Category: Policy

New era for expungement reform? Too soon to tell.

A new article in the Harvard Law & Policy Review evaluates some of the recent legislative efforts to deliver relief from the burden of collateral consequences through new or expanded expungement laws.  In “A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels,” Brian Murray argues that many of the newer record-closing laws are far too modest in scope and effect to have much of an impact on the problem of reintegration, citing Louisiana and Maryland enactments as examples of relief that is both too little and too late.  He admires Indiana’s broad new expungement scheme, which limits use of records as well as access to them, regarding it (as do we) as an enlightened exception to a general legislative aversion to risk.  He considers recent legislation in Minnesota to fall into a middle category — and we could add Arkansas as another state to have recently augmented and clarified older record-closing laws.  Our round-up of new expungement laws enacted just this year finds very little consistency from state to state, with Kentucky, Tennessee, Missouri and New Jersey all experimenting with different approaches. Murray appreciates the need for a multifaceted approach to the problem of criminal records, and recognizes the doctrinal and practical shortcomings of a reform agenda that depends primarily on concealment.  His bottom line, with which we agree, is that “[s]kepticism regarding the benefits of expungement in the information age, coupled with the incremental nature of legislative reform, leads to the conclusion that expungement law must continue to develop as one piece in a larger puzzle.”   Read more

Federal sentencing and collateral consequences II

This piece follows up on the CCRC practice resource titled “Federal sentencing and collateral consequences,” available here.   Should federal courts be required to take collateral consequences into account when they impose a sentence – or should they at least be permitted to consider them?  Should courts also be authorized to provide federal defendants some relief from collateral consequences after their sentences have been served?   Some courts are already doing this without specific authorization, as was pointed out in a letter sent last week to the U.S. Sentencing Commission by one of its advisory committees, urging that the Commission take up the subject of collateral consequencdes as a priority for the coming year. The Practitioners Advisory Group (PAG) urged the Commission to recognize collateral consequences as presenting issues of concern to federal courts for which it should provide some guidance: The collateral consequences of conviction – specifically, the legal penalties and restrictions that take effect automatically without regard to whether they are included in the court’s judgment – can frequently be the most important aspect of punishment from a defendant’s perspective. In a number of recent cases, courts have has imposed a more lenient sentence in consideration of the severe collateral consequences the defendant would experience. In other cases, courts have sought creative ways to relieve defendants from the effect of collateral consequences that persist long after the sentence has been fully served. We briefly describe below the ways in which collateral consequences affect the work of sentencing courts. We urge the Commission to take this matter under advisement in the months ahead, looking toward a hearing in the spring. The PAG letter describes the several ways in which collateral consequences affect the work of sentencing courts. Understanding collateral consequences and ensuring that a defendant has been notified about them Considering collateral consequences in imposing sentence Relief from collateral consequences after service of sentence Noting “the considerable uncertainty about the scope of a court’s authority to adjust the quantum of punishment because of collateral consequences,” the PAG letter urges the Commission “to make clear that it is appropriate for a court in certain circumstances to consider collateral consequences in determining a guideline sentence.”  They may also be relevant consideration “in deciding whether to approve a diversionary disposition, whose purpose frequently is to avoid or mitigate collateral consequences.” Finally, the PAG urges the Commission to consider, in connection with any study of collateral consequences it may undertake, recommending to Congress that it consider enacting the type of comprehensive relief contained in various pending law reform proposals such as the Uniform Collateral Consequences of Conviction Act. Overall, the PAG favors a comprehensive statutory scheme that would integrate collateral consequences into the sentencing system, and move closer to a system where the judiciary (with leadership from the Commission) rather than the legislature has primary responsibility for shaping and managing the penalties to be imposed in each particular case.  Just as the court decides what sentence it will impose, the court also should play a central role in deciding which collateral consequences will apply and for how long.  This approach gives sentencing courts new tools to further the rehabilitative goals of sentencing and to avoid issues of disproportionate severity. The role of federal courts in managing collateral consequence will be the topic of a panel discussion on September 29 hosted by the Cornell ILR School, where panelists will include Judge John Gleeson, whose 2015 decision on federal expungement is presently pending in the Second Circuit. Read more

