[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
COLLATERAL CONSEQUENCES
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HEARING
BEFORE THE
OVER-CRIMINALIZATION TASK FORCE OF 2014
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JUNE 26, 2014
__________
Serial No. 113-100
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Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio ZOE LOFGREN, California
SPENCER BACHUS, Alabama SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
JASON T. SMITH, Missouri
[Vacant]
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
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Over-Criminalization Task Force of 2014
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
SPENCER BACHUS, Alabama ROBERT C. ``BOBBY'' SCOTT,
RAUL LABRADOR, Idaho Virginia
GEORGE HOLDING, North Carolina JERROLD NADLER, New York
STEVE COHEN, Tennessee
KAREN BASS, California
HAKEEM JEFFRIES, New York
Caroline Lynch, Chief Counsel
C O N T E N T S
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JUNE 26, 2014
Page
OPENING STATEMENTS
The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman, Over-
Criminalization Task Force of 2014............................. 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member, Over-
Criminalization Task Force of 2014............................. 2
WITNESSES
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney,
Montgomery County, Dayton, Ohio
Oral Testimony................................................. 11
Prepared Statement............................................. 14
Rick Jones, Executive Director, Neighborhood Defender Service of
Harlem
Oral Testimony................................................. 25
Prepared Statement............................................. 27
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 5
APPENDIX
Material Submitted for the Hearing Record
Material submitted by the Honorable Spencer Bachus, a
Representative in Congress from the State of Alabama, and
Member, Over-Criminalization Task Force of 2014................ 54
Material submitted by the Honorable Robert C. ``Bobby'' Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Over-Criminalization Task Force of 2014........ 60
Prepared Statement of the Consumer Data Industry Association
(CDIA)......................................................... 140
Letter from the National Association of Professional Background
Screeners (NAPBS).............................................. 149
Material submitted by the Federal Interagency Reentry Council.... 154
Prepared Statement of the Brennan Center for Justice Legislative
Office......................................................... 156
COLLATERAL CONSEQUENCES
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THURSDAY, JUNE 26, 2014
House of Representatives
Over-Criminalization Task Force of 2014
Committee on the Judiciary
Washington, DC.
The Task Force met, pursuant to call, at 9:30 a.m., in room
2237, Rayburn House Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Task Force) presiding.
Present: Representatives Sensenbrenner, Bachus, Gohmert,
Conyers, Scott, Cohen, Johnson, Bass, and Jeffries.
Staff Present: (Majority) Robert Parmiter, Counsel; Alicia
Church, Clerk; and (Minority) Ron LeGrand, Counsel.
Mr. Sensenbrenner. The Task Force on Over-Criminalization
will come to order.
Without objection, the Chair will be authorized to declare
recesses during votes on the floor. Let me say we are supposed
to have an hour and a half worth of votes beginning at 10:30 to
10:45, and I don't think that it would be advisable to have the
witnesses sit for an hour and a half, and I don't know how many
Members will be coming back after an hour and a half; so I
would like to wrap this up by 10:30, 10:45.
I have an opening statement. I yield myself 5 minutes.
Good morning, and welcome to the eighth hearing of the
Judiciary Committee's Over-criminalization Task Force. Today's
hearing will focus on the collateral consequences associated
with a criminal conviction. Over its first seven hearings, the
Task Force examined issues related to criminal intent, over-
federalization, penalties, and other issues which affect
criminal defendants during the investigative and prosecutorial
phases of the criminal justice process.
However, today's hearing will examine the consequences that
follow a criminal conviction which may not be immediately
apparent during the pendency of a criminal case.
The American Bar Association knows that some collateral
consequences serve an important and legitimate public safety,
or a regulatory function, such as keeping firearms out of the
hands of violent offenders, protecting children or the elderly
from persons with a history of physical, mental or sexual
abuse, or barring people convicted of fraud from positions of
public trust. Others are directly related to the particular
crime such as registration requirements for sex offenders,
driver's license restrictions for those convicted of serious
traffic offenses, or disbarment of those convicted of
procurement fraud.
However, advocates for reform in this area including our
panel today, have argued that in many cases the collateral
consequences applicable to a given criminal conviction are
scattered throughout the code books and frequently unknown to
those responsible for their administration and enforcement.
This claim should sound familiar to Members of this Task Force
since the witnesses before us have repeatedly demonstrated that
statutes carrying criminal penalties are also scattered
throughout the U.S. Code.
Additionally the Supreme Court recognized in Padilla versus
Kentucky in 2010, that when a person considering a guilty plea
is unaware of serious consequences that will inexorably follow,
this raises questions of fairness and implicates the
constitutional right to effective assistance of counsel. I
agree that this area is one that the Task Force should consider
during its evaluation of the over-criminalization of Federal
law.
However, there are several areas where I have serious
concerns, most notably with regard to the argument advanced by
many, including at least one of our witnesses today, that
Congress should force private employers to ignore an employee's
criminal history when making a hiring decision via a Ban the
Box and other legislative initiatives.
Generally I do not believe that adult offenders who engage
in violent and other forms of malum in se conduct should be
able to complain about the consequences of their actions.
Additionally, over the years Congress has repeatedly seen fit
to make criminal history records available to employers,
including schools, banks, power plants and other vital parts of
our Nation's infrastructure in order to protect public health
and safety. Proposals such as Ban the Box run directly contrary
to that important effort.
Additionally, as the author of the Adam Walsh Child
Protection and Safety Act of 2006, I have serious concerns with
any efforts that characterize dangerous sex offenders who prey
on our children as suffering from an unjust collateral
consequence. Having said that, during my tenure in Congress, I
have been a consistent proponent of efforts to help
rehabilitate ex-offenders and to lessen their risk of their
reoffending following release.
Last year I reintroduced H.R. 3465, the ``Second Chance
Reauthorization Act of 2013.'' This bipartisan legislation
which has been co-sponsored by the Task Force's Ranking Member,
Mr. Scott, would reauthorize and streamline the grant programs
in the Second Chance Act to help ex-offenders become productive
members of our society.
I want to thank the witnesses for appearing today and look
forward to hearing about these and other issues associated with
the collateral consequences of a criminal conviction.
It is now my pleasure to recognize for his opening
statement, the Ranking Member of the Task Force, the gentleman
from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, our last hearing focused on the problem of
over-incarceration and the need for proportional evidence-based
and individualized sentencing. The Pew Center on the States,
estimates that any ratio of over 350 per 100,000 in jail today
begins to get a diminishing return for additional
incarceration. They also tell us that anything over 500 per
100,000 actually becomes counterproductive because you are
wasting so much money, you are messing up so many families. You
have so many people with felony records it actually increases
crime not decreases crime.
Data shows that since 1992, the annual prison costs have
gone from about $9 billion to over $65 billion adjusted for
inflation, and that increase of prison costs was over six times
greater than higher education. This hearing focuses on the
significant punitive and offered counterproductive collateral
consequences that obstruct, impede, and undermine successful
reentry. Our witnesses today will share the data that
demonstrates that our existing system of State and Federal
collateral consequences wastes the taxpayers' money, violates
common sense, and are ultimately counterproductive to the goal
of public safety.
