The Collateral Consequences Resource Center, with support from the Drug Enforcement and Policy Center, produced a report and an accompanying infographic that summarize the groundbreaking criminal reforms enacted this year as part of marijuana legalization and situate them in the national context.
On July 1, Pennsylvania Governor Tom Wolf signed into law an expansive new regulation of the state’s occupational licensing process, giving the agencies that control access to 255 occupations detailed new standards for considering criminal records in the licensing process. Pennsylvania has not addressed these issues on a state-wide basis since the 1970’s, and with proper implementation the new law promises a path to the middle class for skilled individuals whose career prospects might otherwise be limited.
While Pennsylvania’s law is by far the most ambitious one of its kind passed this year, five other states have also passed laws since the beginning of 2020 regulating consideration of criminal record in occupational licensing. Two were states that previously had no general law governing this issue (Idaho and Missouri) and three were states that extended laws passed in recent years (Iowa, Utah and West Virginia).
Pennsylvania’s new law is analyzed in detail below. The provisions of the other five states’ new licensing laws are summarized briefly at the end of the post, and the laws of all six states are written up in greater detail in the relevant state profiles in the Restoration of Rights Project.
A thoughtful new article by Brian Murray recommends a new way of conceptualizing expungement that should make it easier for reformers to justify facilitating access to this record relief. In “Retributive Expungement,” forthcoming in the University of Pennsylvania Law Review, Murray argues that expungement should be seen as a way to end warranted punishment rather than to recognize and incentivize rehabilitation. The argument goes that if the legal and social disadvantages of a criminal record function as part and parcel of the criminal sentence imposed by the court, as opposed to a loosely related system of civil penalties that are activated by other laws and other actors, then the court has an obligation at some point to discharge it. While this argument is not new, Murray places it squarely in a modern retributivist framework.
In an earlier era, the drafters of the 1962 Model Penal Code embraced this idea of tying up the loose ends of criminal punishments through court-ordered dispensation, although they chose a more transparent form of remedy in judicial vacatur or set-aside. Before that, this function of ending punishment was performed by executive pardon. In modern times, as ubiquitous background checking has made a criminal record a lasting Mark of Cain, most agree that the record should be made unavailable for private and most public purposes at some point, unless disclosure is ordered by the court for some purpose authorized by law. Facilitating access to this record relief should be easier with the theoretical frame proposed by Murray.
Here is the abstract and a link:
Expungement relief was introduced in the mid-twentieth century to reward and incentivize rehabilitation for arrestees and ex-offenders and to protect their privacy. Recently, many states have broadened their expungement remedies, and those remedies remain useful given the negative effects of public criminal records on reentry. But recent scholarship has suggested an “uptake gap,” meaning many who are eligible never obtain relief. Despite broadening eligibility, petitioners face substantial obstacles to filing, pre-hearing hurdles, waiting periods, and difficult standards of review without the assistance of counsel. And even when expungement is granted, the recipients are basically left on their own to guarantee the efficacy of the remedy. Some of these attributes of expungement were originally conceived as features, designed to ensure only the most rehabilitated received relief, allowing the state to continue to pursue public safety objectives with public criminal records. But the cold reality of expungement procedure leaves many petitioners facing insurmountable obstacles that amplify the effects of the punishment originally imposed.
In exploring this reality, this Article illustrates that expungement procedure is stuck in a rehabilitative and privacy-centric paradigm. While this framework inspired the creation of expungement remedies and recent reforms, it also has justified onerous procedural obstacles and the placing of the burden of persuasion on the petitioner rather than the state. Outside of automated expungement, which is still relatively rare and restricted to only certain types of petitions, most expungement regimes in substance or through procedure invert what should be the state’s burden to justify retention of criminal records that enable extra punishment by state and private actors. An alternative theoretical basis for expungement is necessary to convince policymakers and decision-makers of the need for broader substantive and procedural reform.
This Article suggests a different paradigm: retributive based expungement. It proposes that incorporating retributive constraints that already underlie the criminal system can benefit petitioners. Plenty of arrestees do not deserve stigma and ex-offenders have done their time, meaning punitive stigma from public criminal records can amount to unwarranted punishment. A retributive-minded expungement procedure would all but guarantee expungement in the case of arrests, where the desert basis is questionable, and would place the burden of proof on the state for convictions once desert has been satisfied. As such, this approach can supplement the case for broader eligibility, automated expungement, and favorable pre-hearing procedures that limit the uptake gap. It also has legal and political viability given that many states already maintain retributivist constraints on sentencing and given that huge swaths of the public perceive desert as a crucial component of any criminal justice issue. In fact, some states are already moving in this direction and can serve as a model for the rest of the country. In short, retributivist constraints can trim procedural overgrowth to supplement substantive reforms that already recognize the disproportionate effects of a public criminal record.
This is the title of CCRC Executive Director Margaret Love’s new article for the Oxford Research Encyclopedia. The article describes the historic role played by the executive pardon power in reducing punishments (including collateral ones) and explains clemency’s diminished vitality and reliability in modern times in most states and in the federal system. Love concludes that “[i]t appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.”
Here’s the abstract:
In the past year, California Governor Jerry Brown and New York Governor Andrew Cuomo made generous use of their power to pardon state crimes committed by noncitizens, reinvigorating a much-neglected means by which long-term residents may stave off conviction-based deportation. The personal stories of the individuals who benefited from the Brown and Cuomo pardons no doubt illustrate how individuals and families can be spared from unjustified hardship through the power to pardon. But were the governors justified in asserting a role for state interests in tempering federal immigration enforcement policies they evidently regarded as too harsh? In this post, I will briefly explain the legal and theoretical framework that supports a role for state pardons in the immigration context, and then argue for a more generous use of the pardon power in principled and transparent ways.
