In a follow up to our previous post, the Supreme Court has now decided Elonis v. United States, reversing the conviction based on threats the defendant posted on Facebook against his ex-wife and others. The Court held it was error for the lower court to instruct the jurors that the defendant could be convicted if the posts would be considered by a reasonable person to be threatening, characterizing that standard as one of traditional civil negligence. The Court did not address the First Amendment issues concerning the criminalization of Facebook posts.
- Elonis v. United States, No. 13-983, 575 U.S. ___ (June 1, 2015) (Court’s official PDF) (Bloomberg Law copy).
- Elonis v. United States, 134 S. Ct. 2819 (2014) (grant of petition for writ of certiorari).
- United States v. Elonis, 730 F. 3d 321 (3d Cir. 2013) (reversed and remanded by Elonis v. United States, No. 13-983 (June 1, 2015)).
- United States v. Elonis, 987 F. Supp. 2d 335 (E. D. Pa. 2012) (district court’s decision now reversed and remanded by Elonis v. United States, No. 13-983 (June 1, 2015)).
BY: Lissa Griffin & Lucie Olejnikova
As attention is drawn to the social impact of excessive sentences, supermax detention, and overcriminalization, it makes sense to look at the same time at the social impact of collateral consequences. What purposes do collateral consequences actually serve? Not allowing someone who has served a sentence or fulfilled a punishment for criminal conduct to vote, drive, get benefits, get work without revealing a conviction, work in human services or other select industries, live in an affordable area, and the like not only holds the convict back from successful reintegration, but also prevents communities from moving on.
The ABA has created and launched the NICCC database (National Inventory of Collateral Consequences of Convictions) that collects the law on collateral consequences in the Federal system and each of the fifty states. For review of the database, click here.
- Frank Thurston Green, Certificate Confusion Puts Focus on Convictions’ Consequences, City Limits.org (Feb. 17 2015) (certificate of relief program).
- Rachel Black & Aleta Sprague, Give the Unemployed Second Chance, CNN (Feb. 4, 2015).
- K. Reiter, J. Selbin & E. Hersh, Op-Ed, Should a Shoplifting Conviction be an Indelible Scarlet Letter? Not in California, LA Times (Dec. 28 2014).
- Gary Fields & John R. Emshwiller, Fighting to Forget: Long After Arrests, Criminal Records Live On, Wall Street Journal (Dec 25, 2014).
- Monica Haymond, Should a Criminal Record Come with Collateral Consequences?, NPR (Dec. 6, 2014).
- Editorial Board, In Search of Second Chances, The New York Times (May 31, 2014).
- Sarah B. Berson, Beyond the Sentence – Understanding Collateral Consequences, National Institute of Justice – Office of Justice Programs (May 2013).
- Owen Bowcott, New Law Means Job Applicants Cannot Be Forced to Reveal Spent Convictions, The Guardian UK (Mar. 10, 2015).
- National HIRE Network Newsletter, Relief from the Collateral Consequences of Convictions (Nov. 2005 – May 2006).
- Lisa Hale Rose, Community College Students with Criminal Justice Histories and Human Services Education: Glass Ceiling, Brick Wall or a Pathway to Success, 39 Community C. J. Res. & Prac. 584 (2015) (suggesting that students with criminal records at community colleges intending to pursue human services education may face obstructed pathways).
- Heather R. Hlavka, Darren Wheelock & Jennifer E. Cossyleon, Narratives of Commitment: Looking for Work with a Criminal Record, The Soc. Q. (Jan. 23, 2015) (unemployment being the most cited barrier to reentry).
- Amy P. Meek, Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level, 75 Ohio St. L.J. 1 (2014) (available at HeinOnline).
The Telegraph, in London, reports that the UK Ministry of Justice has launched TrackMyCrime, an online platform intended to allow victims easier access to information about police investigations of their cases. By logging on, victims can track the progress of a police investigation and send secure messages directly to officers working on their cases. In the future, the hope is that victims will be able to follow their cases through the courts as well, and ultimately, if there is a conviction, through an offender’s imprisonment and release.
