Tag: California

Expanding college opportunities for prisoners in California

Last week was an exciting one for proponents of the expansion of college opportunities for people who are currently incarcerated or who have criminal records.  Two reports were released that propose strategies to break the cycle of recidivism, promote public safety, and de-escalate mass incarceration by opening up post-secondary educational opportunities.  It is fitting that both reports come at a time when America is reflecting on the events of “Bloody Sunday” in Selma, Alabama, fifty years ago, and envisioning where the momentum of Black Lives Matter will take us.  It is the intersection of an historic civil rights struggle, the human rights movement that confronts “mass criminalization” and the racial divide in the U.S. today. The Stanford Criminal Justice Center and the Warren Institute at the UC Berkeley School of Law issued a report from the Renewing Communities Initiative, Degrees of Freedom: Expanding College Opportunities for Currently and Formerly Incarcerated Californians.  It was released just days after the Center for Community Alternatives (CCA) in cooperation with the Education from the Inside Out Coalition (EIO Coalition), issued its report, Boxed Out: Criminal History Screening and College Application Attrition, the subject of an earlier post on March 4, 2015.   Each report reviews the college system within its respective state, California and New York, yet both reports make findings and offer recommendations that have national implications.  In Degrees of Freedom, Part I provides a background on the higher education and criminal justice systems in California.  Part II explains why California needs this initiative and Part III presents the landscape of existing college programs dedicated to criminal justice-involved populations in the community and in jails and prisons.  Part IV lays out concrete recommendations on steps California should take to realize the vision of expanding high-quality college opportunities for currently and formerly incarcerated individuals.    The two reports complement one another.  Each provides a different focus on the same problem – a need to expand access to education for people with criminal records to increase the chances of reintegration.  In Degrees of Freedom the focus is on currently and formerly incarcerated.  In Boxed Out the focus is more broadly on the barriers faced by all people with criminal records in higher education. Both reports agree on the need to expand college opportunities.  A college education strengthens economies, changes lives and renews communities.  According to Degrees of Success, failure to provide access to college for people with criminal records “is an expensive and unsustainable oversight that does a disservice to thousands of potential students, their families and all our communities.” A different focus is presented by each report with regard to recommendations that identify the changes that need to be made.  In Degrees of Freedom the focus is on developing collaborations between education and criminal justice administrators to open up initiatives, and create buy-in.  Indeed that is important.  But what about those colleges that have created hurdles to admission for people with criminal records?  Calling for their collaboration is not enough.  They have refused to eliminate criminal history screening in their admissions practices.  While the public higher education system in California does not screen for criminal convictions, more than half of all college in the U.S. engage in this insidious practice.  As identified in Boxed Out, all SUNY campuses engage in criminal history screening in admission, which results in 2 out of every 3 applicants who check “Yes” in the felony question box being excluded by “felony application attrition.” There are colleges that have shouldered the responsibility of opening the doors to higher education for people with criminal records.  They have recognized the human right to higher education and that education is a key to transforming lives.  They do not ask about an applicant’s criminal history on their applications for admission. The City University of New York (CUNY) and California’s public higher education systems are good examples. We applaud and support their efforts.  They embrace a mission that accepts all students who seek an education. But what is to be done about those college administrators that turn a deaf ear to the call for change?  We have made terrible mistakes over the past four decades with our criminal justice policy, creating “mass incarceration” and “mass criminalization.”  It becomes that much more difficult to recover from the devastation that these policies have wrought, when institutions of higher education employ policies that compound the problem and widen the divide in America racially, ethnically and economically. When Boxed Out was released several reporters questioned SUNY administrators.  A SUNY spokeswoman stated that they did not dispute any of the report’s findings.  Another SUNY police official acknowledged to NPR that they don’t have – and aren’t aware of – any data showing people with criminal history records are more likely to commit a crime on campus than someone without a record.  Despite these answers, these same administrators justified the use of criminal history screening in admissions because “it’s risk management.”  An outspoken college administrator from Texas is more brazen in her justification for a criminal history screening:  “By requiring criminal background checks of all admitted students, colleges and universities will send a message about the type of students they want and the types of behaviors they expect on campus.” Some call it risk management.  Some call it sending a message.  As we suggested when we put together a presentation entitled “Unchaining Civil Rights,” you can call it what you want to, it’s still Jim Crow. It will take more than collaboration to open up access to colleges and eliminate the criminal history box on college applications.  It will take organizing, litigation, and legislation.  Just like the old Jim Crow, it will not yield without a demand. When we look back at the segregation of  our public schools during Jim Crow, it  is an outrage.  We look back comfortably  with the distance of time and deplore it as  a moral evil.  It is a stain on the American  story.  Some might say, ‘but I didn’t have  anything to do with it.’  In the same way, future observers of our time will look back  and say it is a shame that we allowed the  use of the criminal history box on college  applications to happen.  In light of racial  disparities in our criminal justice system, it is just another way to promote segregation.  We all bear responsibility for that. —  Khalil Gibran Muhammad, Director,  The Schomberg Center                                                  for Research in Black Culture Read more