The CCRC is seeking a lawyer to join its staff to work primarily on the Restoration of Rights Project (RRP). The primary duties of the RRP Legal Analyst, as described in the position description below, involve collecting and analyzing the law and practice in each U.S. jurisdiction relating to restoration of rights; and, updating the on-line resources that comprise the RRP. An important part of the job is identifying and tracking bills relating to restoration of rights as they become law, which has become an increasingly important and challenging task in the past several years. In conducting legal research, preparing reports, and responding to inquiries, the RRP Legal Analyst will have a unique opportunity to engage with CCRC staff and lawyers across the country who are working in this emerging area of scholarship and practice.
The RRP Legal Analyst position is part-time, though applicants should be prepared to commit to at least 15-20 hours per week for at least six months. The position may be particularly attractive to individuals seeking a flexible work schedule and workplace. The position will be compensated on an hourly basis, starting at a base rate of $26.50 per hour, a rate that may be negotiable depending on experience.
Applicants should have familiarity with criminal law and procedure, and preferably with the legislative process, and they should have proven research and writing skills. Please see the position description for further details. A letter of interest, resume and writing sample, as well as the names of references, should be sent to Margaret Love, CCRC executive director, at margaretlove@pardonlaw.com.
I am delighted to announce that David Schlussel will join CCRC as its first Fellow at the end of this month. Most recently, David served as a law clerk for the Honorable David O. Carter on the U.S. District Court for the Central District of California. While attending law school at Berkeley, David represented clients in juvenile delinquency, school discipline, and clean slate proceedings as a clinical student for the East Bay Community Law Center. He also interned at public defender offices, taught outreach courses in Juvenile Hall, and wrote a law review note on marijuana, race, and collateral consequences. David has been interested in inequities in the criminal justice system since college, when he volunteered as a GED tutor at the New Haven jail.
The following post on Justice Kennedy’s contributions to sentencing and corrections reform appeared earlier this week on Douglas Berman’s Sentencing Law and Policy blog. While it does not involve collateral consequences directly, it seems fitting that CCRC recognize the significant contributions the Justice made to criminal law, notably in his statements off the bench about the injustice and inhumanity of excessive punishment. One of the most vivid memories I have of the 2008 ABA Roundtable conference whose proceedings were published in the FSR symposium issue discussed below, is of Justice Kennedy’s enthusiastic description of the federal reentry court that had recently been established in Oregon, one of the first of its kind. He made sure we all appreciated, as we discussed sentencing issues, that the consequences of a criminal case have adverse effects on individuals long after they have served their court-imposed sentence. In the decade since that conference, the idea that collateral consequences are an integral part of punishment that must at some point end, is one that that has taken root in new laws and practices in almost every state.
April Camara of the National Legal Aid and Defender Association (NLADA) writes as a guest blogger about how the availability of bail may determine whether an individual is adversely affected by collateral consequences:
The Prison Policy Initiative recently reported that the explosive growth in jail populations since the 1980s is predominantly the result of jailing people who are accused of crimes and awaiting trial.[1] This is especially true for the past 15 years, in which time 99% of jail growth has been comprised of people who are detained pretrial and legally presumed innocent.[2] To curb this growth, the MacArthur Foundation has invested more than $100 million dollars into reducing jail incarceration and racial disparities in America through the Safety and Justice Challenge (“SJC”). NLADA serves as a strategic ally in the SJC, and we are making the case to show investing in public defense yields system-wide benefits to pre-trial reform. We understand that a person’s likelihood to be released on bail while pending trial is significantly increased when they are represented by counsel, and defense advocacy minimizes the harm that incarceration does to a person’s life. Research shows that people who are in jail before trial have worse outcomes in their criminal cases and in their lives.[3] As a result of pretrial detention, they are:
- More likely to fail to appear for court.
- More likely to lose connections to employment, housing, and family.
- More likely to be convicted.
- More likely to have a longer prison sentence.
- More likely to be rearrested for new crimes. [4]
These long-term collateral consequences destabilize not just the accused and their families, but their wider communities. Criminal justice stakeholders involved in the Challenge understand these implications, and defenders are collaborating with local stakeholders to reduce the overall number of people who are presumed innocent and are in jail while awaiting trial.
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[1] Joshua Aiken, Era of Mass Expansion: Why State Officials Should Fight Jail Growth, Prison Policy Initiative,(2017).
[2] Peter Wagner, Jails matter. But who is listening?, Prison Policy Initiative (Aug. 14, 2015). .
[3]See Incarceration’s Front Door: The Misuse of Jails in America, Vera Institute (2015).
[4] Aiken, supra note 1; Laura & John Arnold Found., Pretrial Criminal Justice Research (2013); Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes (2017).
Jacob Sullum, senior editor at Reason, has written a fabulous article about expungement of marijuana convictions in places that have since legalized marijuana: so far 10 states, DC, and the Northern Mariana Islands have legalized. The piece is currently available to Reason subscribers and will be available to the public in the coming weeks (we will update this post with the link).
Sullum tells the stories of eleven individuals, from the jurisdictions that have legalized, who describe how their marijuana convictions have impacted their lives before and after legalization. He documents the lingering legal and social sanctions that burden people long after they have served their sentences, sanctions that “seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use.”
