Category: Criminal Records

Vermont AG supports opportunities for diversion and expungement

Vermont Business Magazine recently showcased the leadership shown by Vermont Attorney General TJ Donovan in criminal justice reform.  Most notably, he has streamlined the process for seeking expungement, and increased opportunities to avoid a record entirely through greater use of diversion for less serious offenses.  The importance of enabling people to avoid a criminal record altogether through these two mechanisms cannot be overstated.  Donovan also championed last year’s bail reforms that will ensure low-income individuals are not held in jail prior to trial simply because they are poor. The article is worth posting in full as an illustration of a new breed of prosecutor committed to reducing the ill effects of the “tough on crime” era on individuals and communities least able to overcome them.

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Landmark criminal record disclosure case in the UK Supreme Court

Court litigation and policy debate revolving around the issue of criminal record disclosure are not unique to the United States. Especially in the United Kingdom, the past few years have witnessed important court decisions on the legal framework in place regulating access to criminal history information and the amount of information that can be obtained by third parties. For people with criminal records in the United Kingdom, last month was pretty significant.  This is why I am very happy to post on the CCRC blog a commentary on recent litigation before the UK Supreme Court authored by Christopher Stacey, co-director of Unlock, an independent charity organization that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record. Christopher last month led Unlock’s intervention before the UK Supreme Court. They put forward strong arguments on behalf of those who are unfairly affected by the criminal records disclosure regime.

Before discussing the case, let me briefly summarize the framework of the disclosure regime currently in place in the UK.  This regime and the ongoing court litigation should be particularly interesting to advocates and lawmakers in the U.S. who are working to reform their own regimes.

Following the adoption of the Rehabilitation of Offenders Act in 1974, adult and juvenile convictions automatically become “spent” after the passage of a certain amount of “rehabilitation” time following completion of the sentence if the punishment imposed in court did not exceed a certain threshold provided for by the law (currently, a custodial sentence of over four years). Convictions triggering a custodial sentence of more than four years can never become spent.  Required periods of post-sentence rehabilitation before a conviction is considered spent currently range from one to seven years for adult convictions, and from six months to three and a half years for juvenile offenses.  There is no rehabilitation period before criminal records not resulting in conviction are considered spent.

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“Managing Collateral Consequences in the Information Age”

“Managing Collateral Consequences in the Information Age” is the title of a symposium issue of the Federal Sentencing Reporter.  It is composed of papers prepared for a Roundtable conference on criminal records issues jointly sponsored by the American Law Institute and the National Conference of State Legislatures in January 2018, and associated primary source materials.  The issue’s Table of Contents shows the breadth and variety of topics covered. An introductory essay by Margaret Love summarizes the approach to managing collateral consequences in the revised sentencing articles of the Model Penal Code, and the seemingly contrary trends in criminal records management in state legislatures in recent years.  She describes each of the papers in the issue, and policy recommendations tentatively reached by participants in the January Roundtable.

  • Alessandro Corda of Queens University (Belfast) contributes a discussion of “American exceptionalism” in criminal records matters, and proposes a way of neutralizing their malign effect.
  • Scholars and practitioners describe how relief schemes work (or don’t work) in states as diverse as:
    • North Carolina (John Rubin, UNC/Government)
    • Tennessee (Joy Radice, UT/Law)
    • Nevada (Sen. Tick Segerblom and Nick Anthony, NV Legislature)
    • California (Jack Chin, UC Davis/Law; Eliza Hersh)
    • Indiana (Josh Gaines and Margaret Love, CCRC)
  • Douglas Berman and Nora Demleitner write about subsets of the collateral consequences problem (sex offender registration and marijuana decriminalization).
The issue also publishes the provisions of the Model Penal Code: Sentencing on non-conviction dispositions and on collateral consequences, and a collection of reports and other materials from the Collateral Consequences Resource Center.
The University of California Press has generously made available to non-subscribers the entire FSR issue for downloading at this link.
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President Trump supports opportunities for people with a criminal record

In an editorial published on May 21, the New York Times commended President Trump for remarks at a White House conference on prison reform last week, in which he expressed support for improved employment opportunities for people with a criminal record:

“A friend of mine told me that when people get out of prison, they’re all excited.” Mr. Trump said. “And then they go and they have that stigma; they can’t get a job. People don’t want to hire them. They can’t get that chance. When we talk about our national program to hire American, this must include helping millions of former inmates get back into the work force as gainfully employed citizens.”
It appears that most of the relevant discussion at the conference last week was about a House bill aimed at preparing federal prisoners for reentry, addressing such issues as good time credit and halfway house placement.  It also appears that the prospects for federal prison reform this year are dim, given the wide gulf between the pending House bill and the insistence of Senate leadership on including provisions for sentencing reform.  Nonetheless, the President’s words will be very useful for those working in state legislatures to restore rights and status.  Already in 2018, at least 13 states have enacted laws either reforming occupational licensure or extending record-clearing laws, and bills are awaiting the governor’s signature in another five.  We are already starting work on a report summarizing legislative accomplishments in 2018 that will be modeled on “Second Chance Reforms in 2017” published last fall.
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“The Scale of Misdemeanor Justice”

There is a growing awareness that the consequences of a misdemeanor arrest or conviction have become exponentially more serious in recent years.  We also know that the misdemeanor system is enormous, and that its very size makes it particularly susceptible of abuse.  Yet we have very little reliable information about how many people in the United States have a misdemeanor record.  A new research report by Professors Megan Stevenson and Sandra Mayson begins to fill this gap, in the process challenging the conventional wisdom that the misdemeanor system is expanding.
Based on “the most comprehensive national-level analysis of misdemeanor criminal justice that is currently feasible,” the report reaches the surprising conclusion that both the number of misdemeanor arrests and cases filed each year have “declined markedly” in recent years.  At the same time, unsurprisingly, it concludes that there is “profound racial disparity” in misdemeanor arrest rates for most offense types, and that this disparity has “remained remarkably constant” over almost four decades.   While the report confirms current perceptions about the scale of misdemeanor justice and its disparate racial impact, its fascinating findings of “declining arrest and case-filing rates present a challenge for misdemeanor scholarship.”

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