Category: Civil practice

A closer look at Indiana’s expungement law

More than four years ago, Indiana’s then-Governor Mike Pence signed into law what was at the time perhaps the Nation’s most comprehensive and elaborate scheme for restoring rights and status after conviction.  In the fall of 2014, as one of CCRC’s very first posts, Margaret Love published her interview with the legislator primarily responsible for its enactment, in which he shared details of his successful legislative strategy.  Later posts on this site reported on judicial interpretation of the law.  Since that time, a number of other states have enacted broad record-closing laws, including Louisiana, Missouri, Nevada, New York, and most recently Illinois. We have been impressed by the evident enthusiasm for Indiana’s “expungement” law within the state, from the courts, the bar, the advocacy community, and even from prosecutors.  So we thought it might be both interesting and useful to take a closer look at how the Indiana law has been interpreted and administered, how many people have taken advantage of it, and how effective it has been in facilitating opportunities for individuals with a criminal record, particularly in the workforce.  We also wanted to see what light this might shed on what has brought to the forefront of reform […]

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Fair Credit Reporting Act applied to criminal records

The following is a summary of how the Fair Credit Reporting Act (FCRA) applies to criminal background checks, written by Sharon Dietrich of Community Legal Services of Philadelphia.  More detailed information about FCRA’s interpretation and enforcement is available in this 2011 FTC report.  Current information about FCRA’s enforcement as applied to criminal records will appear in the upcoming third edition of Collateral Consequences of Criminal Conviction: Law Policy and Practice.   Where a criminal record report is provided to an employer by a credit reporting agency (“CRA”), the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq, is applicable. See Beaudette, FTC Informal Staff Opinion Letter, June 9, 1998 (available here).  FCRA creates obligations both on CRAs preparing criminal background reports and on employers using them. Among the duties of CRAs compiling criminal background reports for employers are the following: CRAs may not report arrests or other adverse information (other than convictions of crimes) which are more than seven years old, provided that the report does not concern employment of an individual who has an annual salary that is $75,000 or more.   15 U.S.C. §§ 1681c(a)(5), 1681c(b)(3). CRAs must use “reasonable procedures” to insure “maximum possible accuracy” […]

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“Ants under the refrigerator”

The following post is republished, with permission, from the National Clean Slate Clearinghouse listserv.  In it Sharon Dietrich points out that even after criminal records have been expunged or sealed, they may still be reported by commercial criminal record providers in violation of the Fair Credit Reporting Act.   (See our recent 50-state survey of record-closing laws, with their intended effect.)   You probably are wondering, “What is she talking about, with a subject line like that?”  The answer to your thought is that I use this phrase when giving clients an important warning about the effect of their expungement orders.  I am illustrating for them the idea that I can’t guarantee removal of their expunged cases from every possible background check, especially those prepared by commercial screener such as Sterling, HireRight, First Advantage and countless others.

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Major new federal awards support second chance advocacy

Earlier this week the U.S. Departments of Justice and Labor made two major awards to the Council of State Governments (CSG) to support the development of resources on collateral consequences and second chance programs.  The awards aim to build capacity within the advocacy community to assist those seeking restoration of rights and status nationwide. The first award is a $4.6 million contract awarded by the Labor Department for the development of the National Clean Slate Clearinghouse, a federal initiative first announced by President Obama last November.  The Clearinghouse is intended to “build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.” The second award is a $5 million grant from the Bureau of Justice Assistance to support the ongoing work of the National Reentry Resource Center (NRRC), a project developed by CSG in 2011 with federal funding earmarked in the Second Chance Act of 2007.  One exciting aspect of that award is that it will bring the National Inventory of the Collateral Consequences of Conviction (NICCC) into the NRRC fold.

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Law firm steps up to aid reentry

Recently I was speaking with Matt Benjamin, a lawyer at Gibson, Dunn & Crutcher LLP in New York, who told me about a very important pro bono effort that he and his colleagues at the firm launched two years ago to serve clients in the “Alternatives to Incarceration” programs of the U.S. District Court for the Eastern District of New York.  While the clients are generally represented in their criminal cases by public defenders, they frequently need help with a variety of civil issues, from employment and housing to immigration and family law issues. Because I think this path-breaking effort should serve as a model for other law firms and law schools around the country — just as the Eastern District’s ATI programs should serve as a model for other federal courts — I wanted to provide more information about it here.

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