Second Chance Program May Provide Relief To Those Convicted of Drug Offenses In NY

There may soon be a relief for some people in New York who have been dealing the debilitating stigma that resulted from a conviction for a felony drug offense. State Assemblyman Jeffrion L. Aubry (D – Queens County) has sponsored bill number A0958, known as Second Change Program.

If implemented, the Second Chance Program will allow those who have been convicted of non-violent, not-sexual drug offenses to apply to have their records pertaining to their conviction sealed. Prerequisite to applying include waiting five years, achieving a GED or high school diploma, completing a drug treatment program, and performing a year of community service. Once the prerequisites are met, the defendant “may apply to the Second Chance Commission, to be comprised of individuals appointed by the Governor, the Senate Majority Leader, Speaker of the Assembly and two by the New York District Attorney’s Association.”

Once sealed, the records can only be “made available only to the person’s designated agent, designated law enforcement agencies, a court with responsibility for the criminal adjudication of the individual, an agency with responsibility for the issuance of firearms permits, and, with regard to an employment application, any governmental agency involved in the investigation or prosecution of criminal or civil statutes.”

Full text of the bill can be found at http://assembly.state.ny.us/leg/?bn=A04958

ANALYSIS OF THE BILL

The current version of the bill would definitely provide plenty of public policy benefits (see footnote for brief description of main benefits) that New York is missing by not having any criminal record clearing law. The bill is innovative in some positive ways. However, restricting relief to only those convicted of felony drug offenses greatly limits the bill’s ability to achieve its stated purpose. Also of concern are the many questions that are left unanswered by the plain language of the bill.

Among the innovative positives is the bill’s restorative justice approach to record clearing. Restorative justice is an alternative theory of justice that has been gaining increasing popularity. The theory calls for the building of partnerships to reestablish mutual responsibility for constructive responses to wrongdoing within our communities. All record clearing laws fit restorative justice theories to some extent, but this bill goes farther in incorporating constructive responses.

While record clearing laws in most states focus narrowly on the needs of the court— which is paying court costs and fines, restitution needs of the victim, and the defendant demonstrating signs of rehabilitation by simply not getting convicted during a waiting period, the New York law takes broader approach. Most notably, the bill addresses the needs of society by having the defendant perform a year of community service prior to applying to have their record cleared. This restorative element will provide a direct benefit to society and, possibly, an indirect benefit to the defendant who may be personally enriched or learn skills while performing this service.

Also of note is the bills requirement that the defendant have earned a high school diploma or GED prior to applying. Not only does this requirement benefit defendants who have not received proper incentive to receive a basic education, it will better insure that the public policy goal of society getting a benefit from people who are otherwise marginalized is met.

There are several possible shortcoming of the bill.

First and foremost, relief is only available to those who have been convicted of felonies involving the sale, distribution or possession of controlled substances. Restricting relief to this narrow class of offenders greatly limits the potential benefits of the program. The bills stated purpose is to permit “individuals, who have successfully demonstrated their rehabilitation, to have the records of certain non-violent, non-sexual convictions sealed.” Limited the relief to only those convicted of felony drug offenses falls far short of the stated purposes and leaves tens of thousands of similarly situated people without relief.

A general shortcoming of the bill is that it leaves too much undefined. The lack of specifics almost always results in inconsistent implementation, judicial or administrative misinterpretation, or court challenges that can render the entire bill ineffective.

1. What is the standard used by the Second Chance Commission?
2. What is the remedy for appeal, if any?
3. Can someone reapply, if so, when?
4. What is a sex offense?
5. What is a violent offense?
6. When does the five-year waiting period begin?
7. If someone gets a subsequent offense, are previously sealed records made public or just unsealed for the purposes of adjudicating and sentencing in the subsequent court case?
8. When felonies and misdemeanors are counted for purposes of eligibility, are cases or counts to be counted?
9. Does this restore any rights that are lost as a result of felony conviction?
10. Does this seal records at all state agencies?
11. What happens if the person has a conviction during the waiting period for a previous offense?

Client Stories About How The Criminal Justice System Failed

In the course of dealing with hundreds of people each month, we hear many horror stories about how the criminal justice system has failed people. The stories often involve lying witnesses, ineffective counsel, deceptive district attorneys, corrupt police and arrogant judges.

