Category: Relief

Restoration of firearms rights: 50-state surveys

We have recently converted the 50-state surveys that are part of the Restoration of Rights Resource from PDF to HTML format.  Two of these surveys deal with loss and restoration of firearms privileges as a result of a criminal conviction:  Chart # 1 is titled “Loss and restoration of civil rights and firearms privileges,” and Chart # 2 is “State law relief from federal firearms disabilities.”   Chart # 1 is a straightforward description of the relevant provisions of each state’s laws, showing when firearms rights are lost based upon a felony conviction (or in some cases misdemeanor crimes of violence) and how firearms rights may be regained.  Chart # 1 also describes for each state when conviction results in loss of basic civil rights (voting, eligibility for public office and jury service), and how those rights are regained — a matter that is frequently relevant for avoiding the independent penalties under federal firearms dispossession laws.

Chart # 2 attempts the more complex analysis of when criminal conviction results in exposure to federal prosecution as a “felon in possession” under 18 U.S.C. § 922(g). Regaining firearms rights under state law does not automatically result in avoiding the federal bar, which generally depends upon an additional measure of state relief such as a pardon or expungement, or restoration of civil rights.  (The courts have generally held that automatic restoration counts.)  Surprisingly, the law is not entirely clear as to when a state conviction will trigger the federal penalty, and when state relief removes it.  Chart # 2 therefore emphasizes the importance of seeking legal counsel to avoid liability.

For those with a federal conviction, the only way to avoid liability under § 922(g) and regain the right to possess a firearm is through a presidential pardon (which would also relieve any state law liability).  The administrative restoration provision in 18 U.S.C. § 925 has not been funded for 25 years.  As reported by Alan Gura in a post on this site last winter, a few individuals with dated nonviolent federal convictions have been successful in regaining firearms rights through the courts.

The 50-state charts will remain available for download in PDF form.

 

Gleeson Certificate enters “uncharted waters”

The New York Law Journal published an article over the weekend about the “novel relief” provided by the federal certificate of rehabilitation issued by former Judge John Gleeson on March 7, just days before he stepped down from the bench.  A reproduction of the certificate reveals its official appearance, complete with court seal and signatures of Judge Gleeson and the Chief U.S. Probation Officer.

certificate-of-rehabilitation

The government has until April 7 to appeal – the very day its appeal of Judge Gleeson’s expungement order in his first Jane Doe case will be argued in the Second Circuit.  The jurisdictional issues presented by the certificate order may be similar, if only because the certificate has some effect under state law.  See N.Y. Correct. Law §§ 703(7), 752, both cited in Judge Gleeson’s opinion.  It is likely that others similarly situated will apply for similar relief.

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Judge Gleeson issues a “federal certificate of rehabilitation”

In his final week on the bench, in an opinion that may in time prove among his most influential, U.S. District Judge John Gleeson issued a “certificate of rehabilitation” to a woman he had sentenced 13 years before.  See Jane Doe v. United States, No. 15-MC-1174 (E.D.N.Y., March 7, 2016) (Jane Doe II).  The opinion breaks new ground in holding that federal courts have authority to mitigate the adverse effects of a criminal record short of complete expungement.  Along the way, it confirms that a district court may use its inherent equitable powers to expunge convictions in “extreme circumstances,” an issue now on appeal to the Second Circuit in Judge Gleeson’s earlier expungement case.  (Jane Doe I has been calendared for argument on April 7.)  The opinion also finds a role for federal probation to play, including under New York State’s “robust” certificate system, which lifts mandatory state law bars to employment and other opportunities.  It does all of this in a manner that should make it hard for the government to appeal, since “this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.”    

Joe Palazzolo at the Wall Street Journal blog noted that  

More than a dozen states and the District of Columbia issue certificates to certain ex-offenders who have shown their days of crime are behind them, usually by remaining offense-free for a long stretch. . . . . 

There is no equivalent federal certificate. So Judge Gleeson invented his own.

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New York certificates of relief fall short in practice

New York’s venerable certificate of relief scheme, which aims to mitigate the adverse collateral effects of criminal conviction, has served as a blueprint for certificate laws recently adopted in many other states.  But are New York’s certificates actually effective at restoring rights and status? That is a question addressed in two new scholarly articles, both of which find that New York’s certificates are frequently inaccessible to their intended beneficiaries and misunderstood both by the officials tasked with issuing them and the employers and licensing boards that should be giving them effect.

Governor Cuomo recently directed reforms in the process for obtaining certificates in response to a report concluding that it has “historically been burdensome and slow.”  These articles should be useful in that effort.

Both articles use interviews and anecdotal evidence to shed light on how certificate schemes operate in practice, providing insight into how government officials (including judges and probation officers), employers and convicted individuals interact with the laws (or fail to) in the real world. The increasing popularity of such well-intentioned laws represents an encouraging shift in legislative attitudes about second chances; but, as the articles make clear, they are only as good as their real-world application, which is more limited and less effective than many suppose.

