Tag: Fair Credit Reporting Act

Diversion pleas qualify as convictions under federal background check law

The federal Fair Credit Reporting Act (FCRA) prohibits companies engaged in criminal background screening from reporting records of arrests that are more than seven years old.  But since the 1990’s, there has been no time limit on reporting “records of convictions of crimes.” See 15 U.S.C. § 1681c(a)(2) and (5).  It might reasonably be assumed that criminal cases terminated in favor of the accused without a conviction (such as uncharged arrests, acquittals and dismissed charges) would fall into the first category, and so would not be reportable after seven years.  But we were recently alerted to a decision of the 7th Circuit from April that defined the term “conviction” in FCRA broadly to include any disposition involving a guilty plea, even if the charges are dismissed pursuant to a diversionary program with no resulting conviction under state law.

In Aldaco v. Rentgrow, a background screening company reported to Rafaela Aldaco’s prospective landlord that she had pleaded guilty to a battery charge twenty years earlier.  As a result, the landlord rejected Aldaco’s rental application.  Aldaco conceded her guilty plea, but pointed out that the court had deferred proceedings while she successfully completed a brief supervision sentence, after which the court had dismissed the battery charge without a judgment of conviction under Illinois law.  She sued the background screener, arguing that reporting her dated non-conviction disposition violated FCRA’s seven-year bar.

The court of appeals ruled against Aldaco, holding that the term “conviction” in FCRA must be defined by federal rather than state law, and that a guilty plea is all it takes to convert a state non-conviction disposition into one that qualifies as a conviction under federal law.  The leading Supreme Court case in this area is Dickerson v. New Banner Institute, 460 U.S. 103 (1983), which held that an Iowa man whose charges had been diverted and expunged after a guilty plea nonetheless had a “conviction” for purposes of the federal felon-in-possession law.  (Congress later revised the federal firearms law to incorporate state relief mechanisms into that law’s definition of conviction.  See 18 U.S.C. § 921(a)(20).)  The term “conviction” in other federal laws has been similarly interpreted  to include state non-conviction dispositions that include a guilty plea.  See United States v. Gomez, 24 F.3d 924 (7th Cir. 1994)(“prior conviction” under § 841(b)(1) includes a plea to a probationary sentence that did not result in a final adjudication); Cleaton v. Department of Justice, 839 F.3d 1126, 1130 (Fed. Cir. 2016)(5 U.S.C. § 7371(b) requires that “[a]ny law enforcement officer who is convicted of a felony shall be removed from employment,” and this includes a guilty plea simpliciter); Harmon v. Teamsters Local 371, 832 F.2d 976 (7th Cir. 1987)(29 U.S.C. § 504(a) prohibits persons “convicted of” various felonies from serving as an officer, director, consultant, or in other leadership roles in labor organizations, and the term is defined by federal law and includes deferred judgments).  These decisions suggest that absent a contrary indication from Congress,  federal courts will count diversionary pleas as convictions under federal law, including FCRA.

Short of revising FCRA itself, it would appear that there are two ways to ensure that state non-conviction dispositions are not included in background checks as federal “convictions” after seven years.  One is to eliminate the requirement of a guilty plea from diversionary dispositions.  The U.S. Sentencing Guidelines show the way: the provisions on criminal history distinguish between “[d]iversion from the judicial process without a finding of guilt” which is not counted as part of an individual’s criminal history for sentencing purposes, and “a diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere” which counts toward criminal history.  See U.S.S.G. § 4A1.2(f).  Therefore, if states want their diversion programs to achieve their stated goals of avoiding convictions in appropriate cases, they should consider phasing out plea requirements.

The second way to avoid having a diversionary disposition reported as a conviction is to ensure that diversion includes sealing or expungement of the record.  There is a growing body of caselaw interpreting FCRA’s requirements that data be both accurate and up to date to prohibit reporting sealed or expunged convictions.  See Sharon Dietrich’s analysis of the issue for CCRC here.  In fact, it appears that Aldaco herself may have been eligible to have her record expunged under Illinois law, though there is no indication that she sought this relief.  While expungement probably would not have mattered to the federal court’s holding on the meaning of “conviction,” it might have given Aldaco an alternative FCRA ground for challenging the background screener’s report.

