Category: Policy

Does discrimination based on criminal record make good business sense?

During the week of February 2, Professor James Jacobs posted a series of opinion pieces on The Volokh Conspiracy blog to promote his new book on criminal records.  The basic argument advanced in these pieces, which condense the final two chapters of the book, is that “criminal record based employment discrimination is neither immoral nor illegal.”  While I am not a lawyer, and leave it to my colleagues Sharon Dietrich and Adam Klein to speak to the legal arguments in Professor Jacobs’ pieces, I believe I can speak to the public policy implications (if not the morality) of his position.  That I myself have a criminal record, am now an employer, and have spent 13 years since exiting prison working on these policy issues, ought to be considered by anyone who reads what I have to say.

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Title VII protections based on criminal record are modest not coercive

In a recent series of posts on The Volokh Conspiracy blog promoting his book The Eternal Criminal Record, Professor James Jacobs “[speaks] strongly against a public policy that coerces private employers to ignore job applicants’ criminal records while leaving them to cover the costs imposed by ex-offender employees.”    His arguments suggest that employers are being saddled with such costs (for which no proof whatsoever is presented) because of social activism on behalf of people with criminal records. In fact, modest legal protections for people with criminal records derive from longstanding employment discrimination law principles.

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How much must a law school applicant disclose about his criminal record?

The New York Court of Appeals is considering how candid a person must be about his prior criminal record when applying to law school.  During oral argument on February 12 in Matter of Powers v. St.Seal_of_the_New_York_Court_of_Appeals.svg John’s University School of Law, several judges raised public policy concerns over the law school’s summary rescission of David Powers’ admission midway through his second year, based on how he had described his criminal record on his original application.  Powers had disclosed a past conviction for drug possession, but did not also report that he had initially faced more serious charges of drug-dealing.  These underlying charges came to light mid-way through Powers’ second year, when he sought clarification from the New York courts as to whether his criminal record would preclude his admission to the bar.

According to an account of the argument in the New York Law Journal, “[Powers] involvement with drugs seemed to concern state Court of Appeals judges less than St. John’s University’s decision to rescind his admission to law school.”

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Federal agencies urged to adopt fair hiring policies

PresSealThe National Employment Law Project (NELP) has published a white paper urging the federal government to increase its own employment of people with a criminal record.  In “Advancing a Federal Fair Chance Hiring Agenda,” Maurice Emsellem and Michelle Natividad Rodriguez make a strong case for a federal “fair chance” hiring initiative similar to the ones put in place by state and municipal governments across the country.  Specifically, background check policies and suitability standards should be reformed by presidential order to give people with criminal records an opportunity to compete for jobs with federal agencies and federal contractors from which they are now, as a practical matter, excluded.

The NELP paper points out that the federal workforce is far more decentralized than a standard civil service structure, with fewer mandated protections regulating the hiring process.  Notwithstanding OPM guidelines, federal agencies have broad discretion to adopt their own hiring policies and practices, often with limited accountability and transparency. Indeed, the EEOC has been critical of the fact that federal agencies are not bound by the same suitability standards that apply to most other public and private employers.  Moreover, federal contractor employees (an astonishing 22 percent of the U.S. workforce) enjoy few legal protections, and applicants may be rejected (or employees dismissed) on the basis of stringent FBI background check requirements that apply, inter alia, to anyone with routine access to federal facilities.  These shortcomings could be addressed with the stroke of a presidential pen (or two strokes to be precise).

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The Eternal Criminal Record

Harvard_Wreath_Logo_1.svgThe Eternal Criminal Record is the title of Professor James Jacobs’ new book, just out from Harvard University Press.  This is the first comprehensive study of criminal records law and policy, and it deals with a range of contemporary legal and policy issues ranging from how records are created and disseminated, to how they are used by public and private actors, to how they are maintained and (perhaps) eventually sealed or destroyed.  Professor Jacobs examines important jurisprudential issues such as the right to public access versus the right to privacy; the role of criminal records in punishment theory; how U.S. criminal record policy compares to other countries; and the intersection of public safety and fairness in imposing collateral consequences.

The book will be reviewed on this site in a couple of weeks.  In the meantime, here is the publisher’s description of it.

