Tag: certificate of relief

New York certificates of relief fall short in practice

New York’s venerable certificate of relief scheme, which aims to mitigate the adverse collateral effects of criminal conviction, has served as a blueprint for certificate laws recently adopted in many other states.  But are New York’s certificates actually effective at restoring rights and status? That is a question addressed in two new scholarly articles, both of which find that New York’s certificates are frequently inaccessible to their intended beneficiaries and misunderstood both by the officials tasked with issuing them and the employers and licensing boards that should be giving them effect. Governor Cuomo recently directed reforms in the process for obtaining certificates in response to a report concluding that it has “historically been burdensome and slow.”  These articles should be useful in that effort. Both articles use interviews and anecdotal evidence to shed light on how certificate schemes operate in practice, providing insight into how government officials (including judges and probation officers), employers and convicted individuals interact with the laws (or fail to) in the real world. The increasing popularity of such well-intentioned laws represents an encouraging shift in legislative attitudes about second chances; but, as the articles make clear, they are only as good as their real-world application, which is more limited and less effective than many suppose. The two articles are abstracted and linked below.  Also linked are other CCRC posts discussing judicial certificates of relief. Heather Garretson, Legislating Forgiveness: A Study of Post-Conviction Certificates as Policy to Address the Employment Consequences of a Conviction, __ B.U. Pub. Int. L.J. __ (forthcoming, 2016): Mass incarceration in America is creating an employment paradox that is the result of three facts: an estimated 65 million Americans have a criminal record, a criminal record significantly impairs job opportunities, and a job is a critical component of living a crime-free life. This paradox is perpetuated by thousands of legal and administrative barriers to employment and by employers’ unwillingness to hire someone with a criminal record. States have recently started addressing the employment paradox with legislation. This legislation authorizes an administrative relief mechanism – often a certificate of some kind – that is intended to lift employment barriers and encourage employers to consider applicants with a criminal record. Such legislation is on the rise: of the ten states that have certificate legislation, eight passed such legislation in the last five years. This passage comes without an understanding of the impact of certificates. The accessibility and relevance of certificates to employment has – until now – been assumed, but not examined. New York State has the oldest and most robust certificate system, and is a model for much of the recent certificate legislation. This paper contains the first comprehensive research on New York’s certificates. The research asks whether New York’s certificates are accessible and relevant to employment. It combines statutory analysis with qualitative research. It is a study of how certificate legislation is supposed to work – and how it actually does. It examines a statutory scheme that is recently replicated but empirically empty. Through interviews with judges, people with certificates or those eligible but without one, attorneys, current and former probation officials, service providers, and advocates, this paper provides insights into the use of certificates, their challenges, and examines how legislating more of the same can effectively address the employment paradox. Alec Ewald, Rights Restoration and the Entanglement of US Criminal and Civil Law: A Study of New York’s “Certificates of Relief,” Law & Soc. Inquiry, Winter 2016, at 5: Despite burgeoning interest in prisoner re-entry and the “collateral consequences” of criminal convictions, we know little about the practical operation of policies governing the rights and privileges of people with criminal convictions. This study examines New York’s Certificates of Relief from Civil Disabilities to explore the workings of the US carceral state at the intersection of criminal and civil law. These certificates remove some legal restrictions accompanying convictions, particularly licensure barriers, and are easier to achieve than pardons; other states have used New York’s policy as a model. Interviews with judges and probation officers reveal deep variations in how they understand and award certificates. In some cases, differences stem from informal local agreements, particularly concerning firearms in rural communities; in others, from discretionary judgments in a context of legal ambiguity. These practices demonstrate how specific legal, organizational, and cultural factors contribute to complexity and variation in the US carceral state. Related posts: New York certificate scheme found inaccessible and ineffective Forgiving v. forgetting: A new redemption tool Ohio certificates remove mandatory bars to jobs and licenses     Read more

