Tag: Obama

50-state guide to expungement and sealing laws

The 50-state chart of judicial relief mechanisms from the NACDL Restoration of Rights Resource, which is also posted on this site, is a comprehensive survey of all authorities for judicial relief in the states and federal system. We wanted to bring it to our readers’ attention in light of the new federal interest in helping individuals with a criminal record overcome barriers to employment and licensing through clearing their records. The National Clean Slate Clearinghouse, recently announced as part of President Obama’s reentry initiative, will “provide technical assistance to local legal aid programs, public defender offices, and reentry service providers to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.” This joint project of the Labor and Justice Departments will doubtless make it a first priority to survey the laws providing judicial and other relief in different states, to determine what sort of assistance lawyers will need to neutralize the adverse employment consequences of conviction, though the courts or otherwise.  We hope these resources will prove useful in that effort. Note that terminology and procedure differ significantly from state to state, so that those interested in more specific information about the scope, operation and effect of a particular state’s laws should consult the state-by-state profiles accessible through the Resources tab on the home page of this site.  For example, while the term “expungement” may involve destruction of records in a few states (e.g., Pennsylvania), more frequently it means a limited restriction on public access to records.  For example, in Kansas certain employers and licensing agencies continue to have access to criminal records notwithstanding an expungement order from the court.  In Indiana “expungement” entails no limit of public access at all — although some records may be sealed after expungement.  In some states a judicial set-aside or vacatur involves a sealing of the record (e.g., Michigan, Washington) but in others it doesn’t (e.g., California).  Most jurisdictions authorize sealing or expungement of non-conviction records upon petition to the court. In the past few years a number of states have modified their provisions for sealing or expungement of records, but most of these new laws reach only minor offenses or non-conviction records, and frequently involve long eligibility waiting periods that defeat their usefulness for reentry purposes. Conspicuous exceptions are the comprehensive new judicial relief schemes enacted in Indiana and Minnesota, and Arkansas’ reorganization and expansion of its existing expungement laws. A few states, notably Kansas and Utah, have broad expungement laws dating from the 1970s. Note that there is no statute providing for expungement of federal convictions, and almost no authority to limit access to non-conviction records — a circumstance that has led several federal sentencing courts to consider expungement through their ancillary jurisdiction. The most well-known of these cases is U.S.v. Jane Doe, now on appeal in the Second Circuit, in which Judge John Gleeson ordered expungement of a fraud conviction of a woman he had sentenced 13 years before.  (Briefs in the Doe case are available here.) Read more

President issues order announcing reentry initiatives

On November 2, the President issued an executive order announcing a series of steps to encourage reentry and rehabilitation of individuals who have recently been released from prison.  Among other things, the order establishes a National Clean Slate Clearinghouse, and authorizes technical assistance to legal aid programs and public defender offices “to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.” According to an article in the New York Times, the measures are all relatively modest in scale, important to the president less for their individual effect than for the direction they keep the country moving. Collectively, they reflect a belief that former inmates should have greater leeway to apply for jobs and housing without disclosing criminal records that would hinder their chances. The order also calls on Congress to establish a ban-the-box program for federal employers and contractors.  In the interim, it asks the Office of Personnel Management to “take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process.”  Presumably this means at a minimum that OPM should eliminate the criminal history question on its “Declaration for Federal Employment” form.  However, the order stops well short of recommending the more progressive steps proposed in a National Employment law Project report issued last January, including the revision of the federal “suitability” regulations to comply fully with the protections of Title VII of the Civil Rights Act of 1964. We will shortly take a closer look at this new federal initiative to blunt the impact of collateral consequences.  For now, we post the text of the entire order.  THE WHITE HOUSE Office of the Press Secretary FOR IMMEDIATE RELEASE November 2, 2015 FACT SHEET: President Obama Announces New Actions to Promote Rehabilitation and Reintegration for the Formerly-Incarcerated This Administration has consistently taken steps to make our criminal justice system fairer and more effective and to address the vicious cycle of poverty, criminality, and incarceration that traps too many Americans and weakens too many communities. Today, in Newark, New Jersey, President Obama will continue to promote these goals by highlighting the reentry process of formerly-incarcerated individuals and announce new actions aimed at helping Americans who’ve paid their debt to society rehabilitate and reintegrate back into their communities. Each year, more than 600,000 individuals are released from state and federal prisons. Advancing policies and programs that enable these men and women to put their lives back on track and earn their second chance promotes not only justice and fairness, but also public safety.  