Tag: expungement

Expungement resources now online from Papillon Foundation

Most people with a criminal record have a general understanding of the value of expunging or sealing their criminal records.  However, figuring out how to actually obtain such relief in a particular jurisdiction, and understanding its specific effects, is not so easy.  The Papillon Foundation aims to change that by offering practical internet-based information about the process for obtaining expungement and sealing in all 50 states. We spoke with the Foundation’s founder Alan Courtney not long ago to find out more about how the Foundation helps people clean up their record and take charge of their past.    Prior to 2008, Alan Courtney was an California attorney. As a specialist in transactional law, he had no particular experience with the obstacles faced by those trying to rebuild their lives after a criminal conviction. That all changed in 2008 when Courtney found himself behind bars for a white-collar felony conviction. There, Courtney witnessed firsthand how difficult overcoming those obstacles can be and how hopeless the prospects of those faced with them can seem. He recalls: Over and over again, inmates would tell stories of how they could not get a job, could not go to school, could not get housing, could not provide for their families, and how their lives were doomed.  Family members spoke of the harshness and severity of not only the prison, but life after. Upon his release in 2011, Courtney was faced with some of the challenges he had heard so much about from his fellow inmates.   No longer able to practice law, he decided to devote much of his time to helping others overcome the barriers to reentry. The Foundation, a non-profit organization founded by Courtney and his wife, was the result of those efforts.  Its primary mission is to provide free information to help individuals expunge or seal their criminal records and mitigate the collateral consequences that accompany them.  As expressed on its website, the Foundation’s goal is to “create a compassionate opportunity for people who want to clean up their criminal record for a fresh beginning.” To Courtney, offering those of limited means the tools and materials they need to seek relief on their own is essential to fostering hope in the face of the uncertainty posed by reentry. The Foundation’s name reflects this sentiment: “Papillon” is the name of the titular character in the 1973 film that depicts a man’s unshakable will to survive while incarcerated in a hellish French prison colony. The Foundation’s presence is largely virtual, the cornerstone of the organization being its expansive website that provides a wealth of practical information about record-sealing in all U.S. states and territories, as well as many foreign jurisdictions. For those looking to leave their criminal histories in the past, the site’s go-to pages are the easy to understand summaries of each state’s relief mechanisms and eligibility standards. These summaries are supplemented by a long list of links to official instructions, forms, and statutes as well as links to state-specific how-to guides and contact information for legal aid organizations. To provide an example of the exhaustiveness of these resources, the California page contains 13 links to expungement self-help guides, 41 links to county-specific forms and instructions, 21 links legal aid and reentry organizations, links to official state-wide sealing and clemency forms, and instructions on how to request copies of your own record, among many other things. The site also provides “know your rights” information about private criminal record providers, contact information for advocacy resources, and a number of relevant studies and reports. To someone visiting the site for the first time, the amount of information available can be overwhelming; but if you’re looking for usable information to guide you through the expungement or sealing process, there’s a good chance you’ll find it here by digging around a bit.  Fortunately, Courtney tells us that the website will soon be updated with a new design that will make it easier for people to find the forms and instructions necessary to clear their criminal record. Courtney is careful to emphasize that the Foundation does not provide legal advice or referrals to lawyer, though the site does have a list of legal aid organizations who do restoration of rights work. The Papillon Foundation’s website is a truly impressive resource, and we will be watching its future growth and development. An obligatory word of caution, though: Our own experience maintaining the state-by-state resources posted on the CCRC has shown that keeping abreast of all of the legal developments regarding expungement, sealing, and other relief is a monumental task. This is a complex area of the law, and it is one that seems to be in a constant state of flux. As such, those interested in obtaining relief would be well-advised to seek legal advice, from a legal aid office or clean slate clinic for those of limited means, to make sure than any information from unofficial sources is accurate and up to date. Read more

Expungement of criminal records in Europe (Spain)

