Illinois health care licenses elude those with records

2000px-Seal_of_Illinois.svgThe Illinois legislature has been generally progressive in enacting measures to help people with a criminal record avoid being stigmatized for life.  In 2003, as a state senator, President Obama sponsored one of the earliest of these measures, authorizing courts to grant certificates relieving collateral consequences. In 2011, however, Illinois took several steps backwards when it enacted legislation automatically barring some criminal record holders from ever working in a variety of licensed health care fields.  The law has since become the subject of litigation and further legislation that leaves many would-be medical licensees to face an uncertain future.

What follows is a description of the law’s enactment, subsequent court challenges, and potential legislative fixes.

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Sex offender residency restrictions in the courts: is the tide turning?

The Marshall Project has published an important new article by Maurice Chammah on legal challenges to restrictions on where registered sex offenders can work, live, and visit. See “Making the Case Against Banishing Sex Offenders: Legislators won’t touch the subject, but courts are proving more sympathetic.”  Chammah writes that activists, finding lawmakers unreceptive to any measure perceived to benefit sex offenders, “have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns.”

 Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose.

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Federal pardon filings skyrocket, but pardon grants still down

New clemency statistics just posted on the Pardon Attorney’s website show that almost 1000 petitions for full pardon were filed in FY 2016, and that more than 1900 pardon petitions are presently pending.   We have become accustomed to seeing huge numbers of commutation filings, but the large number of pardon filings is much more surprising in light of President Obama’s meager pardon grant rate to date.  The 998 petitions filed in the 12-month period just concluded are almost twice the number filed in any single year since the Roosevelt Administration, including in the analogous period in the Bush 43 presidency. We reported in August that there were 1378 pardon petitions pending in June – which means that 550 new petitions must have been filed in less than 4 months.  That’s as many pardon petitions as have been filed in any full year in the past 75 years.

In August we reported on President Obama’s stated intention to grant a large number of full pardons before the end of his term, in addition to sentence commutations: “I would argue that by the time I leave office, the number of pardons that we grant will be roughly in line with what other presidents have done.”  But to match even George W. Bush’s 189 pardon grants, President Obama will have to grant more than 120 pardons in the next three months.

White House Counsel Neil Eggleston stated yesterday that the number of commutation grants since 2014 “make clear that the President and his administration have succeeded in efforts to reinvigorate the clemency process.”  But without action on the pardon side of the clemency docket it is too early to claim more than partial success.

Sex offender passport law survives challenge

A federal judge in San Francisco has dismissed a constitutional challenge to the recently enacted International Megan’s Law, which requires specially-marked passports for registered sex offenders whose offenses involved child victims, and authorizes notification to foreign governments when they travel.  The so-called “Scarlet Letter” law is specifically aimed at stopping child sex trafficking and sex tourism, and this purpose was evidently enough to justify it even though it has a far broader effect.

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HHS finalizes rules on child care worker screening

In February we posted about regulations proposed by the federal Department of Health and Human Services (HHS) to implement criminal history screening requirements for child care workers under recent changes to the Child Care and Development Block Grant Act of 2014.  The CCRC joined a coalition of organizations led by the National Employment Law Project (NELP) in calling upon HHS to reconsider the proposed regulations. In a formal comment submitted to HHS, the coalition argued that the regulations contained screening standards that were more exclusionary than the Act requires, and that they would have a disparate impact on women, African Americans, and Latinos.

HHS has now issued the final version of those regulations.  Although the final rules are far from perfect, they do address a number of the concerns raised by the coalition.  For example, they omit language that encouraged states to require self-disclosure of criminal history, provide greater protection from inaccurate criminal record reporting, and urge states adhere to the standards laid out in the EEOC guidance by providing individualized assessments for disqualifying offenses that are added by the states but not required by the federal law.

Unfortunately, HHS chose not to back down on one of the most troubling provisions of the proposed regulations: criminal history screening of anyone age 18 or older residing in a license-exempt home that provides child care services.  Screening of those individuals is not required by the Act itself.  As the coalition’s comments explained, the requirement will almost certainly have a disproportionately adverse impact on providers of color and their families:

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Major new federal awards support second chance advocacy

Earlier this week the U.S. Departments of Justice and Labor made two major awards to the Council of State Governments (CSG) to support the development of resources on collateral consequences and second chance programs.  The awards aim to build capacity within the advocacy community to assist those seeking restoration of rights and status nationwide.

