Tag: New York

New York Times weighs in on college applications and criminal records

The New York Times has published an editorial about the recently issued report of the Center for Community Alternatives on the deterrent effect of questions about criminal records on applications for admission to the State University of New York.  (See the piece about the report “Boxed Out: Criminal History Screening and College Attrition” by CCA Director Alan Rosenthal published in this space 10 days ago.)  The editorial notes that the 24 campuses of the CUNY system do not include “the box” asking about criminal record on their application forms and have reported no safety issues as a result.  Perhaps this will be one of those rare cases where effective public advocacy highlighted in editorial pages will actually have a concrete result. Americans who have criminal histories are often stymied when they encounter college entry applications that ask if they have ever been convicted of crimes. The process, which often brings greater scrutiny to people who answer “yes,” is driving away large numbers of people who present no danger to campus safety and are capable of succeeding academically. Similar problems have faced people with records when they look for jobs, but progress on that front could be a model for reforming college admissions. Fourteen states and about 100 local governments have worked to minimize job discrimination by barring public — and, in many cases, private — employers from asking about criminal convictions until later in the application process, when the person has had a chance to prove his or her worthiness for the job. Heightened concern on campuses about criminal records can be traced in part to the 1986 murder of Jeanne Clery, a 19-year-old who was killed in her dormitory at Lehigh University. The killer did not have a criminal conviction record. Congress responded by passing the Clery Act in 1990, requiring schools to publicly report violence on campus. The practice of collecting criminal history information on applications became common a decade ago, after questions about an applicant’s criminal convictions were added in 2006 to the Common Application, now used by nearly 500 colleges. Many schools reacted by taking into account minor offenses like alcohol convictions by applicants, who are often asked to produce official rap sheets. These records can contain inaccurate information and show juvenile offenses that have been sealed by the courts — which means they should never be viewed publicly or used in such a process. Schools often fail to train their staff members in how to weigh criminal history information. As a result, people who check “yes” on the felony box can find themselves trapped in a Kafkaesque world where they are peppered with Inquisition-style questions and repeatedly asked to find documents that do not exist or are impossible to provide. It is no surprise that many students would become discouraged. A new study by the Center for Community Alternatives, a nonprofit group that focuses on alternatives to incarceration, suggests that many more people with convictions actually give up than complete the applications process. The study looks at the process at 60 of the 64 campuses of the State University of New York. It found that nearly two-thirds of applicants who checked “yes” in the felony box never completed the applications process. By contrast, the 24 campuses of the City University of New York do not ask applicants about their criminal histories. Administrators insist that this has not posed a safety problem. The study notes that “the power of label and stigma, which shapes the life experiences of people with criminal history records in 21st-century America, discourages many from trying to push open doors that seem locked tight.” It calls on the State University of New York and all colleges to exclude the criminal history question from applications and end the use of that information in admissions decisions. Read more

