Tag: criminal records

“Decades-long Arrest Wave Vexes Employers”

The Wall Street Journal has been running a well-researched series by Gary Fields and John Emschwiller on the consequences of mass conviction.  The installment last week (“Decades-long arrest wave vexes employers”) describes the dilemma facing employers caught between legal limitations on who they can hire and legal obligations to be fair. Hiring the most capable workers seems a luxury most employers can’t afford. Companies seeking new employees are forced to navigate a patchwork of state and federal laws that either encourage or deter hiring people with criminal pasts and doing the checks that reveal them. Employers are having to make judgments about who is rehabilitated and who isn’t. And whichever decision they make, they face increasing possibilities for ending up in court. Last August these two veteran reporters wrote about the increasing number of Americans burdened with status-based restrictions (“America Busted: As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime”), and two weeks ago they wrote about the assembly line justice in misdemeanor courts that makes it easy to pick up a criminal record (“Justice is Swift as Petty Crimes Clog Courts”).  The current installment shows how employers struggle to reconcile their conflicting obligations to protect their workplace and comply with state laws that may send conflicting signals (don’t ask, but do restrict). A final installment will deal with the difficulty for individuals with a record to restore their legal rights and social status. The article describes the conflicting signals sent by laws that encourage or require more stringent background checks, laws that direct employers not to ask about criminal record until an offer is made (“If it is a disqualifying offense, you’ve just wasted both the candidate’s and the employer’s time”), and the threat of EEOC enforcement action or negligent hiring suits.  Courts have backed employers in their use of background checks: A judge last year dismissed an EEOC suit accusing a Dallas events-marketing firm, Freeman Co., of a pattern of discrimination based partly on its use of criminal-background information. Judge Roger W. Titus, in dismissing the suit in federal court in Greenbelt, Md., said the agency was asking companies to ignore “criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC.” At the same time, laws that require employers to fire qualified workers seem ripe for challenge: Ohio in 2007 passed a law barring people convicted of certain crimes from working in public schools. The Cincinnati system discharged 10 employees, nine of them black. Two of the nine filed a suit in Cincinnati federal court, which is still pending, alleging racial discrimination.     One plaintiff, Eartha Britton, 60 years old, was an instructional assistant and 18-year veteran. Her crime: a 1983 conviction for being a go-between in the sale of $5 worth of marijuana, a conviction that was later expunged, the suit said. Through her attorney, she declined to be interviewed. In situations where the law does not require rejection, employers must do their best to reconcile the “varying impulses—to give job seekers a fair shot, to keep workplaces safe and to keep companies out of legal jeopardy.” Some states have developed standards to assist employers in charting this course, and others invite reliance on restoration mechanisms such as pardon or expungement (to be discussed in the next WSJ article).  It seems that employers who are trying to do the right thing would welcome some more coordinated national effort to address the issues raised by mass conviction.   Read more

