Last week we announced the forthcoming publication of a national report surveying various legal mechanisms for restoring rights and opportunities following arrest or conviction, a revision and updating of our 2020 report “The Many Roads to Reintegration.” The first post in the series (“Expungement, Sealing & Set-Aside of Convictions“), published on February 25, gives some additional background about the report. The second post in this “preview” series (“Fair Chance Employment & Occupational Licensure“) was published on February 26. The third part (“Executive Pardon“) was published on February 28.
Today’s post concerns the role that court-managed diversionary dispositions play in reducing convictions and avoiding collateral consequences. Since our first national report was published in 2018, many states have expanded the availability of these non-conviction dispositions, including for any defendant potentially eligible for a probationary sentence, and made record clearing more generally available.
We expect to publish the whole national report, plus our Reintegration Report Card for 2022, later this week.
Judicial Diversion and Deferred Adjudication: A National Survey
An increasingly desirable strategy for facilitating reintegration through avoiding collateral consequences is to divert individuals away from a conviction at the front end of a criminal case. Diversion in its various forms offers a less adversarial means of resolving an investigation or prosecution through compliance with agreed-upon community-based conditions leading to dismissal of charges and termination of the matter without conviction. Diversionary dispositions are described in the Model Penal Code: Sentencing as a way to “hold the individual accountable for criminal conduct when justice and public safety do not require that the individual be subjected to the stigma and collateral consequences associated with conviction.” In this understanding, diversion functions as a mechanism for ensuring accountability and facilitating rehabilitation, rather than as retribution for its own sake. The effectiveness of diversionary dispositions in furthering these goals has not been studied in depth, and they are not without their controversial aspects, but existing research suggests their promise. Diversion may allow for a mutually-acceptable outcome for the prosecutor and defendant in cases where the extent of culpability is not clear, where a treatment intervention seems appropriate, or where the defendant otherwise fits within some category considered deserving of leniency (e.g., human trafficking victims, veterans, “youthful offenders”).
Last month, the Prison Policy Initiative released a report called Rigging the Jury, showing how all 50 states reduce jury diversity by excluding some people because of their criminal record, in some cases permanently.
The report, which includes a map, table, and detailed appendix explaining each state’s policies, shows that:
- 44 states bar people with felony convictions from jury service when they are no longer incarcerated. (By comparison, 30 states bar voting by those who are not incarcerated.)
- 6 states go even further, barring people with some misdemeanor convictions from juries.
- 7 states bar legally innocent people from juries if they are called to serve while charges are pending against them.
The report also explains how excluding people with records makes juries less diverse (e.g., one in three Black men have felony convictions), why jury diversity is essential to the fairness of a trial, and what must be done to fix this unfair system.
The full report is here.
Note: Our Restoration of Rights Project also provides state-by-state and 50-state information on loss and restoration of rights to serve on a jury due to a record. We updated and, in a few cases, corrected our data based on the PPI study – and thank its authors!
We are pleased to release a new report describing the present landscape of laws in the United States aimed at restoring rights and opportunities after an arrest or conviction. This report, titled The Many Roads to Reintegration, is an update and refresh of our previous national survey, last revised in 2018.
The report covers voting and firearms rights, an array of record relief remedies such as expungement and pardon, and consideration of criminal record in employment and occupational licensing.
In each section of the report we assign a grade to each state for each type of relief. We collate these grades to produce an overall ranking on the nine categories that we graded. That ranking is reproduced below.
We are encouraged by the amazing progress that has been made in the past few years toward neutralizing the effect of a criminal record since the present reform era got underway less than a decade ago. The last two years in particular have produced a bumper crop of new laws in almost every U.S. jurisdiction.
Some of our top performers have been long-time leaders in promoting reintegration, including Illinois, Utah, and Minnesota. But some of the most progressive lawmaking has come from states newer to the field, like Nevada, Colorado, and North Dakota. These and the other states in our Top Ten set an example that we hope will inspire other jurisdictions in the months and years to come.
The executive summary of the report is reprinted below. The full report is available in PDF and HTML formats.
A timely new article from CCRC board member Nora V. Demleitner, law professor at Washington and Lee University, considers the central role of prosecutors in determining who goes to jail and prison and how long they stay there. Demleitner reviews—as a “case study of prosecutorial authority”—prosecutors’ actions to reduce confined populations during the COVID-19 crisis. While prosecutors’ key role in charging and sentencing at the front end of a criminal case is well-established, in ordinary times their influence in its later stages, including in prison release decisions, is not so obvious. Professor Demleitner shows how the pandemic “highlights the tools prosecutors have at their disposal and how they can directly impact the size of the criminal justice system.” This in turn leads her to consider how “prosecutorial thinking” focused on public safety as opposed to public health “increasingly influences other branches of government” even in the midst of a pandemic.
Professor Demleitner’s article, “State Prosecutors at the Center of Mass Imprisonment and Criminal Justice Reform,” will be published in the April 2020 issue of the Federal Sentencing Reporter. The abstract is included below:
The 2019 legislative session saw two Southern states enact impressive new laws limiting the ability of occupational licensing boards to exclude qualified applicants based on their criminal record. North Carolina and Mississippi each passed strong new substantive and procedural licensing rules, and both of the new laws show the influence of the Model Law developed by the Institute for Justice. Both states have now eliminated vague “good moral character” criteria, and extended procedural protections that should make it substantially harder for boards to deny licenses based on criminal history.
