May background screeners lawfully report expunged records?

The following post, by Sharon Dietrich of Community Legal Services of Philadelphia, addresses the question whether reporting of an expunged or sealed case by a commercial background screener violates the Fair Credit Reporting Act.  Sharon is a national authority on FCRA as applied to criminal records, and we are pleased to reprint her analysis below. 

The Fair Credit Reporting Act (FCRA) governs the accuracy of criminal background checks prepared by commercial screeners.  While there is little case law holding that the FCRA prohibits commercial screeners from reporting expunged or sealed cases, there is little doubt that this is the case.

Two FCRA provisions are applicable to this issue.

  • Commercial screeners must use “reasonable procedures” to insure “maximum possible accuracy” of the information in the report.  15 U.S.C. §1681e(b).
  • A commercial screener reporting public record information for employment purposes which “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either notify the person that the public record information is being reported and provide the name and address of the person who is requesting the information at the time that the information is provider to the user or the commercial screener must maintain strict procedures to insure that the information it reports is complete and up to date.  15 U.S.C. §1681k.

Numerous FCRA class actions have been brought under one or both of these provisions to challenge a commercial screener’s reporting of expunged or sealed cases.

  • Henderson v. HireRight Solutions, Inc., No. 10-459 (E.D. Pa. 2010).
  • Robinson v. General Information Services, Inc., No. 11-7782 (E.D. Pa. 2011).
  • Roe v. Intellicorp Records, Inc., No. 1:12-cv-2288 (N.D. Ohio 2012).
  • Giddiens v. LexisNexis Risk Solutions, Inc., No. 2:12-cv-02624-LDD (E.D. Pa. 2012).
  • Stokes v. RealPage, Inc., No. 2:15-cv-01520-JP (E.D. Pa. 2015).

All of these cases were settled, with the settlement typically requiring the discontinuation of the use of stale data or the screener to change its practice to verify data.

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Florida’s vote restoration process held unconstitutional

In a strongly-worded opinion, a federal judge has ruled that Florida’s method of restoring voting rights to individuals convicted of felonies violates the First and Fourteenth Amendments.  In Hand v. Scott, a suit brought by seven individuals either denied restoration of rights by the State Clemency Board or ineligible to apply, U.S. District Judge Mark E. Walker held that Florida’s “arbitrary” and “crushingly restrictive” restoration scheme, in which “elected, partisan officials have extraordinary authority to grant or withhold the right to vote from hundreds of thousands of people without any constraints, guidelines, or standards,” violates rights of free speech and association, and risks viewpoint and other discrimination.

As reported in this local press article, Governor Scott’s office issued a statement late Thursday, hinting at an appeal.  Scott was the principal architect of the current system that requires all applicants for clemency to wait at least five years after they complete their sentences, serve probation and pay all restitution, before they may be considered for restoration of the vote and other civil rights.  Throughout his 43-page ruling, Judge Walker cited the arbitrariness of Florida’s system, noting that people have been denied their voting rights because they received speeding tickets or failed to pay child support.

Scott and the Cabinet, meeting as a clemency board, consider cases four times a year, and usually fewer than 100 cases each time. It can take a decade or longer for a case to be heard, and at present the state has a backlog of more than 10,000 cases. Scott imposed the restrictions in 2011, soon after he was elected, with the support of three fellow Republicans who serve on the Cabinet, including Agriculture Commissioner Adam Putnam, now a leading candidate for governor. Scott’s actions in 2011 reversed a policy under which many felons, not including murderers and sex offenders, had their rights restored without application process and hearings. That streamlined process was instituted in 2007 by former Gov. Charlie Crist, then a Republican and now a Democratic member of Congress.

The context in which the case was decided is described in this NPR article.  Last month, Florida elections officials approved a November ballot measure that would automatically restore voting rights to people convicted of felonies who have completed their sentences, with exceptions for murder and serious sex offenses.

