Tag: New York

New York certificates of relief fall short in practice

New York’s venerable certificate of relief scheme, which aims to mitigate the adverse collateral effects of criminal conviction, has served as a blueprint for certificate laws recently adopted in many other states.  But are New York’s certificates actually effective at restoring rights and status? That is a question addressed in two new scholarly articles, both of which find that New York’s certificates are frequently inaccessible to their intended beneficiaries and misunderstood both by the officials tasked with issuing them and the employers and licensing boards that should be giving them effect. Governor Cuomo recently directed reforms in the process for obtaining certificates in response to a report concluding that it has “historically been burdensome and slow.”  These articles should be useful in that effort. Both articles use interviews and anecdotal evidence to shed light on how certificate schemes operate in practice, providing insight into how government officials (including judges and probation officers), employers and convicted individuals interact with the laws (or fail to) in the real world. The increasing popularity of such well-intentioned laws represents an encouraging shift in legislative attitudes about second chances; but, as the articles make clear, they are only as good as their real-world application, which is more limited and less effective than many suppose. The two articles are abstracted and linked below.  Also linked are other CCRC posts discussing judicial certificates of relief. Heather Garretson, Legislating Forgiveness: A Study of Post-Conviction Certificates as Policy to Address the Employment Consequences of a Conviction, __ B.U. Pub. Int. L.J. __ (forthcoming, 2016): Mass incarceration in America is creating an employment paradox that is the result of three facts: an estimated 65 million Americans have a criminal record, a criminal record significantly impairs job opportunities, and a job is a critical component of living a crime-free life. This paradox is perpetuated by thousands of legal and administrative barriers to employment and by employers’ unwillingness to hire someone with a criminal record. States have recently started addressing the employment paradox with legislation. This legislation authorizes an administrative relief mechanism – often a certificate of some kind – that is intended to lift employment barriers and encourage employers to consider applicants with a criminal record. Such legislation is on the rise: of the ten states that have certificate legislation, eight passed such legislation in the last five years. This passage comes without an understanding of the impact of certificates. The accessibility and relevance of certificates to employment has – until now – been assumed, but not examined. New York State has the oldest and most robust certificate system, and is a model for much of the recent certificate legislation. This paper contains the first comprehensive research on New York’s certificates. The research asks whether New York’s certificates are accessible and relevant to employment. It combines statutory analysis with qualitative research. It is a study of how certificate legislation is supposed to work – and how it actually does. It examines a statutory scheme that is recently replicated but empirically empty. Through interviews with judges, people with certificates or those eligible but without one, attorneys, current and former probation officials, service providers, and advocates, this paper provides insights into the use of certificates, their challenges, and examines how legislating more of the same can effectively address the employment paradox. Alec Ewald, Rights Restoration and the Entanglement of US Criminal and Civil Law: A Study of New York’s “Certificates of Relief,” Law & Soc. Inquiry, Winter 2016, at 5: Despite burgeoning interest in prisoner re-entry and the “collateral consequences” of criminal convictions, we know little about the practical operation of policies governing the rights and privileges of people with criminal convictions. This study examines New York’s Certificates of Relief from Civil Disabilities to explore the workings of the US carceral state at the intersection of criminal and civil law. These certificates remove some legal restrictions accompanying convictions, particularly licensure barriers, and are easier to achieve than pardons; other states have used New York’s policy as a model. Interviews with judges and probation officers reveal deep variations in how they understand and award certificates. In some cases, differences stem from informal local agreements, particularly concerning firearms in rural communities; in others, from discretionary judgments in a context of legal ambiguity. These practices demonstrate how specific legal, organizational, and cultural factors contribute to complexity and variation in the US carceral state. Related posts: New York certificate scheme found inaccessible and ineffective Forgiving v. forgetting: A new redemption tool Ohio certificates remove mandatory bars to jobs and licenses     Read more

