In March, we described a proposed federal rule that would expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  Specifically, OPM proposes for the first time to require individuals applying for federal employment or contracts to disclose whether they have participated in pretrial diversion programs in the last 7 years.  Our letter commenting on OPM’s proposal (reprinted below) points out that diversion is increasingly favored by states as a means of encouraging rehabilitation, and that this goal is advanced by the promise of avoiding the disabling collateral consequences and stigma that follow conviction.  In treating diversions like convictions, the OPM proposal would subvert the many benefits of diversion that have encouraged their increased use by prosecutors in recent years, including allowing for positive community perceptions of the justice system.

**Update (5/29/19): The federal government has withdrawn this proposal, as reported by the Washington Post. 

The letter cites research from the Restoration of Rights Project to show that diversion or deferred adjudication, or both, are authorized by statute in all but one state.  All but eight states provide for record-closing and restoration of rights after successful completion of these dispositions, and an increasing number of jurisdictions now prohibit their consideration by employers and licensing boards.  At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, OPM should be moving to reduce—rather than increase—the collateral consequences of diversion.

Finally, the letter argues that OPM’s proposal is ambiguous about whether prosecutor-directed diversion or sealed diversions must be disclosed.  Uncertainty about what diversion records must be disclosed could dissuade people from applying for work (or subject them to unfair punishment for non-disclosure).  Such an ambiguous disclosure requirement will be hard to enforce, and susceptible to court challenge.

Our public comment, urging the federal government to withdraw its proposed requirement, is reprinted in full below.  We have also added our name to a comment filed by a large number of organizations concerned with improving opportunities for people with a criminal record.

Public comments may be submitted by April 23, 2019 directly at this link or through Generation Progress’ comment tool.

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April 18, 2019

National Bureau of Background Investigations
U.S. Office of Personnel Management
1900 E Street, N.W.
Washington, D.C. 20415
Attn:  Donna McLeod

Re:  Comments to OPM’s Declaration for Federal Employment Form (OF306)

Dear Ms. McLeod,

Our organization, the Collateral Consequences Resource Center, promotes public engagement on issues raised by the collateral consequences of arrest or conviction.  We document and analyze law reform efforts aimed at facilitating reintegration for people with a criminal record.

We are writing in response to the Office of Personnel Management’s (OPM) request for comments on its proposed revision of the Declaration for Federal Employment, Optional Form (OF) 306, the form for applicants for federal employment and contract work.  See 84 Fed. Reg. 5733 (February 22, 2019).  Specifically, we would like to offer comments on the proposed requirement that applicants disclose whether they have participated in “a pretrial intervention or diversionary program or the like” in the last 7 years.  For ease of discussion, we will refer to these dispositions as “pretrial diversion.”

For the following reasons, we encourage OPM to withdraw the proposed requirement for disclosure of diversions.

1. Diversion is Increasingly Favored by States as a Means of Encouraging Rehabilitation

Pretrial diversion refers to a procedure or procedures in which a prosecutor or court agree with a person accused of a crime to resolve criminal charges without a conviction, if the person complies with certain conditions.[1]  Thus broadly defined, pretrial diversion is authorized by statute in 49 states and the District of Columbia.[2]  It can also be authorized by prosecutorial consent (as in most situations in the federal system[3]) or by a court rule.  It may or may not require a person to plead guilty as a condition of participation. The trend in the states in the past decade has been to expand the availability of these non-conviction dispositions,[4] “to rehabilitate individuals who have committed crimes, to make reparation to crime victims, and to advance public safety.”[5]  Their rehabilitative purpose is advanced by the promise of avoiding the disabling collateral consequences and stigma that follow conviction.