Michigan sex offender registration law held unconstitutional

On January 24, the Michigan Supreme Court held the state’s sex offender registration scheme unconstitutional on due process grounds as applied to one Boban Temelkoski.  Temelkoski had pleaded guilty under a youthful offender statute with the expectation that no collateral consequences would attach to the disposition if he successfully completed its conditions.  However, several years later a registration requirement was enacted and applied retroactively to his case.  Because the court decided Temelkoski’s case on due process grounds, it did not need to address arguments that application of the registration statute to him constituted constitutionally impermissible punishment.  However, the court hinted in dicta how it might decide that issue, stating that “It is undisputed that registration under SORA constitutes a civil disability.”  While a win is a win, we must wait another day for a decision on the constitutionality of Michigan’s registration scheme under the Ex Post Facto Clause and the State’s version of the Eighth Amendment.

An analysis of the Temelkoski decision by Asli Bashir, a 2017 graduate of Yale Law School, follows.

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Expungement in Indiana – A radical experiment and how it is working so far

Note: This is the first of what we anticipate will be a series of reports on some of the more progressive restoration schemes enacted in the past several years.  

Marion County Deputy Prosecutor Andrew Fogle says the four years since Indiana enacted a broad “second chance” law have been like “the Wild West.”  Fogle, who oversees petitions for expungement for his office in Indiana’s most populous county, agreed to be interviewed about what may be the Nation’s most comprehensive and creative scheme to overcome the adverse effects of a criminal record.  We also spoke about the law to a number of criminal defense attorneys and legal service providers in the State.  

Indiana’s expungement law, first enacted in 2013 and amended several times since, extends to all but the most serious offenses, although the effect of relief as well as the process for obtaining it differs considerably depending on the offense involved.  Perhaps most important, the term “expungement” doesn’t have the same meaning in Indiana as it has in most states, because it doesn’t necessarily result in limiting access to the record.1

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New report: Roundup of 2017 expungement and restoration laws

A new report from the Collateral Consequences Resource Center shows that states across the country are continuing to expand opportunities to avoid or mitigate the adverse effects of a criminal record.  If anything, the trend first documented last winter in Four Years of Second Chance Reforms, 2013 – 2016 has accelerated in 2017. 

Second Chance Reforms in 2017 identifies 23 states, blue and red, that in the past year broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  Using research from the Restoration of Rights Project, the report describes specific changes to the law in each state during the past year along with relevant citations, analyzing and comparing approaches taken by different states.

The most frequent type of reform involves limiting public access to criminal records: new sealing or expungement laws were enacted in several states that previously had none, eligibility requirements were relaxed for many existing record-sealing authorities, and new limits were imposed on access to non-conviction and juvenile records – all making it easier for more individuals to get relief at an earlier date. However, there is remarkably little consistency among state record-closing schemes, and most states extend relief only to less serious offenses after lengthy eligibility waiting periods. Moreover, eligibility criteria are frequently so complex as to defeat the sharpest legal minds. Other recurring reforms limit employer inquiries into criminal history at the application stage, and a few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing.

The fast pace of reform in the states reflects a dawning realization that the problem of mass conviction is at least as significant in economic and social terms as the problem of mass incarceration.  At the same time, the dizzying variety and complexity of the new provisions indicates that there is still no consensus about the most effective way to avoid or mitigate the adverse effects of a criminal record. Because there has been very little empirical research into the relative effectiveness of different forms of relief, it is not surprising that experimentation seems to be the order of the day.

These new laws and significant reform proposals of the past several years – notably the collateral consequences provisions of the Model Penal Code: Sentencing – will be discussed at a Roundtable conference in Washington, D.C. on January 12, 2018, sponsored by the American Law Institute and the National Conference of State Legislatures.

Each new reform is more fully explained in the state-by-state profiles in the Restoration of Rights Project.  The Executive Summary follows, and the full report is available here.    

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CCRC files amicus brief in Illinois sex offender case

The CCRC has filed an amicus brief in the Illinois Supreme Court in support of the appellant in People v. Bingham, a case challenging the constitutionality of a state law requiring registration as a “sexual predator” based on the commission of a non-sexual offense.  The relevant facts of the case are as follows.

Jerome Bingham was convicted of attempted sexual assault in 1983 and served several years in prison on that charge.  At the time, Illinois did not have a sex offender registration requirement.  Thereafter, Bingham was convicted of a number of petty drug and theft offenses.  In 2012, Illinois enacted an amendment to its sex offender registration act (SORA) providing that its registration requirement would apply retroactively to anyone who had previously committed a qualifying sex offense and, subsequent to the 2012 act, committed any felony.  In 2013, Bingham stole goods worth $72 from a K-Mart storage lot.  Although this would ordinarily have been a misdemeanor, the fact that he had a prior similar offense permitted it to be charged as a felony, which it was, thereby subjecting him to the sex offender registration requirement.