That is why this Administration has taken a series of concrete actions to reduce the challenges and barriers that the formerly incarcerated confront, including through the work of the Federal Interagency Reentry Council, a cabinet-level working group to support the federal government’s efforts to promote public safety and economic opportunity through purposeful cross-agency coordination and collaboration. The President has also called on Congress to pass meaningful criminal justice reform, including reforms that reduce recidivism for those who have been in prison and are reentering society.  The Sentencing Reform and Corrections Act of 2015, which recently received a strong bipartisan vote in the Senate Judiciary Committee, would be an important step forward in this effort, by providing new incentives and opportunities for those incarcerated to participate in the type of evidence-based treatment and training and other programs proven to reduce recidivism, promote successful reentry, and help eliminate barriers to economic opportunity following release.  By reducing overlong sentences for nonviolent drug offenses, the bill would also free up additional resources for investments in other public safety initiatives, including reentry services, programs for mental illness and addiction, and state and local law enforcement. Today, the President is pleased to announce the following measures to help promote rehabilitation and reintegration: Adult Reentry Education Grants.  The Department of Education will award up to $8 million (over 3 years) to 9 communities for the purpose of supporting educational attainment and reentry success for individuals who have been incarcerated.  This grant program seeks to build evidence on effective reentry education programs and demonstrate that high-quality, appropriately designed, integrated, and well-implemented educational and related services in institutional and community settings are critical  in supporting educational attainment and reentry success. Arrests Guidance for Public and other HUD-Assisted Housing. The Department of Housing and Urban Development (HUD) will release guidance today to Public Housing Authorities and owners of HUD-assisted housing regarding the use of arrests in determining who can live in HUD-assisted properties.  This Guidance will also clarify the Department’s position on “one strike” policies and will include best practices from Public Housing Authorities. Banning the Box in Federal Employment. The President has called on Congress to follow a growing number of states, cities, and private companies that have decided to “ban the box” on job applications.  We are encouraged that Congress is considering bipartisan legislation that would “ban the box” for federal hiring and hiring by federal contractors.  In the meantime, the President is directing the Office of Personnel Management (OPM) to take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process.  While most agencies already have taken this step, this action will better ensure that applicants from all segments of society, including those with prior criminal histories, receive a fair opportunity to compete for Federal employment. TechHire: Expanding tech training and jobs for individuals with criminal records.  As a part of President Obama’s TechHire initiative, over 30 communities are taking action – working with each other and national employers – to expand access to tech jobs for more Americans with fast track training like coding boot camps and new recruitment and placement strategies.  Today we are announcing the following new commitments: Memphis, TN and New Orleans, LA are expanding TechHire programs to support people with criminal records. Newark, NJ, working with the New Jersey Institute of Technology and employers like Audible and Prudential, will offer training through the Art of Code program in software development with a focus on training and placement for formerly incarcerated people. New Haven, CT, Justice Education Center, New Haven Works, and others will launch a pilot program to train and place individuals with criminal records, and will start a program to train incarcerated people in tech programming skills. Washington, DC partners will train and place 200 formerly incarcerated people in tech jobs.  They will engage IT companies to develop and/or review modifications to hiring processes that can be made for individuals with a criminal record. Establishing a National Clean Slate Clearinghouse. In the coming weeks, the Department of Labor and Department of Justice will partner to establish a National Clean Slate Clearinghouse to provide technical assistance to local legal aid programs, public defender offices, and reentry service providers to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services. Permanent Supportive Housing for the Reentry Population through Pay for Success. The Department of Housing and Urban Development and the Bureau of Justice Assistance at the Department of Justice have launched an $8.7 million demonstration grant to address homelessness and reduce recidivism among the justice-involved population. The Pay for Success (PFS) Permanent Supportive Housing Demonstration will test cost-effective ways to help persons cycling between the criminal justice and homeless service systems, while making new Permanent Supportive Housing available for the reentry population. PFS is an innovative form of performance contracting for the social sector through which government only pays if results are achieved. This grant will support the design and launch of PFS programs to reduce both homelessness and jail days, saving funds to criminal justice and safety net systems. Juvenile Reentry Assistance Program Awards to Support Public Housing Residents. With funding provided by the Office of Juvenile Justice and Delinquency Prevention at the Department of Justice, the Department of Housing and Urban Development will provide $1.75 million to aid eligible public housing residents who are under the age of 25 to expunge or seal their records in accordance with their applicable state laws.  