Category: Civil practice

Bids Sought for National Clean Slate Clearinghouse

Last November President Obama announced plans to create a National Clean Slate Clearinghouse, a joint project between the Departments of Labor and Justice that would “build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.”  In late February the Labor Department announced plans for a large-scale contract to establish the Clearinghouse, and sought information from likely bidders.  Since then, we have been curious about what the scope of the Clearinghouse project would be. Now we know. This past Monday the Department of Labor issued an official solicitation for bids to develop the Clearinghouse, with the following general overview of the project: The Clearinghouse will: 1) gather content, launch, host and update a national website that provides, among other things, state-by-state information on sealing, expungement, and other related legal services that lessen the negative impact of having juvenile and criminal records; and 2) develop tools and provide technical assistance to reentry service providers and legal aid organizations on how to use and expand access to sealing, expungement, and other legal services. The Clearinghouse will disseminate information in the area of record sealing and expungement, pardons, certificates of rehabilitation, correcting inaccurate juvenile and criminal records and other strategies to diminish the often lifelong economic and social consequences associated with having a juvenile or criminal record. In addition, the Clearinghouse will provide guidance on the removal of other employment barriers that do not provide a public safety benefit. The Clearinghouse footprint is expected to be quite large, given the $11 million funding cap that is attached to the project, and the 13-person staff called for in the solicitation. While the contract is only for one year, there are options for two additional years. The scale of the funding suggests that the IT and legal research aspects of the project (developing a website to disseminate information about relief mechanisms) will be comparatively small when measured against its technical assistance aspects (building capacity among service providers and practitioners in the field through teams of experts).  We believe that it is as important to work on expanding legal relief mechanisms as it is to facilitating access to mechanisms that already exist. The specific requirements of the contract are summarized below: • Convening a technical working group (TWG) of experts to advise the project. • Identifying and cataloging service providers in each state. • Researching and documenting state/national record mitigation mechanisms. • Collecting existing local/state/national resources regarding record mitigation. • Creating and maintaining a national website that provides access to local/state/national information on record mitigation. “At a minimum the features of the site will provide state-by-state information on sealing, expungement, and other related legal services that lessen the negative impact of having juvenile and criminal records.” • Providing technical assistance and training to service providers and policy-makers on the availability of record mitigation mechanisms. • Using research to create accessible tools for use by service providers. • Developing virtual and in-person educational and networking opportunities for service providers, including national conference presentations and the development of a national training event. Competitive applicants should have experience in the following areas: • Bringing together diverse stakeholders through a Technical Working Group (TWG) to understand the scope of the project and make recommendations about the processes and plans for the site. • Identifying state and national organizations with primary and secondary resources on record mitigation, expungement/sealing. • Developing website content and plans for developing and integrating content into the site and linking to and complementing federally-supported websites such as the National Reentry Resource Center and the National Inventory of the Collateral Consequences of Conviction, • Providing technical assistance to organizations that serve individuals with juvenile and criminal records such as legal aid service providers, advocacy organizations, and community based organizations, etc. • Incorporating an outreach mechanism that will effectively engage the network of organizations that individuals with juvenile and criminal records. • Securing additional resources to maintain and sustain the Clearinghouse past the life of the contract. Because the Clearinghouse is being bid as a contract and thus is subject to the Federal Acquisition Regulations, data and all deliverables produced under the contract will be the property of the federal government. However, the RFP states that “[w]e envision this website and training resources living beyond the 3 year period of performance.”  Proposals must contain “a sustainability plan for maintaining content resources once the formal contract has ended,” and the contractor will be responsible for proposing “a strategy for securing resources to maintain and sustain the site.plans for securing resources to ensure the long-term sustainability of the project.” The deadline for proposals is May 16 at 2 p.m.. The full solicitation is available here. Remember that while you’re waiting for the Clearinghouse to come together you can always obtain up-to-date information on the availability of pardon, expungement, sealing, and other record mitigation mechanisms in each U.S. jurisdiction by viewing the state-specific restoration of rights guides hosted right here on this site! Read more