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CCRC publishes California Compilation of Collateral Consequences

The CCRC is pleased to announce the publication of the California Compilation of Collateral Consequences (CCCC), a searchable online database of the restrictions and disqualifications imposed by California statutes and regulations because of an individual’s criminal record.  Federal collateral consequences can also be searched through the CCCC database.

This new resource follows on the heels of similar compilations of collateral consequences that CCRC has developed of federal laws and rules, and of two other state systems (Wisconsin and Vermont).  The database builds on research originally published in 2014 by the American Bar Association, brought up to date and restructured to permit more precise searches of the specific activities and rights affected by various consequences.  A redesigned search function makes it easier to explore the relationship between consequences and their implementing regulations, and among different consequences in state and federal law. Users may access directly complete and current statutory and regulatory text for each consequence.

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California enacts sweeping fair employment law

On October 14, California Governor Jerry Brown signed into law AB 1008, the California Fair Chance Act, a bill we covered upon its passage in the legislature last month.  The Act extends a new “ban-the-box” requirement to private as well as public employers, and makes failure to comply an “unlawful employment practice” subject to enforcement under the state’s Fair Employment and Housing Act (FEHA).  The new law also broadens FEHA enforcement to cover an employer’s consideration of certain criminal records in the hiring process.  When the new law takes effect on January 1, 2018, California will become only the fourth state in the Nation to provide the full protections of its fair employment law to individuals with a criminal record. (New York, Wisconsin and Hawaii are the others.)

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New report: 50-state guide to expungement and restoration of rights

CCRC is pleased to announce the publication of its 50-state guide to expungement and restoration of rights: “Forgiving and Forgetting in American Justice.” This report catalogues and analyzes the various provisions for relief from the collateral consequences of conviction that are now operating in each state, including judicial record-sealing and certificates of relief, executive pardon, and administrative.  Its goal is to facilitate a national conversation about how those who have a criminal record may best regain their legal rights and social status.

Given the millions of Americans who have a criminal record, and the proliferation of laws and policies excluding them from a wide range of opportunities and benefits, there is a critical need for reliable and accessible relief provisions to maximize the chances that these individuals can live productive and law-abiding lives after completion of their court-imposed sentences. Whatever their form, relief provisions must reckon with the easy availability of criminal records, and the pervasive discrimination that frustrates the rehabilitative goals of the justice system.

It is not the report’s purpose to recommend any specific approach to relief.  Rather, our goal is simply to survey the present legal landscape for the benefit of the policy discussions now underway in legislatures across the country.  We are mindful of the fact that very little empirical research has been done to measure outcomes of the various schemes described, many of which are still in their infancy.  It is therefore hard to say with any degree of certainty which approach works best to reintegrate individuals with a record into their communities. At the same time, we hope that our description of state relief mechanisms will inform the work of lawyers and other advocates currently working to assist affected individuals in dealing with the lingering burdens imposed by an adverse encounter with the justice system.

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Clean Slate Clearinghouse goes live

 

Earlier today the Council of  State Governments (CSG) launched the Clean Slate Clearinghouse, an impressive online resource that provides information on the availability of expungement and sealing in all 50 states and helps individuals with criminal records connect with pro bono legal service providers.  The project, which is jointly funded by the U.S. Departments of Justice and Labor, is the result of over a year’s work by CSG and its partner organizations.

The resource is focused squarely on record closure mechanisms and does not cover restoration authorities that leave the record intact, such as executive pardon, judicial certificates of relief, or nondiscrimination laws.  It also does not directly address the effect of closure in different jurisdictions.  It does, however, provide succinct information about the various record closure procedures available in each state, and does so in a way that non-lawyers can easily understand. In addition, it collects links to state application forms and guides as well as links to helpful third-party resources.  As such, it will be a useful tool for individuals seeking to leave their criminal records in the past.  It complements the more detailed legal analysis in the Restoration of Rights Project.

The Clearinghouse is available at https://cleanslateclearinghouse.org. We look forward to hearing about how it is being put to use and to watching its further development.  The official project description follows:

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