On Monday the Department of Housing and Urban Development (HUD) announced that housing policies that exclude people with criminal histories may be illegal under the federal Fair Housing Act (FHA) if the policy fails to consider the nature, severity, and recency of the criminal conduct and is not narrowly tailored to protect residents and property. The new HUD guidance, which applies to private landlords and realtors as well as to public housing authorities (PHAs), stresses that exclusions based solely on arrest records violate the FHA, which prohibits housing discrimination based on race, color, national origin, and other protected classes.
The new guidance should end landlord reliance on electronic background checks to automatically exclude potential renters or purchasers, and greatly expand housing opportunities available to people with criminal histories, whether or not they are members of classes specifically protected by the FHA. As the New York Times reported on Monday:
Lawyers who represent former prisoners said they expected HUD’s stance to lead landlords to revise their screening policies to avoid litigation. The guidance … could also lead to more and stronger lawsuits against those who continue to deny housing based on criminal history.
Searching for information on whether people with a criminal record may encounter problems traveling to Mexico, we found nothing relevant on the website of the Mexican Embassy in the U.S.. The State Department website contains only a very general warning:
Prior Criminal Convictions: U.S. citizens should be aware that Mexican law permits immigration authorities to deny foreigners entry into Mexico if they have been charged or convicted of a serious crime in Mexico or elsewhere.
However, the website of the Mexican Embassy in Canada explains Mexico’s policy in somewhat greater detail, listing the crimes that are likely to result in a refusal of entry:
In his final week on the bench, in an opinion that may in time prove among his most influential, U.S. District Judge John Gleeson issued a “certificate of rehabilitation” to a woman he had sentenced 13 years before. See Jane Doe v. United States, No. 15-MC-1174 (E.D.N.Y., March 7, 2016) (Jane Doe II). The opinion breaks new ground in holding that federal courts have authority to mitigate the adverse effects of a criminal record short of complete expungement. Along the way, it confirms that a district court may use its inherent equitable powers to expunge convictions in “extreme circumstances,” an issue now on appeal to the Second Circuit in Judge Gleeson’s earlier expungement case. (Jane Doe I has been calendared for argument on April 7.) The opinion also finds a role for federal probation to play, including under New York State’s “robust” certificate system, which lifts mandatory state law bars to employment and other opportunities. It does all of this in a manner that should make it hard for the government to appeal, since “this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.”
Joe Palazzolo at the Wall Street Journal blog noted that
More than a dozen states and the District of Columbia issue certificates to certain ex-offenders who have shown their days of crime are behind them, usually by remaining offense-free for a long stretch. . . . .
There is no equivalent federal certificate. So Judge Gleeson invented his own.
1.5 million children are arrested each year. At some point in each of these children’s lives, the record of their arrest or court involvement will impose barriers to education and employment. At least two-thirds of post-secondary institutions conduct background checks of prospective students. More than 90% of employers conduct background checks. And, many licensed occupations and professions require FBI background checks. Yet, the reality is, these background checks are often incomplete or inaccurate and they are always stigmatizing.
The justice system has long recognized that children are different from adults, and historically the public had little or no access to the records of juvenile adjudications. That is no longer the case. The effect of juvenile records now punish kids well into adulthood.
Juvenile Law Center’s recent policy paper, Future Interrupted, urges that children must be free to grow up unfettered by their childhood mistakes—to have their court involvement remain in the past so they can move forward with their lives. This paper explores how various background check systems disseminate juvenile record information, using real-life stories from youth to illustrate the devastating effects of record retention and dissemination.
Child care workers in every state are subject to rigorous criminal background checks that may result in mandatory bars to employment. Until now, each state has been generally free to define its own standards regarding screening for criminal history. That is about to change.
By September of next year, states receiving funds under the federal Child Care and Development Block Grant (CCDBG) Act of 2014 (which appropriates over $ 2.5 billion each year to fund state child care and child welfare programs) must adopt minimum federally-defined screening standards for child care workers or risk loss of funding. The revised statutory standards subject current and prospective child care workers to a multi-level criminal background check and disqualify from employment anyone convicted of crimes against children, specified violent crimes, and drug crimes within the past 5 years. States may opt to waive the disqualification for drug crimes on a case-by-case basis, but they are also free to adopt conviction-based disqualifications that are more restrictive than the law requires.
If the new CCDBG standards were not bad enough, the Department of Health and Human Services has issued proposed rules that would make them worse. On Monday, the CCRC joined a coalition of organizations led by the National Employment Law Project in calling on HHS to rethink proposed rules that would implement the new screening requirements. A formal comment filed by the coalition details the ways in which the proposed rules fail to adequately address the disparate impact that the requirements could have on women, African Americans, and Latinos, and takes issue with requirements in the rules that are more exclusionary than the Act requires. Read more
The 50-state chart of judicial relief mechanisms from the NACDL Restoration of Rights Resource, which is also posted on this site, is a comprehensive survey of all authorities for judicial relief in the states and federal system. We wanted to bring it to our readers’ attention in light of the new federal interest in helping individuals with a criminal record overcome barriers to employment and licensing through clearing their records.
The National Clean Slate Clearinghouse, recently announced as part of President Obama’s reentry initiative, will “provide technical assistance to local legal aid programs, public defender offices, and reentry service providers to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.” This joint project of the Labor and Justice Departments will doubtless make it a first priority to survey the laws providing judicial and other relief in different states, to determine what sort of assistance lawyers will need to neutralize the adverse employment consequences of conviction, though the courts or otherwise. We hope these resources will prove useful in that effort.
“The barriers associated with having a criminal record do not just result in lifelong punishment for the parent with the record; they also can significantly limit a child’s life chances.” This is according to a new report by the Center for American Progress that examines the multi-generational effects of collateral consequences and the cycle of poverty and lost opportunity that those consequences perpetuate.
A parent’s criminal record can affect everything from a child’s emotional and physical well-being to future economic and educational outcomes. This is true even if the record was for a minor conviction that did not result in incarceration or, in some cases, an arrest that did not result in conviction at all.
A few days ago we received the following communique from Sharon Dietrich of Community Legal Services of Philadelphia, announcing a major litigation victory that will be welcome news across the country. On December 30 a unanimous 7-judge appeals court struck down the provisions of the Pennsylvania Older Americans Protective Services Act barring employment of people with criminal records in long-term health care facilities such as nursing homes and home health care agencies. The provisions declared unconstitutional on due process grounds law include lifetime employment bans for offenses as minor as misdemeanor theft, which Sharon notes “prevented many Pennsylvanians with criminal records from working in that entire burgeoning field.” The decision in Peake v. Commonwealth is here, and NPR’s report on the decision is here.