Category: Scholarly articles

Commercializing criminal records and the privatization of punishment

The deeply ingrained, indeed, constitutionally protected, U.S. tradition of the public trial and public records has led to a system where there are few restrictions on public access to criminal record information.  Europe, by contrast, is more willing to limit the press in service of important goals such as reintegration of people with convictions. Alessandro Corda and Sarah E. Lageson have published an important new study on how this works on the ground.  Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and The Rise of A New Penal Entrepreneurialism, in the British Journal of Criminology, explains how these traditions play out practically in the United States and Europe.

The paper notes that systematically in the United States, and increasingly in Europe, private actors are “extracting, compiling, aggregating and repackaging records from different sources;” as the authors put it, they are “producing” not merely reproducing criminal records.  In so doing they expand the reach of punishment.  To the extent that any random Joe or Jane can obtain criminal records, then potential associates can make decisions based on records, accurate or inaccurate, showing convictions or even mere arrests or charges which were dismissed, diverted, or led to an acquittal.

The case study of the United States notes that employers, landlords, universities and civic organizations often engage in criminal background screening, but these uses are regulated by the Fair Credit Reporting Act.   However, internet databases scrape and buy official and semi-official sources, criminal, financial, licensing, and many others, and make compilations available for a fee.  These “people search” services, thus far, have successfully claimed they are mere information aggregators not subject to FCRA: “these websites provide disclaimers warning users they are not to use the information for any sort of decision-making (such as hiring or housing decisions) but rather can only use the information for review of public records in an information-gathering spirit.” One wonders: How often might employers, landlords and other decisionmakers skip official FCRA reports and go to an unregulated, perhaps cheaper, web search?  Since the chances of getting caught and punished seem small, one might assume it happens a lot. In addition, the quality of this data is sometimes poor; are such things as expungements and set-asides pursuant to state law are reliably added to the databases?

The result is what the authors term “disordered punishment,” imposition of punishment is not restricted to the state: “Employers, insurers and landlords—but also neighbours, acquaintances and potential partners—ultimately determine whether impactful consequences are imposed and, if so, with what magnitude.”  As a result, the consequences of a crime or an accusation become unpredictable.  In some cases, the consequences will be vastly disproportionate to the underlying conduct, for example, when a serious charge has been made but dropped because authorities believe the accused is innocent or even prove the guilt of someone else.  In such cases, decisionmakers may still conclude that looking for another tenant, employee, or date is the safest course.

The paper does not propose solutions, but the CCRC project on non-conviction records may lead to some reforms that could mitigate the problem.  Perhaps the government should not make some records available at all, perhaps some entities now not subject to FCRA should be included, and at a minimum the law should be set up so that if a conviction has been subject to some sort of set-aside, that fact also must be disclosed.

“Invisible Stripes: The Problem of Youth Criminal Records”

This is the title of a paper by Professor Judith McMullen of Marquette University Law School.  Professor McMullen points out that “the efforts of today’s young people to ‘go straight’ are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.”  She argues that “we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.”

CCRC’s forthcoming study of how jurisdictions manage non-conviction records underscores the points made in this article.  It may come as a surprise to many that few jurisdictions automatically limit public access to and use of non-conviction records, and in fact many facilitate both through mass on-line posting of records – including arrests that never result in charges.  Even states that authorize courts to seal or expunge non-conviction records frequently impose daunting barriers to this relief, including financial barriers.  A decision of the Iowa Supreme Court last month, upholding a law conditioning expungement of dismissed charges on an indigent defendant’s payment of court-appointed attorney fees, vividly illustrates this access to justice problem that squarely frustrates efforts at reintegration.  There are a number of studies underway of the adverse effect of court debt on reentry, but none that we know of linking court debt to the operation of “clean slate” laws.

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Should potentially severe collateral consequences trigger enhanced procedural protections?

