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%.
On March 28, Congresswoman Eleanor Holmes Norton (D-DC) introduced a bill that would give the District of Columbia exclusive authority, like states and U.S. territories, to grant clemency for criminal convictions under its laws. The District of Columbia Home Rule Clemency Act is part of Norton’s “Free and Equal D.C.” series. While D.C. law appears to give the mayor authority to grant clemency (D.C. Code 1–301.76), the U.S. Department of Justice (DOJ) has opined that the mayor’s clemency authority, if any, is very narrow, and that the President of the United States has authority to grant clemency in all D.C. criminal cases and exclusive authority for D.C. felonies. Under current practice, clemency petitions for D.C. convictions, like federal convictions, are submitted to the Department of Justice for the President’s consideration. In Norton’s bill, clemency includes pardons, reprieves, or commutations of sentence.
In introducing the bill, Norton said “The District, like states and territories, should have full control of its local criminal justice system, the most basic responsibility of local government. Since the D.C. Council has the authority to enact local laws, District officials are in the best position to grant clemency for local law convictions . . . . This bill is an important step in establishing further autonomy for the District in its own local affairs.” Norton’s full introductory statement is below. The text of H.R. 1765 has not yet been posted; we link the text of an earlier bill introduced by Congresswoman Norton in January 2016.
The following post is republished, with permission, from the National Clean Slate Clearinghouse listserv. In it Sharon Dietrich points out that even after criminal records have been expunged or sealed, they may still be reported by commercial criminal record providers in violation of the Fair Credit Reporting Act. (See our recent 50-state survey of record-closing laws, with their intended effect.)
You probably are wondering, “What is she talking about, with a subject line like that?” The answer to your thought is that I use this phrase when giving clients an important warning about the effect of their expungement orders. I am illustrating for them the idea that I can’t guarantee removal of their expunged cases from every possible background check, especially those prepared by commercial screener such as Sterling, HireRight, First Advantage and countless others.
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.
We have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement. This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records. The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004. We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials.
A brief overview of research methodology and conclusions follows.
A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life. Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse. In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety. One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.” Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.
At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions. The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.
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.
The surest way to avoid the collateral consequences of conviction is to avoid conviction in the first place. Pre-trial diversion programs offer defendants a chance to do just that, by having the charges against them dismissed before they even reach court. But there is often a catch that puts this benefit out of reach for those of limited means.
Diversion programs are controlled by prosecutors, who may condition dismissal of charges on the defendant’s participation in educational, rehabilitation, or community service programs for which the defendant must foot the bill. These costs, along with attendant administrative fees set by prosecutors, can price out many of the low-income defendants who stand to benefit most from the second chance that diversion promises. Even if defendants can come up with the necessary cash for participation, they may find the promised relief illusory. Because prosecutors have near total control over the programs, deciding who is eligible and what is required, defendants must first convince prosecutors that they are worth taking a chance on before the opportunity will be offered.
An illuminating two-part expose’ in last week’s New York Times (“No Money, No Mercy“) takes a close look at how these programs operate, and the fate of defendants who have worked to earn a second chance but find themselves ultimately unable to afford it or benefit from it. Since prosecutorial control of the programs obscures their operation to a large extent, The Times “gathered information, statutes and fee schedules on 225 diversion programs in 37 states and interviewed more than 150 prosecutors, defense lawyers, defendants and experts,” to develop a sobering national overview. The piece documents how the burden of a criminal record is imposed disproportionately and unfairly on people of color and limited means through unreviewable decisions of prosecutors, effectively re-creating the peonage that replaced slavery immediately after the Civil War.
You can read The Times’ full expose, “After a Crime, the Price of a Second Chance,” here. The second part of the series focuses on Dothan County, Alabama to detail some of the more egregious racial and class inequities that result from high fees and prosecutorial control. See “Alabama Prosecutor Sets the Penalties and Fills the Coffers,” linked here. A follow-up piece published on January 6 (“Forcing a District Attorney’s Hand”) documents the difficulties experienced by the Times reporter and photographer in obtaining the Dothan County story. The Times published a Letter to the Editor commenting on the series by CCRC Executive Director Margaret Love.
We summarize the broad points of the series below, but highly recommend reading it in full.
Federal judges have begun speaking out about the burdens imposed by severe collateral consequences and the limited ability of courts to mitigate the resulting harm. This is particularly true in the Eastern District of New York, where some judges have openly lamented the lack of statutory federal expungement authority and have used their opinions and orders to call upon the legislature to ensure that those with criminal records are given a fair shot at success. Among the more vocal critics of collateral consequences is recently retired Judge John Gleeson, who last year took the extraordinary step of expunging one woman’s criminal record despite acknowledged uncertainty about his authority to do so. In another case, Judge Gleeson crafted an alternative more transparent form of relief, a federal “certificate of rehabilitation.” (You can find our extensive coverage of these cases here).
In a new article titled “Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?,” Nora Demleitner takes a look at how the criticisms of members of the federal bench may shape the framework in which second chance laws and policies are considered, both at the legislative and judicial level, and how they may or may not affect the prospect of significant reform.