Tag: federal

Federal Certificate Offers New Hope for Americans in ‘Internal Exile’

The title of this post is the title of our op-ed in The Crime Report in support of a bipartisan Senate bill that would authorize judges to issue a “Certificate of Rehabilitation” to qualified individuals with federal convictions.  The bill in question was included in the Business Roundtable’s “Second Chance Agenda,” which was the subject of a post here two weeks ago.  The op ed is reprinted below: Federal Certificate Offers New Hope for Americans in ‘Internal Exile’ The collateral consequences of a federal conviction have thrust many Americans into what some have termed an “internal exile.” Barriers that prevent full reintegration into society are liberally distributed in federal and state laws and regulations. Congress is now weighing a new form of relief—a Certificate of Rehabilitation—intended to address the absence of any general federal restoration of rights regime, leaving aside the once-robust, now rare and erratic presidential pardon power. Under the proposed RE-ENTER Act of 2019 (S. 2931), the certificates would be issued by a judge to alleviate the burdens of a criminal record. The concept was pioneered by New York more than half a century ago, and is currently authorized in 12 states. It has been recommended by the major national law reform organizations. Now more than ever, there is a pressing need for judicial relief to supplement the federal pardon power: President Donald Trump’s neglect of the Justice Department advisory process has produced a 3,000-case backlog of post-sentence pardon applications. So far, the RE-ENTER Act has been languishing in committee, despite bipartisan support. While the Senate is otherwise occupied at the moment, a recent endorsement by the Business Roundtable may have given it new momentum. It’s possible that S. 2931 will be considered in the lame duck session or reintroduced after the new Congress is seated. For tens of thousands of Americans, that would be welcome news. There are several things to like about the bill. The certificate has credibility, because it will be issued by a U.S. District Court after notice, with investigation by the Office of Probation and Pretrial Services, and the opportunity for input from the Department of Justice and victims. The court has wide discretion to consider a range of factors, but the Chief Probation Officer’s recommendation creates a rebuttable presumption in favor of issuance. The Federal Defender or appointed counsel may assist applicants in their petitions. Individuals are entitled to notice of the availability of certificates, and they may apply at sentencing if not sentenced to imprisonment, or after one year of post-release supervision. This opportunity could particularly benefit people who demonstrate rehabilitation following conviction for a more serious offense. Such individuals are often excluded entirely from relief measures such as the bipartisan Clean Slate Act of 2019 (H.R. 2348), which sets out a path for automatic sealing of non-conviction records and certain drug convictions, and petition-based sealing of some other nonviolent convictions. The downside of the legislation is that it gives certificates limited and uncertain legal effect. The operational part of the bill grants certificate holders limited relief from a handful of specific federal collateral consequences: A presumption against termination of federal housing benefits based on conviction; The right to be considered by federal judges as suitable for seating as grand or petit jurors; The right to have the certificate considered in connection with enlistment in the armed forces; A relaxation of required loss or suspension of federal benefits under 21 U.S.C. § 862 as part of a drug sentence; and The right to have the certificate “factor in favor of a clemency application” when the attorney general is considering a recommendation to the president. But there are many other federal collateral consequences that are not listed. Another part of the law appears to contemplate much more dramatic effects of the certificate. In grand, formal language, the bill explains that it is the “sense of Congress” that “a Federal certificate of rehabilitation shall act as an expungement of any prior conviction of an eligible offender for the purposes of any employment, licensing, education, housing, or other determination;” and, that a certificate should constitute “evidence of due care” in employment, housing and a variety of other contexts. It is unclear exactly what “expungement” means in this context since a certificate would not limit access to the record. Read broadly, this language may be intended to bar consideration of a certificate holder’s prior convictions in most public and private contexts. However, the Supreme Court has held that “sense of the Congress” statements are not binding law, even if included in a bill passed by both houses and signed by the President. The ambition of S. 2931, therefore, is much greater than its actual mandate. Given the power of Congress over at least federal activities, federally funded programs and the Federal Rules of Evidence, as well as under the Commerce Clause, it is not clear why the effects in the “sense of Congress” section were not made enforceable by law. We hope Congress will clarify and expand the bill, looking perhaps for models to the certificates issued in New York and Ohio, both of which relieve mandatory consequences and create a rebuttable presumption against adverse treatment by discretionary decision-makers. Another approach is offered by model laws from the American Law Institute, the Uniform Law Commission and the American Bar Association, which authorize relief at sentencing to remove specific economic barriers to reentry, with more comprehensive relief available to signify rehabilitation after a waiting period. The limits of this bill also reflect one of the unresolved problems in restoration law generally, which is the failure of most U.S. jurisdictions to deal with inter-jurisdictional issues. Even a pardon issued by one state is not always given effect by another. Here, the bill does not address whether states will give effect to a federal court’s certificate. S.2931 could take a major step toward addressing the inter-jurisdictional problem through making a reciprocal commitment to not impose federal consequences against anyone who has received relief from a state that agrees to give effect to a federal certificate. As between the states, the effect of state relief outside its borders could be dealt with through an interstate compact, like the one that already governs access to criminal records, with some national standards. But if it is “take it or leave it” as S. 2931 now stands, we will take it. People with certificates will submit them to potential employers, landlords and licensing agencies, many of whom will correctly conclude they mean something. Studies in Ohio found that individuals who had been issued certificates were more likely to get an invitation to interview from an employer than those without. There have been similar findings for housing rental applications, and at rates not far removed from rates for those without a criminal record. The presiding judge of the Cook County Criminal Court in Illinois called his state’s certificates “a tool for redeeming people,” and a legal aid lawyer in North Carolina noted that a court’s certification “makes what has happened since the crime a fully official part of that person’s record, for all employers to see.” At the end of the day, part of a loaf is better than none, and the RE-ENTER Act is an encouraging start. Read more

