Category: Policy

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. 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.” The St. John’s law school application form asks whether the applicant has ever been “charged with, pleaded guilty to, or been found guilty of any crime, offense or violation” except for minor traffic violations. The school’s lawyer argued that Powers caused his own problems by not being truthful when he applied for admission — though he conceded that if Powers had disclosed the more serious distribution charges “he would have been denied from the outset.” The judges expressed concern that people like Powers should have to face the ramifications of youthful criminal conduct later in life despite managing subsequently to lead law-abiding lives.  Powers’ record was expunged under New Jersey law shortly after his admission to law school. Chief Judge Lippman thought St. John’s should have taken into account the subsequent expungement in deciding what if any action to take against Powers after the fact: We think about young people whose lives are ruined because of a single mistake at one point in their life and where policy makers say, “Not right. One offense, so many years ago, whatever age, whatever the statute is. We want to make sure that the young person’s life is not ruined. Expunge the record.” (Note that New York law does not authorize courts to expunge adult convictions, though New Jersey does.)  Judge Eugene Pigott Jr. wanted to know why Powers was not given a hearing before the school took action against him: I would have thought there should have been a hearing somewhere where these people would have come in and said, “Yeah, this the worst guy we ever saw and thank God St. John’s was able to catch him before he went to the Second Department and got admitted as an attorney.” Powers’ attorney, Roland Acevedo, called his client a “poster child” for rehabilitation, a claim that several of the judges appeared to agree with.  Acevedo himself had a past conviction for armed robbery when he was admitted to the bar in 1997, and he often represents lawyers and others who seek to practice their professions despite a criminal record. When people make efforts to change behavior, such as Powers, such as I did by getting treatment and then getting educated, that should amount to something in people’s eyes,” said Acevedo, a graduate of Fordham University School of Law. “Everybody is entitled to a second chance, but when people show they are entitled to it by doing something that is not easy in any arena, that should be worth something, especially in the case of Mr. Powers.” In 2013, a 3-1 Appellate Division, Second Department, panel upheld the law school’s actions.   See 110 AD3d 888.  While the majority said it did not consider the penalty imposed to be “shocking to one’s sense of fairness,” the dissent thought it excessive.  At the least, Powers should have been dismissed so that he could transfer with the credits earned in his first three semesters. In an amicus curiae brief filed in support of Powers, several New York legal services groups told the court that Powers had truthfully disclosed his criminal record to St. John’s, arguing that the question on the application form was ambiguous. They urged the judges to prevent him from being penalized because of the message it would send to their clients who have faced criminal charges in the past. “If an institution of higher education, or by extension an employer or housing agency, can require applicants to answer ambiguous questions about their criminal conviction histories and then, at any time after granting appeal, penalize them based on the institutions’ misinterpretation of their responses, our clients have no defense against arbitrary and discrminatory action,” the groups said in a brief prepared by Community Service Society attorneys Judith Whiting, Kimberly Westcott and Paul Keefe. Other groups joining the brief were the Bronx Defenders, Education from the Inside Out Coalition, the Legal Action Center, the Legal Aid Society, Legal Services NYC, MFY Legal Services, the Osborne Association and Youth Represent. The court is expected to hand down a ruling in March.   Read more

Federal agencies urged to adopt fair hiring policies

The 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). The paper urges presidential action to implement the recommended reforms through an Executive Order on federal contracting, and a Presidential Memorandum directed to federal agencies.  It notes some legislation pending in Congress that would improve opportunities for people with a record, including the REDEEM Act co-sponsored by Senators Rand Paul and Cory Booker.  But changes in the law are not necessary to implement the report’s recommendations affecting federal employment practices. A Fair Hiring Platform NELP proposes an ambitious fair hiring platform that, if implemented by federal employers and contractors, would instantly transform the national landscape.  The Executive Order the report recommends would require federal contractors to take the following steps to increase opportunities for people with a criminal record: •  Remove the criminal history question from job applications and postpone the background check until a conditional offer of employment is made (i.e., “ban the box”), except where the specific position requires a national security clearance; •  Consider only “job related” convictions and take into consideration the age of the offense, the nature of the offense, and countervailing evidence of rehabilitation, as required by the EEOC; •  Refrain from asking about an individual’s arrest record, expunged offenses, dismissals, or juvenile offenses; •  Provide a written notice to the individual when an unfavorable determination is made, explaining the reason for the decision (including the disqualifying offense); • Provide strong notice and appeal rights for workers to challenge unfavorable determinations; and • Strictly comply with the background check requirements of the Fair Credit Reporting Act. In addition, federal agencies should be made subject to stricter regulation where their own hiring policies are concerned.  