The Collateral Consequences Resource Center is currently finalizing a 50-state report on the availability of relief from the adverse civil effects of a criminal arrest or conviction. Using research from the Restoration of Rights Project (RRP), the report analyzes the data in several different categories, including executive pardon, judicial record-closing and certificates, and regulation of employment and licensing. It showcases those states that have the most comprehensive and effective relief mechanisms, and at the same time provides a snapshot of the extraordinary recent interest in restoration of rights and status in state legislatures across the country. It also looks at what states are doing to enable less serious offenders to avoid a criminal record altogether, through statutory deferred adjudication programs managed by the courts.
We preview here the report’s conclusions, illustrated by a series of color-coded maps that create a visual image of where people with a criminal record appear to have the best chance of regaining their rights and status through a variety of different relief mechanisms. The full report will be published shortly after Labor Day.
1. Executive pardon
2. Judicial record-closing
3. Deferred adjudication
4. Regulation of employment and licensing
5. Loss and restoration of voting rights
A new report examines successful efforts by corporations and government leaders to promote “fair chance” hiring policies for people with criminal histories. Back to Business: How Hiring Formerly Incarcerated Job Seekers Benefits Your Company reviews the latest research on the effect of a criminal record on employment interviews and on the job performance of workers with such records. The report summary continues:
Several case studies presented here show how fair chance policies can promote loyalty and stability in the labor pool. The report provides a roadmap for businesses seeking to create and sustain fair chance policies, including “banning the box,” or removing criminal history questions from job applications. It explains how hiring officers can effectively carry out this policy, and how to choose background check companies that use best practices in data collection. It analyzes racial bias that has been connected with “ban the box” policies, and how to eliminate such bias by training administrators involved in hiring processes. The report also outlines compliance requirements with federal equal employment rules as they apply to people with criminal records. And it examines the issue of negligent hiring liability and how to avoid such liability. Education is critical to job readiness, employee retention, and economic mobility. The costs of re-incarceration far exceed the costs of correctional education, and access to training and higher education have been shown to reduce recidivism and increase the likelihood of employment upon release. One case study describes how one college is developing inprison education programs under a federal pilot program and offers a model for making correctional education scalable. The report examines how partnering with workforce training and development programs can help employers succeed with employees who have been in prison. Many workforce development agencies offer training and counseling tailored to help these individuals transition into jobs. Lastly, the report provides recommended actions that businesses can take to create a fair chance for all.
The report was prepared by the Trone Private Sector and Education Advisory Council to the American Civil Liberties Union, with its partner organizations the Legal Action Center, the Lawyers Committee for Civil Rights Under Law, and the National Workrights Institute.
We have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement. This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records. The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004. We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials.
A brief overview of research methodology and conclusions follows.
A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life. Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse. In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety. One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.” Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.
At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions. The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.
Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.
In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.
The revolving door between prison and homelessness is an unfortunate and well-documented feature of our criminal justice system. But it is not just those returning from prison who are at risk. Even a conviction for a relatively minor offense – and, in some instances, simply being charged with one – can result in a lifetime of housing insecurity, both for individuals and their families. These problems are the focus of an excellent new report from the National HIRE Network that examines criminal record-based housing restrictions across the country and describes what is being done by a few jurisdictions and the federal government to put the brakes on the cycle of conviction, homelessness, and recidivism.
Although record-based housing restrictions are implemented by both private and public housing providers, it is public housing restrictions that pose the biggest risk to individuals with criminal records since their statistically lower income makes them more likely to rely on federal subsidies for housing. Attached to those subsidies are a number of federally-mandated restrictions, including a permanent and automatic ban for anyone convicted of producing methamphetamine in public housing or of a sex offense requiring lifetime registration, and permissible eviction followed by a three-year bar (that may be reduced) for drug-related criminal activity.
But, as the report discusses, those federal restrictions are just the beginning. Federal law explicitly permits subsidized housing providers to reject applicants if a household member has engaged in criminal activity that is violent, drug-related, or that “would adversely affect the health, safety, or right to peaceful enjoyment of the premises” and that was committed within a “reasonable time” before applying. That loose standard gives providers enormous discretion to determine who gets in and who gets shut out:
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.
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.
States are falling short when it comes to making occupational licensing opportunities available to people with criminal records. This is according to a report released this week by the National Employment Law Project (NELP). Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Criminal Records examines the licensing laws of 40 states, and grades each state based on a number of criteria designed to assess how effective the law is at creating licensing opportunities for people with criminal records. The report is a powerful advocacy piece demonstrating the need for nation-wide reform of licensing laws, though it bears noting that its limited scope may distort the bigger picture in some states.
Recent studies and policy discussions focusing on the difficulty people with criminal records have finding employment tend to ignore the fact that nearly 30% of American jobs require state licensure or certification — which is frequently denied based on a conviction. The National Inventory of Collateral Consequences (NICCC) shows that there are over 25,000 formal occupational and business licensing restrictions imposed nationwide at the state or federal level. Many of these restrictions apply regardless of a crime’s relationship to a particular license or the time since conviction. Across the nation, over 10,000 of these restrictions are mandatory and apply automatically, forcing licensing bodies to reject applicants with certain records regardless of their qualifications or evidence of their rehabilitation.
Municipal and county ordinances also regulate employment and business opportunities, including such important entry-level employment as taxi driver and street vendor, though ordinances are not catalogued in the NICCC and so were not included in the NELP report. Read more
This practice resource is available in PDF format here. A follow-up piece, “Federal sentencing and collateral consequences II,” is here.
Federal courts are frequently asked to take into account the collateral consequences of conviction in determining what sentence to impose under the criteria in 18 U.S.C. § 3553(a). It is generally permissible for them to do so, and in line with current proposals of national law reform organizations. At the same time, courts must guard against the risk of socioeconomic bias favoring more privileged defendants who have the most to lose in the civil sphere, and who are likely to enjoy more vigorous and effective advocacy around collateral consequences.
The following discussion first reviews a federal court’s general obligation to understand the collateral consequences that apply in a particular case, and to ensure that a defendant considering a guilty plea has been adequately advised about them. It then reviews post-Booker case law approving below-guideline sentences based on the severe collateral penalties applicable to a particular defendant, such as loss of employment, extraordinary family circumstances, sex offender registration, and even reputational harm (“the stigma of conviction”). Finally, it discusses cases in which courts of appeal have refused to approve deep sentencing discounts based on collateral consequences in circumstances suggesting a bias favoring middle-class defendants.