Author: CCRC Staff

Editorial staff of the Collateral Consequences Resource Center

May background screeners lawfully report expunged records?

The following post, by Sharon Dietrich of Community Legal Services of Philadelphia, addresses the question whether reporting of an expunged or sealed case by a commercial background screener violates the Fair Credit Reporting Act.  Sharon is a national authority on FCRA as applied to criminal records, and we are pleased to reprint her analysis below.  The Fair Credit Reporting Act (FCRA) governs the accuracy of criminal background checks prepared by commercial screeners.  While there is little case law holding that the FCRA prohibits commercial screeners from reporting expunged or sealed cases, there is little doubt that this is the case. Two FCRA provisions are applicable to this issue. Commercial screeners must use “reasonable procedures” to insure “maximum possible accuracy” of the information in the report.  15 U.S.C. §1681e(b). A commercial screener reporting public record information for employment purposes which “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either notify the person that the public record information is being reported and provide the name and address of the person who is requesting the information at the time that the information is provider to the user or the commercial screener must maintain strict procedures to […]

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Florida’s vote restoration process held unconstitutional

In a strongly-worded opinion, a federal judge has ruled that Florida’s method of restoring voting rights to individuals convicted of felonies violates the First and Fourteenth Amendments.  In Hand v. Scott, a suit brought by seven individuals either denied restoration of rights by the State Clemency Board or ineligible to apply, U.S. District Judge Mark E. Walker held that Florida’s “arbitrary” and “crushingly restrictive” restoration scheme, in which “elected, partisan officials have extraordinary authority to grant or withhold the right to vote from hundreds of thousands of people without any constraints, guidelines, or standards,” violates rights of free speech and association, and risks viewpoint and other discrimination. As reported in this local press article, Governor Scott’s office issued a statement late Thursday, hinting at an appeal.  Scott was the principal architect of the current system that requires all applicants for clemency to wait at least five years after they complete their sentences, serve probation and pay all restitution, before they may be considered for restoration of the vote and other civil rights.  Throughout his 43-page ruling, Judge Walker cited the arbitrariness of Florida’s system, noting that people have been denied their voting rights because they received speeding tickets or failed to […]

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Michigan sex offender registration law held unconstitutional

On January 24, the Michigan Supreme Court held the state’s sex offender registration scheme unconstitutional on due process grounds as applied to one Boban Temelkoski.  Temelkoski had pleaded guilty under a youthful offender statute with the expectation that no collateral consequences would attach to the disposition if he successfully completed its conditions.  However, several years later a registration requirement was enacted and applied retroactively to his case.  Because the court decided Temelkoski’s case on due process grounds, it did not need to address arguments that application of the registration statute to him constituted constitutionally impermissible punishment.  However, the court hinted in dicta how it might decide that issue, stating that “It is undisputed that registration under SORA constitutes a civil disability.”  While a win is a win, we must wait another day for a decision on the constitutionality of Michigan’s registration scheme under the Ex Post Facto Clause and the State’s version of the Eighth Amendment. An analysis of the Temelkoski decision by Asli Bashir, a 2017 graduate of Yale Law School, follows.

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New report: Roundup of 2017 expungement and restoration laws

A new report from the Collateral Consequences Resource Center shows that states across the country are continuing to expand opportunities to avoid or mitigate the adverse effects of a criminal record.  If anything, the trend first documented last winter in Four Years of Second Chance Reforms, 2013 – 2016 has accelerated in 2017.  Second Chance Reforms in 2017 identifies 23 states, blue and red, that in the past year broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  Using research from the Restoration of Rights Project, the report describes specific changes to the law in each state during the past year along with relevant citations, analyzing and comparing approaches taken by different states. The most frequent type of reform involves limiting public access to criminal records: new sealing or expungement laws were enacted in several states that previously had none, eligibility requirements were relaxed for many existing record-sealing authorities, and new limits were imposed on access to non-conviction and juvenile records – all making it easier for more individuals to get relief at an earlier date. However, there is remarkably little consistency among state record-closing schemes, and most states […]

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CCRC files amicus brief in Illinois sex offender case

The CCRC has filed an amicus brief in the Illinois Supreme Court in support of the appellant in People v. Bingham, a case challenging the constitutionality of a state law requiring registration as a “sexual predator” based on the commission of a non-sexual offense.  The relevant facts of the case are as follows. Jerome Bingham was convicted of attempted sexual assault in 1983 and served several years in prison on that charge.  At the time, Illinois did not have a sex offender registration requirement.  Thereafter, Bingham was convicted of a number of petty drug and theft offenses.  In 2012, Illinois enacted an amendment to its sex offender registration act (SORA) providing that its registration requirement would apply retroactively to anyone who had previously committed a qualifying sex offense and, subsequent to the 2012 act, committed any felony.  In 2013, Bingham stole goods worth $72 from a K-Mart storage lot.  Although this would ordinarily have been a misdemeanor, the fact that he had a prior similar offense permitted it to be charged as a felony, which it was, thereby subjecting him to the sex offender registration requirement.

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