Specifically, a Presidential Memorandum should direct federal agencies “to correct the prejudicial aspects of the hiring standards and procedures regulating criminal background checks of applicants for federal employment,” and “embrace the role of a model employer.”  The report suggests that the appeal and waiver procedural protections mandated by the Maritime Transportation Security Act’s port-worker background check program, whose adoption NELP was instrumental in securing in the months after 9/11 and whose administration by the Transportation Security Administration NELP has monitored ever since, could be a model for federal agencies’ own employment policies and practices.  Specifically, the Presidential Memorandum should include the following key components: • The Office of Personnel Management (OPM) should revise the federal “suitability” regulations to comply fully with the protections of Title VII of the Civil Rights Act of 1964. Instead of the discretion now allowed to consider the age of the offense, evidence of rehabilitation, and other mitigating factors, the agencies should be required to do so; • To promote greater transparency and accountability, all federal agencies should report their suitability criteria to OPM and verify their compliance with the EEOC guidelines. Agencies should also report the appeal procedures that apply to each of the distinct categories of workers, including federal contract workers. Based on the information collected, OPM should issue a report to the president evaluating the findings and making recommendations for federal agency reform; • OPM should eliminate the criminal history question from the “Declaration for Federal Employment” form, and federal agencies should strictly follow the OPM standard policy that they postpone the background check until the end of the hiring process; • All federal agencies should be directed to evaluate the “collateral consequences” of federally mandated criminal background checks for employment; • Federal agencies should adopt the appeal and waiver procedures modeled on the Maritime Transportation Security Act’s port-worker background check program to all federal agency licensing and employment certification mandates; • The FBI should be directed to comply with existing regulations that preclude the reporting of non-serious offenses and to take additional steps to clean up the FBI background checks for employment, which severely prejudice the employment prospects of people of color; • The Consumer Financial Protection Bureau should publish regulations addressing the numerous routine violations of the Fair Credit Reporting Act by the background screening industry and employers, including the erroneous reporting of expunged and sealed cases; • Federal agencies should prepare options to require “targeted hiring” of people with criminal records on federally-funded projects and provide additional funding for “transitional jobs” that serve the needs of people who have been recently released from incarceration; • Federal agencies should actively promote and enforce the new federal civil rights guidances that strictly regulate the use of criminal history information by private – and public – sector employers and federally funded workforce programs. The bold reform agenda recommended by the NELP report seems a lot to expect of this Administration in its waning months.  However, we note that one person who has indicated an interest in assuming the presidency in 2017 already has a track record of implementing such a program, albeit on a somewhat smaller scale. In 2006 Governor Jeb Bush issued Executive Order No. 06-89, based on the report of a task force he had established, which directed each agency in the State of Florida 1) to conduct a comprehensive inventory of their employment disqualifications affecting people with convictions; 2) to report to him the reasons for any automatic disqualifications and any available procedures for waiver; 3) to eliminate or modify such disqualifications that are not tailored to protect the public safety; and  4) to create case-by-case review mechanisms to provide individuals the opportunity to make a showing of their rehabilitation and their qualifications for employment.  Governor Bush asked his executive agencies to “assume a leadership role in providing employment opportunities to ex-offenders by reviewing their employment policies and practices and identifying barriers to employment that can safely be removed to enable ex-offenders to demonstrate their rehabilitation.”  He also encouraged other public entities and private employers, “to the extent they are able, to take similar actions to review their own employment policies and provide employment opportunities to individuals with criminal records.” Might federal fair hiring become an issue in the coming presidential campaign? Read more

The Eternal Criminal Record

The 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. For over sixty million Americans, possessing a criminal record overshadows everything else about their public identity.  A rap sheet, or even a court appearance or background report that reveals a run-in with the law, can have fateful consequences for a person’s interactions with just about everyone else. The Eternal Criminal Record makes transparent a pervasive system of police databases and identity screening that has become a routine feature of American life. The United States is unique in making criminal information easy to obtain by employers, landlords, neighbors, even cyberstalkers.  Its nationally integrated rap-sheet system is second to none as an effective law enforcement tool, but it has also facilitated the transfer of ever more sensitive information into the public domain.  While there are good reasons for a person’s criminal past to be public knowledge, records of arrests that fail to result in convictions are of questionable benefit. Simply by placing someone under arrest, a police officer has the power to tag a person with a legal history that effectively incriminates him or her for life.   In James Jacobs’s view, law-abiding citizens have a right to know when individuals in their community or workplace represent a potential threat.  But convicted persons have rights, too.  Jacobs closely examines the problems created by erroneous record keeping, critiques the way the records of individuals who go years without a new conviction are expunged, and proposes strategies for eliminating discrimination based on criminal history, such as certifying the records of those who have demonstrated their rehabilitation. We will be reviewing this book in some detail in a few weeks. Read more

