Category: Employment/Licensing

Appeals court invalidates EEOC criminal record guidance

On August 6, the 5th Circuit Court of Appeals invalidated the EEOC’s 2012 Enforcement Guidance on “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.”  See Texas v. EEOC, No. 18-10638 (August 6, 2019).  Among other things, the Guidance prohibits consideration of blanket bans on hiring people with a criminal record, and requires nuanced case-by-case consideration as to whether a particular employment policy or action satisfies Title VII’s business necessity test.  The State of Texas claimed that the Guidance was an unauthorized substantive rule that would override numerous mandatory state law bars to hiring people with a felony conviction.  After rejecting various jurisdictional defenses based on lack of finality and standing, the court affirmed the district court’s holding invalidating the Guidance.

Perhaps the most significant thing about the appeals court’s ruling is its conclusion that the Guidance was a substantive rule that exceeded the EEOC’s authority to bind either public or private employers.  The district court had simply enjoined enforcement of the Guidance pending satisfaction of the notice and comment rulemaking requirements of the APA.  But the court of appeals went further, stating that “the text of Title VII and precedent confirm that EEOC lacks authority to promulgate substantive rules implementing Title VII.”  It therefore modified the district court’s injunction to strike the clause “until the EEOC has complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule.”  The court also “clarified” the terms of the injunction to say that “the EEOC and the Attorney General may not treat the Guidance as binding in any respect.”

While there may yet be further litigation over the Guidance, and while Congress may yet decide to act to bar record-based discrimination, it would appear that action to secure fair chance employment will now be with the states.

 

 

 

New restoration laws take center stage in second quarter of 2019

State legislatures across the country are moving quickly and creatively to repair some of the damage done by the War on Crime, which left a third of the adult U.S. population with a criminal record.  In the second quarter of 2019, 26 states have enacted an eye-popping total of 78 separate new laws aimed at addressing the disabling effects of a record.  Coupled with the laws enacted in the first quarter, the total for the first half of 2019 is 97 new laws enacted by 36 states.  By way of comparison, in all of 2018 there were 61 new restoration laws enacted in 32 states and two territories, which was then a record.

Much of the new legislation this quarter is quite significant.  Some states made their first substantial effort in decades to deal with the problems presented by record-based discrimination, while others refined and extended reforms enacted in the recent past.  Some states enacted multiple laws dealing with the same restoration issue (Texas stands out with five laws on occupational licensing alone), and some dealt with multiple issues in one law (New York dealt with no fewer than twelve separate issues in a 2020 budget bill).  Many of the specific laws enacted in the second quarter were anticipated by laws enacted by other states in the first.

As in the past, state lawmakers this quarter focused most of their attention on facilitating access to record-clearing, although a significant number of new laws regulate consideration of criminal record in the occupational licensing process.  Another important area of progress is in restoration of voting rights.  Other matters addressed by new laws include driver’s licenses and firearms; diversionary dispositions; and immigration consequences.  Surprisingly few of the new laws deal directly with employment, perhaps on the assumption that limited access to criminal records will also limit employment discrimination, at least where a background check is not mandated by law (frequently an exception to sealing).  Only one law enacted during this past quarter took a step backward to restrict an existing restoration measure (a significant development in Florida in the area of voting rights).

The new laws also display a remarkable variety, indicating either that the spirit of experimentation is alive and well in the States, or that States are desperate for law reform guidance, or both.  Meanwhile, in stark contrast to this prolific state law-making, Congress has not attempted to deal with the problem of reintegration for more than a decade—either by reducing federal collateral consequences or by restoring rights to people with federal convictions.

Below, we describe some of the more significant new laws by category, covering voting rights, record-sealing, occupational licensing, immigration, and what for want of a better term we call “odds and ends.”  For those interested in further details about the new laws, we have described and analyzed them in the state profiles and summary charts of the Restoration of Rights Project.  (In order to access the full analysis of the new laws in the RRP, you must clink the link on the “summary” sheet labeled “Read the Full Profile.”)

