Tag: housing

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

“Arrests as Regulation”

Eisha Jain, a fellow at Georgetown Law Center, has posted on SSRN an important and (to us) alarming article about the extent to which mere arrests are beginning to play the same kind of screening role outside the criminal justice system as convictions. In “Arrests as Regulation,” to be published in the Stanford Law Review in the spring, Jain argues that arrests are increasingly being used systematically as a sorting and screening tool by noncriminal actors (including immigration authorities, landlords, employers, schools and child welfare agencies), not because they are the best tool but because they are easy and inexpensive to access. Here is the abstract: For some arrested individuals, the most important consequences of their arrest arise outside the criminal justice system. Arrests alone — regardless of whether they result in conviction — can lead to a range of consequences, including deportation, eviction, license suspension, custody disruption, or adverse employment actions. But even as courts, scholars, and others have drawn needed attention to the civil consequences of criminal convictions, they have paid relatively little attention to the consequences of arrests in their own right. This Article aims to fill that gap by providing an account of how arrests are systemically used outside the criminal justice system. Noncriminal justice actors who rely on arrests — such as immigration enforcement officials, public housing authorities, employers and licensing authorities, child protective service providers, among others — routinely receive and use arrest information for their own objectives. They do so not because arrests are the best regulatory tools, but because they regard arrests as proxies for information they value, and because arrests are often easy and inexpensive to access.     But when noncriminal justice actors rely on arrests, they set off a complicated and poorly understood web of interactions with the criminal justice system. Regulatory bodies and others that make decisions based on arrests can coordinate and pool resources with prosecutors and police officers, achieving a level of enforcement that neither could achieve alone, or they can make decisions that undermine important aspects of the criminal justice process. This Article maps different regulatory interactions based on arrests, and illustrates the need for greater oversight over how arrests are used and disseminated outside the criminal justice system. Jain shows how immigration officials use arrests to expand the reach of interior enforcement efforts through the efforts of state and local law enforcement, public housing officials rely on arrests to identify existing tenants who are potentially in breach of their lease, and employers and professional licensing authorities use arrest information to monitor off-duty workers.  Some employers suspend or terminate at-will employees based on the arrest. Many employers are automatically notified by law enforcement agencies whenever an employee is arrested.  (In New York this includes home health care workers, security guards, and taxi drivers.)  Because neither the arresting officer nor the jail has a role in initiating the notification, the arrested individual will not be informed of the notification at the time of arrest.  Until 2006, New York City taxi drivers, for example, were automatically suspended for a wide range of arrests, including misdemeanor welfare fraud or forgery.  (The New York taxi litigation, Nnebe v. Daus, is the subject of a recent post.)  As a matter of due process, a licensee may be entitled to a hearing before a license is revoked, but not before an unpaid period during which the license is suspended. Notice of arrests is also frequently mandated in the child welfare and education contexts. Jain  makes the case that use of arrests to grant or deny benefits has a number of negative systemic consequences: In a variety of settings, noncriminal actors rely on arrests as a means of achieving their own regulatory agendas. This use of arrests can serve important societal interests. But it can come at a significant cost. It can magnify the effect of unwise or unjustified policing and arrest decisions. Across a number of settings, arrests are an overbroad and imperfect proxy for the information that noncriminal justice actors value. This fact, combined with inadequate oversight and a lack of transparency in how arrest information is used, can create serious consequences for arrested individuals – ones that far outstrip any penalty imposed by the criminal justice system. Moreover, when actors outside the criminal justice system rely on arrests, one potential effect is to expand the enforcement powers of both actors.  In delegating front-end screening discretion to individual police officers, they magnify the effects of underlying and problematic police practices based on racial profiling.  Noncriminal justice actors may also work against certain criminal law enforcement goals —such as when they deport, evict, or terminate individuals after a demonstrably unlawful arrest. These consequences can undermine the aims of prosecutors and police who seek to encourage witnesses to come forward and report crime. Jain has little faith that the exercise of administrative discretion in civil settings can place appropriate limits on the power of police to tag people in ways that are counterproductive to a healthy social order.  Noncriminal justice actors who rely on arrests are driven by their own organizational priorities, and they take an instrumental view of arrests that is at odds with the principle that an arrest alone is not indicative of guilt. Jain argues that a more reliable way of introducing transparency and procedural fairness in the use of arrest information is through restrictions on sharing and storing of arrest information. Prompt and automatic expungement of arrest records that do not result in charges is one important step, so that they are available going forward only to law enforcement.  She also proposes that a third party (“one that is not committed to either the goals of criminal law enforcement actors or to the interests of the noncriminal actor”) may be in the best position to systemically evaluate considerations such as “whether the underlying arrest information is accurate, whether it provides a meaningful informational proxy, whether it disproportionately affects certain groups, whether the evaluation process is fair and transparent, and whether the use of arrests has undesirable or unintended public policy consequences.”  It is not clear what such a third party might look like, although Massachusetts’ Criminal Offender Records Information (CORI) system performs such a function, at least on paper.  Through CORI, Massachusetts regulates dissemination of criminal history information to non-justice actors, ensuring both accuracy and appropriate restrictions on dissemination. We agree with Jain that it is high time to start talking about “how arrests regulate individuals outside the criminal justice sphere, and to evaluate when and whether it is appropriate to allow an individual police officer’s decision to arrest to do so much work.” Read more

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

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

Civil rights lawsuit filed against rental complex for excluding people with a criminal record

The Fortune Society has charged a Queens landlord with civil rights violations for refusing to rent to people with a criminal record. From the New York Times report on the lawsuit filed in federal district court on October 30: The lawsuit was brought against the owners and manager of the Sand Castle, a rental complex in Far Rockaway, Queens, with more than 900 apartments. The suit is one of the latest efforts in a nationwide push to make it easier to integrate people emerging from prisons back into their communities. Concern over legal restrictions that hinder former prisoners’ efforts to find jobs and homes, long voiced by advocates of criminal justice reform, has taken on a broader urgency in recent years. Faced with stark fiscal pressures and rising criticism, many state governments have been rethinking practices that led to record levels of incarceration. Nationwide, about 700,000 people a year are currently being released from prison … Bars against former offenders in housing are said to be common around the country, although some landlords apply them only partially — barring sex offenders or arsonists, for example, or allowing those convicted of misdemeanors but not felons. The ability of landlords to easily look up criminal backgrounds on the Internet is believed to have increased the practice. The Fortune Society’s press release on the suit can be found here. Read more