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Joy Radice

excerpted from: Joy Radice, Administering Justice: Removing Statutory Barriers to Reentry, 83 University of Colorado Law Review 715 (Spring 2012) (361 Footnotes Omitted)

President Barack Obama recently applauded the owner of the Philadelphia Eagles for giving all-star quarterback Michael Vick a second chance after his release from federal prison. Vick served twenty-three months after pleading guilty to participating in a dogfighting ring. President Obama said, [i] t's never a level playing field for prisoners when they get out of jail.

Thousands of civil punishments stand in the way of giving people who served their criminal sentences a true second chance. These punishments are often referred to in academic literature as collateral consequences because they are not part of the penal sanction in sentencing laws; rather, they are scattered throughout a variety of state and federal statutes and regulations, and increasingly in local laws. In December 2010, the American Bar Association released preliminary findings from a national study identifying over 38,000 statutes and regulations that contain a collateral consequence of a criminal conviction. These consequences take two forms. One is a sanction that is triggered automatically by a civil statute because of a conviction. The other is a discretionary disqualification related to a conviction that a civil court or administrative agency is authorized but not required to impose on a person. Consider the following examples:

A man convicted of assault served twelve years in prison where he became the state prison's head barber. When he was released, he applied for a barber's license. State laws permitted the licensing agency, in its discretion, to deny his application because of his single felony conviction.

An eighteen-year-old was fined and received a summons for illegally selling tickets outside Yankee Stadium. The unpaid summons ultimately resulted in a misdemeanor conviction. Even though the student eventually paid the fine and completed community service, the conviction triggered a federal law requiring his father's application for public housing to be denied, and they continued living in a shelter.

A university student convicted of a drug possession misdemeanor completed her sentence at a drug-treatment program. Her financial aid award for college, however, was automatically cut under a mandate of the federal Higher Education Act.

Federal and state-triggered statutory barriers, like those in the above examples, are rarely just collateral to a conviction. They can be more punitive and permanent than a person's actual criminal sentence. Unlike Michael Vick, most people with convictions face severe barriers to employment. This is especially troubling because criminology studies show that employment has the potential to decrease crime and encourage successful reentry.

A major aim of reentry reform over the past two decades has been to make these invisible punishments visible. Numerous academics have catalogued and critiqued these punishments as permanent impediments to successful reintegration. State and national bar associations have issued reports and standards in an attempt to combat the negative impact that these consequences have on reentry efforts.

In 2010, scholars, advocates, and lawmakers characterized the Supreme Court's decision in Padilla v. Kentucky as a watershed event for collateral consequences. In Padilla, the Supreme Court identified deportation as a severe civil penalty of a conviction, and held that under the Sixth Amendment right to counsel, defense attorneys must advise defendants whether a plea carries a risk of deportation. For the first time, the Court recognized the need to inform defendants of a consequence that is not directly a part of the criminal sentence. Since Padilla, lower courts have held that other collateral consequences, such as civil commitment, employment termination, and loss of retirement pensions, fall under Padilla and raise a duty to advise defendants of collateral consequences prior to taking a plea.

As scholars, courts, and lawmakers consider ways to alleviate the burden of collateral consequences, one approach has been recommended repeatedly: administrative relief mechanisms. A state-issued certificate can legally remove some or all statutory barriers to employment, housing, higher education, and other benefits. As far back as 1962, the American Law Institute's Model Penal Code proposed a comprehensive approach to restoration of rights and status that included an order of relief that could be issued by the sentencing court. The ABA's Commission on Effective Criminal Sanctions has urged states to enact laws providing for certificates of rehabilitation . . . . The legal effect of such a certificate should be made clear in each case: the certificate may declare that an individual is eligible for all employment, and other benefits and opportunities. Several states have established administrative relief mechanisms, but none are as old and robust as New York's statutes, which were passed fifty years ago.

In the late forties, New York legislators created two statutes, which I refer to collectively as Certificates of Rehabilitation, aimed at reducing employment barriers for people with criminal records. In support of the legislation's expansion in 1976, New York Governor Hugh Carey wrote:

The great expense and time involved in successfully prosecuting and incarcerating the criminal offender is largely wasted if upon the individual's return to society, his willingness to assume a law-abiding and productive role is frustrated by senseless discrimination.

Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime.

Governor Carey recognized in 1976 what reentry scholars and advocates are saying today--unless a person is relieved of statutory barriers, the person's likelihood for recidivism increases and the person's attempts to reintegrate into society are frustrated. The unique part of the statutory framework created in New York in the seventies is a two-tier horizontal relief mechanism. For individuals with minor convictions, certificates granted at sentencing were seen as a means to rehabilitation. Relieving statutory barriers made reintegration easier. For individuals with multiple and serious felony convictions, the state required a waiting period prior to applying for a certificate. For those individuals, the certificate served as proof of rehabilitation. Much of today's conversation about Certificates of Rehabilitation revolves around the latter approach. New York's dual approach offers two different rationales for how these relief mechanisms can work most effectively.

