Tag: New York

New research report: Four Years of Second Chance Reforms, 2013-2016

Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society.  It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences.  To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief.  Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction.  As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types.  The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process.  Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time.  Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible.  Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado’s new “order of collateral relief” provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction.  The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority.  These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<       Read more

Federal judges challenge collateral consequences

Federal judges have begun speaking out about the burdens imposed by severe collateral consequences and the limited ability of courts to mitigate the resulting harm.  This is particularly true in the Eastern District of New York, where some judges have openly lamented the lack of statutory federal expungement authority and have used their opinions and orders to call upon the legislature to ensure that those with criminal records are given a fair shot at success.  Among the more vocal critics of collateral consequences is recently retired Judge John Gleeson, who last year took the extraordinary step of expunging one woman’s criminal record despite acknowledged uncertainty about his authority to do so.  In another case, Judge Gleeson crafted an alternative more transparent form of relief, a federal “certificate of rehabilitation.”  (You can find our extensive coverage of these cases here). In a new article titled “Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?,” Nora Demleitner takes a look at how the criticisms of members of the federal bench may shape the framework in which second chance laws and policies are considered, both at the legislative and judicial level, and how they may or may not affect the prospect of significant reform. Demleitner argues that although these judicial challenges represent a significant change in practice, they do not represent a significant change in institutional thought.  By hewing closely to traditional normative values about who is and who is not worthy of a second chance (individuals with non-violent offenses, no prior or subsequent criminal history, and a strong work history), courts signal only the desire to expand second chance laws and policies to meet conventional, and perhaps outmoded, notions of fairness regarding crime and punishment. Demleitner suggests that we move toward an individualized and contextualized assessment of worthiness that is unconstrained by rigid categorical analyses.  At the same time, however, she seems to concede “the legal, economic, and social constraints that make [the defendants in these cases] exemplary role models rather than set the expectation for all persons with a criminal record.”   At the least, her approach seems inconsistent with mandatory collateral consequences, at least where there is no possibility of administrative waiver or relief.  Unfortunately, that is a discussion that is unlikely to take place as long as we cling to a limited binary set of characteristics to determine who deserves a second chance and who does not. The full abstract of the article, published in the New York Law Review Online, follows: Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York.  With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start.  The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities. A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime.  These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically. These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment.  Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration.  They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children.  They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country.  On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them.  The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision.  Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen. Read more

Justice Department will enforce limits on landlord background checks

Earlier this year the U.S. Department of Housing and Urban Development (HUD) issued new guidance asserting that housing policies that exclude people with criminal records may violate the non-discrimination provisions of the federal Fair Housing Act (FHA) if they fail to consider the nature, severity, and recency of criminal conduct and if they are not narrowly tailored to protect residents or property.  The Justice Department has taken the first step toward judicial enforcement of this guidance. On October 18 the Department’s Civil Rights Division filed a Statement of Interest in Fortune Society v. Sandcastle Towers Housing Development, a federal civil rights suit brought in the Eastern District of New York against a Brooklyn provider of low-income housing, claiming that it has a blanket policy of refusing to rent to individuals convicted of any non-traffic crime.  The Statement urges the court to decide the case based on the legal framework set forth in the HUD guidance, which employs a three-step analysis to determine whether criminal history-based housing exclusion policies amount to illegal racial discrimination prohibited by the FHA. Though the Statement does not address the factual dispute at issue in the case, it adopts HUD’s position that blanket bans based on criminal history are likely to violate the law in failing to require an individualized assessment of applicants, because African-American applicants are more likely to have criminal histories than their white counterparts. When the HUD guidance was issued, we predicted that it would effectively end the use of criminal background checks to automatically exclude potential renters, and greatly expand housing opportunities for all people with criminal histories, regardless of their race.  The Justice Department’s strong endorsement of the guidance is a hopeful step in that direction.   We reprint the Department’s press release below: The Justice Department filed a statement of interest today arguing that the Fair Housing Act (FHA) requires that landlords who consider criminal records in evaluating prospective tenants do not use overly broad generalizations that disproportionately disqualify people based on a legally protected characteristic, such as race or national origin. The statement of interest was filed in the U.S. District Court for the Eastern District of New York in Fortune Society Inc. v. Sandcastle Towers Housing Development Fund Corp. et al.  The case was brought by an organization that helps formerly incarcerated individuals find housing challenging the practices of an affordable rental apartment complex with 917 units in Far Rockaway, Queens. In the statement of interest, the department aims to assist the court in evaluating whether a housing provider’s policy that considers criminal records in an application process produces unlawful discriminatory effects in violation of the FHA.  Although the FHA does not forbid housing providers from considering applicants’ criminal records, the department states in its filing that “categorical prohibitions that do not consider when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then run a substantial risk of having a disparate impact based on race or national origin.” The brief explains that when a housing provider has a criminal record check policy with a disparate impact, the housing provider must “prove with evidence – and not just by invoking generalized concerns about safety – that the ban is necessary.”  Even then, the policy will still violate the FHA if there is a less discriminatory alternative. “This filing demonstrates the Justice Department’s steadfast commitment to removing discriminatory barriers that prevent formerly incarcerated individuals from restarting their lives,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division.  “Women and men who served their time and paid their debt to society need a place to live, yet unlawful housing policies can too often prevent successful reentry to their communities.  While not all criminal records policies adopted by landlords violate the Fair Housing Act, we will take action when they do.” “Landlords’ categorical refusals to rent to individuals who have served their debts to society can illegally discriminate against those individuals based on their race or national origin,” said U.S. Attorney Robert L. Capers of the Eastern District of New York.  “This office will continue to work to fight such discrimination.” In this case, the plaintiff argues that the Sandcastle complex had a policy of refusing to rent to individuals with prior convictions for felonies or misdemeanors other than traffic offenses.  The plaintiff argues that this policy has an unjustified disparate impact against prospective African-American and Hispanic tenants, in violation of the FHA.  In the statement of interest, the department does not take a position on the factual accuracy of the plaintiff’s arguments, but instead addresses the appropriate legal framework for analyzing its claim.  The legal framework set forth in the filing is consistent with the guidance released by the U.S. Department of Housing and Urban Development in April 2016 concerning how the FHA applies to the use of criminal records by providers or operators of housing and real-estate related transactions. Fortune Society Inc. v. Sandcastle Towers Housing Development Fund Corp. et al. was filed in the Eastern District of New York in 2014.  After the completion of pre-trial discovery, both parties have asked the court to enter judgment in their favor before trial.  Those requests, filed in September 2016, are now pending with the court. The Justice Department’s Statement of Interest is available here. More on the HUD guidance and its effect here.  The Shriver Center will host a free webinar on the HUD guidance featuring officials from the Justice Department and HUD on October 26.  More information is available here. Read more

