Monday, October 13, 2008

The Second Chance Act of 2007

Recently a law was enacted to help offenders make a transition from Federal Prison to the regular honest working world. This law has become known as the Second Chance Act. This law was eagerly awaited by inmates and their families. It was also the subject of many rumors and much misinformation. (story)

In essence, the new law does little and will provide benefits to only a few inmates. The most significant and widespread benefit from this law has been a change in the BOP's policy regarding half-way house time. Prior to this new law, the BOP permitted only a certain amount of half-way house time for inmates -- up to 6 months or 10% of the sentence, whichever was less. Thus, only those inmates serving 60 months or more were permitted 6 months half-way house time.

The exception to this rule was for those inmates who completed the RDAP program. They were permitted up to 6 months half-way house time regardless of the length of their sentence. Now, all inmates may be considered for up to 6 months half-way house time. This alteration in the BOP's policy affects only non-RDAP inmates who are serving less than 60 months.

With respect to the other aspects of the bill, specifically the pilot program to consider early release for elderly inmates and additional assistance beyond half-way house programs, the BOP must publish regulations, wait for comments on them and then proceed. As far as I know, they have not published relevant regulations. Consequently, because the rule-making process may take over 6 months, it may be some time before the limited benefits of the Second Chance Act are available.

The early release provision of the Second Chance Act applies to a very limited group. According to its terms, only offenders over age 65 who have served 10 years or 75% of their time and who did not commit a violent or sex crime can be released early. This applies, therefore, to approximately 650 of the 200,000 federal prisoners. The early release program is to begin on October 1 2008.

The Act also provides that the BOP may, but is not required to, allow up to 1 year of half-way house time. However, this provision of the Act has met with a great deal of skepticism. For example, at a Sentencing Commission symposium held in Washington on July 15, 2008, BOP Director Harley Lappin admitted that there would not be a substantial move to increase half-way house time beyond 6 months. Director Lappin relied upon research studies to support the conclusion that more than six months in a half-way house is not productive for most inmates.

The economics are also not encouraging for anyone hoping to spend more than 6 months at a half-way house. It is cheaper to house inmates in prison than in a half-way house. The average daily cost to house an inmate in a half-way house is $64. The average daily cost to house an inmate in a low-security prison is $48.

There was also a different bill with a similar name. The Second Chance for Ex-Offenders Act of 2007 was designed to amend the federal criminal code to permit expungement of records of certain nonviolent criminal offenses. Although this would be beneficial to anyone convicted of a federal crime, it has not been passed into law. Currently, unlike most state felons, federal felons cannot expunge their conviction. Still, expungement provides only the marginal benefit of making it more difficult for someone to find out the existence of a conviction. It does not make the conviction go away.

Pennsylvania House of Representatives passes expungement bill

Pennsylvania Rep. Tim Solobay, D-Washington, has sponsored a Pennsylvania House bill, that could speed up the expungement process in the commonwealth.

He said it could also take some of the load off the parole board.

Solobay said the bill would allow someone who committed a summary offense but has not committed any other crimes in a five-year period to petition the court to have his or her record expunged at the local level rather than having to go through the state.

The reason for the original bill, Solobay said, is that there is "such a backlog of folks waiting to get their records cleared."

He said it takes three to four years to have a record expunged and added many people need to have their records cleared for background checks.

"With many people, we're finding folks in their middle age with something that may have occurred in college and that's holding them back from promotions or from acquiring a job in the first place," he said. "Some people are actually losing jobs because they have to have a background check done and they can't hold a job with a record."

The bill passed almost unanimously, 198-1, Sept. 23 by the Pennsylvania House of Representatives.

Solobay said the House bill also included some misdemeanors.

He said the period would be seven years for someone who has committed a third-degree misdemeanor and 10 years for someone who has committed a second-degree misdemeanor, Solobay said.

Solobay said he hopes the Senate will pass the bill Wednesday.

It it passes on Wednesday, the House can sign it and "get it to the governor's desk" before session is over, he said.

