Category: Policy

Forgiving v. forgetting: A new redemption tool

The following thought-provoking piece about the growing popularity of judicial “certificates of good conduct” was first published in The Marshall Project (www.themarshallproject.org) a nonprofit news organization focused on the US criminal justice system. The “forgiving” approach to avoiding or mitigating collateral consequences is an important alternative to the “forgetting” approach advocated by proponents of expungement or sealing, which tend in any event to be limited to minor dated offenses or arrests not resulting in conviction.         Forgiving v. Forgetting:  For offenders seeking a new life, a new redemption tool. In February of 2003, a much younger Barack Obama rose before the Illinois State Senate to introduce a new piece of legislation that, he said, contained a compromise. The bill would help job-seekers who had long ago been convicted of a nonviolent crime (or two, at most) overcome the barriers to employment that came with having a criminal history. But the bill would do so without expunging their records. Instead, Obama’s bill would create a final, years-later stage on the timeline of these ex-offenders’ cases. They had already completed the stages of arrest, booking, indictment, plea bargaining or trial, sentencing, incarceration and/or probation. Now, ex-felons who had stayed crime-free for a few years would be eligible to come back to court and, in a full-blown hearing before a judge, attempt to “prove” that they had been rehabilitated. Any ex-offender who succeeded in doing so, Obama announced, would be granted one of two new legal documents, the Certificate of Good Conduct or the Certificate of Relief from Disabilities. The certificate would represent an official assurance to employers – though, again, short of full expungement – that the ex-offender should no longer be judged for his or her crimes. More concretely, the good conduct certificate would make the ex-offender eligible for a range of municipal jobs, including in the public schools, the transit system, and the parks; the certificate of relief would remove barriers to a range of licenses, from real estate to barbering, cosmetology, and mortician’s licenses. Finally, any private employer who hired the now officially rehabilitated ex-offender would be insulated from liability suits claiming negligent hiring. Obama’s bill was passed and went into effect one year later. Ever since, the granting of so-called Certificates of Rehabilitation has become an increasingly popular compromise version of full expungement in courts around the country. Between 2009 and 2014, nine states and Washington, D.C. began issuing the documents, also called certificates of relief, recovery, achievement, or employability. “These certificates are a remarkably dynamic new option,” says Kari Hamel, a civil legal aid attorney in North Carolina who is working to make the certificates – available in that state since 2011 – more accessible to more people with criminal records. “It’s a way of showing employers that the crime someone committed probably wasn’t committed yesterday. It makes what has happened since the crime a fully official part of that person’s record, for all employers to see.” “That’s the key,” she adds. “Rehabilitation is absolutely a part of a person’s history of trouble with the law, it’s just the second part, the positive part.” Paul Biebel, the presiding judge for Chicago’s criminal court, agrees that the certificates are a promising new option. “Only over the last few years have we seen more of these coming through the court,” he says of the certificates, “but I feel very strongly that they are an additional tool in a judge’s toolbox to evaluate people. We judges are prepared to send people to prison. But now, if the evidence proves rehabilitation, we also have a tool for redeeming people.” The new certificates have burst onto the scene amid emerging bipartisan consensus that the consequences for committing low-level nonviolent crimes – including the collateral consequences, such as difficulty getting a job[1] years later – should not be interminable. The Redeem Act, a bill sponsored by Senators Cory Booker and Rand Paul that would expand expungement for crimes committed as a juvenile, has picked up steam in Congress. President Obama, meanwhile, has highlighted the issue of the long-term impact of criminal records, particularly through his My Brother’s Keeper[2] initiative. This consensus is rooted in the fact that between 70 and 100 million Americans have an arrest, charge or conviction in their pasts. And, with the rise of the Internet, even a minor run-in with the law has been transformed from a temporary experience into a permanent one. This does not mesh well with the American ideal of self-reinvention. Yet despite the emerging agreement that many ex-offenders deserve second chances, not everyone agrees that these new certificates are the best way to go about providing redemption. Sharon Dietrich is one such critic. Dietrich is a civil legal aid attorney in Philadelphia and the author of “One Strike and You’re Out,” a report on the collateral consequences of criminal records, and she believes full expungement is always preferable to certificates. “Forgetting,” she says, “either by expunging someone’s record altogether or by permanently sealing it, is a much better solution than forgiving, which is what these certificates claim to do.” The certificates are a “weak compromise,” she adds, because they “rely on employers to do the right thing. But most employers will ignore the document that says you’ve been rehabilitated, and focus instead on the part about how you were arrested.” Supporters of the certificates argue that “forgetting” is a pipe dream. For one thing, law enforcement agencies often resist expungement, because it purges the record of information that might be useful in future investigations. James Jacobs, a professor of law at New York