CCRC board member Jack Chin, Professor of Law at U.C. Davis, has recently posted two important articles about collateral consequences. One is a general overview of various recent proposals to reform the way collateral consequences are treated in the justice system, which will be published as part of a report on scholarship on criminal justice reform edited by Professor Eric Luna. The other argues that under the Grand Jury Clause of the Constitution certain federal misdemeanors may only be prosecuted by indictment because of the severe collateral consequences they carry. Chin and his co-author John Ormonde propose that “[m]ore thoughtful evaluation of misdemeanor cases before charge would often terminate cases which wind up being dismissed after charge,” thereby sparing less serious offenders from the stigma of a criminal record. Because federal law makes no provision for sealing or expunging nonconviction records, even dismissed charges will appear on a rap sheet. Read more
Second-chance mechanisms in California are working to increase the employment prospects and earning potential of Californians with criminal records according to a soon-to-be-published study by a team of researchers from U.C. Berkeley School of Law.
The study, by Jeffrey Selbin, Justin McCrary & Joshua Epstein, tracked over an eleven-year period the employment status and annual income of 235 Californians who had their convictions set aside or their offense level reduced from felony to misdemeanor, with the aid of the East Bay Community Law Center’s (EBCLC) Clean Slate Clinic. The study finds a modest increase in the employment rate of those in the sample (most were already employed, albeit in low-wage jobs). More significantly, however, after three years their average real earnings increased by roughly a third.
A new nation-wide study of “ban-the-box” policies in public employment finds that they have been generally effective in increasing employment opportunities for people with a criminal record. Significantly, the study finds no evidence that these policies encourage reliance on racial stereotyping where public employment alone is concerned — though the author acknowledged, in an interview with the CCRC, that “the evidence is mixed” when private employment is also considered.
“Ban-the-box” policies, which delay employer inquiries about an applicant’s background until a later stage in the hiring process, have become a popular reform measure at least in part because it can be implemented on a systemic basis. As of January 2017, there were 25 states, DC, and over 150 municipalities that had adopted ban-the-box policies, most of them applicable only to public sector employment. But despite the increase in ban-the-box policies, little research has been done into their effectiveness in improving the employment prospects of justice-involved individuals. Some jurisdictions such as Atlanta, GA and Durham, NC have reported dramatic improvements in the percentage of convicted individuals hired. However, these local outcomes may not reflect the national experience.
Research on the effects of ban-the-box policies by Connecticut College economist Terry-Ann Craigie suggests that they have dramatically improved the public-sector employment prospects of individuals with a criminal record nation-wide. Professor Craigie also found that these salutary effects have generally not been offset by a corresponding increase in racial profiling. Overall, her study (whose results are not yet published) concludes that ban-the-box policies have increased the odds of getting a public sector job for those with a criminal record by close to 40%.
Collateral consequences and restoration of rights have become hot topics in academia as the consequences of conviction grow more severe and the need for law reform becomes more apparent. Below we survey notable articles on topics relating to collateral consequences that have been released so far in 2017, some of which will be covered in more detail in subsequent posts. We hope to make scholarship round-ups a regular feature on the CCRC site, and we welcome submissions on relevant topics. A more complete collection of scholarship on issues relating to collateral consequences can be found on our “Books & Articles” page.
Melissa Hamilton, University of Houston Law Center
Emory Law Journal Online (Forthcoming)
Date Posted on SSRN: March 23, 2017
The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders. An issue that has arisen in the case is the state’s justification for the ban. North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes. The collective states contend that these three claims are supported by scientific evidence and common sense. This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.
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.
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.
Pennsylvania has been active in recent years in expanding its judicial relief mechanisms, though it still has a long way to go to catch up to states like Kentucky, Missouri, and New Jersey, which have in the past 12 months extended their expungement laws to some felonies and/or reduced waiting periods. No one has been more active and effective in the effort to increase the availability of “clean slate” judicial remedies than Sharon Dietrich, Litigation Director for Community Legal Services of Philadelphia. Sharon has written a comprehensive guide to existing authorities on expungement and sealing in her state, which also discusses pending bills that would extend these laws. The abstract follows:
Mark Osler has posted a new piece arguing for an overhaul of the federal pardon process so that it more closely resembles efficient and productive state clemency systems. He argues that flaws in the process for administering the power, rather than a failure of executive will, have prevented President Obama from carrying out his ambitious clemency agenda directed atlong-sentenced drug offenders. Streamlining the process will enable presidents to use the power more generously and effectively.
This seems to us to an oversimplified solution to the theoretical and practical problems with what President Obama has been trying to do. Moreover, at least in the absence of constitutional amendment, any structural changes in the federal pardon process would have to be reaffirmed by each new president, and would likely be opposed by the Justice Department and Congress.
In June we covered two recent studies that concluded ban-the-box policies tend to decrease minority hiring because some employers use race as a proxy for criminal history. In other words, in the absence of information about applicants’ criminal history, some employers assume that minority applicants have a record and exclude them on this assumption. The result is that ban-the-box policies increase opportunities for whites with a criminal record but decrease them overall for minorities, and thus encourage unlawful discrimination. Some observers, including one of the study authors, advocated for the repeal of ban-the-box policies based on those conclusions. Last week, the National Employment Law Project (NELP) published a critique of those studies, pointing out that any adverse effect on racial minorities is ultimately the product of unlawful discrimination barred by Title VII of the Civil Rights Act of 1964, not banning the box. In NELP’s view, the solution is “a robust reform agenda that creates jobs for people with records and dismantles racism in the hiring process, not [rolling] back the clock on ban-the-box.” We republish the summary and introduction of NELP’s critique below.
Two recent studies claim that “ban the box” policies enacted around the country detrimentally affect the employment of young men of color who do not have a conviction record. One of the authors has boldly argued that the policy should be abandoned outright because it “does more harm than good.” It’s the wrong conclusion. The nation cannot afford to turn back the clock on a decade of reform that has created significant job opportunities for people with records. These studies require exacting scrutiny to ensure that they are not irresponsibly seized upon at a critical time when the nation is being challenged to confront its painful legacy of structural discrimination and criminalization of people of color.
Our review of the studies leads us to these top-line conclusions: (1) The core problem raised by the studies is not ban-the-box but entrenched racism in the hiring process, which manifests as racial profiling of African Americans as “criminals.” (2) Ban-the-box is working, both by increasing employment opportunities for people with records and by changing employer attitudes toward hiring people with records. (3) When closely scrutinized, the new studies do not support the conclusion that ban-the-box policies are responsible for the depressed hiring of African Americans. (4) The studies highlight the need for a more robust policy response to both boost job opportunities for people with records and tackle race discrimination in the hiring process—not a repeal of ban-the-box laws.