Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?

galler_hornsgatan_2012aMy recent article, “Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?,” examines judicial decisions that reflect an increasing dissatisfaction with harsh criminal penalties and severe collateral consequences for nonviolent offenders.  Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York. With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start. The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime. These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment. Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration. They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children. They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country. On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them. The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision. Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

A full copy of the article can be downloaded at the New York University Law Review Online.

Nora Demleitner is the 2016 Boden Visiting Professor at Marquette University Law School.

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Supreme Court to Tackle Constitutionality of Residual Clause in Sentencing Guidelines

hardy_they_shall_show_you_the_sentence_of_judgmentIn 2015, in Johnson v. United States, the Supreme Court struck down the “residual clause” of the Armed Career Criminals Act (ACCA) as unconstitutionally vague, ruling that the provision did not give ordinary people adequate notice of what conduct was prohibited by the statute. The residual clause had included among the category of “violent felonies” any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Next week, in Beckles v. United States, the court will confront the constitutionality of the sentencing guidelines’ version of the residual clause. This is one of two cases this term that address the effect of Johnson on the vagueness doctrine. (The other case, Lynch v. Dimaya, arises in a statutory context.) Two of the nine justices who joined in the six-justice majority opinion in Johnson, including its author – the late Justice Antonin Scalia – will not participate in this case. Because Justice Elena Kagan is recused, a seven-member court will render a decision.

The U.S. Sentencing Commission, which is responsible for drafting and amending the sentencing guidelines, removed the guideline residual clause earlier this year and supplanted it in part by commentary, which is also at issue here. It did not, however, make the change retroactive. This case brings the question of retroactivity squarely in front of the court, continuing the interplay between the commission and the court. The ostensible issues of vagueness and retroactivity, however, camouflage a broader question about the meaning and function of advisory guidelines.

Notably, the government has changed its position on both retroactivity and vagueness. Although it supported the defendant’s claims in the U.S. Court of Appeals for the 11th Circuit – and those of similarly situated defendants in other circuits – it opposes them now. Adding another dimension to the controversy, the court appointed an amicus, or “friend of the court,” to defend the 11th Circuit’s holding that the vagueness doctrine does not apply to the sentencing guidelines. The decision in this case, therefore, will have broad ramifications for vagueness jurisprudence, the meaning of advisory guidelines, and the respective roles of the commission and the court.

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Calling 911 in the Wake of Police Violence

black_lives_matter_sign_-_minneapolis_protest_22632545857Amanda Seligman is a Visiting Fellow in Law and Public Policy at Marquette University Law School.

How does racially-tinged police violence toward civilians affect city residents’ willingness to summon aid in an emergency? A study in the October 2016 American Sociological Review asks what happened to the number of 911 calls after the public revelation that off-duty white Milwaukee police officers beat Frank Jude in 2004. In “Police Violence and Citizen Crime Reporting in the Black Community,” Matthew Desmond, Andrew V. Papachristos, and David S. Kirk find that in the year after the initial publicity around the beating, Milwaukee residents placed 22,000 fewer 911 calls than might have been expected, resulting in a total of 110,000 calls. Although white neighborhoods saw a spike in 911 calls and then a long but shallow dip, the loss of calls was especially pronounced in black neighborhoods. The authors found no such loss of calls reporting traffic accidents.

Desmond et al.’s 911 study received extensive mass media coverage. Juleyka Lantigua-Williams wrote about the study in The Atlantic, and the New York Times’s “The Upshot” column reported the findings. The study was the subject of two articles in the Milwaukee Journal Sentinel, one reporting on the findings and one offering responses from District Attorney John Chisholm and Milwaukee Police Chief Edward Flynn. Two of the authors, Desmond and Papachristos, also published an Op-Ed piece in the New York Times commenting on the significance of their research. A small host of other reports suggest broad interest in the study’s implications in the context of the Black Lives Matter movement and widespread coverage of police shootings of African American civilians.

Sociologist Desmond is one of our most thoughtful observers of the cultural significance of the 911 emergency call system. In Evicted, his 2015 ethnographic study of housing and poverty in Milwaukee, Desmond observed how victims of domestic violence put themselves at risk for losing their homes if they call the police too often.

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