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Five Things About Clearing Criminal Records

The Marshall Project lists “Five Things You Didn’t Know About Clearing Your Criminal Record“:

  • In the Internet age, expungement only goes so far. There will always be Google. But  any bit you can pare down someone’s record helps them gain access to employment or housing.
  • An expunged record can still hurt your chances of landing a job. Beyond doing a simple Internet search for your name, employers can use private information providers to run background checks on job candidates, even though an expunged record in many states does legally allow you to leave the box blank when a job application asks if you have ever been convicted of a crime.
  • Congress is considering whether to make even more people eligible for expungement. Under the REDEEM Act people convicted of nonviolent federal crimes could apply to have them sealed, and nonviolent juvenile offenses would automatically be expunged or sealed, depending on age.
  • If you aren’t a citizen, even an expunged crime can still make you deportable.Under immigration law passed in 1996, a “conviction” for the purposes of deportation includes any instance in which a person pleads guilty to a crime or some kind of punishment is imposed, such as some mandatory diversion programs. Even if the record was sealed or expunged, it could still be used as a reason to remove someone from the country.
  • If you’re trying to clear your record — there’s an app for that.In Chicago, Maryland, and Louisiana, advocates and developers have built apps to help people understand whether or not they are eligible for expungement, and how to get in touch with a lawyer.

Cap and Trade Sentencing

The “Grits for Breakfast” blog reviews John Pfaff’s criminal justice reform treatise “Locked In,” finding his recommendations wanting: specifically, that his two big recommendations cannot be followed simultaneously. Focus on reducing “admissions” to the criminal justice system requires a focus on nonviolent offenses. Focus on violent offenses, as Pfaff insists, and they are only a fraction of those annual criminal justice admissions. Per Grits these are contradictory suggestions. There is hope, though, in another suggestion: a Cap-and-Trade system for incarceration similar to the system used for pollution controls. Basically each county would receive an allocation of sentencing time, and if they wanted to punish people more they’d have to purchase it from other counties in a market setting. That would place financial responsibility for over-incarceration on the local actors most responsible for it. The idea comes from “The Small Prison” by  Cheryl Lero Jonson, John E. Eck & Francis T. Cullen, in  The American Prison: Imagining a Different Future
cited here.

Second Chance in West Virginia

The West Virginia legislature at the last minute passed a compromise bill – SB76, the WV Second Chance for Employment Act – that would allow individuals convicted of non-violent felonies to return to court after 10 years to have their convictions reduced to misdemeanors.

For several years the WV legislature has been considering how to improve employment opportunities for people with non-violent convictions, but the House and Senate had different ideas about how to do it. The Senate approach would have expanded the state’s expungement law, which now applies only to youthful misdemeanors, while the House preferred reducing nonviolent felonies to misdemeanors. On April 8, the Senate agreed to accept the “forgiving” approach favored by the House, creating a new category of “reduced misdemeanor” that need not be reported on employment applications but will be reflected in background investigations.

“Locked In” The New Yorker

Adam Gopnik of the New Yorker favorably reviews John Pfaff’s book on the causes of and cures for mass incarceration, “Locked In.” The book was discussed in previous posts on this blog; Gopnik reiterates the central thesis, that the cause is not mandatory minimums, the war on drugs, or drug convictions in general: its the prosecutors.

“So what makes for the madness of American incarceration? If it isn’t crazy drug laws or outrageous sentences or profit-seeking prison keepers, what is it? Pfaff has a simple explanation: it’s prosecutors. They are political creatures, who get political rewards for locking people up and almost unlimited power to do it.”
One statistic among many, from “Locked In”: While violent crime was increasing by a hundred per cent between 1970 and 1990, the number of “line” prosecutors rose by only seventeen per cent. But between 1990 and 2007, while the crime rate began to fall, the number of line prosecutors went up by fifty per cent, and the number of prisoners rose with it. Its the central paradox of mass incarceration: fewer crimes, more criminals; less wrongdoing to imprison people for, more people imprisoned.

New Trends in Prosecution

The NY Times reports on 5 Prosecutors With a Fresh Approach, newly elected local DA’s with a different approach: changing a justice system that jails too many people at the expense, they say, of common sense, public safety and even humanity. Its not an easy road,  and there has been some backlash, but it may be the best hope for real criminal justice reform.

Moore v. Texas

The Supreme Court yesterday overturned the death sentence of Bobby Moore, imposed by the Texas Court of Appeal, rejecting Texas’ approach to deciding which intellectually disabled people must be spared the death penalty. Justice Ginsburg’s majority opinion said Texas had failed to keep up with current medical consensus, relied too heavily on I.Q. scores and took account of factors rooted in stereotypes: “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”

Moore further elaborates on the court’s 2002 decision in Atkins v. Virginia, which barred the execution of the intellectually disabled as a violation of the Eighth Amendment’s ban on cruel and unusual punishment. At the heart of the ruling is a disagreement about the presumptive value of IQ scores in cases like Mr. Moore’s where those scores are in the borderline definitional range for intellectual disability. Justice Ginsburg wrote that Mr. Moore’s I.Q. was in the range of 69 to 79, meaning that other factors had to be considered. In dissent, Chief Justice Roberts argued that two of mr. Moore’s I.Q. scores, at 78 and 74 both above the borderline “70” cutoff point, were enough to decide the case and to allow Mr. Moore’s execution.