Just like each of the 195 mandatory minimums got in our
Federal code one at a time, each and every one of the over
45,000 collateral consequences that were written into State and
Federal law got there slowly over time. When considered in
isolation, a collateral consequence may not initially appear to
be a high hurdle to reentry and success, but taken together,
these collateral consequences form a tightly woven web that
restricts individuals from overcoming the hurdles in their
path.
Many of these collateral consequences are born from the
worst of the worst of these tough on crime sound bites
masquerading as sound public policy. Just as mandatory minimum
sentences, sentence people before they are even charged or
convicted based solely on the code section violated without any
consideration to the seriousness of the crime or the role of
the defendant, collateral consequences apply across the board
and to ``all convicted felons.''
For example, in the drug context in the fiscal year 2012,
60 percent of convicted Federal drug defendants were convicted
of offenses carrying a mandatory minimum penalty of some sort.
Right now restrictions on your ability to work, live, learn and
survive are the same irrespective of your expense, or how long
ago it was or what role you played, the collateral consequences
you face are not narrowly tailored or even tailored at all. It
is a one size fits all, it is another example of tough on crime
sweeping far too broadly and far too harshly. There is no
reliable scientific data that demonstrates that any of these
collateral consequences actually improve public safety, reduce
recidivism, or save money. To the contrary, all of the evidence
is just the opposite.
Collateral consequences of conviction affect an
individual's ability to obtain necessary social services,
employment, professional licenses, housing, student loans to
further their education, the ability to interact with their
children, and critically, power through the voting in the
Democratic process. All of these restrictions, among tens of
thousands of other ones, have resulted in lifelong civil
penalties that prevent individuals from transitioning back to
society successfully. They serve to marginalize and stigmatize
those with prior convictions and treat them as second class
citizens.
Just as the Children's Defense Fund has recognized that
secure housing, employment, education and other social services
are the best crime-prevention resources to redirect individuals
from what they call the cradle to prison pipeline, toward a
cradle to college and career pipeline, so too must we apply the
same data to redirect those reentering our communities after
serving their sentences.
When there is no hope for a decent job because employers
refuse to hire those with a prior conviction, we can't be
surprised that some choose to return to the very paths that led
them to prison in the first place. Often there is no bearing,
no correlation, and no relevance between someone's prior
conviction and the job they are applying.
Now, in some circumstances, there may be value in looking
at the criminal conviction. For example, it makes sense for
someone with an embezzlement conviction to be denied a job at a
bank. But what does a 30-year-old marijuana possession
conviction have to do with someone getting a good paying
construction job? Now the EEOC has issued guidance that
provides that an employer's use of an individual's criminal
record may discriminate against them if there is a
disproportionate impact on certain minorities without any job-
related relationship. That could constitute discrimination and
so although the criminal record may be relevant--can I have
about 30 more seconds.
Mr. Sensenbrenner. Without objection.
Mr. Scott. Although the criminal record may be relevant,
the untargeted, overly broad denial of all jobs because of any
Federal record may actually constitute discrimination.
Mr. Chairman, thank you for holding the hearing, and look
forward to the testimony of our witnesses.
Mr. Sensenbrenner. The the time of the gentleman has
expired.
Without objection other Members' opening statements will be
made a part of the record.
[The prepared statement of Mr. Goodlatte follows:]
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Mr. Sensenbrenner. It is now my pleasure to introduce the
two witnesses this morning.
Mr. Rick Jones is the executive and a founding member of
the Neighborhood Defender Service of Harlem. Mr. Jones is a
lecturer at Columbia Law School where he teaches criminal
defense externship and a trial practice course. He is also on
the faculty of the National Criminal Defense College, in Macon,
Georgia, and is frequently invited to lecture on criminal
justice issues throughout the country.
He currently serves as Secretary of the National
Association of Criminal Defense Lawyers and previously served
that organization as a two-term member of the board of
directors, parliamentarian, co-chair of both the Indigent
Defense Committee and the special task force on Problem Solving
Courts, and is currently co-chair of the task force on the
restoration of rights and status after conviction.
Mr. Mathias Heck is a prosecuting attorney for Montgomery
County, Ohio. He previously served Montgomery County as a law
clerk and then as assistant prosecuting attorney. He received
his undergraduate degree from Marquette University, which was a
very wise choice, and his J.D. Degree from the Georgetown
University Law Center.
I would ask all of you to limit your opening remarks to 5
minutes. I think you are all aware of what red, yellow and
green means in the timer before you and even though I
introduced you second, the prosecution always puts their case
in first, so Mr. Heck, the floor is yours.
TESTIMONY OF MATHIAS H. HECK, JR., MONTGOMERY COUNTY
PROSECUTING ATTORNEY, MONTGOMERY COUNTY, DAYTON, OHIO
Mr. Heck. Good morning, Mr. Chairman, Members of the Task
Force. Thank you very much. I appreciate your comment about
Marquette--Okay? Thank you.
Again, good morning, I appreciate your comments about
Marquette University, and I know it is very dear to your heart.
In addition to being the prosecuting attorney from
Montgomery County, Dayton, Ohio, I am also honored to be the
chair of the Criminal Justice Section of the American Bar
Association which is a section of about 20,000 members which
include the whole array of the partners of the criminal justice
section and the criminal justice process in the American
system, and that is judges, defense lawyers, prosecutors, law
professors, and other law enforcement personnel.
I appear today to talk about the ABA's view of collateral
sanctions and how it relates to convictions and also highlight
some of the things that the American Bar Association has done.
As many of you know, the American legal system has long
recognized that certain legal disabilities or collateral
sanctions result from a criminal conviction in addition to a
sentence, so, there may be a prescribed sentence relating to a
crime, but attached thereto may be collateral sanctions or
disabilities that are also imposed in addition to the sentence.
That sentence could be probation, could be to the
penitentiary, or a combination of both. These collateral
consequences of conviction include such familiar penalties of
disfranchisement, deportation, loss of professional licenses,
felon registration, ineligibility for certain public welfare
benefits, even loss of a driver's license, and many more.
Over the last number of years, collateral consequences have
been increasing steadily in variety and severity throughout the
country, and they have been accumulated with little
coordination in State and Federal laws, making it almost
impossible to determine all of the penalties and disabilities
applicable to a particular offense.
Now, some collateral sanctions or consequences do serve an
important and legitimate public purpose. As the Chairman has
already mentioned, keeping firearms out of the hands of persons
convicted of crimes of violence, or barring persons who have
been convicted of embezzlement from holding certain public
interest jobs, or denying driving privileges to those convicted
of aggravated vehicular homicide. Other collateral sanctions
are more difficult to justify, particularly when applied
automatically across the board to a complete category of
convicted persons, and the reason is, it results in serious
implications not only in terms of fairness, and as a prosecutor
I can say this, not only as in regards to fairness to the
individual charged, but also to the resulting burdens on the
community, on the citizens.