In addition, the National Bar Association – the nation’s oldest and largest national association of predominantly African-American lawyers and judges – has committed to supplementing this program with 4,000 hours of pro bono legal services.  Having a criminal record can result in major barriers to securing a job and other productive opportunities in life, and this program will enable young people whose convictions are expungable to start over. Many of the announcements being made today stem from the President’s My Brother’s Keeper Task Force, which is charged with addressing persistent opportunity gaps facing boys and young men of color and ensuring all young people can reach their full potential.  In May of 2014, the Task Force provided the President with a series of evidence-based recommendations focused on the six key milestones on the path to adulthood that are especially predictive of later success, and where interventions can have the greatest impact, including Reducing Violence and Providing a Second Chance. The Task Force, made up of key agencies across the Federal Government, has made considerable progress towards implementing their recommendations, many times creating partnerships across agencies and sectors.  Today’s announcements respond to a wide range of recommendations designed to “eliminate unnecessary barriers to giving justice-involved youth a second chance.” These announcements mark a continuation of the Obama Administration’s commitment to mitigating unnecessary collateral impacts of incarceration.  In particular, the Administration has advanced numerous effective reintegration strategies through the work of the Federal Interagency Reentry Council, whose mission is to reduce recidivism and victimization; assist those returning from prison, jail or juvenile facilities to become productive citizens; and save taxpayer dollars by lowering the direct and collateral costs of incarceration. Through the Reentry Council and other federal agency initiatives, the Administration has improved rehabilitation and reintegration opportunities in meaningful ways, including recent initiatives in the following areas: Reducing barriers to employment. Last month, the Department of Justice awarded $3 million to provide technology-based career training for incarcerated adults and juveniles.  These funds will be used to establish and provide career training programs during the 6-24 month period before release from a prison, jail, or juvenile facility with connections to follow-up career services after release in the community. The Department of Justice also announced the selection of its first-ever Second Chance Fellow, Daryl Atkinson.  Recognizing that many of those directly impacted by the criminal justice system hold significant insight into reforming the justice system, this position was designed to bring in a person who is both a leader in the criminal justice field and a formerly incarcerated individual to work as a colleague to the Reentry Council and as an advisor to the Bureau of Justice Assistance Second Chance programs. In addition, the Department of Labor awarded a series of grants in June that are aimed at reducing employment barriers, including: Face Forward: The Department awarded $30.5 million in grants to provide services to youth, aged 14 to 24, who have been involved in the juvenile justice system.  Face Forward gives youth a second chance to succeed in the workforce by removing the stigma of having a juvenile record through diversion and/or expungement strategies. Linking to Employment Activities Pre-Release (LEAP): The Department awarded $10 million in pilot grants for programs that place One Stop Career Center/American Job Centers services directly in local jails.  These specialized services will prepare individuals for employment while they are incarcerated to increase their opportunities for successful reentry. Training to Work: The Department awarded $27.5 million in Training to Work grants to help strengthen communities where formerly incarcerated individuals return.  Training to Work provides workforce-related reentry opportunities for returning citizens, aged 18 and older, who are participating in state and/or local work-release programs.  The program focuses on training opportunities that lead to industry-recognized credentials and job opportunities along career pathways. Increasing access to education and enrichment. High-quality correctional education — including postsecondary correctional education — has been shown to measurably reduce re-incarceration rates.  In July, the Departments of Education and Justice announced the Second Chance Pell Pilot Program to allow incarcerated Americans to receive Pell Grants to pursue postsecondary education and trainings that can help them turn their lives around and ultimately, get jobs, and support their families.  Since this pilot was announced, over 200 postsecondary institutions across the nation have applied for consideration. In June, the Small Business Administration published a final rule for the Microloan Program that provides more flexibility to SBA non-profit intermediaries and expands the pool of microloan recipients.  The change will make small businesses that have an owner who is currently on probation or parole eligible for microloan programs, aiding individuals who face significant barriers to traditional employment to reenter the workforce. Expanding opportunities for justice-involved youth to serve their communities. In October, the Corporation for National and Community Service (CNCS) and the Office of Juvenile Justice and Delinquency Prevention at the Department of Justice announced a new round of Youth Opportunity AmeriCorps grants aimed at enrolling at-risk and formerly incarcerated youth in national service projects.  