This is the fourth post in a series about European law and policy on criminal records by Professors Jacobs and Larrauri.  Prior posts noted that public access is never allowed where a record has been expunged.  This post discusses the types of records that are eligible for expungement, how the expungement process works, and what the effect of expungement is.   (Professor Larrauri’s more detailed discussion of “judicial rehabilitation” in Europe is available here.)  – Eds.  Just as there are variations in eligibility for and consequences of expungement in U.S. states, there are differences in detail in continental European countries. We focus on Spain, which we know best, though we have no reason to believe that Spain is an outlier when it comes to European countries’ law and policy.  (As in most all criminal record matters, the U.K. is more like the U.S. than continental Europe, making expunged records more accessible to the public than they are on the Continent.) A preliminary point is that in Spain, as in all other continental European countries, “criminal record” refers to convictions. There are no national databases of arrests, at least none that are accessible to anyone other than the police. In Europe, a “criminal record” is the record of convictions held by each country’s National Criminal Register (NCR).  Arrest records do not circulate beyond the police and may not be organized at the national level. In Spain, all convictions are eligible for expungement.  Some European countries make the most serious offenses and sex offenses ineligible for expungement.) As in the U.S., a conviction becomes eligible for expungement after passage of a certain amount of time, depending upon the severity of the sentence —  6 months, 2 years, 3 years or 5 years — after completion of sentence without a new charge. In addition, the defendant must have paid any required restitution or civil compensation unless he has been found indigent. Sometimes the NCR itself expunges the record after the passage of time without any action from the convicted person. More often, the defendant must petition the Ministry of Justice, which will order the expungement as long as the sentence has been served and the waiting period and restitution requirements have been met. When a petition is necessary, the Ministry of Justice must make a decision within 3 months. If the petitioner has not received an answer within that time frame, she can assume that the conviction has been expunged. This is what the law on the books requires. We hasten to add that we do not know if the expunction processes actually works efficiently and as it is supposed to. This empirical question is especially important for non-E.U. immigrants who need to have a clean record to remain in Spain. In Spain, an expunged conviction is legally equivalent to “never convicted.” Once the conviction has been expunged, a subsequent sentencing judge cannot use it to enhance a sentence; it must be disregarded. Indeed, only the investigative police (and, of course, the record-subject herself) are permitted to find out about the expunged conviction.  Neither public nor private employers can ask for or obtain information about an expunged conviction. However, there remain a few contexts in which an expunged conviction might become “unexpunged.” For example, some commentators believe that an expert witness (and, in some circumstances, other witnesses) must reveal their own expunged conviction if queried by the trial judge. In sum, Spanish expungement law and policy reflects and furthers the general attitude toward privacy that applies in most European countries.  Once a person has fully served her sentence, and has gone without further criminal activity for a required period of time, she is entitled to start over with a clean slate.   Read more

Louisiana’s new expungement law: How does it stack up?

Louisiana has far and away the largest prison population of any state in the country (847 per 100,000 people — Mississippi is second with 692 per), but until last year there was little that those returning home after serving felony sentences could do to unshackle themselves from their criminal records and the collateral consequences that accompany them. While Louisiana has for years authorized expungement of misdemeanor convictions and non-conviction records, the only relief available to convicted felony offenders was a governor’s pardon — very few of which have been granted in Louisiana in recent years. Most people convicted of a felony in the state, no matter how long ago and no matter how serious the conduct, were stuck with it.* That’s why we were interested to learn that in 2014 Louisiana enacted a brand new freestanding Chapter 34 of its Code of Criminal Procedure to consolidate and extend the law governing record expungement to many felonies. We decided to find out what the new law offers to those with felony records, and how it stacks up against the three other new comprehensive expungement schemes in Arkansas, Indiana, and Minnesota. We found that while a relatively large number of people with felony convictions are newly eligible for expungement relief, the law’s effectiveness is hampered by 1) unreasonably long waiting periods and 2) limited effectiveness in mitigating collateral consequences related to employment and licensure. Waiting periods   According to its preamble, the ostensible purpose of the new Louisiana law is to “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.” See Art. 971. The law states an aim to provide relief from post-9/11 restrictions on TWIC credentials necessary to work in ports or on vessels under the federal Maritime Transportation Security Act of 2002.  