Collateral consequences can also present challenges to the
issue of reentry, and reentry is very important. It may become
a surprise to many of you, but local prosecutors throughout the
country have very spearheaded, reentry programs because we see
this as a public safety issue. Nonetheless, not all collateral
consequences of conviction are affected. Many have no
relationship to public safety and prevent a former offender
from doing productive work in order to support a family and
contribute to the community. This effect to employment results
and represents one of the more difficult issues facing, I
think, our justice system and our Nation. The reality is that
ex-offenders who cannot find jobs that provide sufficient
income to support themselves and their families are more likely
to commit more criminal acts and find themselves again back in
prison.
Now, the American Bar Association has adopted a
comprehensive set of principles regarding collateral sanctions,
and they have two primary goals, one to encourage awareness of
all involved in the justice system process of the full legal
consequences of a conviction, so when someone is convicted they
know what's going to happen.
And, secondly, to focus attention on the impact of
collateral consequences on the process by which a convicted
person can get into reentry and come back into the community
and be a productive member of the community.
They also call for a significant number of reforms to the
law. Number one, the law should identify with particularity the
type, severity, and duration of the collateral sanctions, so if
there is a collateral sanction to a particular crime, everyone
knows what it is.
Now, the Collateral Consequences of Conviction Project,
which is funded by the National Institute of Justice and
completed just recently by the American Bar Association is
something that was authorized by Congress. We started it in
2009, we just completed it, and we have adopted and found
45,000 collateral consequences.
And, again, the hope is that we can categorize these and
that everyone knows, it is open to the public, to defense
lawyers, to prosecutors, and that way everyone can understand
what the collateral consequences are. They are readily
available, and they know what's involved. Thank you very much,
and I appreciate it, and I will be glad to answer any
questions.
[The prepared statement of Mr. Heck follows:]
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__________
Mr. Sensenbrenner. Thank you very much, Mr. Heck.
Mr. Jones.
TESTIMONY OF RICK JONES, EXECUTIVE DIRECTOR, NEIGHBORHOOD
DEFENDER SERVICE OF HARLEM
Mr. Jones. Thank you for the invitation to appear before
you this morning.
We have a lot of ground to cover and a little time. I am
going to get right into it. Sixty eight million people in this
country are living with a criminal record. That is one in every
four adults. Twenty million people with felony convictions, 14
million new arrests every year, 2.2 million people residing in
jail or prison, that is more than anywhere else in the world.
As a member of the NACDL task force that produced this
collateral damage report, I had the opportunity to travel to
every region of the country and listen to the testimony of
people living with convictions as well as to the testimony of
many other stakeholders in the criminal justice system.
In Northern California, we heard from a chief of police who
is dealing with a significant crime problem, a rising murder
rate, and widespread community distrust. As he searched for
solutions, he realized that he was policing from a place of
fear. That was his term, policing from a place of fear. He was
not serving or protecting the community. He was at war with the
community. His officers did not really know the citizens they
were policing. Distrust and fear was the order of the day. It
wasn't until he took the time to get to know the people he was
charged with protecting, that he recognized and appreciated
their humanity. Trust and understanding improved, and his crime
problem began to decline.
Sixty eight million people living with convictions, more
than the entire population of France. We are in danger of
becoming a nation of criminals because we are policing from a
place of fear. Fourteen million new arrests every year. We are
prosecuting from a place of fear. Forty five thousand,
collateral consequences on the books in this country, 45,000
road blocks to the restoration of rights and status after
conviction. We are legislating from a place of fear. The time
has come for change in our national mind set. We must move from
penalty, prosecution and endless punishment to forgiveness,
redemption and restoration.
A great way for this Task Force to begin the healing
process is to implement the first recommendation in our report,
a call for a national restoration of rights day, a day every
year where we can celebrate redemption and restoration with
educational programs for employers, skills training workshops
for the affected community, job fairs, certificate of relief
programs, at no cost and no cost opportunities, no cost
opportunities to clean up your rap sheet.
More concretely, there are four steps this Task Force can
take that will have an immediate impact on the collateral
damage of collateral consequences. First, you must repeal
Federal mandatory collateral consequences. Fourteen million new
arrests each year, 68 million people living with convictions,
mandatory, automatic, across-the-board collateral consequences
make no sense. You cannot paint with that broad a brush. There
is no public safety benefit in stripping people of their right
to vote. Eliminate mandatory collateral consequences and stop
creating new ones.
Second, you must provide meaningful Federal relief
mechanisms for those people living with Federal convictions.
First and foremost 14 million new arrests each year is
indicative of the problem. We must create avenues for avoidance
and diversion in the Federal criminal justice system. Defense
attorneys, prosecutors and judges must be cognizant of
diversion opportunities and promote them. Judges have to be
empowered with relief at sentencing, individualized relief,
tailored to the individual and unique circumstances.
The Federal pardon process must be reinvigorated and
meaningfully carried out. Pardons should be routinely granted
in the ordinary course of business. The process must be
transparent and accessible to all. The media must be informed
and aware of the process, and there should be dedicated staff
committed to the regularized review of pardon applications.
Third, for those discretionary consequences that remain,
there must be clearly established guidelines for decisionmakers
to follow, guidelines with respect to relevancy, passage of
time and evidence of rehabilitation. There should be a
presumption of irrelevance for any conviction beyond a certain
number of years and for anyone who has shown evidence of
rehabilitation.
Finally, consumer reporting agencies and background check
companies must be regulated. Rap sheets are not a commodity. We
should not be creating a market in the buying and selling of
people's conviction records. There are some law enforcement
agencies in this country that sell rap sheets. That must stop.
Any records disclosed must be accurate. The FBI Web site, which
is the main source of criminal record acquisition, is wrong 50
percent of the time. It must be cleaned up and maintained, and
there must be an easily accessible, no-cost method for
individuals to check their rap sheets and make corrections or
updates.
The time has come to end the economic drain of collateral
consequences, the endless Government intrusion into the lives
of our citizens, and the social and moral havoc they wreak on
individuals, on families and entire communities. We need a
coherent national approach to forgiveness, to redemption, to
the restoration of rights and status after conviction.
Thank you. I look forward to your questions.
[The prepared statement of Mr. Jones follows:]
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__________
Mr. Sensenbrenner. Thank you, Mr. Jones.
The Chair is going to put himself at the end of the
questioning queue, just so in case we run out of time, all of
the other Members will be able to ask questions.
And at this time, well, before recognizing the gentleman
from Virginia, Mr. Scott, let me say that the Chair is going to
be especially vigilant in enforcing the 5-minute rule so that
everybody has a chance. I do have a reputation of looking at
the red light.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you. Mr. Heck, Ban the Box has been
mentioned. Is banning the box where you have to check off on
your application that you have been convicted of a felony, does
that prohibit an employer from considering on an individualized
basis your criminal record?
