Category: Uncategorized

Civil Rights Commission to hold public briefing on collateral consequences

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. Read more

“Ants under the refrigerator”

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. As you doubtlessly know, “criminal records” are not a single, monolithic document.  Criminal record data about a single case exists in numerous databases.  Public sources of criminal record information include court records, local law enforcement, state police or other “central repositories,” and FBI records.  Criminal record information is also maintained in privately owned databases, consisting of information obtained from the public sources (most often court records).  The majority of criminal background checks are done by the commercial background screeners, using the private databases. The general idea of record sealing is to suppress the case from public view, so that employers, landlords and others who use background checks don’t make decisions based on these cases.  For expungement or sealing of a case to be effective, then, it must be removed at least from all of the sources used in background screening.  That is usually not too difficult in the public record sources (except possibly FBI records – which could be a subject for another post).  But the same is not true of the private databases.  The private data brokers often take the position that they report expunged cases because they don’t know that cases in their data have been expunged. The result?  Expunged or sealed cases are often still reported by commercial screeners.  Compromising the whole idea of expungement (and public policies to expand it).  And violating the Fair Credit Reporting Act (the FCRA).  And resulting in the “ants under the refrigerator” – you think you managed to expunge the case everywhere, but then here comes a background check with the expunged case unexpectedly reported from a source that missed the order. This is a difficult problem.  But do not despair.  There are things that can be done to improve the situation for your clients.  Here are a few. Advocate for your state’s public record sources that sell their data to private companies to provide a list of expunged cases to be removed from the private data.  This is an elegantly simple solution, pioneered by the Pennsylvania courts, that usually works. Take affirmative steps to provide the expungement or sealing orders to the commercial vendors.  One way of doing that is to register with the Expungement Clearinghouse (www.expungementclearinghouse.org). Use the FCRA.  Tell your clients to return if the expunged case is reported.  File a dispute of a background check reporting a case that should have been removed.  Even better, sue the company! We must demand better of the commercial screeners that make their money from using public data, but aren’t adequately motivated to remove expunged or sealed cases!  Of course, if they were double-checking their results as they should under the FCRA (my opinion, which only some of the screeners share), they would learn that a case was expunged, and they would not potentially cost our clients jobs.   Read Sharon Dietrich’s full article on these issues, which appeared in the Winter 2016 edition of Criminal Justice magazine, here.  Sharon Dietrich is the Litigation Director at Community Legal Services of Philadelphia, a partner in the National Clean Slate Clearinghouse. Read more

SCOTUS to review two collateral consequences cases

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 third case involves an interesting issue of a trial court’s sentencing discretion. Again the SCOTUSblog description: The facts of Dean v. United States read like a “true crime” novel, involving robberies of drug dealers in the Midwest. Levon Dean, the defendant in the case, was convicted under the Hobbs Act, a federal law that makes it a crime to “obstruct, delay, or affect commerce” through a robbery. The justices today declined to review Dean’s challenge to his Hobbs Act convictions, but they agreed to weigh in on a separate question: the scope of a federal trial court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c), which makes it a crime to use or carry a firearm during a crime of violence, in determining a sentence for the felony that serves as the basis for the Section 924(c) conviction. Dean argued that the district court had the authority to impose a very short sentence — as little as one day — for his Hobbs Act convictions, to take into account the much longer sentence required by Section 924(c), but the lower courts disagreed. Read more

Sex offender passport law survives challenge

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. In her September 23 ruling, Judge Phyllis J. Hamilton, chief judge of the Northern District of California, found that the suit was premature since the law has not yet been fully implemented, reiterating her reasoning in denying preliminary relief last spring.  But Judge Hamilton also reached out to decide the constitutional claims raised by the plaintiffs, finding each of them without merit in light of the governmental interest at stake. At the same time, Judge Hamilton stressed that the plaintiffs had challenged the law on its face, leaving open the possibility of successful challenges to its application in specific cases down the line.  In his analysis of the decision at Reason.com, Jacob Sullum suggests what such an as-applied challenge might look like: The law covers many such offenders, including streakers, public urinators, teenagers who have consensual sex with other teenagers, and even teenagers who take nude pictures of themselves. The passport and notification provisions apply decades after the offense, whether or not the offender currently poses a threat, and notification applies even to offenders who are no longer required to register. One of the plaintiffs, who “routinely travels to Europe and Asia for business purposes,” was convicted 25 years ago. Another plaintiff, who committed a crime minor enough that he was sentenced only to probation and was initially told he would not have to register as a sex offender, will nevertheless have to carry a special passport. A third plaintiff had his 1998 conviction expunged, was reinstated as a lawyer, and is no longer listed in California’s registry but is still covered by the IML’s notification provision. Applying the law to such individuals may seem irrational and cruel, but a facial challenge is not concerned with individual instances of injustice: Stigmatizing these men as a threat to children everywhere for the rest of their lives may seem irrational, but that does not mean it fails the rational basis test. “Under rational basis review,” Hamilton explains, “a law ‘may be overinclusive, underinclusive, illogical, and unscientific and yet pass constitutional muster.'” Even if the IML is poorly designed to achieve its ostensible goal, Congress says it will protect children, and that’s rational enough for government work. It remains to be seen how the law will be implemented, and whether relief or waiver provisions will be included to avoid problems of overbreadth.       Read more

Collateral consequences a legacy of slavery

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. Read more