This is the title of an important new article published by Alessandro Corda in the Howard Law Journal proposing a radical way of addressing the malign social impact of our current policies on public access to arrest and conviction records. Corda traces the evolution of record dissemination policies and practices since the 1950s, contrasting the American and European experience where “informal collateral consequences” are concerned. He critiques “partial remedial measures” like expungement and certificates of rehabilitation, and argues for making publication of a defendant’s record an “ancillary sanction” ordered (or not) by the court at sentencing.
While this solution may at first blush seem a bit ambitious, there are states (like Wisconsin) whose sentencing courts can offer the promise of set-aside and expungement upon successful completion of sentence, and that is indeed how the federal Youth Corrections Act operated before its repeal in 1984.
At the very least, Corda makes a convincing case that strong measures are necessary to mitigate the permanent stigma of a criminal record in the information age. The historical and international material will be of particular value to those currently working on this problem in legislatures across the country. Here is the abstract:
A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction. The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences. [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.]
In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief. As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences. The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone searching for innovative ways to lighten the burden of a criminal record.
An empirical study of Ohio’s judicial “certificate of employability” 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.
Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.
In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.
At least on paper, New York City has the strongest legal protections in the Nation for people with a criminal record, and for employers and others who are willing to give them a chance. The State’s vaunted certificates of relief remove mandatory legal disabilities and certify rehabilitation, and are available to any and all defendants. Governor Cuomo has shown his interest in restoration of rights by adopting a broad reform agenda, and the City’s ban-the-box law is among the broadest in the Nation. Both State and City have broad human rights laws intended to protect people with a criminal record from unwarranted discrimination. But with all this web of beneficent laws and rules and policies, some City agencies apparently still have not gotten the word.
In a decision handed down on July 12, a New York judge chastised the City’s Department of Education for refusing to license a woman as a school bus attendant based solely on a 2010 conviction for petty larceny, an action for which he found no basis in fact or law. Read more
Washington State courts are now authorized to grant certain individuals a Certificate of Restoration of Opportunity (CROP), which prohibits many state licensing entities from disqualifying the holder solely based on his or her criminal history. A CROP also protects employers and housing providers from liability for negligent hiring and renting. The new certificate authority was created by HB 1533, which was signed by Governor Jay Inslee on March 31 and took effect last month.
In light of the trend toward giving courts responsibility for restoring legal rights and certifying rehabilitation, we took a closer look at who is eligible for this newest judicial certificate and the benefits it confers. Read more
A new empirical study provides important evidence that “certificates of recovery/relief” can be effective in facilitating employment opportunities for people with a criminal record. Two University of South Carolina criminologists have concluded that employers in Ohio are willing to look beyond the criminal histories of job applicants who have been issued a Certificate of Qualification for Employment (CQE) from a state court. The study, which involved sending fictitious resumes to over 300 employers in the Columbus area, found that individuals with a felony drug conviction were more than three times as likely to receive a job interview or offer if they had received a CQE.
Although the study’s findings are described as preliminary, they fill an important gap in our knowledge of the effectiveness of Ohio’s CQE, and by inference of similar certificate schemes in other jurisdictions. Such schemes have to date been justified on the basis of assumptions and anecdotal evidence, with little hard data to vouch for their potency. The abstract follows:
Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis. The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer.
Lincoln Caplan, formerly of the editorial staff of The New York Times and now on the faculty at Yale Law School, has written a thoughtful piece about collateral consequences for the New Yorker. It points out why Governor McAuliffe’s order restoring the vote to Virginians with a criminal record doesn’t help them deal with the myriad of legal restrictions that deny them opportunities, or with what he calls “a relentless form of social stigma.” He concludes that relief measures like expungement, which are based on concealing the fact of conviction, may be less effective for felony-level crimes than more transparent measures like pardon or certificates of rehabilitation. He concludes that “Forgiving, when someone has earned it, gives an individual a fresh start and, just as important, it helps restore the idea of rehabilitation in American justice.”
A featured piece by a well-regarded journalist in such a sophisticated venue may do a lot to bring the problem of collateral consequences to the attention of people in a position to do something about them. We reprint portions of the article below. Read more
On April 7 a panel of the Court of Appeals for the Second Circuit heard argument in United States v. Jane Doe (Jane Doe I). At issue in that case is whether U.S. District Judge John Gleeson acted within his authority when he expunged the conviction of a woman he had sentenced some 14 years earlier, based on his finding that her conviction had proved an insurmountable bar to the jobs in home health care for which she was qualified. Judge Gleeson directed that the government seal the records of Ms.Doe’s conviction, stating that he had sentenced her “to five years of probation supervision, not to a lifetime of unemployment.” The government appealed, arguing that a federal court has no authority to expunge or seal a conviction record, particularly the record of a valid conviction. Briefs in the case can be viewed here.
The panel did not appear persuaded by the government’s argument that the Supreme Court’s 1994 decision in Kokkonen v. Guardian Life, 511 U.S. 375 (1994)(refusing ancillary jurisdiction to enforce state law civil claims), meant that federal courts have no jurisdiction to expunge the record of a federal criminal case. The import of the government’s argument would be to overrule the Circuit’s leading expungement case from the 1970s, United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977), which held that federal courts have ancillary jurisdiction to grant expungement on equitable grounds in extraordinary circumstances. No judge on the panel expressed any support for overruling Schnitzer, and the government seemed reluctant to ask for it. At the same time, Schnitzer involved expungement of an arrest that the government did not pursue, not a valid conviction. That distinction seemed to have some appeal for one judge on the panel, who suggested that the holding in Schnitzer might not apply where conviction as opposed to arrest is at issue.