HHS finalizes rules on child care worker screening

In February we posted about regulations proposed by the federal Department of Health and Human Services (HHS) to implement criminal history screening requirements for child care workers under recent changes to the Child Care and Development Block Grant Act of 2014.  The CCRC joined a coalition of organizations led by the National Employment Law Project (NELP) in calling upon HHS to reconsider the proposed regulations. In a formal comment submitted to HHS, the coalition argued that the regulations contained screening standards that were more exclusionary than the Act requires, and that they would have a disparate impact on women, African Americans, and Latinos. HHS has now issued the final version of those regulations.  Although the final rules are far from perfect, they do address a number of the concerns raised by the coalition.  For example, they omit language that encouraged states to require self-disclosure of criminal history, provide greater protection from inaccurate criminal record reporting, and urge states adhere to the standards laid out in the EEOC guidance by providing individualized assessments for disqualifying offenses that are added by the states but not required by the federal law. Unfortunately, HHS chose not to back down on one of the most troubling provisions of the proposed regulations: criminal history screening of anyone age 18 or older residing in a license-exempt home that provides child care services.  Screening of those individuals is not required by the Act itself.  As the coalition’s comments explained, the requirement will almost certainly have a disproportionately adverse impact on providers of color and their families: Expanding background checks to adult household members would have a disparate impact on low-income communities and communities of color, which have higher than average arrest and conviction rates. Based on the experience of our organizations serving these communities, it is clear that they constitute a significant proportion of license-exempt child care providers and are more likely to have multiple generations living in the same house. NELP has provided a brief summary of how the final regulations address (or fail to address) the coalition’s recommendations: Recommendation:  Consistent with the narrow language of the CCDBG Act of 2014, ACF should not extend background checks to individuals age 18 or older who reside in a non-relative, license-exempt CCDF provider’s home. Outcome:  Our argument not to extend child care worker background checks to family members and others residing in the caregiver’s home was not successful (see pages  218-219).  However, the preamble includes strong language cautioning states to narrowly limit disqualifying offenses for this group (“casting too wide a net could have adverse effects on the supply of family child care providers and other consequences for individuals returning from incarceration”) and urging states to include a waiver procedure modeled on the EEOC guidelines. Recommendation:   In order to limit consideration of inaccurate conviction history information that disproportionately penalizes people of color, ACF should eliminate the preamble language urging states to require applicants to “self-disclose” their conviction records. Outcome: The final HHS regulations did not include the self-disclosure requirement (at pages 239-230), which is a significant victory. Recommendation:  Consistent with the preamble language to the draft regulations, we urge ACF to adopt regulatory language incorporating the EEOC guidelines into the provision allowing the states to impose additional disqualifying offenses. Outcome:   The preamble to the final regulations quoted extensively form our comments describing the need for an individualized assessment based on the EEOC guidelines when states add disqualifying offenses that are not mandated by the HHS regulations  (see pages 252-253). HHS did not adopt our recommendation that the regulation  (Section 98.43(h)) specifically reference the EEOC guidelines, but it did include helpful language in the preamble urging the states to follow the individualized assessment process detailed by the EEOC (“we strongly encourage Lead Agencies to follow recommendations to implement an individualized assessment and waiver process in particular for any other disqualifying crimes not listed in the Act. In addition to challenging the record for accuracy and completeness, an individualized review allows the Lead Agency to consider other relevant information, and to provide waivers where appropriate.”) Recommendation:  Given the discriminatory impact of drug offenses on women of color, ACF should specifically reference the EEOC guidelines in the regulations authorizing the state to waive disqualifying drug offenses. Outcome:  The preamble to the regulations also quoted extensively form our comments describing the discriminatory impact of drug offenses on women of color (see pages 250-251).  HHS concluded that the states “must conduct the review processes in accordance with the EEOC’s current guidance on the use of criminal background checks in employment decisions, which requires individualized consideration of the nature of the conviction, age at the time of the conviction, length of time since the conviction, and relationship of the conviction to the ability to care for children, and other extenuating circumstances.”  However, the final regulations (Section 98.43(e)(4)) retained the language of the draft regulations, stating that “the review process shall be consistent with title VII of the Civil Rights Act of 1964.”  Thus, the regulations do not also reference the EEOC guidance, as we recommended. Recommendation:  Given the reliance on FBI background checks, which routinely contain  faulty information, ACF should adopt more protections governing appeals by workers challenging inaccurate background checks. Outcome: HHS made significant improvements to the regulations in this area based on our comments (which were quoted in full in the preamble, including our list of five specific “features of a fair and effective appeal process”). (Pages 246-249). In the preamble to the regulation (Section 98.43(e), HHS stated:  “ACF strongly agrees with the worker protections described in this comment.  While background checks are a necessary safeguard to protect children in child care, we are also mindful of the disproportionate impact that that they can have on low-income individuals of color.  A robust and effective appeals process, that incorporates the elements described above, is critical to protect prospective child care staff members who have inaccurate or incomplete background check records.  As such, we made changes to the regulatory language at 98.43(e)(2)(ii) and 98.43(e)(3) to incorporate many of these protections, while still preserving some State flexibility.” Most importantly, the new regulation requires the state to “attempt to verify the accuracy of the information challenged by the child care staff member, including making an effort to locate any missing disposition information related to the disqualifying crime.”  This is a major victory, and it sets a precedent in federal law requiring states to track down missing dispositions in the state and FBI rap sheets, thus removing the burden from the worker to have to produce the missing or updated records.  In addition, the final regulations require that the notice the worker receives in response to a challenge to the accuracy of the record “should indicate the State’s efforts to verify the accuracy of the information challenged by the child care staff member, as well as any additional appeal rights available to the child care staff member.” The final regulations and HHS’s response to comments can be found here. See our initial post on the proposed regulations here. Read more

