The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction. The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford.
The background checking policies of Uber and other ride-sharing companies like Lyft and Sidecar are again in the news, after an Uber driver with an extensive criminal record allegedly raped a female passenger in New Delhi. Other horror stories of cab rides from hell with these popular “taxi aggregators” are surfacing. The New York Times reports that background check requirements for taxi drivers vary widely by jurisdiction, but are “generally more rigorous” than the sketchy services used by Uber and its competitors, and “usually include searches of private databases like F.B.I. records.” (Note to self: Must inform the “paper of record” that the FBI records system is not a “private database.”)
Uber et al. have so far successfully resisted most legislative efforts to require them to perform particular kinds of background checks using particular kinds of background checkers, using the good offices of well-connected lobbyists to avoid this annoying speed bump on their road to a public offering. But episodes like the New Delhi rape, and lawsuits for misleading consumers about the kinds of checks they do, may bring them around to a more responsible position. Read more
Actor-producer Mark Wahlberg has filed an application for pardon with the Governor of Massachusetts, seeking forgiveness for a 25-year old assault conviction that occurred when he was 16 years old. The “onetime ruffian from Dorchester” bases his request for pardon on his rehabilitation and contributions to society since his conviction. He also specifies his desire to avoid certain legal restrictions that he claims are impeding his business endeavors and civic activities.
By his own account, Mr. Wahlberg was a troubled teen who had a history of scrapes with the law by the time of the 1988 assault. He states in his pardon application that, if he
had not turned his life around with the help of “faith, hard work, and guidance from some incredible mentors,” he “would likely have ended up like so many of my childhood friends from Dorchester: dead or in prison for a prolonged period of time.” He expresses remorse for his actions on the night of the assault, as well as “any lasting damage that I may have caused the victims.” He does not specify what that damage might have been, though news reports indicate that it was serious and possibly permanent.
As to his reasons for seeking a pardon, he claims that “my prior record can potentially be the basis to deny me a concessionaire’s license in California and elsewhere, “an important consideration given my personal involvement in various restaurant ventures,” presumably a reference to the fast-expanding chain of Wahlburgers. He believes that, if pardoned, “I could not be denied a concessionaire’s license on the basis of my prior record,” which may or may not be the case.*
Wahlberg also proposes that a pardon would enable him to become “more active in law enfor
cement activities, including those that assist at-risk individuals.” He states that only a full and unconditional pardon would, under California law, enable him to “obtain a position as a parole or probation officer.” True enough, but an improbable ambition for an A-List movie star. He disavows in his application any immediate interest in obtaining a firearms permit — leading this writer to wonder if one is required on location.
“Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level”
Amy Meek just sent us her colorfully titled and important new article recently published in the Ohio State Law Journal, about the collateral consequences imposed by municipal and county ordinances. As far as I know, this is the first serious effort to address consideration of conviction in connection with opportunities and benefits controlled at the local level. As the abstract below suggests, many types of entrepreneurial opportunities likely to be attractive to people with a criminal record are subject to governmental regulation below the state level. Because these local ordinances and regulations are rarely included in collections of state collateral consequences, they are invisible to defendants and unavailable to their counsel and the court at the time of plea or sentencing. Only in a few large municipalities, notably New York City, are criminal justice practitioners even aware of this locally created and administered system of restrictions and exclusions. For example, with the exception of the District of Columbia, municipal and county rules and regulations are not included in the NIJ-funded National Inventory of the Collateral Consequences of Conviction (NICCC). The potential for interaction between state and local authorities is a particularly intriguing subject that Professor Meek explores in her recommendations for legislative reform.
