A new report examines successful efforts by corporations and government leaders to promote “fair chance” hiring policies for people with criminal histories. Back to Business: How Hiring Formerly Incarcerated Job Seekers Benefits Your Company reviews the latest research on the effect of a criminal record on employment interviews and on the job performance of workers with such records. The report summary continues:
Several case studies presented here show how fair chance policies can promote loyalty and stability in the labor pool. The report provides a roadmap for businesses seeking to create and sustain fair chance policies, including “banning the box,” or removing criminal history questions from job applications. It explains how hiring officers can effectively carry out this policy, and how to choose background check companies that use best practices in data collection. It analyzes racial bias that has been connected with “ban the box” policies, and how to eliminate such bias by training administrators involved in hiring processes. The report also outlines compliance requirements with federal equal employment rules as they apply to people with criminal records. And it examines the issue of negligent hiring liability and how to avoid such liability. Education is critical to job readiness, employee retention, and economic mobility. The costs of re-incarceration far exceed the costs of correctional education, and access to training and higher education have been shown to reduce recidivism and increase the likelihood of employment upon release. One case study describes how one college is developing inprison education programs under a federal pilot program and offers a model for making correctional education scalable. The report examines how partnering with workforce training and development programs can help employers succeed with employees who have been in prison. Many workforce development agencies offer training and counseling tailored to help these individuals transition into jobs. Lastly, the report provides recommended actions that businesses can take to create a fair chance for all.
The report was prepared by the Trone Private Sector and Education Advisory Council to the American Civil Liberties Union, with its partner organizations the Legal Action Center, the Lawyers Committee for Civil Rights Under Law, and the National Workrights Institute.
A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction. The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences. [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.]
In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief. As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences. The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone searching for innovative ways to lighten the burden of a criminal record.
The United States Commission on Civil Rights will hold a public briefing on collateral consequences on May 19 (“Collateral Consequences: The Crossroads of Punishment, Redemption and the Effects on Communities”). The Commission is an independent, bipartisan agency charged with advising the President and Congress on civil rights matters and issuing an annual federal civil rights enforcement report.
Previewing the Commission’s interest, Chair Catherine E. Lhamon said:
Individuals who have paid their debt to society deserve the chance to rebuild their lives after incarceration. The Commission looks forward to receiving information about whether and how current barriers to employment, voting, housing, education, among other core areas of civic life, deprive these Americans of that second chance.
In addition to being open to the public, proceedings will be live streamed at this link, beginning at 9:30 a.m. Advocates and stakeholders drawn from a broad political spectrum will provide testimony on a variety of issues, including the impact of a criminal record on civic participation and barriers to self-sufficiency after a prison term. CCRC Executive Director Margaret Love will describe the range of adverse consequences resulting from conviction, existing mechanisms to avoid or mitigate them, and recent trends in law reform.
The following piece by Beth Avery was originally published on the blog of the National Employment Law Project.
Building upon the successes of 2016, legislatures across the country are off to a strong start this year toward adopting laws that increase fairness in hiring and employment opportunities for the one-in-three U.S. adults with arrest or conviction records.
This progress should come as no surprise—in recent years broad support has emerged from coast to coast for a number of reforms that address the criminal justice system and its disproportionate impact on people of color. Along with critical efforts to increase expungement and sealing, adopt bail and sentencing reforms, and expand voting rights for people with convictions, a powerful movement is also advancing two crucial policies that improve access to employment for people with records: “fair chance hiring” or “ban the box” laws and reforms to occupational licensing requirements.
A number of new and interesting articles on collateral consequences have come to our attention since we published our first big scholarship round-up only weeks ago. We provide information, links, and abstracts on these pieces below. A more complete collection of scholarship on issues relating to collateral consequences can be found on our “Books & Articles” page.
Joann Sahl, University of Akron School of Law
100 Marquette Law Review 527 (2017)
Each year courts issue more than 1 million civil domestic violence protection orders (CPOs). Although most of these orders will expire in one or two years, their impact often remains for much longer periods. The expired CPOs continue to carry stigma and significant prejudicial consequences for someone once labelled as a batterer. This Article explores how collateral consequences, generally recognized only in criminal cases, now afflict those involved in civil domestic violence cases. It examines the civil domestic violence process and discusses why the process and its resulting orders create collateral consequences. The Article also identifies those collateral consequences unique to CPO cases and reveals why these consequences continue to impact negatively former CPO perpetrators even when there is no active CPO. This Article recommends that courts adopt a judicial sealing remedy to limit the impact of collateral consequences in CPO cases with no active order. The Article also proposes a test that allows a court to seal a CPO case if the case presents unusual and exceptional circumstances and the applicant’s interest in having the case sealed outweighs any government interest in the case remaining public.
Murat C. Mungan, George Mason University – Antonin Scalia Law School
Public Choice (forthcoming)
Date Posted on SSRN: April 5, 2017
This article presents a model wherein law enforcers propose sentences to maximize their likelihood of reelection, and shows that elections typically generate over-incarceration, i.e., longer than optimal sentences. It then studies the effects of disenfranchisement laws, which prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group, and thereby causes the political process to push the sentences for criminal offenses upwards. Therefore, disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people’s criminal tendencies, i.e., when criminals vote less frequently than non-criminals.
For the first time in its history, Montana has enacted a law authorizing its courts to limit public access to adult conviction records. On April 13, Governor Steve Bullock signed into law House Bill 168, giving district courts the power to “expunge” the records of misdemeanor convictions after completion of sentence, effective October 1 of this year. This makes Montana the 30th state since 2012 to enact some form of record-closing law, or to expand an existing one. The possibility of full destruction of the record for all misdemeanor convictions makes Montana’s one of the more ambitious collateral consequences reform measures of the past several years.
Late Sunday night, the New York Senate finally passed the beleaguered 2017-18 budget bill, which was signed by Governor Andrew Cuomo the following day. And while the passage of the bill was good news to New Yorkers eager to avoid a government shutdown, it should be even better news to a significant number of New Yorkers with criminal convictions. Tucked away inside the massive bill is an unheralded provision creating the state’s first general sealing authority for adult criminal convictions. Previously, record sealing was available only for non-conviction records and diversion and drug treatment dispositions. Now sealing will be available for misdemeanors and all but the most serious felony offenses.
The new law, which takes effect in October, gives New York one of the most expansive record-closing authorities in the Nation, rivaling such traditional sealing centers as Massachusetts, Washington, and Minnesota.
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
High drama on the final day of the West Virginia legislative session produced a last minute compromise between House and Senate over SB76, the WV Second Chance for Employment Act. If the governor signs the bill into law, individuals convicted of non-violent felonies will be able to return to court after 10 years to have their convictions reduced to misdemeanors. [NOTE: The bill was signed into law on April 25.]
For several years the WV legislature has been considering how to improve employment opportunities for people with non-violent convictions, but the House and Senate had different ideas about how to do it. The Senate approach would have expanded the state’s expungement law, which now applies only to youthful misdemeanors, while the House preferred reducing nonviolent felonies to misdemeanors. As the seconds ticked toward midnight on April 8, the Senate agreed to accept the “forgiving” approach favored by the House, creating a new category of “reduced misdemeanor” that need not be reported on employment applications but will be reflected in background investigations.
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.