Can the pardon power be revived through procedural reforms?

Mark Osler has posted a new piece arguing for an overhaul of the federal pardon process so that it more closely resembles efficient and productive state clemency systems. He argues that flaws in the process for administering the power, rather than a failure of executive will, have prevented President Obama from carrying out his ambitious clemency agenda directed atlong-sentenced drug offenders.  Streamlining the process will enable presidents to use the power more generously and effectively. This seems to us to an oversimplified solution to the theoretical and practical problems with what President Obama has been trying to do. Moreover, at least in the absence of constitutional amendment, any structural changes in the federal pardon process would have to be reaffirmed by each new president, and would likely be opposed by the Justice Department and Congress. An alternative to trying to revive pardon as an integral part of the criminal justice system would be to concede that pardon cannot wholly compensate for shortcomings in the legal system, and work to develop statutory alternatives. Our preference would be for this alternative, and specifically to enlist the courts to shorten long prison sentences and avoid or mitigate collateral consequences. This is the approach proposed in the revised articles of the Model Penal Code: Sentencing. As President Obama’s term winds down, we expect to post additional commentary on his use of the pardon power, and on proposals floated by his putative successors about the pressing systemic problems for which pardon is now seen as the sole solution.  In the meantime, see these earlier posts on this subject: Prez promises to catch up on pardons — but he’s far behind Slate asks why presidents are granting less clemency; Justice answers Should DOJ be gatekeeper of president’s pardon power? Clemency is Not the Answer (Updated) “Poised to commute dozens of sentences, Obama remains the ‘Scrooge’ of pardons” The “president’s idle executive power” and collateral consequences     Read more

