Tag: New York

Monster and other job sites sued for excluding people with convictions

A New York City chapter of the NAACP filed a class action suit last month against a number of employers and prominent online job sites, claiming that job listings explicitly barring applicants with felony convictions violate city and state law. Industry giants Monster, Indeed, and ZipRecruiter are among the defendants. Accompanying the complaint are listings from those sites that seek IT engineers and administrators, exterminators, and couriers, all of which make it clear that those with felony convictions (and in one case even arrests) need not apply. The suit was brought under the New York City Human Rights Law, which provides a means of enforcing employment discrimination prohibitions in Article 23-A of New York State law. Article 23-A forbids employers from rejecting applicants because of their criminal convictions without first affording them an individualized assessment (unless employment is barred by law). The suit establishes injury to the NAACP members and the rest of the City’s African American community by showing that racial minorities are disproportionately affected by conviction-based employment discrimination: 82. The hundreds of thousands of persons of color who are citizens and residents of the City and for whom NAACP Metropolitan Council advocates have felony convictions disproportionate to their numbers in the overall population, and the racial statistics of persons presently in the criminal justice system indicate this pattern will continue in the immediate future. 83. As of 2013, the New York State prison population was approximately 53,550. Although Blacks make up only approximately 16% of the total New York population, according to the U.S. Census Bureau they make up approximately 53% of the incarcerated population. In New York City alone, in 2012 there were approximately 12,287 inmates in city jails, and 57% of them were Black. Of the individuals incarcerated in New York State, approximately 46% were committed from New York City. 84. As of January 1, 2014, 56% of all people in custody were sentenced as first-time felony offenders. At the same time, each year thousands of persons are released from New York State prisons, and need jobs in order to survive. For example, in 2013 approximately 23,832 persons were released from New York State prisons. 85. This means that job postings that discriminate on the basis of felonies also discriminate on the basis of race and ethnicity The suit seeks an injunction prohibiting further posting of illegally discriminatory job listings against the named employers and sites, as well as against an unnamed defendant class consisting of “all companies that are ‘private employers’ within the meaning of the Correction Law and have posted ads on Monster, ZipRecruiter, and/or Indeed for jobs to be performed at least in part in New York City that include a blanket ban based on a felony conviction from June 25, 2012 ….” If the NAACP prevails it will be interesting to see whether the job sites named in the suit implement any broader changes in policy that would affect job-seekers beyond New York City’s borders. You can find the full complaint here. Read more

New federal expungement filing raises stakes for DOJ

Not surprisingly, in the wake of U.S. District Judge John Gleeson’s extraordinary May 21 expungement order in Doe v. U.S., another petition asking for the same relief has now been filed with Judge Gleeson.  Also not surprisingly, since this new petition was filed by one of Ms. Doe’s co-defendants, the underlying facts in this second petition are similar. The second Jane Doe was a more culpable participant in the insurance fraud scheme, and was sentenced to 15 months in prison instead of probation.*  However, she has remained law-abiding since her release more than a decade ago, and like the first Jane Doe she has had a very difficult time getting or keeping a job because of her conviction.  It seems unlikely that the difference in the second Jane Doe’s role in the offense will make a difference in the way the court disposes of her petition. Judge Gleeson has asked the government to show cause why the new petition should not be granted, which should guarantee that it gets attention at the highest levels of the Justice Department.  Argument has been set for September 18.  If there were any doubt about whether the government will prosecute its appeal of the first expungement order, it has probably been dispelled now that the proverbial floodgates appear to be opening. Potential amici should start lining up counsel. One issue that will at some point have to be resolved is what effect the expungement order will have in situations where employment restrictions are imposed by state or federal law, as they frequently are in the health professions for which both Jane Does are trained.  The question whether an expungement (unlike a pardon) will avoid statutory bars to employment is frequently unsettled even where that relief is specifically authorized. It is worth noting that both Jane Does have been repeatedly offered employment and only later terminated after their convictions were discovered during a background check. The fact that no questions were asked at least by some employers before the two women were allowed to start work suggests that the ban-the-box policy recently put in place by Mayor DeBlasio may have a somewhat limited effect, at least where health care jobs are concerned.  The brief accompanying Jane Doe II’s petition points out that her conviction has nothing to do with her performance as a nurse, but the “substantial relationship” standard incorporated into New York’s nondiscrimination law does not appear to have deterred the employers who repeatedly terminated her. Finally, it will be interesting to see if Judge Gleeson engages in as detailed and thorough an analysis of the facts underlying this second petition as he did with the first.  If expungement petitions are now to become routine in the Eastern District of New York, it seems important to find an efficient way of dealing with them.   * The second Jane Doe was re-sentenced in 2012 to 11 months in prison, long after her release, perhaps to avoid her conviction being grounds for mandatory deportation. Read more