Mr. Heck. First of all, on behalf of the American Bar
Association, the American Bar Association has not taken a
position on that. I think there are discussions that have to be
had on that. I think we are seeing a lot of problems that are
associated with that particular issue.
Mr. Scott. The point is, if you don't check off the box, it
does not subsequently eliminate the employer's consideration of
your record, but only on an individualized basis and whether or
not the record is relevant to the job.
Mr. Jones, are you familiar with the EEOC guidance? Can you
say a word about that?
Mr. Jones. Ban the Box, you are absolutely correct,
Congressman Scott. Ban the Box does not prevent an employer
from having an opportunity to review and determine relevancy of
a person's criminal record or criminal conviction. All Ban the
Box does is get the person's foot in the door initially. It
allows them to have an opportunity to prove their credentials,
to prove their ability to do a job.
And once an employer is in a position to think that this
individual is able to do the job and is someone who we would
like to employ, they then have the opportunity to review the
person's criminal record and decide whether it is relevant,
whether they are rehabilitated, whether there has been enough
passage of time so that it is not a factor. But they do at the
end of the process have the opportunity to know and evaluate
the person's record. So Ban the Box is not a wholesale
preclusion.
Mr. Scott. But you never would have gotten to that point
where you would have been considered if you had checked the
box. The application would have been thrown in the trash.
Mr. Jones. That is right.
Mr. Scott. When you talk about collateral consequences, a
couple things that haven't been mentioned is the total waste of
money. I know California many years ago spent a lot more money
on higher education than prisons. Now prisons have exceeded by
large margin what they are spending on higher education. So the
waste of money crowds out things, and that is a collateral
consequence of over incarceration, and children with parents in
prison are also at high risk.
Just very briefly, Mr. Heck, can you tell me whether the
automatic, across the board collateral consequences help keep
people from coming to jail or add to coming back to jail? For
example, a collateral consequence of unemployment making it
more difficult to get a job, does that help or hurt in terms of
recidivism?
Mr. Heck. I think it is counterproductive to what we are
trying to do. I think any type of across the board sanction,
without looking at the particular offense and the particular
offender is counterproductive.
Mr. Scott. What about education?
Mr. Heck. Well, education is the same way. It is
interesting in Ohio, we have dealt with that and the
legislature has over the last year. There are a number of
alternatives that we now offer to prison, and I mean, a number
of different alternatives that they have to try because, again,
it makes no sense. When we are talking about reentry, most of
the individuals who go to the penitentiary are going to be
released, and so I think we have to look at that on the front
end rather than saying what are we going to do after they are
released.
Mr. Scott. Well and if you cut back on your right to get an
education, education has been studied over and over again. That
actually the more education you get the less likely you are to
come back. Denying somebody an education seems to be clearly
counterproductive.
Mr. Heck. Absolutely.
Mr. Scott. What about, have you studied the implications of
the right to vote in terms of recidivism?
Mr. Heck. Again, the project that the American Bar
Association has just completed looked into that as a collateral
consequence. Again, I see no reason why someone is not restored
to the right to vote. That is to me a fundamental right,
personally as well as the American Bar Association, that should
be respected, and I think they should be restored.
Mr. Scott. Mr. Jones, have you done any studies to show the
impact on recidivism for any of these things I have mentioned?
Mr. Jones. Well, certainly when you disenfranchise, you are
disenfranchised. You want to enfranchise people. So you
certainly don't want to take way their right to vote or their
sense of participation in the Democratic process.
With respect to the money that the Government spends on
educating people to hold any kind of license to be a barber,
for example, it makes no sense to educate someone and to give
them a license to be a barber, to pay for that, and then when
they get out, tell them that they can't do that job. It is
counterproductive, and it absolutely leads to frustration and
recidivism.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from Alabama, Mr. Bachus.
Mr. Bachus. Thank you, Mr. Chairman.
One statement here in Mr. Jones' testimony is, even with
conviction records the well-documented failure States record
when charges are dismissed or records sealed and the failure of
private data companies to keep accurate records hurts millions
of individuals. That is a little separate situation, but is
that a big problem, too?
Mr. Jones. That is a big problem, particularly when people
are being denied opportunities without even having a
conviction, but merely the arrest is enough in many cases to
deny a person the opportunity.
Certainly when records are not updated, someone has
received a certificate of relief from disability, someone has
been pardoned, those things are not added to the record and are
not known, it hurts the person right off the bat because all we
are seeing is an arrest and many times not even an arrest that
leads to a conviction that is denying people opportunities.
Mr. Bachus. What, if you know, the FACT Act has certain
strict regulations on what can be reported in a background
check. Is that violated, and what is the process for combatting
that? Do you know, or under the EEOC?
Mr. Jones. It is frequently violated, particularly in an
age where you can get almost anything with a mouse click or a
keystroke. So frequently employers and other decision makers,
landlords, are making decisions on less than accurate
information and often inaccurate information.
And really there needs to be much greater limited access to
these records, much greater regulation over the records,
opportunities for people to update and correct inaccurate
information in their rap sheets. All of these things need much
stricter guidelines, limited access, and an opportunity at no
cost for people to correct mistakes in their conviction records
or their rap sheets.
Mr. Bachus. Well, do employers actually get the criminal
record or criminal history, or are they told whether or not the
person meets a certain criteria? Do you know?
Mr. Jones. Employers are actually given a person's rap
sheet. They can actually, they can buy them from consumer
reporting agencies. In some cases they can get them directly
for a fee or not from law enforcement agencies.
So the access an employer or other decisionmaker has to a
person's complete criminal rap sheet is far too loose and
easily available, and they have them.
Mr. Bachus. All right. I am the co-sponsor for legislation
with Mr. Sensenbrenner and others, Mr. Scott, I think, of the
Second Chance Act, which helps State and local government
agencies and community organizations improve prisoner reentry
nationwide. Do any of you have comments on the Second Chance
Act and how it might help?
Mr. Heck. Well, again, I think with comments that have
already been made, prosecutors around the country are certainly
supporting and have started reentry programs. I think it is so
important. Without looking up front at what is going to happen
to an individual who is sentenced to the penitentiary, knowing
that that individual is going to come back into the community,
is just very, it misses the entire point of what we are trying
to do.
We are trying to make productive citizens out of these
individuals and to help them, and to just warehouse
individuals, as a prosecutor I can tell you just warehousing
individuals in the penitentiary makes no sense at all, and I
think we have to be smarter on crimes, smarter on who is
sentenced to the penitentiary, and also to help whether it is
education, whether its having someone to be helped get job,
have employment, have housing when they are released. So I
commend all of you for supporting that.
Mr. Jones. And NACDL certainly supports the Second Chance
Act. Thank you.
Mr. Sensenbrenner. The gentleman's time is expired.