“On Lawyering” on collateral consequences

The following post was originally published at On Lawyering, CCRC President Rich Cassidy’s blog on the law and culture of lawyering.  Judge Rules That That the Collateral Consequences of Conviction Justify the Release of a Drug Offender “Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”[1] Senior United States District Judge Fredric Block, in an opinion issued on May 24, [2] ruled that the collateral consequences faced by a 20 year old woman convicted of smuggling 602 grams of cocaine into the United States from Jamaica, justified a one year term of probation, even though she faced a guideline sentence of 33-41 months of imprisonment. Judge Block reviewed the history of collateral consequences, concluding that “[t]oday, the collateral consequences of a felony conviction form a new civil death[,]”[3] referring to the scholarly work of my colleagues, Gabriel Jack Chin and Margaret Love. He decried the racially disparate impact of these laws, citing Michelle Alexander’s book, The New Jim Crow (2010). He noted the existence of collateral consequence reform efforts including an ABA Criminal Justice Standard [4]and the Uniform Collateral Consequence of Conviction Act.[5] He pointed out the sweeping breadth of collateral consequences, noting that according to the National Inventory of the Collateral Consequences of Conviction, nationwide there are some 50,000 federal and state statutes and regulations that impose collateral consequences and that some 70 to 100 million Americans are subject to them.[6] Judge Block reviewed the state of the law, noting that while there is a split in the circuits, the law in the Second Circuit allows a sentencing judge to consider“the impact and significance of the collateral consequences facing a convicted felon as bearing upon a just punishment.”[7] Finally, Judge Block put the idea into practice: he reviewed, in some detail, the collateral consequences the defendant faces, their likely impact on her life, and concluded: [T]he collateral consequences Ms. Nesbeth will suffer, and is likely to suffer – principally her likely inability to pursue a teaching career and her goal of becoming a principal, Conn. Gen. Stat. §§ 10-145b, 145i – has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing.[8] Most District Court decisions have little, if any, significance beyond resolving the particular case before the judge. This decision is different. It’s a model for counsel and judges to bring collateral consequences to the center of the plea bargaining and sentencing process, where they belong. The reality is that for most criminal defendants, particularly those convicted of lesser crimes, principally misdemeanors, the direct consequence of convictions, such as fines, probation and even short periods of imprisonment, are almost ephemeral when compared to the long term — largely permanent — collateral consequences of conviction. It’s worth noting that Judge’s language consistently acknowledges a truth that the law, in crucial legal fiction, ignores: that collateral consequences are indeed “punishment.” Without that legal fiction — one that Jack Chin, among others, thinks should be attacked — collateral consequences imposed by legislation and regulation adopted after conviction would be unconstitutional as ex post facto laws. Judge Block’s opinion is a herald of a quiet revolution in criminal litigation leading to a future in which the participants in the criminal system, judges, prosecutors, and defense lawyers, focus on collateral consequences in dealing with the punishment phase of criminal cases. Perhaps it’s even the harbinger of a fundamental reassessment of the whole idea that a massive set of civil disabilities should be added to the punishment of a criminal sentence: While consideration of the collateral consequences a convicted felon must face should be part of a sentencing judge’s calculus in arriving at a just punishment, it does nothing, of course, to mitigate the fact that those consequences will still attach. It is for Congress and the states’ legislatures to determine whether the plethora of post- sentence punishments imposed upon felons is truly warranted, and to take a hard look at whether they do the country more harm than good.[9]     —— [1] Adam Goodheart, Lincoln, Looking For His Legacy Today, National Geographic, (April 2015). [2] United States v. Nesbeth, 15 –CR-18 (FB) (E. Dist. N.Y. May 24, 2016). Benjamin Weiser of The New York Times covered the story on Wednesday, U.S. Judge’s Striking Move in Felony Drug Case: Probation, Not Prison (May 25, 2016). [3] Id. at 6. [4] ABA STANDARDS FOR CRIMINAL JUSTICE, COLLATERAL SANCTIONS AND DISCRETIONARY DISQUALIFICATIONS OF CONVICTED PERSONS. [5] UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT (2010). [6] Id. at 11, n.32, citing How to Get Around A Criminal Conviction, N.Y. TIMES, AT at 22(October 19, 2015). [7] Id. at 19. [8] Id. at 33. [9] Id. at 40 -41. Read more

Will Prez Obama make federal contractors ban the box? [Update: Not now.]