University and the author of “The Eternal Criminal Record,” says that even if expungement were more available, it would be a kind of “fraud” in the age of the Internet. “Expungement is not amnesia,” he says. “The information remains out there on the Internet. These private background check companies [such as LexisNexis, HireRight, and FirstAdvantage] have no incentive to remove expunged or out-of-date information.” Background checks on job applicants are frequently inaccurate[3] even without expungement, he said. Then again, certificates are not useful at all if ex-offenders – and employers – do not know about them, or do not know who is eligible. And even once ex-offenders know about the option, the process of affirmatively filing for a certificate is extremely complex. The burden to prove rehabilitation is on the applicant, not the prosecution. To be successful requires gathering documents from multiple agencies, letters of support from community members, and proof of sobriety, then arranging all of it into a narrative that demonstrates “rehabilitation.” In other words, the success of these certificates depends heavily on local lawyers, primarily from civil legal aid[4] organizations, taking a grassroots approach to informing people about what certificates are available and how to file for them. In New York, for instance, one of the few states to begin offering the certificates before Illinois, an average of only 261 per year were issued between 1995 and 2005. Between 2007 and 2010, as civil legal aid organizations started educating ex-offenders about the certificates, that number shot up to 2,040 per year. More recently, two of the most robust approaches to making these new certificates more accessible and understandable are underway in Illinois and North Carolina. In Chicago, Cabrini-Green Legal Aid has led the effort to inform people about the certificates. CGLA operates a Help Desk at the downtown Chicago courthouse, as well as a dial-in hotline, to educate ex-offenders about the certificates and get them started with the application process. And, according to Cynthia Cornelius, CGLA’s director of client and community services, the organization has recently begun to meet with and educate local employers. “None of this works unless employers know what these certificates are,” she says, “and why they should respect job applicants who have earned the certificates.” But making the certificates a useful option is not only about education, it is also about representation. So, in a statewide effort called Second Chances,[5] sixteen of the Illinois’ largest law firms have partnered with CGLA, supplying hundreds of pro bono lawyers to help process petitions for certificates. Down in North Carolina, the first step was to make the certificates available under the law, as Obama did in Illinois. Despite the anti-progressive climate in the state legislature, says Bill Rowe, chief counsel of the North Carolina Justice Center, securing “certificate legislation” was politically feasible. “Democrat or Republican, we all know someone here in North Carolina with a minor mistake holding them back,” says Rowe, “and minor mistakes are the types of mistakes we’re talking about forgiving with these certificates, not major mistakes. It’s not a ‘them’ issue, like some of the other divisive issues in the legislature; it’s an ‘us’ issue.” With the certificates in place, the next step was getting the word out. Hamel, the civil legal aid attorney, explains that Legal Aid of North Carolina operates mobile legal clinics deep in the Blue Ridge mountains, informing the people there about the certificates. Before each clinic, Hamel notifies the local newspapers in the towns where she is headed, asks the radio stations to broadcast PSAs, and contacts local domestic violence shelters and V.A. centers to get people to come out for the clinic. To bring employers on board, Hamel has help from Ben David, a local D.A. in Wilmington, North Carolina, who has convened the Hometown Hires program. David meets regularly with hundreds of the top employers in southeastern North Carolina to convince them to hire people with criminal records, especially people who have these certificates. “This is about working on criminal records,” David says, “which takes a lot of time, because it’s about the long-term, not just the open-and-shut part of the case. But as a D.A., I feel I should take active steps to stop prosecuting folks who are just trying to get jobs, and these certificates and the other new options, I think, are a way of stopping the endless prosecution of job seekers.” But in the end, says Jacobs, even with robust information campaigns, certificates are “not a magic bullet.” “If everyone gets a certificate,” he says, “then the certificate has no credibility, and employers won’t respect it. So we can’t give certificates to people who don’t deserve one.” But the hard truth, Jacobs says, is that a considerable fraction of people with criminal histories do not deserve a certificate, because they “are still struggling with drug addiction, mental illness, and tremendous deficits. They are not rehabilitated to the point of deserving a certificate, but they do deserve our help.” In other words, rehabilitation for most ex-offenders requires actually working with them while they are being rehabilitated, not just rewarding them afterward if they can do it on their own. “Finding a route back to where some of these people have never been,” says Jacobs: “That requires more than just a certificate.”     [1] Over 80 percent of employers run criminal background checks, according to the Society for Human Resource Management. [2]  My Brother’s Keeper initiative is a collaboration between the White House and local businesses, foundations, and cities, aimed at creating more jobs and civic opportunities for young men of color [3] In 2012, 600,000 job applicants received inaccurate FBI background checks. For these reasons, Jacobs argues, ex-offenders are better off if they are equipped with an affirmative document, like a certificate, with which they can respond when employers inevitably find something damning on the Internet. [4] The right to counsel is not guaranteed when there is no active criminal prosecution, which is why civil legal aid lawyers, not criminal defenders, are responsible for helping people with these certificates. [5] The Second Chances program is part of the nationwide IMPACT Project, a project inspired by Vice President Joe Biden to encourage pro bono lawyers to work more closely with legal aid lawyers.     Read more

