The Restoration of Rights Project

Have you ever been arrested? Do you have a prior conviction?

Do you wonder whether you can clean up your record and how that affects you, if at all?

Start here. It’s called the Restoration of Rights Project, and it looks at the law in every state for restoring your rights and status after an arrest or conviction. It covers federal law, too.

For each state, the Project compiles answers to these questions:

  1. Whether and how you can seal, expunge, or dismiss your arrest or conviction.
  2. Whether and how you can restore your civil rights, like the right to vote.
  3. Whether and how your state’s laws affect your chance of landing a job or license, losing one, or getting it back.
  4. Whether your state has a regular process to apply for a pardon and how often it grants one.
  5. Whether and how you can stop having to register as a sex offender.

It’s a great resource not just for lawyers and the courts but for, in its words, “the millions of Americans with a criminal record who are seeking to put their past behind them.”

The Modern Public Square

This week brought us another unanimous U.S. Supreme Court case that’s arguably more important because it concerned the First Amendment.

The issue was a North Carolina law that made it a felony for registered sex offenders to use any social-networking site that lets minors join. So to be clear, that’s any social-media site, period, that lets minors join. That meant Facebook, LinkedIn, Twitter, or pretty much any other social-media site. The law was even broad enough to include websites like Amazon, WebMD, and the Washington Post. So you almost couldn’t use the Internet.

The defendant was one of more than 1,000 people who’ve been prosecuted under the law. In 2002, when he was 21 years old, he had sex with a 13-year-old girl, and he was charged with it. He pleaded guilty to it and registered as a sex offender. Then the law passed in 2008.

In 2010, he happened to get a traffic ticket dismissed in court, whereupon he logged on to Facebook and posted this to his timeline: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent … Praise be to GOD, WOW! Thanks JESUS!”

He was indicted for that.

He moved to dismiss on the ground that the law violated the First Amendment, but the trial court denied it. He was convicted at trial and given a suspended prison sentence.

On appeal, the state courts duked it out. The court of appeals agreed with the guy, finding that the law violated the First Amendment. But the state supreme court reversed, finding the law “constitutional in all respects.”

Finally, the federal high court unanimously struck down the law because it plainly applied to websites like Facebook, LinkedIn, and Twitter among others. Facebook itself had 1.79 billion active users—or three times the population of North America.

The Court called these sites “integral to the fabric of our modern society and culture.” They had become our main sources for sharing current events, participating in the public square, and exploring human thought and knowledge. To foreclose access to them was to foreclose the legitimate exercise of First-Amendment rights.

Yes, a state could pass specific, narrowly-tailored laws that regulate the type of conduct that portends crime, like contacting a minor or using a website to gather information about one.

But it couldn’t just cut people off from the public square.

Child-Pornography Possession in State and Federal Court

Among the common offenses for which people must register as sex offenders is possession of child pornography.

Under California law, possession of child pornography is a felony, though it may be punished by imprisonment either in the county jail for up to one year or in state prison for 16 months, two years, or three years. Pen. Code § 311.11(a). If you possess more than 600 images and at least ten of them depict a prepubescent minor or one under the age of twelve, then you’re facing a possible top term of five years instead of three. Id. § 311.11(c)(1). The same rule applies if you possess any images that portray sadomasochistic activity. Id. § 311.11(c)(2). To count the number of images, each still photo or depiction counts as one image, and each motion picture or video counts as fifty. Id. § 311.11(f). If you have prior convictions for child pornography or any other offense that requires sex-offense registration, then you’re looking at state prison for two, four, or six years. Id. § 311.11(b).

A lot can turn, however, on how a prosecutor charges the case, and several related, alternative offenses may be charged as felonies or misdemeanors. See generally id. §§ 311-312.7 (cataloging the criminal obscenity laws).

Under federal law, possession of child pornography is a felony punishable by imprisonment for up to ten years in all cases or twenty years if any image depicts a prepubescent minor or one under the age of twelve. 18 U.S.C. § 2252A(a)(5), (b)(2). If you have prior convictions for child pornography or another offense that requires sex-offense registration, then you’re looking at a maximum sentence of twenty years and a mandatory minimum of ten. Id.

Alternatively, if the prosecutor charges you with receiving child pornography rather than possessing it, you face a mandatory-minimum sentence of five years and a maximum sentence of twenty. See id. § 2252A(a)(2), (b)(1). Tack on a prior conviction and you’re looking at a minimum of fifteen years and a maximum of forty. Id. If you’re not clear on the distinction between receiving and possessing or why the former triggers a mandatory-minimum sentence while the latter doesn’t, you’re not alone. No one understands it, but it helps prosecutors obtain guilty pleas by offering to dismiss the receipt charge if you plead guilty to the possession or by threatening to add the receipt charge if you don’t.

In federal court, your actual sentence will depend on how the court applies the federal sentencing guidelines. See generally U.S.S.G. § 2G2.2 (setting forth the guideline for child-pornography possession). As in state court, there are enhancements based on the number of images, the age of the minors, and any sadomasochistic imagery (among others). In federal court, each still photograph or depiction counts as one image, and each motion picture or video counts as 75 images. Generally, in better-case scenarios, you’re looking at a guideline range of around two years. In worse-case scenarios, even for simple possession, you could well be facing eight to ten years in prison or more.

Many well-meaning people believe these punishments are excessive, and among the most criticized is a federal provision that adds two aggravating points to your guideline calculation if you used a computer to commit the offense. Id. § 2G2.2(b)(6). In reality, everyone receives this enhancement because, nowadays, child pornography (and all pornography) is possessed virtually exclusively through the use of computers. Simply, it makes no sense to consider them as an aggravating factor at sentencing.