SUNY bans the box on admissions application

On September 14, the Board of Trustees of the State University of New York (SUNY), the nation’s largest comprehensive university system, voted to ban the box in its admissions process.  It is the first university system in the country to reverse its decision to engage in criminal history screening and remove the question from its admissions application. The resolution laying out the policy change references the advocacy of the Education From the Inside Out (EIO) Coalition, including a 2015 case study of SUNY conducted by the Center for Community Alternatives, “Boxed Out: Criminal History Screening and College Application Attrition.”  That study found that about two-thirds of the nearly 3,000 SUNY applicants who disclose a felony conviction each year do not complete the application process (compared to only 21 percent of the overall pool of applicants) and thus are never considered for admission.  It concluded that this is the result of the daunting – and sometimes impossible – supplemental process triggered by that disclosure as well as the stigmatizing nature of the inquiry itself. SUNY’s decision comes on the heels of a major announcement in May from the U.S. Department of Education encouraging colleges and universities to go “Beyond the Box” and eliminate barriers to admission for people with criminal history records.  That federal guidance also drew heavily on the work of the EIO Coalition, including CCA’s 2010 national study, “The Use of Criminal History Records in College Admissions Reconsidered.”  As the national movement grows, additional colleges and universities are likely to follow SUNY’s example. This victory is also expected to increase momentum to pass the Fair Access to Education Act (S.00969/A.03363), currently in committee in both houses of the New York State Legislature.  The bill, drafted in part by leaders in the EIO Coalition, would build on SUNY’s commitment and also prohibit all private colleges and universities in the state from asking about criminal history records during the admissions process. Read more about SUNY’s historic decision in The Atlantic and the New York Times. Additional background and context is available in these CCRC posts: Feds nudge colleges to go “beyond the box” New York Times weighs in on college applications and criminal records Criminal history screening in college applications New York colleges told to “ban the box” on admissions form   This piece was co-authored by Alan Rosenthal, Advisor on Special Projects at the Center for Community Alternatives, and former Co-Director of Justice Strategies at the Center. Read more

New York City agency called on the carpet for employment discrimination

At least on paper, New York City has the strongest legal protections in the Nation for people with a criminal record, and for employers and others who are willing to give them a chance. The State’s vaunted certificates of relief remove mandatory legal disabilities and certify rehabilitation, and are available to any and all defendants.  Governor Cuomo has shown his interest in restoration of rights by adopting a broad reform agenda, and the City’s ban-the-box law is among the broadest in the Nation.  Both State and City have broad human rights laws intended to protect people with a criminal record from unwarranted discrimination.  But with all this web of beneficent laws and rules and policies, some City agencies apparently still have not gotten the word. In a decision handed down on July 12, a New York judge chastised the City’s Department of Education for refusing to license a woman as a school bus attendant based solely on a 2010 conviction for petty larceny, an action for which he found no basis in fact or law. Judge Peter Moulton’s opinion in Boone v. New York City found that the DOE had acted arbitrarily and capriciously in finding 1) that there was a “direct relationship” between the woman’s conviction and the duties of school bus attendant; and 2) that her employment would post an “unreasonable risk” to children.  Judge Moulton pointed out that the woman had been 20 years old when she participated with co-workers in stealing from her employer Best-Buy, that she had successfully served her probation term and paid full restitution, and that she had otherwise “lived a crime-free life.”  He also found that while DOE had gone through the motions of applying the various statutory factors relevant to the “direct relationship” determination, it had adduced no facts that supported of its ultimate conclusion, or its conclusion that the woman posed a risk to school children riding the bus. Indeed, in reaching its conclusion the agency appeared to have piled one unwarranted assumption on top of another, writing that her “offense impacts [her] ability to perform her duties if she continues to engage in job-related criminal offenses.”  DOE seems to have been unimpressed by the fact that the woman had been granted a Certificate of Relief from Disabilities, relief specifically intended to create a “presumption of rehabilitation” under applicable New York law.  Judge Moulton remarked that DOE “submits no evidence, nor could it, that petitioner is somehow prone to commit future criminal activity in light of her sole conviction for petit larceny.” It is discouraging that agencies in a City with the most enlightened laws and the most progressive administrators, still feel they can deny employment opportunity to convicted individuals in such an unreasoned and mean-spirited fashion.  If judicial intervention is required to compel agencies to do such an obvious right thing, it will be a long slow march to end conviction-related employment discrimination. The New York Law Journal reported that the City was considering an appeal. Read more