The first award is a $4.6 million contract awarded by the Labor Department for the development of the National Clean Slate Clearinghouse, a federal initiative first announced by President Obama last November.  The Clearinghouse is intended to “build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.”

The second award is a $5 million grant from the Bureau of Justice Assistance to support the ongoing work of the National Reentry Resource Center (NRRC), a project developed by CSG in 2011 with federal funding earmarked in the Second Chance Act of 2007.  One exciting aspect of that award is that it will bring the National Inventory of the Collateral Consequences of Conviction (NICCC) into the NRRC fold.

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When does the Second Amendment protect a convicted person’s right to bear arms?

Earlier this month eight judges of the Court of Appeals for the Third Circuit blocked enforcement of a federal gun control law in two cases involving Pennsylvanians convicted of non-violent misdemeanors many years ago, invoking the Second Amendment’s right to bear arms.  The appeals court affirmed lower court decisions upholding the constitutional right of Daniel Binderup and Julio Suarez to possess firearms despite the fact that they are barred by federal statute from doing so.  Seven other judges of the appeals court thought the Second Amendment should never be applied on a case-by-case basis to convicted individuals, and proposed that the federal statutory bar should determine the constitutional issue.  The 174-page appellate decision in Binderup v. Holder has been widely reported but only in the most general terms, and not always entirely accurately.

Other as-applied Second Amendment challenges to firearms dispossession statutes are percolating through the courts.  For example, Hamilton v. Palozzi will be argued next month in the Fourth Circuit, offering another opportunity for a court to hold that people convicted of non-violent crimes should not lose their firearms rights, there under a state dispossession statute rather than a federal one.  Because the constitutional issues may shortly be before the Supreme Court for resolution, it seemed worth taking a closer look at the Binderup holding.

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Felony Disenfranchisement: Setting the Record Straighter

Recently, a woman standing outside of a Berkeley grocery store asked if I wanted to register to vote. I asked her, “Can I vote if I’m on probation?” She looked at me with horror, gripped her clipboard, and physically recoiled from me and the cantaloupe I was holding. Once she regained some composure, she sincerely, confidently, and erroneously informed me that California’s laws prohibit voting while on probation.

That encounter inspired me to draft these goals for all of the voter registration advocates (including me!) working the sidewalks this election season:

1: Practice not physically recoiling in horror from people we encounter in life.

2: Learn the voting laws in our jurisdictions to avoid disenfranchisement through disinformation.

Each state has its own laws about voting following a felony conviction.  Two states never disenfranchise voters following conviction. (Hey, Maine! Hey, Vermont!) Some states permanently terminate the voting rights of outrageous numbers of its citizens: Florida’s draconian voting laws disenfranchise 10% of its total population. In 2000, Florida disenfranchised 600,000 citizens with felony convictions. That same year, its presidential race was decided by 537 votes.

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Indiana courts interpret new expungement law

On September 15, 2016, the Indiana Court of Appeals reversed a lower court’s denial of expungement to a woman convicted 13 years before of forgery and drug-dealing, holding that the court abused its discretion in denying relief where the case fully met the statutory standards. The decision provides a window into how one of the Nation’s most expansive new expungement laws is being interpreted and enforced by the courts of the state. Judging by this decision, the approach to restoration of rights in this otherwise-conservative state remains encouraging.

Here is Olivia Covington’s article from the Indiana Lawyer reporting on the decision, with a link to its full text.

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SUNY bans the box on admissions application

On September 14, the Board of Trustees of the State University of New York (SUNY), the nation’s largest comprehensive university system, voted to ban the box in its admissions process.  It is the first university system in the country to reverse its decision to engage in criminal history screening and remove the question from its admissions application.

The resolution laying out the policy change references the advocacy of the Education From the Inside Out (EIO) Coalition, including a 2015 case study of SUNY conducted by the Center for Community Alternatives, “Boxed Out: Criminal History Screening and College Application Attrition.”  That study found that about two-thirds of the nearly 3,000 SUNY applicants who disclose a felony conviction each year do not complete the application process (compared to only 21 percent of the overall pool of applicants) and thus are never considered for admission.  It concluded that this is the result of the daunting – and sometimes impossible – supplemental process triggered by that disclosure as well as the stigmatizing nature of the inquiry itself.

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