Category: Scholarly articles

“More Justice and Less Harm: Reinventing Access to Criminal History Records”

This is the title of an important new article published by Alessandro Corda in the Howard Law Journal proposing a radical way of addressing the malign social impact of our current policies on public access to arrest and conviction records.  Corda traces the evolution of record dissemination policies and practices since the 1950s, contrasting the American and European experience where “informal collateral consequences” are concerned.  He critiques “partial remedial measures” like expungement and certificates of rehabilitation, and argues for making publication of a defendant’s record an “ancillary sanction” ordered (or not) by the court at sentencing.

While this solution may at first blush seem a bit ambitious, there are states (like Wisconsin) whose sentencing courts can offer the promise of set-aside and expungement upon successful completion of sentence, and that is indeed how the federal Youth Corrections Act operated before its repeal in 1984.

At the very least, Corda makes a convincing case that strong measures are necessary to mitigate the permanent stigma of a criminal record in the information age.  The historical and international material will be of particular value to those currently working on this problem in legislatures across the country.  Here is the abstract:

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Scholarship round-up IV

It’s time for another scholarship round-up! A more complete collection of scholarship on issues relating to collateral consequences and restoration of rights can be found on our “Books & Articles” page.  (Abstracts follow list of articles.) Past round-ups here.

Measuring the Creative Plea Bargain

Thea Johnson, University of Maine School of Law
Indiana Law Journal, Vol. 92, 901 (2017)

Dismissals as Justice

Anna Roberts, Seattle University School of Law
Alabama Law Review (Forthcoming)

Unstitching Scarlet Letters? Prosecutorial Discretion and Expungement

Brian M. Murray, University of Pennsylvania Law School
86 Fordham Law Review (Forthcoming)

Criminal Record Questions in the Era of “Ban the Box”

Mike Vuolo, Ohio State University
Sarah Lageson, Rutgers University
Christopher Uggen, University of Minnesota
16 Criminology & Public Policy 139 (2017)

The President’s Role in Advancing Criminal Justice Reform

Barack Obama
130 Harvard Law Review 811, 838 (2017)

Obama’s Clemency Legacy: An Assessment

Margaret Colgate Love
29 Federal Sentencing Reporter (forthcoming 2017)

Designed to Fail: The President’s Deference to the Department of Justice in Advancing Criminal Justice Reform

Rachel E. Barkow, New York University School of Law
Mark William Osler, University of St. Thomas – School of Law (Minnesota)
William & Mary Law Review, Vol. 59 (2017)

Expungement, Defamation and False Light: Is What Happened before What Really Happened or Is There a Chance for a Second Act in America?

Loyola University Chicago Law Journal (Forthcoming)
Doris Del Tosto Brogan, Villanova University School of Law

Leading with Conviction: The Transformative Role of Formerly Incarcerated Leaders in Reducing Mass Incarceration

Susan P. Sturm, Columbia Law School
Haran Tae, Yale University Law School
Columbia Public Law Research Paper No. 14-547 (2017)

Legal Aid with Conviction: How to Combat Barriers to Reentry by Using the Law

Vidhi Sanghavi Joshi, Legal Aid Society of Middle Tennessee
Clearinghouse Article, Sargent Shriver Center on Poverty Law (June 2017)

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Scholarship round-up III

A number of new and interesting articles on collateral consequences have come to our attention since we published our first big scholarship round-up only weeks ago. We provide information, links, and abstracts on these pieces below. A more complete collection of scholarship on issues relating to collateral consequences can be found on our “Books & Articles” page.

“Can We Forgive Those Who Batter? Proposing an End to the Collateral Consequences of Civil Domestic Violence Cases”

Joann Sahl, University of Akron School of Law

100 Marquette Law Review 527 (2017)

Each year courts issue more than 1 million civil domestic violence protection orders (CPOs). Although most of these orders will expire in one or two years, their impact often remains for much longer periods. The expired CPOs continue to carry stigma and significant prejudicial consequences for someone once labelled as a batterer. This Article explores how collateral consequences, generally recognized only in criminal cases, now afflict those involved in civil domestic violence cases. It examines the civil domestic violence process and discusses why the process and its resulting orders create collateral consequences. The Article also identifies those collateral consequences unique to CPO cases and reveals why these consequences continue to impact negatively former CPO perpetrators even when there is no active CPO. This Article recommends that courts adopt a judicial sealing remedy to limit the impact of collateral consequences in CPO cases with no active order. The Article also proposes a test that allows a court to seal a CPO case if the case presents unusual and exceptional circumstances and the applicant’s interest in having the case sealed outweighs any government interest in the case remaining public.

“Over-Incarceration and Disenfranchisement”

Murat C. Mungan, George Mason University – Antonin Scalia Law School

Public Choice (forthcoming)
Date Posted on SSRN: April 5, 2017

This article presents a model wherein law enforcers propose sentences to maximize their likelihood of reelection, and shows that elections typically generate over-incarceration, i.e., longer than optimal sentences. It then studies the effects of disenfranchisement laws, which prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group, and thereby causes the political process to push the sentences for criminal offenses upwards. Therefore, disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people’s criminal tendencies, i.e., when criminals vote less frequently than non-criminals.

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Scholarship round-up II – two new articles by Jack Chin

CCRC board member Jack Chin, Professor of Law at U.C. Davis, has recently posted two important articles about collateral consequences.  One is a general overview of various recent proposals to reform the way collateral consequences are treated in the justice system, which will be published as part of a report on scholarship on criminal justice reform edited by Professor Eric Luna. The other argues that under the Grand Jury Clause of the Constitution certain federal misdemeanors may only be prosecuted by indictment because of the severe collateral consequences they carry.   Chin and his co-author John Ormonde propose that “[m]ore thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge,” thereby sparing less serious offenders from the stigma of a criminal record.  Because federal law makes no provision for sealing or expunging nonconviction records, even dismissed charges will appear on a rap sheet. Read more

California set-aside enhances employment prospects

636054606033326119-1877630735_California-Outline-and-Flag-SolidSecond-chance mechanisms in California are working to increase the employment prospects and earning potential of Californians with criminal records according to a soon-to-be-published study by a team of researchers from U.C. Berkeley School of Law.

The study, by Jeffrey Selbin, Justin McCrary & Joshua Epstein, tracked over an eleven-year period the employment status and annual income of 235 Californians who had their convictions set aside or their offense level reduced from felony to misdemeanor, with the aid of the East Bay Community Law Center’s (EBCLC) Clean Slate Clinic.  The study finds a modest increase in the employment rate of those in the sample (most were already employed, albeit in low-wage jobs). More significantly, however, after three years their average real earnings increased by roughly a third.

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