Here is the abstract:
California’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights)
Prop 47 and restoration of rights
California’s recently enacted Proposition 47 fundamentally alters the landscape for a handful of lower-level felony offenses in California. As discussed by Jeffery Aaron in a previous post, Prop 47 reclassifies eight offenses as misdemeanors, including simple drug possession offenses and theft of less than $950. Anyone with a qualifying conviction, who also does not have a disqualifying prior, can now petition under Prop 47 to have a felony reclassified as a misdemeanor. The most significant and immediate relief will be for people who are incarcerated for qualifying low-level felonies and who are now eligible for resentencing and release. Public defender offices around the state are busy filing those petitions.
But, Prop 47 also allows two other populations to petition for reclassification of their qualifying felonies to misdemeanors: People who are under supervision but not incarcerated (on probation, parole, or post-release community supervision), and people whose sentences were completed long ago. This aspect of the new law presents good opportunities for tens of thousands of Californians, and not insignificant implementation challenges.
Simply by reclassifying certain offenses from felonies to misdemeanors, Prop 47 can undo some of the most serious collateral consequences. It’s clear from our experience providing reentry legal services to thousands of clients over the years that people with felony, as opposed to misdemeanor, convictions face increased barriers to employment, housing, and full and meaningful community reintegration and citizenship. For example, people with a felony conviction, even a decades-old low-level offense, can never serve on a jury in California. For many people, Prop 47 will reverse this lifetime disenfranchisement and move them one step closer to full civic engagement.
But unfortunately, many of the statuary and extra-legal barriers to successful reentry that block people convicted of felonies also apply to people with convictions for misdemeanors and criminal infractions. Consequently, Prop 47 relief alone is not a cure-all for collateral consequences, and for most people it’s not even the most important petition they can file to overcome the statutory disabilities they face. The following section describes how Prop 47 relief interacts with other California relief mechanisms. Read more
In updating our book on New Jersey Collateral Consequences, J.C. Lore and I analyzed the provisions of New Jerseys’ new Opportunity to Compete Act, signed by Governor Christie in August and scheduled to become effective on March 15, 2015. The Act applies a ban-the-box requirement to most public and private employers with more than 15 employees. Having followed the bill through its passage in the House last spring, we were disappointed but not surprised to see that there were a number of employer-friendly amendments added to the Act just prior to final action in the Senate, with the result that there is a great deal of uncertainty about what the law actually accomplishes. The important provisions omitted from the bill in the Senate, after lobbying by business and industry groups, included
- A prohibition on considering certain types of criminal histories, including conviction records after a certain number of years;
- A private right of action against employers;
- A definition of “initial employment application process” that permits inspection of criminal records at an earlier stage of the employment process;
- A requirement that an employer make a good faith effort to discuss the applicants criminal record if it is of concern; and
- A provision permitting negligent hiring suits in cases of “gross negligence.”
The bill as amended also preempted local ban-the-box laws, so that Newark’s more progressive ban-the-box ordinance appears to be on life support.
Attached are the enacted version of the New Jersey Opportunity to Compete Act, as well as the “advance law” with brackets to show which language was removed in the Senate.
EDITOR’S NOTE: Much chastened, the author of the NACDL Restoration of Rights Resource has made appropriate modifications in the New Jersey profile. Note that similar last-minute amendments also substantially weakened the Delaware ban-the-box law, omitting similar provisions that would have prohibited employers from considering certain types of criminal records, notably convictions more than 10 years old. In the same fashion, last-minute amendments to Vermont’s Uniform Collateral Consequences of Conviction Act restricted its coverage to less serious offenses, disappointing its sponsors.
The lesson for advocates is that they must be eternally vigilant for last-minute lobbying by special interests to dilute provisions of progressive legislation intended to give people with a criminal record a fairer chance in the workplace. – ML
The District Attorney of Oneida County (WI) has decided not to file criminal charges against forty teenagers implicated in a widespread sexting scandal in the Rhinelander school district. His decision was reportedly based on concerns raised by parents and others about the collateral consequences of a criminal record. In a joint press release, school officials and the local sheriff noted that felony charges could have limited students’ future employment prospects:
Although Wisconsin law does consider incidents such as this as felony offenses, and it does not have disciplinary alternatives for such offense, criminal charges were not filed against the students involved, which could be detrimental to the future of the students and, in turn, could be harmful to our community as these students will not be allowed to enter certain occupations
Under Wisconsin law, anyone convicted of a felony, no matter how minor, is permanently barred from obtaining over 100 professional licenses, and subject to many other adverse effects that may last a lifetime.