Georgia becomes first state in South to ban the box

Goergia Governor Nathan Deal has signed an executive order making Georgia the first state in the South to ban the box in public employment.  As reported on the “Inside Politics” blog of the Atlanta Journal-Constitution, “Job seekers applying for work with the state of Georgia will no longer need to disclose prior criminal convictions on their initial applications.” The order provides that this new policy “will allow returning citizens an opportunity to explain their unique circumstances in person to a potential employer.” The order requires state agencies to offer qualified applicants the chance in a follow-up interview to “contest the content and relevance of a criminal record” and provide information that demonstrates rehabilitation. It carves out exceptions for those seeking “sensitive governmental positions” in which a criminal history would be an immediate disqualification. That includes jobs such as prison guards or security officers. The initiative was recommended by Deal’s criminal justice reform council in January 2014. The council’s report said that the question asking applicants to report a criminal record on an initial employment application is a barrier to employment that could exclude individuals from consideration even if they are qualified for the job and the conviction has no bearing on the work.  The council urged instead a requirement that the applicant disclose any criminal history during a face-to-face interview with the hiring agent. Deal has long suggested he would sign an order banning state agencies from including the question as part of broader criminal justice changes aimed at helping released inmates transition more smoothly back into society. “If they can find employment, if they can find a place to live, I believe many of them will work hard to earn their place in society,” Deal said in an April 2013 speech outlining the next phase of his criminal justice reform plan. Georgia joins 13 other states that have adopted a ban-the-box policy, including New Mexico, Delaware, New Jersey and Minnesota.  While the City of Atlanta has had a ban-the-box policy since last fall, the state-wide order makes Georgia the first state in the South to implement the initiative. Read more

New York certificate scheme found inaccessible and ineffective

  The certificate system for restoring rights after conviction in New York no longer serves its intended purposes, according to an investigation by City Limits.  The problem is that Certificates of Relief from Disabilities (CRD) are supposed to be a means to rehabilitation for people sentenced to probation, but the judges authorized to issue them see them (in the words of one public defender) “as a gold star, as a thing you get after you’ve been rehabilitated.”  The Parole Board appears similarly reluctant to issue Certificates of Good Conduct (CGC) to people leaving prison, even after a waiting period. The requirement of proof of rehabilitation as the price of a certificate has created what the City Limits investigation describes as “a catch-22”:   A conviction can bar someone from public housing. It can keep them from getting professional licenses—such as the ones required to direct funerals, or be a security guard or a home health aide, among many others. And employers stigmatize people with convictions, making it hard for them to get jobs.  These are the problems certificates were created to remedy, but also the problems people often have to surmount before they’re deemed worthy of one. When Governor Hugh Carey approved the two-track system in 1976 he declared that “Providing a former offender a fair opportunity for a job is a matter of basic human fairness, as well as one of the surest ways to reduce crime.”  But apparently this animating spirit of the law has been all but forgotten. For years New York was the only state to offer relief from collateral consequences as early as sentencing, and was hailed as a model for other jurisdictions.  Indeed, 10 years ago advocates urged the Connecticut legislature to implement reforms modeled after New York’s law.  Now it seems New York could take a lesson from its neighbor to the East, whose recently revised relief scheme provides early targeted relief to aid rehabilitation, and fuller recognition of rehabilitation some time later. Part of the problem is that New York’s system tries to do too much with a single certificate. That is, both certificates have essentially the same legal effect, except that one (CRD) is for probationers with no prior felonies, and the other (CGC) is for all others.  In contrast, the two-stage relief process Connecticut has adopted addresses both reentry and full restoration, similar to the Uniform Collateral Consequences of Conviction Act adopted in Vermont, and is conceptually and functionally preferable to New York’s two-track certificate system. The clear distinction in function between early and later relief in Connecticut makes it easier for each to fulfill its assigned role.  