These grants, which include $1.2 million in AmeriCorps funding, will enable 211 AmeriCorps members to serve through organizations in Washington, D.C. and four states: Maine, Maryland, New York, and Texas. In addition, the Department of Labor partnered with the Department of Defense’s National Guard Youth ChalleNGe program and awarded three $4 million grants in April of this year to provide court-involved youth with work experiences, mentors, and vocational skills training that prepares them for successful entry into the workforce. Increasing access to health care and public services. In October, the Department of Justice announced $6 million in awards under the Second Chance Act to support reentry programming for adults with co-occurring substance abuse and mental disorders.  This funding is aimed at increasing the screening and assessment that takes place during incarceration as well as improving the provision of treatment options. In September, the Substance Abuse and Mental Health Services Administration (SAMHSA) at HHS announced the winners of its reintegration toolkit challenge to develop software applications aimed at transforming existing resources into user-friendly tools with the potential to promote successful reentry and reduce recidivism.  And in October, HHS issued a “Guide for Incarcerated Parents with Children in the Child Welfare System” in order to help incarcerated parents who have children in the child welfare system, including in out-of-home-care, better understand how the child welfare system works so that they can stay in touch.”  The information can be found at: http://youth.gov/youth-topics/children-of-incarcerated-parents. The Social Security Administration (SSA) finalized written statewide prerelease agreements in September with the Department of Corrections in Iowa and Kansas.  These agreements – now covering the majority of states – ensure continuity of services for returning citizens.  SSA also has prisoner SSN replacement card MOUs in place with 39 states and the Federal Bureau of Prisons.  A dedicated reentry webpage is accessible at www.socialsecurity.gov/reentry. Increasing reentry service access to incarcerated veterans. In September, the Department of Labor’s Veterans’ Employment and Training Service announced the award of $1.5 million in grants to help once incarcerated veterans considered “at risk” of becoming homeless.  In all, seven grants will serve more than 650 formerly incarcerated veterans in six states. The Department of Veterans Affairs (VA) also has developed a web-based system – the Veterans Reentry Search Service (VRSS) – that allows prison, jail, and court staff to quickly and accurately identify veterans among their populations.  The system also prompts VA field staff – automatically – so that they can efficiently connect veterans with services.  As of this summer, more than half of all state prison systems, and a growing number of local jails, are now using VRSS to identify veterans in their populations. Improving opportunities for children of incarcerated parents and their families. In October, the Federal Communications Commission (FCC) took action to make it easier for incarcerated individuals to stay in touch with their families by capping all in-state and interstate prison phone rates.  The FCC also put an end to most of the fees imposed by inmate calling service providers.  Studies have consistently shown that inmates who maintain contact with their families experience better outcomes and are less likely to return to prison after they are released.  Reduced phone rates will make calls significantly more affordable for inmates and their families, including children of incarcerated parents, who often live in poverty and were at times charged $14 per minute phone rates. In October, the Department of Justice announced new grant awards to fund mentoring services for incarcerated fathers who are returning to their families.  These awards will fund mentoring and comprehensive transitional services that emphasize development of parenting skills in incarcerated young fathers. Moreover, the Office of Juvenile Justice and Delinquency Prevention at the Department of Justice has awarded $1 million to promote and expand services to children who have a parent who is incarcerated in a Federal Bureau of Prisons (BOP) correctional facility. This program aims to provide opportunities for positive youth development, and to identify effective strategies and best practices that support children of incarcerated parents, including mentoring and comprehensive services that facilitate healthy and positive relationships.  In addition to engaging the parent while he or she is incarcerated, this solicitation also supports the delivery of transitional reentry services upon release. Private Sector Commitments to Support Reentry. The Center for Employment Opportunities (CEO), an organization that provides comprehensive employment services to people with recent criminal convictions, has committed to more than double the number of people served from 4,500 to 11,000 across existing geographies and 3-5 new states.  This winter, CEO will open in San Jose with support from Google and in the next year, the team will launch in Los Angeles. This growth has been catalyzed by federal investments, including support from the American Recovery and Reinvestment Act, the Social Innovation Fund, and a Department of Labor Pay for Success Project. In addition, Cengage Learning will roll out Smart Horizons Career Online Education in correctional facilities in up to four new states over the next 12 months, providing over 1,000 new students with the opportunity to earn a high-school diploma and/or career certificate online.  Smart Horizons Career Online Education is the world’s first accredited online school district, with a focus on reaching underserved populations.  The program has been piloted in Florida with 428 students who have received diplomas or certificates. 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