Solobay said other than "thinning out" the number of people waiting to have their record expunged, the bill would also prevent major criminals from "slipping through the cracks" in the expungement process.

"It's only human nature that you may not put the same time and effort into something as you would if you had a small number," he said.

Solobay said one concern addressed in the House bill was that some things graded as misdemeanors in the past are now graded as summaries.

"There could be someone who had something as basic as a shoplifting charge that was a misdemeanor and is now just a summary offense," he said. "One person could get it expunged quickly through this process, and the other would have to go through the old process."

He said the misdemeanors that were included in the House bill are "non-violent."

Thursday, September 18, 2008

Wyoming loses federal gun case

A federal appeals court in Denver has ruled against Wyoming in a lawsuit over a state law that seeks to allow people convicted of misdemeanor domestic violence to regain their gun rights.

A three-judge panel of the 10th U.S. Circuit Court of Appeals on Tuesday ruled that the procedure spelled out in Wyoming law fails to expunge the criminal record of people convicted of domestic violence.

The ruling is a victory for the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives. The agency had informed Wyoming that if it persisted in using the state law, the federal government would no longer accept Wyoming concealed weapons permits as a substitute for instant background checks for gun purchases.

Wyoming Attorney General Bruce Salzburg said Wednesday that he's unlikely to suggest that the state ask the U.S. Supreme Court to review the case.

"We now have two federal courts that have rejected Wyoming's position," Salzburg said, adding that the Supreme Court reviews only a small number of cases.

Salzburg said his office planned to put out a statement on Wednesday advising people who have gone through the procedure to expunge their misdemeanor records of the court's decision. He said the ruling means that if such people now have guns, they "may be viewed by federal authorities as being in violation of federal firearms law."

The U.S. Department of Justice Civil Division in Washington represented the BATF in the lawsuit. Charles Miller, spokesman for the division, said Wednesday the office had no comment on the ruling.

The 2004 Wyoming law at the center of the lawsuit allows people convicted of misdemeanor domestic violence to petition in state court to expunge their conviction and restore their gun rights. The law requires that petitioners must have completed probation, and it limits people to just one such request.

The Wyoming Attorney General's Office said last year that Wyoming courts expunged 63 misdemeanor convictions from 2005 through last October. Salzburg said Wednesday that only one person with an expunged record had gone on to receive a state-issued concealed weapons permit and said at least two other such applications are pending.

The BATF objected to a provision of the state law that specified that an "expunged" conviction would be kept by the state Division of Criminal Investigation and could be used to enhance penalties for future domestic violence convictions. The BATF said that conviction records weren't truly expunged if they were kept on the books for any purpose.

Federal law requires gun dealers to perform an instant background check of prospective purchasers through a national database unless the buyer has a state-issued concealed weapon permit. The BATF said Wyoming's law could allow people to get a concealed weapons permit even though they wouldn't qualify under federal standards.

Wyoming sued the BATF over its threat to reject all Wyoming-issued concealed carry permits as a substitute for background checks. In May 2007, U.S. District Judge Alan Johnson of Wyoming rejected the state's claims that the federal agency had arbitrarily rejected the state law.

The state's lawsuit has attracted national attention from groups on both sides of the gun-control debate at both the federal district court and appellate court levels.

Daniel Vice, senior attorney for the Brady Center to Prevent Gun Violence in Washington said Wednesday his group regards Tuesday's appeals court ruling as a victory for public safety. The center had filed papers in court in support of the BATF's position.

"We should not make it easier for dangerous abusers to get firearms," Vice said. "And we've seen that domestic violence abuse cases are extremely dangerous when guns are involved."

The Gun Owners Foundation and the National Rifle Association had filed papers in court supporting the state's position.

Herb Titus, lawyer for the Gun Owners Foundation, said Wednesday his group is disappointed with the appeals court decision.

"We think it's wrong," Titus said. "We think this is a matter of state right -- that Congress intended that the states have the right to define expungement according to state policy and state purposes, and obviously, the 10th Circuit disagrees."

