Category: Commentary

“Divergent moral vision” — Collateral consequences in Europe and the U.S.

A new article in the Stanford Law Review discusses the radically different forms of punishment in the United States and Europe, which its author attributes at least in part to differing moral visions of wrongdoing and wrongdoers.  In Two Cultures of Punishment, Joshua Kleinfeld argues that while Americans tend to regard serious offenders as “morally deformed people rather than ordinary people who have committed crimes,” European cultures “affirm even the worst offenders’ claims to social membership and rights.”

Kleinfeld illustrates this “divergent moral vision” by the very different approach European countries take to collateral consequences. (The other two areas discussed in the article are lengthy prison terms and capital punishment).  Whereas in this country people convicted of crime are subject to a lifetime of legal restrictions and social stigma analogous to older forms of civil death, and are effectively consigned to a kind of “internal exile,” in Europe people who have committed a crime benefit from numerous measures to encourage their reintegration.

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The pros and cons of fingerprinting Uber drivers

The following piece by Maurice Emsellem of the National Employment Law Project was originally published on the Huffington Post.

 

Uber’s ruthless expansion strategy has put state and local legislators in the middle of the debate over regulation of the on-demand, ride-hailing workforce. Laws requiring background checks for drivers, which can restrict access to Uber’s core asset, are now a central theme of the regulatory battle, focusing specifically on the use of state and federal criminal history databases that require fingerprinting of ride-hailing drivers.

Indeed, Uber and Lyft recently chose to abandon the Austin, Texas market rather than comply with local laws requiring taxi drivers to undergo fingerprint-based background checks (56 percent of Austin voters rejected an initiative to exempt on-demand companies from the city’s law). And in New Jersey and Chicago, where similar measures are now being actively debated, Uber retained former U.S. Attorney General Eric Holder to lobby against the bills by challenging the accuracy and fairness of fingerprint-based FBI background checks (which is an issue that NELP has championed as an advocate of bi-partisan federal reform legislation).

To help inform the debate, it’s important to first clarify that “fingerprinting” is a shorthand term referring to background checks that require an individual’s fingerprint (usually captured by means of “livescan” technology) to access either a state criminal history repository or the FBI database, which collects data from the state and local systems. In contrast to name-based checks conducted by commercial background check companies, fingerprint-based checks are less vulnerable to misidentification. In addition, private employers typically cannot access the databases requiring fingerprinting of the workers unless authorized by a federal, state, or local occupational licensing law, like the ride-hailing laws regulating taxi drivers. Instead, with varying degrees of accuracy, the commercial background check companies collect criminal history data from the local courts, the states, and “aggregators” of criminal history data.

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Do ban-the-box policies increase racial discrimination in hiring?

Update: The National Employment Law Project has responded to these studies with a critique that we cover here.

Ban-the-box policies have become popular in recent years as a way of minimizing discrimination based on criminal history, and have been adopted by 24 states, the federal government, and a number private companies. But until recently there has been little hard data available about the general effect of those policies on employment opportunities.  A number of recent studies have begun to fill that gap, and the results have been disturbing. The consensus seems to be that while banning the box does enhance the employment prospects of those with criminal records, it also encourages employers to fall back on more general racial stereotypes about criminal history without the “box” to confirm or deny it.

Most recently, a multi-year field study by Amanda Agan (Princeton University) and Sonja Starr (University of Michigan Law School) found that although banning the box made it more likely that individuals with criminal records would receive call-backs from prospective employers, it dramatically increased the gap in call-backs between black and white applicants. Employer responses to over 15,000 fictitious job applications sent to New York and New Jersey employers after ban-the-box policies took effect showed that black applicants received 45% fewer callbacks than white applicants, up from a 7% differential before the new policy took effect:

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Ban the other box – Suspension and expulsion shouldn’t be a bar to college

University application form

The following piece was originally published by The Marshall Project, a nonprofit news organization focused on the US criminal justice system.  Even though criminal records and school disciplinary records are entirely distinct, they both pose similar, often unjust, obstacles to higher education.  Consideration of both types of records in the admissions process can have the troubling effect of excluding qualified and motivated young people — particularly those from minority communities — from America’s colleges and universities because of past mistakes that have little to do with academic potential or the protection of public safety.

The story is familiar: a high school student grabs another student’s iPhone at lunch and tries to sell it. He is caught, arrested, and booked into juvenile hall. He is also suspended. If universities and colleges follow the recent recommendation of the Obama administration, colleges will not consider the student’s criminal record in the initial stages of the admissions process. These recommendations, contained in a recently released “Dear Colleague” letter by Education Secretary John B. King, represent a significant step in removing barriers to education for people with criminal records. And just this week, over a dozen colleges and universities signed on to the White House’s Fair Chance Higher Education Pledge.

