In Search of a Second Chance: Channeling BMW v. Gore and Reconsidering Occupational Licensing Restrictions

This is the published version

Clean Slate: Expanding Expungements and Pardons for Non-violent Federal Offenders

Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states. The “tough on crime” rhetoric of the 1980s and 1990s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, “truth in sentencing” laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population. However, unlike the states the federal government does not have a legal mechanism in place adequately reintegrating federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism. This is a price tag the United States can no longer afford to pay. This Article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to rid their slates of their criminal histories. Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders. First, this Article examines post-conviction penalties and contemporary recidivism trends. Second, this Article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for non-violent offenders to re-enter mainstream society. This Article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not practically or politically feasible. Moreover, the two existing federal post-conviction remedies--pardons and judicial expungements-- are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities. Using state post-conviction mechanisms as examples, this Article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (U.S.S.C.) create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions. With a Second Chance Advisory group, the U.S.S.C. could be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs

Ringing the Bell: The Right to Counsel and the Interest Convergence Dilemma

I tell my law students that we are gladiators. We slay injustices while protecting liberty. We battle other gladiators, incapacitate violent criminals, and watch over those without a voice. When the people ring the bell signaling the need to restructure the functions of institutions and practices, lawyers enter the arena ready for combat. In America, the inimitable skills of counsel are constitutionally recognized and celebrated. The Framers considered the right to counsel so critical to the republic that it is enshrined in the text of the Sixth Amendment. Whether majorities of the Supreme Court have held this right in such high esteem is debatable. The Court’s jurisprudence has erratically expanded and restricted the right to counsel, leaving its scope far from certai

Collateral Damage: A Public Housing Consequence of the "War on Drugs"

Often automatic upon a conviction, collateral consequences work to relegate individuals to the status of second-class citizen by the systematic deprivation of opportunity in all aspects of life. Shockingly, these penalties are not aimed solely at ex-offenders. Individuals arrested frequently are denied access to opportunity by virtue of their interaction with the criminal justice system. In the context of public housing, even an arrest is not required for the imposition of collateral consequences. Instead, a public housing agency employee, without having to satisfy any statutorily mandated burden of proof, may make a determination that a household member or guest has engaged in “drug-related criminal activity,” terminate the household from public housing assistance, and subsequently evict the family. This Article hopes to add to the existing scholarship and advocacy regarding exclusionary federal housing policies. It is meant not only to supplement the collateral-consequences literature by identifying and examining additional issues in the administration of federal housing policy, but also to draw attention to the inequities inherent in the current system. More specifically, this Article explores federal termination policies and the way in which they are administered by local public housing authorities (PHAs). I argue that federal law grants an unwarranted amount of discretion to PHAs in assessing cause for exclusion from the program and also fails to provide sufficient statutory and regulatory guidance in the enforcement of PHA lease agreements. Reviewing alleged “drug-related criminal activity” lease violations through a criminal law lens may assist PHAs in making appropriate termination decisions. With this, I recommend that a framework be established requiring PHAs to meet a statutorily mandated burden of proof prior to a “drug-related criminal activity” termination. This standard ought to focus on such activity through a criminal law frame

The Best Interest Is the Child: A Historical Philosophy for Modern Issues

A little over a century after the creation of the first juvenile court in America, the states and the federal government continue to try to find an effective and practical solution to juvenile delinquency. Beginning with the “Best Interest of the Child Standard” in 1899, juvenile justice policy has evolved into a mixed bag of philosophies. State statutes littered with “Best Interest” rhetoric, have interestingly resulted in state policies that are retributive in nature and disproportionately affect minority communities. The disconnect between theory and practice is the product of decades of socio-political influence on juvenile justice policy as well as a replacement of the “Best Interest” standard with staunch retributive ideals. This article puts forth a contemporary understanding of “Best Interest,” so as to unite theory and practice. This union may provide guidance for more effective policies in the realm of juvenile justice. America faces a costly and overburdened prison industrial complex that is fed by the juvenile justice system. Transfer provisions seamlessly transport juvenile offenders into adult court for criminal prosecution. Juveniles adjudicated in adult court face harsher penalties and diminished socio-economic opportunity than juveniles adjudged in juvenile court. While state lawmakers have recently recognized a decrease in violent crime among juveniles overall, many have refrained from advocating policies that promote true “Best Interest” ideals and instead have maintained a focus on law and order. Recent scientific research and psychosocial studies along with the past decade of United States Supreme Court precedent suggest that policymakers’ emphasis on retribution is misguided and anachronistic. Instead, legislators ought to be recognizing the real differences between juveniles and adults namely the “immaturity” of minors as well as their penchant for rehabilitation. This principle is already entrenched in other areas of law such as the minor abortion line of cases. This article advocates for a return to the “Best Interest of the Child” standard. Calling for an organic view of “Best Interest where contemporary contextual factors may be considered,” this article suggests that “Best Interest” calls for a focus on mitigation. This argument builds on Elizabeth S. Scott’s and Laurence Steinberg’s mitigation theory of juvenile justice. Scott and Steinberg argue that adolescents, because of their biological and psychosocial distinctions, possess a diminished capacity and are thereby less criminally blameworthy. Therefore, they argue, this diminished capacity ought to be recognized in the adult prosecution of juveniles. This article argues that Scott and Steinberg’s mitigation paradigm implicitly contains Best Interest principles that may help guide legislators in fashioning legal tools for which to adjudicate juvenile offenders in adult court. Beginning with a call for a “presumption of immaturity” in transfer decisions, this essay begins to examine practical solutions within a mitigation paradigm guided by Best Interest principles. Borrowing from minor abortion jurisprudence, it is contended that in those jurisdictions that have established automatic transfer provisions there ought to be a “presumption of immaturity” that the state must overcome prior to commencing an adult prosecution of a juvenile. Moreover, in the actual adjudication of a juvenile in adult court, defenses such as diminished capacity and extreme mental or emotional disturbance (“EMED”) may provide a vehicle for the admissibility of psychological and neurological evidence associated with adolescent immaturity and development thereby allowing the fact-finder to consider such evidence in its determination of criminal blameworthiness