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

In 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. Current SBA regulations  The SBA guarantees against default certain loans made to small businesses by qualified private lenders under three different programs: general small business loans under the 7(a) program, real estate and equipment loans under the 504 program, and the microloan program.  The cap on 7(a) and 504 loans is $5 million, while the cap on microloans is $50,000.  Qualification standards differ under the three programs, but a core set of eligibility standards at 13 CFR § 120.110 applies to all of them. The core eligibility standards in § 120.110 do not generally bar loans to people with a criminal record (though the required “statement of personal history” asks applicants if they have ever been convicted of any criminal offense other than a minor vehicle violation, and advises that a conviction will not “necessarily” be disqualifying). However, people who are in prison, on probation or on parole, or who have criminal charges pending, are absolutely barred from obtaining a loan under any of the SBA programs. In addition, if an applicant employs individuals who are still under sentence, this may also result in ineligibility, since the SBA will not make a loan to any business with an ineligible “associate.”  An “associate” is any officer, director, owner of more than 20 percent of the equity, or a “key employee.”  A key employee is defined as one with “critical influence in or substantive control over the operations or management” of the business. See 13 CFR § 121.103 (g).  Accordingly, the SBA regulations don’t just render probationers and parolees ineligible to receive loans under the programs; they also make them ineligible for employment in significant management or operations positions in any business funded by SBA loans. The SBA restrictions on probationers and parolees are not mandated by or specifically authorized by its governing statutes.   The current eligibility restrictions pose a signficant barrier to reentry and integration, and affect a significant portion of the population. In 2013, 4.8 million Americans were serving probationary sentences or on parole (which in some jurisdictions can last many years). Because employment opportunities for this population are already limited, they frequently decide to open their own business. The SBA regulations effectively make it difficult for anyone still under supervision to make opportunities for themselves and create jobs for others. The number of business and employment opportunities limited by the SBA regulations is not insignificant:  In 2014 alone, the SBA made over 12,000 loans to small businesses under the 7(a) and 504 programs. A large number of businesses are dependent on SBA loans, which means a large number of closed doors for people currently serving a sentence. Importantly, it also means that a good number of people stand to lose their jobs if they are convicted and sentenced to probation while working in a key position for an employer dependent on SBA loans. The proposed rule change  The change in the SBA regulations would, for the first time, allow probationers and parolees to qualify for the relatively small-dollar loans available under the microloan program. Equally important, it would allow them to serve in key management or operational positions in businesses supported by microloans. The change is specifically intended to reduce returns to prison by enabling individuals who tend to have difficulty finding steady employment to start their own businesses. See 79 FR 14617, proposing to amend 13 C.F.R. § 120.707(a). Individuals under supervision for crimes involving fraud or dishonesty would remain ineligible under the microloan program, and a person convicted of an offense against children would be ineligible for a loan to a non-profit child care center. This change will be good news for many.  But it seems unnecessarily conservative, considering the SBA’s asserted interest in encouraging reentry and rehabilitation. If expanding employment options for persons under sentence is something the SBA truly wants to do, it needs to look beyond its microloan program to relax the restrictions applicable to employees as well as borrowers under the SBA’s larger 7(a) and 504 loan programs.  Businesses supported by those larger loans are more likely to provide high-level employment opportunities than those supported by smaller microloans.  They are also more likely to have internal controls in place to guard against fraud or malfeasance, giving confidence to lenders. Moreover, the current SBA regulations are anomalous in imposing no bar to those convicted of serious financial crimes who have completed their sentences, while restricting those on supervision for what might be a minor offense with no adverse implications for business dealings.  It is hard to see how barring a person serving probation for a reckless driving conviction, for example, protects the SBA or the public. Perhaps one practical reason for restricting loans those under sentence has more to do with business calculus than with fear of criminality: Probationers and parolees who violate the terms of their supervision are subject to incarceration, and people who are incarcerated are likely to have a tough time paying back their SBA-guaranteed loans. Those who have already been released from supervision, even those convicted of serious financial crimes, don’t pose such a specific risk.  