Tag: criminal records

New York Times weighs in on college applications and criminal records

The New York Times has published an editorial about the recently issued report of the Center for Community Alternatives on the deterrent effect of questions about criminal records on applications for admission to the State University of New York.  (See the piece about the report “Boxed Out: Criminal History Screening and College Attrition” by CCA Director Alan Rosenthal published in this space 10 days ago.)  The editorial notes that the 24 campuses of the CUNY system do not include “the box” asking about criminal record on their application forms and have reported no safety issues as a result.  Perhaps this will be one of those rare cases where effective public advocacy highlighted in editorial pages will actually have a concrete result. Americans who have criminal histories are often stymied when they encounter college entry applications that ask if they have ever been convicted of crimes. The process, which often brings greater scrutiny to people who answer “yes,” is driving away large numbers of people who present no danger to campus safety and are capable of succeeding academically. Similar problems have faced people with records when they look for jobs, but progress on that front could be a model for reforming college admissions. Fourteen states and about 100 local governments have worked to minimize job discrimination by barring public — and, in many cases, private — employers from asking about criminal convictions until later in the application process, when the person has had a chance to prove his or her worthiness for the job. Heightened concern on campuses about criminal records can be traced in part to the 1986 murder of Jeanne Clery, a 19-year-old who was killed in her dormitory at Lehigh University. The killer did not have a criminal conviction record. Congress responded by passing the Clery Act in 1990, requiring schools to publicly report violence on campus. The practice of collecting criminal history information on applications became common a decade ago, after questions about an applicant’s criminal convictions were added in 2006 to the Common Application, now used by nearly 500 colleges. Many schools reacted by taking into account minor offenses like alcohol convictions by applicants, who are often asked to produce official rap sheets. These records can contain inaccurate information and show juvenile offenses that have been sealed by the courts — which means they should never be viewed publicly or used in such a process. Schools often fail to train their staff members in how to weigh criminal history information. As a result, people who check “yes” on the felony box can find themselves trapped in a Kafkaesque world where they are peppered with Inquisition-style questions and repeatedly asked to find documents that do not exist or are impossible to provide. It is no surprise that many students would become discouraged. A new study by the Center for Community Alternatives, a nonprofit group that focuses on alternatives to incarceration, suggests that many more people with convictions actually give up than complete the applications process. The study looks at the process at 60 of the 64 campuses of the State University of New York. It found that nearly two-thirds of applicants who checked “yes” in the felony box never completed the applications process. By contrast, the 24 campuses of the City University of New York do not ask applicants about their criminal histories. Administrators insist that this has not posed a safety problem. The study notes that “the power of label and stigma, which shapes the life experiences of people with criminal history records in 21st-century America, discourages many from trying to push open doors that seem locked tight.” It calls on the State University of New York and all colleges to exclude the criminal history question from applications and end the use of that information in admissions decisions. Read more

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. 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.” The St. John’s law school application form asks whether the applicant has ever been “charged with, pleaded guilty to, or been found guilty of any crime, offense or violation” except for minor traffic violations. The school’s lawyer argued that Powers caused his own problems by not being truthful when he applied for admission — though he conceded that if Powers had disclosed the more serious distribution charges “he would have been denied from the outset.” The judges expressed concern that people like Powers should have to face the ramifications of youthful criminal conduct later in life despite managing subsequently to lead law-abiding lives.  Powers’ record was expunged under New Jersey law shortly after his admission to law school. Chief Judge Lippman thought St. John’s should have taken into account the subsequent expungement in deciding what if any action to take against Powers after the fact: We think about young people whose lives are ruined because of a single mistake at one point in their life and where policy makers say, “Not right. One offense, so many years ago, whatever age, whatever the statute is. We want to make sure that the young person’s life is not ruined. Expunge the record.” (Note that New York law does not authorize courts to expunge adult convictions, though New Jersey does.)  Judge Eugene Pigott Jr. wanted to know why Powers was not given a hearing before the school took action against him: I would have thought there should have been a hearing somewhere where these people would have come in and said, “Yeah, this the worst guy we ever saw and thank God St. John’s was able to catch him before he went to the Second Department and got admitted as an attorney.” Powers’ attorney, Roland Acevedo, called his client a “poster child” for rehabilitation, a claim that several of the judges appeared to agree with.  Acevedo himself had a past conviction for armed robbery when he was admitted to the bar in 1997, and he often represents lawyers and others who seek to practice their professions despite a criminal record. When people make efforts to change behavior, such as Powers, such as I did by getting treatment and then getting educated, that should amount to something in people’s eyes,” said Acevedo, a graduate of Fordham University School of Law. “Everybody is entitled to a second chance, but when people show they are entitled to it by doing something that is not easy in any arena, that should be worth something, especially in the case of Mr. Powers.” In 2013, a 3-1 Appellate Division, Second Department, panel upheld the law school’s actions.   See 110 AD3d 888.  While the majority said it did not consider the penalty imposed to be “shocking to one’s sense of fairness,” the dissent thought it excessive.  At the least, Powers should have been dismissed so that he could transfer with the credits earned in his first three semesters. In an amicus curiae brief filed in support of Powers, several New York legal services groups told the court that Powers had truthfully disclosed his criminal record to St. John’s, arguing that the question on the application form was ambiguous. They urged the judges to prevent him from being penalized because of the message it would send to their clients who have faced criminal charges in the past. “If an institution of higher education, or by extension an employer or housing agency, can require applicants to answer ambiguous questions about their criminal conviction histories and then, at any time after granting appeal, penalize them based on the institutions’ misinterpretation of their responses, our clients have no defense against arbitrary and discrminatory action,” the groups said in a brief prepared by Community Service Society attorneys Judith Whiting, Kimberly Westcott and Paul Keefe. Other groups joining the brief were the Bronx Defenders, Education from the Inside Out Coalition, the Legal Action Center, the Legal Aid Society, Legal Services NYC, MFY Legal Services, the Osborne Association and Youth Represent. The court is expected to hand down a ruling in March.   Read more