Ohio certificates remove mandatory bars to jobs and licenses

February 2, 2013 was an historic day in Ohio. The Ohio legislature added a new judicial restoration mechanism: the Certificate of Qualification for Employment (CQE). The CQE, contained in Ohio Rev. Code §2953.25, provides new hope to the 1 in 6 Ohioans who have a criminal conviction and as a result are ineligible for certain jobs and licenses because of a mandatory collateral sanction (of which there are many in Ohio law).  To date 242 Ohioans have received a CQE, and more are expected to apply when word gets around that this relief is available. The legal effect of a CQE is to lift mandatory collateral consequences that operate as a bar to employment or professional licensing under Ohio law:  [A CEQ] lifts the automatic bar of a collateral sanction, and a decision-maker may consider on a case-by-case basis whether to grant or deny the issuance or restoration of an occupational license or an employment opportunity, notwithstanding the individual’s possession of the certificate. Any Ohio resident with a conviction under Ohio law may apply for the CQE one year after completing their sentence for a felony, or after six months for a misdemeanor.  Those who were subject to the supervision of the state correctional system must submit an online application to the Ohio Department of Rehabilitation and Correction (DRC). If the petition passes the DRC review – for completeness only — the applicant then files it in the Ohio common pleas court in the county of his or her residence. One shortcoming in the bill is that Ohio residents with out-of-state or federal convictions are ineligible to apply for a certificate, though they are exposed to the same collateral sanctions, nor are people with Ohio convictions who don’t reside in the state. See § 2953.25(A)(6)(defining “offense” as “any felony or misdemeanor under the laws of this state”) and § 2953.25(B)(5) (petition shall be filed in “the court of common pleas of the county in which the individual resides,” and court shall notify “the prosecuting attorney of the county in which the individual resides that the individual has filed the petition”).  We hope this shortcoming will be fixed in the coming legislative session.  (We note that Ohio’s sealing statutes somewhat anomalously apply to out-of-state and federal convictions. Like most judicial restoration statutes, the CQE statute requires the court to make certain findings of fact after a thorough background investigation.  The standard for issuing a certificate is whether the individual has established by a preponderance of the evidence that (a) granting the petition will materially assist in obtaining employment or occupational licensing; (b) the individual has a substantial need for the relief in order to live a law-abiding life; and (c) granting the petition would not pose an unreasonable risk to the safety of the public or any individual.   Ohio Rev. Code Ann. § 2953.25(C)(3).  The certificate is “presumptively revoked” if the individual is convicted of or pleads guilty to a felony offense committed after issuance of the certificate.  § 2953.25(H). The court where the application is filed must notify the court where the conviction occurred that the applicant has filed a request for a CQE, and must also notify the prosecutor and the victims and seek their views.  The application process is explained in greater detail here. Why would a CQE make an applicant more attractive to an employer?  There are two reasons:  first, the statute protects an employer from a negligent hiring claim if the CQE recipient, after being hired, demonstrates dangerousness or commits a felony.  Second, a CQE issued by the court may reassure the employer that the applicant has been fully investigated by a court.  Finally, a certificate may give the employer a measure of protection from bad publicity. The CQE remedy offers hope to so many Ohioans whose only available remedy to avoid mandatory employment-related penalties resulting from their conviction was a pardon. But it is not an easy process. The CQE applicant must complete a 16 page online application. It can be a daunting process for those applicants with limited education or even access to a computer. Enter the University of Akron School of Law and its Reentry Clinic. Started in March 2008, the Reentry Clinic offers assistance with judicial sealings and gubernatorial pardons. In June 2013, the clinic expanded its program to include helping clients with the CQE application process. Once a month, the law school holds a free clinic for individuals interested in applying for a CQE.  Staffed by volunteer law students, the CQE clinic assists applicants with completing and submitting the online application. It also offers follow-up assistance to those attendees who need help printing and filing their applications. Since the first CQE clinic in June 2013, over 1000 clients have come to the clinic. Volunteers have completed 391 CQE applications, and many of these have received CQEs. The law school is expanding its CQE clinic other parts of Ohio, thanks to a grant from the Ohio State Bar Foundation, and will replicate the Akron model in Cleveland, Youngstown, Toledo and Columbus. It will collaborate with Towards Employment, the Youngstown mayor’s office, the University of Toledo Law School and Capital University Law School to hold the clinics in each city. The grant also provides funding to educate Ohio employers about the benefits of the CQE, and funds a survey of CQE recipients to gauge the success of the CQE. The law school has already begun the survey, and reports from a small sample of CQE applicants are positive. Half of those surveyed reported that the CQE had assisted them with either getting a job or improving their position with their current employer. Stay tuned for more reports from Ohio on this exciting new remedy. For more information about the CQE clinic, you may visit the clinic website, or contact Professor Joann Sahl, jsahl1@uakron.edu.     Read more