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.
During his fellowship year, David will be maintaining CCRC resources, including the Restoration of Rights Project; reporting on new laws and developments in the courts; and drafting analytical pieces on significant scholarship and research relating to collateral consequences. One of his first assignments will be preparing a round-up of the “second chance” legislation enacted during 2018 – to date, more than 50 separate laws in thirty-two states. During his tenure, David hopes to participate in drafting an amicus brief, an opportunity that could come very soon with a major new challenge to Pennsylvania’s sex offender registration scheme pending in the Pennsylvania Supreme Court.
David’s piece on California’s new occupational licensing law that will post later today on the site is the first of what I expect will be many of his thought-provoking analyses of significant new “second chance” legislation.
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. 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. 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. 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. 
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.
 Joshua Aiken, Era of Mass Expansion: Why State Officials Should Fight Jail Growth, Prison Policy Initiative,(2017).
 Peter Wagner, Jails matter. But who is listening?, Prison Policy Initiative (Aug. 14, 2015). .
See Incarceration’s Front Door: The Misuse of Jails in America, Vera Institute (2015).
 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.”
The United States Commission on Civil Rights will hold a public briefing on collateral consequences on May 19 (“Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities”). The Commission is an independent, bipartisan agency charged with advising the President and Congress on civil rights matters and issuing an annual federal civil rights enforcement report.
Previewing the Commission’s interest, Chair Catherine E. Lhamon said:
Individuals who have paid their debt to society deserve the chance to rebuild their lives after incarceration. The Commission looks forward to receiving information about whether and how current barriers to employment, voting, housing, education, among other core areas of civic life, deprive these Americans of that second chance.
In addition to being open to the public, proceedings will be live streamed at this link, beginning at 9:30 a.m. Advocates and stakeholders drawn from a broad political spectrum will provide testimony on a variety of issues, including the impact of a criminal record on civic participation and barriers to self-sufficiency after a prison term. CCRC Executive Director Margaret Love will describe the range of adverse consequences resulting from conviction, existing mechanisms to avoid or mitigate them, and recent trends in law reform.
The following post is republished, with permission, from the National Clean Slate Clearinghouse listserv. In it Sharon Dietrich points out that even after criminal records have been expunged or sealed, they may still be reported by commercial criminal record providers in violation of the Fair Credit Reporting Act. (See our recent 50-state survey of record-closing laws, with their intended effect.)
You probably are wondering, “What is she talking about, with a subject line like that?” The answer to your thought is that I use this phrase when giving clients an important warning about the effect of their expungement orders. I am illustrating for them the idea that I can’t guarantee removal of their expunged cases from every possible background check, especially those prepared by commercial screener such as Sterling, HireRight, First Advantage and countless others.
Most of the public interest in the Supreme Court’s cert grants on Friday focused on the transgender bathroom case from Virginia. But the Court also granted cert in two cases involving collateral consequences: one a First Amendment challenge to a North Carolina law barring a registered sex offender from internet access; and the other whether a man convicted in California of having consensual sex with his underage girlfriend committed an “aggravated felony” subjecting him to deportation. Here are the SCOTUSblog descriptions of the two cases:
Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor. Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket. The justices today agreed to review Packingham’s contention that the law violates the First Amendment.
In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law. The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old. The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.” The lower courts agreed with the federal government, but now the Supreme Court will decide.
A federal judge in San Francisco has dismissed a constitutional challenge to the recently enacted International Megan’s Law, which requires specially-marked passports for registered sex offenders whose offenses involved child victims, and authorizes notification to foreign governments when they travel. The so-called “Scarlet Letter” law is specifically aimed at stopping child sex trafficking and sex tourism, and this purpose was evidently enough to justify it even though it has a far broader effect.
The debased legal and social status that results from criminal conviction is visited disproportionately on African-Americans. Collateral consequences are the vehicle by which this country now imposes a permanent servitude on the descendants of those who were once literally owned by other human beings. Mass conviction no less than mass incarceration is a legacy of slavery. So we think it appropriate to commend to our readers Bryan Stevenson’s extraordinary interview for The Marshall Project in the wake of last week’s terrorist attack in Charleston. It is incumbent on all of us to consider how the scheme of collateral penalties imposed by the criminal justice system is calculated to keep millions of Americans disenfranchised and impoverished, and to dedicate ourselves to dismantling it.