The CCRC is pleased to announce the publication of the California Compilation of Collateral Consequences (CCCC), a searchable online database of the restrictions and disqualifications imposed by California statutes and regulations because of an individual’s criminal record. Federal collateral consequences can also be searched through the CCCC database.
This new resource follows on the heels of similar compilations of collateral consequences that CCRC has developed of federal laws and rules, and of two other state systems (Wisconsin and Vermont). The database builds on research originally published in 2014 by the American Bar Association, brought up to date and restructured to permit more precise searches of the specific activities and rights affected by various consequences. A redesigned search function makes it easier to explore the relationship between consequences and their implementing regulations, and among different consequences in state and federal law. Users may access directly complete and current statutory and regulatory text for each consequence.
On October 14, California Governor Jerry Brown signed into law AB 1008, the California Fair Chance Act, a bill we covered upon its passage in the legislature last month. The Act extends a new “ban-the-box” requirement to private as well as public employers, and makes failure to comply an “unlawful employment practice” subject to enforcement under the state’s Fair Employment and Housing Act (FEHA). The new law also broadens FEHA enforcement to cover an employer’s consideration of certain criminal records in the hiring process. When the new law takes effect on January 1, 2018, California will become only the fourth state in the Nation to provide the full protections of its fair employment law to individuals with a criminal record. (New York, Wisconsin and Hawaii are the others.)
Earlier today the Council of State Governments (CSG) launched the Clean Slate Clearinghouse, an impressive online resource that provides information on the availability of expungement and sealing in all 50 states and helps individuals with criminal records connect with pro bono legal service providers. The project, which is jointly funded by the U.S. Departments of Justice and Labor, is the result of over a year’s work by CSG and its partner organizations.
The resource is focused squarely on record closure mechanisms and does not cover restoration authorities that leave the record intact, such as executive pardon, judicial certificates of relief, or nondiscrimination laws. It also does not directly address the effect of closure in different jurisdictions. It does, however, provide succinct information about the various record closure procedures available in each state, and does so in a way that non-lawyers can easily understand. In addition, it collects links to state application forms and guides as well as links to helpful third-party resources. As such, it will be a useful tool for individuals seeking to leave their criminal records in the past. It complements the more detailed legal analysis in the Restoration of Rights Project.
The Clearinghouse is available at https://cleanslateclearinghouse.org. We look forward to hearing about how it is being put to use and to watching its further development. The official project description follows:
A new California regulation took effect last week that puts employers on notice that adverse action based on criminal history may violate state law prohibitions on racial discrimination. The regulation closely tracks a 2012 guidance issued by the U.S. Equal Employment Opportunity Commission, which asserts that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity.
The California regulation adopts, in broad terms, the same position and standards put forth in the EEOC guidance, but applies them to the state’s Fair Employment and Housing Act (FEHA), which prohibits employment discrimination on grounds that are substantially similar to those enumerated in Title VII. Like the EEOC guidance, the new FEHA regulation sets forth a number of factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.”
The fact that the regulation was promulgated by the state’s Department of Fair Housing and Employment, which may sue to enforce the FEHA, may give California employers that have not already conformed their practices to the EEOC guidance an incentive to do so. Moreover, the new regulation ought to make it easier for individuals to challenge criminal history screening practices by giving them a clear basis for action under California law.
The Collateral Consequences Resource Center and its partner organizations, the National Association of Criminal Defense Lawyers, the National Legal Aid and Defender Association, and the National HIRE Network, are pleased to announce the launch of the newly expanded and fully updated Restoration of Rights Project.
The Restoration of Rights Project is an online resource that offers state-by-state analyses of the law and practice in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction. Jurisdictional “profiles” cover areas such as loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing. Each jurisdiction’s information is separately summarized for quick reference.
In addition to the jurisdictional profiles, a set of 50-state comparison charts summarizes the law and illustrates national patterns in restoration laws and policies. We expect to supplement these resources in weeks to come with jurisdiction-specific information about organizations that may be able to assist individuals in securing relief, and information on other third-party resources.
Departing from its customary reluctance to find fault with laws singling out convicted sex offenders for harsh treatment, after they have completed their sentences, the Supreme Court in Packingham v. North Carolina yesterday struck down a state law making it a felony for registered sex offenders to access commercial social networking websites. The petitioner in Packingham, a registered sex offender, violated the North Carolina law when after learning that a traffic ticket against him had been dismissed in court he posted the following message on his Facebook.com personal profile:
Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!
Packingham was convicted and thereafter challenged his conviction on First Amendment grounds, arguing that the law violated his right to free speech.
The CCRC is pleased to announce the launch of its Compilation of Federal Collateral Consequences (CFCC), a searchable online database of the restrictions and disqualifications imposed by federal statutes and regulations because of an individual’s criminal record. Included in the CFCC are laws authorizing or requiring criminal background checks as a condition of accessing specific federal benefits or opportunities.
This newly developed tool allows individuals to identify federal collateral consequences based on the people, activities or rights affected; to access complete and current statutory and regulatory text detailing the operation of each consequence; and, to explore the relationship between consequences and their implementing regulations, and among different consequences. This is a product that has been many months in the making, and we hope it will serve as an important resource for practitioners, researchers, and policymakers, as well as individuals with criminal records.
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.
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.
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.