Criminal history screening in college applications

Last week the Center for Community Alternatives in cooperation with the Education from the Inside Out Coalition released Boxed Out: Criminal History Screening and College Application Attrition. With this new study and report we build upon our 2010 study, The Use of Criminal History Records in College Admissions Reconsidered. The Reconsidered study showed that a growing number of colleges and universities are asking about criminal history information during the application process: two-thirds of the colleges and universities we surveyed reported that they do so. Yet, as we discussed in the Reconsidered study, there is no empirical evidence to indicate that criminal history screening makes college campuses any safer. This study explains how the criminal history box on college applications and the supplemental requirements and procedures that follow create barriers to higher education for otherwise qualified applicants. Our research focused on the State University of New York (SUNY). We found that almost two out of every three applicants who disclosed a felony conviction were denied access to higher education, not because of a purposeful denial of their application, but because they were driven out of the application process. We term this phenomenon “felony application attrition” which describes the reduction from the number of applicants who start an application and check the felony box “yes” to the number of applicants who, according to the admissions office, have satisfied all of the supplemental requirements and completed their applications. In this study, we explore how the stigmatizing and daunting impact of the supplemental procedures imposed on applicants who disclose a felony conviction contribute to this attrition. This case study of SUNY has national implications. The supplemental procedures and requirements imposed by SUNY campuses are not unique. From our 2010 study we know that 55 percent of the public colleges that responded to our survey engage in criminal history screening, and a majority of those use supplemental procedures and requirements. Federal, state and local public policy-makers are promoting reentry and reintegration efforts as a means of addressing our nation’s four-decade long flawed criminal justice policies that have produced overcriminalization and mass incarceration. Such efforts, if successful, will improve society in many respects, including reducing poverty and decreasing the racial divide. At the same time, many colleges and universities are both consciously and unconsciously engaged in a practice that subverts those public policy efforts and undermines development of good citizenship, public safety, democracy, the human right to education, and expands the economic and racial divide. It is disingenuous to expect people who have served their sentence after a criminal conviction to live law-abiding and productive lives if they are continuously denied employment and educational opportunities. Exposing this insidious and unnecessary lifetime consequence is the first step toward addressing it. We share the information from our research in the sincere hope of raising awareness of and opening up a dialogue about the dangers of college admissions policies that intentionally or inadvertently drive people with past criminal justice involvement from the college application process. We urge colleges and universities to refrain from asking about and considering criminal history information in admissions decision-making.   The CCA report is authored by: Alan Rosenthal. Esq., Advisor on Special Projects and Counsel Emily NaPier, M.A., Senior Research Associate Patricia Warth, Esq., Director of Justice Strategies Marsha Weissman, Ph.D., Executive Director   Read more

New York certificate scheme found inaccessible and ineffective

  The certificate system for restoring rights after conviction in New York no longer serves its intended purposes, according to an investigation by City Limits.  The problem is that Certificates of Relief from Disabilities (CRD) are supposed to be a means to rehabilitation for people sentenced to probation, but the judges authorized to issue them see them (in the words of one public defender) “as a gold star, as a thing you get after you’ve been rehabilitated.”  The Parole Board appears similarly reluctant to issue Certificates of Good Conduct (CGC) to people leaving prison, even after a waiting period. The requirement of proof of rehabilitation as the price of a certificate has created what the City Limits investigation describes as “a catch-22”:   A conviction can bar someone from public housing. It can keep them from getting professional licenses—such as the ones required to direct funerals, or be a security guard or a home health aide, among many others. And employers stigmatize people with convictions, making it hard for them to get jobs.  These are the problems certificates were created to remedy, but also the problems people often have to surmount before they’re deemed worthy of one. When Governor Hugh Carey approved the two-track system in 1976 he declared that “Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime.”  But apparently this animating spirit of the law has been all but forgotten. For years New York was the only state to offer relief from collateral consequences as early as sentencing, and was hailed as a model for other jurisdictions.  Indeed, 10 years ago advocates urged the Connecticut legislature to implement reforms modeled after New York’s law.  Now it seems New York could take a lesson from its neighbor to the East, whose recently revised relief scheme provides early targeted relief to aid rehabilitation, and fuller recognition of rehabilitation some time later. Part of the problem is that New York’s system tries to do too much with a single certificate. That is, both certificates have essentially the same legal effect, except that one (CRD) is for probationers with no prior felonies, and the other (CGC) is for all others.  In contrast, the two-stage relief process Connecticut has adopted addresses both reentry and full restoration, similar to the Uniform Collateral Consequences of Conviction Act adopted in Vermont, and is conceptually and functionally preferable to New York’s two-track certificate system. The clear distinction in function between early and later relief in Connecticut makes it easier for each to fulfill its assigned role.  New York’s system is coceptually muddled and therefore functionally ineffective. The Connecticut system also avoids the problem identified by City Limits that more liberal issuance of certificates to facilitate reentry at an early stage may water down their value later on: “if more people got certificates as a matter of course, it could end up undermining the idea that they show that someone is rehabilitated.” The City Limits investigation also found that certificates are issued rarely because few New York lawyers and judges know about them: Roland Acevedo, a lawyer who’s sued employers for discriminating against people with criminal histories, says lawyers are often as unaware about certificates as the people they represent. He adds that some judges, despairing of a defense lawyer’s ignorance, will suggest to the lawyer that they apply for a certificate for their client—that is, apply to the very judge suggesting that they apply.   “A lot of lawyers don’t know so they don’t ask,” Acevedo says. “It’s amazing how many people don’t know this law.” This is not to say that New York certificates don’t work in certain cases, but those cases are likely to involve capable lawyers with clients who know exactly what they want: But for those that do [know about certificates], Certificates can be powerful. After getting convicted of tax evasion back in 2010, the Ciprianis were in danger of losing the liquor licenses that made their restaurants possible. But the family, “whose lawyers are undeniably more talented than their cooks,” as the New York Observer put it, got a Certificate of Relief at their sentencing, which ultimately allowed them keep the licenses. But lawyers say that rarely happens for the average person.     Read more