The Certificates of Rehabilitation statutes authorize two administering bodies, the sentencing court and the Department of Corrections and Community Supervision (DCCS), to issue certificates. An applicant with any number of misdemeanors and up to one felony can apply to the sentencing court for a certificate as early as the applicant's sentencing date. The department of probation investigates the application and makes a recommendation to the court about whether an individual should be awarded a certificate. The DCCS investigates and awards certificates to individuals who do not fall within the limited category of those who apply to the sentencing court.

New York's Certificates of Rehabilitation statutes have served as a model administrative relief mechanism. In 2006, Illinois's certificate statute, co-authored by then State Senator Barack Obama, was based on New York's statute. The Uniform Law Commission (ULC), in response to the ABA commission's recommendation, drafted a model state statute, drawing upon the procedures utilized in New York, the only state with comprehensive procedures to relieve the restrictions imposed by collateral consequences. North Carolina passed a version of the ULC's model, and five additional states introduced similar legislation in 2012.

This spotlight on creating administrative relief mechanisms creates an important moment for examining Certificates of Rehabilitation. Although scholars, bar associations, and advocates have endorsed the creation of an administrative relief mechanism, and one based on New York's certificates statutes specifically, no one has examined how New York's certificates have actually worked. This Article adds to the academic literature on administrative relief mechanisms by identifying the strengths and shortcomings of New York's Certificates of Rehabilitation statutes. New York's experience should inform the larger national debate about how to create a legally robust mechanism for removing the numerous and interminable statutory barriers to reentry.

Part I of this Article examines the legislative history of New York's statutes. The evolution of Certificates of Rehabilitation in the sixties and seventies reveals that today's concern about relieving collateral consequences in the reentry literature is not new. Although the impact of certificate statutes waned during the decades of law and order politics, they have tremendous potential for revival in New York and should be replicated as states refocus their political attention and resources on successful reentry.

Part II examines the strengths of a Certificate of Rehabilitation model. I argue that this relief mechanism is the most politically attractive because it does not remove a criminal record, and thus is the most viable mechanism for removing collateral consequences when compared to the alternatives of executive pardons and expungement. Certificates can create a legal mechanism for guaranteeing that statutory barriers are lifted. New York's Certificate of Rehabilitation model is the only one that creates a legally enforceable rebuttable presumption of rehabilitation, an important burden-shifting mechanism. Additionally, certificates can offer a range of relief and be crafted for each individual applicant. In their complete capacity, they can lift statutory bars to state licenses, remove obstacles to private employment, reestablish access to public benefits, and restore voting rights, which are critical to both economic and civic reintegration.

Part III identifies and discusses legal, administrative, and social limitations of New York's Certificates of Rehabilitation. Legally, the statute is too vague and discretionary, requiring no oversight of administering authorities and offering no means for appeal. Administratively, applications for Certificates of Rehabilitation suffer from serious agency delay and have no clear criteria for their evaluation. Part of the problem is that the supervisory and punitive priorities of the administering authorities, probation and parole, conflict with the rehabilitative goals of the certificates. Socially, Certificates of Rehabilitation have not entered the mainstream process of reentry. Potential applicants have not heard about them and find it difficult to navigate the application procedures.

Part IV addresses how other states can learn from this fifty-year history. New York's experience points to the need for a Certificate of Rehabilitation statute with clear legislative directives and a strong enforcement mechanism. Successful implementation also requires committed administrative leadership and an effective means for making certificates accessible to the population they serve.

* * *

This year, some 600,000 inmates will be released from prison back into society. We know from long experience that if they can't find work, or a home, or help, they are much more likely to commit crime and return to prison. . . . America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life.

--President George W. Bush, State of the Union Address, January 2004.

[T] here are people who've made mistakes . . . . [I] think one of the great things about America is that we give people second chances. . . . [Y] ou reduce the recidivism rate, they pay taxes, it ends up being smart for taxpayers to do.

--President Barack Obama at a town hall meeting, January 22, 2010.

Over the past decade, the country has shifted its thinking about tough-on-crime politics. We are at a unique moment in evaluating what happens on the back end of the criminal justice system when people are released. This prioritization of reentry initiatives makes sense on both sides of the political aisle from a normative and economic perspective.

Bar associations, politicians, advocates, and scholars have shined a spotlight on state-issued certificates because they can remove the myriad unending civil punishments that attach to even the most minor criminal convictions. This attention recognizes that the state, which has set up these legal barriers to reentry, has a reciprocal obligation to play its part in their removal. In our technologically advanced society, where criminal records can be retrieved easily on the Internet, removing all memory of a criminal record is futile. As New York's experience with Certificates of Rehabilitation shows, a certificate does not wipe away the reality of the past. It merely stands for the proposition that a person with a conviction still has a future. Certificates of Rehabilitation can be administered to ensure that the impact of collateral consequences is proportionate to the crime and to offer protection against persistent discrimination. Certificates can help us reshape the purpose of our criminal justice system toward a more forgiving reintegration ideal.

. Acting Assistant Professor, New York University School of Law. J.D., Harvard Law School. A.B., Princeton University.