Why shouldn’t everybody with a felony conviction be allowed to vote?

The editors of the New York Times are critical of Maryland Governor Larry Hogan’s recent veto of a law that would have allowed anyone with a felony conviction to vote if they are living in the free community.  See “A Bad Voting Ban,” June 1, 2015.  Maryland’s law now disenfranchises anyone convicted of a “felony and . . . actually serving a court-ordered sentence of imprisonment, including any term of parole or probation, for the conviction.” The Times editorial points out that Maryland changed its law to restore voting rights automatically upon completion of sentence in 2007, and that disenfranchisement based upon conviction is generally a punitive relic of slavery. So if felony disenfranchisement laws are punitive relics, why should they be applied to anyone, even people who are still in prison?   The logic of the Times editors’ position would seem to support voting by prisoners, as happens in Vermont and Maine and in many parts of Europe.  An argument against voting by prisoners based on disenfranchisement as an integral part of court-imposed punishment would apply equally to probationers and parolees. The notion that prisoners no longer have a connection to their communities is a self-fulfilling prophecy that runs against current policies of encouraging prisoner reentry.   If there are practical reasons to bar prisoners from jury service and political office, they do not apply to voting when absentee ballots have become commonplace. But we digress.  Getting back to the Times editors’ criticism of Governor Hogan, in fairness they could have pointed out that only 13 states (not including New York) and the District of Columbia now restore the right to vote to people as soon as they leave prison, though four more states (including New York) do not disenfranchise those who never go to prison to begin with.  Only two states (Vermont and Maine) allow prisoners to vote. That means that the felony disenfranchisement laws in 31 states are no better than Maryland’s.  Some are a lot worse. See this chart. And, so far none of the presidential candidates, including Hillary Clinton, have taken a position any more favorable to extending the franchise than Governor Hogan. Still, the Times is right to pick on Governor Hogan, because he was offered an opportunity to do the right thing by a legislature that has only recently begun to recognize the importance of restoration of rights and status after conviction.  Signing the law would have made Maryland the first state below the Mason-Dixon line to allow all convicted persons living in the community to vote.  And, the trend is clearly in that direction.  See the Democracy Restoration Act, linked here. Supporters of the Maryland bill promise to bring it back to the Governor’s desk next year. Hopefully by that time Governor Hogan will have had a change of heart.  And, if restoration of rights should become an issue in the presidential campaign, hopefully the candidates will also see that this is an idea whose time has come, and will stand up to those who still argue that disenfranchisement is legitimate punishment. Maybe one or two will even ask why we still bar prisoners from voting. Read more

