Departing from its customary reluctance to find fault with laws singling out convicted sex offenders for harsh treatment, after they have completed their sentences, the Supreme Court in Packingham v. North Carolina yesterday struck down a state law making it a felony for registered sex offenders to access commercial social networking websites. The petitioner in Packingham, a registered sex offender, violated the North Carolina law when after learning that a traffic ticket against him had been dismissed in court he posted the following message on his Facebook.com personal profile:
Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent….Praise be to GOD, WOW! Thanks JESUS!
Packingham was convicted and thereafter challenged his conviction on First Amendment grounds, arguing that the law violated his right to free speech.
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.
The following piece by Beth Avery was originally published on the blog of the National Employment Law Project.
Building upon the successes of 2016, legislatures across the country are off to a strong start this year toward adopting laws that increase fairness in hiring and employment opportunities for the one-in-three U.S. adults with arrest or conviction records.
This progress should come as no surprise—in recent years broad support has emerged from coast to coast for a number of reforms that address the criminal justice system and its disproportionate impact on people of color. Along with critical efforts to increase expungement and sealing, adopt bail and sentencing reforms, and expand voting rights for people with convictions, a powerful movement is also advancing two crucial policies that improve access to employment for people with records: “fair chance hiring” or “ban the box” laws and reforms to occupational licensing requirements.
High drama on the final day of the West Virginia legislative session produced a last minute compromise between House and Senate over SB76, the WV Second Chance for Employment Act. If the governor signs the bill into law, individuals convicted of non-violent felonies will be able to return to court after 10 years to have their convictions reduced to misdemeanors. [NOTE: The bill was signed into law on April 25.]
For several years the WV legislature has been considering how to improve employment opportunities for people with non-violent convictions, but the House and Senate had different ideas about how to do it. The Senate approach would have expanded the state’s expungement law, which now applies only to youthful misdemeanors, while the House preferred reducing nonviolent felonies to misdemeanors. As the seconds ticked toward midnight on April 8, the Senate agreed to accept the “forgiving” approach favored by the House, creating a new category of “reduced misdemeanor” that need not be reported on employment applications but will be reflected in background investigations.
Second-chance mechanisms in California are working to increase the employment prospects and earning potential of Californians with criminal records according to a soon-to-be-published study by a team of researchers from U.C. Berkeley School of Law.
The study, by Jeffrey Selbin, Justin McCrary & Joshua Epstein, tracked over an eleven-year period the employment status and annual income of 235 Californians who had their convictions set aside or their offense level reduced from felony to misdemeanor, with the aid of the East Bay Community Law Center’s (EBCLC) Clean Slate Clinic. The study finds a modest increase in the employment rate of those in the sample (most were already employed, albeit in low-wage jobs). More significantly, however, after three years their average real earnings increased by roughly a third.
A new nation-wide study of “ban-the-box” policies in public employment finds that they have been generally effective in increasing employment opportunities for people with a criminal record. Significantly, the study finds no evidence that these policies encourage reliance on racial stereotyping where public employment alone is concerned — though the author acknowledged, in an interview with the CCRC, that “the evidence is mixed” when private employment is also considered.
“Ban-the-box” policies, which delay employer inquiries about an applicant’s background until a later stage in the hiring process, have become a popular reform measure at least in part because it can be implemented on a systemic basis. As of January 2017, there were 25 states, DC, and over 150 municipalities that had adopted ban-the-box policies, most of them applicable only to public sector employment. But despite the increase in ban-the-box policies, little research has been done into their effectiveness in improving the employment prospects of justice-involved individuals. Some jurisdictions such as Atlanta, GA and Durham, NC have reported dramatic improvements in the percentage of convicted individuals hired. However, these local outcomes may not reflect the national experience.
Research on the effects of ban-the-box policies by Connecticut College economist Terry-Ann Craigie suggests that they have dramatically improved the public-sector employment prospects of individuals with a criminal record nation-wide. Professor Craigie also found that these salutary effects have generally not been offset by a corresponding increase in racial profiling. Overall, her study (whose results are not yet published) concludes that ban-the-box policies have increased the odds of getting a public sector job for those with a criminal record by close to 40%.
An empirical study of Ohio’s judicial “certificate of qualification for employment” finds that it is “an effective avenue for lessening the stigma of a criminal record” in the context of employment and licensing. The certificate, authorized in 2012, lifts mandatory legal restrictions and limits employer liability for negligent hiring claims, with the goal of ensuring that employment and licensing decisions about certificate holders are on a case-by-case basis, on the merits. The court-issued certificate is available to anyone with any Ohio conviction, no matter how serious, as long as they have completed their sentence and can show that they are barred from employment or licensure by a “collateral sanction.” There is a short waiting period, and applicants must show that they pose no public safety risk.
The Ohio certificates are part of a recent trend toward authorizing courts to grant certificates of restoration of rights to people with conviction records. It seems that states are far more likely to authorize this more transparent form of relief for those convicted of felonies, reserving record-sealing to misdemeanor or non-conviction records.
This morning the Supreme Court considered whether sex offenders may constitutionally be barred from internet access to social networking sites like Facebook and Twitter. Lester Packingham, who was required to register as a sex offender after pleading guilty to taking “indecent liberties” with a minor when he was a 21-year-old college student, ran afoul of a North Carolina criminal statute when he praised God on Facebook for the dismissal of his traffic tickets.
At least five Justices expressed some degree of skepticism over broad restrictions on what Justice Elena Kagan called “incredibly important parts” of the country’s political and religious culture, some questioning the premise that the law is necessary to prevent sexual abuse of minors. Justice Kennedy noted the many ways in which the North Carolina statute seems to violate the First Amendment. “Let me count the ways,” he said, invoking Elizabeth Barrett Browning.
Some justices noted that criminal convictions can have lasting consequences. “Some states prohibit ex-felons from voting,” Justice Ruth Bader Ginsburg said. “Some states and the federal government prohibit keeping and bearing arms. Those are constitutional rights.” David T. Goldberg, a lawyer for Mr. Packingham, said those restrictions had a basis in history and logic. They were nothing like “taking away people’s First Amendment rights,” he said.
In this early post from SCOTUSblog, Amy Howe notes high points of the argument, whose full transcript of the argument is posted here. Adam Liptak predicted at the New York Times that the North Carolina law will be found unconstitutional before the end of the Court’s Term in June. What this might portend for other restrictions on sex offenders’ constitutional rights – like the exclusionary zones, also imposed by North Carolina, and also held unconstitutional on First Amendment grounds by the Fourth Circuit in December – remains to be seen.
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:
Last week the Fourth Circuit held unconstitutional two key provisions of a North Carolina law that made it a felony for sex offenders to be within 300 feet of certain premises that are “intended primarily for the use, care, or supervision of minors” or on premises where minors “gather for regularly scheduled educational, recreational, or social programs.”
The three-judge panel held that the first provision was overbroad under the First Amendment, while the second was unconstitutionally vague. Interestingly, the state more or less ceded the First Amendment issue by failing to offer any evidence to meet its burden of proof regarding whether the law advanced the state’s interest in protecting minors. This despite the fact that the district court warned the state in advance that failing to offer such evidence would be fatal to its defense of the provision.