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.
Earlier this year the U.S. Department of Housing and Urban Development (HUD) issued new guidance asserting that housing policies that exclude people with criminal records may violate the non-discrimination provisions of the federal Fair Housing Act (FHA) if they fail to consider the nature, severity, and recency of criminal conduct and if they are not narrowly tailored to protect residents or property. The Justice Department has taken the first step toward judicial enforcement of this guidance.
On October 18 the Department’s Civil Rights Division filed a Statement of Interest in Fortune Society v. Sandcastle Towers Housing Development, a federal civil rights suit brought in the Eastern District of New York against a Brooklyn provider of low-income housing, claiming that it has a blanket policy of refusing to rent to individuals convicted of any non-traffic crime. The Statement urges the court to decide the case based on the legal framework set forth in the HUD guidance, which employs a three-step analysis to determine whether criminal history-based housing exclusion policies amount to illegal racial discrimination prohibited by the FHA.
We reprint the Department’s press release below:
The Illinois legislature has been generally progressive in enacting measures to help people with a criminal record avoid being stigmatized for life. In 2003, as a state senator, President Obama sponsored one of the earliest of these measures, authorizing courts to grant certificates relieving collateral consequences. In 2011, however, Illinois took several steps backwards when it enacted legislation automatically barring some criminal record holders from ever working in a variety of licensed health care fields. The law has since become the subject of litigation and further legislation that leaves many would-be medical licensees to face an uncertain future.
What follows is a description of the law’s enactment, subsequent court challenges, and potential legislative fixes.
Capitalizing on the growing interest in the employment discrimination faced by people with a criminal record, Cornell University’s ILR School will host a program next month featuring Judge John Gleeson on “The Role of Courts in Managing Collateral Consequences.” Details of the program, which will take place in Manhattan on September 29, are here. Last year, Judge Gleeson expunged the conviction of a woman he had sentenced 13 years before, and later issued a “federal certificate of rehabilitation” to one of the woman’s codefendants. While the 2nd Circuit recently reversed Judge Gleeson’s expungement order, the government did not appeal his certificate order.
Participating with Judge Gleeson on the Cornell program are New York Supreme Court Justice Matthew D’Emic, who recently presided over a mass certificate ceremony in Brooklyn; and Michael Pope, Director of Legal Services for Youth Represent, who last month won a significant victory for a woman whose shop-lifting conviction had resulted in her rejection as a school bus attendant in New York City. Ted Potrikus, President and CEO of the Retail Council of New York State, and Margaret Love, Executive Director of the CCRC, will also participate. Registration is now open for the program, which carries CLE credit. Read more
In June we covered two recent studies that concluded ban-the-box policies tend to decrease minority hiring because some employers use race as a proxy for criminal history. In other words, in the absence of information about applicants’ criminal history, some employers assume that minority applicants have a record and exclude them on this assumption. The result is that ban-the-box policies increase opportunities for whites with a criminal record but decrease them overall for minorities, and thus encourage unlawful discrimination. Some observers, including one of the study authors, advocated for the repeal of ban-the-box policies based on those conclusions. Last week, the National Employment Law Project (NELP) published a critique of those studies, pointing out that any adverse effect on racial minorities is ultimately the product of unlawful discrimination barred by Title VII of the Civil Rights Act of 1964, not banning the box. In NELP’s view, the solution is “a robust reform agenda that creates jobs for people with records and dismantles racism in the hiring process, not [rolling] back the clock on ban-the-box.” We republish the summary and introduction of NELP’s critique below.
Two recent studies claim that “ban the box” policies enacted around the country detrimentally affect the employment of young men of color who do not have a conviction record. One of the authors has boldly argued that the policy should be abandoned outright because it “does more harm than good.” It’s the wrong conclusion. The nation cannot afford to turn back the clock on a decade of reform that has created significant job opportunities for people with records. These studies require exacting scrutiny to ensure that they are not irresponsibly seized upon at a critical time when the nation is being challenged to confront its painful legacy of structural discrimination and criminalization of people of color.