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CCRC to hold roundtable on criminal records at U. Michigan Law School

We are pleased to announce that we are convening a roundtable meeting in August 2019, hosted by the University of Michigan Law School, to develop a model law on access to and use of criminal records, specifically in cases that do not result in a conviction.

In March, we began a major study of the public availability and use of these non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public allowing widespread dissemination on the internet, both directly and through private for-profit databases.  Their appearance in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Research has shown that limiting public access to criminal records through mechanisms like sealing and expungement increases the earning ability of those who receive this relief, which in turn benefits their families and communities.

The problems of access and use are not limited to private actors:  a recent court decision in New York suggests that police departments in some jurisdictions make operational use of sealed non-conviction records even when the law prohibits it.

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Administration withdraws proposal to require federal job-seekers to disclose diversions

The Washington Post reports that the White House has directed the Office of Personnel Management (OPM) to drop its proposal to expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  OPM’s proposal, which we described in March, would have required applicants for federal jobs and contracting work to disclose participation in pretrial diversion programs in the last 7 years.

In March, we launched our non-conviction records project, a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.  The appearance of these records in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Our letter opposing the OPM proposal cited our research on diversions and pointed out that while “state lawmakers, judges, and prosecutors favor diversionary dispositions in appropriate cases to help people avoid the restrictions and stigma of a conviction, OPM’s proposal disfavors them by treating them like convictions.”

We are pleased to see the administration quash this ill-advised proposal, in the face of opposition from advocates on the left and right, lawmakers from both parties, and prosecutors and public defenders.  At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, the federal government should be moving to reduce the collateral consequences of diversion (as Indiana and Wisconsin did in 2018 when they prohibited licensing boards from considering arrests not resulting in conviction, or California and Nevada did in 2017 when they prohibited employers from considering an applicant’s successful completion of diversion).

While every state legislature has in some way addressed the problem of reintegration since 2012, Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.  Now is the time for federal action in support of reintegration, as the withdrawal of the OPM proposal evidently recognizes.

CCRC opposes rule requiring federal job seekers to disclose some non-conviction records

In March, we described a proposed federal rule that would expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  Specifically, OPM proposes for the first time to require individuals applying for federal employment or contracts to disclose whether they have participated in pretrial diversion programs in the last 7 years.  Our letter commenting on OPM’s proposal (reprinted below) points out that diversion is increasingly favored by states as a means of encouraging rehabilitation, and that this goal is advanced by the promise of avoiding the disabling collateral consequences and stigma that follow conviction.  In treating diversions like convictions, the OPM proposal would subvert the many benefits of diversion that have encouraged their increased use by prosecutors in recent years, including allowing for positive community perceptions of the justice system.

**Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post. 

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Bumper crop of new expungement laws expected in 2019

Earlier this year we reported that, in 2018, legislatures enacted an unprecedented number of new laws aimed at restoring rights and opportunities for people with a criminal record.  (Last year 32 states, D.C., and the U.S. Virgin Islands enacted 61 new laws to facilitate reentry and reintegration.)  The first quarter of 2019 has already produced a baker’s dozen of new restoration laws, some quite significant, indicating that this year is likely to be every bit as productive as last.  The 13 new laws enhance access to record-clearing relief, occupational licensing and employment, and executive clemency.  Also notable, if only for the sheer number of people who will benefit when the law goes into effect on July 1, is the Virginia legislature’s accession to Governor Ralph Northam’s request that it “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” which will immediately reinstate driving privileges to more than 627,000 Virginians.

This year to date, state lawmakers have focused most of their attention on improving access to record-clearing: 8 of the 13 new laws expand eligibility for expungement and sealing and streamline applicable procedures.  The two most significant new laws were enacted in Western states.  Utah’s HB 431—signed by Governor Gary Herbert on March 28, 2019—provides for automated sealing relief for certain non-conviction, infraction, and misdemeanor conviction records.  When it takes effect on May 1, 2020, it will be the nation’s second “clean slate” law in operation (Pennsylvania’s first-in-the-Nation 2018 clean slate law will be implemented over a 12-month period beginning in June 2019).  Utah also clarified that employers may not ask about—and an applicant for employment need not disclose—expunged convictions (except under narrow exceptions for public employment).