Slate asks why presidents are granting less clemency; Justice answers

Slate has posted a new piece by Leon Neyfakh entitled “The Pardon Process Is Broken.”  The piece points out that “presidents are granting clemency far less often than they once did,” and asks “Why?”  It answers its own question by distilling an article by Margaret Love to be published in the Toledo Law Review, which argues that the low grant rate reflects overwhelmingly negative recommendations from the Justice Department.  In response to Slate’s invitation, Justice had the following comments on Love’s proposal: The mission of the Department of Justice is to enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. The work of the Office of the Pardon Attorney is an integral part of the Department’s mission. These comments seem to concede the point that the Office of the Pardon Attorney has ceased to operate as an independent source of advice for the president in clemency matters, but instead has become an extension of the law enforcement agenda of the Department’s prosecutors.  They evidence the key role the Justice Department has played in the atrophy of the constitutional pardon power. A further examination of Justice Department clemency statistics since the 1930’s reveals an even more dramatic decline in favorable Justice Department recommendations in the past 25 years than is reported in the draft of Love’s article posted here 10 days ago. Between 1932 and 1988 the percentage of total cases acted on by the president that had been sent to him with the Justice Department’s blessing averaged around 30%.  The percentage of cases sent forward with a favorable recommendation dropped to single digits beginning with the presidency of George H.W. Bush, and it has dropped even lower in the past 15 years.  Under President Obama, the likely paucity of favorable recommendations from Justice has resulted in the lowest grant rate to date:  President Obama has made a total of 153 grants (89 commutations and 64 full pardons) while denying almost 9000 applications, for an overall grant rate of 1.6%. The absolute numbers also tell a tale: President Obama has granted more sentence commutations than any president since Richard Nixon, but fewer full pardons than any president since John Adams.  Pardon is the only clearly established way for federal offenders to avoid or mitigate collateral consequences. If Justice is unwilling to recommend pardons to the President, might it direct federal offenders to an alternative source of relief from collateral consequences?  That also does not appear to be in the cards: in a case currently pending before Judge John Gleeson in the Eastern District of New York, Justice has taken the position that a federal court has no authority to expunge a conviction or issue a certificate of rehabilitation. It remains to be seen whether Justice will recommend more pardons to the White House or, better yet, support legislative efforts to give courts the power to dispense with collateral consequences that it now finds lacking. Read more

President urged to make federal hiring fairer — but is the “ask” enough to get the right result?

A coalition of national advocacy organizations has again urged President Obama to implement a robust federal hiring policy to give people with a criminal record a fair chance to compete for federal agency and contractor jobs.[1]  In an open letter dated July 20, the coalition called upon the President to issue an executive order requiring employers to conduct a criminal records check only after a conditional hiring offer has been made, and to adhere to current EEOC guidance on considering the results of a records check. The administration’s recent rhetoric indicates that it may be receptive to the coalition’s proposed reforms. On July 14, the President explicitly endorsed so-called “ban-the-box” policies in his speech on criminal justice reform at the NAACP annual convention: Let’s follow the growing number of our states, and cities, and private companies who’ve decided to ban the box on job applications so that former prisoners who have done their time and are now trying to get straight with society have a decent shot in a job interview. According to the coalition, the Obama administration has endorsed fair hiring policies since at least last spring when the My Brother’s Keeper Task Force called for banning the box. Last year, the Attorney General’s Reentry Council urged that “mak[ing] the federal government a model employer” should be a key point of the federal reentry agenda. The July 20 letter challenges the President to make good on this rhetoric: It is past time for your administration to make these powerful pledges a reality by leveraging the federal government’s considerable resources to reform the hiring process of workers employed by federal contractors and federal agencies, which account for over 20 percent of the entire U.S. workforce. The specific reform proposals in the July 20 letter incorporate, in broad strokes, the more detailed agenda outlined in a report published by NELP this past January.  But are these proposals, even if fully implemented, enough to make fair hiring a reality in the federal workplace? While ban-the-box policies have been adopted by numerous states, municipalities, and private entities, they have not yet been shown to be effective in limiting consideration of criminal records.  Some fear that they simply delay inevitable rejection.  