Id. However, its eligibility waiting period seem inconsistent with these purposes: A felony record may not be expunged until ten years after completion of sentence, which itself may be many years after leaving prison.  Such a long waiting period is not likely to do much to “break the cycle of recidivism” or address the issues facing those “reentering the community” from prison. Even misdemeanants have to wait five years after completion of sentence to apply. Moreover, because the federal MTSA only restricts eligibility for TWIC credentials only for a ten-year period for most offenses, the new law does nothing to ease restrictions on maritime employment. By the time a person with a felony conviction becomes eligible for expungement, their TWIC eligibility has already been restored. The waiting periods for felony expungement under the three other comprehensive new expungement laws are shorter — though still long enough to make us question their utility in reducing recidivism or assisting reentry.   Eligibility for felony expungement in Indiana is three to five years years from completion of sentence or eight years after conviction (unless the prosecutor agrees to a shorter period) and five years after conviction for a misdemeanor.  In Minnesota the waiting period for expungement of all eligible felonies is five years after completion of sentence (two years for misdemeanors).  Arkansas allows “sealing” of felonies five years after completion of sentence, though misdemeanors are eligible for sealing as soon as the sentence is completed. (Compare the relief available as early as sentencing under the Vermont Uniform Act and Colorado’s new drug expungement laws.) A Louisiana record may not be expunged if the person has been convicted of a crime during the waiting period, or has charges pending. The same is true in Indiana and Minnesota. Like Minnesota, Louisiana places no limit on the number of felonies that may be expunged during a person’s lifetime, though in Louisiana a felony may only be expunged once every 15 years.  In Indiana, a person may seek expungement of multiple offenses through one expungement petition, but only one petition may be granted in a person’s lifetime. In Arkansas, an individual may only “seal” one felony conviction. Eligible offenses Unreasonable waiting periods aside, the Louisiana law takes a relatively expansive approach to eligibility, especially compared to the limits Arkansas and Minnesota place on the types of felonies that are eligible for relief.  Under Louisiana’s law, the only felonies that cannot be expunged are those for violent offenses, sex offenses, crimes against minors, and drug trafficking offenses (mere possession with intent to distribute is eligible for expungement). The only other jurisdiction with comparable scope is Indiana, which has similar limitations on violent offenses and sex offenses, but places no limit on the types of drug convictions that may be expunged and does not bar expungement of crimes against minors. Minnesota allows expungement of a list of enumerated minor non-violent felony offenses, and only minor drug distribution offenses may be expunged (most possession-only offenses are eligible).  Arkansas limits sealing to Level C and D felonies. Standards Under Louisiana’s new law, expungement is mandatory if a person meets all of the eligibility requirements.  This is also the case in Indiana for misdemeanors and minor felonies, though not for more serious crimes.  Minnesota and Arkansas require a judicial finding based on a balancing test.  In Minnesota, a felony can only be expunged if the court determines that the benefits of an expungement to the person seeking it are commensurate with concerns of the public and public safety, and with the burden on courts and public authorities to issue, enforce, and monitor an expungement order. In Arkansas, an order to seal records depends on a court’s determination that it is “in the interest of justice” based on consideration of a menu of factors. The fact that an expungement is mandatory in Louisiana if the eligibility requirements are met also means that expungement may be granted without a hearing. A hearing must be held only if the prosecutor or law enforcement objects to the expungement request on grounds of ineligibility. A hearing is generally required in Minnesota and Arkansas. Use of expunged records  Where Louisiana’s law looks most different from the other three laws is in its relatively limited legal and practical effect insofar as employment and licensing is concerned. Expungement of a felony conviction record in Louisiana essentially does two things: 1) It prohibits the state from disclosing records to the general public (as in almost all other states, the record remains available to law enforcement, prosecutors and courts); and 2) it relieves a person of any obligation to disclose the record, or the fact of the record’s expungement. The Louisiana law does not have a restorative effect on any rights lost (most basic civil rights are otherwise restored automatically upon completion of sentence), nor does it restrict the use of expunged records by licensing authorities or employers.  