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SBA to relax some rules on loans to people with a record, but most left in place

600px-US-SmallBusinessAdmin-Seal.svgIn December 2014, Amy Solomon, Senior Advisor to the Assistant Attorney General for the Office of Justice Programs in the Justice Department, testified before the U.S. Senate Addiction Forum about the review of collateral consequences federal agencies had been conducting under the auspices of the Federal Reentry Council.  She reported that most of the agencies participating in the review had concluded their collateral consequences were “appropriately tailored for their purposes.”  However, she also reported that Small Business Administration (SBA) had proposed amendments to its regulations to allow people on probation or parole to qualify for loans from its microloan program.  (The change, proposed almost a year ago, has still not become final.)

We decided to take a look at the SBA’s proposed rule change, and at the SBA regulatory scheme more generally, to see how having a criminal record affects small business eligibility for government-backed loans. Read more

Louisiana’s new expungement law: How does it stack up?

Louisiana has far and away the largest prison population of any state in the country (847 per 100,000 people — Mississippi is second with 692 per), but until last year there was little that those returning home after serving felony sentences could do to unshackle themselves from their criminal records and the collateral consequences that accompany them. While Louisiana has for years authorized expungement of misdemeanor convictions and non-conviction records, the only relief available to convicted felony offenders was a governor’s pardon — very few of which have been granted in Louisiana in recent years. Most people convicted of a felony in the state, no matter how long ago and no matter how serious the conduct, were stuck with it.* That’s why we were interested to learn that in 2014 Louisiana enacted a brand new freestanding Chapter 34 of its Code of Criminal Procedure to consolidate and extend the law governing record expungement to many felonies.

We decided to find out what the new law offers to those with felony records, and how it stacks up against the three other new comprehensive expungement schemes in Arkansas, Indiana, and Minnesota. We found that while a relatively large number of people with felony convictions are newly eligible for expungement relief, the law’s effectiveness is hampered by 1) unreasonably long waiting periods and 2) limited effectiveness in mitigating collateral consequences related to employment and licensure. Read more

Moral panic over sex offenses results in cruel and self-defeating overpunishment

logo(4)National Lawyers Guild Review Editor-in-Chief Nathan Goetting has published a thought-provoking piece in the most recent issue of the Review, commenting on America’s “moral panic” over sexual offenses, which has “created self-defeating policies, unconstitutional laws, and cruel punishments.”   Among those punishments are a plethora of collateral consequences that stigmatize and shame without regard to actual risk.  We reprint the editorial here in its entirety, with permission.      

It should go without saying that human sexuality is rife with complexity and mystifying contradictions. It’s a puzzle palace from which all sorts of behaviors—routine, bizarre, and sometimes dangerous—can emanate. Yet our criminal laws and procedures regarding sex crimes respond to this swirling welter of incomprehensible impulses with stubborn and self-defeating simplicity. We choose to punish that which we fear to understand, as if learning what motivates the behavior is to show a little too much sympathy and solidarity with “perverts,” toward whom only contempt can be shown. As with suspected terrorists since 9/11, our mercilessness leaves no room for anything else, not even enlightened self-interest.

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European employment discrimination based on criminal record I – mandatory bars

There is no body of research on European criminal record-based employment discrimination (CBED) comparable to the employer surveys and field studies done in the United States. While European concern for informational privacy keeps criminal records out of the public domain, European countries do not prohibit employment discrimination based on criminal record. In fact, as in the United States, European countries make certain criminal records disqualifying for a vast range of public sector and some private sector employments.

This posting provides background on European, and especially Spanish, mandatory CBED. Our next posting provides background and discussion on discretionary CBED by private employers.

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Michigan takes baby steps on criminal justice reform

Michigan spends one in five tax dollars on corrections so the state continues to explore strategies to safely reduce these costs.  In its most recent session, the legislature fishconsidered bold criminal justice reforms, but strenuous last minute objections from the Attorney General succeeded in halting much of the reform agenda. In the end, only a few reforms were implemented and most of them were passed in watered-down form.

The new laws include (1) the establishment of a Criminal Justice Policy Commission; (2) narrow expansion of set-aside eligibility to victims of human trafficking; and (3) authorization for Certificates of Employability for prisoners who complete certain in-prison training programs.  A more ambitious (though still narrow) expansion of the set-aside law is currently on the Governor’s desk for signature.  These “baby steps” leave lots of room for improvement, but constitute a blueprint for future reform efforts.

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