Unfortunately, the letter and the pledge are silent about another common question on college applications: Have you ever been suspended or expelled from school? For the teenager who stole the phone, this means that while his criminal record may not ruin his chance to be admitted to college, his school disciplinary record just might.

More than 3 million students are either suspended or expelled from schools each year and when they are, a discipline record is generated. While the barriers created by criminal records have begun to receive much-needed attention, the barriers created by school discipline records have been largely overlooked. The Department of Education report that accompanies King’s letter mentions school records only in passing, without taking a firm position. Like criminal records, school discipline records can, and do, jeopardize young people’s chances to succeed. Like criminal records, school records are a scarlet letter.

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Former AG says no FBI screens for Uber and Lyft drivers

On June 2, former Attorney General Eric Holder sent a letter to the Chicago City Council asking it not to make Uber and Lyft do FBI background checks on their drivers as a condition of operating within the metropollitan area.  The ride-sharing companies have argued that they should be permitted to vet their own employees.  Mr. Holder’s points out that FBI records are incomplete and thus misleading, and that they are intended for law enforcement purposes, not to screen applicants for employment.

Mr. Holder, whose tenure at the Justice Department was notable for efforts to highlight the problems faced by people returning to the community from prison, then argues more broadly that perfoming background checks on applicants for employment disadvantages communities of color.  In this regard, he notes that 80% of African-American men of working age in Chicago have a criminal record, and only half of them are employed. (This seems to present another one of those “ampersand” situations that so frequently arise these days in the criminal law context.). He concludes by stating that screening employees through FBI record checks is “both unwise and unfair.”

Mr. Holder’s letter does not indicate the context in which it is written, or whether He represents an interested party — though it is written on his law firm stationery so it seems fair to assume he is writing in behalf of either Uber or Lyft, or perhaps both.

Chicago would not be the first city to provoke controversy by requiring ride-sharing companies to perform fingerprint-based FBI background checks on their employees and applicants for employment.  For example, Uber and Lyft pulled out of Austin, Texas, after the city council voted to impose the same background check requirements on ride-share drivers as are required for taxi drivers.  At the same time, reports of driver attacks on ride-sharing passengers raise public concern about the effectiveness of self-regulation. It seems clear that we have not heard the last of this issue.

Ampersands – Brock Turner & conflicts of justice

georgiaI recently had the chance to meet with one of the leading international experts on the treatment and punishment of people who have committed sex offenses. I noticed she has a small tattoo of an ampersand on the inside of her wrist. I keep thinking of that ampersand as I read Brock Turner rage memes, which I both hate and find so satisfying.

Ampersand: This difficult fact is true AND this other, seemingly contradictory fact is also true. It’s difficult to hold all of it at the same time– fury against the man who raped an unconscious woman behind a dumpster, AND relief at the rare flash of humanity and mercy extended to him in our otherwise unrelenting carceral system, AND anger about the race and class context of that mercy.

Our current sex offense policies thwart accountability by perpetrators, re-traumatize victims of sexual assault, foster racialized implementation of laws, decrease public health and public safety in our communities, and, despite their failures, cost us billions of dollars each year. In short, it’s a crisis.

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Excessive filing fees frustrate new expungement schemes

How much is a clean slate worth?  That’s the question many people with criminal records are asking in Kentucky, Louisiana, and Tennessee, where the cost of filing for expungement is (or will soon be) between $450 and $550.  To put that into perspective:  In Kentucky, the $500 fee required to expunge an eligible felony conviction under a new law that takes effect in July will equal nearly half of the monthly wages of a full-time worker earning the state’s $7.25 minimum wage.  The relative cost will be even higher for the many people who have difficulty securing steady full-time employment because of their criminal record.  The high filing fee puts relief effectively out of reach for most of those it was intended to benefit,  even if they elect to file without retaining a lawyer.

There is a major disconnect between these exorbitant fees and the policy rationale that has led many states to create or expand expungement opportunities in recent years.  Expungement improves the employment prospects of people with criminal records, allowing them to achieve a degree of economic stability that in turn discourages further criminal behavior.  People held back from economic stability by their criminal records are the people that are likely to benefit most from expungement, and the social advantages of expungement are most keenly experienced among this population.  But these are the very people least likely to be able to afford to pay high application fees.

According to an article by Maura Ewing published by the Marshall Project earlier this week that takes a closer look at the issue, Kentucky, Louisiana, and Tennessee are outliers among states that allow for expungement in charging such high fees:

Many states charge $150 or less to apply for expungement … and some states offer a waiver if the applicant is too poor to pay.

