Tag: criminal records

Reduced charge more harmful than original?

An earlier post highlighted the dilemma that some young Wisconsin defendants face because of the narrow scope of the law on sealing conviction records.  The court can seal the record of certain convictions, but the record of dismissed charges remains accessible to the public in a searchable online database.  Therefore, the dismissal can increase the potential for prospective employers to learn of an applicant’s legal troubles.

Now the Wisconsin Court of Appeals has held that the court may not seal the record of a nSeal-of-Wisconsinon-criminal violation.  Kenosha County v. Frett, 2014AP6 (Wis. Ct. App. Nov. 19, 2014).  The appellate court reviewed the statutory language and concluded that references to 1) the maximum term of imprisonment for sealable offenses; 2) “completion of the sentence”; and 3) “certificate of discharge” from the “detaining or probationary authority” showed that the procedure applies only to criminal convictions.

For a young woman cited in 2012 in Kenosha County for underage drinking, now a college student in New York, the decision means that the record of her conviction for the amended charge of littering remains publicly accessible.  If she had been convicted of drug possession or fraud she might have been able to close the book on this episode.

Although the Frett case did not involve the reduction of criminal charges, the decision means that some defendants might prefer to have a sealed criminal conviction than to have a public record of a reduced, non-criminal charge (the public record of the reduced charge also shows the original charges).

The Frett decision may be appealed to the Wisconsin Supreme Court, and policymakers are considering statutory amendments to expand judicial authority to seal records.  For now, however, non-criminal dispositions and dismissals are publicly accessible in situations in which some criminal convictions can be sealed.

Canada stiffens policy on sealing of criminal records – but it still looks pretty liberal from here

A couple of news items about an increase in clemency applications in Canada made me curious to learn more about how restoration of rights works in our Northern neighbor.

Canada has long had a policy of virtually automatic sealing of criminal records through what is known as a “record suspension” (before 2012, called a “pardon”).  The Criminal Records Act (CRA) makes record suspension available from the Parole Board of Canada for any offense except sex crimes involving children, and to any individual except those convicted of multiple serious crimes, after waiting periods of five years from completion of sentence for “summary” offenses and 10 years for “indictable” offenses.  (Prior to 2012 the waiting periods were three and five years.)  Non-conviction records may be purged sooner.

Once a record has been suspended, all information pertaining to convictions is taken out of the Canadian Police Information Centre and may not be disclosed without permission from the Minister of Public Safety.  The CRA states that no employment application form within the federal public service may ask any question that would require an applicant to disclose a conviction.  It is unlawful under Section 3 of the Canadian Human Rights Act to discriminate in employment or housing or union membership against anyone based upon “an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.”

In 2012-13 the PBC ordered more than 6600 pardons and records suspensions, 97% of all applications received.  (According to the PBC website, since 1970 more than 460,000 Canadians have received pardons and record suspensions. “96 percent of these are still in force, indicating that the vast majority of pardon/record suspension recipients remain crime-free in the community.”)

The 2012 amendment of the CRA to extend the eligibility waiting periods has resulted in an increase in applications for the extraordinary remedy of “clemency,” which has higher standards but no eligibility waiting period.  Clemency, formally known as the “Royal Prerogative of Mercy” (RPM), may be granted in federal cases by the Governor General or the Governor in Council (i.e. Federal Cabinet), and applications are staffed by the PBC.   Clemency is intended “only for rare cases in which considerations of justice, humanity and compassion override the normal administration of justice.” All other avenues of relief must have been exhausted, and there must be must be “clear and strong evidence of injustice or undue hardship.”  In contrast to the thousands of ordinary records suspensions granted each year in Canada, there are only a handful of these extraordinary clemency grants.  In 2012 there were 52 RPM applications and only 12 grants.

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Federal regulation of criminal background checking

FINGERPRINTTwenty years ago, criminal record background checks for employment were rare. Today, the easy accessibility of criminal records on the Internet, and the post-September 11th culture of heightened scrutiny, have contributed to a sharp increase in background checks of job candidates.  If you’re applying for jobs in most industries, expect employers to ask about a criminal record at some point in the hiring process—and expect many of them to run a background check on you.

It’s a harsh reality for an estimated one in four U.S. adults who have some type of criminal record.  Unfortunately, any involvement with the criminal justice system—even having minor or old offenses—could become a job obstacle for these 70 million Americans. Even if you’ve avoided a run-in with the law, you could still find yourself being unfairly screened out for a job due to an erroneous background check report. With thousands of private background check companies across the country that have varying levels of reliable information, inaccuracies in these reports are far too common.

Unknown to many job candidates, private background check companies and the employers relying on their reports are regulated by a federal consumer protection law called the Fair Credit Reporting Act (FCRA).  Although more well-known in the credit report context, FCRA also applies to companies that produce criminal background check information, and gives job-seekers a number of protections.

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“Second Chances for Teen Offenders”

This New York Times editorial urges states to seal or expunge juvenile records “so that young offenders are not permanently impaired by their youthful transgressions.”  It describes a new study from the Juvenile Law Center that concludes “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to [juvenile] records.”

The first juvenile courts were established more than a century ago on the principle that children deserve special care under the law because they are vulnerable, because their transgressions tend to be nonviolent and because they can be expected, on the whole, to outgrow their youthful misbehavior.

These presumptions are borne out by data showing that 95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood. But because some juvenile court records remain open to the public when they should have been sealed or expunged, these young people can be denied jobs, housing and even admission to college.

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