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 non-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. Read more

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. The PBC charges $631 to process a records suspension application (its website warns that there may be additional administrative fees) and suspension orders are executed by the RCMP.  It generally takes from six months to one year to process an application, a bit longer if an application has previously been denied. There is no need to apply for a records suspension for non-conviction records, which are purged by the RCMP upon request absent compelling law enforcement reasons. The primary criterion for relief is that a person must not have committed any further crimes, and if denied an applicant may reapply after a year.  If a person whose record has been suspended commits another crime, the suspension order may be revoked. The PBC website emphasizes that there is no advantage to using the services of third party providers that hold themselves out as able to expedite record suspension applications or even grant them.  And there appear to be a number of websites that use official-looking symbols and visuals, and promise an inside track for using their services.  Judging from the tenor and frequency of warnings on the PBC website, “suspension mills” are the source of considerable official annoyance. It is nor clear whether a record suspension will be sufficient to enable a person with a Canadian conviction to enter the United States: while no record will ordinarily show up in a check of RCMP databases, U.S. authorities have access to other law enforcement databases and there is no relief from inadmissibility in UJ.S. immigration law.  While Canada has a strict policy of not allowing a person with a U.S. criminal record to enter Canada even for visiting purposes, this bar may be overcome by a showing that a person is “rehabilitated.”  For minor offenses a person may be “deemed rehabilitated” after a waiting period, but those convicted of more serious offenses must apply to Canadian immigration authorities through the closest consulate. In summary, the Canadian policy of limiting public access to criminal records appears to reflect the European and British approach to privacy of personal data.   There is not a single U.S. jurisdiction that offers convicted persons nearly as much opportunity to started over with a clean slate. Read more

Federal regulation of criminal background checking

Twenty 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. Here are a few highlights of FCRA as applied to criminal record information reports: Background check companies may not report arrests older than seven years and must have procedures to ensure accuracy of the information provided to employers. Employers must obtain authorization from the job applicant before getting the report. Before the background check report can be used to deny a job, the employer must provide a copy of the report to the job-seeker. The job applicant also has the right to dispute the accuracy of the report. Despite the letter of the law, advocates representing workers have identified background check reports that are riddled with errors. The consequences are devastating for workers unfairly denied job opportunities because of an inaccurate record, particularly in a tight labor market.  Some common errors include the reporting criminal record information of another person with a similar name, failure to include the final outcome of an arrest, reporting a stale arrest record, or reporting an item multiple times giving the appearance of a lengthy record.  The National Consumer Law Center’s Broken Records captures many of the common problems. FCRA is enforced administratively by the Federal Trade Commission, but “The ‘Wild West’ of Employment Background Checks” hasn’t been tamed.  With limited regulatory accountability, advocates have turned to litigation against some of the largest background check companies for FCRA violations.  Advocates have also urged the federal Consumer Financial Protection Bureau to take an interest in this industry because of the impact of widespread noncompliance with FCRA on consumers. Another promising strategy is to tackle the issue at the state level.  States could enact limitations on reporting of certain criminal record information, take steps to increase accuracy of records, and ensure disposition information is processed efficiently.  For example, California’s Investigative Consumer Reporting Agencies Act (ICRAA) restricts the reporting of convictions older than seven years. And recently, Indiana made regulation of background checkers a part of its comprehensive 2013 expungement and sealing scheme.  For more ideas on a state reform agenda, see this report.   CCRC STAFF NOTE:  The provisions of the Federal Fair Credit Reporting Act are described in greater detail, and court cases collected, by Sharon Dietrich in §§5:14 to 5:31 of Love, et al., Collateral Consequences of Criminal Convictions (West/NACDL 2013).     Read more

“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. An eye-opening state-by-state study by the Juvenile Law Center, a public interest law firm in Philadelphia, reveals the scope of the problem. A young person who is arrested acquires a paper or electronic trail that can include educational, medical and mental health data, as well as intimate family information. States allow courts, correction officials and juvenile agencies to use these records to help plan a course of treatment and rehabilitation. But only a few states have ironclad systems prohibiting employers and members of the public from gaining access to these records. The center rated all 50 states and the District of Columbia based on how well they protect confidentiality. New Mexico is the top-rated state, partly because it limits access to juvenile records to schools and government agencies during court proceedings and because juvenile record information is never accessible to the general public. Ranked near the bottom are Kansas, Michigan, Delaware, Utah, Minnesota and Arizona. Dead last is Idaho, because it has no confidentiality protections for juvenile records and makes very few records eligible to be sealed. The fact that most juvenile offenders never presented a threat to public safety and have no further contact with the law after they become adults argues strongly for sealing or expunging records so that young offenders are not permanently impaired by their youthful transgressions. Read more