The following post is republished, with permission, from the National Clean Slate Clearinghouse listserv. In it Sharon Dietrich points out that even after criminal records have been expunged or sealed, they may still be reported by commercial criminal record providers in violation of the Fair Credit Reporting Act. (See our recent 50-state survey of record-closing laws, with their intended effect.)
You probably are wondering, “What is she talking about, with a subject line like that?” The answer to your thought is that I use this phrase when giving clients an important warning about the effect of their expungement orders. I am illustrating for them the idea that I can’t guarantee removal of their expunged cases from every possible background check, especially those prepared by commercial screener such as Sterling, HireRight, First Advantage and countless others.
An empirical study of Ohio’s judicial “certificate of employability” finds that it is “an effective avenue for lessening the stigma of a criminal record” in the context of employment and licensing. The certificate, authorized in 2012, lifts mandatory legal restrictions and limits employer liability for negligent hiring claims, with the goal of ensuring that employment and licensing decisions about certificate holders are on a case-by-case basis, on the merits. The court-issued certificate is available to anyone with any Ohio conviction, no matter how serious, as long as they have completed their sentence and can show that they are barred from employment or licensure by a “collateral sanction.” There is a short waiting period, and applicants must show that they pose no public safety risk.
The Ohio certificates are part of a recent trend toward authorizing courts to grant certificates of restoration of rights to people with conviction records. It seems that states are far more likely to authorize this more transparent form of relief for those convicted of felonies, reserving record-sealing to misdemeanor or non-conviction records.
We have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement. This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records. The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004. We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials.
A brief overview of research methodology and conclusions follows.
A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life. Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse. In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety. One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.” Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.
At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions. The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.
This morning the Supreme Court considered whether sex offenders may constitutionally be barred from internet access to social networking sites like Facebook and Twitter. Lester Packingham, who was required to register as a sex offender after pleading guilty to taking “indecent liberties” with a minor when he was a 21-year-old college student, ran afoul of a North Carolina criminal statute when he praised God on Facebook for the dismissal of his traffic tickets.
At least five Justices expressed some degree of skepticism over broad restrictions on what Justice Elena Kagan called “incredibly important parts” of the country’s political and religious culture, some questioning the premise that the law is necessary to prevent sexual abuse of minors. Justice Kennedy noted the many ways in which the North Carolina statute seems to violate the First Amendment. “Let me count the ways,” he said, invoking Elizabeth Barrett Browning.
Some justices noted that criminal convictions can have lasting consequences. “Some states prohibit ex-felons from voting,” Justice Ruth Bader Ginsburg said. “Some states and the federal government prohibit keeping and bearing arms. Those are constitutional rights.” David T. Goldberg, a lawyer for Mr. Packingham, said those restrictions had a basis in history and logic. They were nothing like “taking away people’s First Amendment rights,” he said.
In this early post from SCOTUSblog, Amy Howe notes high points of the argument, whose full transcript of the argument is posted here. Adam Liptak predicted at the New York Times that the North Carolina law will be found unconstitutional before the end of the Court’s Term in June. What this might portend for other restrictions on sex offenders’ constitutional rights – like the exclusionary zones, also imposed by North Carolina, and also held unconstitutional on First Amendment grounds by the Fourth Circuit in December – remains to be seen.
Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.
In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.
The surest way to avoid the collateral consequences of conviction is to avoid conviction in the first place. Pre-trial diversion programs offer defendants a chance to do just that, by having the charges against them dismissed before they even reach court. But there is often a catch that puts this benefit out of reach for those of limited means.
Diversion programs are controlled by prosecutors, who may condition dismissal of charges on the defendant’s participation in educational, rehabilitation, or community service programs for which the defendant must foot the bill. These costs, along with attendant administrative fees set by prosecutors, can price out many of the low-income defendants who stand to benefit most from the second chance that diversion promises. Even if defendants can come up with the necessary cash for participation, they may find the promised relief illusory. Because prosecutors have near total control over the programs, deciding who is eligible and what is required, defendants must first convince prosecutors that they are worth taking a chance on before the opportunity will be offered.
An illuminating two-part expose’ in last week’s New York Times (“No Money, No Mercy“) takes a close look at how these programs operate, and the fate of defendants who have worked to earn a second chance but find themselves ultimately unable to afford it or benefit from it. Since prosecutorial control of the programs obscures their operation to a large extent, The Times “gathered information, statutes and fee schedules on 225 diversion programs in 37 states and interviewed more than 150 prosecutors, defense lawyers, defendants and experts,” to develop a sobering national overview. The piece documents how the burden of a criminal record is imposed disproportionately and unfairly on people of color and limited means through unreviewable decisions of prosecutors, effectively re-creating the peonage that replaced slavery immediately after the Civil War.
