Relief | Collateral Consequences Resource Center

Forgiving v. forgetting: A new redemption tool

March 19, 2015 Eli Hager

The following thought-provoking piece about the growing popularity of judicial “certificates of good conduct” was first published in The Marshall Project (www.themarshallproject.org) a nonprofit news organization focused on the US criminal justice system. The “forgiving” approach to avoiding or mitigating collateral consequences is an important alternative to the “forgetting” approach advocated by proponents of expungement or sealing, which tend in any event to be limited to minor dated offenses or arrests not resulting in conviction.

Forgiving v. Forgetting:

For offenders seeking a new life, a new redemption tool.

In February of 2003, a much younger Barack Obama rose before the Illinois State Senate to introduce a new piece of legislation that, he said, contained a compromise. The bill would help job-seekers who had long ago been convicted of a nonviolent crime (or two, at most) overcome the barriers to employment that came with having a criminal history. But the bill would do so without expunging their records.

Instead, Obama’s bill would create a final, years-later stage on the timeline of these ex-offenders’ cases. They had already completed the stages of arrest, booking, indictment, plea bargaining or trial, sentencing, incarceration and/or probation. Now, ex-felons who had stayed crime-free for a few years would be eligible to come back to court and, in a full-blown hearing before a judge, attempt to “prove” that they had been rehabilitated.

NH Supreme Court takes aim at federal felon-in-possession statute

March 13, 2015 CCRC Staff

In an important decision for firearms-related collateral consequences, the New Hampshire Supreme Court relied on the Second Amendment to carve out an exception to the so-called federal felon-in-possession statute, declining to follow relevant federal court precedents. At stake is whether state or federal courts have the last word on the scope of the exceptions in 18 U.S.C. 921(a)(20). In DuPont v. Nashua Police Department, the court held that a man convicted of a misdemeanor DUI, who as a result lost his right to possess a firearm under state and federal law, was able to avoid federal firearms disability by virtue of the restoration of his state firearms rights, even though he lost none of the traditional “core” civil rights (vote, office, jury). In order to get to this result, the court had to conclude that the right to possess a firearm is itself a civil right, whose loss and restoration under state law is sufficient to satisfy the “civil rights restored” requirement in 921(a)(20), thus creating a narrow but significant exception to the U.S. Supreme Court’s holding in Logan v. United States.

While the holding in DuPont applies only to a limited class of misdemeanants (those who lost and regained state firearms rights), the decision may be the opening salvo in a state backlash against federal efforts to define the scope of state relief recognized in 921(a)(20).

President promises a more “open” pardon process, more pardon grants

March 11, 2015 CCRC Staff

During a Town Hall in South Carolina on March 6, President Obama spoke for the second time in recent weeks about his intention to use his pardon power more generously in the final two years of his term.

Responding to a criminal defense attorney who asked what she could do to “increase the number of federal pardons,” the President explained that he was taking a “new approach” to pardons after receiving surprisingly few favorable recommendations from the Justice Department during his first term. He said he had asked the Attorney General to “open up” the pardon process, and to work with advocacy groups and public defenders to make people more aware of the availability of this relief:

Georgia becomes first state in South to ban the box

February 25, 2015 CCRC Staff

Goergia Governor Nathan Deal has signed an executive order making Georgia the first state in the South to ban the box in public employment. As reported on the “Inside Politics” blog of the Atlanta Journal-Constitution, “Job seekers applying for work with the state of Georgia will no longer need to disclose prior criminal convictions on their initial applications.” The order provides that this new policy “will allow returning citizens an opportunity to explain their unique circumstances in person to a potential employer.” Read more

New York certificate scheme found inaccessible and ineffective

February 23, 2015 CCRC Staff

The certificate system for restoring rights after conviction in New York no longer serves its intended purposes, according to an investigation by City Limits. The problem is that Certificates of Relief from Disabilities (CRD) are supposed to be a means to rehabilitation for people sentenced to probation, but the judges authorized to issue them see them (in the words of one public defender) “as a gold star, as a thing you get after you’ve been rehabilitated.” The Parole Board appears similarly Read more

Long waits for expungement frustrate public safety purposes

February 18, 2015 CCRC Staff

Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods. If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison. Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt.

How much must a law school applicant disclose about his criminal record?

February 12, 2015 CCRC Staff

The New York Court of Appeals is considering how candid a person must be about his prior criminal record when applying to law school. During oral argument on February 12 in Matter of Powers v. St. John’s University School of Law, several judges raised public policy concerns over the law school’s summary rescission of David Powers’ admission midway through his second year, based on how he had described his criminal record on his original application. Powers had disclosed a past conviction for drug possession, but did not also report that he had initially faced more serious charges of drug-dealing. These underlying charges came to light mid-way through Powers’ second year, when he sought clarification from the New York courts as to whether his criminal record would preclude his admission to the bar.

According to an account of the argument in the New York Law Journal, “[Powers] involvement with drugs seemed to concern state Court of Appeals judges less than St. John’s University’s decision to rescind his admission to law school.”

President promises more pardons (we think)

February 11, 2015 CCRC Staff

In a wide-ranging interview with Buzzfeed’s Ben Smith posted on February 11, President Obama was asked about the employment difficulties faced by young black men with a felony record. His response suggests that he may be interested in addressing through his pardon power the problems faced by people with federal convictions seeking restoration of rights and status, as he addressed them through law-making as a member of the Illinois legislature. This in turn suggests to us that the Justice Department may now be engaged, at the President’s direction, in a more proactive consideration of applications for a full presidential pardon. We post the exchange in full, so our readers can judge its import for themselves: Read more

The Eternal Criminal Record

February 2, 2015 CCRC Staff

The Eternal Criminal Record is the title of Professor James Jacobs’ new book, just out from Harvard University Press. This is the first comprehensive study of criminal records law and policy, and it deals with a range of contemporary legal and policy issues ranging from how records are created and disseminated, to how they are used by public and private actors, to how they are maintained and (perhaps) eventually sealed or destroyed. Professor Jacobs examines important jurisprudential issues such as the right to public access versus the right to privacy; the role of criminal records in punishment theory; how U.S. criminal record policy compares to other countries; and the intersection of public safety and fairness in imposing collateral consequences.

The book will be reviewed on this site in a couple of weeks. In the meantime, here is the publisher’s description of it.

Publishers not liable for internet posting of “erased” arrest records

January 30, 2015 CCRC Staff

When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media. A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute. But the contemporaneous news accounts remained available on line, and the publishers refused to remove them.

Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute. The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.” The Second Circuit affirmed. See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).

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