As one woman remarked following a series of rejections based on late-stage records checks, “states with ban-the-box laws didn’t really ban those boxes; they just moved them to a different time in the hiring process.” A recent court case confirms anecdotal evidence long suggesting that employers who reject applicants with criminal histories will do so regardless of when that history surfaces.  In some cases rejection may be mandated by insurers or regulators.  If that is indeed the case, then ban-the-box policies will encourage hiring only if they are accompanied by policies that limit consideration of the record itself. Requiring federal agencies and contractors to adhere to EEOC enforcement guidance on consideration of criminal records would go a long way toward bridging that gap, but it is unlikely to close it. The EEOC guidance requires employers to conduct an individualized assessment of each applicant that takes into account the age and nature of an offense, its relationship to the job sought, and evidence of rehabilitation.  Rejection based on an applicant’s criminal history is permissible only if “job-related and consistent with business necessity” — a determination that is ultimately up to the employer. As a practical matter, it is hard to go behind an employer’s determination not to hire a particular individual, as years of Title VII litigation demonstrate.  Is a five year old shoplifting conviction related to a job where a person has access to a company supply closet?  Is a 10 year old DUI charge related to a job that does not requires driving?  One that does?   As long as employers can make an argument for job relatedness where an individual applicant is concerned, a hiring policy incorporating the EEOC guidance is likely to invite circumvention. Granted, the more detailed reforms proposed last winter by NELP would create a process that would allow applicants to appeal their rejection as inconsistent with the EEOC guidance, and empower the Office of Federal Contract Compliance to suspend or terminate contracts for failure to adhere to it.  However, unless the entities responsible for hearing appeals and assessing contractor compliance develop rules defining job-relatedness, the standards they use to review employer actions will be no clearer than those the employers are supposed to implement in the first instance. This is not to say that the EEOC guidance cannot serve as a model for an effective fair hiring policy, only that it is not enough without a viable enforcement mechanism. As the coalition says in the letter, “Absent a strong and enforceable policy, federal contractors and federal agencies will continue to violate these basic standards of law and fairness.” [2] Rather than simply appropriate the EEOC guidance, the administration should build on it. Business necessity and job relatedness ought to be touchstones of any fair hiring policy, since they acknowledge that convictions may be disqualifying but only in certain limited situations. Those touchstone concepts can be used to craft clear and enforceable agency-specific rules that clearly define when rejection is appropriate. State legislators have shied away from bright line categories allowing consideration of some records but not others, because hiring decisions so frequently depend upon the totality of facts and circumstances.  For example, New Jersey’s Opportunity to Compete Act began its legislative life with provisions barring consideration of certain dated criminal records, provisions that were omitted just prior to enactment.  Similarly, the ban-the-box law passed in Delaware would have barred consideration of convictions more than ten years old (those provisions did not survive the legislative process either). A case can be made that dated convictions (particularly minor ones) are inherently unrelated to any job, and that discrimination based on such convictions (at least categorical discrimination) is inconsistent with any sort of business necessity.  An agency or contractor should be presumptively prohibited from taking such a conviction into account, and should have a heavy burden of justification if unusual circumstances warrant taking any such conviction into account for a particular job.  If this sort of administrative standard were incorporated into agency-specific rules interpreting the requirements of the EEOC guidance, it would give a federal fair hiring policy the teeth it needs. It would be fantastic news if the President banned the box and mandated adherence to the EEOC guidance tomorrow.  But any celebration ought to be tempered by the practical reality that this would represent only the beginning of an effective federal fair hiring policy. If the President is committed to making the federal government a model employer, he must use his considerable executive authority to build on that foundation with specific policies by which agencies and contractors may be held to account, and procedures for enforcing them. We hope that he is prepared to do so.   [1] The July 20 call follows on the heels of a March 25 letter to the President from the same coalition, joined by nearly 200 additional groups including the Collateral Consequences Resource Center.   [2] The fact that the EEOC guidance is open to such broad interpretation and so difficult to enforce is not surprising given its background. The guidance was not created to aid reentry or improve internal practices.  Rather, its purpose is to help employers comply with a provision of Title VII of the Civil Rights Act that prohibits hiring practices that have a disparate impact on racial minorities and other protected classes, unless those practices are “job related and consistent with business necessity.”  Somewhat ironically, the factors and standards laid out in the EEOC guidance come directly from case law interpreting when an employer may successfully assert a “business necessity” defense — a defense that protects an employer’s right to discriminate against those with criminal records (a class of people not protected by Title VII).   Read more