Category: Policy

New York governor adopts progressive collateral consequences agenda

Governor Cuomo has accepted all 12 recommendations made by his Council on Community Re-entry and Reintegration. The Council was created in July 2014 and tasked with “identifying barriers formerly incarcerated people face and making recommendations for change.” Governor Cuomo’s 12 executive actions include:  adoption of anti-discrimination guidance for public housing; adoption of uniform guidelines for evaluating candidates for occupational licensing, and a presumption in favor of granting a license to a qualified applicant; revision of 10 licensing and employment regulations that imposed stricter standards than required by statute;  adoption of a “fair hiring” policy for state employment that will delay a background check until well into the hiring process; and streamlining the process for obtaining certificates of relief from disabilities and certificates of good conduct. Council Chair Rossana Rosado said, “We accomplished our goals this year but our work is far from over. As we look to address many more of the systemic barriers encountered in re-entry, we will not lose sight of New York’s role as a leader in combating the devastating impact and stigma of second class citizenship that so many of our fellow New Yorkers face, especially men of color.” The Council will continue to build on this successful first year by promoting a range of educational opportunities to improve chances of employment, addressing barriers to health care, seeking to reduce the potential for extortion from public exposure of criminal records and continuing to seek solutions to housing people with criminal convictions consistent with fairness and public safety. Read more

Insurance companies undermine fair hiring efforts

An investigation by the Wall Street Journal reveals the little-known role that insurance companies play in shaping employer policies on hiring people with a criminal record.  Joe Palazzolo reports in “Criminal Records Haunt Hiring Initiative” that the “unseen hand of commercial insurers” frustrates efforts by some employers to implement fair hiring policies, and gives others an excuse for maintaining broad prohibitions on hiring convicted individuals.  “An employee is typically excluded from standard insurance policy against fraud, theft, embezzlement and other crimes—known as a fidelity bond—as soon as the employer discovers that he or she has committed a dishonest act, whether recently or in the past.” The extent of the problem is illustrated by the story of Louis Henry, an Alabama man who lost a sales-management position at a medical-technology company after one day on the job, when a background check revealed a dated conviction for misreporting the status of a loan on the books of a bank where he worked.   “A May 1 letter from the employer, reviewed by The Wall Street Journal, said Mr. Henry’s record placed the company in violation of its insurance policies.” While working at a community bank in Childersburg, Ala., in the 1990s, Mr. Henry reported in a regulatory filing that one of the bank’s loans was current when, in fact, it was 30 days past due. Mr. Henry said he had no relationship with the borrower but pleaded guilty to avoid legal costs, even though he knew that plea would lead to his being banned from the banking industry. Financial institutions are largely prohibited by federal law from hiring employees with convictions for crimes of dishonesty, absent a waiver by the Federal Deposit Insurance Corporation. But Mr. Henry says he didn’t know the conviction would dog him in other industries, too. “When do you quit paying for a mistake?” said Mr. Henry, who is 55 years old. “There’s got to be some sort of statute of limitations.” Insurers appear unfazed by the growing body of research that challenges the notion that ex-offenders are an indefinite liability to employers: “I think insurance companies would probably agree with that research, but what they would not do is change a policy form that has been in existence for over 70 years and has had virtually everything in it litigated,” said Theodore M. Pappas, president of the McLaughlin Co., a Rockville, Md.-based insurance agency. The investigation documents the wide range of responses on the part of insurance executives to the public policy conundrum created by the conflict between second chance policies and longstanding liability practices.  One executive, whose firm works with the Federal Bonding Program, noted that insurers may grant waivers, agreeing to cover employees with long-ago or low-level offenses, like shoplifting. “I think that a lot of times the insurance and the bond questions are used as an excuse not to hire an ex-offender,” he said. Another believes that fidelity insurance has “evolved hugely” since the early 2000s, when any theft or fraud conviction in an employee’s background would have canceled coverage: “Now, a theft conviction for which the amount stolen was less than $1,000 doesn’t automatically exclude an employee from coverage. Some employers negotiate a higher threshold—say $25,000 or less—by paying a higher premium.” Some employers are being advised by their lawyers that categorical refusals to hire people with a criminal record could violate federal employment-discrimination laws: A company policy that says “‘We don’t hire felons’ is pretty much like saying, ‘Sue me,’” said Jonathan A. Segal, a partner at Duane Morris LLP, who represents employers. “And ‘the insurer made me do it’ doesn’t work.” Some employers have figured out a way around insurer limits to pursue a fair employment policy they endorse: B.J. Patterson, chief executive and owner of Pacific Mountain Logistics LLC in Ontario, Calif., said six employees on his staff have criminal records and are barred under his liability-insurance policy from working in the warehouse that receives imports. “Some of my best employees are what I call my second-chance guys and gals,” Mr. Patterson noted. “I think it’s a lot cheaper to give them a job than to keep building more prisons.” But many insurance companies don’t seem to have gotten the memo: Shirley Patrick, a senior account manager at iLink Business Management, a Hasperia, Calif.-based staffing company, said her insurance through American Zurich Insurance Company won’t cover workers with a felony conviction. “We’ve got so many unemployed people in the state of California. Do I have to make exceptions for Jim when I might be able to talk to Joe and he’s qualified and I don’t have to mess with these issues?” Ms. Patrick said. “I don’t need baggage.” Robyn Ziegler, a spokeswoman for the American Zurich Insurance Company, a subsidiary of Zurich Insurance Group Ltd., said the insurer doesn’t identify customers but that “most crimes policies do not cover employees with a known prior felony record.” Coverage may be reinstated, however, based on an employee’s “individual circumstances,” she said.       Read more

