Category: Types of Consequences

International travel restrictions based on criminal record

Collat_ConsequencesBelow is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Consequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about restrictions on international travel based on criminal record.  The first section discusses the subject in general terms, while the second section describes restrictions on travel to Canada for individuals with a foreign conviction, and the methods of overcoming these restrictions.  (An earlier post described methods of neutralizing Canadian convictions for purposes of travel to the U.S.)

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Minnesota’s sweeping new expungement law takes effect

1932MinnesotaSnowScene640Beginning January 1st, 2015, many Minnesotans will have a meaningful shot at a second chance through criminal records expungement. For decades, many individuals have relied upon (and often languished under) a court’s inherent authority to expunge (or seal) criminal records, but recent Minnesota Supreme Court decisions effectively eviscerated that remedy. Without a legislative act expressly granting judicial authority to seal records held within executive branch agencies, the majority of petitioners were granted orders sealing only court records—leaving numerous publicly accessible criminal records untouched.

The new law, passed with bipartisan support and building upon momentum gained with last year’s Ban the Box for private employers, changes that.   It provides new authority for expunging (sealing) both criminal and juvenile records held by executive branch agencies; requires data mining companies to observe expungements, protects employers and landlords hiring and renting to individuals with expunged records, addresses victimization and housing evictions, and clarifies a number of procedural issues.  The standard for granting expungement remains that under current law, requiring the court to balance private and public interests.

While by no means a silver bullet, this new legislation will help a significant number of Minnesotans currently locked out of employment, housing, licensure, education, and countless other of life opportunities, by providing a true opportunity for a second chance.

Here is an explanation of the new law’s specific provisions. 

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Criminal records and the Obama immigration initiative

The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges.

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“Arrests as Regulation”

Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the s3984426260_07b0b8ca51ame kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access.

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Can a taxi license be revoked based on arrest alone?

I went to college, and practiced law, with Dan Ackman, an outstanding New York lawyer who represents taxi drivers in a variety of contexts.  One of his cases, pending in the Southern District of New York, Nnebe v. Daus, challenges the TLC’s alleged practice of automatic license suspension a upon arrest for a felony or specified misdemeanor, and automatic revocation upon conviction, even if the charges had no temporal, physical or logical relationship to driving a cab.  The Second Circuit previously held that automatic revocation was constitutional, but directed a trial on whether the post-deprivation hearing was sufficient.  The case was remanded, tried, and is now pending a decision before Judge Sullivan.  The case has important implications for collateral consequences; mere arrests should not be the basis for any important decision, other than an inquiry into the actual facts, and even a conviction for an unrelated offense should not be the basis for  license revocation.

“Sex Offender Laws Have Gone Too Far”

We recently came across this five-part series on sex offender registries, written by three Yale Law School students and published by Slate.com.  It traces the recent history of registries since the passage of the Jacob Wetterling Act in 1994, examines some of the fallacies and flawed stereotypes underlying the expansion of registries in the past 20 years, and spotlights three areas in which the authors argue their growth has been especially unwise:

  • more non-violent “outlier” crimes are covered;
  • states are keeping people on registries for longer periods of time and making removal harder; and
  • more harsh collateral consequences attach to those required to register.

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“Decades-long Arrest Wave Vexes Employers”

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.

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Second Amendment challenges to felon-in-possession laws

Below is another excerpt from the second edition of Love, Roberts & Klingele, Collateral Collat_ConsequencesConsequences of Criminal Conviction: Law, Policy & Practice (West/NACDL, 2d ed. 2015)(forthcoming), this one about challenges to firearms-related collateral consequences based on the constitutional right to bear arms.  Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms rights after conviction, will be interested to know that the government has appealed the district court’s decision in Binderup v. Holder cited in note 8, discussed here a few weeks ago.

Binderup is a civil rights action in which the federal court in the Eastern District of Pennsylvania held that the federal felon-in-possession statute could not constitutionally be applied to an individual convicted of a non-violent sex offense in 1998 and sentenced to probation.  This case, the first in which a federal court invalidated a federal statute on Second Amendment grounds, is likely to provide an early opportunity for the court of appeals to consider an issue that most commentators and some courts believe was left unresolved by the Supreme Court in D.C. v. Heller.

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Discipline for schoolgirls differs by race and skin tone

The New York Times this morning describes data from the U.S. Department of Education’s Office for Civil Rights showing that African-American girls tend to face more serious school discipline than white girls.  “For all the attention placed on problems that black boys face in terms of school discipline and criminal justice, there is increasing focus on the way those issues affect black girls as well.”  Black girls who get in trouble at school are also more frequently referred to the criminal justice system, where they can incur a criminal record that sticks with them into adulthood.

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Guess who’s driving for Uber

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 allege1418261730022.cacheddly 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

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