Tag: California

New research report: Four Years of Second Chance Reforms, 2013-2016

Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society.  It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences.  To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief.  Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction.  As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types.  The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process.  Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time.  Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible.  Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado’s new “order of collateral relief” provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction.  The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority.  These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<       Read more

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. Surprising no one who understands America’s criminal justice system, the burden of felony disenfranchisement laws falls disproportionately on black Americans. The United States disenfranchises 7.7% of its black citizens compared to 1.8% of the rest of its population. Back to Florida: 23% of black adults there—nearly one in four—are disenfranchised. Permanently. If statutory disenfranchisement and structural racism weren’t bad enough, disenfranchisement through ignorance is rampant. Take my grocery store disenfranchiser.  Widespread dissemination of misinformation is a consequence of a number of problems including our failure to properly fund our elections systems, a confounding web of frequently changing voter eligibility laws that vary state to state, and general confusion about criminal justice system processes. In many states, the right to vote turns on the difference between probation and parole. And in California, recent changes to voting laws requires an understanding of the difference between Post Release Community Supervision (PRCS), mandatory supervision, probation, and parole. In fairness, it’s not only individuals like Ms. Clipboard Gripper who get it wrong. Last night I asked the internet, “Can I vote while I’m on PRCS?” (Spoiler alert, the answer is yes.) The internet sent me to a number of sites that give the wrong, disenfranchising answer. These include the pages of many public defender’s offices, including the largest in the state. (That wrong answer was extra painful to read because it came right after this preamble: “There is a lot of confusion about the impact of a criminal conviction on voting rights. To set the record straight. . . .” ). Which brings me to voter registration Goal Number 3: Organizations that care about voting rights — unless you have the resources and expertise to keep your websites updated, accurate, and enfranchising, then take down details about voting laws and instead re-direct people to sites with up-to-date information and recent legal and political developments. Advocates are working to improve California’s voting laws. One bill now sitting on Governor’s Brown’s desk, AB 2466 (Weber), would restore voting rights to tens of thousands of people sentenced to jail for low-level, non-serious, nonviolent felony Realignment offenses. But even under California’s current laws, people on any type of probation can register and vote. Most people currently in custody in California jails can register and vote by mail while they are in jail. Once people sentenced to prison are discharged from felony parole, they can register and vote, even if they have felony convictions, even if they have been to prison in the past, and even if they remain on law enforcement registries. And they can register to vote without taking any steps to restore their civil rights, such as obtaining a pardon or Certificate of Rehabilitation. They simply have to register and vote. And they should do it now: In California, October 24 is the deadline to register to vote in the November 8 election. America is the America it can and should be only when voting rights are fully extended and fully exercised. Full stop. But it’s also worth noting one practical reason to fix our punitive and overreaching felony disenfranchisement laws. In November, Californians will vote on initiatives to end the death penalty, legalize marijuana, increase parole opportunities for people convicted of non-violent crimes, and limit the practice of trying children in adult court, among others. Which experts do I want weighing in on these criminal justice reform measures? People who have been directly impacted by existing laws and know from personal experience which polices will increase public safety and economic stability in our communities. In California, we have fewer than 50 days left to empower all eligible voters people to register. Let’s grip our clipboards, direct our horror at the disenfranchising myths about voting rights, and get to it.   More information on the loss and restoration of voting rights is available in the CCRC’s state-by-state guides to rights restoration, and our 50-state comparison chart. Read more