Mike Blonigen, Casper district attorney and president of the Wyoming Prosecutors Association, said Wednesday that his office has been advising people interested in petitioning for restoration of their gun rights that a decision on the case was pending. The state law requires prosecutors to review restoration petitions.

Blonigen said the Wyoming Legislature may choose to change the law to address whether conviction records are truly expunged.

"I think it's one of these situations, where if you're going to call it an expungement, it has to have all the characteristics of an expungement, and frankly this law didn't get there," Blonigen said. "You can't say you're going to take it away for these purposes, but not for these three purposes over there."

Minnesota Supreme Court upholds limits set on sealing criminal records

Limit set on sealing criminal records, but expungement attempts still urged

The Minnesota Supreme Court has ruled that district courts do not have the authority to seal criminal records beyond the courts themselves — a decision that may be bad for defendants but good for public-records advocates.

The case began in 1992, when a defendant identified as S.L.H. pleaded guilty to fifth-degree felony possession of cocaine in Robbinsdale. She was 20. After three years, the charge was dropped to a misdemeanor.

In 2000, a petition for expungement, or sealing, of her record, was filed, but the district court denied the request.

She tried again in 2006. S.L.H. argued that she was a single parent of four children and wanted to be better equipped to support her family. She explained she hoped to become a Head Start Teacher or a medical assistant — but neither job would be open to her without expungement of her criminal records.

Hennepin County District Court agreed. The court found in July 2006 that the benefit of expungement to S.L.H. outweighed the disadvantage to the public from eliminating her record and ordered all judicial records of the offense be sealed.

But the lower court also said it did not have the authority to order nonjudicial records sealed. That means that records at the state Bureau of Criminal Apprehension still would be open to anyone who wished to see them.

The Court of Appeals agreed with the district court, and Thursday's Supreme Court decision basically affirms that.

But the decision seems toleave room for interpretation, said Mark Haase, staff attorney for the Council on Crime and Justice, which filed a brief on behalf of S.L.H.

It says granting her access to employment is not "essential to the existence, dignity and function of a court" and that granting expungement of records outside the judicial branch is therefore not within its authority.

But the court seemed to suggest there might be cases that are, citing one in which charges were dismissed.

"The jury, so to speak, is not completely out on it," Haase said. "We don't want to discourage people from trying to get expungements, because the opinion is not clear. I want people who may have a shot at getting a remedy to pursue that."

He said it's vitally important for people to have a chance at a clean slate.

"The vast majority of people who are trying to get expungements are not serious offenders," Haase said. "They're trying to move on with their life; they can't get a job. Do we really want people to carry that with them and (have it) be a hindrance to getting employment and housing for that long?"

The Supreme Court points out, however, that the Legislature has determined, as outlined in the Minnesota Data Practices Act, that certain law enforcement data are public.

"The expungement of S.L.H.'s criminal records held outside the judicial branch would effectively override the legislative determination that some of these records be kept open to the public," the court wrote.

Tuesday, June 10, 2008

Rhode Island House of Representatives OKs bill to destroy criminal records

Despite objections from the attorney general, the state police and the governor, the House voted 46 to 17 for a bill to quash and destroy the records of criminal cases in which the accused was given a deferred sentence, usually in exchange for sparing the state a trial by pleading no contest or guilty to a crime.

The bill sailed through the House with no debate yesterday after a heated — but short-circuited debate earlier this week — in which proponents assured their colleagues it was aimed at helping people remove from their records youthful indiscretions that were keeping them from moving ahead in life, school and jobs, and opponents noted the bill goes much further than the state’s existing expungement law in that it is not limited to nonviolent crimes by first-time offenders.

Beyond that, critics argued that it could be used as a legal club to try to prevent newspapers from publishing facts that the public already knows about crimes — or perhaps should know — if they involve candidates for a job, including public office. Current state law bars people with certain felony convictions from obtaining state licenses to work in nursing, social work and auto repair: this would provide a way around that.