Victims, the one group of people often overlooked yet the most affected by crime are getting a voice in the UK for now – and in a relatively efficient manner. Maybe other systems should take heed. At the international level, the International Criminal Court and the various criminal tribunals and hybrid courts allow and support victims’ participation, but even there, the participation is limited to court proceedings. In the United States, victims’ interests are said to be represented by the prosecutor’s office; however, they often are not a priority, particularly for a busy, urban prosecutors office. It appears that the United Kingdom has found a reasonable middle ground – allowing victims to be part of the investigation, to be informed about the progress of their cases, to have the ability to provide information, and, perhaps most importantly, to feel involved in the process.
In one of its last decisions of 2014, the Court of Appeals held that it will begin reviewing the Appellate Division’s summary denials of CPL 440.10(1)(g) motions. The Court had held in People v. Crimmins, 38 N.Y.2d 407, 409 (1974) that
[t]he power to review a discretionary order denying a motion to vacate judgement upon the ground of newly discovered evidence ceases at the Appellate Division.
For nearly 40 years, the Crimmins decision kept the Court of Appeals from reviewing and determining whether such denials constituted “abuse of discretion.” People v. Jones, No. 14-219, ___ N.E.3d ___, 2014 N.Y. Slip Op. 08760, 2 (Dec. 16, 2014). In Jones, this Court overruled itself and explained that “the rule enunciated in Crimmins has needlessly restricted this Court’s power of review concerning CPL 440.10(1)(g) motions….”
In Jones, the Court held that the Appellate Division abused its discretion in summarily denying a defendant’s motion for an evidentiary hearing as part of his efforts to vacate his conviction on the ground of newly discovered evidence, pursuant to CPL 440.10(1)(g). Mr. Jones claimed that newly discovered DNA evidence would exclude him as the perpetrator of crimes of which he was convicted in 1981. This decision signals a step in the right direction for the NY judiciary trying to grapple with evidence, like DNA, that may not have been available at the time of trial.
The National Registry of Exonerations (“Registry”) marked 2013 as a record setting year for exonerations. As of August 2014, there were 91 known exonerations that occurred in 2013, bringing the total number to 1,427. According to the Registry, exonerations are only counted when the defendant is
declared to be factually innocent by a government official or agency with the authority to make that declaration;” or the defendant is “relieved of all the consequences of the criminal conviction by a government official or body with the authority to take that action.
Notably, the Registry continues to report a stark rise in exonerations based upon a post-trial finding that the defendant was convicted of a crime that did not occur. In such instances, a person is “convicted of a crime that did not occur, either because an accident or a suicide was mistaken for a crime, or because the exoneree was accused of a fabricated crime that never happened.” The Registry reports that almost one third of the 2013 exonerations were in cases in which no crime occurred. To date, a number of “crime-less” cases have already been reported for 2014. Many of the recent “crime-less” exonerations involved child abuse prosecutions, which were overturned due to improper police interrogation techniques when questioning minors, and/or the prosecution’s reliance upon suspect medical evidence.
Unfortunately, there are many obstacles to re-investigating and presenting a “crime-less case” for review, since such cases are generally based upon circumstantial evidence. The Registry reported that a majority of reported “no-crime” convictions resulted from the prosecution’s presentation of false testimony, and its unfettered reliance on cooperators, informants, and rogue police officers. Other no-crime convictions resulted from the prosecutions reliance on faulty scientific evidence, which incorrectly determined instances of arson and/or murder.
Earlier this year, Professor Samuel Gross of Michigan University School of Law noted that “these cases used to be very uncommon, as they are extremely hard to prove,” given that “there’s no DNA to prove someone else guilty, and no alternative confession to draw upon.” However, Professor Gross explained that the recent rise in crime-less exonerations is a hopeful sign that “prosecutors and judges have become more sensitive to the dangers of false accusations and are more willing to consider that a person is innocent even where this is no DNA to test or an alternative perpetrator coming forward.”