Update: The National Employment Law Project has responded to these studies with a critique that we cover here.
Ban-the-box policies have become popular in recent years as a way of minimizing discrimination based on criminal history, and have been adopted by 24 states, the federal government, and a number private companies. But until recently there has been little hard data available about the general effect of those policies on employment opportunities. A number of recent studies have begun to fill that gap, and the results have been disturbing. The consensus seems to be that while banning the box does enhance the employment prospects of those with criminal records, it also encourages employers to fall back on more general racial stereotypes about criminal history without the “box” to confirm or deny it.
Most recently, a multi-year field study by Amanda Agan (Princeton University) and Sonja Starr (University of Michigan Law School) found that although banning the box made it more likely that individuals with criminal records would receive call-backs from prospective employers, it dramatically increased the gap in call-backs between black and white applicants. Employer responses to over 15,000 fictitious job applications sent to New York and New Jersey employers after ban-the-box policies took effect showed that black applicants received 45% fewer callbacks than white applicants, up from a 7% differential before the new policy took effect:
Last week we posted a letter sent by former Attorney General Eric Holder to the Chicago City Council on behalf of Uber and Lyft, urging that it not require Uber and Lyft to subject their drivers to FBI fingerprint-based background checks applicable to taxi operators. His main argument was that FBI records are incomplete and misleading, and that they have a discriminatory impact on minorities. It now turns out that the campaign to free these ride-sharing companies from regulatory restrictions is broad-based: Holder has reportedly written to officals in New Jersey and Atlanta considering similar measures, and other former Obama officials are also working for Uber.
Last month the Wisconsin Supreme Court held in State v. Lemere that the Sixth Amendment does not require defense counsel to advise a client that a conviction for a pending charge of sexual assault could result in future commitment proceedings under chapter 980. The case could be appropriate for certiorari review in the U.S. Supreme Court regarding the scope of the Sixth Amendment right to counsel, since it reflects differing views in state high courts.
The Collateral Consequences Resource Center is pleased and honored to welcome civil rights activist, community organizer, politician, and accomplished actor Sala Udin to its Board of Directors. Udin is personally familiar with the obstacles faced by those with criminal records, having had to overcome them in becoming a respected community leader and champion for justice.
Yesterday U.S. District Judge Frederic Block (E.D.N.Y.) issued an extraordinary opinion explaining his decision to impose a non-prison sentence on a young woman convicted of importing cocaine, based on the severe collateral consequences that she faces. While other federal courts have factored collateral consequences into the balancing of factors required by 18 U.S.C. § 3553(a), this is the first time a court has justified its action in such detail. Calling the opinion “groundbreaking,” CCRC board member Jack Chin told the New York Times that it is “by some distance the most careful and thorough judicial examination” of collateral consequences in sentencing: “It’s going to generate debate on a critical issue in the criminal justice system — the ability of people convicted of crimes to get on with their lives.”
Here is how the opinion begins:
Chevelle Nesbeth was convicted by a jury of importation of cocaine and possession of cocaine with intent to distribute. Her advisory guidelines sentencing range was 33-41 months. Nonetheless, I rendered a non-incarceratory sentence today in part because of a number of statutory and regulatory collateral consequences she will face as a convicted felon. I have incorporated those consequences in the balancing of the 18 U.S.C. § 3553(a) factors in imposing a one-year probationary sentence.
I am writing this opinion because from my research and experience over two decades as a district judge, sufficient attention has not been paid at sentencing by me and lawyers—both prosecutors and defense counsel—as well as by the Probation Department in rendering its pre-sentence reports, to the collateral consequences facing a convicted defendant. And I believe that judges should consider such consequences in rendering a lawful sentence.
There is a broad range of collateral consequences that serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences. Many—under both federal and state law—attach automatically upon a defendant’s conviction.
The effects of these collateral consequences can be devastating. As Professor Michelle Alexander has explained, “[m]yriad laws, rules, and regulations operate to discriminate against ex-offenders and effectively prevent their reintegration into the mainstream society and economy. These restrictions amount to a form of ‘civi[l] death’ and send the unequivocal message that ‘they’ are no longer part of ‘us.’”
Preparatory to sentencing Ms. Nesbeth, I afforded counsel the opportunity to opine as to whether collateral consequences should indeed be part of the § 3553(a) mix, and requested written submissions. The Government was essentially non-committal.
Not surprisingly, the Office of the Federal Defender—which represented Ms. Nesbeth—gave a positive response. Commendably, both parties’ submissions detailed the collateral consequences she faces.
Because of the significance which I attach to the need of the criminal justice system to embrace collateral consequences as a sentencing issue, I write extensively, addressing in turn: (I) The History of Collateral Consequences; (II) The Depth and Breadth of Post-Conviction Statutory and Regulatory Collateral Consequences; (III) The Governing Caselaw; (IV) Ms. Nesbeth’s Collateral Consequences and the Balancing of all § 3553(a) Factors; (V) The Shaping of the Sentence; and (VI) The Responsibilities of Counsel and the Probation Department.
A new empirical study provides important evidence that “certificates of recovery/relief” can be effective in facilitating employment opportunities for people with a criminal record. Two University of South Carolina criminologists have concluded that employers in Ohio are willing to look beyond the criminal histories of job applicants who have been issued a Certificate of Qualification for Employment (CQE) from a state court. The study, which involved sending fictitious resumes to over 300 employers in the Columbus area, found that individuals with a felony drug conviction were more than three times as likely to receive a job interview or offer if they had received a CQE.