Disclosure of nonconviction records may violate European Convention on Human Rights

This is the most recent in a series of posts by Professors James Jacobs and Elena Larrauri comparing criminal records disclosure policies in the United States and Europe.  The decision of the European Court discussed below invalidated a policy of the United Kingdom authorizing broad disclosure of non-conviction records relating to child victims.  (The U.K.’s policies on disclosure are closer to those of the U.S. than they are to those of continental countries.)  While the U.K. has subsequently narrowed its disclosure policy, it remains to be seen whether even as amended the U.K.’s disclosure policy will pass muster under the European Convention on Human Rights. THE CASE OF M.M. v. THE UNITED KINGDOM [2012] ECTHR  (APPLICATION NO.24029/07, FINAL JUDGMENT 29/04/2013). In 2000, M.M. was arrested by Northern Ireland police for child abduction. M.M. apparently took her infant grandson away from the child’s mother (estranged from M.M.’s son) to prevent her taking the child to Australia. Rather than face formal charges, M.M. agreed to accept a “police caution,” a formal reprimand from a police commander administered at the police station. (There is no U.S. equivalent.)  According to the applicable criminal records law at that time, the caution is recorded on and remains in the police database (Police National Computer) for five years and is then regarded as “spent” (expunged) and no longer available to the public.  In September, 2006, a health care company offered M.M. a child care job, subject to a satisfactory background check. In response to the company’s query about prior convictions and cautions, M.M. voluntarily disclosed the prior caution, which was verified by the Criminal Records Office of Northern Ireland. Although the caution was now more than five years old, the Criminal Records Office explained that, under a new policy (triggered by the infamous Soham murders), police permanently retain and disclose cautions related to child victims.  Consequently, the company withdrew the job offer.  M.M. challenged the U.K.’s disclosure policy in the European Court of Human Rights. (In 2002, the U.K. had been rocked by the murder of two school girls in Soham by the school’s custodian. The police had information in their files pertaining to his previous  sex offending, but had not alerted the school because there had not been a conviction. The subsequent Bichard Inquiry recommended greater police sharing of information about allegations of sex offending and child abuse. M.M. was a “victim” of that new policy.) Pursuant to the post-Soham disclosure policies that applied to any employment requiring a background check, caution data contained in central records must always be retained in police files and disclosed without regard to the provisions of the Rehabilitation of Offenders Act.  (The ROA would ordinarily require deletion of “spent” caution information after a certain period of time.)  Prior to 2012, these policies made no distinction based on the seriousness or the circumstances of the offense, the time which has elapsed since the offense was committed, and whether the caution or conviction is spent. In short, there appeared to be no scope for the exercise of any discretion in the disclosure exercise. The ECtHR found that the U.K’s. policy violated the European Convention on Human Rights’ Article 8, which guarantees “respect for private life”, i.e. a  right to privacy that protects personal data. The right to private life is not limited to personal secrets or intimacy, but extends to “the right to establish and develop relationships with other persons.” Disclosing convictions diminishes the individual’s liberty to develop social and employment relationships.  This is especially pernicious when the information refers to a distant event that everyone other than the record-subject is likely to have forgotten about. Moreover, European legislation considers convictions and police cautions as personal protected data covered by data protection laws regarding information collection, storage and disclosure. The U.K. sought to defend its criminal records retention and disclosure policy by invoking Article 8, section 2, which provides that: There shall be no interference by a public authority with the exercise of this right [to privacy] except such as  is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others’. The ECtHR held that such a heavy-handed (over-inclusive) record retention and disclosure policy could not be justified by the need to prevent sexual and other abuse of children. According to the ECtHR, Article 8 requires a more nuanced policy on disclosing information known to the police. Because police cautions are not public information, the disclosure policy must take into account the facts of the particular case, including the nature of the offence, the case’s disposition, the length of time since the offence took place and its relevance to the employment sought.  The Court highlighted the absence of a clear legislative framework for the collection and storage of data, and the lack of clarity as to the scope, extent and restrictions of the common law powers of the police to retain and disclose caution data. It further noted the absence of any mechanism for independent review of a decision to retain or disclose data. Finally, the Court noted with approval a 1987 Council of Europe Recommendation regulating communication of police data to third parties. According to the Recommendation, disclosure is permissible only when necessary to prevent a serious and imminent danger. The UK’s policy was not consistent with that standard, and so was the court ruled it invalid on its face. The U.K. disclosure rules invalidated in M.M. have now been substantially revised.  In 2012, the U.K. enacted the Protection of Freedoms Act and established the Disclosure and Barring Service to administer its provisions relevant to authorized background check requests.  New “filtering rules” adopted by the DBS provide that some convictions and cautions will not be disclosed if: a) 11 years have elapsed since the date of conviction or six years in the case of a caution; b) it is the person’s only offense; and c) the offense did not result in a custodial sentence. Even then, it will only be removed if it the underlying offense is not one of  the more than 1000 offenses (notably offenses involving child victims) that will always be disclosed.  Under these new “filtering” rules, M.M.’s caution would still be disclosed. Time will tell whether the EctHR will approve this limited policy revision. The U.S. does not have the formal cautioning procedure that exists in the U.K. However, diversion from prosecution is common, usually for minor offenses. Whether the successful completion of a diversion program will lead to expungement of the arrest and charges depends upon each state’s laws. A number of states require that arrests that do not result in a conviction be automatically deleted from the rap sheet and that corresponding court records be sealed. Most states provide for such deletion only upon court order, and make exceptions for conduct involving sex offenses or crimes of violence. However, even in the few states that require deletion automatically, the required deletion often does not occur because of failure to communicate the disposition information to the state records repository. Moreover, during the time before charges are dismissed, the arrest and charge information can be obtained and copies from court records and, by authorized users, from rap sheets. Thus, arrest information is often available, even if the record-subject is not convicted. More importantly, with respect to comparison with the M.M. v. U.K. decision, there is no U.S. constitutional requirement that police or courts purge or refrain from disclosing arrest, diversion or conviction information.  See Paul v. Davis, 424 U.S. 693 (1976). Indeed, a federal appears court has recently held that dissemination of arrest information is not libelous even if it has been automatically “erased” under state law.  See Martin v. Hearst Corporation, Docket No. 13-3315 (2d Cir., January 28, 2014). Read more