Federal expungement case argued in court of appeals

On April 7 a panel of the Court of Appeals for the Second Circuit heard argument in United States v. Jane Doe (Jane Doe I).  At issue in that case is whether U.S. District Judge John Gleeson acted within his authority when he expunged the conviction of a woman he had sentenced some 14 years earlier, based on his finding that her conviction had proved an insurmountable bar to the jobs in home health care for which she was qualified.  Judge Gleeson directed that the government seal the records of Ms.Doe’s conviction, stating that he had sentenced her “to five years of probation supervision, not to a lifetime of unemployment.”  The government appealed, arguing that a federal court has no authority to expunge or seal a conviction record, particularly the record of a valid conviction. Briefs in the case can be viewed here. The panel did not appear persuaded by the government’s argument that the Supreme Court’s 1994 decision in Kokkonen v. Guardian Life, 511 U.S. 375 (1994)(refusing ancillary jurisdiction to enforce state law civil claims), meant that federal courts have no jurisdiction to expunge the record of a federal criminal case.  The import of the government’s argument would be to overrule the Circuit’s leading expungement case from the 1970s, United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1977), which held that federal courts have ancillary jurisdiction to grant expungement on equitable grounds in extraordinary circumstances.  No judge on the panel expressed any support for overruling Schnitzer, and the government seemed reluctant to ask for it.  At the same time, Schnitzer involved expungement of an arrest that the government did not pursue, not a valid conviction.   That distinction seemed to have some appeal for one judge on the panel, who suggested that the holding in Schnitzer might not apply where conviction as opposed to arrest is at issue. The government proposed that a court’s direction to executive agencies to expunge records in their possession might raise separation of powers issues, an argument the panel sidestepped by asking counsel to focus on the court’s authority over its own records.  It also argued that the federal court had intruded into an area already covered by state law, which provides federal offenders some relief from collateral consequences.  However, counsel for Ms. Doe pointed out that she had sought and been denied state relief. On the jurisdictional issue that is central to the case, counsel for Ms. Doe argued that expungement or sealing of records in a criminal case falls within Kokonnen’s exception for matters that are “factually interdependent.”  Having properly exercised jurisdiction over Ms. Doe’s expungement request, the district court could “balance the equities” to conclude that expungement (or, more accurately, sealing) relief was appropriate in the “extreme” circumstances of the case.  While the panel appeared to have some doubts about whether a civil suit for expungement based on post-conviction events is necessarily “factually interdependent” with the criminal case, a holding against Ms. Doe on this issue would appear to require overruling Schnitzer, since it is hard to distinguish an arrest from a conviction on this issue. While it is hard to predict the result in the case, based on the argument it appears that no member of the panel is inclined to overrule Schnitzer, and only one of the three judges suggested that the jurisdictional outcome might be different in Doe because Schnitzer involved a mere arrest.  If the court finds jurisdiction to expunge a conviction, it is unlikely that the decision on the merits will be disturbed. There was no mention of the second Jane Doe case in which Judge Gleeson declined to order expungement and instead issued a “federal certificate of rehabilitation.” Coincidentally, April 7 was the final day for the government to appeal Judge Gleeson’s certificate order, and it came and went with no appeal filed. The New York Law Journal posted a lengthy and thoughtful commentary on the argument that can be accessed here by subscribers.  See Andrew Keshner, Gleeson Expungement in Doe is put to the test at the Circuit, April 8, 2016.       Read more