Our review of the studies leads us to these top-line conclusions: (1) The core problem raised by the studies is not ban-the-box but entrenched racism in the hiring process, which manifests as racial profiling of African Americans as “criminals.” (2) Ban-the-box is working, both by increasing employment opportunities for people with records and by changing employer attitudes toward hiring people with records. (3) When closely scrutinized, the new studies do not support the conclusion that ban-the-box policies are responsible for the depressed hiring of African Americans. (4) The studies highlight the need for a more robust policy response to both boost job opportunities for people with records and tackle race discrimination in the hiring process—not a repeal of ban-the-box laws.
The Presidential Memorandum that formally established the Reentry Council in April 2016 mandated a report documenting the Council’s accomplishments to date and plans moving forward. The resulting report, The Federal Interagency Reentry Council: A Record of Progress and a Roadmap for the Future, was issued today.
Also today the White House issued a fact sheet with new commitments to the Fair Chance Business Pledge.
Finally, the Justice Department released a National Reentry Week After Action Report.
We will be taking a close look at these reports on the federal government’s recent efforts to address collateral consequences, and expect to post the results of our review shortly.
A new article in the Harvard Law & Policy Review evaluates some of the recent legislative efforts to deliver relief from the burden of collateral consequences through new or expanded expungement laws. In “A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels,” Brian Murray argues that many of the newer record-closing laws are far too modest in scope and effect to have much of an impact on the problem of reintegration, citing Louisiana and Maryland enactments as examples of relief that is both too little and too late. He admires Indiana’s broad new expungement scheme, which limits use of records as well as access to them, regarding it (as do we) as an enlightened exception to a general legislative aversion to risk. He considers recent legislation in Minnesota to fall into a middle category — and we could add Arkansas as another state to have recently augmented and clarified older record-closing laws. Our round-up of new expungement laws enacted just this year finds very little consistency from state to state, with Kentucky, Tennessee, Missouri and New Jersey all experimenting with different approaches.
Murray appreciates the need for a multifaceted approach to the problem of criminal records, and recognizes the doctrinal and practical shortcomings of a reform agenda that depends primarily on concealment. His bottom line, with which we agree, is that “[s]kepticism regarding the benefits of expungement in the information age, coupled with the incremental nature of legislative reform, leads to the conclusion that expungement law must continue to develop as one piece in a larger puzzle.”
This piece follows up on the CCRC practice resource titled “Federal sentencing and collateral consequences,” available here.
Should federal courts be required to take collateral consequences into account when they impose a sentence – or should they at least be permitted to consider them? Should courts also be authorized to provide federal defendants some relief from collateral consequences after their sentences have been served? Some courts are already doing this without specific authorization, as was pointed out in a letter sent last week to the U.S. Sentencing Commission by one of its advisory committees, urging that the Commission take up the subject of collateral consequencdes as a priority for the coming year.
The Practitioners Advisory Group (PAG) urged the Commission to recognize collateral consequences as presenting issues of concern to federal courts for which it should provide some guidance:
The collateral consequences of conviction – specifically, the legal penalties and restrictions that take effect automatically without regard to whether they are included in the court’s judgment – can frequently be the most important aspect of punishment from a defendant’s perspective. In a number of recent cases, courts have has imposed a more lenient sentence in consideration of the severe collateral consequences the defendant would experience. In other cases, courts have sought creative ways to relieve defendants from the effect of collateral consequences that persist long after the sentence has been fully served. We briefly describe below the ways in which collateral consequences affect the work of sentencing courts. We urge the Commission to take this matter under advisement in the months ahead, looking toward a hearing in the spring.
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:
On April 29th the U.S. Department of Health and Human Services announced a shift in policy that will for the first time allow released prisoners residing in “halfway houses” to take advantage of the services made available through the Affordable Care Act’s Medicaid Expansion. The change will provide much-needed medical and rehabilitative services to countless former inmates that would not otherwise have access to essential healthcare resources. It may seem like a minor change but as a practical matter it is likely to do more to encourage successful reentry than any other single policy decision in recent years.
Until now, halfway house residents have been excluded from coverage because of an interpretation of the Medicaid statute that considered halfway house residents to be “inmates of public institutions” – a category of persons that are statutorily ineligible for Medicaid coverage. The new DHHS guidance removes those in halfway houses from that category so long as they have “freedom of movement and association while residing in the facility.” It also clarifies that individuals on parole and probation are not “inmates” and are eligible for coverage.