Uber sued over illegal background checks and employee policies

In 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. Our case, Gillette v. Uber, alleges that Uber conducted background checks without the required notice to drivers, depriving them of any chance to request a copy of the report, to which they are entitled under federal law. Based on these illegal background checks, Uber then terminated or deactivated drivers’ accounts, again giving the drivers no notice or opportunity to contest the contents of the report.  These actions amount to willful violations of the federal Fair Credit Reporting Act. The purpose of the federal Fair Credit Reporting Act is to ensure that background checks are conducted in a manner that is fair and with appropriate attention to confidentiality, accuracy, and the proper use of such information. Uber’s actions show disregard for this obligation, terminating drivers without giving them a chance to even review, let alone dispute the reports. This kind of policy means that workers, like the plaintiff in this case, can find themselves out of a job with absolutely no recourse. The lawsuit also alleges that Uber failed to provide certain employee protections to its drivers, in violation of the California Labor Code and Private Attorneys General Act. Uber wrongly classified its drivers as independent contractors, denying drivers such rights as itemized wage statements, meal and rest periods, minimum and overtime wages, reimbursement of expenses such as gas and tolls, payment of earned tips, and prompt payment of wages upon termination. The suit was filed in the federal district court of the Northern District of California. It asks the court to declare Uber’s actions unlawful under the federal Fair Credit Reporting Act, the California Labor Code, and the California Investigative Consumer Reporting Agencies Act, and to enjoin the company from continuing these practices.           Read more

Expungement resources now online from Papillon Foundation

Most people with a criminal record have a general understanding of the value of expunging or sealing their criminal records.  However, figuring out how to actually obtain such relief in a particular jurisdiction, and understanding its specific effects, is not so easy.  The Papillon Foundation aims to change that by offering practical internet-based information about the process for obtaining expungement and sealing in all 50 states. We spoke with the Foundation’s founder Alan Courtney not long ago to find out more about how the Foundation helps people clean up their record and take charge of their past.    Prior to 2008, Alan Courtney was an California attorney. As a specialist in transactional law, he had no particular experience with the obstacles faced by those trying to rebuild their lives after a criminal conviction. That all changed in 2008 when Courtney found himself behind bars for a white-collar felony conviction. There, Courtney witnessed firsthand how difficult overcoming those obstacles can be and how hopeless the prospects of those faced with them can seem. He recalls: Over and over again, inmates would tell stories of how they could not get a job, could not go to school, could not get housing, could not provide for their families, and how their lives were doomed.  Family members spoke of the harshness and severity of not only the prison, but life after. Upon his release in 2011, Courtney was faced with some of the challenges he had heard so much about from his fellow inmates.   No longer able to practice law, he decided to devote much of his time to helping others overcome the barriers to reentry. The Foundation, a non-profit organization founded by Courtney and his wife, was the result of those efforts.  Its primary mission is to provide free information to help individuals expunge or seal their criminal records and mitigate the collateral consequences that accompany them.  As expressed on its website, the Foundation’s goal is to “create a compassionate opportunity for people who want to clean up their criminal record for a fresh beginning.” To Courtney, offering those of limited means the tools and materials they need to seek relief on their own is essential to fostering hope in the face of the uncertainty posed by reentry. The Foundation’s name reflects this sentiment: “Papillon” is the name of the titular character in the 1973 film that depicts a man’s unshakable will to survive while incarcerated in a hellish French prison colony. The Foundation’s presence is largely virtual, the cornerstone of the organization being its expansive website that provides a wealth of practical information about record-sealing in all U.S. states and territories, as well as many foreign jurisdictions. For those looking to leave their criminal histories in the past, the site’s go-to pages are the easy to understand summaries of each state’s relief mechanisms and eligibility standards. These summaries are supplemented by a long list of links to official instructions, forms, and statutes as well as links to state-specific how-to guides and contact information for legal aid organizations. To provide an example of the exhaustiveness of these resources, the California page contains 13 links to expungement self-help guides, 41 links to county-specific forms and instructions, 21 links legal aid and reentry organizations, links to official state-wide sealing and clemency forms, and instructions on how to request copies of your own record, among many other things. The site also provides “know your rights” information about private criminal record providers, contact information for advocacy resources, and a number of relevant studies and reports. To someone visiting the site for the first time, the amount of information available can be overwhelming; but if you’re looking for usable information to guide you through the expungement or sealing process, there’s a good chance you’ll find it here by digging around a bit.  Fortunately, Courtney tells us that the website will soon be updated with a new design that will make it easier for people to find the forms and instructions necessary to clear their criminal record. Courtney is careful to emphasize that the Foundation does not provide legal advice or referrals to lawyer, though the site does have a list of legal aid organizations who do restoration of rights work. The Papillon Foundation’s website is a truly impressive resource, and we will be watching its future growth and development. An obligatory word of caution, though: Our own experience maintaining the state-by-state resources posted on the CCRC has shown that keeping abreast of all of the legal developments regarding expungement, sealing, and other relief is a monumental task. This is a complex area of the law, and it is one that seems to be in a constant state of flux. As such, those interested in obtaining relief would be well-advised to seek legal advice, from a legal aid office or clean slate clinic for those of limited means, to make sure than any information from unofficial sources is accurate and up to date. Read more