The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
I just want you to know that I think this over-
criminalization panel is one of the most important in the House
Judiciary Committee, and what we are doing is working on ways
to get this as much into the legislative mainstream as
possible, so we would welcome any thoughts that you have now or
in the future about this, it is that critical.
And after the votes this morning, in 2226 Rayburn, right
down the hall, we are going to have personal narratives of
witnesses that have experienced some negative collateral
consequences. So, we wanted to invite not only you two
distinguished lawyers, but everyone here to join us if you can.
My first question to both of you is, how can we ramp this
subject up as effectively and as thoughtfully as possible
without overdoing it or creating a backlash or anything like
that? Do you have any thoughts on that, gentlemen?
Mr. Heck. I do. Thank you for the question.
First of all, the Collateral Consequences of Conviction
Project that was funded by the NIJ and just completed by the
American Bar Association, this is a grant we got and many
reasons because of Senator Lahey from Vermont, although it was
a $750,000 grant. The American Bar Association, because of the
immense and the depth of this project, invested another
$750,000 of its own money and it was just completed.
Again, recognizing about 40,000 to 45,000 collateral
consequences. What we would hope, what the American Bar
Association hopes, is that Congress and the States use this
database that we have to identify all the different collateral
sanctions or consequences throughout the country in the Federal
system, all right, and to look at them say how effective are
they? How relevant are they? Retool some. Limit some. Some have
just been overbroad, or they have applied forever.
And so they need to limit some of them. So we are hoping
again that Congress will take advantage of this monumental
project that we have just completed and maybe use it, and we'll
be glad to assist in any way possible.
Mr. Conyers. Well, we intend to.
Now, what about going beyond the American Bar Association.
You know that there are dozens of law organizations and
associations across the country. I am thinking about widening
our approach so that we can begin this discussion with them
working off of the good initial work that you have started.
Mr. Heck. I appreciate the question. And, again, I think
your point is well taken. As a former president of the National
District Attorneys Association, I know that district attorneys
across the country are very concerned about this project and
are very interested in what the results are that we just
finished, and I know we are going to be having conversations
about this.
I know State prosecutor's associations are going to have
and are always concerned about collateral sanctions and the
effect it has on not only the offender, but on the community.
Mr. Conyers. You are giving prosecutors a great new
description here. I always think of prosecutors as the bad guys
that are trying to rack up as many convictions with as many
severe penalties as possible. I mean, I think this is an
incredible--has there been some kind of turnaround on the--have
we been making progress that we didn't know about or what?
Mr. Heck. Congressman, let me assure you that I really
believe I can speak, not on behalf of the NDAA, because I am
not the president. Henry Garza from Texas is now. But what I am
saying is I think most of the prosecutors realize that.
This idea of just putting people away, that may have been
the thought of some prosecutors many years ago, but that is
really not the thought today. The thought today is be smarter
on crime and to identify those individuals who must be
prosecuted.
Mr. Conyers. How refreshing. Can I get just a----
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Texas, Mr. Gohmert.
Mr. Gohmert. Thank you and I appreciate your being here.
Sorry I was late.
This is a project that is near and dear to my heart, and
when Ed Mace called and asked if I would participate in
something that dealt with a problem that I saw as a massive
problem, over-criminalization, something that as a formal
prosecutor, judge, chief justice, has driven me crazy because I
had seen when people want to beat their chests and show how
tough they are, well, let's slap a criminal penalty on
something.
And so, as you know, as we talked about there are maybe
5,000 or so crimes that are not in 18 U.S. Code where they
ought to be as a criminal code, and I had wondered why in the
world have we not been able to clean this mess up before? And
what I heard is it seems like every time a project gets fired
up to try to clean up the criminal code, that it ends up being
a big Santa Claus Christmas bag, and people start trying to
throw more and more in it, and then overall you lose too many
votes and people go, I can't agree to that, wait a minute I
loved the idea, I was on board, but now you have thrown that in
the bag I can't agree to that; and then it loses the impetus
and nothing gets done over and over.
And so that is one of my concerns as we go here. I hear
from people going, yeah, you are right. We got to stop this
over-criminalization, and also we got to stop the
militarization of some of these Federal Departments. And you
know, the EPA doesn't need a SWAT team and neither does the
Department of Education for heavens sake and we should never
have, as we heard in this room, testimony about a poor little
nerd that was trying to develop a new battery, and he gets
pulled over by three Suburbans, run off the road, yanked out of
his car, thrown down, boot in his back, handcuffed, and drug
off because he didn't put a sticker on a thing he mailed to
Alaska with an airplane with a line through it. He put ground
only, checked that, but he didn't put the sticker. I mean, we
need to stop that.
And so people are getting that and they are getting all on
board, and then when we start saying, well, we are also looking
into whether or not maybe employers shouldn't be able to find
out if you committed a crime before they hire you. Oh, wait a
minute now, wait a minute. This is a very sensitive industry,
and you are telling me I don't get to know if he has been
stealing from his last job, or in this daycare job I don't get
to know that this person has actually molested people in the
past.
And I can tell you as a judge, had a case where because of
the law trying to protect people, protected a child molester;
and it wasn't until he molested and destroyed other lives that
he got stopped, and because of the way the law was, the
juvenile probation department didn't even get to know that he
had had these other incidences just because of the way he was
protected.
So I am really concerned that we may be getting into an
area where we are going too far if we are not too careful. We
lose the steam because, let me just ask you guys. Why would it
be appropriate for Congress to force private businesses to
ignore somebody's criminal history?
Mr. Jones. Thank you for the question. I just want to be
crystal clear about Ban the Box, right, because Ban the Box
does not prevent an employer or other decisionmaker from
knowing about a person's criminal record. There need to be
clear relevancy guidelines that adhere across the board so that
decisionmakers understand what is relevant and what is not when
looking at a person's criminal record.
And there also needs to be an opportunity for the
individual to get his foot in the door to be able to present
his credentials and his employability. But once those things
are done, once there are clear relevancy guidelines and
decisionmakers know, and once a person has his foot in the door
then he----
Mr. Gohmert. Well my time is about to expire, and I want to
get this question in. Isn't it true that those who access
individual criminal histories are already subject to strict
regulation regarding the use of that information under Fair
Credit Reporting Act and Equal Employment Opportunity
Commission; isn't that true?
Mr. Heck. That is correct.
Mr. Gohmert. So it is not just wide open already.
Mr. Heck. And I think there are safeguards. I think there
are some abuses to it. No question about it. I understand what
he is saying, but I do think that there are collateral
consequences that are appropriate.
Mr. Gohmert. Okay, thank you very much.
I yield back.
Mr. Sensenbrenner. The gentlewoman from California, Ms.
Bass.
Ms. Bass. Thank you very much, Mr. Chair, and the Ranking
Member, for holding this hearing. I think this is such a
critical issue for our Nation.
