Tag: Ohio

How effective are judicial certificates in relieving collateral consequences?

An empirical study of Ohio’s judicial “certificate of qualification for employment” finds that it is “an effective avenue for lessening the stigma of a criminal record” in the context of employment and licensing.  The certificate, authorized in 2012, lifts mandatory legal restrictions and limits employer liability for negligent hiring claims, with the goal of ensuring that employment and licensing decisions about certificate holders are on a case-by-case basis, on the merits. The court-issued certificate is available to anyone with any Ohio conviction, no matter how serious, as long as they have completed their sentence and can show that they are barred from employment or licensure by a “collateral sanction.” There is a short waiting period, and applicants must show that they pose no public safety risk. The Ohio certificates are part of a recent trend toward authorizing courts to grant certificates of restoration of rights to people with conviction records.  It seems that states are far more likely to authorize this more transparent form of relief for those convicted of felonies, reserving record-sealing to misdemeanor or non-conviction records. Peter Leasure and Tia Stevens Anderson of the University of South Carolina studied the effectiveness of the Ohio certificates by measuring the call-back rate of applicants for employment with and without a criminal record, and found that “certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer.”  Their article, published by the Yale Law & Policy Review, is titled “The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms: An Experimental Study.”  In a post in May, we analyzed what were then said to be “preliminary” study results, and described the research methods used to test certificates’ effectiveness. Here is the abstract of the Leasure/Stevens Anderson article: Obtaining employment is difficult for ex-offenders due to the stigma of having a criminal record. In recognition of this difficulty, some state legislatures have created certificates of relief (also known as certificates of recovery), which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure that employment decisions about certificate holders are made on a case-by-case basis. The current study, which examines Ohio’s program for certificates of relief, presents the results of the first empirical test of the effectiveness of such certificates. This test indicates that having a certificate of relief increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment. In 2015, we republished a thought-provoking piece by Eli Hager of The Marshall Project on “forgiving v. forgetting,” in which he surveyed the growing number of state laws authorizing courts to certify a convictd individual’s rehabilitation rather than restrict public access to their record.  North Carolina, New Jersey, Tennessee, Vermont and Washington have all adopted judicial certificate laws in the past half dozen years, joining California, Illinois, New Jersey and New York in choosing this more transparent form of relief over expungement.  Indiana chose a two-tiered relief system, authorizing courts to limit consideration of almost any conviction, but reserving sealing to misdemeanors and non-conviction records. Court-ordered certificates of relief are also recommended by the Uniform Collateral Consequences of Conviction Act, and the Model Penal Code: Sentencing. An additional number of states have recently authorized correctional authorities to grant certificates to facilitate employment opportunities:  Georgia, Maryland, Michigan and Rhode Island fall into this category, and the Connecticut Pardon Board has restyled its “Provisional Pardon” as a “Certificate of Rehabilitation.” More detail about these certificate authorities may be found in the state profiles in our Restoration of Rights Resource, and in our recently updated 50-state chart on judicial relief mechanisms. The Ohio certificates have their limitations, largely in their eligibility criteria.  Unlike the New York certificates, petitioners must show that they are being held back by a specific legal restriction that the court can remove (that is, a state law bar), and people with out-of-state convictions may not apply.  We have been informed by the Ohio Justice and Policy Center that only about six hundred people have applied for and received certificates since the law was enacted five years ago, perhaps because their availability has not been widely advertised. Ohio advocates might consider the steps Indiana courts have taken to ensure that eligible individuals are aware of and can easily take advantage of that state’s new “expungement” program. In the near future we plan to update our survey of state relief mechanisms that take a “forgiving” (as opposed to “forgetting”) approach to dealing with collateral consequences, including both judicial certificates and executive pardon. Read more