Discipline for schoolgirls differs by race and skin tone

The New York Times this morning describes data from the U.S. Department of Education’s Office for Civil Rights showing that African-American girls tend to face more serious school discipline than white girls.  “For all the attention placed on problems that black boys face in terms of school discipline and criminal justice, there is increasing focus on the way those issues affect black girls as well.”  Black girls who get in trouble at school are also more frequently referred to the criminal justice system, where they can incur a criminal record that sticks with them into adulthood. The article tells the story of 12-year-old Mikia, who was charged with a crime after she and a friend wrote graffiti on the walls of a gym bathroom at Dutchtown Middle School in Henry County, Georgia.  The incident was a surprise to her parents, since Mikia was a good student who had not been in any trouble before: Even more of a surprise was the penalty after her family disputed the role she was accused of playing in the vandalism and said it could not pay about $100 in restitution. While both students were suspended from school for a few days, Mikia had to face a school disciplinary hearing and, a few weeks later, a visit by a uniformed officer from the local Sheriff’s Department, who served her grandmother with papers accusing Mikia of a trespassing misdemeanor and, potentially, a felony. As part of an agreement with the state to have the charges dismissed in juvenile court, Mikia admitted to the allegations of criminal trespassing. Mikia, who is African-American, spent her summer on probation, under a 7 p.m. curfew, and had to complete 16 hours of community service in addition to writing an apology letter to a student whose sneakers were defaced in the incident. Her friend, who is white, was let go after her parents paid restitution. Michael J. Tafelski, a lawyer from the Georgia Legal Services Program who represented Mikia in the school disciplinary hearing, said his office had filed a complaint with the Justice Department claiming racial discrimination and a violation of the Civil Rights Act: “I’ve never had a white kid call me for representation in Henry County,” Mr. Tafelski said.   “What kid needs to be having a conversation with a lawyer about the right to remain silent?” he said. “White kids don’t have those conversations; black kids do.” A study conducted by Villanova sociologists shows that skin tone also affects the rate of school discipline. Among a cohort of African Americans, girls with darker skin tone were three times more likely to be suspended than girls with lighter skin tone: There are different gender expectations for black girls compared with white girls, said Lance Hannon, a Villanova sociology professor who conducted the analysis. And, he said, there are different expectations within cross-sections of black girls. “When a darker-skinned African-American female acts up, there’s a certain concern about their boyish aggressiveness,” Dr. Hannon said, “that they don’t know their place as a female, as a woman.” The long-term damage done by school disciplinary practices is aggravated when it is perceived as unfair: Catherine E. Lhamon, the assistant secretary for civil rights at the Department of Education, whose office published a report on school discipline in March that offered recommendations for how to improve disciplinary practices in schools, said the discrepancies in disciplinary practices were not lost on young girls of color. “The felt experience of too many of our girls in school is that they are being discriminated against,” she said.  “The message we send when we suspend or expel any student is that that student is not worthy of being in the school,” Ms. Lhamon said. “That is a pretty ugly message to internalize and very, very difficult to get past as part of an educational career.” When school discipline results in a criminal record, it is difficult to get past as part of life in general. Read more

Guess who’s driving for Uber

The background checking policies of Uber and other ride-sharing companies like Lyft and Sidecar are again in the news, after an Uber driver with an extensive criminal record allegedly raped a female passenger in New Delhi.  Other horror stories of cab rides from hell with these popular “taxi aggregators” are surfacing.  The New York Times reports that background check requirements for taxi drivers vary widely by jurisdiction, but are “generally more rigorous” than the sketchy services used by Uber and its competitors, and “usually include searches of private databases like F.B.I. records.”  (Note to self:  Must inform the “paper of record” that the FBI records system is not a “private database.”) Uber et al. have so far successfully resisted most legislative efforts to require them to perform particular kinds of background checks using particular kinds of background checkers, using the good offices of well-connected lobbyists to avoid this annoying speed bump on their road to a public offering.  But episodes like the New Delhi rape, and lawsuits for misleading consumers about the kinds of checks they do, may bring them around to a more responsible position. Sooner or later Uber and its confreres will likely be compelled to do responsible background checking of driver applicants, and they should be.  But the more interesting question is what standards these new age taxi companies will apply to test the suitability of their driver candidates. A search of the Uber website finds only the anodyne statement that a potential driver must have a “clean record.”  Various news accounts suggest that a felony conviction will always be disqualifying, but beyond that Uber’s hiring criteria appear unclear.  One question that occurred to me was whether a 20-year-old felony conviction for, say, credit card fraud or tax evasion would disqualify a person from driving for Uber where a fairly recent misdemeanor assault or reckless driving conviction would not.  News accounts do not say whether Uber executives (perhaps an oxymoron) are expected or permitted to exercise discretion in hiring, or what the consequences are when an Uber driver has some run-in with the law, whether or not it involves driving. In her excellent new article on collateral consequences in local regulations (previewed elsewhere on this site), Amy Meek argues that driving a taxi is one of those entry-level occupations that ought to be available to people whose opportunities in the workforce are otherwise limited, like an immigrant or someone with a criminal record.  At the same time, public safety considerations are obviously paramount where someone is expected to entrust their safety to a total stranger, albeit temporarily.  I agree with Meek that “While criminal background check policies have been upheld as permissible public safety regulations, responsible policies should refer to relevant convictions only and clearly outline the standards for relevance.”  If state or local governments decide to impose rigorous background check requirements on Uber and similar ride-sharing operations, they should at the same time supply specific guidance about when a taxi driver’s criminal record should be considered disqualifying and when it should not. Read more