  Updated April 29: According to comments late this week from senior White House adviser Valerie Jarrett, the President remains inclined to defer to Congress when it comes to making federal contractors ban the box: Asked whether there was consideration of whether to take action to require federal contractors to “ban the box,” Jarrett said, “The president has supported federal legislation that would ban the box for federal contractors. He thinks that’s the best approach.” The legislation in question appears to have stalled, as noted by its sponsor Rep. Elijah Cummings.  (In a tweet, Jarrett pointed advocates to a 2013 directive of the Office of Federal Contract Compliance reminding contractors of their obligation to comply with the EEOC guidance on criminal records.) On the other hand, on Friday the administration made good on its November promise to require federal agencies to ban the box, when OPM announced a proposed rule requiring federal agencies to postpone inquiry into an applicant’s criminal record until after a conditional offer of employment has been made. Also, marking the end of National Reentry Week, the President formally established the Federal Interagency Reentry Council, a Cabinet-level working group dedicated to “the rehabilitation and reintegration of individuals returning to their communities from prisons and jails.”  Originally convened by the Attorney General in 2011, the President’s action ensures that the Council will continue past the end of his Administration. Original post from April 26: As the White House inaugural National Reentry Week begins, advocacy organizations and Members of Congress are again calling on President Obama to use his executive authority to “ban the box” in federal contractor hiring, just as he announced he would do in federal agency hiring last November. The call comes on the heels of a number of steps the Obama Administration has taken to improve the employment prospects of those with criminal histories, including the creation of the Fair Chance Business Pledge earlier this month.  Last fall, the President announced a number of additional reentry initiatives, including establishment of a Clean Slate Clearinghouse.  The President’s overall record on second-chance issues has been commendable, but he will have to move quickly to maximize his administration’s impact before the end of his term. The 170,000 federal contractors employ a full 25% of the nation’s workforce, and all of them are subject to Executive regulation via the terms of their contracts.  As such, the President has significant authority to regulate private sector hiring policies.  He also has an efficient means of enforcing those regulations through termination of contracts with noncompliant employers.  To date, however, the President has deferred to Congress where regulation of contractors is concerned, urging it to pass the Fair Chance Act which would extend a ban-the-box policy to contractors by statute. But since that announcement, the Fair Chance Act has languished in committee, and it seems increasingly unlikely that a policy that applies to contractors will become a reality before the end of the President’s term unless the President implements it himself.  Last Wednesday, Representative Elijah Cummings (D-MD), the Act’s sponsor, acknowledged its dim prospects in urging the President not to wait for Congress.  In an open letter, joined by 21 other Members, he wrote: On November 2, 2015, you also explained that “Congress should pass legislation that builds on today’s announcement. ”  We agree, and have been working diligently with our colleagues in Congress to advance the Fair Chance Act (H.R. 3470), which would extend ban the box policies to all three branches of the federal government and prime federal contractors. However, without a clear path forward for the legislation, we are respectfully calling upon you to drive these issues forward with executive action. Yesterday, a coalition of 136 advocacy organizations (including the CCRC) led by the National Employment Law Project (NELP) wrote to the President urging him to extend fair chance hiring policies to federal contractors. As the NELP letter points out, the additional burden on many large federal contractors would be slight since they are already subject to ban-the-box laws at the state level: [B]ecause most of the nation’s largest federal contractors operate across state lines, they are already subject to multiple state and local ban-the-box laws. Indeed, seven states (Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, and Rhode Island) and many of the nation’s largest cities (including Baltimore, Chicago, New York City, Philadelphia, Seattle, San Francisco, and Washington, D.C.) have fair hiring mandates in place covering private sector employers.[2. Many other states ban-the-box in public hiring, but none of those policies extend to state contractors.] As a result, roughly 25 percent of the nation’s civilian workforce (or over 40 million workers) are employed in a state or locality where private sector employers are obligated to comply with a ban-the-box law. Thus, abundant precedent exists to help pave the way for a federal executive order regulating the nation’s private contractors.   Additionally, many large federal contractors have already chosen to adopt ban-the-box policies of their own accord, including Xerox, Google, and Koch Industries/Georgia Pacific. In his speech announcing the federal agency ban-the-box policy this past November, President Obama said, Now, a lot of time, [a] record disqualifies you from being a full participant in our society — even if you’ve already paid your debt to society.  It means millions of Americans have difficulty even getting their foot in the door to try to get a job much less actually hang on to that job.  That’s bad for not only those individuals, it’s bad for our economy.  It’s bad for the communities that desperately need more role models who are gainfully employed.  So we’ve got to make sure Americans who’ve paid their debt to society can earn their second chance. Banning the box in federal contractor hiring would go a long way toward achieving this goal, by giving countless American workers the opportunity to demonstrate their employment qualifications before employers become aware of their criminal histories. But the clock is counting down on the President’s chance to make that important change a part of his legacy. You can read entirety of the Congressional letter here, and the letter from the NELP-led coalition here.   Read more