New York’s system is coceptually muddled and therefore functionally ineffective. The Connecticut system also avoids the problem identified by City Limits that more liberal issuance of certificates to facilitate reentry at an early stage may water down their value later on: “if more people got certificates as a matter of course, it could end up undermining the idea that they show that someone is rehabilitated.” The City Limits investigation also found that certificates are issued rarely because few New York lawyers and judges know about them: Roland Acevedo, a lawyer who’s sued employers for discriminating against people with criminal histories, says lawyers are often as unaware about certificates as the people they represent. He adds that some judges, despairing of a defense lawyer’s ignorance, will suggest to the lawyer that they apply for a certificate for their client—that is, apply to the very judge suggesting that they apply.   “A lot of lawyers don’t know so they don’t ask,” Acevedo says. “It’s amazing how many people don’t know this law.” This is not to say that New York certificates don’t work in certain cases, but those cases are likely to involve capable lawyers with clients who know exactly what they want: But for those that do [know about certificates], Certificates can be powerful. After getting convicted of tax evasion back in 2010, the Ciprianis were in danger of losing the liquor licenses that made their restaurants possible. But the family, “whose lawyers are undeniably more talented than their cooks,” as the New York Observer put it, got a Certificate of Relief at their sentencing, which ultimately allowed them keep the licenses. But lawyers say that rarely happens for the average person.     Read more

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. In his opinion pieces, Professor Jacobs argues that private employers should not be compelled by government to “ignore job applicants’ criminal records,” or “subordinate their own organizational and financial interests by adopting a pro-ex-offender employment policy.”  Having set up these straw men, he proceeds to attack them by arguing that employers actually have legitimate business-related reasons for refusing to employ people with a criminal record.   To make his case, he marshals an army of stereotypes, generalizations, and non sequiturs.   Consider this paragraph: A rational employer wants the best qualified and motivated workforce at a particular price, not a minimally qualified workforce. While an employer may be hiring for a particular job, it cannot be faulted for aiming to hire individuals who can move into other positions if and as needed and to be promotable in due course. Therefore, the job applicant’s honesty, reliability and self-discipline will practically always be relevant, indeed extremely important. Likewise, the relevance of a particular conviction to a particular position will often be beside the point. While it is hard to take exception to the first three sentences, the concluding “Likewise” sentence reveals their barely concealed message:  People with a criminal record are generally less promotable, less honest, less reliable, and less disciplined than people without one, so it is reasonable for an employer to refuse to employ any individual with a record without regard to whether “a particular conviction [is relevant to] a particular position.”  In effect, he is willing to assume for the sake of efficiency that the undesirable traits of some members of the class (a class that, by the way, includes 25% of all adult Americans) are shared by each individual member, and act on that basis. His position is simple: Private employers should have unlimited discretion to reject people based on criminal record because this makes good business sense.  And because it makes good business sense, it is “not immoral.”  This reasoning is grounded in a libertarian ideology that values private autonomy over the public good.  It is premised on assumptions that are deeply unfair to people who have worked hard to overcome the stigma of a criminal record. He even goes so far as to propose that “it could be persuasively argued that public policy should favor treating a clean criminal record as a plus factor for public and private hiring, a kind of benefit to reward and encourage good citizenship.” Professor Jacobs makes liberal use of rhetorical questions (“Is it wrong to make a moral judgment about a person who tortured animals or brutalized a child or old man?”) and unfounded assertions (“Today’s burglar was yesterday’s drug dealer. The person who today was charged with assaulting his girlfriend yesterday used a stolen credit card.”) to paint a one-sided picture in which the possibility of rehabilitation seems remote.  Innuendo and stereotype are poor substitutes for evidence and nuance, particularly when the “research” on which they are said to be based is not identified (and may not exist).  In confining his examples to the margin, Jacobs would consign everyone with any kind of criminal record to an outlaw class of career criminals who are beyond redemption. Professor Jacobs’ evident beliefs about the immutable negative character traits associated with having a criminal record make me wonder if he has had any meaningful contact with people who have turned their lives around after conviction and become productive members of society.  He discounts the fact that good people sometimes make bad choices, that most people are capable of improvement given the right encouragement, and that the passage of time is a significant factor in evaluating the likelihood that a person will repeat past mistakes.  Surely it makes better public policy sense to create an environment where change is encouraged, than to license the blacklisting of an entire class of people without regard to individual circumstance. The extreme nature of Jacobs’ position becomes even more apparent when he defends discrimination based on criminal records that are inherently unreliable, like those of arrests that were never charged, charges that resulted in acquittal, or cases diverted out of the justice system entirely.   