Long waits for expungement frustrate public safety purposes

Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods.  If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison.  Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt. The preamble to the new Louisiana law says it is intended “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.”  But a felony offender is ineligible to apply for expungement until ten years after completion of sentence, long after recidivism has ceased to be a statistical risk.  In other words, the new law is not likely to do much if anything to “break the cycle of recidivism” or help people “reentering the community” (presumably from prison).  Even misdemeanants have to wait five years before they are eligible. The only people whose records can be expunged immediately are those who were never convicted to begin with. Wouldn’t people returning to the community from prison be more likely to benefit from supportive social services, rehabilitative programming, and assistance with obtaining transitional jobs and housing?  It is possible that the legislators expected the availability of expungement at some future time to provide an incentive to stay on the straight and narrow — but the reference to employment opportunities upon “reentering the community” suggests they had something more immediate in mind.   Relief after a long period of law-abiding conduct also serves a useful purpose to recognize a person’s full rehabilitation, but it does nothing to overcome obstacles faced by people upon their release from prison. The formulaic recitation of public safety-related purposes to justify providing relief from collateral consequences is not unique to Louisiana, and neither is the apparent contradiction with those purposes presented by extended eligibility periods.  New broad expungement schemes in Indiana, Minnesota and Arkansas also make felony offenders wait years without another run-in with the law before they can apply for relief.  Any notion that expungement of conviction records will facilitate reentry or discourage reoffending is either mistaken or disingenuous.   Expungement of arrest records is another matter, though concepts of “reentry” and “recidivism” don’t strictly apply where a person is not convicted. So this raises three questions:  1) why can’t we enact relief from collateral consequences at a time when it will in fact facilitate reentry and impact public safety; 2) why aren’t we doing more to avoid conviction in the first place; and 3) why are legislators and other government officials so hesitant to justify restoration of rights in terms of fairness and/or reward? The answer to Question #1 is that only a few states have enacted laws authorizing relief from collateral consequences as early as sentencing, when it could be of genuine help with reentry.  New York has had such a law for years, for first offenders sentenced to probation. Vermont, Colorado and New Jersey now also have laws authorizing the sentencing court to dispense with mandatory collateral consequences, and bills that would accomplish this have been introduced in several other states.  Relief at sentencing is a feature of both the Uniform Collateral Consequences of Conviction Act and the Model Penal Code: Sentencing, so perhaps this will be the wave of the future.  Note, however, that not a single state provides record-closing relief to convicted persons prior to completion of sentence, so advocates would do well to consider more transparent forms of relief during the period covered by the sentence. Question #2 gets a more hopeful answer:  more than half the states have opportunities for diversion and deferred adjudication followed by expungement or sealing.  This means that people charged with minor offenses can avoid a conviction record if they successfully completion of probation.  But again, this is not a “reentry” remedy strictly speaking since by definition the person never leaves the community.  And, in those jurisdictions that condition eligibility on a guilty plea, they may be subject to collateral consequences during the period of probation.  The new Model Penal Code: Sentencing has provisions implementing both diversion and deferred adjudication that do not require a formal plea, and whose specific goal is to enable people to avoid incurring collateral consequences. Since there is never a conviction, the person may answer honestly that they have never been convicted.  These provisions originated in the 1970s when reformers were interested in encouraging rehabilitation through sentencing, as we perhaps are again today. (I would note it is high time that the federal government expanded the only authority it now has for deferred adjudication, 18 USC 3706, from drug possession to any minor offense.) Question #3 is rhetorical.   Read more

How much must a law school applicant disclose about his criminal record?