There are two primary types of diversions.  In a pure diversion, a prosecutor offers and a person agrees to be placed in a community-based diversion program and comply with certain conditions.  In a deferred adjudication—available in all but 13 states in at least some cases—a person who has been charged typically agrees to plead guilty, and the court agrees to place the person on probation and not enter a conviction.[6]  After successful completion of a diversion program, the charges are dismissed and the case is terminated. In most states, the person will become eligible to have the arrest and court records closed to the public via expungement, sealing, or some similar procedure.[7]

The American Law Institute, the leading national law reform organization, advocates for diversionary dispositions in its 2017 Model Penal Code: Sentencing (deferred prosecution and deferred adjudication), with roots dating back to the 1960s and 1970s.[8]  The American Bar Association, National District Attorneys Association, and major national defender organizations have joined together to urge jurisdictions to support and fund prosecutors and others seeking to develop “deferred adjudication/deferred sentencing/diversion options that avoid a permanent conviction record” for a people deemed appropriate for a community supervision sentence.[9]

2. OPM’s Proposal Treats Diversions like Convictions

While state lawmakers, judges, and prosecutors favor diversionary dispositions in appropriate cases to help people avoid the restrictions and stigma of a conviction, OPM’s proposal disfavors them by treating them like convictions.

Specifically, the proposal would amend the federal employment and contracting form, OF 306, to require an applicant to disclose not only whether the applicant has current pending charges, or whether, during the last 7 years, the applicant has been convicted of a crime, served time in jail or prison, or been on probation or parole, but also—for the first time—whether the applicant has been “subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”  See 84 Fed. Reg. 5733 (February 22, 2019).  Disclosure, and the likely resulting discrimination, would subvert the many benefits of diversion that have encouraged their increased use by prosecutors in recent years, including “allowing for positive community perceptions of the justice system.”[10]

At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, OPM should be moving to reduce—rather than increase—the collateral consequences of diversion (as Indiana and Wisconsin did in 2018 when they prohibited licensing boards from considering arrests not resulting in conviction, or California and Nevada did in 2017 when they prohibited employers from considering an applicant’s successful completion of diversion).[11]

3. OPM’s Proposal is Ambiguous About What Must be Disclosed

The language of the OPM proposal does not make clear exactly what must be disclosed. First, the proposal does not make clear whether prosecutor-directed diversions are covered.  While the language of OPM’s notice says “OPM is proposing to add a requirement to admit charges for which one has been placed into a pretrial intervention or diversionary program or the like,” the question itself says disclosure is required if the applicant has been “subject to judge or court specified conditions requiring satisfactory completion before a criminal charge has been or will be dismissed.”  Are a prosecutor’s diversion conditions “court specified”?

Second, the proposal does not make clear if diversions must be reported if the record has been sealed under state law.  While the OF 306 states that a person may omit “any conviction for which the record was expunged under Federal or state law,” the proposal does not amend that section or otherwise make clear whether a person whose diversion was expunged must nonetheless disclose it.  Whether or not it is intentional, the failure to authorize applicants to omit expunged diversions perversely results in harsher treatment of diversions than convictions.  Moreover, the term “expunge” does not have a commonly accepted definition, and many states use other terms such as seal, erase, annul, or set-aside to describe record-closing relief.[12]  States also give differing effect to these terms, ranging from a limited sealing to full destruction of the record.[13]  Assuming expunged diversions may be omitted on the same basis as expunged convictions, may these dispositions also be omitted?[14]

This lack of clarity has real consequences.  A false statement on the OF 306 can be grounds for rejection, termination, or criminal prosecution for false statements under 18 U.S.C. § 1001.  Therefore, uncertainty about whether or not prosecutor-directed or sealed diversions must be disclosed could dissuade people from applying for work (or subject them to unfair punishment for non-disclosure).  Moreover, such an ambiguous disclosure requirement will be hard to enforce, and susceptible to court challenge.

Because the proposed requirement for disclosure of diversions is ill-advised as a matter of policy and legally problematic, we respectfully encourage OPM to withdraw it.  At the very least, OPM should amend the language to clarify whether prosecutor-directed diversions and records that have been sealed must be disclosed.

Thank you for your consideration.