It has no effect on sex offender registration and does not restore handgun rights (long gun rights are not lost) — except, surprisingly, in domestic violence offenses. Though Louisiana’s law generally prohibits the state from releasing expunged records to the public, the law provides some significant exceptions. Most notably, it specifically allows disclosure of expunged records to a number of specified licensing boards, including those governing health care, the insurance industry, social work, and the bar, all of which are authorized to consider criminal records when making licensing determinations. It also allows disclosure for the purpose of screening applicants for licenses and employment involving the care or supervision of children.  Accordingly, while Louisiana’s law permits individuals whose records have been expunged to deny that they have been convicted, the range of permissible disclosures by the state qualifies this benefit. The other three states also allow expunged records to be used as predicate offenses, and for sentencing and sex offender registration purposes.   However, all three states restrict how an expunged record may be used by private and public entities in evaluating eligibility for employment, licensure, and other opportunities.  Indiana’s law is by far the most expansive, prohibiting employers, licensing boards, and anyone else from discriminating against a person based on a record that has been expunged, and even from asking about such a record.  Minnesota takes a similar approach by prohibiting discrimination, but only as it applies to public employment and licensing (with a large and growing list of excepted employers and licensing boards). Under Arkansas’s Criminal Offender Rehabilitation Act, a licensing board may not disqualify a person based on an “expunged” record — though, since Arkansas’ new law now styles what was once known as an “expungement” a “sealing,” it is unclear what affect this provision currently has.  Indiana and Minnesota additionally encourage hiring of those with expunged records by prohibiting admission of expunged convictions as evidence of negligence in negligent hiring actions. The Louisiana law contains no analogous provisions. Third party providers of records The Louisiana law does make some attempt attempt to addresses the problem posed by third party dissemination of expunged records, but it does so in a way that is likely to be ineffective in practice. The law prohibits private providers of criminal records (other than news organizations) from disseminating expunged records, but only if they have been put on notice by the subject of the expunged record. This notice must be sent by certified mail and contain a certified copy of the expungement order. Until a particular provider receives notice from the recipient of an expungement, the provider is entirely free (at least under state law) to disseminate the record to anyone, even if they have other notice it has been expunged. To ensure that expunged records do not reach a potential employer, a person would have to give notice to each and every private provider out there. This a practical impossibility, of course, but, even if it could be done, it would be ineffective because the only providers obligated by receiving notice are those that are not governed by the federal Fair Credit Reporting Act (FCRA). Considering that a vast majority of private providers of criminal records are subject to FCRA, it is hard to see why this provision was included at all. The Indiana and Minnesota laws offer significantly greater protection against irresponsible private providers.  Here again, Indiana’s law is the stronger, placing a blanket prohibition on dissemination of expunged records by “criminal history providers.” This prohibition is unqualified: Dissemination is prohibited whether the provider has notice of it or not, putting the onus on the provider rather the individual. The Minnesota law occupies a middle ground, prohibiting dissemination by a “business screening service” if the service has notice of the expungement from any source.  Arkansas’s law does not address the issue of third party providers of records. Conclusion Louisiana’s new expungement law represents a significant and commendable move toward giving those with criminal records a chance to regain opportunities lost as a result of conviction. However, although it expands eligibility for expungment to a relatively large number of people, and makes relief mandatory upon a determination of eligibility, its benefits are limited by long waiting periods and limited legal effect. If Louisiana is serious about expanding employment opportunities to those with felony convictions, it would do well to enact measures limiting dissemination and use of expunged records by employers and other third parties, as Indiana, Minnesota, and (to a more limited extent) Arkansas have done.  Until expungement in Louisiana is more than a mechanism to limit official disclosure of records, those who might otherwise be eligible to apply for it may wonder whether it is worth the trouble and expense.   * Louisiana does have a quirky law from 1981 that permits the Bureau of Criminal Identification and Information to remove the records of anyone over the age of 60 “from active dissemination to eligible agencies” so long as the person hasn’t been arrested for 15 years. The removal isn’t mandatory, though, so it offers little comfort to anyone young or old.   Read more