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

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

Study shows certificates work to create job opportunities

A new empirical study provides important evidence that “certificates of recovery/relief” can be effective in facilitating employment opportunities for people with a criminal record.  Two University of South Carolina criminologists have concluded that employers in Ohio are willing to look beyond the criminal histories of job applicants who have been issued a Certificate of Qualification for Employment (CQE) from a state court. The study, which involved sending fictitious resumes to over 300 employers in the Columbus area, found that individuals with a felony drug conviction were more than three times as likely to receive a job interview or offer if they had received a CQE. Although the study’s findings are described as preliminary, they fill an important gap in our knowledge of the effectiveness of Ohio’s CQE, and by inference of similar certificate schemes in other jurisdictions.  Such schemes have to date been justified on the basis of assumptions and anecdotal evidence, with little hard data to vouch for their potency.  The abstract follows: Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis. The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer.   These promising results, while only a small sample, suggest that certificates of recovery/relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.  The findings are striking because even though an Ohio CQE removes mandatory collateral consequences and protects employers from negligent hiring claims, Ohio law (unlike New York’s) does not require employers to give CQEs any effect at all.  It seems, then, that “forgiveness-based” models of criminal record mitigation, which acknowledge a person’s criminal history while appropriately contextualizing it, can do far more to enhance employment prospects than many have supposed.  The results of the study may be surprising to those who favor a “forgetfulness-based” model, which relies on limiting public access to a person’s criminal history. Similar judicial certificate schemes exist in California, Georgia, Illinois, New Jersey, New York (whose certificate has served as a model for many states), North Carolina, Rhode Island, Tennessee, and Vermont.  Though the legal effect of these certificates varies widely from state to state, they are generally intended to serve as an official acknowledgment of rehabilitation that can be relied upon by employers.  (Our 50-state comparison of the consideration of criminal records in licensing and employment, available here, provides an overview and comparison of the certificate laws of each state.  Further detail can be found in individual state profiles.) Although there is no federal certificate law, U.S. District Court Judge John Gleeson (now retired) crafted and issued his own Certificate of Rehabilitation earlier this year in lieu of expunging the conviction of a woman he had sentenced years earlier who was unable to find lasting employment.  Judge Gleeson wrote in his order: The forgiveness model, which preserves the public record of a conviction, is gaining favor in the reentry community for both functional and philosophical reasons. . . . Where expungement relief is unavailable or otherwise unhelpful, I believe a certificate of rehabilitation can significantly alleviate the collateral effects of a criminal record by emitting a powerful signal that the same system that found a person deserving of punishment has now found that individual fit to fully rejoin the community. Although the University of South Carolina study gives reason for optimism that employers in states with robust certificate schemes are receiving these “powerful signals” and acting accordingly, the national picture may not be quite so rosy.  Recent studies on the effectiveness of New York’s certificate scheme that were based on anecdotal and interview evidence suggest that the state’s certificates are falling short when it comes to encouraging employment opportunities, notwithstanding the independent effect given them in New York’s nondiscrimination law. You can read more about Ohio’s Certificate of Qualification for Employment (and other Ohio relief mechanisms) in our Ohio guide to restoration of rights.  Our 50-state comparison of the consideration of criminal records in licensing and employment, available here, provides an overview and comparison of the certificate laws of each state.   Read more

When is a sex offender not a sex offender in Ohio?

The Ohio Supreme Court is considering whether a young man whose conviction requires him to register as a sex offender should be excused from this collateral consequence on grounds that it violates the state constitution’s prohibition on cruel and unusual punishment.  The transcript of the March 10 oral argument in Blankenship v. State of Ohio, Case no. 2014-0363, suggests that the Ohio high court may be poised to invalidate the mandatory sex offender classifications in Ohio law as applied to a 21-year-old who had a consensual sexual relationship with a 15-year-old.  In 2011 the court ruled in State v. Williams that the state’s registration scheme is punitive and thus may not constitutionally be applied retroactively, so it would be a short step for the court to find that the mandatory registration requirement constitutes cruel and unusual punishment in this case. According to his merits brief, Tyler Blankenship was working part-time at a department store and a few hours away from receiving his associate’s degree at Clark State Community College in Springfield when he had an affair with a 15-year-old girl. But the relationship did not remain secret, he was arrested, and later pled guilty to one count of unlawful sexual conduct with a minor, a fourth-degree felony.  As part of the pre-sentence investigation, a psychologist evaluated Blankenship and opined that he was “not a sex offender” despite having committed a sexual offense, and that his risk of re-offending was “not high.” Blankenship was sentenced to five years of community control with conditions, including a six-month jail sentence, which was suspended after approximately ten days.  He objected to being classified as a sex offender and argued that this violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The trial court noted the objection, and told his counsel, “[y]ou can see if you can get the Court of Appeals to change the requirements of my job.” Blankenship is appealing a 2-1 decision by the Second District Ohio Court of Appeals that upheld his classification, which before 2007 required a hearing and allowed judges to determine whether registration should be required.  Judge Mary Donovan dissented, commenting that “He was punished with a scarlet letter of 25 years duration … grossly disproportionate to the crime committed. This classification carries significant restraints on Blankenship’s liberty and a social stigma that interferes with employability, travel and housing.” Under Ohio’s Adam Walsh law, Blankenship must register his work, school, and employment with the sheriff in the county he lives, and is subject to verification every six months for twenty-five years.  Blankenship’s public defender argued to the high court, based on the psychologist’s pre-sentencing evaluation, that while her client committed a “sexually oriented offense,” he was “not a sex offender” and posed no threat to the community. Under the circumstances, 25 years of registration is “grossly disproportionate” and tantamount to cruel and unusual punishment under the Ohio Constitution if not the Eighth Amendment. The transcript shows that the justices are plainly unwilling to back off the court’s 2011 holding that the registration scheme is punitive, and seemed prepared, like the dissenting judge below, to invalidate the mandatory nature of the penalty in cases like Blankenship’s.   At the same time, perhaps because the justices were advised by counsel that Ohio is the only state to have held mandatory sex offender registration punitive (not entirely accurate, as prior posts on this website show), the court may proceed cautiously in setting aside the legislature’s judgments about which categories of crimes are appropriate for mandatory long-term registration.  In the end, the justices’ expressions of frustration with what several of them described as  “cookie-cutter, one-size-fits-all” collateral penalties suggest that they will rule in Blankenship’s favor — though on state not federal constitutional grounds.   Read more

