Tag: California

Michigan set-asides found to increase wages and reduce recidivism

Preliminary results of an empirical study by two University of Michigan law professors show that setting aside an individual’s record of conviction is associated with “a significant increase in employment and average wages,” and with a low recidivism rate.  We know of only one other similar study, conducted by researchers at the University of California at Berkeley, and it came to essentially the same conclusion.  One relevant difference between the two studies is that in Michigan set-aside results in sealing of the record, while in California it does not.  Such studies are rare because of the difficulty of obtaining data, particularly where relief seals the record, but they are a very important way of advancing a reform agenda.  Thus, Professors Sonja Starr and J.J. Prescott propose that their research “provides important empirical guidance to the broader social policy debates associated with set-aside laws and accessibility of criminal records.”  In the hope that their work will encourage others to undertake similar research, we reprint the entire report below. Project Outcomes Report: Award No. 1023727 Project Title: Evaluating the Impact of Criminal Record Set-Aside Laws on Recidivism and Socioeconomic Outcomes Co-PIs: Sonja Starr and J.J. Prescott Tens of millions of Americans have criminal records, which often carry collateral socioeconomic and legal consequences long after the criminal sentence is completed. To provide relief from these consequences, some states offer procedures by which certain offenders can have their records sealed or “set aside.” In Michigan, during the period of this study, set-asides were available only to offenders with a single criminal conviction, who may apply for them beginning five years after sentencing or release from incarceration. A set-aside removes the record from public view and from background-check databases, eliminates any applicable state occupational restrictions, and legally entitles the recipient to represent herself as having no record in employment proceedings. Accordingly, one might expect that recipients’ employment prospects would be improved. However, it is not obvious that one should expect this effect to be substantial, because people with records often face other employment hurdles and because the employment effects of the type of limited and older records for which set-asides are given are not known. No prior empirical study has quantified the effect of set-asides on employment, and in this study, we sought to do so. A principal challenge in studying set-asides is that such records, after the fact, are by definition no longer publicly available. However, pursuant to deidentification conditions, we obtained set-aside records from the Michigan State Police and linked wage information on the same individuals from Michigan’s unemployment insurance system. This enabled us to track approximately 4,000 set-aside recipients’ wages and employment status on a quarterly basis for periods of at least three years before and after the set-aside was received. Having received our data later than intended, we continue to complete final analyses and prepare papers for submission for publication; the remaining work entails comparisons between set-aside recipients and comparable non-recipients, for whom we also obtained similar data. Here, we summarize the results of preliminary analyses focused on set-aside recipients alone, before and after receipt of the set-aside. Our analyses are based on regressions that account for pre-set-aside trends for these individuals, as well as for changes and fluctuations in the economy. We find that receipt of a set-aside is associated with a significant increase in employment and average wages. Most of the gain is observed in the first year after set-aside receipt, during which recipients’ probability of employment rises steadily by a total of about 6.5 percentage points (from about 58.6% to about 65.1%–that is, recipients became about 1.11 times as likely to be employed). Over the same one-year period, recipients’ average quarterly wages rose by about 22%. This increase is too large to be fully attributed to the gain in employment probability—the implication is that set-aside recipients are often able to find higher-paying jobs, in addition to increasing their chances of finding work in the first place. These trend-change estimates are obtained after filtering out preexisting trends, which are negative for most of the two years before the set-aside and flat in the six months immediately before the set-aside. That is, applicants are somewhat more likely to apply for set-asides after a period of unemployment. It is possible that some of the upturn in employment and wage trends for set-aside recipients could be accounted for not by the set-aside itself, but by mean reversion or by motivated job-hunting (that is, applicants might tend to seek set-asides at a time when they are especially motivated to find work, or to find higher-paying work). Our ongoing analyses seek to disentangle these competing explanations. Wage and employment gains were similar across racial groups, but were much larger among females (whose wages rose 41% within a year after receiving a set-aside, compared to 15% for males). Females represented 47% of set-aside recipients. About 58% of recipients were white and about 37% were black, with the balance from other groups or unidentified. Approximately 71% had not faced incarceration for their convictions, and only 1% had been incarcerated for more than a year. Approximately 39% of the set-aside convictions were felonies. Finally, because we had access to applicants’ full criminal records, we also assessed their recidivism probability. Fewer than 4% of set-aside recipients were rearrested within five years of the set-aside, and fewer than 2% were reconvicted. These are extremely low rates; we note for comparison purposes that in a five-year period, Michigan police make about 13 arrests per 100 people in the general population. In addition to contributing to researchers’ understanding of the employment effects of having a criminal record, this research provides important empirical guidance to the broader social policy debates associated with set-aside laws and accessibility of criminal records. It provides a clearer picture of who set-aside laws affect and what the stakes are, in terms of benefits for recipients and public safety concerns. Moreover, the development of a procedure within Michigan state agencies to match deidentified criminal record and unemployment insurance data could help to benefit future researchers who wish to investigate relationships between socioeconomic variables and criminal offending.   Read more