This section is for clients who want to anonymously or publicly tell their story by adding comments.

The purpose of this is to

1. Shed light on the problems in the criminal justice system.
2. Provide a record of past abuse that may help other people in the same situation
3. Possibly prove a pattern of abuse
4. Let people vent
5. Provide us with information we can use as we continue to advocate for change in the laws

So, if you have a story, please post it here for us and all of the world to read. Use the Post Comment link to start.

Funny Expungement Laws

Getting to know the expungement laws of all 50 states means getting to know some odd requirements to have a record expunged.

Among the more interesting situations where a person becomes eligible for expungement include:

One way to become eligible for expungement in Pennsylvania is to be dead for at least 3 years. So, when planning your estate, make sure to create a trust or testimentary gift contingent on one of your heirs expunging your record 3 years after you assume room temperature. You don't want to have trouble finding a job in the afterlife.

If want to guarantee that your records get expunged in Arizona, make sure you are taking your vitamins and getting lots of exercise. If 99 years pass from the time you were convicted, you are entitled to have your conviction expunged in Arizona. Of course, that is just one way to do it. But it is in the law.

More soon. Thank you for reading about funny expungement laws.

- By Mathew Higbee, Attorney at Law

Fixing Arizona's Procedure for Firearm Rights Restoration

Common sense tells us that a person convicted of a felony is probably more dangerous, and probably more likely to re-offend, than a person convicted of a misdemeanor. However, in Arizona a person convicted of multiple serious felonies can eventually restore his or her gun rights after being released from prison or probation,[1] whereas a person convicted of just one misdemeanor will forever lose his or her right to possess a gun—if that misdemeanor involves domestic violence.

Sound odd or unfair? It gets worse.

Here is how it happens. Under federal law, a person convicted of a “misdemeanor crime of domestic violence” forever loses his right to posses a firearm, unless he gets a pardon, gets his conviction expunged or set aside, or gets his civil rights (including his gun rights) restored.[2] This law was added to the United States Code in 1996 as an amendment (the “Lautenberg Amendment”) to the Gun Control Act of 1968.[3] It was Congress’ response to “the growing national recognition of the importance of deterring domestic violence.”[4]

Adding to the unfairness of the Lautenberg Amendment was the fact that it was applied retroactively. So all those people who took a plea bargain and accepted an agreed upon sentence suddenly had a large penalty added to their bargain— they lost their Second Amendment rights. Opponents of the Lautenberg Amendment have filed a Supreme Court challenge to the retroactive application as grounds that the ban is punitive and therefore violates the Constitution’s prohibition on ex post facto laws. The Supreme Court is yet to rule on the case.

It gets even worse.

Many states, like Arizona, have procedures to set aside a conviction, which are referenced in the Lautenberg Amendment. However, the United States Justice Department (DOJ), the federal agency that provides firearm eligibility reports, ignored the plain language of the Lautenberg Amendment and applied its own definition “set aside.” Under that definition, Arizona’s setting aside law is not sufficient because it does not expressly restore a person’s firearm rights.

All those convicted of a felony in Arizona lose their Second Amendment rights. However, Arizona law provides a way for convicted felons to restore their gun rights. Once a felon meets a waiting period, they can petition the court that convicted them to restore their rights.[5] The District Attorney is given an opportunity to object and the judge has discretion whether or not to restore the rights. However, the law specifies that the court only has authority to restore rights in felony cases. So, Arizona residents who have a conviction for a “misdemeanor crime of domestic violence” have no way of removing the federal prohibition.

There is a fathomable reason for this paradox in Arizona. Under Arizona law, a person convicted of a misdemeanor, whatever it may be, does not lose any civil rights, including the right to possess a gun. However, a person convicted of a felony does. Therefore, the Arizona legislature understandably never felt the need to provide a way for misdemeanants to restore their civil rights/gun rights (because you can’t restore something that was never lost in the first place).

Unfortunately, the Arizona legislature apparently did not anticipate the Lautenberg Amendment or the DOJ’s narrow interpretation of setting aside. To date the legislature has not responded.