Ohio pardons provide “only forgiveness, not forgetfulness”

On January 28, 2015, the Ohio Supreme Court settled an issue it has toyed with for several years, relating to the inherent power of courts to seal criminal records.  In State v. Radcliff, a closely divided court held that judicial power to seal a conviction record, including the record of a conviction that has been pardoned, is limited by law. In Ohio, there is no statutory basis for sealing a pardoned conviction as there is in many (though not most) states.  The majority evidently found this conclusion an unhappy one, lamenting that “until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness.” “Only forgiveness.”  Is pardon then such a second class prize?  What makes an official determination of the recipient’s good character by the state’s highest elected official so much less attractive an option for mitigating the adverse consequences of conviction than pretending it never occurred?  If the answer is that the American people are relentlessly unforgiving, we clearly have some national soul-searching to do. As will come clear from the following discussion, I do not share the Radcliff majority’s evident belief that a pardon is worth little unless it results in a court expunging the record of the pardoned conviction (and presumably the pardon itself). In January 2011, Governor Ted Strickland pardoned James Radcliff’s five dated convictions (which included “a 1982 felony conviction in Franklin County for breaking and entering a donut shop while possessing a screwdriver”) in recognition of his 30 years of law-abiding conduct.  A month later Radcliff went to court to have his record sealed, even though the sheer number of his crimes put him outside the category of people authorized to pursue that relief under Ohio Rev. Code Ann. §§ 2953.31.  The court of appeals thought Radcliffe’s record of rehabilitation “deserves redemption,” and ordered that his petition be granted. The government appealed, arguing that the court had no inherent power to seal a record of conviction, even a pardoned one.  The high court held that “if he is to have that redemption, it must come from the General Assembly.” Earlier decisions of the Ohio Supreme Court had found inherent judicial power to expunge or seal convictions, but that was before the legislature entered the conversation to define with some precision exactly what convictions it wanted courts to be able to seal.  The enactment of sealing legislation meant there was no longer a role for the court to take an independent view of the matter.  Over and above the detailed sealing law, the Radcliffe court pointed out that the legislature had also made certain provisions for retaining pardon documents, noting that “[t]he fact that the General Assembly has required that a record of a defendant’s pardon be filed in the same court where the pardoned offense was originally adjudicated expresses the General Assembly’s intent that courts must preserve the record of a pardon, not conceal it.” In determining that courts had no power independent of statute, the Ohio high court expressed disappointment over the legislature’s failure to provide for a broader sealing remedy in cases like Mr. Radcliff’s: Despite any frustrations judges may have with their inability to do justice in any given case of a pardoned offender, judges must respect that it is the role of the legislature to address the statutory scheme on sealing records, even in cases in which gubernatorial pardons are granted. Until the General Assembly acts, we are left with the understanding that a pardon provides only forgiveness, not forgetfulness. . . . . The pardon does not wipe the slate clean. If the slate is to be wiped clean for those pardoned of crimes, including Radcliff, the General Assembly must act. The majority associated itself with the Pennsylvania Supreme Court in stating that “[a] pardon without expungement is not a pardon.”   The three dissenting justices thought it “unnecessary in this case to state the proposition so unequivocally,” though they thought there was enough left of the inherent judicial power to order expungement in the “unusual and exceptional circumstances” of a pardon. In concluding that courts have no inherent authority to seal pardoned convictions, the Ohio court is in good company.  The Supreme Court of Mississippi recently came to a similar conclusion about the limits of judicial authority in closing records, so that pardon in that state also “provides only forgiveness, not forgetfulness.” In this regard, it seems worth noting that a majority of states do not authorize sealing or expungement of pardoned convictions.  Of those that do, it is by statute in all but three states (Indiana, New Jersey, and Pennsylvania).  Even a presidential pardon provides “only” forgiveness. It appears that a national discussion of the relative merits of forgiving and forgetting as a way of restoring rights and status may be well underway. NOTE: It seems anomalous that Ohio law would provide for “forgetting” out-of-state and federal convictions by authorizing Ohio courts to seal them, but not for “forgiving” them through a Certificate of Qualification for Employment.  (See today’s post on CQE’s here.) How will an Ohio court enforce its sealing order directed to a foreign jurisdiction?   Read more