Civil Impacts of Criminal Convictions), a computerized compendium of state collateral consequences linked to the crimes that trigger them.  (Kelley’s felony conviction was eventually reduced to a misdemeanor by Governor John Kasich, high level intervention that cannot be counted on to substitute for effective advocacy.)

At the CIVICC website, counsel in a case like Kelley’s could run a quick search using the keyword “theft,” and learn right away that conviction on the Grand Theft charge would expose her to 509 possible collateral consequences (“civil impacts”) under Ohio law, burdens she would bear long after her criminal sentence was complete.

Read more

New reports evaluate national policy on juvenile record confidentiality

This month the Juvenile Law Center released an impressive pair of reports evaluating national policy on public access to juvenile criminal records. The first report, Juvenile Records: A National Review of State Laws on Confidentiality, Sealing and Expungement, provides a national overview of state laws, and proposes standards to mitigate exposure to collateral consequences as a result of a juvenile record.  150xNxJLC.jpg.pagespeed.ic.w0Eyk4Lh56The report also makes recommendations for policy-makers, courts, defense attorneys, and youth-serving agencies. Supplementing the national overview are fact sheets on the law in each state, including the availability and effect of expungement or sealing, and an overview of the process for obtaining such relief. (These fact sheets can be found by clicking on the relevant state on the map here).

A second complementary report, Failed Policies, Forfeited Futures: A Nationwide Scorecard on Juvenile Records, scores each state on the degree to which it meets the Center’s ideal standards for juvenile record protection. The Center based its evaluation of the states on its “core principles for record protection” including:

Read more

The Democrat who would be the “Reentry President”: James Webb

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:

Jim Webb speaks about his bill about Iran in Washington“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.

Labels and stereotypes in the President’s immigration speech

obama-immigration-speechThe President’s decision to take unilateral executive action to insulate certain undocumented immigrants from the immediate threat of deportation has provoked outrage in some quarters and profound relief in others.   The legal issues raised by this decision are important and debatable, some of its line-drawing is problematic, and its success stands or falls on the uncertain terrain of bureaucratic discretion.  No doubt its political implications are yet to be revealed.

But amid all the uncertainty, one thing is clear.  In his speech announcing the initiative the President said, repeatedly and definitively, that no one with a criminal record would benefit from his reprieve.   Thus, he emphasized that enforcement resources would remain focused on “actual threats to our security,” by which he meant “Felons, not families. Criminals, not children.”   Again, it is possible to benefit from the law if you can “pass a criminal background check” (whatever that means), but “[i]f you’re a criminal, you’ll be deported.”   Even people convicted of misdemeanors will not be spared under the new DHS enforcement priorities.

Entirely apart from the wisdom or fairness of the immigration policy choice involved in this broad blanket exclusion (and there are good reasons to be critical of it), it was disheartening to hear the President present it in such unfortunate language.  The ugly labels of “felon” and “criminal” do, after all, at least technically describe a status shared by 25% of adult Americans.  Labels like these serve only to demonize and exclude, and they are fundamentally at odds with our national policy of encouraging rehabilitation to reduce crime.  There were other ways the President could have justified continuing his policy of deporting based on criminal record than by using words that do more to stir up fear of “the other” than to describe relevant functional attributes.

The President’s words suggest that people who have been convicted of a crime are evermore to be regarded as “felons” and “criminals,” categorically threatening to our safety and security, and uniformly deserving to be segregated and sent away.  But he himself pardoned such a person less than two years ago, precisely to keep her from being deported. And he is surely aware of the bipartisan conversation now underway about the need to curb over-criminalization, one of the few matters on which Republicans and Democrats can agree.   It is tempting to take linguistic shortcuts when politically expedient, but it is a temptation he might have resisted without jeopardizing his larger objective.

It is time we stopped using negative stereotypes and labels to describe people who at some point in their past have committed a crime, in the immigration context or otherwise.  It is no longer acceptable to describe undocumented immigrants as “illegal aliens.”  Our language needs a similar makeover where past convictions are concerned.

1 … 10 11 12 13