The New York Times has two great Sunday editorials on issues relating to collateral consequences. One deals with the issue of labeling people with a criminal record, of special concern when headline writers seem unable to resist using what Bill Keller at the Marshall Project recently called “the other F-word.” The editorial points out that ugly demeaning labels like “convict” and “felon” are “an unfair life sentence.” Let us hope the message reaches newsrooms across the country, and that journalists (especially headline writers) will find another way of describing people with a criminal record.
The Times also has another very fine editorial on Virginia Governor McAuliffe’s restoration of the vote to more than 200,000 individuals, pointing out that his authority under the Virginia Constitution is indisputable.
A very good day for the editorial staff of the Gray Lady, whose editorial page is setting an example of enlightened thinking about criminal law issues – notably including the collateral consequences of conviction.
On Monday we published a piece by CCRC Director Margaret Love titled “A plea to stop labeling people who have a criminal record,” which was critical of the media’s usage of “degrading” terms like “felon” and “offender” to describe people with criminal histories. Yesterday Bill Keller, Editor-in-Chief of The Marshall Project, responded to Ms. Love’s critique in a piece that provides an interesting look at the issue through the lens of his own experience as a journalist. It also includes a response from the style editor of The New York Times on the specific subject of Ms. Love’s criticism. We republish Mr. Keller’s piece below.
The editors of the New York Times are critical of Maryland Governor Larry Hogan’s recent veto of a law that would have allowed anyone with a felony conviction to vote if they are living in the free community. See “A Bad Voting Ban,” June 1, 2015. Maryland’s law now disenfranchises anyone convicted of a “felony and . . . actually serving a court-ordered sentence of imprisonment, including any term of parole or probation, for the conviction.” The Times editorial points out that Maryland changed its law to restore voting rights automatically upon completion of sentence in 2007, and that disenfranchisement based upon conviction is generally a punitive relic of slavery.
So if felony disenfranchisement laws are punitive relics, why should they be applied to anyone, even people who are still in prison? The logic of the Times editors’ position would seem to support voting by prisoners, as happens in Vermont and Maine and in many parts of Europe. An argument against voting by prisoners based on disenfranchisement as an integral part of court-imposed punishment would apply equally to probationers and parolees. The notion that prisoners no longer have a connection to their communities is a self-fulfilling prophecy that runs against current policies of encouraging prisoner reentry. If there are practical reasons to bar prisoners from jury service and political office, they do not apply to voting when absentee ballots have become commonplace.
In an editorial titled “Job Hunting With a Criminal Record,” the editors of the New York Times tackle the problem of employment discrimination against the estimated 70 million Americans who “carry the burden of a criminal record.” They question the efficacy of expungement and other popular “forgetting” strategies for dealing with employer aversion to risk, preferring the “longer term” approach of “a change in attitudes about people with criminal records.”
The editorial points out that expungement laws typically apply only to “relatively minor transgressions,” require lengthy waiting periods, and include “significant exceptions” (e.g., they don’t apply to jobs and licenses requiring a background check, a large and growing segment of the labor market). In addition, “trying to keep anything secret in the 21st century is no sure thing.” Finally, “record-sealing laws do not and cannot address the underlying problem of overcriminalization.”
The New York Times this morning describes data from the U.S. Department of Education’s Office for Civil Rights showing that African-American girls tend to face more serious school discipline than white girls. “For all the attention placed on problems that black boys face in terms of school discipline and criminal justice, there is increasing focus on the way those issues affect black girls as well.” Black girls who get in trouble at school are also more frequently referred to the criminal justice system, where they can incur a criminal record that sticks with them into adulthood.
This New York Times editorial urges states to seal or expunge juvenile records “so that young offenders are not permanently impaired by their youthful transgressions.” It describes a new study from the Juvenile Law Center that concludes “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to [juvenile] records.”
The first juvenile courts were established more than a century ago on the principle that children deserve special care under the law because they are vulnerable, because their transgressions tend to be nonviolent and because they can be expected, on the whole, to outgrow their youthful misbehavior.
These presumptions are borne out by data showing that 95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood. But because some juvenile court records remain open to the public when they should have been sealed or expunged, these young people can be denied jobs, housing and even admission to college.
An article on the front page of today’s New York Times describes the growing popularity of “ban-the-box” laws to help people with a criminal record get jobs. The article also discusses the massive hurdles to employment that many with a criminal conviction in their past — some of which are for minor offenses that are a decade or more old — face without such laws in place to ensure fair hiring practices.
The National Employment Law Project (“NELP”) keeps track of the growing number of states and cities that have adopted ban-the-box laws, including summaries of the laws and policies in those jurisdictions. NELP’s current guide to state and local ban-the-box laws (including coverage of legislative initiatives) can be found here.
From the article:
During the past several months, states and cities as varied as Illinois; Nebraska; New Jersey; Indianapolis; Louisville, Ky.; and New Orleans and have adopted so-called Ban the Box laws. In total, some 70 cities and 13 states have passed such laws — most in the past four years.
The laws generally prohibit employers from asking applicants about criminal records as an initial step in the hiring process and from running criminal background checks until job seekers are considered serious candidates for an opening.
Studies have found that ex-offenders, particularly African-Americans, are far less likely to be called back for job interviews if they check the criminal history box on applications, even though research has shown that those possessing a criminal record are no more apt to commit a crime in the workplace than colleagues who have never been convicted.
The Times has posted some interesting responses from the founders of the Pennsylvania-based Fair Employment Opportunities Project (and others) here. The attorneys behind the Project argue for additional restrictions on the use of criminal history information once it has been disclosed to employers:
While “Ban the Box” laws that forbid asking about a person’s criminal history are a good first step, we need stronger laws to empower job applicants with arrest or conviction records to become self-sufficient through employment. Several states already have such statutes, including Pennsylvania, where the Fair Employment Opportunities Project is working to educate employers and the public about the law.
Pennsylvania’s statute [18 Pa.C.S. § 9125] could be a model for other states. It forbids employers from considering non-convictions (like acquittals) when making hiring decisions. Convictions may be considered only to the extent they relate to the applicant’s suitability for the job. And when employers reject applicants because of their records, they must give written notice — an important safeguard, because criminal record databases are notoriously error-ridden and ensnare even people who were charged but never convicted.