But if this may be a reasonable justification for barring borrowers on supervision, there are no similar business reasons for holding their employees to the same standards. Conclusion The changes to the regulations proposed by the SBA would allow certain probationers and parolees to qualify for microloans for the first time, but would leave in place substantial restrictions for people under sentence in other SBA loan programs.  If the SBA is concerned about encouraging reentry, then it needs to go further than simply expanding borrower eligibility under its microloan program.  While giving probationers and parolees access to microloans -– and to employment with microloan borrowers — will certainly allow some to reestablish themselves as productive citizens, the real employment opportunities are with businesses funded under the larger 7(a) and 504 programs, for which probationers and parolees would remain absolutely barred. These businesses are also likely to be better protected against employee fraud or malfeasance.  It is hard, therefore, not to see the proposed rule as a token gesture rather than a broad effort to open opportunities for those under supervision in the community. At the same time, it is encouraging to see that reentry is an issue that at least one federal agency is giving thought to.  Perhaps other federal agencies will follow suit. 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. Waiting periods   According to its preamble, the ostensible purpose of the new Louisiana law is to “to break the cycle of criminal recidivism, increase public safety, and assist the growing population of criminal offenders reentering the community to establish a self-sustaining life through opportunities in employment.” See Art. 971. The law states an aim to provide relief from post-9/11 restrictions on TWIC credentials necessary to work in ports or on vessels under the federal Maritime Transportation Security Act of 2002.  Id. However, its eligibility waiting period seem inconsistent with these purposes: A felony record may not be expunged until ten years after completion of sentence, which itself may be many years after leaving prison.  Such a long waiting period is not likely to do much to “break the cycle of recidivism” or address the issues facing those “reentering the community” from prison. Even misdemeanants have to wait five years after completion of sentence to apply. Moreover, because the federal MTSA only restricts eligibility for TWIC credentials only for a ten-year period for most offenses, the new law does nothing to ease restrictions on maritime employment. By the time a person with a felony conviction becomes eligible for expungement, their TWIC eligibility has already been restored. The waiting periods for felony expungement under the three other comprehensive new expungement laws are shorter — though still long enough to make us question their utility in reducing recidivism or assisting reentry.   Eligibility for felony expungement in Indiana is three to five years years from completion of sentence or eight years after conviction (unless the prosecutor agrees to a shorter period) and five years after conviction for a misdemeanor.  In Minnesota the waiting period for expungement of all eligible felonies is five years after completion of sentence (two years for misdemeanors).  Arkansas allows “sealing” of felonies five years after completion of sentence, though misdemeanors are eligible for sealing as soon as the sentence is completed. (Compare the relief available as early as sentencing under the Vermont Uniform Act and Colorado’s new drug expungement laws.) A Louisiana record may not be expunged if the person has been convicted of a crime during the waiting period, or has charges pending. The same is true in Indiana and Minnesota. Like Minnesota, Louisiana places no limit on the number of felonies that may be expunged during a person’s lifetime, though in Louisiana a felony may only be expunged once every 15 years.  In Indiana, a person may seek expungement of multiple offenses through one expungement petition, but only one petition may be granted in a person’s lifetime. In Arkansas, an individual may only “seal” one felony conviction. Eligible offenses Unreasonable waiting periods aside, the Louisiana law takes a relatively expansive approach to eligibility, especially compared to the limits Arkansas and Minnesota place on the types of felonies that are eligible for relief.  Under Louisiana’s law, the only felonies that cannot be expunged are those for violent offenses, sex offenses, crimes against minors, and drug trafficking offenses (mere possession with intent to distribute is eligible for expungement). The only other jurisdiction with comparable scope is Indiana, which has similar limitations on violent offenses and sex offenses, but places no limit on the types of drug convictions that may be expunged and does not bar expungement of crimes against minors. Minnesota allows expungement of a list of enumerated minor non-violent felony offenses, and only minor drug distribution offenses may be expunged (most possession-only offenses are eligible).  Arkansas limits sealing to Level C and D felonies. Standards Under Louisiana’s new law, expungement is mandatory if a person meets all of the eligibility requirements.  This is also the case in Indiana for misdemeanors and minor felonies, though not for more serious crimes.  Minnesota and Arkansas require a judicial finding based on a balancing test.  In Minnesota, a felony can only be expunged if the court determines that the benefits of an expungement to the person seeking it are commensurate with concerns of the public and public safety, and with the burden on courts and public authorities to issue, enforce, and monitor an expungement order. In Arkansas, an order to seal records depends on a court’s determination that it is “in the interest of justice” based on consideration of a menu of factors. The fact that an expungement is mandatory in Louisiana if the eligibility requirements are met also means that expungement may be granted without a hearing. A hearing must be held only if the prosecutor or law enforcement objects to the expungement request on grounds of ineligibility. A hearing is generally required in Minnesota and Arkansas. Use of expunged records  Where Louisiana’s law looks most different from the other three laws is in its relatively limited legal and practical effect insofar as employment and licensing is concerned. Expungement of a felony conviction record in Louisiana essentially does two things: 1) It prohibits the state from disclosing records to the general public (as in almost all other states, the record remains available to law enforcement, prosecutors and courts); and 2) it relieves a person of any obligation to disclose the record, or the fact of the record’s expungement. The Louisiana law does not have a restorative effect on any rights lost (most basic civil rights are otherwise restored automatically upon completion of sentence), nor does it restrict the use of expunged records by licensing authorities or employers.  