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Updated report on 2018 fair chance and expungement reforms

On January 10, 2019, we released a report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  Since that time, we discovered five additional laws enacted in 2018 (in AL, PA, OR, MO, and the U.S. Virgin Islands), and have updated our report accordingly.

In 2018, 32 states, the District of Columbia, and the U.S. Virgin Islands enacted at least 61 new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime. The CCRC report analyzes last year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.

Last year saw the most productive legislative year since a wave of “fair chance” reforms began in 2013.  CCRC documented these earlier developments in reports on the 2013-2016 reforms and 2017 reforms.  In the period 2012–2018, every state legislature has in some way addressed the problem of reintegration.  Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.

The state laws enacted in 2018 aim to break down legal and other barriers to success in the courts, the workplace, the pardon process, and at the ballot box:

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“High Time for Marijuana Expungement”

Any state that legalizes or decriminalizes marijuana should automatically include an expungement provision that clears the criminal record of individuals who engaged in activities deemed lawful under the new legalization or decriminalization laws.  This is the thesis of my new article, “High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Laws.”  At the federal level, Senator Cory Booker’s recently reintroduced Senate Bill 597, the “Marijuana Justice Act of 2019,” would do just that: remove marijuana from the Schedule of Controlled Substances and expunge records of marijuana possession and use convictions.  At the same time, some local governments are focusing on more efficient and expeditious expungement processes.  Earlier this year, the San Francisco District Attorney partnered with Code for America to identify and process eligible marijuana cases, including past convictions dating back to 1975.  The Denver District Attorney launched “Turn Over a New Leaf Program,” which helps individuals who committed now-repealed marijuana-related offenses vacate the records of their convictions.  While Colorado has a marijuana sealing statute (Col. Rev. Stat. § 24-72-710 allows sealing of misdemeanor marijuana possession or use offenses if an individual files a petition, pays a filing fee plus $65, and proves that the offense is no longer considered a crime), the New Leaf Program has attorneys from the Denver City Attorney’s Office guide individuals through the process and ask courts to vacate, dismiss, and seal convictions for marijuana offenses that are no longer illegal.

However—as I document in my article—of the ten states that have legalized, only four states have enacted marijuana-expungement legislation; of the thirteen states that have decriminalized marijuana, only three have enacted marijuana-expungement legislation.  My article includes charts compiling the status of expungement statutes in states that have legalized or decriminalized recreational marijuana and includes a model marijuana expungement statute.  My article draws on previous scholarship in this area by Professor Douglas Berman (Leveraging Marijuana Reform to Enhance Expungement Practices) and CCRC fellow David Schlussel (The Mellow Pot-Smoker: White Individualism in Marijuana Legalization Campaigns).

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Starr and Prescott publish groundbreaking empirical study of expungement

Professors Sonja B. Starr and J.J. Prescott of Michigan Law School have released the first-ever broad-based empirical study of the effects of a state law limiting public access to criminal records.   CCRC’s reports have noted the lack of empirical research to inform policies aimed at promoting reentry and reintegration for people with a criminal record—something this study of Michigan’s set-aside law begins to correct.  As its authors observe, “Despite the considerable legislative ferment and the excitement that surrounds ‘clean slate’ initiatives in the civil rights and criminal justice reform worlds, what has been missing from the debate is hard evidence about the effects and true potential of conviction expungement laws.”  A reason for this, as the authors also note, is that by definition criminal records that are the subject of sealing or expungement relief are often unavailable to study.  [Note:  In the summer of 2019, the study was accepted for publication in the Harvard Law Review.]

Using a data-sharing agreement with multiple Michigan state agencies, Starr and Prescott completed an extensive statewide analysis of expungement of criminal convictions in Michigan over the course of decades.  Their analysis reveals three key findings:

  • Uptake:  Just 6.5% of those eligible for expungement successfully complete Michigan’s application process within five years of eligibility.
  • Recidivism:  Expungement recipients “have extremely low subsequent crime rates, comparing favorably to the general population—a finding that defuses a common public-safety objection to expungement laws.”
  • Employment:  Expungement receipts see a “sharp upturn” in wage and employment: wages go up on average by 25% within two years, driven mostly by “unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.”