“One Strike and You’re Out:” Center for American Progress reports on criminal records policy

Earlier this week, the Center for American Progress published a new report on the effect of the proliferation of criminal records in a nation of mass incarceration and criminalization. The report (“One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records”) explores the debilitating effect that a criminal record – including records for relatively minor offenses and for arrests that did not result in a conviction – can have on an individual’s access to housing, public assistance, education, family stability, and, in turn, their prospects for economic stability. The report’s authors are Rebecca Vallas of the Center for American Progress’s Poverty and Prosperity Program, and Sharon Dietrich of Community Legal Services of Philadelphia (and of our own CCRC Board). The report makes the point that the proliferation of criminal records, and the ease with which they can be accessed, harms not only individuals but society as a whole. The collateral consequences of a criminal record result in employment losses of $65 billion a year in GDP according to one study cited. Another study estimates that the national poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the accompanying criminal record crisis. The report notes that the war on drugs and the “criminalization of poverty” has resulted in a disproportionately high incidence of justice system contact in communities of color. Criminal records are thus both a cause of poverty and a consequence of poverty. “Failure to address the barriers associated with having a record as part of a larger antipoverty strategy risks missing a huge piece of the puzzle,” Vallas told me shortly after the report’s publication. “On the flip side, enacting policies to remove those barriers and provide a second chance has the potential to make a huge dent in our nation’s poverty rate.” To this end, the report recommends broadening access to expungement and record sealing, expanding fair employment and housing protections, and requiring accuracy in criminal background checks. Some of the recommendations target specific collateral consequences like the felony drug ban for federal nutrition assistance, and for federal financial aid for those with drug convictions. The report also gives examples of laws and policies already on the books that can serve as models for reform. I also asked Vallas about the prospects for meaningful reform in the current political climate. This is what she had to say: Bipartisan momentum in support of criminal justice reform — including second-chance policies — has been growing for the past several years. We seem to have moved past the “tough-on-crime” era and into a new “smart-on-crime” era with increased support for criminal justice policies that avoid needless incarceration. This shift appears to have happened in part because of the enormous costs of incarceration — the U.S. spends more than $80 billion per year on locking people up, and more than $270 billion per year if you count the costs of law enforcement, policing, etc. — and because of increased interest in evidence-based policies that support reentry, reduce recidivism, and increase public safety and spend law enforcement resources more effectively. There’s also a strong faith-based argument, that we’re a society that practices and values redemption. Additionally, the impact on the national economy has begun to get people’s attention. A study by the Center for Economic and Policy Research, or CEPR, which we cite in the report, finds that the cost of employment losses from people with records being shut out of the labor market is as high as $65 billion per year in GDP terms. That’s a big hit to our nation’s bottom line. In researching the report, I pulled together a bunch of quotes from prominent elected officials and thought leaders across the political spectrum, calling for criminal justice reform and second-chance policies—and I realized that when you take away the names of who said them, it’s nearly impossible to tell whether each came from a Democrat or a Republican. It’s extremely encouraging, especially at a time when the word “bipartisan” doesn’t apply to too many issues. There’s a lot of hope and optimism that we’ll see real progress on these issues in the next Congress, as well as continued positive steps at the state and local levels. Editor’s note: We think it is particularly hopeful that the Center for American Progress, generally considered the think tank of the Democratic Party, is now taking an interest in issues that for many years have been considered a third rail by progressive candidates for office. Perhaps a constructive practical approach to criminal justice issues will replace fear-mongering and stereotypes in the 2016 election cycle. Perhaps we can finally abandon the unfortunate phrase “soft on crime” without needing to be reassured that we are being smart about it.  —  Read more