New York Bar adopts reentry recommendations

In 2012 newly elected President of the New York State Bar Association (NYSBA), Seymour James, Jr., drew upon his 38 years of experience at the Legal Aid Society of New York City to establish a Special Committee on Reentry and appointed committee members who would spend the next three years researching and studying issues relating to reentry and reintegration. The goal of this Special Committee was to develop a report and recommendations including a consideration of collateral consequences that can have an impact on reentry regarding education, housing employment, medical health, mental health and juveniles. The report identifies some of the best practices to ensure productive lives and minimize recidivism of formerly incarcerated adults and detained juveniles, and of adults and juveniles who can avoid convictions and delinquency findings through innovative diversion programs. On January 29, 2016 the NYSBA House of Delegates adopted the report and recommendations of the Special Committee. One of the key areas the Special Committee studied was education. A significant recommendations was to ban the box on college applications, an issue that was raised by the Center for Community Alternatives (CCA) in its 2015 Report, Boxed Out: Criminal History Screening and College Application Attrition.  This CCA report was discussed earlier on this site.  The NYSBA recommendation supports adoption of the Fair Access to Education Act, a bill pending in the New York Legislature that would amend the Correction Law and Executive Law to make it an unlawful discriminatory practice for any college to ask about or consider an applicant’s past arrests or convictions during the application and admission decision-making process. A second legislative recommendation called upon the Legislature to overturn the 1995 ban on incarcerated persons receiving student financial aid awards to help pay for college courses while in prison. The Special Committee noted that the Tuition Assistance Program (TAP) should be considered a collective investment by society – “an investment we cannot afford to pass up.” Another significant reform adopted by NYSBA was in the area of employment. The Special Committee recommended that New York State adopt a statewide “ban the box” policy by removing the criminal history question from both private and public employers’ applications and delay the background check to a later part of the hiring process. The committee reasoned that this would provide for consistency and uniformity of the law within the state (rather than a city by city approach), as well as give a fair opportunity to job seekers with a criminal history record. Other recommendations contained in the report include: ● Based on the theory that reentry starts at arrest, the report calls for an expansion of diversion programs that will help individuals avoid the stigma of a criminal conviction and at the same time provide supportive programming to assist with employment, education and housing. ● Discharge planning should begin at the time of arrest, and should be accelerated no less than 180 days before anticipated release. ● The Uniform Collateral Consequences of Conviction Act (UCCCA) drafted by the National Conference of Commissioners of Uniform State Laws should be enacted and implemented. More specifically the report calls for the adoption of the UCCCA’s notice and relief provisions to provide a more individualized assessment of the application of collateral consequences to a specific re-entrant. In addition, New York should require thorough analysis of current collateral consequences, especially employment barriers, that hamper an individual’s re-entry so that New York State may develop some sort of relation between the convicted crime and the rights denied. ● The use of work release programs should be expanded and reinvigorated. Work release is a very effective reentry employment program, yet the use of work release has been greatly reduced over the last two decades. The existing work release program needs to be strengthened and made accessible to more individuals who are incarcerated. ● Child support reforms should be enacted to prevent reentering individuals from facing crushing child support arrears that have accumulated while they were in prison. Among the several recommendations in this area is the call for automatic review of child support orders once an individual is incarcerated. ● There should be coordination of medical and mental health care services between corrections and community to ensure continuity of care both while in custody and after release. ● Access to housing for people with criminal history records must be improved by policy changes affecting both public housing and private landlords, by eliminating or reducing the use of criminal history screening. This report is a wonderful resource. Thank you to Seymour James Jr. for having the foresight to establish this Special Committee and congratulations to the committee members for their hard work over the past three years. Read more

After prison, a lifetime of discrimination

The problem of mass incarceration was highlighted by the Pope’s visit last week to a Philadelphia jail, and by an HBO Special that aired earlier this week on the President’s visit last summer to a federal prison.  But the public has not yet had an occasion to focus on the broader and deeper problem of mass conviction that has consigned an entire generation of African American men to second class citizenship, and their communities to continued poverty and alienation.  The mere fact of a criminal record has placed a Mark of Cain on millions of Americans who never spent a day behind bars. In this morning’s New York Times columnist David Brooks points out that the growth in state prison systems is driven by the sheer number of people prosecuted rather than sentence length, and he faults prosecutors for charging twice as many arrestees as in the past. But if it is true, as Brooks argues, that most people sent to prison nowadays spend about the same amount of time there as they did thirty years ago, the true crisis in our criminal justice system is represented by the lifetime of social marginalization and discrimination that follows them upon their release. In New York, Governor Cuomo has taken important steps toward dealing with the problem of over-prosecution that looms large behind that of over-incarceration. It is time for elected leaders in other states to take similar steps, and time for President Obama to address the problem of collateral consequences for those with a federal conviction.  For example, in his conversations with federal inmates aired on HBO he spoke admiringly of ban-the-box programs.  It would be fitting if he implemented such a policy in the employment and contracting for which his Administration is responsible.  He might also consider pardoning deserving individuals,or supporting alternative relief mechanisms through the courts.  Hopefully in his final year he will turn his attention in that direction. Read more