Jerry Brown takes back a pardon . . . really?

Jerry Brown reportedly regretted one of his 105 Christmas Eve pardons, after learning from an LA Times article that the recipient had recently been disciplined by federal financial regulators.  He therefore announced that he was rescinding his grant, claiming that the pardon was not yet final because the Secretary of State had not signed the document evidencing it. This is not the first time that a governor or president has had second thoughts about a pardon, but it is unusual for a chief executive to attempt to undo one that has been made public.  Governor Brown’s attempt to retract the pardon may or may not be effective, but it certainly reflects unfortunate disarray in the administration of the pardon power in California for which other deserving pardon candidates may end up paying. Glen Williams Carnes was pardoned on December 24 for a 1989 drug-related offense committed while he was a teenager, for which he spent three years on probation.  In the pardon document, Brown stated the Carnes had received an order from the Orange County Superior Court “evidencing … he has lived an honest and upright life, exhibited good moral character and conducted himself as a law-abiding citizen.” This judicial order, styled a “Certificate of Rehabilitation,” is the first step in the California pardon process, after which applications are submitted by the governor’s office for a second vetting by the Board of Parole Hearings. Later that same day, the Times reported that [F]ederal records show Carnes was disciplined by investment regulators in May 2013. He signed a consent settlement with the Financial Industry Regulatory Authority that states he agreed to be barred from financial investment. The document alleged that he hid an outside business deal and provided investigators with “false and misleading statements that minimized and mischaracterized his involvement.” Carnes did not admit guilt. Securities and Exchange Commission records show the business deal that led to the sanction became what is now Carnes’ company: Global Vision Holdings, a publicly traded corporate umbrella of which Carnes is listed as CEO, chairman of the board and chief financial officer. Currently, Global Vision owns The Place Media, which publishes local magazines placed in hotels, Mamma’s Best, a line of organic food products, and a financial consulting firm. However, SEC records show Global Vision’s last financial report was made in late 2013. In April, it informed the SEC it could not complete its year-end 2013 filing in time “due to recent turnover in its accounting department.” Upon learning from the newspapers of the FINRA sanctions, Governor Brown moved that same afternoon to withdraw the pardon, stating that he had relied to his detriment on the court’s order of rehabilitation, and that in any case the pardon had not yet become final: “This information was not disclosed by the applicant,” Brown’s spokesman, Evan Westrup, said in a written response to The Times. “Without the certificate of rehabilitation, this individual would not have been considered for a pardon. This particular pardon has not yet been attested by the Secretary of State and it has subsequently been withdrawn.” For his part, the disappointed Mr. Carnes told the Times that he planned to contact Brown’s office “first thing on Friday morning as tomorrow is Christmas, to refute your allegations.” The Associated Press reported that Carnes said he was unaware he needed to report the regulatory settlement on his clemency application. Stay tuned for further details in this most recent pardon soap.  In the meantime, we have a couple of comments on the episode.  First of all, it is not at all clear that the Governor’s effort to retract a pardon he had already announced, on grounds that a ministerial formality had not yet been performed, will be held effective if challenged.  The Supreme Court of Michigan recently invalidated a similar attempted retraction by Governor Granholm, there of a commutation she later regretted after protests by his victim’s family.  See Makowski v. Governor, 495 Mich. 465; 852 N.W.2d 61 (June 3, 2014).  See also Marbury v. Madison, 5 U.S. 137 (1803).  We don’t know if Mr. Carnes plans to take his case to court — though the possibility of further embarrassment may discourage him.  (This is apparently why Isaac Toussie didn’t contest President George W. Bush’s retraction of his pardon under similar circumstances — a pardon that was also granted apparently without adequate staffing.) The Carnes episode also reflects poorly on the present state of the California pardon process, and on its reliability in service to the Governor.   Carnes reportedly told the Times that “he went through an extensive background check that took over a year making him eligible for his gubernatorial pardon.”   However, that background check (presumably by the BPH and the governor’s staff) evidently didn’t dig very deep to reassure the Governor that Carnes was a suitable recipient of his public mercy:  A simple Google search by CCRC staff finds Carnes listed on the website of the CFA Institute as an individual “currently serving public disciplinary sanctions for violations of the CFA Institute Code of Ethics and Standards of Professional Conduct or who have resigned their memberships while under investigation for industry-related misconduct.” Nor was the court’s certification of Carnes’ rehabilitation a very effective filter in this case. Carnes was reportedly granted his COR in August 2013, several months after the FINRA sanctions were imposed.  It is unclear whether the court knew of the sanctions when it granted the COR, though they would certainly seem to have reflected poorly on Mr. Carnes’ rehabilitation in that context as well. Finally, while the retraction is unfortunate for Mr. Carnes, it is even more unfortunate for others who are seeking a pardon from Governor Brown, since it is inevitable that an episode like this may dampen his general enthusiasm for pardoning.  This is why it is so very important that those staffing pardons for an elected official do a thorough investigation and be very sure there is nothing about a case that might cause embarrassment.  Neither the BPH nor the court appears not to have done a very thorough job in this case, if our own crude Google-limited investigative efforts are any guide.  And now others awaiting the Governor’s favor may suffer for this poor staffing. We will have more to say in this space about the administration of the pardon power in California.  We believe that its basic framework, notably its reliance on a prior judicial finding of rehabilitation, could be adapted into a comprehensive functional relief system second to none in the country. Read more