The real experts in criminal justice reform

The following piece by CCRC board member Glenn Martin first appeared on May 18 in the blog of the National Council on Crime and Delinquency For me, exiting a New York state prison in 2000 after serving six years was a rebirth. As a lifelong New Yorker, born and raised in Brooklyn’s Bedford-Stuyvesant neighborhood, my mission started to crystallize. I wanted to be a voice for the countless intelligent, earnest, and genuinely good people that I was leaving behind. Reflecting on the 2.3 million people in US prisons and jails and another 5.6 million under correctional supervision—mostly young black and brown men and women—I kept asking myself, “If prison is where we send bad people who do bad things, where do we send good people who do bad things?” I was first bound by handcuffs in 1995, and though I haven’t known their debilitating grip for years, the hypocrisy and destructiveness of our criminal justice system has remained with me ever since. When exiting the belly of the beast, my vision was crystal clear, even if my path was uncertain. Throughout my adolescence, strife was a familiar companion: poverty, crime, meager public support, and violence predictably culminated in a term of incarceration. After leaving prison, like the other 650,000 people who exit each year, I faced barriers to employment, enfranchisement, education, and equality, both mirroring and intensifying the challenges of my youth. I found opportunity in the advocacy world. There, I was valued for my professional skills, but also for the unique perspective that I brought to the work as someone directly impacted. I began to gain national attention as a staunch advocate for reform. My advocacy efforts eventually led me into policy as I testified before Congress and ultimately helped to advance legislation to remove barriers to jobs, housing, education, and voting in 10 states, co-authoring the Reentry and Employment Blueprint for Governor Spitzer, and leading the largest audit study ever conducted on race and criminal record discrimination. I knew that I was developing a distinct platform that, if fully realized, would become resounding enough to make a difference for me and millions of others. In 2006, I transitioned to the Fortune Society, where I eventually became Senior Vice President of Development and Public Affairs. All the while, I remained close to those I served, leading a series of significant community organizing efforts toward criminal justice reform. I learned quickly that those closest to the problem also have the most to gain from a successful outcome, and therefore spent countless hours mobilizing the support of those who had been most deeply impacted by failed drug laws. Through it all, I have been the first to admit that none of this could have been achieved without the support of thousands of directly impacted people. Yet despite being many of the best and the brightest people that I knew, I observed that these peers largely remained relegated to roles of symbolism or “trauma-porn”—spectacles meant to convince onlookers that the powerful had reserved a seat for the victims. In 2013, I resigned from my position at the Fortune Society, one of power and prestige, to found JustLeadershipUSA (JLUSA), a membership organization whose mission is to cut the number of people in prison in the US in half by 2030, while proving that those closest to the problem are closest to the solution. JLUSA dares to put new and authentic drivers in the seat of the reform locomotive. The vision is straightforward: the most compelling advocates of change are those that have been most affected by incarceration. Why, then, are we not seeking their counsel about what needs to change, where we can improve, and what strategies we need to implement to actually manifest such change? JLUSA is the culmination of such reflection. That communities and individuals impacted by incarceration and our criminal justice system will now have a formal space dedicated to tapping their leadership is a transformative idea whose time has long been urgent. I take no comfort in being the “exception.” For me, such a position merely confirms the horror of the “rule.” Correcting this unjust arrangement requires that other formerly incarcerated leaders be equipped with the range of skills and the unique approach to policy reform that have made my own success possible. I want to be clear: there are no “voiceless” people for whom I speak. I’ve learned that such slogans are little more than cheap gimmicks for crass, even if well-intentioned, political ambition. My goal is to amplify the voices and expertise of those who remain either deliberately silenced or willfully ignored so that they may speak on their own behalf. It’s time we acknowledge that the experts we so urgently need have always been close at hand. We’d all do well to listen.   Read more