In the 17 states that allow for expungement of low-level felonies, “the application fee is generally in line with standard court fees.”

So why are the application fees in those three states so high, and where does that money go?  Ewing found that while Louisiana’s fees were considered necessary to cover the costs of an inefficient and underfunded justice system, the fees in Kentucky and Tennessee were driven solely by the prospect of generating general revenue.  From the article:

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New Yorker comments on collateral consequences

Lincoln Caplan writes in this week’s New Yorker about Judge Frederic Block’s decision last week to reduce a woman’s prison sentence because of the life-altering collateral penalties she faced on account of her drug conviction.  After describing the facts of the case and the judge’s reasoning, Caplan concludes with the following comments about what Jeremy Travis has called “invisible ingredients in the legislative menu of criminal sanctions”:

The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time. As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.” They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”

The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.

One of the most significant things about Mr. Caplan’s comments is that they make clear he believes collateral consequences are “punishment,” not “regulation,” and should be treated as such.  Courts are beginning to regard them as such as well for purposes of applying constitutional principles.  See, for example, the three cases now pending in the Pennsylvania Supreme Court, where the validity of the state’s new sex offender registration scheme is at stake. States are increasingly looking at lifetime registration as punishment under their own state constitutions.  So it should not be long before the U.S. Supreme Court is asked to reconsider its 2003 holdings that such collateral consequences are immune from constitutional challenge based on the Due Process and Ex Post Facto clauses.

“On Lawyering” on collateral consequences

The following post was originally published at On Lawyering, CCRC President Rich Cassidy’s blog on the law and culture of lawyering. 

Judge Rules That That the Collateral Consequences of Conviction Justify the Release of a Drug Offender

“Earth’s most impassable barriers – as Lincoln the lawyer knew, as Lincoln the writer knew – are often those formed not of walls and trenches, nor even of mountains and oceans, but of laws and words.”[1]

Senior United States District Judge Fredric Block, in an opinion issued on May 24, [2] ruled that the collateral consequences faced by a 20 year old woman convicted of smuggling 602 grams of cocaine into the United States from Jamaica, justified a one year term of probation, even though she faced a guideline sentence of 33-41 months of imprisonment.

Judge Block reviewed the history of collateral consequences, concluding that “[t]oday, the collateral consequences of a felony conviction form a new civil death[,]”[3] referring to the scholarly work of my colleagues, Gabriel Jack Chin and Margaret Love. He decried the racially disparate impact of these laws, citing Michelle Alexander’s book, The New Jim Crow (2010). He noted the existence of collateral consequence reform efforts including an ABA Criminal Justice Standard [4]and the Uniform Collateral Consequence of Conviction Act.[5] He pointed out the sweeping breadth of collateral consequences, noting that according to the National Inventory of the Collateral Consequences of Conviction, nationwide there are some 50,000 federal and state statutes and regulations that impose collateral consequences and that some 70 to 100 million Americans are subject to them.[6]

Judge Block reviewed the state of the law, noting that while there is a split in the circuits, the law in the Second Circuit allows a sentencing judge to consider“the impact and significance of the collateral consequences facing a convicted felon as bearing upon a just punishment.”[7]

Finally, Judge Block put the idea into practice: he reviewed, in some detail, the collateral consequences the defendant faces, their likely impact on her life, and concluded:

[T]he collateral consequences Ms. Nesbeth will suffer, and is likely to suffer – principally her likely inability to pursue a teaching career and her goal of becoming a principal, Conn. Gen. Stat. §§ 10-145b, 145i – has compelled me to conclude that she has been sufficiently punished, and that jail is not necessary to render a punishment that is sufficient but not greater than necessary to meet the ends of sentencing.[8]

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Access to healthcare a lifesaver for halfway house residents

logo_dhhs_lrgOn April 29th the U.S. Department of Health and Human Services announced a shift in policy that will for the first time allow released prisoners residing in “halfway houses” to take advantage of the services made available through the Affordable Care Act’s Medicaid Expansion.  The change will provide much-needed medical and rehabilitative services to countless former inmates that would not otherwise have access to essential healthcare resources.  It may seem like a minor change but as a practical matter it is likely to do more to encourage successful reentry than any other single policy decision in recent years.

Until now, halfway house residents have been excluded from coverage because of an interpretation of the Medicaid statute that considered halfway house residents to be “inmates of public institutions” – a category of persons that are statutorily ineligible for Medicaid coverage.  The new DHHS guidance removes those in halfway houses from that category so long as they have “freedom of movement and association while residing in the facility.”  It also clarifies that individuals on parole and probation are not “inmates” and are eligible for coverage.

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