As a result of these bills, both states now prohibit disqualification from licensure unless a crime is “directly related” to the license involved, both require written reasons in the event of denial, and both provide for a preliminary determination as to whether an individual will be favorably considered. In North Carolina’s case, this “predetermination” is binding on the board when the applicant later applies. North Carolina’s new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record.
In 2019, the following additional states have enacted new restrictions on the occupational licensing process: Arizona, Arkansas, Florida, Nevada, Ohio, Texas, Utah and West Virginia. All told, in the past eight months 14 states have enacted 18 laws regulating occupational licensing in one form or another, with Texas accounting for five of the 18. These new laws are described in the relevant state profiles of the RRP, and they will be discussed in greater detail in our year-end report. They will also be incorporated into the updating of our general survey of U.S. relief and restoration mechanisms (“Forgiving and Forgetting in American Justice”), which is now underway.
Colorado joins other states this session that passed legislation to avoid federal immigration consequences of state criminal matters. The new Colorado laws—SB 30 and HB 1148—work at different stages of criminal proceedings to protect people from possible deportation: SB 30 remedies past wrongs by vacating unconstitutional guilty pleas, and SB 1148 will prevent future deportations resulting from potential one-year sentences.
On May 28, Colorado enacted SB 30, which went into effect immediately and helps ensure that when a person is offered a non-conviction diversion, it is not treated as a conviction for immigration purposes. In many states, people facing criminal charges are offered the chance to avoid a conviction by agreeing to a type of diversion called deferred adjudication. They plead guilty and complete a period of probation, after which the plea is withdrawn and charges are dismissed. Sounds good right? Not for a non-citizen. In that case, federal law treats this arrangement as a conviction—sufficient to initiate deportation proceedings. See 8 U.S.C. § 1101(a)(48)(A); § 1227(a)(2). However, such a plea may be unconstitutional if a person was not properly advised of these immigration consequences. See Padilla v. Kentucky, 559 U.S. 356 (2010).
The new Colorado law provides procedures for courts to vacate an unconstitutional guilty plea where it has already been withdrawn and the charges dismissed. See Colo. Rev. Stat. § 18-1-410.5. Read more
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.
New Jersey Attorney General Gurbir Grewal recently issued new Guidance reminding municipal prosecutors that they cannot categorically refuse to prosecute marijuana cases while the Legislature is considering proposals relating to decriminalization. That said, the guidance reminds prosecutors that they have considerable discretion when deciding which maijuana cases to pursue. While this advice is fairly standard stuff, the second half of the guidance document is a fascinating glimpse into prosecutorial decision-making as it relates to collateral consequences. It follows a growing scholarly and legal consensus calling for opening the “black box” that is the prosecutorial mindset. For too long, the thought-processes behind prosecutorial decisions have eluded the public eye.
In essence, the guidance advises that the decision whether or not to bring charges may depend upon a defendant’s exposure to severe collateral consequences if convicted. Recognizing that prosecutors should consider collateral consequences brings their obligations closer to those imposed on defense attorneys by the Supreme Court eight years ago in Padilla v. Kentucky. Padilla required defense attorneys to know the immigration consequences faced by their clients or risk being labeled constitutionally ineffective. Many defense attorneys, public defenders, and legal aid organizations have devoted substantial effort to ensuring their clients know about housing, employment, educational, and other consequences that might attach to a conviction.
But any public defender can tell you that reliance on overburdened defense and legal aid attorneys to warn defendants and educate prosecutors about collateral consequences is bound to frustrate the goal of increasing systemic literacy. The value of the new AG guidance is in placing a burden on prosecutors to discover and take into account the effect of collateral consequences in particular cases in deciding whether or not to prosecute.
Two provocative new scholarly articles examine the extent to which the crisp line historically drawn in law between felonies and misdemeanors is becoming increasingly ephemeral. In Informed Misdemeanor Sentencing, Jenny Roberts points out that conviction of a misdemeanor has become exponentially more serious in recent years as the associated collateral consequences have increased in number and severity. She urges judges to “explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.” She recommends that sentencing courts should make “more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.”
Jack Chin and John Ormonde make essentially the same point about the blurring of the old distinction between felony and misdemeanor in a forthcoming article in the Minnesota Law Review. In Infamous Misdemeanors and the Grand Jury Clause, they point out that “[i]n the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment.” They conclude that, because of the stigma that attaches to any criminal record, the Fifth Amendment requires that “many more federal offenses should be prosecuted by grand jury indictment than is now the practice.”
It is impossible to determine exactly how many of the 48,000 consequences collected in the National Inventory of the Collateral Consequences of Conviction are triggered by a misdemeanor conviction, but so many legal and regulatory consequences attach to specific categories of offenses that include misdemeanors (e.g., drug crimes, sexual offenses, crimes involving dishonesty), it is likely a substantial portion. Moreover, given the ubiquity of criminal background checking pervading every area of modern life, even a criminal record involving dismissed misdemeanor charges may result in discrimination and exclusion.
Below are the abstracts for these two articles:
A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction. The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences. [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.]
In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief. As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences. The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone searching for innovative ways to lighten the burden of a criminal record.