CCRC publishes California Compilation of Collateral Consequences

The CCRC is pleased to announce the publication of the California Compilation of Collateral Consequences (CCCC), a searchable online database of the restrictions and disqualifications imposed by California statutes and regulations because of an individual’s criminal record.  Federal collateral consequences can also be searched through the CCCC database. This new resource follows on the heels of similar compilations of collateral consequences that CCRC has developed of federal laws and rules, and of two other state systems (Wisconsin and Vermont).  The database builds on research originally published in 2014 by the American Bar Association, brought up to date and restructured to permit more precise searches of the specific activities and rights affected by various consequences.  A redesigned search function makes it easier to explore the relationship between consequences and their implementing regulations, and among different consequences in state and federal law. Users may access directly complete and current statutory and regulatory text for each consequence. The CCCC data is derived from the National Inventory of the Collateral Consequences of Conviction (NICCC), originally compiled by the ABA under a grant from the National Institute of Justice pursuant to the Court Security Act of 2007, and now maintained by the Council of State Governments. In developing the CCCC we streamlined and restructured the NICCC data, reorganizing it into specific categories, and combining overlapping and duplicative entries. We omitted potentially misleading interpretations and lengthy textual excerpts in favor of links to the full current version of the law or rule. At the same time, we updated the NICCC data to reflect laws enacted and rules adopted since the data was originally published. The most important new feature of the CCCC is the addition of a comprehensive set of searchable “Keywords” that allow users to zero in on areas of interest with a high degree of precision and accuracy. In contrast, the NICCC categories are very broad, and returns for word searches may be both over- and underinclusive. For example, a search for the word “bank” may miss the many consequences identified as affecting “financial institutions.” In sum, the CCCC is a tool for practitioners and researchers that we believe will be more useful, easier to operate and understand, and more current and reliable. The CCCC is available here Read more

California enacts sweeping fair employment law

On October 14, California Governor Jerry Brown signed into law AB 1008, the California Fair Chance Act, a bill we covered upon its passage in the legislature last month.  The Act extends a new “ban-the-box” requirement to private as well as public employers, and makes failure to comply an “unlawful employment practice” subject to enforcement under the state’s Fair Employment and Housing Act (FEHA).  The new law also broadens FEHA enforcement to cover an employer’s consideration of certain criminal records in the hiring process.  When the new law takes effect on January 1, 2018, California will become only the fourth state in the Nation to provide the full protections of its fair employment law to individuals with a criminal record. (New York, Wisconsin and Hawaii are the others.) The Fair Chance Act broadens existing California law in a number of important ways. 1.  Presently, covered public employers must delay a criminal background check until they have determines an applicant “meets the minimum employment qualifications for the position.”  The new law moves the bar to the point a conditional offer of employment has been made, and extends it to private employers as well. 2.  Existing California law already prohibits consideration of non-conviction records in connection with applications for employment, including records of convictions that have been dismissed or set-aside.  Under the new law, this prohibition will become administratively enforceable under FEHA.  Background screening companies will be prohibited from reporting the same information insofar as they are acting as agents for a covered employer “while conducting a conviction history background check in connection with any application for employment.” 3.  As to conviction records, the new law provides that an employer may reject an applicant based in whole or in part on conviction information only after making “an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.“  In making that individualized assessment, an employer must consider: (i) the nature and gravity of the offense or conduct; (ii) the time that has passed since the offense or conduct and completion of the sentence; and (iii) the nature of the job held or sought. 4.  Employers that make a preliminary decision to reject an applicant based on a conviction record must provide the applicant written notification of the decision, identify the disqualifying conviction, and include a copy of any criminal history report used by the employer.  Other procedural protections apply thereafter. A detailed analysis of the Fair Chance Act, and its interaction with other state laws relating to consideration of conviction records, is available in the California profile in the Restoration of Rights Project. The law’s enactment was made possible with strong support from the advocacy community, including the National Employment Law Project, the Time for Change Foundation, and Legal Services for Prisoners with Children.  Those groups released a joint press release yesterday highlighting the significance of its ban-the-box provisions. Read more