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: “Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race. To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies. Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law. Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race. Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods). Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) — an effect that BTB compliance necessarily eliminates. However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect. Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%. Another forthcoming study appears to confirm Agan and Starr’s findings.  According to Jennifer Doleac of the Brookings Institute, one of the study’s co-authors, “black and Hispanic men without college degrees are significantly less likely to be employed after ‘ban the box’ than before.”  Writing for Real Clear Markets, Doleac summed up the problem as follows: If you take information about criminal records away, what happens? Employers are forced to use other information that is even less perfect to guess who has a criminal record. The likelihood of having a criminal record varies substantially with demographic characteristics like race and gender. Specifically, black and Hispanic men are more likely than others to have been convicted of a crime: the most recent data suggest that a black man born in 2001 has a 32% chance of serving time in prison at some point during his lifetime, compared with 17% for Hispanic men and just 6% for white men. Employers will guess that black and Hispanic men are more likely to have been in prison, and therefore less likely to be job-ready. In Doleac’s view, these outcomes are the predictable and inevitable result of banning the box.  As she sees it, they can only be avoided by repealing ban-the-box laws altogether: Overall, the unintended consequences of “ban the box” are large, and run counter to one of its goals: reducing racial disparities in employment. For this reason, I hope jurisdictions repeal their “ban the box” laws. But I also hope this doesn’t stop efforts to improve the lives of people coming out of prison. This is a group that our country has long neglected, and we should be doing much more to help them succeed. Advocates could push for policies that would provide more information to employers about ex-offenders’ job-readiness, rather than taking information away. Better yet, they could help disadvantaged ex-offenders improve their job-readiness. The more employable the average ex-offender, the less cautious employers will be about hiring one. [UPDATE 7/25/16 – The Doleac article (co-authored with Benjamin Hansen) is now available here.] However, Maurice Emsellem of the National Employment Law Project argues that it is unlawful racial discrimination that is the real problem, not ban-the-box policies.  As he told the Weekly Standard, rather than supporting the repeal of ban-the-box policies, these studies “signal the need to double down on enforcement of several civil rights laws and build on the progress that’s been made enforcing the EEOC criminal record guidance.” While it is true that racially biased employment practices are almost certainly at the root of the problem, it remains the fact that employment discrimination laws are notoriously difficult to enforce and that their nature makes them useful only for dealing with discrimination on a case-by-case (or employer-by-employer) basis.  Meanwhile, the racially discriminatory effects of banning the box will be felt across all employment markets where these policies are in force.  The problem remains how to increase employment opportunities for those with criminal records without aggravating discrimination against other marginalized populations.       Read more

