In the general election on November 4, 2014, California voters approved Proposition 47 with almost 60% of the vote. The Proposition will impact a wide range of sentences in California courts, and in the federal courts as well. A number of crimes that could be, and often were, charged in California as felonies, such as commercial burglary, forgery, grand theft, and certain drug crimes, will now be charged as misdemeanors, so that their effect on a person’s criminal history will be substantially diminished. A whole range of state felony drug offenses that could result in enhanced sentences in federal drug cases, even life imprisonment, or career offender status under the United States Sentencing Guidelines, have overnight become relatively harmless misdemeanors.
Significantly, Proposition 47 applies not only to persons who are currently “serving a sentence,” but also to those who have already fully served their sentences. This means that thousands of people with California felony convictions can under certain circumstances petition to have their case recalled, the crime re-designated a misdemeanor, and be resentenced. Once reduced to misdemeanors, qualifying crimes can be set aside under California Penal Code § 1203.4 (felony or misdemeanor cases sentenced to probation) or 1203.4a (misdemeanor cases sentenced to prison). These provisions allow a defendant to withdraw his plea of guilty, enter a not guilty plea, and have the judge dismiss the case. The record can then be expunged.
The importance of this retroactive effect of the new law cannot be over-estimated. While Proposition 47 gained popular support as a way of reducing California’s prison population, its broadest and most significant long-term effect may be to reduce the impact of collateral consequences on people in the community. For criminal defense lawyers, Proposition 47 offers a significant way to reduce a client’s exposure in subsequent prosecutions.
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.
One in four people in the United States has a criminal record. It’s a record used by the vast majority of employers, legislators, landlords, and licensing boards to craft policies and determine the character of an individual. In our electronic and data age, it typically does not disappear, regardless of how long it’s been or how far one’s come. The effect is an endless sentence, precluding countless opportunities to move on or move up in life.
But what about the other 75%?
We Are All Criminals is a documentary project that looks at the three in four people in the US who have the luxury of living without an official reminder of a past mistake. Participants tell stories of crimes they got away with. They are doctors and lawyers, social workers and students, retailers and retirees who consider how very different their lives could have been had they been caught; these confessions are juxtaposed with stories of people who were caught for similar offenses.
The stories are of youth, boredom, intoxication, and porta potties. They are humorous, humiliating, and humbling in turn. They are privately held memories without public stigma; they are criminal histories without criminal records.
The Fortune Society has charged a Queens landlord with civil rights violations for refusing to rent to people with a criminal record. From the New York Times report on the lawsuit filed in federal district court on October 30:
The lawsuit was brought against the owners and manager of the Sand Castle, a rental complex in Far Rockaway, Queens, with more than 900 apartments. The suit is one of the latest efforts in a nationwide push to make it easier to integrate people emerging from prisons back into their communities.
Concern over legal restrictions that hinder former prisoners’ efforts to find jobs and homes, long voiced by advocates of criminal justice reform, has taken on a broader urgency in recent years. Faced with stark fiscal pressures and rising criticism, many state governments have been rethinking practices that led to record levels of incarceration. Nationwide, about 700,000 people a year are currently being released from prison
Bars against former offenders in housing are said to be common around the country, although some landlords apply them only partially — barring sex offenders or arsonists, for example, or allowing those convicted of misdemeanors but not felons. The ability of landlords to easily look up criminal backgrounds on the Internet is believed to have increased the practice.
The Fortune Society’s press release on the suit can be found here.
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.