Ban-the-box featured on PBS NewsHour

On June 17 the PBS NewsHour featured a debate over ban-the-box policies in hiring. Daryl Atkinson, an attorney with the Southern Coalition for Justice in Raleigh, North Carolina, presented the case in favor of eliminating threshold questions about criminal record on employment applications.  Elizabeth Milito of the National Federal of Independent Business argued the other side, claiming that the costs of ban-the-box for a small business “can be pretty steep.” In many instances, a small business returning a small contracting company, running a small convenience store needs to be able to abort the hiring process sooner rather than later. It is the business owner who is culling through the applications, setting up the interviews, bringing the individuals in.   And in certain instances, either by law, federal or state laws, they can’t hire individuals with certain convictions. Responding to Atkinson’s counter that advocates are only seeking an individualized assessment of each candidate’s suitability, Milito suggested that employers unable to reject applicants on a categorical basis before the interview stage may later be the target of lawsuits by applicants rejected on the merits. The exchange reveals the importance of understanding how most “don’t ask, tell later” schemes actually work in practice.  Ms. Milito makes certain assumptions in this regard that are simply incorrect:  most ban-the-box schemes do not require postponing inquiry until after an in-person interview, do not require an employer to give reasons for rejecting a candidate, and do not apply at all where the law disqualifies a person with a criminal record from consideration.  While there is no doubt that some of these features would be desirable from a policy perspective, they are not part of even the most successful ban-the-box programs. We reprint the transcript of the interview in full below.  It can be watched here. TRANSCRIPT JUDY WOODRUFF: Now we turn to our occasional series on imprisonment and criminal justice in America. Some Republicans and Democrats are uniting over reform ideas. Tonight, in our Broken Justice series, William Brangham looks at a high-profile idea that centers around felons and their lives after prison. WILLIAM BRANGHAM: The nation’s biggest city New York, just became the latest in a national movement to rewrite the hiring process and give convicted felons a better chance at landing a job. Supporters gathered a few days ago as the New York City Council voted overwhelmingly to block employers from asking job applicants if they have a criminal history. The law is known as ban the box. It would do away with the question or box on job applications asking if a worker has served time in prison or had a record. The idea is spreading. So far, 17 states across the country and more than 100 cities and counties have passed similar ban the box laws. We get two different perspectives. Daryl Atkinson is senior staff attorney at the Southern Coalition for Social Justice. And Elizabeth Milito is senior executive counsel for the National Federation of Independent Business. Daryl Atkinson, I know this is not just a matter of public policy for you. This is very personal in your own particular story. Can you tell us a little bit about that? DARYL ATKINSON, Senior Staff Attorney, Southern Coalition for Social Justice: Sure, William. In 1996, I was convicted of a first-time nonviolent drug crime. I spent 40 months in prison in the Alabama Department of Corrections. I went into prison with a high school diploma. I came out with a high school diploma. Fortunately enough for me, I had a loving family that could provide me food, clothing and shelter. And I have been able to achieve a certain degree of success. I have gotten my education. I’m licensed to practice law in Minnesota and North Carolina. I was honored at the White House as a Champion of Change in removing barriers for people with records. But I don’t tell that story to highlight any exceptionable attributes about me. I believe that millions of people who cycle in and out of our criminal justice system can be successful as well if they have the necessary support. So, we ban the box in both Durham City and Durham County in 2011 and in 2012. And we have seen the percentage of people hired who have criminal records go up every year without any increases in workplace theft or crime. None of these folks have been subsequently terminated because they committed a subsequent offense. WILLIAM BRANGHAM: Beth Milito, what about this argument that, if you know someone has a criminal record, that the prejudice against that is just so great that, in fact, people who have done their time, served their sentence, that they should have a shot at getting a job, just like everybody else? ELIZABETH MILITO, Senior Executive Counsel, National Federation of Independent Business: And, you know, these policies, there is a laudable goal behind them, but there is a cost. And for small businesses, whom I represent at NFIB, the costs can be pretty steep. This is — as I say, it’s not a good policy in all businesses and all industries. And the one size fits all is very difficult. In many instances, a small business returning a small contracting company, running a small convenience store needs to be able to abort the hiring process sooner rather than later. It is the business owner who is culling through the applications, setting up the interviews, bringing the individuals in And in certain instances, either by law, federal or state laws, they can’t hire individuals with certain convictions. WILLIAM BRANGHAM: Daryl, as you have gone around the country and talking to employers, how do you convince them? When they might say to you, look, if I’m hiring people for some kind of sensitive work, I might be putting people into people’s homes, that I have a duty to know whether or not I can trust this person’s actions, what do you say to those employers? DARYL ATKINSON: So, I’m a dad. I have a 3-year-old. I drop my 3-year-old off at day care every single day. Would I want to know or would I be concerned as a parent if one of her day care teachers had a past history of child abuse? I would. That would be concerning to me. So, that particular position may not be suitable for someone with that criminal record history. What we’re encouraging employers to do, both large and small, are to do these individualized assessments, and not treat all crimes the same, because some crimes may not have any relevance to whether someone is suitable for a given position. WILLIAM BRANGHAM: Well, Beth Milito, what about that point? Would small businesses be OK with the idea that you don’t ask people about their criminal background check right away? You vet the candidates and then if you are about ready to make an offer, then you can check and see if it is relevant, as Daryl was saying? Would you guys support that idea? ELIZABETH MILITO: I support vetting candidates, most certainly. But the employer needs to have the information about criminal history during the interview. The fact that they didn’t raise that during the interview, whether there was a gap that maybe now a business owner is afraid to discuss because they can’t talk about criminal history until after they have made a conditional offer, is just kind of ludicrous for a small business owner. And then some of the proposals too — and the New York City is one of them too — the business owner then actually has to provide, you know, a written reason as to why it is they didn’t hire somebody because of criminal conviction. That is just going to send people off to an attorney. WILLIAM BRANGHAM: OK, we have got to leave it there. Daryl Atkinson, Beth Milito, thank you both very much. DARYL ATKINSON: Thank you. ELIZABETH MILITO: Thank you. Read more