These conclusions just about cover the waterfront of findings we would most like to see about laws that limit public access to criminal records.  Looking at them in reverse order, Starr and Prescott find that expungement is valuable in economic terms for those who receive this relief, and improvements in their economic status will in turn benefit their families and communities.

They also find that those who benefit from expungement present no particular threat to public safety, whether because recipients of expungement are self-selected criminal justice success, because the courts that grant them relief take their likelihood of reoffending into account, or because expungement itself does not tend to increase recidivism risk (and in fact may reduce it).

Finally, and perhaps most disturbingly, few of the people who are intended beneficiaries of Michigan’s expungement law actually obtain this relief, either because they don’t apply for it or because their applications for expungement are not approved.  The authors find six reasons that account for this “uptake gap” (which is greater for people with misdemeanors than felonies):

  • lack of information about the availability of relief;
  • administrative hassle and time constraints;
  • cost (including court filing fees, lost wages, and transportation costs);
  • distrust and fear of the criminal justice system;
  • lack of access to counsel; and
  • insufficient motivation to remove conviction.

In addition, while not a part of the “uptake gap” strictly speaking, the authors note that “every advocate that we spoke to also emphasized the stringency of the eligibility requirements, which in their view exclude a great many worthy candidates.”  (A person must have no more than one felony conviction and no more than two misdemeanor convictions in order to be eligible for “set-aside” under what is commonly known as the “general expungement statute.”  In contrast to most states, however, most felony convictions are eligible for set-aside.  A Michigan set-aside limits public access to the record, but it remains available to law enforcement and some other government agencies.  See the description of Michigan’s law providing for set-aside in the Michigan profile from the Restoration of Rights Project.)  The authors remark about the eligibility requirements for set-aside in Michigan:

All of these restrictions mean that the low uptake rate we estimated is even starker when viewed in context: it is a very small fraction of a very small fraction. For the past decade about two thousand set asides per year have been granted in Michigan. Meanwhile, each year the Michigan state courts add about 300,000 new criminal convictions. On balance, the population of people living with criminal records is continuing to grow quickly; the set-aside law is like a bucket removing water from an ever-rising ocean.

We note that Michigan’s eligibility requirements are actually more inclusive than those in most states.  See this 50-state chart.

We expect that the findings of this remarkable new study will prove uniquely valuable to advocates and policy-makers considering changes to laws authorizing relief from collateral consequences in the days and years ahead.

Administration wants federal job seekers to disclose participation in diversion

A proposed federal rule, now open for public comment, would expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  On February 22, 2019, the Office of Personnel Management (OPM) proposed a new rule to modify its “Declaration for Federal Employment” form (OF–306)—used by federal agencies in applications for federal employment or contracting—to require applicants to disclose not only whether they have been convicted, imprisoned, on probation, or on parole in the last 7 years, as under the current rule, but also whether they have participated in any pretrial diversion or intervention programs during that look-back period.  Such pretrial diversion and intervention programs “allow individuals to agree to comply with specific conditions in lieu of criminal prosecution and upon compliance, to have the charge(s) dismissed.”  No conviction is entered—and in some cases, neither is a plea.

**Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post.

Reform advocates and a growing number of state and federal prosecutors rightfully promote diversionary dispositions as key tools to reduce the collateral consequences of criminal justice system involvement.  But OPM’s proposed rule treats participation in a diversion program—even where there is no admission of guilt—as a marker of criminality.  By requiring candidates to disclose participation in diversion programs, OPM’s new proposed rule subverts the benefits of diversion: “prevent[ing] collateral consequences associated with [an] incident and allow[ing] for positive community perceptions of the justice system.”  See, e.g., Erica McWhorter & David LaBahn, Confronting the Elephants in the Courtroom Through Prosecutor Led Diversion Efforts, 79 Alb. L. Rev. 1221, 1239 (2016).

The new disclosure requirement is described further below.  Public comments on the proposed rule may be submitted by April 23, 2019.

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