As he sees it, it is perfectly reasonable (and more efficient) for an employer to assume that anyone arrested for a crime is in fact guilty of that crime:  “If an employer can base its hiring decision on a previous employer’s suggestion or hint that the job applicant had been dismissed for dishonesty, why not on an arrest that was dismissed or even resolved by an acquittal?”  Moreover, “[i]t would be a mistake to infer that an arrest that did not lead to a conviction was improper” because “[t]he most likely reason for dismissal of charges is the victim’s unwillingness to testify.”   Given what we know about police practices, it would be at least as mistaken to infer that an arrest that did not lead to a conviction was proper, and a failure to charge likely indicates insufficient evidence of guilt. Professor Jacobs claims that he wants to see private employers embrace more expansive hiring policies, he simply doesn’t believe that they should be legally required to do so.  But this claim is disingenuous.  His position is based not on the principled ground of freedom of contract, or even on potential exposure to negligent hiring lawsuits, but on substantive judgments about the likely performance in the workplace of people with criminal records.  If this is the real reason, it is hard to see why his objections should be confined to the private sector.  Why should any employer – why should we as taxpayers – want to pay a salary to people who are “dishonest, unreliable and un-self-disciplined?” If Professor Jacobs’ opinions were fact, I wouldn’t want to hire myself. There is another approach to these issues, and one that thankfully appears to be prevailing in policy circles when discussing how to deal with the massive problem of criminal records produced by three decades of over-criminalization.  That approach holds that social policy should be based on facts not stereotypes, that the legal system should embody individualized fairness, and that moral values should derive from something beyond the marketplace.  I share those beliefs. I hope to find that Professor Jacobs’ distillation of his book chapters for the Volokh blog produced a distorted result, and that his bottom line position is a more balanced one. I have ordered a copy of his book and will soon see. Read more

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. Professor Jacobs claims that Title VII of the landmark Civil Rights Act of 1964, the core federal law prohibiting race discrimination in employment, has been somehow misconstrued to limit an employer’s consideration of criminal records for hiring decisions. He states that the application of Title VII to employer consideration of criminal records “remains confusing and unsettled.” He is wrong. Title VII prohibits employers from excluding applicants for any reason if that results in disproportionate exclusion of minorities from the workforce, unless there is a “business necessity” for the practice as applied. Since at least the 1980s, overbroad employer policies that reject people with criminal records – often across-the-board bans on people with convictions or even arrests – have been found to violate Title VII under this disparate impact theory, given the disproportionate criminal justice involvement of minorities.  Indeed, the first policy guidance on criminal records from the Equal Employment Opportunity Commission (EEOC) in 1987 was under the signature of current Supreme Court Justice Clarence Thomas, who has seldom been admonished  for his broad interpretations of Title VII. That EEOC policy statement identified three bedrock issues for employers to evaluate when considering criminal records that remain vital today: the length of time since the conviction; the seriousness of the crime; and the relationship between the offense and the job at stake.  These three factors help the employer determine whether or not the job applicant’s record indicates risk to the employer. Throughout his posts, Professor Jacobs indicates that employers are being forced to “ignore” criminal records. In fact, no one suggests that criminal records must be ignored, including us. But no one knowledgeable about Title VII contends that employers have unfettered discretion to consider any and all criminal records. Stated differently, blanket disqualifications of people with criminal records violate the law. Professor Jacob repeatedly assumes that having a criminal record is a proxy for being a poor employee. Do people with criminal records tend to assault people on the job? Steal from the workplace?  Come late to work?  Research tying having a criminal record to any kind of job performance simply does not exist. Indeed, what recent social science research does prove is that a criminal conviction does not even necessarily indicate that a person has a heightened risk for committing a crime in the future. As time passes without commission of a new crime, an ex-offender’s risk of committing another crime decreases, to a level of risk comparable to the rest of the population. Which highlights another important point: both people who have been convicted of crimes and those who have not may commit crimes in the future. A background check is simply not a silver bullet for identifying employees who may be trouble. Finally, people with criminal records would be shocked to hear that Professor Jacobs is arguing against what he calls a “pro-ex-offender employment policy.” Truly, there is no affirmative action for people with criminal records.  There is rejection, day after day, year after year, of people who are extremely motivated to work hard and justify an employer’s faith in them. Title VII and other laws simply try to give them a shot at proving themselves. As many as one in three American adults has a criminal record. We cannot allow such a large percentage of the population to be written off as unfit for our workforce, especially when many of them have very old or minor convictions. The employment disenfranchisement of people with criminal records is the major civil rights issue of this generation – the sort that Title VII was enacted to redress. Read more