A few days ago we received the following communique from Sharon Dietrich of Community Legal Services of Philadelphia, announcing a major litigation victory that will be welcome news across the country. On December 30 a unanimous 7-judge appeals court struck down the provisions of the Pennsylvania Older Americans Protective Services Act barring employment of people with criminal records in long-term health care facilities such as nursing homes and home health care agencies. The provisions declared unconstitutional on due process grounds law include lifetime employment bans for offenses as minor as misdemeanor theft, which Sharon notes “prevented many Pennsylvanians with criminal records from working in that entire burgeoning field.” The decision in Peake v. Commonwealth is here, and NPR’s report on the decision is here.
India, like the U.S., is a federal political system comprised of states. In both countries, the states have primary authority over creation, disclosure, use and collateral consequences of criminal records, albeit within a basic national framework. Police and courts both create and maintain criminal records required to carry out investigatory and adjudicatory functions. However, unlike in the U.S., Indian court records are not systematically available to the public and law enforcement agencies are generally prohibited from disclosing individual criminal history information for non-criminal justice purposes. There are no private information companies engaged in selling criminal background records to employers, landlords, volunteer organizations, and curious individuals.
On April 22 Vermont became the 16th state to remove the question about criminal record from most state employment applications. By Executive Order of Governor Peter Shumlin, people applying for most state jobs will not be required to undergo a background check until after they have been deemed qualified and offered an interview.
“When we hire in-state, the first question will not be whether you’ve been convicted or arrested,” Shumlin said. “We will hold that question until the interview and give you a chance to qualify for the job for which you’ve applied.”
About 8 percent of people seeking Vermont state jobs checked the criminal history box last year, according to the state Human Resources Commission. Certain sensitive and law enforcement positions are excepted.
The following post concerns the use of police records in India, which are (like police records in this country) generally not available to the public, yet have important implications for individual privacy. In a later piece the authors will discuss Indian policy and practice on court records, which are publicly available and may be used by employers and others to deny benefits and opportunities. Ed.
Comparative analysis is always good for the soul. As we think deeper and more broadly about the types, status and use of criminal records, it is helpful to consider laws and practices in other countries. Toward that end, this post illuminates the most salient and interesting type of criminal record in India, the “history sheet” and its cousin the “rowdy sheet”. History and rowdy sheets are analogous to our criminal intelligence databases, but are more subject to legal constraints. At the same time, they are more vulnerable to public disclosure because they call for intensive and frequently conspicuous monitoring both by police and civilian leaders.
The New York Times has published an editorial about the recently issued report of the Center for Community Alternatives on the deterrent effect of questions about criminal records on applications for admission to the State University of New York. (See the piece about the report “Boxed Out: Criminal History Screening and College Attrition” by CCA Director Alan Rosenthal published in this space 10 days ago.) The editorial notes that the 24 campuses of the CUNY system do not include “the box” asking about criminal record on their application forms and have reported no safety issues as a result. Perhaps this will be one of those rare cases where effective public advocacy highlighted in editorial pages will actually have a concrete result.
The New York Court of Appeals is considering how candid a person must be about his prior criminal record when applying to law school. During oral argument on February 12 in Matter of Powers v. St. John’s University School of Law, several judges raised public policy concerns over the law school’s summary rescission of David Powers’ admission midway through his second year, based on how he had described his criminal record on his original application. Powers had disclosed a past conviction for drug possession, but did not also report that he had initially faced more serious charges of drug-dealing. These underlying charges came to light mid-way through Powers’ second year, when he sought clarification from the New York courts as to whether his criminal record would preclude his admission to the bar.
According to an account of the argument in the New York Law Journal, “[Powers] involvement with drugs seemed to concern state Court of Appeals judges less than St. John’s University’s decision to rescind his admission to law school.”
This is the most recent in a series of posts by Professors James Jacobs and Elena Larrauri comparing criminal records disclosure policies in the United States and Europe. The decision of the European Court discussed below invalidated a policy of the United Kingdom authorizing broad disclosure of non-conviction records relating to child victims. (The U.K.’s policies on disclosure are closer to those of the U.S. than they are to those of continental countries.) While the U.K. has subsequently narrowed its disclosure policy, it remains to be seen whether even as amended the U.K.’s disclosure policy will pass muster under the European Convention on Human Rights.
When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media. A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute. But the contemporaneous news accounts remained available on line, and the publishers refused to remove them.
Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute. The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.” The Second Circuit affirmed. See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).
There is no body of research on European criminal record-based employment discrimination (CBED) comparable to the employer surveys and field studies done in the United States. While European concern for informational privacy keeps criminal records out of the public domain, European countries do not prohibit employment discrimination based on criminal record. In fact, as in the United States, European countries make certain criminal records disqualifying for a vast range of public sector and some private sector employments.
This posting provides background on European, and especially Spanish, mandatory CBED. Our next posting provides background and discussion on discretionary CBED by private employers.