Access to healthcare a lifesaver for halfway house residents

Author: Art Beeler *** On 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. Access to healthcare is essential to ensuring successful reentry, but it is particularly important in the first days and weeks of release.  According to a 2007 study in the New England Journal of Medicine, the risk of death during the first two weeks of release is 12.7 times that of the rest of the population (the rate for all former inmates is 3.5 times higher).  The leading causes of death during the first two weeks are drug overdose and cardiovascular disease, according to the study. The problem is exacerbated by the unfortunate reality that prisons and jails have become America’s default mental health hospitals, especially for those who lack independent resources.  Most prisons provide from seven days to thirty days’ medication to prisoners in need of psychiatric care upon their release.  After that, those individuals are on their own; and it often takes six to eight weeks to schedule an appointment with a provider, assuming they are able to pay.  Allowing halfway house residents to take advantage of Medicaid will help close this gap and encourage them to maintain medication compliance and avoid decompensation and a return to custody. Barring halfway house residents from Medicaid coverage also deprives many eligible inmates of access to the important transitional oversight provided by halfway houses.  Often, ill inmates who are eligible for halfway house transfers are forced to remain in prison so that they can continue to receive critical healthcare services that they could not afford to access on the outside.  During my own tenure as a corrections official, I would have been unable to transfer an inmate receiving chemotherapy to a halfway house unless he possessed independent resources that would allow him to continue his care.  Inmates receiving dialysis and other treatments for chronic illnesses are similarly denied access. Some will argue that halfway houses are not meant to provide this sort of care, and function only to assist former inmates with finding employment and housing.  But that was then, and this is now.  As we continue to release large numbers of aging inmates and inmates with chronic medical problems and mental health issues, we must also prioritize a transition to care and treatment.  DHHS’s recent action lays the groundwork for that to happen. But before the new DHHS policy can have a real impact, states and prisons are going to have to do their part to ensure that the continuity of care is maintained upon release.  First and foremost, states will have to expand their own eligibility requirements to cover halfway house residents, since they set their own standards according federal criteria.  Secondly, prisons are going to have to start applying for services on behalf of inmates before their transfer to halfway housing.  This will require prisons to work with health insurance providers to “develop a model of care that reaches into prisons and jails to help [inmates] connect to health care providers prior to release,” as stated in DHHS’s own materials.  Additionally, community corrections staff, including halfway house staff and probation and parole officers, will have to work together to ensure that inmates are scheduled for appointments before they are transferred and make sure they keep those appointments afterwards. In the end, that additional effort will be well worth it.  It will save lives, expand the availability of halfway housing for eligible inmates, and allow prisons to release more deserving individuals from their walls.   About the Author: Art Beeler is a Clinical Assistant Professor at North Carolina Central University, and a Commissioner with the North Carolina Sentencing Commission. He retired as the Complex Warden at the federal correctional facility in Butner, North Carolina in 2009, after over three decades of service in the federal prison system. Read more

Feds nudge colleges to go “beyond the box”