Minnesota’s sweeping new expungement law takes effect

Beginning January 1st, 2015, many Minnesotans will have a meaningful shot at a second chance through criminal records expungement. For decades, many individuals have relied upon (and often languished under) a court’s inherent authority to expunge (or seal) criminal records, but recent Minnesota Supreme Court decisions effectively eviscerated that remedy. Without a legislative act expressly granting judicial authority to seal records held within executive branch agencies, the majority of petitioners were granted orders sealing only court records—leaving numerous publicly accessible criminal records untouched. The new law, passed with bipartisan support and building upon momentum gained with last year’s Ban the Box for private employers, changes that.   It provides new authority for expunging (sealing) both criminal and juvenile records held by executive branch agencies; requires data mining companies to observe expungements, protects employers and landlords hiring and renting to individuals with expunged records, addresses victimization and housing evictions, and clarifies a number of procedural issues.  The standard for granting expungement remains that under current law, requiring the court to balance private and public interests. While by no means a silver bullet, this new legislation will help a significant number of Minnesotans currently locked out of employment, housing, licensure, education, and countless other of life opportunities, by providing a true opportunity for a second chance. Here is an explanation of the new law’s specific provisions.  Overview: The new law revamps Minnesota Statute 609A, which currently allows for the sealing of certain drug charges, juveniles who were prosecuted as adults, and criminal proceedings not resulting in convictions or guilty pleas (i.e., dismissals and acquittals). The new law will allow courts to seal records of those who have successfully completed diversion programs, as well as those who were convicted of petty misdemeanors, misdemeanors, gross misdemeanors, and certain low-level non-violent felonies. This expansion of the statutory remedy grants courts the authority to seal records held by executive branch agencies such as the Bureau of Criminal Apprehension (the primary source of criminal information for employment, professional licensure, and housing background checks), the Department of Human Services, and the police. This addresses a major gap that for the last several years has rendered the criminal expungement remedy illusory for the majority of petitioners. Eligibility: Under the new law, persons will be eligible for a “full expungement” (sealing of both judicial and executive branch records) in the following situations:[1] 1) All pending actions or proceedings resolved in the petitioner’s favor (i.e., by acquittal or dismissal); 2) Completion of all terms of a diversion or stay of adjudication, and petitioner has not been charged with a new crime for at least one year since successful completion of program or stay; 3) Conviction of a petty misdemeanor or misdemeanor conviction (or stayed sentence), and petitioner has not been convicted of a new crime for at least two years since completion of sentence;[2] 4) Conviction of a gross misdemeanor conviction (or stayed sentence) and petitioner has not been convicted of a new crime for at least four years since completion of sentence;[3] 5) Conviction of specified low-level, non-violent felonies (or stayed sentence) and petitioner has not been convicted of a new crime for at least five years since completion of sentence. The fifty eligible felonies range from fairly common fifth degree controlled substance and sale of simulated controlled substance offenses, as well as theft of $5000 or less, receiving stolen goods, and aggravated forgery, to more obscure matters such as rustling and livestock theft and altering livestock certificate. The exhaustive list of eligible felonies can be found at Minn. Stat. 609A.02(b)1-50. Standard:  As under current law, expungement remains an extraordinary remedy granted only upon clear and convincing evidence that it would yield a benefit to the petitioner commensurate with 1) the possible disadvantages to the public and public safety if the record were sealed and 2) the burden on courts and public authorities to issue, enforce, and monitor an expungement order. To this end, courts may grant select records expunged while leaving others unsealed. However, if a prosecutor agrees to the sealing of a criminal record, the court must (“shall”) expunge the record in eligible cases without requiring a petition unless it determines the interests of the public and public safety outweigh the record bearer’s interests. Crime Victims: The new bill also grants further relief to individuals whose criminal matters were a result of victimization: if the court finds that the context and circumstances of the underlying crime indicate a nexus between the criminal record and the person’s status as a crime victim, the expungement shall restore the person to his or her status prior to the arrest. In doing so, the person shall not be guilty of perjury if he or she fails to acknowledge the record in response to any inquiry made for any purpose. In making the determination, the court may request a statement from a victim services organization or licensed health care provider. See Minn. Stat. 609A.03 subd. 6a. Confirmation of Expungement: Helpfully, the new bill allows for the petitioner to request each agency and jurisdiction that receives the order granting expungement send a letter to the petitioner confirming that the record has been expunged. See Minn. Stat. 609A.03 subd. 8. Remedy for Violated Order: The new bill allows for an individual whose record has been expunged to bring an action under Minnesota’s Data Practices Act against a government entity that knowingly opens or exchanges the expunged record. See Minn. Stat. 609A.04.  Private Data Mining Records: The new bill closes the gap on private data mining records: if a business screening service knows that a criminal record has been sealed, expunged, or is the subject of a pardon, the screening service shall promptly delete the record. Minn. Stat. 332.70 subd 3a. Employer and Landlord Protection: The new bill extends further protection for employers and landlords who hire or rent to individuals with expunged criminal histories: information relating to a criminal history record of an employee, former employee, or tenant that has been expunged prior to the act giving rise to the civil action may not be introduced as evidence in a civil action against a private employer or landlord. See Minn. Stat. 609A.03 Subd. 5 (e). Housing Eviction Expungements: The new bill allows the court to expunge records relating to a housing eviction at the time judgment in favor of the defendant is entered, or any time thereafter upon motion of the defendant. Minn. Stat. 504B.345, subd 1 (c)2. Limitations of Criminal Record Expungement Order: While the new law allows for more records to be sealed, it also grants criminal justice agencies the authority to open, use, and exchange sealed records without a court order, for investigation, prosecution, sentencing, or probation, or other correctional purposes. If the expunged record had been an acquittal or dismissed matter, the agency must obtain an ex parte court order to access the record. Further limitations include the accessibility of expunged records of conviction without a court order for purposes of evaluating prospective employees within criminal justice agencies and for background checks in education-related employment, unless the expungement order is directed specifically at the Board of Teaching or the licensing division of the Department of Education. The court may also order an expunged record opened upon request by the victim of the underlying offense, if the court has found that the record is substantially related to a matter for which the individual who has been victimized is before the court. Notably, the expunged record that is opened or exchanged remains subject to the expungement order in the hands of the person receiving the record. That is, the record may not be used or shared outside the purposes listed above. Juvenile Record Expungement: For matters resolved in juvenile court, petitioners can file for an expungement under Minn. Stat. 260B.198 subd. 6. Not unlike 609A, the juvenile statutory remedy preexisted the new law; however, its vague language (allowing the courts to expunge an “adjudication of delinquency at any time it deems advisable”) was recently interpreted by the Minnesota Supreme Court to grant the lower court the ability to seal only the order adjudicating the juvenile delinquent, rather than the entire executive branch agency’s file (e.g., the arrest record or the charging document), rendering the remedy essentially meaningless.[4] However, as of January 1st, 2015, the court may expunge all records relating to a juvenile delinquency matter at any time if the expungement of the record would yield a benefit to the individual that outweighs the detriment to the public and public safety in sealing the record and the burden on the court and public agencies in issuing, enforcing, and monitoring the order. See Minn. Stat. 260B.198 subd. 6 paragraph (b) 1-8 for indicia the court will consider in making the determination.   * * * * * * * * *   [1] The Volunteer Lawyers Network’s Chris Hanrahan addresses ambiguities of timing and notice in his article, Using the New Second Chance Expungement Law. Josh Esmay from the Council on Crime and Justice offers quick tips to petitioners in this Minnesota Public Radio article. [2] The bill specifically excludes from expungement relief any convictions for domestic abuse, sexual assault, violations of orders for protection, no contact orders, and harassment restraining orders, and stalking. However, this exclusion (Minn. Stat. 609A.02 subd. 3(c)) is set to expire on July 15, 2015. [3] See above. [4] See In re Welfare of J.J.P., 831 N.W.2d 260 (Minn. 2013) Read more

“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