California follows federal lead in limiting employment screening

A new California regulation took effect last week that puts employers on notice that adverse action based on criminal history may violate state law prohibitions on racial discrimination.  The regulation closely tracks a 2012 guidance issued by the U.S. Equal Employment Opportunity Commission, which asserts that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity. The California regulation adopts, in broad terms, the same position and standards put forth in the EEOC guidance, but applies them to the state’s Fair Employment and Housing Act (FEHA), which prohibits employment discrimination on grounds that are substantially similar to those enumerated in Title VII.  Like the EEOC guidance, the new FEHA regulation sets forth a number of factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.” The fact that the regulation was promulgated by the state’s Department of Fair Housing and Employment, which may sue to enforce the FEHA, may give California employers that have not already conformed their practices to the EEOC guidance an incentive to do so. Moreover, the new regulation ought to make it easier for individuals to challenge criminal history screening practices by giving them a clear basis for action under California law. Both the California regulation and the EEOC guidance follow from the “disparate impact” theory of liability that applies both to the FEHA and Title VII.  It allows an individual to proceed with an employment discrimination claim absent a showing of individual disparate treatment if he or she can show that a facially neutral employment practice adversely impacts a protected class, such as a particular racial group.  Because African Americans and Hispanics are more likely than other racial groups to have a history of criminal justice involvement, disparate impact theory has been used in both state and federal courts to challenge criminal history screening practices, especially blanket bans on hiring individuals with any conviction history at all. Although claims of disparate impact discrimination based on criminal history screening practices are not new, we are aware of no jurisdiction other than California that has codified such a basis for liability. Even the EEOC’s position is stated in the form of a “guidance,” and not codified in its official regulations. (Of course, the EEOC’s role in enforcing violations of Title VII gives its guidance significant weight.) The new regulation also restates a number of preexisting prohibitions on criminal history consideration that are imposed by the California’s Labor Code.  Among these is a general prohibition on inquiries into or consideration of arrests not resulting in conviction, non-conviction dispositions (including referral to, or participation in, diversion programs), arrests and dispositions that occurred while subject to juvenile court jurisdiction, and non-felony marijuana possession convictions more than two years old. More information about the law on criminal history discrimination in employment and licensing in California is available on the state’s Restoration of Rights Project profile, available here. Read more

California set-aside enhances employment prospects

Second-chance mechanisms in California are working to increase the employment prospects and earning potential of Californians with criminal records according to a soon-to-be-published study by a team of researchers from U.C. Berkeley School of Law. The study, by Jeffrey Selbin, Justin McCrary & Joshua Epstein, tracked over an eleven-year period the employment status and annual income of 235 Californians who had their convictions set aside or their offense level reduced from felony to misdemeanor, with the aid of the East Bay Community Law Center’s (EBCLC) Clean Slate Clinic.  The study finds a modest increase in the employment rate of those in the sample (most were already employed, albeit in low-wage jobs). More significantly, however, after three years their average real earnings increased by roughly a third. What is interesting about these findings is that neither set-aside nor reduction seal a person’s criminal record (although employers are prohibited by state law from inquiring about records that have been set aside).  This shows that relief that does not limit access to records can provide significant benefits — something that is of particular importance in an age where the practical efficacy of sealing and expungement is questionable, due in part to growing employer reliance on commercial criminal history providers.  Another recent study of the practical effectiveness of judicial “forgiveness” relief, there through Ohio’s “Certificate of Employability,” reached the same conclusion. The California study, titled “Unmarked? Criminal Record Clearing and Employment Outcomes,” argues for early intervention to increase opportunities for people with criminal records, and automatic record-clearing so as not to put the onus of “unmarking” on the person with a criminal record.  (The only state that currently provides automatic sealing of any conviction records is South Dakota, although a number of states make sealing automatic for some nonconviction records.  A few states, including Arkansas, Indiana and Massachusetts, make sealing mandatory upon a showing of eligibility.  See our 50-state chart of judicial relief mechanisms.)  Additional information about California relief mechanisms is available here. The article’s full abstract is below. An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively low-level misdemeanors. In an era of heightened security concerns, easily available data and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential. In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We study a random sample of participants in one such program to analyze the impact of the record clearing intervention on employment outcomes. Using methods to control for selection bias and the effects of changes in the economy in our data, we find evidence that: (1) the record clearing intervention boosts participants’ employment rates and average real earnings, and (2) people seek record clearing remedies after a period of suppressed earnings. More research needs to be done to understand the durability of the positive impact and its effects in different local settings and labor markets, but these findings suggest that the record clearing intervention makes a meaningful difference in employment outcomes for people with criminal records. The findings also suggest the importance of early intervention to increase opportunities for people with criminal records. Such interventions might include more legal services, but they might also include record clearing by operation of law or another mechanism that does not put the onus of unmarking on the person with a criminal record. Read more