California’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights)

Prop 47 and restoration of rights  California’s recently enacted Proposition 47 fundamentally alters the landscape for a handful of lower-level felony offenses in California. As discussed by Jeffery Aaron in a previous post, Prop 47 reclassifies eight offenses as misdemeanors, including simple drug possession offenses and theft of less than $950. Anyone with a qualifying conviction, who also does not have a disqualifying prior, can now petition under Prop 47 to have a felony reclassified as a misdemeanor. The most significant and immediate relief will be for people who are incarcerated for qualifying low-level felonies and who are now eligible for resentencing and release. Public defender offices around the state are busy filing those petitions. But, Prop 47 also allows two other populations to petition for reclassification of their qualifying felonies to misdemeanors: People who are under supervision but not incarcerated (on probation, parole, or post-release community supervision), and people whose sentences were completed long ago. This aspect of the new law presents good opportunities for tens of thousands of Californians, and not insignificant implementation challenges. Simply by reclassifying certain offenses from felonies to misdemeanors, Prop 47 can undo some of the most serious collateral consequences.  It’s clear from our experience providing reentry legal services to thousands of clients over the years that people with felony, as opposed to misdemeanor, convictions face increased barriers to employment, housing, and full and meaningful community reintegration and citizenship. For example, people with a felony conviction, even a decades-old low-level offense, can never serve on a jury in California. For many people, Prop 47 will reverse this lifetime disenfranchisement and move them one step closer to full civic engagement. But unfortunately, many of the statuary and extra-legal barriers to successful reentry that block people convicted of felonies also apply to people with convictions for misdemeanors and criminal infractions. Consequently, Prop 47 relief alone is not a cure-all for collateral consequences, and for most people it’s not even the most important petition they can file to overcome the statutory disabilities they face.  The following section describes how Prop 47 relief interacts with other California relief mechanisms. Interaction of Prop 47 with other relief mechanisms In California, meaningful protection against employment discrimination on the basis of a conviction—felony or misdemeanor—comes from a complicated web of local, state, and federal laws and regulations, including sections of the Penal, Labor, and Business and Professions Codes, the federal Fair Credit Reporting Act and its California analogue, and local ordinances. Most of our reentry clients become employable through these steps: First, we help them petition to obtain set-aside and dismissal relief pursuant to Penal Code sections 1203.4 (felony and misdemeanor probation cases), 1203.4a (misdemeanor and infraction non-probation cases), and 1203.41 (felony jail cases) for all convictions. (Note:  While these authorities are sometimes called “expungement,” there is no true record-closing remedy for most cases; these “dismissed” convictions remain on a person’s record and in public court records, do not restore driving privileges or gun rights, and still must be reported for many types of employment). Second, we help them navigate the complicated obligations of disclosure, and where applicable, invoke the protections under Labor Code section 432.7(a) that prohibit some—but not all—prospective employers from inquiring about or considering dismissed convictions for some—but not all—jobs. Third, if a background check company reports dismissed convictions to a potential employer in violation of the law (and chances of that are unfortunately high), we help them invoke protections under the Fair Credit and Reporting Act and its California analogue, and try to convince the background check provider to disseminate a corrected report check in a timely way. Fourth, we work to convince the employer to make the hire despite the erroneous background check, and if the employer declines to reconsider, we invoke the protections of Title VII of the Civil Rights Act, where applicable, and local ordinances, such as San Francisco’s Fair Chance Ordinance. Note that there are different, even more complicated laws, regulations, and processes covering the 30% of jobs in California that require fingerprint clearances. If threading this needle sounds daunting, imagine what it’s like for people doing it without the benefit of legal advocacy. Prop 47 creates a welcome additional reentry remedy to the web of reentry and restoration laws in California, but also creates additional complexities.  