In two recent law review articles, Professor Paul T. Crane of the University of Richmond School of Law proposes that courts and legislators—when deciding whether a criminal defendant is entitled to a particular procedural right—should take into account potential exposure to severe collateral consequences.  The two articles together mark a major contribution to the literature.  Much attention has focused on alleviating or eliminating collateral consequences after the criminal case is closed, via restoration of rights, clemency, expungement, and other forms of relief.  Also, lawmakers, courts, and prosecutors have increasingly turned to diversions and deferred adjudications to avoid a conviction record in the first instance.  However, far less attention has been paid to the procedural rights provided to criminal defendants facing potentially severe collateral consequences.  As Crane points out, collateral consequences are “generally deemed irrelevant for determining what procedural safeguards must be afforded.”

In Crane’s first article, he argues that courts and legislatures ought to take into account a defendant’s exposure to potentially severe collateral consequences in determining whether procedural safeguards, such as the right to counsel and to a jury trial, apply.  In his second article, he proposes a framework for determining when defendants may be entitled to enhanced procedural protections.

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“Third-Class Citizenship” for people with a “violent” record

Professor Michael M. O’Hear of Marquette University Law School has an important new article titled “Third-Class Citizenship: The Escalating Legal Consequences of Committing a ‘Violent’ Crime.”  This marks the first effort to systematically study the full legal consequences of a “violent” criminal charge or conviction, including the collateral consequences that uniquely apply to violent crimes.  O’Hear documents the growing network of these consequences, noting that recent criminal justice reforms tend to exclude people with “violent” as well as “sexual” offenses from relief available to other individuals with criminal records.

O’Hear canvasses the wide range and reach of legal definitions of what actually qualifies as a “violent” crime, concluding that many of these definitions “sweep in large numbers of offenses that lie outside core understandings of what constitutes violence.”  After this, the article provides a 50-state overview of the statutory consequences of a violent charge or conviction, and raises concerns about whether these consequences are proportional, provide fair notice, and promote public safety.

The abstract of the article, to be published in a forthcoming issue of Northwestern University Law School’s Journal of Criminal Law and Criminology, follows:

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Symposium on felony disenfranchisement set for Friday in Missouri

On Friday, April 12, a day-long symposium on felony disenfranchisement will be held at the University of Missouri in Columbia, MO.  The event, hosted by the Missouri Law Review and Kinder Institute on Constitutional Democracy, is open to the public.

Three panels of scholars will address: (1) the historical origins of conviction-based disenfranchisement and its consequences for democracy—featuring CCRC board member Gabriel “Jack” Chin, among other panelists; (2) felony disenfranchisement, voting rights, and elections; and (3) the democratic challenges of voting rights restoration.  Pamela S. Karlan will deliver the keynote.

For further reference, see our 50-state comparison chart documenting the loss and restoration of voting rights across the country; Gabriel “Jack” Chin’s recent book review: “New book argues collateral consequences can’t be justified”; and our comment on Professor Beth Colgan’s article on how inability to pay economic sanctions associated with a criminal conviction results in continuing disenfranchisement nationwide.

New book argues collateral consequences can’t be justified

University of Nottingham philosophy professor Zachary Hoskins has written an important new book about “collateral legal consequences” (CLCs), just published by Oxford University Press.  Beyond Punishment? A Normative Account of the Collateral Legal Consequences of Conviction engages cases and statutes from the United States and other countries, but it is primarily a philosophical interrogation of the legitimacy of CLCs, not an analysis of legal doctrine or constitutional limitations.

A core principle is the powerful one that harsh treatment and disadvantage requires justification, particularly when hardships are imposed on specific groups.  Beyond Punishment argues that CLCs could be justified as criminal punishment to some degree, but that legitimate punishment is that which is necessary and sufficient to pay one’s debt to society. The way CLCs actually operate in the United States often does not fit into this category.  First, CLCs are not characterized as punishment (and therefore are exempt from the constitutional limitations on criminal punishment) but as civil, regulatory measures.  Second, they are often imposed years after completion of the criminal sentence.

A non-punitive rationale might be that by breaching the social contract, people with convictions are not entitled to the benefits of that contract.  But this proves too much–because someone jaywalked in 1989 does not mean they can legitimately be robbed or defrauded today.  If breaching the social contract justifies only a proportional as opposed to an unlimited response, most CLCs go too far. Beyond Punishment also criticizes public safety as a justification for CLCs, for essentially the same reason: The more or less random and arbitrary imposition of collateral consequences is unduly harsh on some, while others who should be restrained for the same reason but have no criminal conviction are not subject to CLCs.