Forgiving v. forgetting: A new redemption tool

The following thought-provoking piece about the growing popularity of judicial “certificates of good conduct” was first published in The Marshall Project (www.themarshallproject.org) a nonprofit news organization focused on the US criminal justice system. The “forgiving” approach to avoiding or mitigating collateral consequences is an important alternative to the “forgetting” approach advocated by proponents of expungement or sealing, which tend in any event to be limited to minor dated offenses or arrests not resulting in conviction.         Forgiving v. Forgetting:  For offenders seeking a new life, a new redemption tool. In February of 2003, a much younger Barack Obama rose before the Illinois State Senate to introduce a new piece of legislation that, he said, contained a compromise. The bill would help job-seekers who had long ago been convicted of a nonviolent crime (or two, at most) overcome the barriers to employment that came with having a criminal history. But the bill would do so without expunging their records. Instead, Obama’s bill would create a final, years-later stage on the timeline of these ex-offenders’ cases. They had already completed the stages of arrest, booking, indictment, plea bargaining or trial, sentencing, incarceration and/or probation. Now, ex-felons who had stayed crime-free for a few years would be eligible to come back to court and, in a full-blown hearing before a judge, attempt to “prove” that they had been rehabilitated. Any ex-offender who succeeded in doing so, Obama announced, would be granted one of two new legal documents, the Certificate of Good Conduct or the Certificate of Relief from Disabilities. The certificate would represent an official assurance to employers – though, again, short of full expungement – that the ex-offender should no longer be judged for his or her crimes. More concretely, the good conduct certificate would make the ex-offender eligible for a range of municipal jobs, including in the public schools, the transit system, and the parks; the certificate of relief would remove barriers to a range of licenses, from real estate to barbering, cosmetology, and mortician’s licenses. Finally, any private employer who hired the now officially rehabilitated ex-offender would be insulated from liability suits claiming negligent hiring. Obama’s bill was passed and went into effect one year later. Ever since, the granting of so-called Certificates of Rehabilitation has become an increasingly popular compromise version of full expungement in courts around the country. Between 2009 and 2014, nine states and Washington, D.C. began issuing the documents, also called certificates of relief, recovery, achievement, or employability. “These certificates are a remarkably dynamic new option,” says Kari Hamel, a civil legal aid attorney in North Carolina who is working to make the certificates – available in that state since 2011 – more accessible to more people with criminal records. “It’s a way of showing employers that the crime someone committed probably wasn’t committed yesterday. It makes what has happened since the crime a fully official part of that person’s record, for all employers to see.” “That’s the key,” she adds. “Rehabilitation is absolutely a part of a person’s history of trouble with the law, it’s just the second part, the positive part.” Paul Biebel, the presiding judge for Chicago’s criminal court, agrees that the certificates are a promising new option. “Only over the last few years have we seen more of these coming through the court,” he says of the certificates, “but I feel very strongly that they are an additional tool in a judge’s toolbox to evaluate people. We judges are prepared to send people to prison. But now, if the evidence proves rehabilitation, we also have a tool for redeeming people.” The new certificates have burst onto the scene amid emerging bipartisan consensus that the consequences for committing low-level nonviolent crimes – including the collateral consequences, such as difficulty getting a job[1] years later – should not be interminable. The Redeem Act, a bill sponsored by Senators Cory Booker and Rand Paul that would expand expungement for crimes committed as a juvenile, has picked up steam in Congress. President Obama, meanwhile, has highlighted the issue of the long-term impact of criminal records, particularly through his My Brother’s Keeper[2] initiative. This consensus is rooted in the fact that between 70 and 100 million Americans have an arrest, charge or conviction in their pasts. And, with the rise of the Internet, even a minor run-in with the law has been transformed from a temporary experience into a permanent one. This does not mesh well with the American ideal of self-reinvention. Yet despite the emerging agreement that many ex-offenders deserve second chances, not everyone agrees that these new certificates are the best way to go about providing redemption. Sharon Dietrich is one such critic. Dietrich is a civil legal aid attorney in Philadelphia and the author of “One Strike and You’re Out,” a report on the collateral consequences of criminal records, and she believes full expungement is always preferable to certificates. “Forgetting,” she says, “either by expunging someone’s record altogether or by permanently sealing it, is a much better solution than forgiving, which is what these certificates claim to do.” The certificates are a “weak compromise,” she adds, because they “rely on employers to do the right thing. But most employers will ignore the document that says you’ve been rehabilitated, and focus instead on the part about how you were arrested.” Supporters of the certificates argue that “forgetting” is a pipe dream. For one thing, law enforcement agencies often resist expungement, because it purges the record of information that might be useful in future investigations. James Jacobs, a professor of law at New York University and the author of “The Eternal Criminal Record,” says that even if expungement were more available, it would be a kind of “fraud” in the age of the Internet. “Expungement is not amnesia,” he says. “The information remains out there on the Internet. These private background check companies [such as