 

This post is part of a series for CCRC’s non-conviction records project, a study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals.

Other posts in the series:

CCRC to hold roundtable on criminal records at U. Michigan Law School

Colorado limits immigration consequences of a criminal record

Survey of law enforcement access to sealed non-conviction records

Administration withdraws proposal to require federal job-seekers to disclose diversions

Iowa high court holds indigent attorney fees bar expungement

NY judge rules police need court order to access sealed arrests

CCRC opposes requiring federal job seekers to disclose some non-conviction records

CCRC launches major study of non-conviction records

 

 

 

 

Commercializing criminal records and the privatization of punishment

The deeply ingrained, indeed, constitutionally protected, U.S. tradition of the public trial and public records has led to a system where there are few restrictions on public access to criminal record information.  Europe, by contrast, is more willing to limit the press in service of important goals such as reintegration of people with convictions. Alessandro Corda and Sarah E. Lageson have published an important new study on how this works on the ground.  Disordered Punishment: Workaround Technologies of Criminal Records Disclosure and The Rise of A New Penal Entrepreneurialism, in the British Journal of Criminology, explains how these traditions play out practically in the United States and Europe.

The paper notes that systematically in the United States, and increasingly in Europe, private actors are “extracting, compiling, aggregating and repackaging records from different sources;” as the authors put it, they are “producing” not merely reproducing criminal records.  In so doing they expand the reach of punishment.  To the extent that any random Joe or Jane can obtain criminal records, then potential associates can make decisions based on records, accurate or inaccurate, showing convictions or even mere arrests or charges which were dismissed, diverted, or led to an acquittal.

The case study of the United States notes that employers, landlords, universities and civic organizations often engage in criminal background screening, but these uses are regulated by the Fair Credit Reporting Act.   However, internet databases scrape and buy official and semi-official sources, criminal, financial, licensing, and many others, and make compilations available for a fee.  These “people search” services, thus far, have successfully claimed they are mere information aggregators not subject to FCRA: “these websites provide disclaimers warning users they are not to use the information for any sort of decision-making (such as hiring or housing decisions) but rather can only use the information for review of public records in an information-gathering spirit.” One wonders: How often might employers, landlords and other decisionmakers skip official FCRA reports and go to an unregulated, perhaps cheaper, web search?  Since the chances of getting caught and punished seem small, one might assume it happens a lot. In addition, the quality of this data is sometimes poor; are such things as expungements and set-asides pursuant to state law are reliably added to the databases?

The result is what the authors term “disordered punishment,” imposition of punishment is not restricted to the state: “Employers, insurers and landlords—but also neighbours, acquaintances and potential partners—ultimately determine whether impactful consequences are imposed and, if so, with what magnitude.”  As a result, the consequences of a crime or an accusation become unpredictable.  In some cases, the consequences will be vastly disproportionate to the underlying conduct, for example, when a serious charge has been made but dropped because authorities believe the accused is innocent or even prove the guilt of someone else.  In such cases, decisionmakers may still conclude that looking for another tenant, employee, or date is the safest course.

The paper does not propose solutions, but the CCRC project on non-conviction records may lead to some reforms that could mitigate the problem.  Perhaps the government should not make some records available at all, perhaps some entities now not subject to FCRA should be included, and at a minimum the law should be set up so that if a conviction has been subject to some sort of set-aside, that fact also must be disclosed.

GAO reports on use of FBI records checks for employment purposes

FBI.indexThe Government Accountability Office has made public a long-awaited report to Congress on the use of FBI records by state agencies and private companies for employment-related background checks.  The report addresses three questions:
1. To what extent do states conduct FBI criminal history record checks for selected employment sectors and what challenges, if any, do they face in conducting these checks?
2. To what extent have states made progress in improving the completeness of criminal history records and what challenges remain that federal agencies can help mitigate?
3. To what extent do private companies conduct record checks, what benefits do they provide, how are they regulated, and what challenges do they face?

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 reclassifiedimages 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. Read more

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.

Read more