Criminal records and the Obama immigration initiative

The National Immigration Project of the National Lawyers Guild and the Immigrant Legal Resource Center have published a practice advisory for criminal defense lawyers representing non-citizens seeking relief under the Deferred Action for Parental Accountability (DAPA) program announced by President Obama on November 20, 2014. DHS simultaneously announced new priorities for enforcement that will bar eligibility for the new program, many of which are based on criminal conduct or convictions. The nine-page practice advisory provides technical assistance to criminal defense practitioners seeking to navigate the eligibility shoals of the new program for clients facing criminal charges. The advisory explains DAPA thus: DAPA offers benefits similar to the Deferred Action for Childhood Arrivals (DACA) program that has existed since 2012. It provides “deferred action,” which means that, even though the individual is undocumented and subject to deportation, the government agrees to “defer” any actions to remove them. While deferred action does not provide a pathway to lawful permanent resident status (a green card) or citizenship, it will allow recipients to remain in the U.S. and obtain an employment authorization document that will entitle them to work here legally. The DAPA crimes bars are similar to those under the DACA program, in making ineligible for relief anyone convicted of a felony, a “significant” misdemeanor, or three misdemeanors. But what constitutes a disqualifying felony and misdemeanor differs under the two programs. Also it is clear that juvenile dispositions and expunged convictions are not an absolute bar to DACA, but this has not yet been clarified for DAPA. (Other than these special deferred action programs, expungement has little effect in immigration proceedings.) A DAPA-disqualifying “aggravated felony” may include some misdemeanors, if a sentence of a year or more was imposed (including suspended sentences), or if it involves sexual abuse or fraud exceeding $10,000.  “Significant” misdemeanors include domestic violence, unlawful possession of a firearm, drug sales, burglary, DUI, or any case where the sentence imposed is 90 days or more (excluding suspended sentences).  Convictions or conduct relating to a “criminal street gang” as defined in 18 U.S.C. § 521(a) are also a bar to DAPA. A state crime of which immigration status is an essential element will not be disqualifying, but a federal immigration offense (such as illegal re-entry) is likely to be. The advisory suggests defense strategies to avoid a disqualifying disposition, including negotiating for pre-plea diversion or deferred sentencing, for consecutive sentences of less than 90 days each,or for a more severe non-jail sentence in exchange for a reduced charge. Counsel are advised to explore reducing a felony to a misdemeanor, where that is permitted under state law, as in California and Indiana. Multiple misdemeanor convictions arising from the same incident only count as one conviction, for purposes of the bar based on three misdemeanor convictions. The advisory contains links to a variety of other practice resources for defense attorneys representing non-citizens, including an advisory for clients potentially eligible for DACA. Read more