Beyond Punishment’s careful analysis and precise definitions make a strong case that CLCs are, as Justice Kennedy said about imprisonment itself, disabling “too many persons for too long.”  But the tradition of American constitutional jurisprudence, anyway, has not been to require rigorous fairness or precise justification for hard treatment.  Even with regard to incarceration, the Eighth Amendment’s prohibition on cruel and unusual punishment has not been much of a limitation on brutal sentences for minor crimes.  This is, to some extent, good news as well as bad.  While courts have proved, thus far, of only limited help in reining in collateral consequences and other criminal sanctions, legislatures are as unconstrained in repealing or mitigating them as they were in imposing them in the first place.  Legislators and voters, as well as students and lawyers, will be hard-pressed to justify our current system of CLCs after reading this book.

 

“High Time for Marijuana Expungement”

Any state that legalizes or decriminalizes marijuana should automatically include an expungement provision that clears the criminal record of individuals who engaged in activities deemed lawful under the new legalization or decriminalization laws.  This is the thesis of my new article, “High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Laws.”  At the federal level, Senator Cory Booker’s recently reintroduced Senate Bill 597, the “Marijuana Justice Act of 2019,” would do just that: remove marijuana from the Schedule of Controlled Substances and expunge records of marijuana possession and use convictions.  At the same time, some local governments are focusing on more efficient and expeditious expungement processes.  Earlier this year, the San Francisco District Attorney partnered with Code for America to identify and process eligible marijuana cases, including past convictions dating back to 1975.  The Denver District Attorney launched “Turn Over a New Leaf Program,” which helps individuals who committed now-repealed marijuana-related offenses vacate the records of their convictions.  While Colorado has a marijuana sealing statute (Col. Rev. Stat. § 24-72-710 allows sealing of misdemeanor marijuana possession or use offenses if an individual files a petition, pays a filing fee plus $65, and proves that the offense is no longer considered a crime), the New Leaf Program has attorneys from the Denver City Attorney’s Office guide individuals through the process and ask courts to vacate, dismiss, and seal convictions for marijuana offenses that are no longer illegal.

However—as I document in my article—of the ten states that have legalized, only four states have enacted marijuana-expungement legislation; of the thirteen states that have decriminalized marijuana, only three have enacted marijuana-expungement legislation.  My article includes charts compiling the status of expungement statutes in states that have legalized or decriminalized recreational marijuana and includes a model marijuana expungement statute.  My article draws on previous scholarship in this area by Professor Douglas Berman (Leveraging Marijuana Reform to Enhance Expungement Practices) and CCRC fellow David Schlussel (The Mellow Pot-Smoker: White Individualism in Marijuana Legalization Campaigns).

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Starr and Prescott publish groundbreaking empirical study of expungement

Professors Sonja B. Starr and J.J. Prescott of Michigan Law School have released the first-ever broad-based empirical study of the effects of a state law limiting public access to criminal records.   CCRC’s reports have noted the lack of empirical research to inform policies aimed at promoting reentry and reintegration for people with a criminal record—something this study of Michigan’s set-aside law begins to correct.  As its authors observe, “Despite the considerable legislative ferment and the excitement that surrounds ‘clean slate’ initiatives in the civil rights and criminal justice reform worlds, what has been missing from the debate is hard evidence about the effects and true potential of conviction expungement laws.”  A reason for this, as the authors also note, is that by definition criminal records that are the subject of sealing or expungement relief are often unavailable to study.  [Note:  In the summer of 2019, the study was accepted for publication in the Harvard Law Review.]

Using a data-sharing agreement with multiple Michigan state agencies, Starr and Prescott completed an extensive statewide analysis of expungement of criminal convictions in Michigan over the course of decades.  Their analysis reveals three key findings:

  • Uptake:  Just 6.5% of those eligible for expungement successfully complete Michigan’s application process within five years of eligibility.
  • Recidivism:  Expungement recipients “have extremely low subsequent crime rates, comparing favorably to the general population—a finding that defuses a common public-safety objection to expungement laws.”
  • Employment:  Expungement receipts see a “sharp upturn” in wage and employment: wages go up on average by 25% within two years, driven mostly by “unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.”