For these reasons, in federal court, child-pornography possession generates more below-guideline sentences than any other category. In fact, in a 2010 survey of federal judges by the U.S. Sentencing Commission, over 70% of respondents—representing nearly 70% of all active, sentencing judges—believed the guidelines for possession and the mandatory minimum for receipt were too high.  Just two percent thought they were too low.

Our Ballooning Sex-Offender Registries

California’s not the only state having trouble with its sex-offender-registration regime. In New York, the prisons are holding people past their release dates because they can’t find anywhere to live, and nearly 95% of the homeless shelters are off-limits, too.

The problem is that we don’t pass these laws on the basis of reason and evidence but on the basis of an emotional reaction to bad facts in higher-profile cases. That’s not good policy, but that’s how we get laws that require lifetime registration for every sex offense regardless of the offense or the person’s risk of re-offending (which is the case in California). Or how we get laws that register people for things like consensual teenage sex (as in at least 29 states), peeing in public (at least twelve states), or prostitution (at least six states).

The consequences are that we spend many millions of dollars to maintain registries that don’t help us distinguish high-risk offenders from low-risk ones and that permanently deprive people of any hope, housing, employment, or positive human relationships by branding them as monsters for life.

A large, growing body of research, however, says that we’re wrong about two key assumptions: that sex offenders re-offend at a higher rate than others and that most of them are strangers lurking among us. To the contrary, they are no more likely to re-offend than others—or even less likely to do so—and they are overwhelmingly not the bogeymen in the bushes but, rather, the (unregistered) people we know.

Who says so?

Well, the U.S. Department of Justice, for starters. Here’s a 2009 DOJ-funded study, for example, that found lower rates of recidivism based on its meta-analysis of 23 prior, accredited studies. And here’s a 2003 DOJ report that tracked nearly two-thirds of all the sex offenders who were released from state prisons in 1994 and found they had a lower rearrest rate than non-sex offenders.

Or how about the California Sex Offender Management Board, which oversees the largest state registry in the country in the first state to create one (back in 1947). The Board is comprised of prosecutors, police officers, and parole agents among other experts and officials. Around this time last year, it released a white paper that proposed replacing mandatory lifetime registration in California with a three-tiered system:

  • lifetime registration for sexually-violent offenders, repeat offenders, and other high-risk offenders;
  • a twenty-year registration for those who are convicted of serious or violent offenses but are not high-risk re-offenders; and
  • a ten-year registration period for misdemeanor offenders and others convicted of non-serious or non-violent offenses.

The Board’s proposal would help focus resources on those who truly present a risk while permitting others to develop stable lifestyles and move forward with their lives. We should lend our support to legislators who sponsor a bill to enact its recommendation.

Or how about Patty Wetterling, whose eleven-year-old son, Jacob, was kidnapped in 1989. Afterward, she worked hard to move more states to create sex-offender registries, and in 1994, President Clinton signed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act into law. Today, Ms. Wetterling is the Chair of the National Center for Missing & Exploited Children, and she has served on its Board of Directors for over twenty years. But she is also one of the sharpest critics of the spiraling, ballooning use of registries that does more harm than good.

Homeless Outside a Homeless Shelter

Hold on to your hats.

Two weeks ago, the California Supreme Court unanimously struck down a provision of Proposition 83—commonly known as Jessica’s Law—that had barred all registered sex offenders from living within 2000 feet of any school or park. The Court held the provision was unconstitutional to the extent that it applied automatically across the board to every registered parolee in San Diego County. The Court affirmed, however, the state’s right to impose residency restrictions—whether more or less stringent than Proposition 83—on individual parolees based on the particular circumstances of a case.

It’s not hard to understand why this makes sense when, depending on the map and makeup of a county, these people have nowhere to live. They may no longer be able to live with their families, in sober-living homes, or even in homeless shelters depending on the location. In San Diego, where the lawsuit was brought, Proposition 83 had effectively barred registered parolees from access to over 97 percent of the county’s available housing, and realistically, the remaining three percent was not entirely available either due to high rents, low vacancies, and the unwillingness of some landlords to rent to the parolees. Ultimately, the residency restrictions made everyone less safe by sabotaging parole: destroying people’s ability to live and work and making it more difficult to supervise them.

This was true of the four plaintiffs who brought the lawsuit, each of whom was rendered homeless by Proposition 83. Two of them had been sleeping in alleys behind the parole office at the suggestion of their parole agents (who were likely at a loss themselves about what to do). One of them had followed his parole agent’s suggestion to live in the riverbed of the San Diego River. The first was a man who was registered because of a 1991 conviction for sexual assault against an adult woman, and who had no other convictions for sex crimes and no convictions at all for crimes against children. The second was a man who was registered because of a 1989 conviction for misdemeanor sexual battery against an adult woman; he too had no other convictions for sex crimes and no convictions at all for crimes against children. The third was a woman who was registered for a 1988 conviction for committing a lewd and lascivious act on her daughter, who was under the age of 14 at the time, but had no other convictions for sex crimes or crimes against children. The fourth was a man who was registered because of a 1981 case when he was 15 years old, and a juvenile court found that he’d committed a lewd and lascivious act on his 10-year-old sister. He too had no other convictions for sex crimes or crimes against children.

After an eight-day evidentiary hearing on these issues, the trial court concluded that the residency restrictions were unconstitutional as a mandatory condition on all parolees, but they could be imposed as discretionary conditions on a case-by-case basis.

On review, the Court of Appeal and, now, the Supreme Court have agreed.

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