There are many different routes to relief in California, depending on the disposition of the criminal case, and Prop 47 reclassification may not be the only or even the best route available.  For example, someone who is a licensed security guard who has an old conviction for simple possession of drugs may be eligible for Prop 47 reclassification, but he may also be eligible for a reduction of a felony to a misdemeanor pursuant to Penal Code section 17(b). If he receives Prop 47 relief, he continues to face a lifetime firearm ban. If he obtains 17(b) relief, he may have his firearm rights restored, and can apply for a license as an armed security guard, a pathway to employment with family-sustaining wages — something out of reach for many in the reentry population, even those who do have jobs. More broadly, people will need to affirmatively file for Prop 47 relief, and for some offenses prove eligibility. In order to take full advantage of protections that limit collateral consequences of conviction beyond reclassification, they need to determine if they are eligible for other reentry remedies and file for those in all of their cases in all counties, including but not limited to early termination of probation, set-aside and dismissal, Certificate of Rehabilitation, restoration of rights for veterans pursuant to Penal Code section 1170.9, juvenile record sealing, and reduction of felony fines and fees. And the many people who will learn that they are ineligible for Prop 47 relief will need advice about other legal remedies that can help them realize their goals in reentry. Immigration It is particularly important that non-citizens understand the impact of Pro 47 relief in their cases. Changing a felony to a misdemeanor could have many important consequences for immigrants.  It could expand relief from removal for some, and eliminate the basis of removal for others. Crucially, Deferred Action for Parental Accountability (DAPA) and the expanded Deferred Action for Childhood Arrivals (DACA)—announced by President Obama November 20, 2014—are barred to immigrants with a single felony conviction and certain misdemeanor convictions. Reclassifying an offense as a misdemeanor under Prop 47 could create an opportunity for temporary relief from removal and work authorization that would otherwise be unavailable to many individuals. Additionally, when combined with another momentous change this year to California’s Penal Code under SB 1310, which reduced the maximum on misdemeanors from 365 to 364 days, Prop 47 reclassification could eliminate a ground of deportability. The timing of relief is also important to consider. Immigrants who would benefit from the 1-day reduction in the misdemeanor maximum should wait until January 1, 2015, when the new law, Penal Code section 18.5, goes into effect, before seeking relief under Prop 47. But, at the same time, Prop 47 will unfortunately do little to mitigate the disastrous immigration consequences of most drug convictions. With the exception of DAPA/DACA eligibility (which is available to otherwise qualifying individuals with one misdemeanor drug possession conviction), almost all other drug convictions, even if reclassified as a misdemeanor under Prop 47, will continue to be grounds for mandatory removal. Summary  The release of people from prison currently serving sentences for low-level offenses is an unmitigated success of Prop 47. For people no longer in custody and who have completed their sentences, Prop 47 is a welcome addition to the tangle of laws that form California’s reentry policy. However, to fully realize Prop 47’s promise to limit the counterproductive, costly, and inhumane collateral consequences of low-level felony convictions, implementation of this law must include reentry legal services to help people address the unique issues in their cases. And it’s not clear that county public defender offices have the expertise or resources to take on this full range of legal advocacy—which includes immigration, employment, consumer, and administrative law—for their thousands of past clients. It’s important to figure out, and quickly, how to make these services widely available. California has only three years to get this right.   This post was co-authored by Meredith Desautels. Meredith is a staff attorney in the racial justice program at the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, and directs the Lawyers’ Committee’s Second Chance Legal Clinic. Rose Cahn, a Soros Justice Fellow at the Lawyers’ Committee specializing in post-conviction relief for noncitizens, also contributed substantially to this piece.  Read more