Although the study’s findings are described as preliminary, they fill an important gap in our knowledge of the effectiveness of Ohio’s CQE, and by inference of similar certificate schemes in other jurisdictions. Such schemes have to date been justified on the basis of assumptions and anecdotal evidence, with little hard data to vouch for their potency. The abstract follows:
Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis. The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer.
More and more states are enacting new expungement and sealing laws, or expanding existing ones, some covering convictions for the first time. The first four months of 2016 alone saw courts given significant new authority to limit access to criminal records in four states, and bills have been introduced in several others that promise more new laws in months to come.
In April, Kentucky authorized expungement of felonies for the first time, while New Jersey reduced waiting periods for some offenses and made expungement automatic for some others. Also in April, Maryland’s Governor Hogan signed that state’s Justice Reinvestment Act, permitting expungement of misdemeanor convictions for the first time. Beginning in November, Pennsylvania courts will have new authority to seal misdemeanor offenses, and follow-up bills have been introduced in both houses to make sealing automatic for most non-felony records after a waiting period. There are also several pending proposals to significantly expand existing expungement laws in Oklahoma, Missouri, and Rhode Island.
We take a closer look at each of these new expungement authorities below.
The new laws evidence the growing momentum behind second-chance reforms. They also show how expansion of expungement and sealing mechanisms can be an incremental process. For example, the legislatures in Maryland and Pennsylvania first tested the waters by giving courts new authority to mitigate low-level conviction records in relatively limited ways, with both following up shortly after with proposals to increase both the availability and effectiveness of those mechanisms. Meanwhile, states with fairly robust expungement mechanisms already in place, like New Jersey, Missouri, and Kentucky, have taken steps to make relief available sooner and to more people. Relatedly, in the first four months of 2016, six more states enacted or expanded state-wide ban-the-box laws limiting inquiry about criminal records at early stages of the hiring process, bringing the total to 23.
The National Inventory of Collateral Consequences (NICCC), a comprehensive interactive catalog of collateral consequences and relief mechanisms, will soon become a part of the federally funded National Reentry Resource Center (NRRC). The NICCC, described by the Justice Department as an integral part of its Smart on Crime initiative, was developed by the American Bar Association between 2011 and 2014 under a grant from the National Institute of Justice (NIJ). The NRRC, also closely tied to the Administration’s reentry strategy, was established in 2011 by the Council of State Governments and has been supported by grants from a number of federal agencies, including NIJ, and by private foundations. Now the government has decided to consolidate the two projects under the Bureau of Justice Assistance (BJA).
According to a grant solicitation issued by the BJA earlier this month, bidders for a $5 million grant to administer the NRRC grant must “propose a plan to transfer” the NICCC and keep it up to date at an approximate annual cost of $100,000. The solicitation does not make clear what if any conditions apply to the transfer of the NICCC, or what if any continuing role the ABA would have for its maintenance, and we must assume the government has determined that it should be permanently transferred to whatever organization wins the bid for the NRRC. Bids are due by June 2. Read more
In the last few years, Pennsylvania’s courts have taken an active role in defining the propriety and scope of the state’s sex offender registration program. Following on the heels of a December 2014 decision striking down sex offender registration for juveniles, the Pennsylvania Supreme Court recently agreed to hear a sweeping challenge to the retroactive application of Pennsylvania’s adult sex offender registry. The new law, generally referred to as SORNA (Sex Offender Registration and Notification Act), took effect on December 20, 2012 as part of an effort to comply with the federal laws governing sex offenders. SORNA replaced a more lenient registration scheme where the majority of people convicted of sexual crimes had to register for only ten years. SORNA changed the paradigm and drastically increased the number of people included on the registry, the time periods for which they would have to register, and the number of things they have to report. Of the close to 19,500 people on the registry today, roughly three quarters have to register for the rest of their lives without any chance of removal.
In addition to making most offenders lifetime registrants, SORNA reclassified thousands of people who were ten year registrants under the old law and retroactively increased their terms of registration – in most instances to life. Hundreds of registrants sued, raising a number of different challenges to the law. Until now, the Pennsylvania Supreme Court has refused to get involved.
The Department of Education (DOE) is asking colleges and universities to reconsider the use of criminal record inquiries on admissions applications in a new report released on Monday. The report, Beyond the Box: Increasing Access to Higher Education for Justice-Involved Individuals, looks at how broad inquiries into applicants’ criminal histories may deter people with criminal records from applying for post-secondary educational opportunities. It also suggests steps schools can take to ensure that their admission processes promote second chances for qualified applicants with criminal records, including banning the box on initial applications.
According to the report, “A survey of postsecondary institutions found that 66 percent of them collect CJI [criminal justice information] for all prospective students, and another 5 percent request CJI only for some students.” The Common Application, a uniform application used by nearly 700 schools, has since 2006 asked whether a person has been convicted of a misdemeanor or felony, “or other crime.” Some schools that use the Common Application allow applicants to opt out of disclosure, or delay criminal history inquiries until a preliminary admissions decision has been made. Other schools use their own non-standard applications which may require disclosure of convictions, arrests, or mere allegations of misconduct.