Instead of charging the students criminally, the school district is bringing in a Wisconsin Department of Justice special agent to give presentations to the students and parents about the seriousness of taking inappropriate photographs and distributing them on social media. Ten of the forty students who sexted on school grounds got one-day suspensions, and students who behavior violated the school athletic code were suspended for certain events.
The editor wonders whether such a resolution would be likely in an urban school setting.
Twenty years ago, criminal record background checks for employment were rare. Today, the easy accessibility of criminal records on the Internet, and the post-September 11th culture of heightened scrutiny, have contributed to a sharp increase in background checks of job candidates. If you’re applying for jobs in most industries, expect employers to ask about a criminal record at some point in the hiring process—and expect many of them to run a background check on you.
It’s a harsh reality for an estimated one in four U.S. adults who have some type of criminal record. Unfortunately, any involvement with the criminal justice system—even having minor or old offenses—could become a job obstacle for these 70 million Americans. Even if you’ve avoided a run-in with the law, you could still find yourself being unfairly screened out for a job due to an erroneous background check report. With thousands of private background check companies across the country that have varying levels of reliable information, inaccuracies in these reports are far too common.
Unknown to many job candidates, private background check companies and the employers relying on their reports are regulated by a federal consumer protection law called the Fair Credit Reporting Act (FCRA). Although more well-known in the credit report context, FCRA also applies to companies that produce criminal background check information, and gives job-seekers a number of protections.
An article on the front page of today’s New York Times describes the growing popularity of “ban-the-box” laws to help people with a criminal record get jobs. The article also discusses the massive hurdles to employment that many with a criminal conviction in their past — some of which are for minor offenses that are a decade or more old — face without such laws in place to ensure fair hiring practices.
The National Employment Law Project (“NELP”) keeps track of the growing number of states and cities that have adopted ban-the-box laws, including summaries of the laws and policies in those jurisdictions. NELP’s current guide to state and local ban-the-box laws (including coverage of legislative initiatives) can be found here.
From the article:
During the past several months, states and cities as varied as Illinois; Nebraska; New Jersey; Indianapolis; Louisville, Ky.; and New Orleans and have adopted so-called Ban the Box laws. In total, some 70 cities and 13 states have passed such laws — most in the past four years.
The laws generally prohibit employers from asking applicants about criminal records as an initial step in the hiring process and from running criminal background checks until job seekers are considered serious candidates for an opening.
Studies have found that ex-offenders, particularly African-Americans, are far less likely to be called back for job interviews if they check the criminal history box on applications, even though research has shown that those possessing a criminal record are no more apt to commit a crime in the workplace than colleagues who have never been convicted.
The Times has posted some interesting responses from the founders of the Pennsylvania-based Fair Employment Opportunities Project (and others) here. The attorneys behind the Project argue for additional restrictions on the use of criminal history information once it has been disclosed to employers:
While “Ban the Box” laws that forbid asking about a person’s criminal history are a good first step, we need stronger laws to empower job applicants with arrest or conviction records to become self-sufficient through employment. Several states already have such statutes, including Pennsylvania, where the Fair Employment Opportunities Project is working to educate employers and the public about the law.
Pennsylvania’s statute [18 Pa.C.S. § 9125] could be a model for other states. It forbids employers from considering non-convictions (like acquittals) when making hiring decisions. Convictions may be considered only to the extent they relate to the applicant’s suitability for the job. And when employers reject applicants because of their records, they must give written notice — an important safeguard, because criminal record databases are notoriously error-ridden and ensnare even people who were charged but never convicted.