How effective are judicial certificates in relieving collateral consequences?

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.

Peter Leasure and Tia Stevens Anderson of the University of South Carolina studied the effectiveness of the Ohio certificates by measuring the call-back rate of applicants for employment with and without a criminal record, and found that “certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer.”  Their article, published by the Yale Law & Policy Review, is titled “The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms: An Experimental Study.”  In a post in May, we analyzed what were then said to be “preliminary” study results, and described the research methods used to test certificates’ effectiveness.

Here is the abstract of the Leasure/Stevens Anderson article:

Obtaining employment is difficult for ex-offenders due to the stigma of having a criminal record. In recognition of this difficulty, some state legislatures have created certificates of relief (also known as certificates of recovery), which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure that employment decisions about certificate holders are made on a case-by-case basis. The current study, which examines Ohio’s program for certificates of relief, presents the results of the first empirical test of the effectiveness of such certificates. This test indicates that having a certificate of relief increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.

In 2015, we republished a thought-provoking piece by Eli Hager of The Marshall Project on “forgiving v. forgetting,” in which he surveyed the growing number of state laws authorizing courts to certify a convictd individual’s rehabilitation rather than restrict public access to their record.  North Carolina, New Jersey, Tennessee, Vermont and Washington have all adopted judicial certificate laws in the past half dozen years, joining California, Illinois, New Jersey and New York in choosing this more transparent form of relief over expungement.  Indiana chose a two-tiered relief system, authorizing courts to limit consideration of almost any conviction, but reserving sealing to misdemeanors and non-conviction records.

Court-ordered certificates of relief are also recommended by the Uniform Collateral Consequences of Conviction Act, and the Model Penal Code: Sentencing. An additional number of states have recently authorized correctional authorities to grant certificates to facilitate employment opportunities:  Georgia, Maryland, Michigan and Rhode Island fall into this category, and the Connecticut Pardon Board has restyled its “Provisional Pardon” as a “Certificate of Rehabilitation.”

More detail about these certificate authorities may be found in the state profiles in our Restoration of Rights Resource, and in our recently updated 50-state chart on judicial relief mechanisms.

The Ohio certificates have their limitations, largely in their eligibility criteria.  Unlike the New York certificates, petitioners must show that they are being held back by a specific legal restriction that the court can remove (that is, a state law bar), and people with out-of-state convictions may not apply.  We have been informed by the Ohio Justice and Policy Center that only about six hundred people have applied for and received certificates since the law was enacted five years ago, perhaps because their availability has not been widely advertised. Ohio advocates might consider the steps Indiana courts have taken to ensure that eligible individuals are aware of and can easily take advantage of that state’s new “expungement” program.

In the near future we plan to update our survey of state relief mechanisms that take a “forgiving” (as opposed to “forgetting”) approach to dealing with collateral consequences, including both judicial certificates and executive pardon.