And earlier this year in my district I had a town hall and
we had several hundred people come talking about this very
subject and it seems like in our society we used to have a
belief that if you paid your debt to society, that you could be
reintegrated; and it seems like part of what has happened over
the last couple of decades is that we no longer have that
belief and in fact you can spend some time in prison, but then
you can spend the rest of your life with the stigma and not
being able to appropriately reintegrate.
In California when I was in the State legislature we had a
law that said if you were a felon, you could not get a license
to be a barber. At the same time in our State prison system, we
had a barbering program where we taught felons how to be
barbers and then didn't allow them to have the license when
they left, and so we had to change that law and we had over 54
occupations that you couldn't do if you had been a felon.
Mr. Jones, you mentioned that there should be a presumption
of irrelevance. And you know, the experience about Ban the Box,
I completely understand what you mean in terms of getting your
foot in the door to even say that it was a conviction from 30
years ago, and it was when I was a college student or something
like that. Because if you don't check that box and then you
find out, then you are subject to immediate termination because
you have lied.
So when you were talking about a presumption of
irrelevance, I wasn't sure if you were really talking about
that rhetorically, or if you actually meant that that is what
we should do and then I wanted to know how we would go about
that?
Mr. Jones. Well, thank you for the question. There are
studies that suggest that after a certain number of years a
person's conviction is--a person is less likely--is no more
likely and in some cases less likely to reoffend than anybody
in the general society.
So when we are talking about evaluating a person's criminal
record for whether or not they should be accessible to an
opportunity or benefit, then what we really need to do is we
really need to look at whether or not there is any relevance to
the opportunity, what the passage of time has been, and whether
or not there is any evidence of rehabilitation.
And when the passage of time has been such and there is
evidence of rehabilitation, there really ought to be a
presumption of irrelevance, that the conviction is no longer
relevant to whether or not this person ought to have that
opportunity.
Ms. Bass. So, and I agree with you, but how do we do that?
Is it a law? Do we pass a law that says that? And then I am
assuming that you would exempt certain times of crimes?
Mr. Jones. Exactly. And I think that there have to be
guidelines that are set out clearly for decisionmakers, for
employers and landlords and others, there have to be guidelines
that clearly instruct individuals as to what is relevant and
what is not and what the passage of time is and what the
evidence of rehabilitation might be so that people understand
and know we are all playing by the same rules.
But once we have those guidelines and we are all playing by
the same rules, then there ought to be a presumption of
irrelevance.
Ms. Bass. And one of you, and I am not sure which one, made
reference to the fact that the FBI Web site is wrong a
significant amount of time. I wanted to know how it is wrong?
Is it the wrong people are listed, wrong charges are listed?
Mr. Heck. Well, I am not sure exactly what you are
referring to, ma'am, except to say that so many times when we
have the silver streaks or we have the histories of
convictions, that many times that people who input that data,
that it is incorrect. And I think, that not only saying the
FBI----
Ms. Bass. So it could be both, the wrong charges and the
wrong people?
Mr. Heck. Exactly. I think it is incumbent, I mean I find
out when we are looking at defendants who we have charged in my
office and my assistant prosecutors will try to get a record
check, we have to make sure that we confirm that, to make sure
it is accurate, because many times the inputting of that data
and the way it goes through our Bureau of Criminal
Investigation and Identification is wrong.
Ms. Bass. I have a piece of legislation that I have
introduced called the Success Act which is looking at you know,
a piece of collateral damage which says that young people who
have a certain crime cannot get financial aid, and I am
wondering if in the tens of thousands of collateral damage
examples that you two talked about, are there a number of them
that relate to education?
Mr. Heck. Well, I think a lot of them do relate to
education, either directly or indirectly and I think the idea
of preventing young people who may have made a mistake, from
making amends, from doing what they were supposed to do and
then later in life restricting them from having the education
that benefits not only them but you know, society, makes no
sense at all.
Mr. Jones. It is very difficult to make the argument that
there is a public safety benefit from allowing young people to
get an education.
Mr. Sensenbrenner. The gentlewoman's time is expired.
The gentleman from New York, Mr. Jeffries.
Mr. Jeffries. Thank you, Mr. Chair.
And let me thank both of the witnesses for your testimony
and for your work on this very important issue.
Let me start with Mr. Heck. You testified earlier today, I
believe appropriately, that automatic blanket, across the board
imposition of collateral consequences is counterproductive. In
that regard, how would you suggest the Committee look at or the
Task Force look at, how the collateral consequences that you
believe may be appropriate in certain circumstances are
narrowly tailored to fit the severity of the crime so that we
don't broadly sweep individuals into this blanket fashion.
Mr. Heck. And I appreciate the question.
And I do think that some collateral consequences if they
are applied so broadly across the board are not relevant to
that individual case or that individual offender. That is what
I don't think the law has been looking at, the offender, not
just the offense.
For example, in Ohio if someone owes child support and they
are not paying their child support, their driver's license is
suspended. It is so ridiculous and I have told my prosecutors
who handle those kinds of cases, we are not going to ask for
that. In fact, we are going to say it shouldn't be done because
we are asking the person to pay child support and saying you
can't have a job to pay it. So I think we have to have a look
what the collateral consequence is because some are
appropriate.
Mr. Jeffries. And when we craft the law, who should be
given the discretion to make the determination as to the
appropriate application of a collateral consequence if one is
appropriate under limited circumstances? Should that be the
court? Should that be built into the law in some way?
Should the prosecutor have in the first instance have that
opportunity? I don't know that everyone is as enlightened as
you are or the prosecutors in your office. Who should have that
opportunity to make that determination?
Mr. Heck. There have been a lot of suggestions made on
that. I believe, not the ABA, I believe that it should be the
court. I think the judges are in a unique position to see both
sides of the denominator, to see what is going on, and that
they should make the judgment.
Mr. Jeffries. Mr. Jones, do you have thoughts on that?
Mr. Jones. Yes, I think that everybody in the system needs
to be aware, updated. Prosecutors, defense counsel, everybody
needs to understand at every step of the process the
implication of collateral consequences as we go through the
process.
I do think that relief at sentencing by the judges who are
able to tailor to the individual and remove and repeal
consequences that are of no moment and are irrelevant is a good
thing, so I believe that relief at sentencing is important, but
I think all the players in the system ought to know and be
aware at every step of the way, of the collateral consequences
and their impact.
Mr. Jeffries. Now on that point, you mentioned that there
were 45,000--I think both of you in your testimony, 45,000
collateral consequences, which is a staggering number.
So that is a difficult undertaking but one that obviously
is necessary, and I think we as a Task Force are going to have
to think through how to create greater transparency as it
relates to those consequences and obviously take steps, in my
opinion, to reduce many of them.
But you mentioned that 68 million people in America, I
guess, are living with convictions. Is that right?
Mr. Jones. That is right. And that number is growing.
Mr. Jeffries. And that 20 million of those individuals have
felony convictions, which mathematically I gather would leave
48 million with misdemeanor convictions or criminal violations
in some way, shape or form.