LexisNexis, HireRight, and FirstAdvantage] have no incentive to remove expunged or out-of-date information.” Background checks on job applicants are frequently inaccurate[3] even without expungement, he said. Then again, certificates are not useful at all if ex-offenders – and employers – do not know about them, or do not know who is eligible. And even once ex-offenders know about the option, the process of affirmatively filing for a certificate is extremely complex. The burden to prove rehabilitation is on the applicant, not the prosecution. To be successful requires gathering documents from multiple agencies, letters of support from community members, and proof of sobriety, then arranging all of it into a narrative that demonstrates “rehabilitation.” In other words, the success of these certificates depends heavily on local lawyers, primarily from civil legal aid[4] organizations, taking a grassroots approach to informing people about what certificates are available and how to file for them. In New York, for instance, one of the few states to begin offering the certificates before Illinois, an average of only 261 per year were issued between 1995 and 2005. Between 2007 and 2010, as civil legal aid organizations started educating ex-offenders about the certificates, that number shot up to 2,040 per year. More recently, two of the most robust approaches to making these new certificates more accessible and understandable are underway in Illinois and North Carolina. In Chicago, Cabrini-Green Legal Aid has led the effort to inform people about the certificates. CGLA operates a Help Desk at the downtown Chicago courthouse, as well as a dial-in hotline, to educate ex-offenders about the certificates and get them started with the application process. And, according to Cynthia Cornelius, CGLA’s director of client and community services, the organization has recently begun to meet with and educate local employers. “None of this works unless employers know what these certificates are,” she says, “and why they should respect job applicants who have earned the certificates.” But making the certificates a useful option is not only about education, it is also about representation. So, in a statewide effort called Second Chances,[5] sixteen of the Illinois’ largest law firms have partnered with CGLA, supplying hundreds of pro bono lawyers to help process petitions for certificates. Down in North Carolina, the first step was to make the certificates available under the law, as Obama did in Illinois. Despite the anti-progressive climate in the state legislature, says Bill Rowe, chief counsel of the North Carolina Justice Center, securing “certificate legislation” was politically feasible. “Democrat or Republican, we all know someone here in North Carolina with a minor mistake holding them back,” says Rowe, “and minor mistakes are the types of mistakes we’re talking about forgiving with these certificates, not major mistakes. It’s not a ‘them’ issue, like some of the other divisive issues in the legislature; it’s an ‘us’ issue.” With the certificates in place, the next step was getting the word out. Hamel, the civil legal aid attorney, explains that Legal Aid of North Carolina operates mobile legal clinics deep in the Blue Ridge mountains, informing the people there about the certificates. Before each clinic, Hamel notifies the local newspapers in the towns where she is headed, asks the radio stations to broadcast PSAs, and contacts local domestic violence shelters and V.A. centers to get people to come out for the clinic. To bring employers on board, Hamel has help from Ben David, a local D.A. in Wilmington, North Carolina, who has convened the Hometown Hires program. David meets regularly with hundreds of the top employers in southeastern North Carolina to convince them to hire people with criminal records, especially people who have these certificates. “This is about working on criminal records,” David says, “which takes a lot of time, because it’s about the long-term, not just the open-and-shut part of the case. But as a D.A., I feel I should take active steps to stop prosecuting folks who are just trying to get jobs, and these certificates and the other new options, I think, are a way of stopping the endless prosecution of job seekers.” But in the end, says Jacobs, even with robust information campaigns, certificates are “not a magic bullet.” “If everyone gets a certificate,” he says, “then the certificate has no credibility, and employers won’t respect it. So we can’t give certificates to people who don’t deserve one.” But the hard truth, Jacobs says, is that a considerable fraction of people with criminal histories do not deserve a certificate, because they “are still struggling with drug addiction, mental illness, and tremendous deficits. They are not rehabilitated to the point of deserving a certificate, but they do deserve our help.” In other words, rehabilitation for most ex-offenders requires actually working with them while they are being rehabilitated, not just rewarding them afterward if they can do it on their own. “Finding a route back to where some of these people have never been,” says Jacobs: “That requires more than just a certificate.”     [1] Over 80 percent of employers run criminal background checks, according to the Society for Human Resource Management. [2]  My Brother’s Keeper initiative is a collaboration between the White House and local businesses, foundations, and cities, aimed at creating more jobs and civic opportunities for young men of color [3] In 2012, 600,000 job applicants received inaccurate FBI background checks. For these reasons, Jacobs argues, ex-offenders are better off if they are equipped with an affirmative document, like a certificate, with which they can respond when employers inevitably find something damning on the Internet. [4] The right to counsel is not guaranteed when there is no active criminal prosecution, which is why civil legal aid lawyers, not criminal defenders, are responsible for helping people with these certificates. [5] The Second Chances program is part of the nationwide IMPACT Project, a project inspired by Vice President Joe Biden to encourage pro bono lawyers to work more closely with legal aid lawyers.     Read more