New York governor adopts progressive collateral consequences agenda

Governor Cuomo has accepted all 12 recommendations made by his Council on Community Re-entry and Reintegration. The Council was created in July 2014 and tasked with “identifying barriers formerly incarcerated people face and making recommendations for change.” Governor Cuomo’s 12 executive actions include:  adoption of anti-discrimination guidance for public housing; adoption of uniform guidelines for evaluating candidates for occupational licensing, and a presumption in favor of granting a license to a qualified applicant; revision of 10 licensing and employment regulations that imposed stricter standards than required by statute;  adoption of a “fair hiring” policy for state employment that will delay a background check until well into the hiring process; and streamlining the process for obtaining certificates of relief from disabilities and certificates of good conduct. Council Chair Rossana Rosado said, “We accomplished our goals this year but our work is far from over. As we look to address many more of the systemic barriers encountered in re-entry, we will not lose sight of New York’s role as a leader in combating the devastating impact and stigma of second class citizenship that so many of our fellow New Yorkers face, especially men of color.” The Council will continue to build on this successful first year by promoting a range of educational opportunities to improve chances of employment, addressing barriers to health care, seeking to reduce the potential for extortion from public exposure of criminal records and continuing to seek solutions to housing people with criminal convictions consistent with fairness and public safety. Read more

Federal expungement case gets curiouser and curiouser

Visitors to this site are familiar with the expungement order issued by Federal District Judge John Gleeson on May 21.  See Jane Doe v. United States, now on appeal to the Second Circuit.  A second Jane Doe, a codefendant of the first, applied for expungement on June 23, and on June 29 Judge Gleeson ordered the government to show cause on or before August 28 why her application should not be granted.  A hearing has been scheduled for September 18. Yesterday the Judge issued a new order directing the government to include in its briefing “its view as to whether I have authority to enter a certificate of rehabilitation in lieu of expungement, and if so, the appropriateness of entering such a certificate in this case.” It is not clear exactly what Judge Gleeson might have in mind by a “certificate of rehabilitation,” since there is no specific authority in federal law for a court to grant relief so styled, whatever its legal effect, just as there is no specific authority for a federal court to expunge a conviction. Responding to the first Jane Doe’s petition for relief, Judge Gleeson relied upon the court’s inherent authority to expunge her thirteen-year-old conviction “because of the undue hardship it has created for her in getting – and especially keeping – jobs.”  He remarked that “I sentenced her to five years of probation supervision, not to a lifetime of unemployment.” It is possible that Judge Gleeson has in mind the authority New York State courts have, in cases where a first felony offender is sentenced to probation, to issue a “Certificate of Relief from Disabilities” (CRD), which lifts legal barriers in New York law and has a limited effect under the nondiscrimination provisions of Article 23A of New York’s Corrections Law. But since the second Jane Doe was sentenced to a 15-month prison term, she would not have been eligible for this relief even if sentenced by a New York court, but would have had to apply to the Parole Board for a Certificate of Good Conduct (which has much the same legal effect as a CRD). As it is, both Jane Does are eligible, like other federal offenders residing or doing business in New York, for a state law certificate from New York’s parole board.  However, we are unaware that a CRD or any other type of state relief has ever been granted by a federal court in New York.  Indeed, we are unaware of any case in any State where a federal court has ordered relief from collateral consequences under a provision of state law. (If anyone knows of such a case, we welcome enlightenment.) It is true that federal sentencing judges are routinely asked by the U.S. Pardon Attorney for their recommendations in pardon cases that appear meritorious.  However, it is not clear whether either of Judge Gleeson’s Jane Does has applied for a presidential pardon.  If they were to do so, the likelihood of their pardon applications being considered any time soon, at least in the ordinary course, is quite small. We look forward to seeing the government’s brief when it is filed. Read more