Now, if we are to look at this issue in terms of collateral
consequences, has any work been done to look at the
consequences associated to those convicted of felonies versus
the consequences associated with those convicted of
misdemeanors, and is it relevant for us to think through this
issue in that fashion?
Mr. Jones. Well, I think that even just looking at some of
the legislation that is proposed, certainly there always is
this notion that first time offenders, non-violent
misdemeanants, are more often the subject of legislation. But
the fact of the matter is that at some point everybody's coming
home. Right? The vast majority of these folks are coming home,
and we need to think about and incorporating and be prepared to
embrace all of these folks because nobody is merely the product
of the worst thing that they've ever done, and we all deserve a
second chance.
So I would strongly suggest that as you think about how to
set these guidelines and evaluate relevance, that you include
everybody, including those 20 million folks who are living with
a felony conviction.
Mr. Jeffries. Thank you.
Mr. Sensenbrenner. Gentleman's time is expired.
The gentleman from Georgia, Mr. Johnson.
Mr. Johnson. Thank you, Mr. Chairman.
We need to reject wholesale demonization of every person
who has a brush with the criminal law. Persons who are released
from prison should be given a second chance, and we need to
enter into a new age of restoration and redemption. These are
things that are listed in your conclusion, Mr. Jones, and I
think that those are very important ideals that we should seek
to live up to.
Oftentimes, it is we ourselves that are the perpetrators of
over-criminalization. It is certainly the legislators are
responsible and certainly judges and prosecutors who both are
elected are responsible for getting tough on crime and throwing
the book at people and implementing the policies that we
enshrine into law.
But I will ask you both. You are both members of the bar.
You are both attorneys. You are licensed to practice law, and
you know that when a person suffers a felony conviction and
even misdemeanor convictions in many States, they are barred
from being able to be licensed to practice law. Do you believe
that those types of barriers, which are collateral
consequences, do you believe that those should be removed from
a person's ability to practice law, to get a law license? Mr.
Heck?
Mr. Heck. I think like in any other collateral sanction, I
think they have to be looked at the offense and the offender
and I think there are cases. We have seen it in Ohio, where
thoseimpediments have been removed and someone who was
convicted, say, for example, of voluntary manslaughter or
murder have become lawyers. We have seen it with a lot lesser
offenses.
And yet at the same time we have seen cases where someone
who was convicted of a theft or a fraud was not given the
license to practice law in Ohio. So there has to be some type
of parity also. There has to be some type of fairness and
equity if we are going to have any collateral sanctions at all.
Mr. Johnson. So you would be against blanket bans on all
who have been convicted being ineligible to receive a license
to practice law?
Mr. Heck. I would think blanket bans do not serve any
public purpose, blanket bans; correct.
Mr. Johnson. I think that means what I asked.
Mr. Heck. I agree with you.
Mr. Johnson. Okay, all right, thank you.
And Mr. Jones?
Mr. Jones. I would agree. I mean, unless you can show me
that there is some public safety benefit, that outweighs the
individual right for a person to you know, get a law license
after they have gone to law school and passed the bar and
practice law, unless you can show me that there is some public
safety benefit that outweighs that individual being able to
practice law, then I would certainly say that you should not
have that restriction, and you should not have any automatic
mandatory ban.
Mr. Johnson. Do you know of any initiatives by the ABA or
by any State bar association to address that particular issue,
either one of you?
Mr. Heck. No. I know the project of the Collateral
Consequences of Conviction Project did not entail that. It had
to do with cataloging and just assembling and identifying all
the collateral consequences, which was again a monumental task.
But as far as the particular issue that you are talking about,
I do not know of any State or the American bar tackling that
yet.
Mr. Johnson. All right. Thank you.
And how do collateral consequences disproportionately
impact communities of color and the poor?
Mr. Heck. I think that just like we see a disproportionate
as far as imprisonment is concerned, I think that goes along
with that, because so many times the collateral sanctions are
attached to a conviction.
So I think that once you see the effect it has on the
incarceration and imprisonment, you are going to see the thing
on collateral sanctions and I think collateral sanctions
especially as it relates to employment, as it relates to having
an income and housing, really has an effect in that regard.
Thank you.
Mr. Jones. The answer is profoundly. There are studies that
show that African American men who have never had any trouble
with the law at all are less likely to get a job than similarly
situated White men with a felony conviction.
There are studies that show that African American men are
seven times more likely to be arrested for crimes, particularly
drug possession crimes, when the usage of drugs in those
community is the same. So the impact of its collateral
consequences on African American individuals, their families
and society is profound.
Mr. Johnson. Thank you.
Mr. Sensenbrenner. The gentleman's time is expired.
The gentleman from Tennessee, Mr. Cohen.
Mr. Cohen. Thank you, Mr. Chair.
These issues affect my constituents in a major way. Second
chance opportunities for employment is one of the things I hear
most from constituents. If somebody has had a conviction at
some time in the past, they can't get a job, the continuing
cycle. But more fundamental is the loss of the right to vote.
And I don't know if this has been addressed extensively by
you all, but do either of you all know the history of those
particular laws? I was reading about civil death or however it
is called, yeah, civil death, and that seemed to take away your
right to vote and everything else and being described as
barbarism condemned by justice by reason and by morality, et
cetera. But, we have these laws.
Does Maryland have a law like that, Mr. Heck.
Mr. Heck. Maryland?
Mr. Cohen. Yeah.
Mr. Heck. I have to be honest with you. I am not familiar
with the Maryland law, sir.
Mr. Cohen. Which State are you from?
Mr. Heck. I am from Ohio.
Mr. Cohen. I am sorry. I was thinking it was Maryland. They
joined the Big Ten, and I am all confused.
Mr. Heck. I appreciate that.
Mr. Cohen. Ohio doesn't have such a law, does it?
Mr. Heck. No.
Mr. Cohen. It is mostly southern States; right?
Mr. Heck. That is my understanding. I have not done a study
of that, but that is my understanding. You know, there is a
history of what you say that disfranchisement of the right to
vote, which again to me is so important it trumps everything.
And so I think when you take someone's right to vote away
and with the idea of never giving it back, I just think that
should never be.
Mr. Cohen. Mr. Jones, are you familiar with any history on
these laws?
Mr. Jones. You know, I have my own thoughts, but they would
be conjecture. I don't know, but I will tell you this. By the
history disfranchisement, by the time I get back to New York
this afternoon I will know, and I will get that to you.
Mr. Cohen. I think the history goes back to Jim Crowe, and
I think it was kind of a southern thing and really if you look
at the States that have those laws and/or had those laws, they
are generally the same States that Justice Roberts said no
longer have to have preclearance because it is a wonderful
world, according to Justice Roberts.
It is hard to fathom when you look at the history of
discrimination in this country and look at it in voting areas
where you had preclearance, and those are the same States that
put a scarlet letter on individuals that says thou shalt not
vote. Voting, in my district we had an election in May, a
primary election for county offices, very important and about
10 percent of the people who were registered voted.