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50-state guide to expungement and sealing laws

The 50-state chart of judicial relief mechanisms from the NACDL Restoration of Rights Resource, which is also posted on this site, is a comprehensive survey of all authorities for judicial relief in the states and federal system. We wanted to bring it to our readers’ attention in light of the new federal interest in helping individuals with a criminal record overcome barriers to employment and licensing through clearing their records.

The National Clean Slate Clearinghouse, recently announced as part of President Obama’s reentry initiative, will “provide technical assistance to local legal aid programs, public defender offices, and reentry service providers to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.” This joint project of the Labor and Justice Departments will doubtless make it a first priority to survey the laws providing judicial and other relief in different states, to determine what sort of assistance lawyers will need to neutralize the adverse employment consequences of conviction, though the courts or otherwise.  We hope these resources will prove useful in that effort.

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Medicare Employment Exclusions and Criminal Records: Good and Bad News

Yvelisse Pelotte, a staff attorney at Community Legal Services of Philadelphia, has drafted a survey and analysis of the barriers to employment in Medicare-funded programs and facilities for people with a criminal record, which is posted below.  While some of these exclusions are short-term and others can be waived by the Secretary of HHS, the statute gives HHS a great deal of latitude in extending exclusions for a lengthy period of time.

The applicable federal statute also contains a very broad definition of disqualifying conviction, specifically extending to expunged convictions and guilty pleas not resulting in conviction.  This means that federal law effectively puts off limits a very large segment of health care jobs, at least temporarily, for people with criminal records the state no longer regards as serious, if it ever did.

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Connecticut’s trail-blazing Gov. Dannel Malloy

The New York Times published a terrific editorial today describing in detail the extraordinary work being done by Governor Dannel Malloy and others in Connecticut to reform the system of criminal punishment, and to assist those with a criminal record get jobs and qualify for other benefits and opportunities.  Rather than try to summarize all of Connecticut’s trail-blazing accomplishments under Governor Malloy, we are reprinting the editorial in its entirely here.

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Outgoing Kentucky governor issues order restoring voting rights

Kentucky

UPDATE: Governor Matt Bevin rescinded Governor Beshear’s order on December 22, 2015, saying:

While I have been a vocal supporter of the restoration of rights, it is an issue that must be addressed through the legislature and by the will of the people.

Governor Bevins went on to sign a major felony expungement bill in April of 2016 that gives many with felony convictions the chance to restore their voting rights.

 

 

The outgoing Democratic governor of Kentucky has signed an executive order restoring the right to vote and hold public office to thousands of people convicted of non-violent felonies who have completed their sentences.  The order from Gov. Steve Beshear — who leaves office next month — estimates that about 180,000 people in Kentucky have served their sentences yet remain disenfranchised.  As a result of the order, 140,000 of those will become immediately eligible to register.

Before today, all convicted individuals were required to apply to regain their right to vote to the governor’s office, which approved restoration of voting rights on a case-by-case basis.  The order does not restore rights to those convicted of specified violent crimes, sex offenses, bribery or treason, who will still have to apply for discretionary restoration.

“All of our society will be better off if we actively work to help rehabilitate those who have made a mistake,” Beshear said. “And the more we do that, the more the entire society will benefit.”

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Interstate restoration of rights

State_border_sign_on_NY_17Can people restored to full legal status in one state expect their status to be recognized if they move to another state, just as marriage is generally given interstate recognition?  Can a person convicted in one state qualify for restoration of rights in another? What about a federal offender seeking relief under state law, or a state offender seeking relief from federal collateral consequences?  Is there a role for Congress to play in ensuring fair treatment of people with a criminal record as they move around the country?  These questions are increasingly important both as a practical and theoretical matter, as collateral consequences multiply and begin to limit Americans’ right to travel.

So it is timely that Wayne Logan, a Florida State University law professor widely known for his work on sex offender registration and other collateral consequences, has published a fascinating new treatment of the issue titled ‘When Mercy Seasons Justice’: Interstate Recognition of Ex-Offender Rights.  The article, which appears in the UC Davis Law Review, examines the impact of federalism on the ability to obtain true relief from the collateral consequences of conviction in a mobile society.  It is an issue that is widely overlooked, and the article reminds us that a comprehensive discussion about the impact of collateral consequences must take into account their inter-jurisdictional effects. The true impact of collateral consequences and relief mechanisms must be measured by the interplay of laws between jurisdictions as well as by the interplay of laws within them. Read more

Obama again signals “expect few pardons from me”

Yesterday President Obama participated in a panel discussion of criminal justice issues moderated by Bill Keller of The Marshall Project and streamed to the public.  While the subject of clemency did not come up during the videotaped panel discussion, in a prior interview with Keller the President said that he intended to “speed up the process” of considering prisoner petitions seeking commutation of sentence.  At the same time, he again signaled that he was not similarly interested in cases involving dated convictions where a petitioner is seeking pardon to relieve collateral consequences:

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