Without the ability to restore their gun rights under Arizona law, Arizonians who have a conviction for a “misdemeanor crime of domestic violence” are forever barred from possessing a firearm because of the federal prohibition. It is time for the Arizona legislature to fix this problem. It does not make any sense to allow a person with multiple serious felonies gets to restore his gun rights in Arizona (and thereby be immune from federal prosecution) whereas a person who may only pushed a spouse during an argument loses their Second Amendment rights for life.

The permanent loss of Second Amendment rights means more than just the loss of the opportunity to hunt or protect a person’s life and home. Many jobs that are common career paths for people who may have once had trouble with the law require the ability to carry a firearm. Security guard, law enforcement and the armed forces are just a few entry-level jobs that require the ability of an applicant to carry a firearm.

Arizona lawmakers can fix this problem by simply expanding the court’s current authority to restore a felon’s Second Amendment rights to those who commit misdemeanor offenses for domestic violence.[6] This is necessary in order for these deserving people to be immune from federal prosecution and thereby have their gun rights truly restored. Such a move is good public policy and it will fix the many injustices associated with this federal law that is being applied unfairly and retroactively.[7]

CURRENT AND PROPOSED CHANGES TO A.R.S. §§ 13-906 BELOW:

___


Current A.R.S. §§ 13-906


C. If the person was convicted of a dangerous offense under section 13-604, the person may not file for the restoration of his right to possess or carry a gun or firearm. If the person was convicted of a serious offense as defined in section 13-604 the person may not file for the restoration of his right to possess or carry a gun or firearm for ten years from the date of his discharge from probation. If the person was convicted of any other felony offense, the person may not file for the restoration of his right to possess or carry a gun or firearm for two years from the date of his discharge from probation.

Proposed A.R.S. §§ 13-906


C. If the person was convicted of a dangerous offense under section 13-604, the person may not file for the restoration of his right to possess or carry a gun or firearm. If the person was convicted of a serious offense as defined in section 13-604 the person may not file for the restoration of his right to possess or carry a gun or firearm for ten years from the date of his discharge from probation. If the person was convicted of any other felony offense or a misdemeanor of domestic violence or any misdemeanor offense that carries a state or federal prohibition on possession or carrying a firearm, the person may not file for the restoration of his right to possess or carry a gun or firearm for two years from the date of his discharge from probation.

- By Mathew K. Higbee, Attorney at Law


[1] See Arizona Revised Statutes §§ 13-905 and 13-906.

[2] See 18 U.S.C. §§ 921(a)(33) & 922(g)(9). The United States Tenth Circuit Court of Appeals recently ruled in Wyoming ex rel. Crank v. United States, 2008 WL 3906587 (10th Cir., Aug. 26, 2008), that for a crime to be “expunged” or “set aside” under 18 U.S.C. § 921(a)(33), the state procedure must “completely remove all effects of the conviction at issue.” The Court held that Wyoming’s “expungment” statute, which only partially removed the effects of a conviction and allowed an “expunged” conviction to be used in any in subsequent prosecution, did not go far enough. Arizona’s civil rights restoration statutes (A.R.S §§ 13-905 and 13-906) probably satisfy the Tenth Circuit’s holding. They are not “expungment” or “set aside” statutes (these two mean the same thing, according to the Tenth Circuit) but they are “civil rights restoration” statutes which specifically provide for the restoration of gun rights. Arizona has a separate “set aside” statute (A.R.S. § 13-907) but that statute would not satisfy the Tenth Circuit’s holding.

[3] Pub.L.No. 104-208, § 658, 110 Stat. 3009, 3009-371 to -372 (1996)(codified at 18 U.S.C. §§§ 921, 922, & 925).

[4] United States v. Frechette, 456 F.3d 1 (1st Cir. 1996).

[5] See Arizona Revised Statutes §§ 13-905 & 13-906.

[6] See Arizona Revised Statutes §§ 13-906.

[7] In drafting legislation, the Arizona legislature should work closely with the ATF (US Bureau of Alcohol, Tobacco, Firearms, & Explosives) in order to avoid the problems Wyoming faced in Wyoming ex rel. Crank v. United States.