Bail Reform Advances in California

Two bail reform bills in the California legislature, by Assemblyman Rob Bonta (D-Oakland) and Sen. Bob Hertzberg (D-Van Nuys), would essentially prevent criminal defendants from having to post money as a condition of release from jail and would shift some power from judges to pretrial services agencies to assess the risks they would pose if allowed out in the community.

Under the new legislation, counties would be required to establish pretrial services agencies to track inmates, remind them of court dates and develop “risk-assessment” tools to determine whether a defendant should be released. The programs, in use in other states, allow court and pretrial staff to use data and other evidence to determine whether a person is a risk to the public or likely to flee their charges.

In California, where at least two federal lawsuits over bail practices are pending, 2015 data from the Public Policy Institute of California found more than 60% of people in county jails were awaiting either trial or sentencing.

2017 National Registry of Exonerations Report

According to the 2017  National Registry of Exonerations report, released this month, there were a record number of 166 exonerations in 2016. Exonerations increased even though the number due to DNA testing declined from 2015 to just 10% of the total. According to Open File:

“One possibility is that increased public awareness of the role prosecutors play has required DAs to be more engaged with claims of wrongful conviction. Another is that judges and other actors in the criminal justice system have finally awoken to the reality that there is an epidemic of prosecutorial misconduct in this country.
Misconduct by itself demands accountability. But, for those whose concern for individuals caught up in our justice system extends only to the innocent, the “Race and Wrongful Convictions” report underscores the importance of combating prosecutorial misconduct in all cases:

Seventy percent of the murder prosecutions that led to exoneration included official misconduct that we know about. We have identified many different types of misconduct. The most common is concealing exculpatory evidence—often called “Brady violations” after the landmark 1963 Supreme Court case Brady v. Maryland—which occurred in just over half the cases. The next most common type is witness tampering—everything from misleading a witness at a lineup, to threatening a witness, to suborning perjury—which occurred in 31% of murder exoneration cases; followed by perjury by a state official, which happened in 11% of the cases.
These numbers are jaw-dropping. Brady violations and perjury by state officials are not about technicalities; they are about getting to the truth. The NRE’s reports serve as a sharp rebuke to those seeking to narrow the circumstances under which the State’s suppression of exculpatory evidence results in a new and fair trial for the defendant. Soon the Supreme Court itself will weigh in on issues of prosecutorial misconduct and defendants’ due process rights. And the high-profile case it has chosen to hear could well end up in the Registry of Exonerations. Until accountability becomes a meaningful concept, one is left to wonder how many more wrongful convictions will be obtained by prosecutorial abuses right under our noses.”


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Second-Chance Legislation in All 50 States

The Collateral Consequences Resource Center publishes a resource guide to restoration of rights, pardon, record sealing, and expungement in all 50 states, along with blog posts on collateral consequence related issues. There has been a recent uptick in state legislation on the topic: since 2013, 40 states and Washington, D.C., have enacted new or expanded second-chance legislation. What’s propelling this movement? Maura Ewing of the Pacific Standard thinks it is a growing “feeling that we’ve gone too far in imposing additional penalties and restrictions that don’t seem to have any end.”

Brady Back At Supreme Court

This month the Supreme Court will hear oral arguments in two consolidated cases, Turner and Overton, that deal with prosecutorial misconduct and the State’s Brady duty to disclose exculpatory evidence very often. Here is an excellent analysis from Bidish Sarma in the American Constitutional Society Blog:

“Last year, I wrote for the ACS here about one of the chief concerns underpinning the case: that prosecutors decide whether to disclose exculpatory information pre-trial based on their prospective assessment of whether withholding it would make a “material” difference at trial. To recap the Brady test courts use post-trial: a new trial must be granted where the defendant has proven: (1) suppression—that the State actually failed to turn over the information at issue; (2) favorability—that the information would have helped the defendant; and (3) materiality (also known as prejudice)—that, had it been disclosed before the trial, there was “any reasonable likelihood” it could have “affected the judgment of the jury.” (Wearry v. Cain (2016) (internal citations omitted)). Tying prosecutors’ disclosure determinations to their own predictions about materiality is problematic for a bevy of reasons … But, what is truly worrisome is that the Supreme Court justices have not acknowledged or fully grasped how their Brady rulings influence prosecutorial disclosure decisions.
In the oral argument in Smith v. Cain in 2011, several justices expressed dismay when the prosecutor arguing the case informed them that the lawyers in her office making disclosure decisions did not simply consider whether information is exculpatory, but also gauged whether it was material. Some vocalized their concerns with this approach. Justice Kennedy posited a distinction between a Brady “obligation” to turn over evidence before trial and a Brady “violation” based on an appellate court’s post-trial assessment of materiality:
And with all respect, I think you misspoke when you – you were asked what is – what is the test for when Brady material must be turned over. And you said whether or not there’s a reasonable probability . . . that the result would have been different. That’s the test for when there has been a Brady violation. You don’t determine your Brady obligation by the test for the Brady violation. You’re transposing two very different things. And so, that’s incorrect.
If there is a distinction—and there surely should be one—the Court’s jurisprudence provides no guidance on how to identify it.
Indeed, consider what the Solicitor General has argued in Turner and Overton. Although there is no dispute that the prosecution failed to turn over several categories of exculpatory evidence, the Government’s brief on the merits states, “[t]he government complied with is obligations under Brady v. Maryland, 373 U.S. 83 (1963). Nondisclosures violate Brady only when withheld information is both favorable and material.” See how easily the Government elides that distinction between a Brady obligation and a Brady violation? In the first two sentences in the summary of its argument, the Government exploited a jurisprudential problem that the justices should address.