You can read The Times’ full expose, “After a Crime, the Price of a Second Chance,” here. The second part of the series focuses on Dothan County, Alabama to detail some of the more egregious racial and class inequities that result from high fees and prosecutorial control. See “Alabama Prosecutor Sets the Penalties and Fills the Coffers,” linked here. A follow-up piece published on January 6 (“Forcing a District Attorney’s Hand”) documents the difficulties experienced by the Times reporter and photographer in obtaining the Dothan County story. The Times published a Letter to the Editor commenting on the series by CCRC Executive Director Margaret Love.
We summarize the broad points of the series below, but highly recommend reading it in full.
The revolving door between prison and homelessness is an unfortunate and well-documented feature of our criminal justice system. But it is not just those returning from prison who are at risk. Even a conviction for a relatively minor offense – and, in some instances, simply being charged with one – can result in a lifetime of housing insecurity, both for individuals and their families. These problems are the focus of an excellent new report from the National HIRE Network that examines criminal record-based housing restrictions across the country and describes what is being done by a few jurisdictions and the federal government to put the brakes on the cycle of conviction, homelessness, and recidivism.
Although record-based housing restrictions are implemented by both private and public housing providers, it is public housing restrictions that pose the biggest risk to individuals with criminal records since their statistically lower income makes them more likely to rely on federal subsidies for housing. Attached to those subsidies are a number of federally-mandated restrictions, including a permanent and automatic ban for anyone convicted of producing methamphetamine in public housing or of a sex offense requiring lifetime registration, and permissible eviction followed by a three-year bar (that may be reduced) for drug-related criminal activity.
But, as the report discusses, those federal restrictions are just the beginning. Federal law explicitly permits subsidized housing providers to reject applicants if a household member has engaged in criminal activity that is violent, drug-related, or that “would adversely affect the health, safety, or right to peaceful enjoyment of the premises” and that was committed within a “reasonable time” before applying. That loose standard gives providers enormous discretion to determine who gets in and who gets shut out:
Last week the Fourth Circuit held unconstitutional two key provisions of a North Carolina law that made it a felony for sex offenders to be within 300 feet of certain premises that are “intended primarily for the use, care, or supervision of minors” or on premises where minors “gather for regularly scheduled educational, recreational, or social programs.”
The three-judge panel held that the first provision was overbroad under the First Amendment, while the second was unconstitutionally vague. Interestingly, the state more or less ceded the First Amendment issue by failing to offer any evidence to meet its burden of proof regarding whether the law advanced the state’s interest in protecting minors. This despite the fact that the district court warned the state in advance that failing to offer such evidence would be fatal to its defense of the provision.
Federal judges have begun speaking out about the burdens imposed by severe collateral consequences and the limited ability of courts to mitigate the resulting harm. This is particularly true in the Eastern District of New York, where some judges have openly lamented the lack of statutory federal expungement authority and have used their opinions and orders to call upon the legislature to ensure that those with criminal records are given a fair shot at success. Among the more vocal critics of collateral consequences is recently retired Judge John Gleeson, who last year took the extraordinary step of expunging one woman’s criminal record despite acknowledged uncertainty about his authority to do so. In another case, Judge Gleeson crafted an alternative more transparent form of relief, a federal “certificate of rehabilitation.” (You can find our extensive coverage of these cases here).
In a new article titled “Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?,” Nora Demleitner takes a look at how the criticisms of members of the federal bench may shape the framework in which second chance laws and policies are considered, both at the legislative and judicial level, and how they may or may not affect the prospect of significant reform.
A forthcoming article in the Harvard Journal of Law and Policy argues that the federal pardon process ought to be restructured to make the vice president the president’s chief clemency adviser. Paul Larkin of the Heritage Foundation proposes that pardon recommendations ought to be made by an board chaired by the vice president located in the Executive Office of the President. This intriguing idea may appeal to the Trump Administration, particularly since the new vice president has had some experience with pardoning as governor of Indiana.
Here is the abstract of the article:
The need for reconsideration of the federal clemency process is a real one, and there is a consensus that the Justice Department should no longer play its traditional doorkeeper role. Using the vice president as the new chief presidential clemency adviser offers the president several unique benefits that no other individual can supply without having enjoyed a prior close personal relationship with the chief executive. Whoever is sworn into office at noon on January 20, 2017, as the nation’s 45th President should seriously consider using as his principal clemency adviser the person who was sworn into the vice presidency immediately beforehand. The president, clemency applicants, and the public might just benefit from that new arrangement.