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

Monster and other job sites sued for excluding people with convictions

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

Canadian travel restrictions based on criminal record

Most Americans can freely visit Canada. However, if you have a criminal history, you may be refused entry.  This post describes the circumstances in which a criminal record (including DUIs) will result in your being inadmissible even as a visitor, how long inadmissibility lasts, and what you can do to regain the right to travel freely to Canada. Were you convicted? If you were convicted of a crime in the United States or abroad, this will likely make you “criminally inadmissible.”  Even if you were charged with an offence but never convicted, it is a good idea to travel with all your court documents demonstrating that there is no conviction on your record. Carrying all these documents, though not required, is highly recommended to avoid any confusion or refusals at the border as the onus is on the applicant to demonstrate that they are not inadmissible. Border officers have the option to deny admission on grounds that it is reasonable to believe a person committed an act that would be an offence in Canada, so that pending charges may be grounds for a finding of inadmissibility.  A guilty plea followed by dismissal of charges pursuant to a deferred adjudication scheme may also be considered proof of commission of an act. Canadian border officers have access to the NCIC which is a national database kept of all criminal convictions in the United States.  Upon presentation of a passport or enhanced drivers license, the database can be accessed, this is how the Canadian border officers know about arrests, charges and convictions for offences in the United States. If you were convicted of an offence, or if a border officer has reason to believe you committed an offence, you may be inadmissible. Depending on the following factors, you may require an application made the Canadian government, to be able to travel to Canada.  These  factors include the following: The nature of your offence: were drugs or weapons involved, did the offence involve a minor, was the offence of a sexual nature – these are all factors that make it more difficult to travel & will likely require permission from the Canadian government, as these types of offences typically carry a maximum sentence of 10 or more years, under Canadian law and are therefore considered “serious criminality”. The number of offences on your record: individuals with only one offence may be deemed rehabilitated simply by the passage of time – please see below. A person with more than one conviction will have to apply in order to cross the Canadian border. The date of completion of sentence, including payment of fines, completion of probation – this factor determines which application will be applicable to your situation. If you must apply in order to resolve your admissibility, applications are processed at the discretion of an immigration officer.  The likelihood of success also depends on the factors listed above in addition to the requirements of each application listed below. Temporary admissibility – Temporary Resident Permits If you completed all the terms of your sentence 1-5 years ago, you will require a Temporary Resident Permit (TRP). A TRP acts as a temporary pass which allows you to enter Canada, but it does not erase your inadmissibility. For these applications, you need to include a specific reason for travelling to Canada. For example, you have been convicted of a DUI in the last 5 years but need to come to Canada for work purposes, a TRP can help you temporarily overcome your inadmissibility. A TRP can be used for a wide range of purposes though not as an avenue for permanent residency. When applying for a TRP, you will need to detail the exact circumstances for travelling to Canada. Your need to enter Canada must be greater than the potential threat you pose to Canadian society. Good reasons to travel include business, school, or visiting a spouse or family member. Though you can apply for multiple entry TRPs, you cannot use a TRP to help you enter Canada forever. Criminal Rehabilitation If you completed all the terms of your sentence 5-10 years ago, you are eligible to apply for Criminal Rehabilitation. This application is a permanent solution which clears your criminal inadmissibility and automatically makes you eligible for multiple entries into Canada. Processing times are longer for this application, but Criminal Rehabilitation is valid for the rest of an applicant’s life (unless another offense is committed). In this application the officer is looking to see that the applicant has taken positive steps to rehabilitate themselves, such as following substance abuse programs or joining AA, for example.  The eligibility period is required as the Canadian government wants to ensure that there are no offences within the last 5 years before they remove your inadmissibility permanently.  Due to processing times, if you have urgent travel, it is recommended to also apply for a TRP while you await the approval of your Criminal Rehabilitation. These permits are good if you travel to Canada frequently. “Deemed Rehabilitated” If you only have one offence on your record, the sentence was completed over 10 years ago, and the offence was “non-serious” (punishable by less than ten years in prison under Canadian law), you will be “Deemed Rehabilitated.” This means that you will neither require a TRP nor Criminal Rehabilitation. In these specific cases, you will have been deemed criminally rehabilitated simply by the passage of time. However, Deemed Rehabilitation can only occur under these specific circumstances, so be sure to check your record carefully. All of these applications can be done without the assistance of an attorney, however if you choose to seek the help & advice of an attorney, you should be aware that only a Canadian lawyer, notary or consultant is legally authorized to represent you.  It is highly recommended to obtain a national fingerprint based background check from the FBI, which will show all of the offences on the applicant’s record, going back to their 18th birthday.   In cases where an application is not required (ie: if a person is deemed rehabilitated by the passage of time or there was no conviction) it is recommended to carry a legal opinion letter, written by a Canadian attorney who has reviewed your record, as well as your court documents, to avoid any hassle at the border. Severity of Offences and Border Security The decision to admit a foreign national to Canada is entirely at the discretion of the Canadian immigration officer at the border.  Though you can be denied entry for any level of criminal activity, your likelihood of being able to enter Canada declines the more offences you have and the gravity of the offences. Individuals are assessed at the border on a case-by-case basis based on the information provided to the Canadian Border Services Agency. As such, sometimes individuals with lesser offences get turned away at the border if they are not carrying any kind of a permit with them. Canadian border officials have access to the National Crime Information Centre database which logs all crimes monitored by the FBI and as such will have a full list of crimes committed in the United States. As such, it is always a good idea to apply for one of these permits if you have a criminal history, or if you are on parole or probation. The severity of a foreign offence is weighed based on its equivalence under Canadian law. In the United States, offences are either felonies or misdemeanors which translate roughly to indictable and summary offences in Canada (note however that this is the general process—you should always check for your specific offence). For example, a single DUI in the US is generally considered a misdemeanor, and in Canada would be a summary offence unless someone was injured. Hybrid offences for charges like assault are left to the discretion of the prosecutor. As such, even if someone has only been convicted of a misdemeanor in the United States, it may still be an indictable offence in Canada and they may be inadmissible. DUIs DUI convictions and all variations are grounds for inadmissibility to Canada, as the offence is a hybrid offence under Canadian law. Individuals with a DUI conviction (or DWI, OWI, OMVI, DWAI or any other similar driving offence) will require either a TRP or Criminal Rehabilitation to enter Canada. Even though these may be considered as misdemeanors in some cases or in some U.S. states, they will render an individual criminally inadmissible to Canada. Completing your application Though the applications can be done by the applicants, they are complicated and lengthy. One mistake on an application can lead to a refusal or delays of several months. As such, though it is not required to hire an attorney, it can be greatly beneficial. Make sure you utilize an attorney who is in good legal standing with their provincial Bar Association. Additional travel tips Don’t forget that all adults travelling between Canada and the United States will require a passport! (Note: Children under the age of 15 can travel with a certified copy of their birth certificate if accompanied by their parents on land travel only.) If you travel frequently and don’t have a criminal record, you may want to get a NEXUS card which will help facilitate travel at ports of entry between Canada and the United States. Be prepared to declare all items of value—fines are much more costly than the duty and taxes you would otherwise have to pay. If travelling by land, check your border wait times ahead of time to ensure minimal delays and smooth passage. Read more