Can people restored to full legal status in one state expect their status to be recognized if they move to another state, just as marriage is generally given interstate recognition? Can a person convicted in one state qualify for restoration of rights in another? What about a federal offender seeking relief under state law, or a state offender seeking relief from federal collateral consequences? Is there a role for Congress to play in ensuring fair treatment of people with a criminal record as they move around the country? These questions are increasingly important both as a practical and theoretical matter, as collateral consequences multiply and begin to limit Americans’ right to travel.
So it is timely that Wayne Logan, a Florida State University law professor widely known for his work on sex offender registration and other collateral consequences, has published a fascinating new treatment of the issue titled ‘When Mercy Seasons Justice’: Interstate Recognition of Ex-Offender Rights. The article, which appears in the UC Davis Law Review, examines the impact of federalism on the ability to obtain true relief from the collateral consequences of conviction in a mobile society. It is an issue that is widely overlooked, and the article reminds us that a comprehensive discussion about the impact of collateral consequences must take into account their inter-jurisdictional effects. The true impact of collateral consequences and relief mechanisms must be measured by the interplay of laws between jurisdictions as well as by the interplay of laws within them. Read more
On November 2, the President issued an executive order announcing a series of steps to encourage reentry and rehabilitation of individuals who have recently been released from prison. Among other things, the order establishes a National Clean Slate Clearinghouse, and authorizes technical assistance to legal aid programs and public defender offices “to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.”
According to an article in the New York Times, the measures
are all relatively modest in scale, important to the president less for their individual effect than for the direction they keep the country moving. Collectively, they reflect a belief that former inmates should have greater leeway to apply for jobs and housing without disclosing criminal records that would hinder their chances.
The order also calls on Congress to establish a ban-the-box program for federal employers and contractors. In the interim, it asks the Office of Personnel Management to “take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process.” Presumably this means at a minimum that OPM should eliminate the criminal history question on its “Declaration for Federal Employment” form. However, the order stops well short of recommending the more progressive steps proposed in a National Employment law Project report issued last January, including the revision of the federal “suitability” regulations to comply fully with the protections of Title VII of the Civil Rights Act of 1964.
We will shortly take a closer look at this new federal initiative to blunt the impact of collateral consequences. For now, we post the text of the entire order. Read more
Governor Cuomo has accepted all 12 recommendations made by his Council on Community Re-entry and Reintegration. The Council was created in July 2014 and tasked with “identifying barriers formerly incarcerated people face and making recommendations for change.”
Governor Cuomo’s 12 executive actions include: adoption of anti-discrimination guidance for public housing; adoption of uniform guidelines for evaluating candidates for occupational licensing, and a presumption in favor of granting a license to a qualified applicant; revision of 10 licensing and employment regulations that imposed stricter standards than required by statute; adoption of a “fair hiring” policy for state employment that will delay a background check until well into the hiring process; and streamlining the process for obtaining certificates of relief from disabilities and certificates of good conduct.
Council Chair Rossana Rosado said, “We accomplished our goals this year but our work is far from over. As we look to address many more of the systemic barriers encountered in re-entry, we will not lose sight of New York’s role as a leader in combating the devastating impact and stigma of second class citizenship that so many of our fellow New Yorkers face, especially men of color.”
The Council will continue to build on this successful first year by promoting a range of educational opportunities to improve chances of employment, addressing barriers to health care, seeking to reduce the potential for extortion from public exposure of criminal records and continuing to seek solutions to housing people with criminal convictions consistent with fairness and public safety.
An investigation by the Wall Street Journal reveals the little-known role that insurance companies play in shaping employer policies on hiring people with a criminal record. Joe Palazzolo reports in “Criminal Records Haunt Hiring Initiative” that the “unseen hand of commercial insurers” frustrates efforts by some employers to implement fair hiring policies, and gives others an excuse for maintaining broad prohibitions on hiring convicted individuals. “An employee is typically excluded from standard insurance policy against fraud, theft, embezzlement and other crimes—known as a fidelity bond—as soon as the employer discovers that he or she has committed a dishonest act, whether recently or in the past.”
The extent of the problem is illustrated by the story of Louis Henry, an Alabama man who lost a sales-management position at a medical-technology company after one day on the job, when a background check revealed a dated conviction for misreporting the status of a loan on the books of a bank where he worked. “A May 1 letter from the employer, reviewed by The Wall Street Journal, said Mr. Henry’s record placed the company in violation of its insurance policies.”
On June 17 the PBS NewsHour featured a debate over ban-the-box policies in hiring. Daryl Atkinson, an attorney with the Southern Coalition for Justice in Raleigh, North Carolina, presented the case in favor of eliminating threshold questions about criminal record on employment applications. Elizabeth Milito of the National Federal of Independent Business argued the other side, claiming that the costs of ban-the-box for a small business “can be pretty steep.” Read more
We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law. This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,” discussed on this site on April 15. The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary. But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.
We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals. Read more
A group of 27 U.S. Senators have written to President Obama urging him to implement “fair chance” hiring in federal government employment. The Senators — all Democrats, led by Sherrod Brown (D-OH) and Cory Booker (D-NJ) — asked the President to issue an executive order directing federal agencies and contractors to postpone inquiry into criminal records until a later point in the hiring process. The so-called ban-the-box movement in the states has been gaining steam and has been largely bipartisan, with executive orders issued most recently in Georgia and Vermont. Some of the largest employers in the country, including Walmart, Target, Home Depot and Koch Industries have also stopped asking about prior convictions at the beginning of the job application process.
The press release and letter are here. A January 2015 report from the National Employment Law Project suggests that the details of a presidential executive order may be difficult to work out, given the decentralized nature of federal hiring and the applicability of formal background check requirements to a substantial number of federally-funded jobs.
USA Today has published a White House document detailing President Obama’s policy on granting clemency, including both sentence commutation and post-sentence pardons. In a memorandum dated July 13, 2010 to the Acting Deputy Attorney General, White House Counsel Robert Bauer “convey[ed] the President’s views” on the exercise of his constitutional pardon power, affirming traditional standards but emphasizing that there are “certain offenses for which a pardon should very rarely, if ever, be granted absent truly exceptional circumstances.” Among these were “large-scale drug trafficking” in which the applicant had “a significant role,” and financial fraud cases involving “substantial loss to the federal government or its programs.”
The memo affirmed the five-year eligibility waiting period for a pardon, overriding a 2001 policy of the Bush Administration (also published for the first time) that imposed an informal 10-year waiting period. At the same time, it emphasized that the passage of additional time may strengthen an applicant’s case for pardon: Read more
Amid last week’s torrent of commentary about the downstream effects of the punitive policies of the 1990s came this extraordinary interview with David Simon of the Wire, who attributes the breakdown of community in Baltimore to the aggressive abuse of official discretion in the drug war. While Simon’s remarks are not directly related to collateral consequences, it is not hard to trace to the same source the regime of punitive laws and policies that now bars people with a criminal record from benefits and opportunities affecting literally every aspect of daily life.
Case in point, from an NPR report aired last week: Tyrone Peake, trained as a drug counselor, is barred for life from working at a nursing home or long-term care facility in the State of Pennsylvania because of his 1981 teenage conviction for attempted car theft for which he received probation. See Carrie Johnson, “Can’t Get A Job Because Of A Criminal Record? A Lawsuit Is Trying To Change That,” April 30, 2015.
Dismantling what Jack Chin has called “the new civil death,” like rebuilding trust between police and community, is the work of the next decade.