Prosecutors, Prison Phone Calls, & Collateral Consequences

Today’s post will include some interesting articles about prosecutors, prison phone call rates, and a new report on Collateral Consequences at the local level…barriers faced daily by our brothers and sisters exiting incarceration.

Judge Explains Why Prosecutors Don’t Want To Fix Our Broken Justice System
Erin Fuchs, Business Insider, Dec. 2, 2014

“One of America’s most iconoclastic judges, Jed Rakoff, recently attacked rampant plea bargaining that leads many innocent people to plead guilty.

“We recently spoke to Rakoff about why America’s prosecutors don’t want to get rid of the mandatory minimum sentences that perpetuate this plea bargaining.

“Mandatory minimum sentences were enacted during the crime wave of the 1970s and 1980s and force judges to mete out certain prison sentences without regard for mitigating factors.

“Prosecutors can charge defendants with crimes that carry stiff mandatory minimum sentences, making these (often poor) defendants reluctant to take their chances at trial.”

FCC REPORT AND ORDER AND FURTHER NOTICE OF PROPOSED RULEMAKING

The FCC Looks into the Prison Telephone Racket
Phone home, go broke.
Beth Schwartzapfel, The Marshall Project, Dec. 4, 2014

The proposal is open for public comment until January 5.

“On November 21, the Federal Communications Commission published 28 pages of fine print that could overhaul the way prisons operate their calling plans. Until last year, prison phone systems — known within the industry as “inmate calling services,” or ICS — were “a dark little backwater of telecommunication that the FCC was not paying attention to,” says Peter Wagner of Prison Policy Initiative, an advocacy group.”

“Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level”
Margaret Love, Collateral Consequences Resource Center, Dec. 2, 2014

“Amy Meek just sent us her colorfully titled and important new article recently published in the Ohio State Law Journal, about the collateral consequences imposed by municipal and county ordinances.  As far as I know, this is the first serious effort to address consideration of conviction in connection with opportunities and benefits controlled at the local level.  As the abstract below suggests, many types of entrepreneurial opportunities likely to be attractive to people with a criminal record are subject to governmental regulation below the state level. Because these local ordinances and regulations are rarely included in collections of state collateral consequences, they are invisible to defendants and unavailable to their counsel and the court at the time of plea or sentencing.  Only in a few large municipalities, notably New York City, are criminal justice practitioners even aware of this locally created and administered system of restrictions and exclusions.  For example, with the exception of the District of Columbia, municipal and county rules and regulations are not included in the NIJ-funded National Inventory of the Collateral Consequences of Conviction (NICCC). The potential for interaction between state and local authorities is a particularly intriguing subject that Professor Meek explores in her recommendations for legislative reform.”

The Impact of Collateral Consequences of Criminal Convictions at the Local Level
Amy P. Meek, Ohio State Law Journal
56 pages

Abstract:
“Some of the most severe collateral consequences of criminal convictions are imposed through city and county ordinances and policies. This Article offers the first in-depth examination of these municipal policies, including permits and licensing ordinances, registration and exclusion zones, third-party background-check requirements, and local hiring policies. Some municipal ordinances, such as residential restrictions on sex offenders, impose far harsher sanctions than their state counterparts, effectively banishing certain individuals from the community. In addition, municipal licensing ordinances limit access to occupations — such as street vending, operating a food cart, or driving a taxicab — that offer valuable entrepreneurial opportunities to individuals with criminal convictions. Often invisible to defendants at the time of sentencing, these local policies have been used as a way to exile “undesirables” by effectively barring them from living, working, or participating in public life in their communities. This Article offers suggestions for legislative reform to address the patchwork of collateral consequences that can lead to exile at the local level. States may pass laws preempting municipal restrictions, or municipalities can lead the way by adopting collateral consequences ordinances (such as the one unanimously passed in New Haven, Connecticut) that mitigate the impact of these restrictions by setting uniform standards and informing attorneys and the public.”

TABLE OF CONTENTS

I. INTRODUCTION  2

II. HISTORY AND OVERVIEW OF COLLATERAL CONSEQUENCES  5

III. IMPACT OF COLLATERAL CONSEQUENCES AT THE LOCAL LEVEL  11

A. Background Check Requirements for Licensing 13

1. Licensing of Establishments Thought To Cause Nuisances 14

2. Licensing of Occupations and Professions  15

3. The Impact of Collateral Consequences in Municipal Licensing 18

B. Municipal Registration and Exclusionary Ordinances  19

1. Municipal Registration Ordinances  20

2. Exclusionary Zoning Ordinances  23

3. The Impact of Registration and Exclusionary Zoning  29

C. Municipal Background Check Policies  32

1. Background Check Policies in Municipal Employment 33

2. The Impact of Municipal Background Ck Policies & Legislative Reforms35

D. “Third-Party” Collateral Consequences

1. Landlord Background Checks  37

2. Employer Background Checks  39

3. The Impact of 3rd Party Collateral Consequences & Legislative Reforms  39

IV. OPTIONS FOR REFORM  42

A. State Law Reforms for Municipal Collateral Consequences 42

1. Preemption  42

2. Limits of Municipal Power  45

3. What States Can Do 46

B. Using Municipal Ordinances To Address Collateral Consequences.47

1. Municipal Standards for Imposing Collateral Consequences 48

2. Municipal Collection of Collateral Consequences 50

3. Municipal Expungement of Records  51

4. Why Ban the Box Suggests Collateral Consequences Ordinances Will Succeed 5

V. CONCLUSION …………………………………………………………………………………………………………. 55

CONCLUSION

“Although they are often overlooked by scholars and legal reformers, numerous collateral consequences of criminal convictions are imposed through city and county ordinances. The most serious and widespread municipal collateral consequences fall into four general categories: licensing ordinances, registration and exclusionary zones, local hiring policies, and third-party background-check requirements. Despite their lack of visibility, these local policies have been used as a way to exile “undesirable” populations by effectively barring them from residing, working, or participating in public life in their communities. Moreover, where exclusionary local ordinances have successfully withstood legal challenges, they often filter up to the state level.”

“Increased attention by local and state legislators to the issue of collateral consequences, particularly in employment, suggests that legislative reforms at the local as well as at the state level can help to mitigate this problem. At the state level, preemption laws can help to eliminate the patchwork of harsh restrictions on the most stigmatized populations, such as individuals required to register for sex offenses. At the local level, cities should follow the example of New Haven and the UCCCA in enacting innovative ordinances to mitigate unnecessarily harsh collateral consequences. The success of “Ban the Box” ordinances suggests that cities may lead the way as policy innovators for the states on the issue of collateral consequences.”

There are many barriers that people face when transitioning from institutional to community life. Some of the licensing barriers are old and out of date. We need real reform to help folks successfully return home.

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