The New York Court of Appeals is considering how candid a person must be about his prior criminal record when applying to law school.  During oral argument on February 12 in Matter of Powers v. St. John’s University School of Law, several judges raised public policy concerns over the law school’s summary rescission of David Powers’ admission midway through his second year, based on how he had described his criminal record on his original application.  Powers had disclosed a past conviction for drug possession, but did not also report that he had initially faced more serious charges of drug-dealing.  These underlying charges came to light mid-way through Powers’ second year, when he sought clarification from the New York courts as to whether his criminal record would preclude his admission to the bar. According to an account of the argument in the New York Law Journal, “[Powers] involvement with drugs seemed to concern state Court of Appeals judges less than St. John’s University’s decision to rescind his admission to law school.” The St. John’s law school application form asks whether the applicant has ever been “charged with, pleaded guilty to, or been found guilty of any crime, offense or violation” except for minor traffic violations. The school’s lawyer argued that Powers caused his own problems by not being truthful when he applied for admission — though he conceded that if Powers had disclosed the more serious distribution charges “he would have been denied from the outset.” The judges expressed concern that people like Powers should have to face the ramifications of youthful criminal conduct later in life despite managing subsequently to lead law-abiding lives.  Powers’ record was expunged under New Jersey law shortly after his admission to law school. Chief Judge Lippman thought St. John’s should have taken into account the subsequent expungement in deciding what if any action to take against Powers after the fact: We think about young people whose lives are ruined because of a single mistake at one point in their life and where policy makers say, “Not right. One offense, so many years ago, whatever age, whatever the statute is. We want to make sure that the young person’s life is not ruined. Expunge the record.” (Note that New York law does not authorize courts to expunge adult convictions, though New Jersey does.)  Judge Eugene Pigott Jr. wanted to know why Powers was not given a hearing before the school took action against him: I would have thought there should have been a hearing somewhere where these people would have come in and said, “Yeah, this the worst guy we ever saw and thank God St. John’s was able to catch him before he went to the Second Department and got admitted as an attorney.” Powers’ attorney, Roland Acevedo, called his client a “poster child” for rehabilitation, a claim that several of the judges appeared to agree with.  Acevedo himself had a past conviction for armed robbery when he was admitted to the bar in 1997, and he often represents lawyers and others who seek to practice their professions despite a criminal record. When people make efforts to change behavior, such as Powers, such as I did by getting treatment and then getting educated, that should amount to something in people’s eyes,” said Acevedo, a graduate of Fordham University School of Law. “Everybody is entitled to a second chance, but when people show they are entitled to it by doing something that is not easy in any arena, that should be worth something, especially in the case of Mr. Powers.” In 2013, a 3-1 Appellate Division, Second Department, panel upheld the law school’s actions.   See 110 AD3d 888.  While the majority said it did not consider the penalty imposed to be “shocking to one’s sense of fairness,” the dissent thought it excessive.  At the least, Powers should have been dismissed so that he could transfer with the credits earned in his first three semesters. In an amicus curiae brief filed in support of Powers, several New York legal services groups told the court that Powers had truthfully disclosed his criminal record to St. John’s, arguing that the question on the application form was ambiguous. They urged the judges to prevent him from being penalized because of the message it would send to their clients who have faced criminal charges in the past. “If an institution of higher education, or by extension an employer or housing agency, can require applicants to answer ambiguous questions about their criminal conviction histories and then, at any time after granting appeal, penalize them based on the institutions’ misinterpretation of their responses, our clients have no defense against arbitrary and discrminatory action,” the groups said in a brief prepared by Community Service Society attorneys Judith Whiting, Kimberly Westcott and Paul Keefe. Other groups joining the brief were the Bronx Defenders, Education from the Inside Out Coalition, the Legal Action Center, the Legal Aid Society, Legal Services NYC, MFY Legal Services, the Osborne Association and Youth Represent. The court is expected to hand down a ruling in March.   Read more