POST WRITTEN BY: John Humbach, Professor of Law at Pace Law School.
Much has been written about the extraordinary rates of incarceration as a pressing criminal justice problem. Mass incarceration is, however, only part of the challenge posed by the American criminal justice system. Already, an estimated 25% of U.S. adults have a criminal record and, with a million new felony convictions per year—one every 30 seconds—America’s ex-offender population is growing exponentially (see chart to the right). Our country is well on its way to becoming a nation of ex-cons.
The effects of being a “criminal” do not, moreover, end with release from prison. Newly released inmates are immediately met by a growing assortment of law-prescribed “collateral consequences” that now number in the tens of thousands. In their cumulative impact, these legal disabilities greatly reduce the ability of ex-offenders to find housing, make a living, get an education, obtain bank loans, support their children or, generally, to enjoy the usual rights and amenities of citizenship that are essential for a reasonable quality of life. As a result, our nation’s criminal-justice policy is literally re-making America into a legally divided multi-stratum society with an entrenched system of law-sanctioned discrimination against a large and growing underclass with a legally-prescribed inferior civic status.
Already, the ex-offender class is the nation’s largest legally discriminated-against minority group, and it is growing. The adverse social implications of this trend remain unclear and the critical demographic tipping point is still uncertain. But whatever the details, this is surely not good path for the nation to be on.
- John Humbach, Is America Becoming a Nation of Ex-Cons?, 12 Ohio St. J. Crim. L. 605 (2015) (SSRN) (Pace Digital Commons).
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.