Publishers not liable for internet posting of “erased” arrest records

When Lorraine Martin and her two sons were arrested in 2010 at their home in Greenwich, Connecticut on drug charges, it was widely reported in the local media.  A year later, when the state decided to drop the charges against her, the record was automatically “erased” and Martin was “deemed to have never been arrested” under Connecticut’s Criminal Records Erasure Statute.  But the contemporaneous news accounts remained available on line, and the publishers refused to remove them. Martin sued in federal court on various tort theories, including libel and invasion of privacy, relying on the “deemer” provision of the Erasure Statute.  The district court ruled that the publishers could not be held liable because the accounts were true when published, and the Erasure Statute “does not purport to change history.”  The Second Circuit affirmed. See Martin v. Hearst Newspapers, Docket No. 13-3315 (2d Cir., Jan. 28, 2015).   The court of appeals explained that Connecticut’s Erasure Statute was intended to operate in the context of the justice system, to prohibit disclosure by government agencies, to bar reliance on the arrest in any subsequent criminal proceeding, and to permit the person arrested to swear under oath that the arrest never occurred.  However, it was not intended to create any duties on the part of private parties (notably including publishers) or create a cause of cause of action against them. The few enumerated exceptions to the erasure requirements and the statute’s text confirm that the legislature contemplated erasure only in the context of the judicial and law enforcement systems. As the district court reasoned, “nothing in [§ 54-142a] suggests any intent to impose requirements on persons who work outside courts or law enforcement agencies, and nothing suggests any intent to mandate the erasure of records held by such persons.” In short, while the Erasure Statute requires the state to delete or expunge records of an arrest, and confers on the arrested person the “legal status” of a person who has never been arrested, “it does not and cannot undo historical facts or convert once-true facts into falsehoods. . . .  The Moving Finger has written and moved on.” Courts in other states with analogous statutes had reached the same conclusion.  See, e.g., G.D. v. Kenny, 15 A.3d 300, 315–16 (N.J. 2011)(“Although our expungement statute generally permits a person whose record has been expunged to misrepresent his past, it does not alter the metaphysical truth of his past, nor does it impose a regime of silence on those who know the truth.”); Bahr v. Statesman Journal Co., 624 P.2d 664, 666 (Or. Ct. App. 1981) (“The [expungement] statute does not . . .impose any duty on members of the public who are aware of the conviction to pretend that it does not exist. In other words, the statute authorizes certain persons to misrepresent their own past. It does not make that representation true.”); Rzeznik v. Chief of Police of Southhampton, 373 N.E.2d 1128, 1133 (Mass. 1978) (“There is nothing in the statute or the legislative history to suggest that, once the fact of a conviction is sealed, it becomes nonexistent, and hence untrue for the purposes of the common law of defamation.”). The result in Martin and other similar cases might easily be different under the expansive European law of privacy that produced the “right to be forgotten” holding of the European Court of Justice last May against Google.  Posts on this site by James Jacobs and Elena Larrauri suggest that it would.  The process put in place as a result of the European Court’s decision enables people to remove links to unwanted content from Google’s search results, and it has been applied in a few cases to dated minor criminal records.  The relevance of the Google ruling for American privacy law is discussed in a September 2014 New Yorker article by Jeffrey Toobin, available here, that will be fascinating to American readers and may cause a frisson in the American publishing world.   Read more

