Does discrimination based on criminal record make good business sense?

During the week of February 2, Professor James Jacobs posted a series of opinion pieces on The Volokh Conspiracy blog to promote his new book on criminal records.  The basic argument advanced in these pieces, which condense the final two chapters of the book, is that “criminal record based employment discrimination is neither immoral nor illegal.”  While I am not a lawyer, and leave it to my colleagues Sharon Dietrich and Adam Klein to speak to the legal arguments in Professor Jacobs’ pieces, I believe I can speak to the public policy implications (if not the morality) of his position.  That I myself have a criminal record, am now an employer, and have spent 13 years since exiting prison working on these policy issues, ought to be considered by anyone who reads what I have to say.

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Another court invalidates federal felon-in-possession statute on Second Amendment grounds

GUNSA second federal court in Pennsylvania has held that the federal felon-in possession statute cannot constitutionally be applied to an individual convicted many years ago of a minor non-violent offense. In Suarez v. Holder, the district court for the Middle District of Pennsylvania held that a man convicted in 1990 of misdemeanor possession of an unregistered handgun and sentenced to probation was “no more dangerous than a typical law-abiding citizen,” and therefore entitled to claim the protection of the Second Amendment.  The Suarez court followed the reasoning of the court in Binderup v. Holder, decided in Pennsylvania’s Eastern District in September.  The government has appealed the Binderup decision, and the government’s brief is due this month. Read more

Long waits for expungement frustrate public safety purposes

whiteegret2Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods.  If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison.  Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt.

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Title VII protections based on criminal record are modest not coercive

In a recent series of posts on The Volokh Conspiracy blog promoting his book The Eternal Criminal Record, Professor James Jacobs “[speaks] strongly against a public policy that coerces private employers to ignore job applicants’ criminal records while leaving them to cover the costs imposed by ex-offender employees.”    His arguments suggest that employers are being saddled with such costs (for which no proof whatsoever is presented) because of social activism on behalf of people with criminal records. In fact, modest legal protections for people with criminal records derive from longstanding employment discrimination law principles.

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How much must a law school applicant disclose about his criminal record?

The New York Court of Appeals is considering how candid a person must be about his prior criminal record when applying to law school.  During oral argument on February 12 in Matter of Powers v. St.Seal_of_the_New_York_Court_of_Appeals.svg John’s University School of Law, several judges raised public policy concerns over the law school’s summary rescission of David Powers’ admission midway through his second year, based on how he had described his criminal record on his original application.  Powers had disclosed a past conviction for drug possession, but did not also report that he had initially faced more serious charges of drug-dealing.  These underlying charges came to light mid-way through Powers’ second year, when he sought clarification from the New York courts as to whether his criminal record would preclude his admission to the bar.

According to an account of the argument in the New York Law Journal, “[Powers] involvement with drugs seemed to concern state Court of Appeals judges less than St. John’s University’s decision to rescind his admission to law school.”

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Uber sued over illegal background checks and employee policies

phones-signup@1x.8d8db861ab2ef63dc666a89f3e8f5135In recent months, heightened attention has been paid to the background check practices of the ride-sharing company Uber. Concerns about the safety of Uber services prompted the District Attorney’s Offices of San Francisco and Los Angeles Counties to file suit last December against Uber for misleading customers about the scope of its driver background checks. As discussed in a previous post, Uber has largely resisted efforts by legislators to mandate more intensive background checks, but the pressure continues to mount.

This pressure for enhanced background checks has raised another area of concern: the manner in which Uber conducts background checks, and the impact of its employment practices on drivers and prospective drivers.  At the end of 2014, our organizations, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and the law firm Goldstein, Borgen, Dardarian & Ho, filed a putative, nationwide class action lawsuit against Uber, based in part on its violation of federal and state background check laws.

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President promises more pardons (we think)

new_clean_presidential_seal_by_sharpwriter-d486yc8In a wide-ranging interview with Buzzfeed’s Ben Smith posted on February 11, President Obama was asked about the employment difficulties faced by young black men with a felony record.  His response suggests that he may be interested in addressing through his pardon power the problems faced by people with federal convictions seeking restoration of rights and status, as he addressed them through law-making as a member of the Illinois legislature. This in turn suggests to us that the Justice Department may now be engaged, at the President’s direction, in a more proactive consideration of applications for a full presidential pardon. We post the exchange in full, so our readers can judge its import for themselves: Read more

Retention of DNA Profiles and Fingerprints — Europe and the U.S.

227002_149789751758678_3078486_nComparing the European Court of Human Rights’ (ECtHR) 2008 decision in S. and Marper v. the United Kingdom with the U.S. Supreme Court’s 2013 decision in Maryland v. King provides a window on the very different legal status of criminal records in the Europe and U.S.  S. and Marper also illuminates the growing chasm between the U.K. and continental Europe when it comes to informational privacy and police records.  As illustrated in prior posts, many criminal justice practices that are common in the U.S. are regarded as a serious invasion of privacy in Europe, and therefore a human rights violation.  As evidenced by the caselaw discussed below, this includes the blanket and indefinite retention of DNA and fingerprint information.

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Federal agencies urged to adopt fair hiring policies

PresSealThe National Employment Law Project (NELP) has published a white paper urging the federal government to increase its own employment of people with a criminal record.  In “Advancing a Federal Fair Chance Hiring Agenda,” Maurice Emsellem and Michelle Natividad Rodriguez make a strong case for a federal “fair chance” hiring initiative similar to the ones put in place by state and municipal governments across the country.  Specifically, background check policies and suitability standards should be reformed by presidential order to give people with criminal records an opportunity to compete for jobs with federal agencies and federal contractors from which they are now, as a practical matter, excluded.

The NELP paper points out that the federal workforce is far more decentralized than a standard civil service structure, with fewer mandated protections regulating the hiring process.  Notwithstanding OPM guidelines, federal agencies have broad discretion to adopt their own hiring policies and practices, often with limited accountability and transparency. Indeed, the EEOC has been critical of the fact that federal agencies are not bound by the same suitability standards that apply to most other public and private employers.  Moreover, federal contractor employees (an astonishing 22 percent of the U.S. workforce) enjoy few legal protections, and applicants may be rejected (or employees dismissed) on the basis of stringent FBI background check requirements that apply, inter alia, to anyone with routine access to federal facilities.  These shortcomings could be addressed with the stroke of a presidential pen (or two strokes to be precise).

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The Eternal Criminal Record

Harvard_Wreath_Logo_1.svgThe Eternal Criminal Record is the title of Professor James Jacobs’ new book, just out from Harvard University Press.  This is the first comprehensive study of criminal records law and policy, and it deals with a range of contemporary legal and policy issues ranging from how records are created and disseminated, to how they are used by public and private actors, to how they are maintained and (perhaps) eventually sealed or destroyed.  Professor Jacobs examines important jurisprudential issues such as the right to public access versus the right to privacy; the role of criminal records in punishment theory; how U.S. criminal record policy compares to other countries; and the intersection of public safety and fairness in imposing collateral consequences.

The book will be reviewed on this site in a couple of weeks.  In the meantime, here is the publisher’s description of it.

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