These conclusions just about cover the waterfront of findings we would most like to see about laws that limit public access to criminal records.  Looking at them in reverse order, Starr and Prescott find that expungement is valuable in economic terms for those who receive this relief, and improvements in their economic status will in turn benefit their families and communities.

They also find that those who benefit from expungement present no particular threat to public safety, whether because recipients of expungement are self-selected criminal justice success, because the courts that grant them relief take their likelihood of reoffending into account, or because expungement itself does not tend to increase recidivism risk (and in fact may reduce it).

Finally, and perhaps most disturbingly, few of the people who are intended beneficiaries of Michigan’s expungement law actually obtain this relief, either because they don’t apply for it or because their applications for expungement are not approved.  The authors find six reasons that account for this “uptake gap” (which is greater for people with misdemeanors than felonies):

  • lack of information about the availability of relief;
  • administrative hassle and time constraints;
  • cost (including court filing fees, lost wages, and transportation costs);
  • distrust and fear of the criminal justice system;
  • lack of access to counsel; and
  • insufficient motivation to remove conviction.

In addition, while not a part of the “uptake gap” strictly speaking, the authors note that “every advocate that we spoke to also emphasized the stringency of the eligibility requirements, which in their view exclude a great many worthy candidates.”  (A person must have no more than one felony conviction and no more than two misdemeanor convictions in order to be eligible for “set-aside” under what is commonly known as the “general expungement statute.”  In contrast to most states, however, most felony convictions are eligible for set-aside.  A Michigan set-aside limits public access to the record, but it remains available to law enforcement and some other government agencies.  See the description of Michigan’s law providing for set-aside in the Michigan profile from the Restoration of Rights Project.)  The authors remark about the eligibility requirements for set-aside in Michigan:

All of these restrictions mean that the low uptake rate we estimated is even starker when viewed in context: it is a very small fraction of a very small fraction. For the past decade about two thousand set asides per year have been granted in Michigan. Meanwhile, each year the Michigan state courts add about 300,000 new criminal convictions. On balance, the population of people living with criminal records is continuing to grow quickly; the set-aside law is like a bucket removing water from an ever-rising ocean.

We note that Michigan’s eligibility requirements are actually more inclusive than those in most states.  See this 50-state chart.

We expect that the findings of this remarkable new study will prove uniquely valuable to advocates and policy-makers considering changes to laws authorizing relief from collateral consequences in the days and years ahead.

“Executive Clemency in the United States”

This is the title of CCRC Executive Director Margaret Love’s new article for the Oxford Research Encyclopedia.  The article describes the historic role played by the executive pardon power in reducing punishments (including collateral ones) and explains clemency’s diminished vitality and reliability in modern times in most states and in the federal system.  Love concludes that “[i]t appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.”

Here’s the abstract:

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“Wealth-Based Penal Disenfranchisement”

This is the title of an important new article by Professor Beth Colgan, forthcoming in the Vanderbilt Law Review, in which she documents how inability to pay economic sanctions associated with a criminal conviction (such as fines, fees and restitution) results in continuing disenfranchisement nationwide.  While the law in almost every state now restores the vote to those convicted of felonies no later than completion of sentence, and while fewer than a dozen states explicitly condition re-enfranchisement upon payment of court-imposed debt, Colgan shows how the link between re-infranchisement and conditions of supervision “significantly expands the authorization of wealth-based penal disenfranchisement across the country.”  Through a detailed analysis of interrelated laws, rules, policies and practices, including those related to conditions of probation and parole, she establishes that “wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia.”

After describing the mechanisms of wealth-based penal disenfranchisement, Colgan offers a legal theory for “dismantling” them.  She argues that courts have looked at these mechanisms “through the wrong frame—the right to vote—when the proper frame is through the lens of punishment.”  Applying the doctrine developed in cases restricting governmental action that would result in disparate treatment between rich and poor in criminal justice practices, she concludes that wealth-based penal disenfranchisement violates the Fourteenth Amendment.

The article’s abstract follows:

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