Ampersands – Brock Turner & conflicts of justice

I recently had the chance to meet with one of the leading international experts on the treatment and punishment of people who have committed sex offenses. I noticed she has a small tattoo of an ampersand on the inside of her wrist. I keep thinking of that ampersand as I read Brock Turner rage memes, which I both hate and find so satisfying. Ampersand: This difficult fact is true AND this other, seemingly contradictory fact is also true. It’s difficult to hold all of it at the same time– fury against the man who raped an unconscious woman behind a dumpster, AND relief at the rare flash of humanity and mercy extended to him in our otherwise unrelenting carceral system, AND anger about the race and class context of that mercy. Our current sex offense policies thwart accountability by perpetrators, re-traumatize victims of sexual assault, foster racialized implementation of laws, decrease public health and public safety in our communities, and, despite their failures, cost us billions of dollars each year. In short, it’s a crisis. California’s sex offense laws are deeply flawed and uniquely regressive. We are one of only four states with lifetime, universal sex offense registration, regardless of the offense involved, regardless of the risk for reoffending. The registration requirements for someone who created child pornography a few years ago are the same as someone convicted of a flashing offense 40 years ago who hasn’t re-offended since. We put children on the sex offense registry despite the mountains of neurological, criminogenic, and humanitarian reasons we shouldn’t. The human cost to those directly impacted and their communities is incredibly high. The government experts, including law enforcement officials responsible for enforcing these policies, agree that the financial cost of these failed policies is untenable. When we waste our resources unsuccessfully trying to monitor more than 100,000 people, the vast majority of whom have been found to pose no risk to their communities, we don’t have the resources left to implement sophisticated strategies to address the real threats to public safety. Solving this crisis calls for challenging conversations that lead to nuanced policies. But this work isn’t as instantly gratifying as engaging in internet clap back or reading about the heroic Swedes who round out this case framed as a perfectly binary tale of good versus evil. My ampersands at this moment, likely to have evolved again by tomorrow: (1)   The power of the survivor in this case—her brains, her strength, her righteous rage—launched this firestorm. Maybe Stanford should put up a marker in her honor at every location on campus where a sexual assault has been reported. & (2)   If I had a teenage son who raped a woman behind a dumpster and was facing a sentence of decades of rape and violence in prison, I can imagine that I might stand before a judge and say things—anything—to try to prevent it. Things that might reveal ugly truths about my character and expose my ignorance, or, my desperation might degrade my character. And my enduring love for my child could co-exist with an expectation that my son acknowledge the horrific, rending impact of his acts on his victim and her loved ones, and an expectation that he bear the full impact of a legal punishment justly imposed on him. & (3)  I have witnessed the transformative power of restorative justice and the reflexive harm of vengeance. And I begrudge no victim the right to fanaticize about personal retribution, about committing uncomplicated acts of rage and sorrow. The racism and sexism in Mr. Turner’s case — The internet tells me that I’m not the only one who wants to smash the racist patriarchy starting with the male Turners. We all have our own imagined methods. & (4)   By contrast, government actors—the judges and prosecutors who enforce our criminal justice policies—must balance retributive punishment and equity and rehabilitation and containment and deterrence and public safety and constitutional guarantees. Regardless of the ways in which the judge in this case failed to strike the right balance, I feel heartache about the call to impeach him. The judge’s ruling feels so unjust because of his gender, race, class privilege, and alma mater, which means he can’t be fair in any case, and this is true irrespective of his complete judicial record or the mitigating factors that by law he was required to weigh in this case. Ask Judge Gonzalo Curiel how this kind of thinking undermines the rule of law. & (5)   I have witnessed unlawful bias, and sometimes racialized or gendered rage directed at me and/or the people I am representing in criminal courtrooms. I’m done debating whether institutional racism is a cornerstone of the US justice system just as I’m done debating whether climate change is real. Next steps? Support victim advocacy groups that understand a carceral response to violence harms everyone, including victims. Be brave, lawyers, about systematically striking judges whose unjust rulings or conduct in courtrooms result from unlawful bias. Show up in courtrooms: For jury duty in whatever way you will and for participatory defense in support of survivors of sexual violence and defendants who are subjected to unjust rulings. And not just for defendants who are factually innocent or are charged with low-level, non-violent, non-sexual offenses. We can only really measure justice in our system by how it functions in the most difficult cases. & (6)   Our own unconscious biases undermine the movement to end sexual violence. Every day I see RAP sheets that remind me that we—through our elected prosecutors acting in our names—criminalize and incarcerate adult and child victims of sexual violence and sex trafficking who have been arrested for prostitution. The race and class of a victim of sexual assault—her perceived value to society—dictates outcomes in the criminal justice system and airtime in the media (including on our own Facebook pages) just as Mr. Turner’s privilege dictated his. We must also show up for these victims of sexual violence whose voices have not yet been as powerfully amplified as the woman’s who launched this conversation. The work of thinking and talking in ampersands is tricky. This morning I had to text an apology to a friend after we had a conversation about this case as we were dropping off our children at school. I worried that I opened old wounds, was too strident, disclosed too much about my own experiences, didn’t leave room for her expertise borne from a personal experience of a sexual assault she survived on a college campus decades ago. It’s all too close to the bone, for all of us. But we have muddle through it, carefully and with love because it’s the only way to achieve policy change that decreases sexual harming and increases justice for the people who are disproportionally impacted by our current policies. And we have to live with the bedeviling truth that once we are successful in reforming these policies for those who most deserve change, we will also have made things more just for unrepentant, privileged rapists. And that is, for so many complicated reasons, a good thing.     Read more