The Department of Education (DOE) is asking colleges and universities to reconsider the use of criminal record inquiries on admissions applications in a new report released on Monday. The report, Beyond the Box: Increasing Access to Higher Education for Justice-Involved Individuals, looks at how broad inquiries into applicants’ criminal histories may deter people with criminal records from applying for post-secondary educational opportunities.  It also suggests steps schools can take to ensure that their admission processes promote second chances for qualified applicants with criminal records, including banning the box on initial applications. According to the report, “A survey of postsecondary institutions found that 66 percent of them collect CJI [criminal justice information] for all prospective students, and another 5 percent request CJI only for some students.”   The Common Application, a uniform application used by nearly 700 schools, has since 2006 asked whether a person has been convicted of a misdemeanor or felony, “or other crime.”   Some schools that use the Common Application allow applicants to opt out of disclosure, or delay criminal history inquiries until a preliminary admissions decision has been made.  Other schools use their own non-standard applications which may require disclosure of convictions, arrests, or mere allegations of misconduct. Criminal history inquiries are primarily meant to give schools the information needed to identify potential threats to public safety and to screen out applicants whose criminal history makes them ineligible for employment or licensure in their chosen field of study.  Those are legitimate concerns (though one could argue that students should be able decide for themselves whether to pursue an education, even if disqualified from employment or licensure), but research shows that seeking that information so early in the process has a significant chilling effect that deters many qualified would-be applicants who pose no public safety risk from applying to begin with. From the report: A 2015 Center for Community Alternatives study suggests that of the 2,924 individuals with felony convictions who started applications for admission to State University of New York schools, two thirds of the individuals never complete the application process due in part to the onerous process of providing supplemental information about their convictions.  In comparison, the attrition rate on applications for all applicants is only 21 percent. Most troubling is the fact that a disproportionate number of the applicants that are deterred by these inquiries or rejected because of their record will be people of color since they are more likely to have had contact with the criminal justice system than their white peers.  This results in applicant pools and classes that are far less inclusive than they could be. To address that problem, the report encourages schools to look to guidance issued by the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and the Department of Housing and Urban Development (HUD) regarding criminal history screening and the Civil Rights Act’s prohibitions against hiring and housing policies that have a discriminatory impact on certain racial groups.  The report acknowledges that those guidances address the issue in non-education contexts, but states that “they may be useful by reference in determining whether to include, and if so, how to design any CJI-related questions for an institution’s admissions application.”  They may also help institutions comply with Title VI of the Civil Rights Act, which applies to all post-secondary schools receiving federal funding and, through it’s implementing regulations, similarly prohibits policies that have a racially discriminatory effect. Unfortunately, DOE did not take this opportunity to follow the lead of the EEOC, DOL, and HUD and issue a forceful guidance on the consideration of criminal records that is couched firmly in its authority to enforce Title VI’s anti-discrimination provisions.  Instead, the report opts for a lighter touch, merely suggesting that schools mitigate barriers to higher education either by banning the box on initial application forms, or by limiting the inquiry into criminal history as follows: Avoiding the use of ambiguous criminal justice terms Clearly defining what information should not be disclosed Avoiding overly broad requests about criminal history Including a time limit on criminal background data Inquiring only about convictions, not arrests Tailoring questions to avoid unnecessarily precluding applicants from entering training programs and employment for which they might be eligible The report is clear in its position that “ultimately, colleges and universities should weight their admission criteria against their institution’s mission.”   Still, the Department’s recognition that many schools are doing less than they should to provide educational opportunities to people with records is welcomed, and implementation of the report’s suggestions will certainly make those opportunities more accessible.  The New York Times’ coverage of the report notes that some schools are already poised to take action: The State University of New York said Monday that its 64-campus system was already reviewing its practice of asking about criminal histories. A resolution by the SUNY student assembly, adopted in March, called for removal of such questions, citing research indicating that they discouraged prospective students from applying, and that there was no evidence that admitting those with criminal histories improves campus safety. The big question is whether the Common Application, the largest player on the field, will act on the Department’s suggestions. On Monday, the Common Application made an announcement that coincided with the report’s release. From the Times: [R]epresentatives … announced that the fall 2016 application would include a revised question about criminal history. Previously, the Common Application asked students whether they had been convicted of a felony, misdemeanor or “other crimes.” The reference to “other crimes,” deemed ambiguous, will be omitted.  This is little more than a hollow gesture, though: The application will still require disclosure of all convictions for any crime.  To be fair, that specific revision is explicitly recommended in the DOE report (in response to legitimate concerns that “ambiguous language can widen the net for what potential applicants must disclose,” a problem not actually presented by the specific language at issue), so one can see why it would be touted as progress even though it provides few, if any, practical benefits.  Less illusory changes to the Common Application may still be on the way, though. The Times reports that the organization has begun a broader review to “determine whether additional revisions of its questions about criminal history and past school discipline should be made for the 2017 application.” Regardless of the report’s ultimate effect, it represents a significant continuation of the administration’s recent push to expand second chance opportunities before the keys to the White House are handed over in January. That push has included the new HUD guidance on record consideration in housing, banning the box in federal agency hiring, and creating a National Clean Slate Clearinghouse to provide information on state-level record mitigation mechanisms.  Each of these initiatives has been supported by the assertion that second chance policies provide broad social benefits, something Education Secretary John B. King reiterated in a letter to schools that accompanied the report: For our nation to lead and succeed in the 21st century, we need the full talents and energy of every American.  Those who have paid their debt and served their sentences deserve an equal chance to learn and thrive.  Together, through the power of high-quality education, we can help youth and adults who have been involved in the criminal justice systems rebuild their lives, reclaim their sense of purpose and direction, rejoin society, and realize their full potential.  By preparing these learners to achieve their academic and career goals, we will promote public safety and strengthen the families and communities that depend on their success. In that same spirit, the Secretary’s letter also encourages schools to ban the box on applications for employment. You can find the Department’s report here, and the accompanying letter here. Read more