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.
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.
The National Employment Law Project (NELP) recently published its November 2016 On the Record: Fair Employment newsletter which provides links and information on a number of interesting developments related to collateral consequences and criminal record mitigation. The full newsletter is available below:
Felony disenfranchisement has become a hot topic as election day looms, and rightfully so given the significant impact that conviction-based loss of voting rights has on the makeup of the electorate and the slim margins by which many national elections are decided. In the perennial swing state of Florida, for example, over 10 percent of the entire adult population is barred from voting for life because of a felony conviction. Within that group lies an astounding 21.3 percent of the state’s African-American population.
Those numbers come from a new Sentencing Project report, 6 Million Lost Voters: State-Level Estimates of Felony Disenfranchisement, which attempts to determine just how many individuals are ineligible to vote because of a felony conviction in each state, and how those numbers have changed over time. It estimates that 6.1 million individuals are ineligible to vote nationwide because of a felony conviction, and that 1 in 13 African-Americans are barred from the polls due to a conviction.
Florida leads the nation in felony disenfranchisement, with Kentucky, Mississippi, and Tennessee close behind. Kentucky and Virginia (another swing state) disenfranchise the largest share of their African-American population, at 26.2 percent and 21.9 percent, respectively, with Florida close behind at 21.3 percent. The high level of disenfranchisement in these states is largely due to the fact that all but one (Tennessee) strip individuals convicted of felonies of their voting rights for life absent discretionary executive action.
Even in states that restore the right to vote automatically, many convicted people assume they cannot vote and therefore do not register.
The laws on felony disenfranchisement differ widely from state to state. Our 50-state chart on the “Loss and Restoration of Civil Rights and Firearm Privileges” and our state-by-state profiles of restoration of rights provisions describe the law and policy on felony disenfranchisement in each state, as well as the mechanisms by which convicted individuals are restored to the franchise.
Earlier this year the U.S. Department of Housing and Urban Development (HUD) issued new guidance asserting that housing policies that exclude people with criminal records may violate the non-discrimination provisions of the federal Fair Housing Act (FHA) if they fail to consider the nature, severity, and recency of criminal conduct and if they are not narrowly tailored to protect residents or property. The Justice Department has taken the first step toward judicial enforcement of this guidance.
On October 18 the Department’s Civil Rights Division filed a Statement of Interest in Fortune Society v. Sandcastle Towers Housing Development, a federal civil rights suit brought in the Eastern District of New York against a Brooklyn provider of low-income housing, claiming that it has a blanket policy of refusing to rent to individuals convicted of any non-traffic crime. The Statement urges the court to decide the case based on the legal framework set forth in the HUD guidance, which employs a three-step analysis to determine whether criminal history-based housing exclusion policies amount to illegal racial discrimination prohibited by the FHA.
We reprint the Department’s press release below:
A federal judge in San Francisco has dismissed a constitutional challenge to the recently enacted International Megan’s Law, which requires specially-marked passports for registered sex offenders whose offenses involved child victims, and authorizes notification to foreign governments when they travel. The so-called “Scarlet Letter” law is specifically aimed at stopping child sex trafficking and sex tourism, and this purpose was evidently enough to justify it even though it has a far broader effect.
In February we posted about regulations proposed by the federal Department of Health and Human Services (HHS) to implement criminal history screening requirements for child care workers under recent changes to the Child Care and Development Block Grant Act of 2014. The CCRC joined a coalition of organizations led by the National Employment Law Project (NELP) in calling upon HHS to reconsider the proposed regulations. In a formal comment submitted to HHS, the coalition argued that the regulations contained screening standards that were more exclusionary than the Act requires, and that they would have a disparate impact on women, African Americans, and Latinos.
HHS has now issued the final version of those regulations. Although the final rules are far from perfect, they do address a number of the concerns raised by the coalition. For example, they omit language that encouraged states to require self-disclosure of criminal history, provide greater protection from inaccurate criminal record reporting, and urge states adhere to the standards laid out in the EEOC guidance by providing individualized assessments for disqualifying offenses that are added by the states but not required by the federal law.
Unfortunately, HHS chose not to back down on one of the most troubling provisions of the proposed regulations: criminal history screening of anyone age 18 or older residing in a license-exempt home that provides child care services. Screening of those individuals is not required by the Act itself. As the coalition’s comments explained, the requirement will almost certainly have a disproportionately adverse impact on providers of color and their families:
Earlier this week the U.S. Departments of Justice and Labor made two major awards to the Council of State Governments (CSG) to support the development of resources on collateral consequences and second chance programs. The awards aim to build capacity within the advocacy community to assist those seeking restoration of rights and status nationwide.
The first award is a $4.6 million contract awarded by the Labor Department for the development of the National Clean Slate Clearinghouse, a federal initiative first announced by President Obama last November. The Clearinghouse is intended to “build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.”
The second award is a $5 million grant from the Bureau of Justice Assistance to support the ongoing work of the National Reentry Resource Center (NRRC), a project developed by CSG in 2011 with federal funding earmarked in the Second Chance Act of 2007. One exciting aspect of that award is that it will bring the National Inventory of the Collateral Consequences of Conviction (NICCC) into the NRRC fold.
On September 14, the Board of Trustees of the State University of New York (SUNY), the nation’s largest comprehensive university system, voted to ban the box in its admissions process. It is the first university system in the country to reverse its decision to engage in criminal history screening and remove the question from its admissions application.
The resolution laying out the policy change references the advocacy of the Education From the Inside Out (EIO) Coalition, including a 2015 case study of SUNY conducted by the Center for Community Alternatives, “Boxed Out: Criminal History Screening and College Application Attrition.” That study found that about two-thirds of the nearly 3,000 SUNY applicants who disclose a felony conviction each year do not complete the application process (compared to only 21 percent of the overall pool of applicants) and thus are never considered for admission. It concluded that this is the result of the daunting – and sometimes impossible – supplemental process triggered by that disclosure as well as the stigmatizing nature of the inquiry itself.