And so my theory is if people who had convictions in the
past were allowed to vote, if they voted, by their simple
action of voting they would show they were in the upper 10
percent of the citizenry. You know so, to say that they could--
--
We do in Tennessee, have a law which I was happy to have
sponsored and passed that allows you to get your right to vote
restored without going to court and without having the D.A.
Come and bless you, et cetera. But, a guy in the House, kind of
a Neanderthal-type character, put an amendment on the bill
which passed, and it said that if you were behind in your child
support you couldn't get your right to vote back and it is not
something that is pretty clearly intended to have a disparate
impact.
Mr. Jones. Well there are two States I believe, that this
Task Force ought look at, that allow individuals to vote while
they are in prison. I think that is Maine and Vermont, and you
can conjecture and speculate as to why those two States allow
that, but I do believe that Maine and Vermont, but somebody can
correct me if that is wrong.
Those two States allow you to vote while you are in prison,
and I think that everybody, that is right.
Mr. Cohen. It is Vermont, and which is the other State?
Mr. Jones. Maine.
Mr. Cohen. Maine. But you have to be eating lobster or
cheese or something at the same time.
I yield the balance of my time. Thank you.
Mr. Sensenbrenner. Thank you.
Well, we still have some time left, so I will now recognize
myself for 5 minutes.
Both Mr. Jones and Mr. Heck have said that we should repeal
all mandatory collateral consequences that apply across the
board. Now, one part of Federal law prohibits anyone who has
been convicted of a misdemeanor crime of domestic violence from
possessing a firearm. Do you believe that Congress should
repeal this law?
Mr. Heck. As far as my position is concerned, again the ABA
has not taken a position on that. I think we have to look again
at the individual involved and the individual crime. So for
example, we have had cases and domestic violence is something
that is certainly on my radar screen personally and my office,
and something just like child abuse that we take very
seriously.
And when we have a domestic violence case, I think we have
to look, is that person an owner of guns, or did that person
use a gun? And I think those are the distinctions that have to
be made. So I think a broad, simply designation of someone who
owns a gun should never be able to own a gun again, I think has
to be looked at very seriously, as opposed to using a gun again
in domestic violence and I have no problem with that person not
being allowed to own a gun.
Mr. Sensenbrenner. So do you think the current law which
applies to misdemeanors as well as felonies is a good law?
Mr. Heck. Depending on the circumstance.
Mr. Sensenbrenner. Okay.
Mr. Heck. Again, depending on the circumstance, I think----
Mr. Sensenbrenner. It shouldn't be across the board? Mr.
Jones?
Mr. Heck. I don't think it should be across the board.
Mr. Sensenbrenner. Mr. Jones?
Mr. Jones. Mandatory, automatic, across the board
consequences ought be repealed, and we ought to be looking at
individual tailoring the denial of opportunities to individual
circumstances and individuals and individual people. They
should not be across the board automatic mandatory.
Mr. Sensenbrenner. I am kind of surprised. I think the NRA
would agree with both of you on this.
Let me ask you another question in the time that I have
left. When I first was elected to Congress, my wife and I owned
a two-family House that was across the street from an
elementary school, and we lived in one half of it, and I rented
out the other half. Say somebody came and applied and was a
person who was a recognized minority, applied to live in the
other half, and I found out before leasing it to them that they
were registered sex offenders. Could my denial of housing
because they were registered sex offenders, not because they
were persons of color or a protected minority, be a defense in
a fair housing complaint?
Mr. Heck. Not in Ohio, because they would not be allowed to
live there in Ohio. You are saying you lived right across the
street from a school; correct?
Mr. Sensenbrenner. I did.
Mr. Heck. Right, no. In Ohio, and that has been going on
and increasing the number of feet as well as the number of
instances where a convicted sex offender may live. It started
out within so many feet of a school, so many feet of a bus
stop, so many feet of a daycare, so many feet from where
children will be. So many--so that has become more broad.
However, in the specific instance that you mentioned, no
because under Ohio law they would not be permitted to live
there anyway and we have had cases like that, my office has on
the civil side, which we also represent, have actually ordered
people to move and have got eviction notices for people and
orders to have them move out because of the close proximity to
schools.
Mr. Sensenbrenner. So if I was accused of denying housing
under the State or Federal Fair Housing Law because I denied
them the lease because I lived across the street from the
school, in Ohio I could go to the district attorney and have
him represent me against the Fair Housing complaint?
Mr. Heck. Well, under Ohio law we cannot represent an
individual interest, but I can assure you that we would stand
right next to you from the standpoint that that convicted sex
offender should not live there.
Mr. Sensenbrenner. Mr. Jones?
Mr. Jones. Let me say two things about the sex offender
issue and if you look in our report, you will see that not only
prosecuting attorneys who work in this area but also
individuals who are responsible for administering State sex
offender registries say the same thing.
Two points. The first is that anyone is more likely to be
abused in that manner by someone within the four walls of their
home, than they are by someone who is either delivering their
mail or cutting their grass. You are much more likely to be
molested or abused in some way by someone who is under your
roof.
And secondly, the overwhelming majority of arrests in these
types of cases are by first offenders. The number of people who
are sexual predators who are serial offenders is very small.
So that these prosecutors and these people who run these
sexual registries, what they say is the residency restrictions
that we have placed on these folks are wrong-headed and don't
make sense and are actually counterproductive because you are
more likely to have a problem with Uncle Sam than you are with
the guy who is delivering your mail.
Mr. Sensenbrenner. Well, my time is expired.
I want to thank all of the witnesses for your testimony and
good answers to questions.
Thank the Members for participating. Does anybody wish to
put printed material into the record?
The gentleman from Alabama.
Mr. Bachus. I thank the, Chairman.
I ask permission to----
Mr. Sensenbrenner. Microphone please.
Mr. Bachus [continuing]. Submit testimony in the record
from Mr. Jessie Wiehl on behalf of Justice Fellowship, which is
an independent prison fellowship ministry, which offers his
perspective on the challenge of reentering society after he
served a sentence for a criminal offense.
Mr. Sensenbrenner. Without objection.
Mr. Bachus. Thank you.
Mr. Sensenbrenner. The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
I ask unanimous consent that the testimony from the Robert
F. Kennedy Center for Justice and Human Rights; Bernard Kerik;
Piper Kerman; Lamont Kerry; Anthony Pleasant; and reports from
The Sentencing Project, ``State-Level Estimates of Felon
Disenfranchisement in the United States 2010'' and ``A Lifetime
of Punishment: The Impact of the Felony Drug Ban on Welfare
Benefits,'' all be placed on the record.
Mr. Sensenbrenner. Without objection.
And, if there is no further business to come before the
Task Force, without objection the Task Force stands adjourned.
[Whereupon, at 10:42 a.m., the Task Force was adjourned.]
A P P E N D I X
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