Sincerely,

Margaret Colgate Love
Executive Director
Collateral Consequences Resource Center

[1] See Pretrial Diversion from the Criminal Justice Process, 83 Yale L.J. 827 (1974).

[2] See Pretrial Diversion, National Conference of State Legislatures (September 28, 2017), available at http://www.ncsl.org/research/civil-and-criminal-justice/pretrial-diversion.aspx (providing statutes for 48 states and the District of Columbia); S.D. Codified Laws §§ 23A-3-35, 23A-3-36, 23A-27-12.2, 23A-27-13.  The one state that apparently lacks diversion by statute, North Dakota, provides for diversion by court rule.  See N.D. R. Crim. P. 32.2.

[3] See United States Attorneys Manual, § 9-22.000 et seq.; 18 U.S.C. § 3607(a).

[4] See Margaret Colgate Love, Alternatives to Conviction: Deferred Adjudication as a Way of Avoiding Collateral Consequences, 22 Fed. Sent’g Rep. 6, 7 (2009) (finding that deferred adjudication schemes “are statutorily authorized in over half the states”).

[5] See Model Penal Code: Sentencing §§ 6.03, cmt. (2017).

[6] See Margaret Love, Joshua Gaines & Jenny Osborne, Forgiving & Forgetting in American Justice: A 50-State Guide to Expungement and Restoration of Rights, Collateral Consequences Resource Center, at 13-14 (August 2018), available at https://ccresourcecenter.org/tag/forgiving-and-forgetting/.

[7] Our research indicates that 42 states allow record-closing for diversion, including deferred adjudication where available, either explicitly or by allowing record-closing for dismissals without excluding diversion or deferred adjudication (some states have additional eligibility requirements such as waiting periods and ineligible offenses).  See Restoration of Rights Project, Collateral Consequences Resource Center, Chart 4 (“Judicial Expungement, Sealing, and Set-aside”), available at https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/; State Profiles, available at http://restoration.ccresourcecenter.org/.  Eight states do not provide for record-closing and restoration of rights after successful completion of diversion and/or deferred adjudication.  Id.  Even federal law provides for expungement of diversions, though on an admittedly fairly limited basis.  See 18 U.S.C. § 3607(a) and (c) (deferred adjudication for first misdemeanor drug possession, and expungement if the defendant was under age 21 at the time of the offense).

[8] See Model Penal Code: Sentencing §§ 6.03, 6.04 (2017); Love, Alternatives to Conviction, supra note 4, 22 Fed. Sent’g Rep. at 7 (‘‘In the 1970s, many states adopted deferred adjudication laws that were evidently inspired by the Corrections Articles of the Model Penal Code.”).

[9] ABA 2007 Report with Recommendation #103A (Commission on Effective Criminal Sanctions, co-sponsored by the National District Attorneys Association, National Association of Criminal Defense Attorneys, National Legal Aid and Defenders Association).

[10] See Erica McWhorter & David LaBahn, Confronting the Elephants in the Courtroom Through Prosecutor Led Diversion Efforts, 79 Alb. L. Rev. 1221, 1239 (2016).  While it is true that a number of states allow closed records to be reviewed for law enforcement employment and other sensitive positions, federal law already accounts for this concern through more rigorous background investigations and disclosure forms for sensitive, national security, and public trust positions.

[11] Ind. Code § 25-1-1.1-6(d); Wis. Stat. § 111.335(4) (certain offenses exempted); Cal. Gov’t Code § 12952; Nev. Rev. Stat. Ann. § 284.281(4) (covering public employment, with exceptions).

[12] See Love, Alternatives to Conviction, supra note 4, 22 Fed. Sent’g Rep. at n.4; Love et. al, Forgiving & Forgetting in American Justice, supra note 6, at 25 n. 4.

[13] See Restoration of Rights Project, Chart 4, supra note 7.

[14] This ambiguity extends to convictions as well, a further problem with the OPM policy that we note but will not at this point address further.  It is a problem in federal law that is not confined to the OPM policy.