It has no effect on sex offender registration and does not restore handgun rights (long gun rights are not lost) — except, surprisingly, in domestic violence offenses. Though Louisiana’s law generally prohibits the state from releasing expunged records to the public, the law provides some significant exceptions. Most notably, it specifically allows disclosure of expunged records to a number of specified licensing boards, including those governing health care, the insurance industry, social work, and the bar, all of which are authorized to consider criminal records when making licensing determinations. It also allows disclosure for the purpose of screening applicants for licenses and employment involving the care or supervision of children.  Accordingly, while Louisiana’s law permits individuals whose records have been expunged to deny that they have been convicted, the range of permissible disclosures by the state qualifies this benefit. The other three states also allow expunged records to be used as predicate offenses, and for sentencing and sex offender registration purposes.   However, all three states restrict how an expunged record may be used by private and public entities in evaluating eligibility for employment, licensure, and other opportunities.  Indiana’s law is by far the most expansive, prohibiting employers, licensing boards, and anyone else from discriminating against a person based on a record that has been expunged, and even from asking about such a record.  Minnesota takes a similar approach by prohibiting discrimination, but only as it applies to public employment and licensing (with a large and growing list of excepted employers and licensing boards). Under Arkansas’s Criminal Offender Rehabilitation Act, a licensing board may not disqualify a person based on an “expunged” record — though, since Arkansas’ new law now styles what was once known as an “expungement” a “sealing,” it is unclear what affect this provision currently has.  Indiana and Minnesota additionally encourage hiring of those with expunged records by prohibiting admission of expunged convictions as evidence of negligence in negligent hiring actions. The Louisiana law contains no analogous provisions. Third party providers of records The Louisiana law does make some attempt attempt to addresses the problem posed by third party dissemination of expunged records, but it does so in a way that is likely to be ineffective in practice. The law prohibits private providers of criminal records (other than news organizations) from disseminating expunged records, but only if they have been put on notice by the subject of the expunged record. This notice must be sent by certified mail and contain a certified copy of the expungement order. Until a particular provider receives notice from the recipient of an expungement, the provider is entirely free (at least under state law) to disseminate the record to anyone, even if they have other notice it has been expunged. To ensure that expunged records do not reach a potential employer, a person would have to give notice to each and every private provider out there. This a practical impossibility, of course, but, even if it could be done, it would be ineffective because the only providers obligated by receiving notice are those that are not governed by the federal Fair Credit Reporting Act (FCRA). Considering that a vast majority of private providers of criminal records are subject to FCRA, it is hard to see why this provision was included at all. The Indiana and Minnesota laws offer significantly greater protection against irresponsible private providers.  Here again, Indiana’s law is the stronger, placing a blanket prohibition on dissemination of expunged records by “criminal history providers.” This prohibition is unqualified: Dissemination is prohibited whether the provider has notice of it or not, putting the onus on the provider rather the individual. The Minnesota law occupies a middle ground, prohibiting dissemination by a “business screening service” if the service has notice of the expungement from any source.  Arkansas’s law does not address the issue of third party providers of records. Conclusion Louisiana’s new expungement law represents a significant and commendable move toward giving those with criminal records a chance to regain opportunities lost as a result of conviction. However, although it expands eligibility for expungment to a relatively large number of people, and makes relief mandatory upon a determination of eligibility, its benefits are limited by long waiting periods and limited legal effect. If Louisiana is serious about expanding employment opportunities to those with felony convictions, it would do well to enact measures limiting dissemination and use of expunged records by employers and other third parties, as Indiana, Minnesota, and (to a more limited extent) Arkansas have done.  Until expungement in Louisiana is more than a mechanism to limit official disclosure of records, those who might otherwise be eligible to apply for it may wonder whether it is worth the trouble and expense.   * Louisiana does have a quirky law from 1981 that permits the Bureau of Criminal Identification and Information to remove the records of anyone over the age of 60 “from active dissemination to eligible agencies” so long as the person hasn’t been arrested for 15 years. The removal isn’t mandatory, though, so it offers little comfort to anyone young or old.   Read more