“So now we are rewriting history and telling the newspaper they can’t refer to something that everybody knows about?” Rep. Laurence Ehrhardt, R-North Kingstown, asked rhetorically.

Current law already allows the expungement of a single nonviolent offense from the record of a first-time offender five years after he or she has completed a sentence for a misdemeanor, or 10 years after completing a sentence for a felony.

Despite efforts over the years by the minority community, the criminal defense bar and the gun lobby to shorten the waiting periods, this law remains intact and was used to remove 4,360 misdemeanors and 625 felonies from the public record last year alone, and 28,417 criminal cases from the public record since 2000.

Yesterday’s bill was sparked by a November decision by the Rhode Island Supreme Court on the treatment of cases in which the admitted criminal had been given a deferred prison sentence, as was the case in a number of high-profile cases involving accused stalkers, embezzlers, an admitted accomplice to a gunpoint robbery in Waterplace Park who traded testimony for a reduced sentence, one of the admitted co-conspirators in the Lincoln bribery scandal and at least one child molester.

The court’s decision centered on two admitted criminals foiled by a judge in their efforts to get their records expunged. One had pleaded no contest to second-degree robbery; the other to a drug-possession charge. Both received deferred sentences. They both appealed to the high court after a judge ruled them ineligible for expungement: the first because he had committed a violent crime, and the second because she got into further trouble.

“Because they never were actually sentenced,” their lawyer argued that “they had not been convicted of any offense and therefore all records involving their arrest and plea should be erased.” But the Supreme Court disagreed. Since “a plea of nolo contendere is an implied confession of guilt,” the court said “it follows that such a plea constitutes a conviction for purposes of weighing who is and is not eligible for expungement, even when it has been followed by a deferred sentence.”

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Sunday, March 9, 2008

Restoring voting rights in Kentucky made easier

By John Cheves

FRANKFORT -- Felons who complete their sentences can get their voting rights restored more easily under changes to the pardon process announced Tuesday by Governor Steve Beshear.

Beshear said he will drop requirements for an essay and three character references, both imposed by previous Gov. Ernie Fletcher. He also will revoke a $2 fee.

Under the "barriers" placed by Fletcher, the number of felons whose voting rights were restored shrank from more than 600 a year to about 250 a year.

"This disenfranchisement makes no sense," Beshear said.

"It dilutes the energy of democracy, which functions only if all classes and categories of people have a voice, not just the privileged, powerful people," he said. Kentucky is one of the few states to deny felons voting rights after they complete their sentences.

About 129,000 Kentuckians can't vote because of a felony conviction, Beshear said. He said corrections officials will help interested felons with pardon applications before their release from prison or jail, and his office will process more than 1,500 applications left behind by Fletcher, plus 176 new applications filed since Jan. 1.

Jefferson Commonwealth's Attorney David Stengel, who joined Beshear at the Capitol for the announcement, said that Fletcher's pardon process was unfair.

Beshear said he favors House Bill 70, a proposed constitutional amendment that would automatically restore the right to vote to most felons. But he stopped short of saying he would throw the weight of the governor's office behind it. HB 70 has waited on the House floor for weeks while House leaders debate casino gambling and the budget.

"I'm urging over and over that it be called," said its sponsor, Rep. Jesse Crenshaw, D-Lexington.

Kentuckians for the Commonwealth, a non-profit group has been pushing HB 70 since January 2008.

Tuesday, February 5, 2008

New Texas Non-Disclosure Limitation

The Texas Legislature recently enacted another eligibility requirement for non-disclosures.

After September 1, 2007, a person petitioning for non-disclosure cannot have been convicted or put on deferred adjudication for another offense while on deferred for the offense they wish to seal.

For example, you successfully complete deferred adjudication for theft. However, while on the theft deferred, you picked up a deferred adjudication for assault. You will now not be able to petition to seal the theft deferred.

If you are on deferred adjudication probation and pick up another offense, it is now more important than ever to fight the new charge.