50-state survey of relief from sex offender registration

We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law.  This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,” discussed on this site on April 15.  The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary.  But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves. We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals. It is risky to try to generalize about the results of our study,  However, we found that registration laws seem to fall into three general categories: 18 states provide a single indefinite or lifetime registration period for all sex offenses, but a substantial portion of these allow those convicted of less serious offenses to return to court after a specified period of time to seek removal; 19 states and the District of Columbia have a two-tier registration system, which requires serious offenders and recidivists to register for life but automatically excuses those convicted of misdemeanors and other less serious offenses from the obligation to register after a specified period of time, typically 10 years; 13 states and the federal system have a three-tier system, requiring Tier III offenders to register for life, and Tier I and Tier II offenders to register for a term of years, generally 15 and 25 years. Most states require recidivists to register for life.  About half the states have shorter terms or special termination provisions for juveniles.  Successful completion of deferred adjudication avoids registration in many states. Most of the states that authorize discretionary relief after a period of years specify the criteria that are to be considered by courts, and require that there be no intervening convictions of any kind. A number of states give specific effect to executive pardon, and a few others specify that a pardon must be for innocence before it will relieve registration.  Many states make no mention of pardon as a relief mechanism, but it is at least arguable that a full and unconditional pardon would relieve the obligation to register as well as other collateral consequences.  A number of states specify that general expungement or sealing provisions have no effect on the obligation to register.  However, as noted, deferred adjudication schemes may avoid registration in many states. Most states provide the same relief to those whose obligation to register derives from out-of-state convictions, but a few refer to require them to return to their jurisdiction of conviction for relief. You can view the chart here, and find it with the other 50 state charts on the Restoration of Rights page. We welcome feedback, both from those familiar with a particular state’s laws and from those who simply have questions about particular aspects of the chart.  Please send your comments to joshgaines@gmail.com. Read more

27 Senators urge Obama to “ban the box” in federal hiring

A group of 27 U.S. Senators have written to President Obama urging him to implement “fair chance” hiring in federal government employment.   The Senators — all Democrats, led by Sherrod Brown (D-OH) and Cory Booker (D-NJ) — asked the President to issue an executive order directing federal agencies and contractors to postpone inquiry into criminal records until a later point in the hiring process.  The so-called ban-the-box movement in the states has been gaining steam and has been largely bipartisan, with executive orders issued most recently in Georgia and Vermont.  Some of the largest employers in the country, including Walmart, Target, Home Depot and Koch Industries have also stopped asking about prior convictions at the beginning of the job application process. The press release and letter are here.  A January 2015 report from the National Employment Law Project suggests that the details of a presidential executive order may be difficult to work out, given the decentralized nature of federal hiring and the applicability of formal background check requirements to a substantial number of federally-funded jobs.   Read more