The many faces of expungement in America

An article from The Marshall Project published on September 17 got us thinking about the elusive term “expungement” and what it really means, both functionally and philosophically.  In “Five Things You Didn’t Know About Clearing Your Record: A primer on the complicated road to expungement,” Christie Thompson describes an unusual class action lawsuit recently filed by a public-spirited lawyer in a Tennessee county court seeking “to have the case files destroyed for hundreds of thousands of arrests and charges that never resulted in a conviction.”  She proceeds to point out some of the pros and cons of expungement relief, including that expunged records may still be available from private background screening companies or the internet. But the problems with expungement laws are deeper than the article suggests. Quite apart from theoretical objections to relief based on pretense, the fact is that expungement laws have functional flaws even where public records are concerned.  For example, the Tennessee expungement law described in the Marshall Project article has no effect on records in the possession of law enforcement or prosecutors, or on appellate court records and opinions.  See Tenn. Code Ann. § 40-32-101(b)(1).  Moreover, it authorizes release of expunged arrest histories of a defendant or potential witness in a criminal proceeding to an attorney of record in the proceeding upon request. See § 40-32-101(c)(3). Expungement schemes in states other than Tennessee have an even more limited effect on public access to criminal records.  For example, expunged convictions must be reported to certain employers in Kansas and Louisiana. Perhaps the most extreme example of expungement not meaning what the term suggests is the comprehensive relief scheme enacted in Indiana in 2013, described in detail in a post on this site some months ago.  “Expungement” under Indiana law does not involve any limitation on public access at all, though nonconviction and misdemeanor records may be “sealed” after they have been “expunged.” Conversely, California’s law authorizing set- aside of certain minor convictions is popularly known as “expungement” even though it involves no limitations on access at all. Michigan’s set-aside law has a similar mistaken identity. As evidenced by the chart on this site, state laws authorizing “expungement” have in recent years been riddled with exceptions, including for public employments or licenses that authorize a background check.  A subsequent conviction may result in lifting whatever restrictions on public access are imposed.  Even the proposed federal REDEEM Act contains numerous exceptions that would allow many employers and others to gain access to “sealed” records. The point is that the terms “expungement” and “sealing” (or “erasure” in Connecticut, and “shielding” under a new Maryland law) are not legal constructs that are uniformly defined or understood, and there are almost as many variations on their functional effect as there are states.  Even juvenile records, where the concept of expungement was pioneered in the 1940s, remain in the public domain far more frequently than in the past. Older forms of judicial relief like set-aside or vacatur, which were extended to valid convictions by the Model Penal Code in the 1960s specifically to restore rights, and to guilty pleas under deferred adjudication schemes in the 1970s specifically to avoid their loss, are considerably clearer and more uniform in legal effect from state to state. As the focus of criminal law reform begins to shift from mass incarceration to mass conviction, it will become ever more important to develop forms of relief from collateral consequences that are clear and effective.  It is not clear that “expungement” or “sealing” laws premised on limiting public access to records will be the most effective approach to restoring rights and status. Read more

Should a criminal record ruin a career?

The Atlantic has published an excellent article about the permanently disabling effects of a criminal record, by two attorneys at the East Bay Community Law Center (Oakland, CA), Sarah Crowley and Alex Bender (an Equal Justice Works AmeriCorps Fellow).  Haunted by the Past: A Criminal Record Shouldn’t Ruin a Career, March 25, 2015.  The authors argue, based on their experiences in their practice, that “too many applicants, particularly people of color, are being denied jobs based on background checks that are irrelevant or even inaccurate.”   They describe the sources of inaccuracy and other unreliability in criminal background checks, even ones based on fingerprinting.  But then they focus on the real problem, which is that over-reliance on background checks “inevitably screens out qualified, trustworthy job applicants.” They tell the story of one woman whose dated misdemeanor convictions deprived a California group home of a valuable employee:  Take, for example, the case of Felicia Green . . . who applied to work as a caregiver in a group home for young people and their families. In terms of experience and training, she was a model candidate: She worked for ten years as a residential advisor for a program administered by the U.S. Department of Labor. Green had stellar references, and also recently became licensed as a Covered California enrollment counselor.   Unfortunately, Green’s criminal background check revealed two old misdemeanor convictions. Her caregiver job application process, which had been going smoothly, came to a grinding halt. Green’s first conviction, [was] a DUI from more than two decades ago, . . . .  The second conviction [for welfare fraud] occurred seventeen years ago [when] she received an overpayment that she neglected to report . . . .   The relatively recent ubiquity of background checks has made it so that criminal convictions function as a modern-day scarlet letter, nearly impossible to overcome. For Green, the two decades-old convictions were her sole encounters with the criminal-justice system. But in the context of her job application, those convictions might as well have happened yesterday. The past two decades of staying out of trouble and being gainfully employed couldn’t prevent her from being flagged as a hiring risk. Even though the group home expressed interest in hiring her, bureaucratic hurdles prevented them from doing so once her convictions came to light, so in the end, Green didn’t get the job. The real unfairness for Felicia Green arose not from the background check, which seems to have been accurate, but from the employer’s willingness to rely exclusively on it, daunted by the prospect of tackling “bureaucratic hurdles.”  Most employers take the path of least resistance and least apparent risk, which may result in loss for all concerned.  The authors urge employers and occupational licensing agencies to adopt a smarter, more holistic approach to the screening process that carefully considers the information in criminal background checks as one factor among many. If an applicant has a criminal history, it’s not necessary to reject them automatically. Take into account the seriousness of the conviction, how long ago it happened, and whether it actually has anything to do with the job in question. The challenge of developing and enforcing standards for discretionary decision-making is the next frontier in dealing with collateral consequences. Read more