European employment discrimination based on criminal record I – mandatory bars

There is no body of research on European criminal record-based employment discrimination (CBED) comparable to the employer surveys and field studies done in the United States. While European concern for informational privacy keeps criminal records out of the public domain, European countries do not prohibit employment discrimination based on criminal record. In fact, as in the United States, European countries make certain criminal records disqualifying for a vast range of public sector and some private sector employments. This posting provides background on European, and especially Spanish, mandatory CBED. Our next posting provides background and discussion on discretionary CBED by private employers. The great comparative law scholar, Mirjan Damaska, pointed out in a classic article published more than 40 years ago that countries vary significantly with respect to which professions and occupations they place off-limits to people with a criminal record.  However, they are most often ineligible to serve as judges, military officers, high-level executive branch officials and police officers of all ranks. This must reflect a consensus that persons who hold those powerful, responsible or prestigious positions must have impeccable honesty and integrity, and that people who have been proven to engage in criminal conduct are presumed to lack those qualities of good character. Of course, this does not explain why the employment bar extends far down the ranks of civil service positions. (In some countries even a gardener working for a government agency must be conviction-free.)  European countries also have laws applying categorical restrictions to certain private sector positions, for example, bank officials and private security and gambling enterprise licensees. In addition, some European countries have passed laws requiring criminal background checks for persons applying for jobs involving close contact with children or other vulnerable persons, presumably with the purpose of ruling certain people with a record out of consideration.  A recent E.U. framework decision [CITE] requires member states to empower their courts to include in a sex offense sentence an order prohibiting the defendant from working in any position requiring close contact with children. Spain, like many European countries, generally requires a conviction-free record for employment in “public administration”, roughly equivalent to U.S. civil service. Additionally, there are laws making a clean criminal record a prerequisite for obtaining certain occupational licenses. For example, only individuals who have never been convicted of a crime (technically – no unexpunged* conviction) can be licensed as a commercial driver, a taxi driver (in some cities), operate a gambling house, work in private security or manage a private school. Moreover, some non-governmental professional organizations that possess authority to license and discipline members (for example, lawyers and notaries), also make a conviction-free record a requirement. However, the impact of these employment bars is somewhat softened because some of them (e.g. civil servant, university professor, judge) only apply if the criminal court judge explicitly imposes them as part of the sentence. In a word, they apply only if imposed as direct and not collateral consequences of conviction. Furthermore, laws or court orders restricting employment based on previous conviction do not appear to be vigorously enforced. In order for mandatory CBED restrictions to be enforceable, employers and licensing authorities must know whether a job applicant has a previous conviction. In Spain, as in most European countries, access to conviction information is severely restricted. While some government agencies (e.g. police) are explicitly authorized to obtain criminal record information directly from the National Conviction Register (NCR), other agencies (e.g. public schools) must make do with asking the job applicant to sign a statement attesting to a clean conviction record. Of course, they also have the option of asking the job applicant to submit an certificate of no criminal convictions which can be obtained from the NCR. This posting draws on Larrauri & Jacobs, “A Spanish Window on Euopean Law & Policy on Employment Discrimination Based on Criminal Record,” in EUROPEAN ENOLOGY, eds, Tom Daems, Dirk van Zyl Smit and Sonja Snacken, available here. *We will offer a post on expungement in the near future. Read more