Author Archives: David Schlussel

David Schlussel

David Schlussel is the Deputy Director of CCRC, joining CCRC as a fellow in 2018. Before that, he served as a law clerk for the Honorable David O. Carter on the U.S. District Court for the Central District of California. He is a 2017 graduate of Berkeley Law, with an undergraduate degree from Yale. In law school, David represented clients in juvenile delinquency, school discipline, and clean slate proceedings as a clinical student for the East Bay Community Law Center. He also interned at public defender offices, taught courses in Juvenile Hall, and wrote a law review note on marijuana legalization, race, and collateral consequences.

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UK Supreme Court issues major ruling on employer access to criminal records

On January 30, 2019, the UK Supreme Court issued a significant decision largely upholding the UK’s categorical rules for when criminal records are disclosed to employers, but declaring two key rules incompatible with privacy rights under the European Convention on Human Rights.  The first rule in question, the so-called multiple conviction rule, automatically requires people who have more than one conviction to disclose all prior convictions on “standard” and “enhanced” records checks.  (As explained below, the UK disclosure scheme provides for three levels of checks, depending on the nature of the employment involved, the two specified being the more in-depth.)  The second rule requires that certain youth reprimands and warnings—administered without an admission or determination of criminal charges—be disclosed on both types of checks.  CCRC contributor Alessandro Corda posted about this case this past July when it was being considered by the court and Christopher Stacey, co-director of a charity organization that intervened in the case, who attended the three days of hearings, provided guest commentary.

The decision has significant implications for the employability of people with criminal records in the UK and could offer policy lessons for the US.  It is therefore worth discussing in some detail.

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Federal farm bill legalizes hemp, but bars participation based on criminal record

In the past six years, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on a person’s ability to achieve employment, housing, education and public benefits, and participation in civil society.  In stark contrast, Congress has not dealt with the problem of reintegration for more than a decade—either by reducing federal collateral consequences or by restoring rights to people with federal convictions.  The new farm bill continues this trend.

Enacted on December 20, 2018, the bill puts in place a new regulatory regime for the legalized cultivation and sale of hemp, a variety of the cannabis plant grown for industrial uses.  At the same time, the bill adds a new collateral consequence to federal law (which already has more than a thousand): anyone convicted of a drug-related felony may not participate in legalized hemp production for 10 years after their date of conviction, unless they are part of a hemp pilot program authorized by the 2014 farm bill.  An earlier version of the farm bill would have banned people with drug-related felony convictions from participating in hemp production for life, so the final bill is somewhat more progressive.

This new restriction reflects and contributes to an ongoing practice in which many jurisdictions that have legalized marijuana have excluded people with marijuana convictions from participating in this booming new industry.  Moving in the other direction, some jurisdictions such as California and Massachusetts—recognizing racial disparities and other injustices of the war on drugs—have enacted policies to clear marijuana convictions, allocate marijuana tax revenue to communities disproportionately affected by past drug policies, and encourage full participation in legalized marijuana industries by members of disproportionately affected communities.

Lawsuit challenges PA good-character requirement for cosmetologists

The Institute for Justice has filed a lawsuit on behalf of two women who were denied a license by the Pennsylvania Board of Cosmetology based on their criminal record, because they could not establish the necessary “good moral character.”  The IJ lawsuit illustrates the continuing difficulties faced by people with a past conviction in the workplace even when they are qualified and fully rehabilitated.  At the same time, in recent years Pennsylvania courts have not looked kindly on conviction-based employment bars, and last summer a board appointed by Governor Tom Wolf to review occupational licensing in the state issued a report critical of the good-character requirement in many licensing laws.  So perhaps the tide is turning.   

A piece in Forbes by IJ’s Andrew Wimer describes the case of Amanda Spillane, one of the two plaintiffs in the lawsuit:  As a teenager, Amanda started using drugs to self-medicate for mental health issues. Eventually, she turned to burglary to support her habit. She was caught, convicted and spent two years in a state correctional facility.  In prison, she overcame her addiction to drugs and found a new faith. After release, with help from family, she remained clean and worked a fast food job, before deciding to improve her prospects by taking a course to become an esthetician (a cosmetologist who focuses on the face), which required 300 hours of instruction and cost about $6,000.  In applying for a license, Amanda did not expect her past to be an issue; she knew cosmetology was a skill taught to women in prison.  But the Board of Cosmetology informed her that she lacked the requisite “good moral character” for licensure because of her criminal record. When she appealed, a board official “questioned whether her faith was real, demanded proof that Amanda gave regularly to charity, and asked why the people who had provided letters of recommendation had not traveled the two hours to the hearing to testify in person.”  Her appeal was denied.

On December 12, 2018, IJ filed suit on behalf of Amanda and Courtney Haveman—another Pennsylvania woman similarly rejected for a license—challenging the Pennsylvania law that requires applicants for esthetician, nail technician, and natural-hair barber licenses to “be of good moral character.”  Click here to read the complaint.  

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California enacts modest occupational licensing reform

On September 30, 2018, California Governor Jerry Brown signed into law AB 2138, making California the twelfth state this year to enact occupational licensing reform. This flurry of legislation will make it easier for people with a criminal record to obtain occupational and professional licenses. (As discussed in recent posts, the Institute for Justice’s model occupational licensing act and the National Employment Law Project’s model state law have influenced this legislative trend.) However, California’s take on licensing reform is relatively tepid compared to more extensive reforms in states like Indiana, Kansas, New Hampshire, Tennessee, and Wisconsin.

In California, nearly 30 percent of jobs require licensure, certification, or clearance. When AB 2138 takes effect in 2020, it will prohibit licensing boards from denying a license based on certain acts not resulting in conviction, or certain less serious convictions after seven years. The law will require boards to consider rehabilitation evidence for any conviction (not just misdemeanors, as under existing law), to establish more detailed criteria for evaluating convictions, and to issue annual reports.

While a more robust version of the bill first passed the California Assembly, it was weakened in the California State Senate, and ultimately, the Senate’s version prevailed. The legislative process and bill’s provisions are discussed in more detail below.

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Living with a marijuana conviction after legalization (updated)

Jacob Sullum, senior editor at Reason, has written a fabulous article about expungement of marijuana convictions in places that have since legalized marijuana: so far 10 states, DC, and the Northern Mariana Islands have legalized.  The piece is currently available to Reason subscribers and will be available to the public in the coming weeks (we will update this post with the link).

Sullum tells the stories of eleven individuals, from the jurisdictions that have legalized, who describe how their marijuana convictions have impacted their lives before and after legalization.  He documents the lingering legal and social sanctions that burden people long after they have served their sentences, sanctions that “seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use.”

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