Category: Policy

Clean slate remedies help overcome collateral consequences

Eliza Hersh, director of the Clean Slate Clinic at the East Bay Community Law Center and one of CCRC’s contributing authors, has co-authored a most persuasive op ed in the LA Times, which we are pleased to reprint here in full.   Should a shoplifting conviction be an indelible scarlet letter? Not in California What exactly is the appropriate punishment for someone who commits a low-level, nonviolent crime? Should a conviction for minor drug possession, shoplifting or writing a bad check result in a lifetime of stigma and denied opportunities, or do people with criminal records deserve a second chance? In November, California voters took a clear stand on these issues when they passed Proposition 47 and reclassified eight nonviolent felonies to misdemeanors for people without prior serious convictions. Proposition 47 allows for the resentencing of many who have been convicted of such crimes, reducing the amount of time they serve, lowering state and county incarceration costs and chipping away at decades of overly punitive criminal-justice policies. But this common sense reform alone won’t necessarily change the lifelong punishment experienced by many people with a criminal record. Today, a criminal record — even for a low-level misdemeanor or infraction — acts like an indelible scarlet letter. Until relatively recently, employers, landlords and others rarely requested criminal records, which could be accessed only by sifting through physical files in a local courthouse. With the post-9/11 push for more background checks, the advent of online databases and the steep increase in the number of people with convictions, criminal records have become a serious barrier to employment, housing, education and other forms of civic participation for millions of Californians. New fair-chance hiring laws help reduce discrimination against people with criminal records by removing conviction history questions from initial job applications and postponing background checks until later in the process. But California has an additional remedy. Laws long on the books allow judges to dismiss old convictions, a recognition that people who have successfully completed their sentences should be free to rejoin society without disabling consequences. The dismissal remedy doesn’t erase the record completely, and it is not available in all cases, but it can restore rights and reduce barriers for many people. People who have successfully completed their sentences should be free to rejoin society without disabling consequences.- These dismissal laws, however, are obscure and complex. The process can require a lot of paperwork and a court appearance, or even multiple appearances in more than one county. As a result, far too many Californians remain saddled with convictions that are otherwise eligible for dismissal. The East Bay Community Law Center, a teaching law office affiliated with UC Berkeley School of Law, tries to address these problems. Since establishing its Clean Slate Clinic a decade ago, the center has helped several thousand people obtain record-clearing remedies with the aim of reducing the collateral consequences of convictions and lowering the risk of recidivism. Under the supervision of attorneys, law students interview the clinic’s clients, draft their declarations, prepare them for court hearings and, if necessary, later represent them in civil and administrative proceedings to redress unlawful discrimination in employment, housing and professional licensing. The process can be long and emotional. People with criminal records are grappling with painful episodes from the past and hopeful aspirations for the future. But the results can be equally rewarding. While Berkeley law students have been serving clean-slate clients, University of California researchers have been studying the results. We already know that clean-slate interventions increase a person’s ability to get a job and provide him or her with a profound sense of relief: No more skeletons in the closet. But the benefits go far beyond that: In surveys, focus groups and in-depth interviews, people who’ve had their records cleared express a sense of accomplishment (increased confidence and self-esteem), a sense of hope (a focus on the future) and a sense of agency (control over their lives). Significantly, the clean-slate process itself — not just the outcome — appears to create a kind of status enhancement ritual, or rite of passage, helping people move from their old life into a new one. Proposition 47 takes an important step toward addressing the consequences of mass incarceration in California. Tens of thousands of people will benefit from it. The Legislative Analyst’s Office estimates that the state and counties will each save hundreds of millions of dollars annually as a result of lower incarceration rates. But rebuilding lives and communities will not flow automatically from the new law. As we take additional measures to reverse the most damaging effects of our tough-on-crime policies, we will need to invest time and resources in clean-slate programs that help people with criminal records go through the challenging process of re-integrating into our families, communities and society. Read more

“Sex Offender Laws Have Gone Too Far”

We recently came across this five-part series on sex offender registries, written by three Yale Law School students and published by Slate.com.  It traces the recent history of registries since the passage of the Jacob Wetterling Act in 1994, examines some of the fallacies and flawed stereotypes underlying the expansion of registries in the past 20 years, and spotlights three areas in which the authors argue their growth has been especially unwise: more non-violent “outlier” crimes are covered; states are keeping people on registries for longer periods of time and making removal harder; and more harsh collateral consequences attach to those required to register. The series links to recent research reports, including from the Council of State Governments and the Center for Sex Offender Management, indicating that registries do little to add to public safety.  However, it concludes that it will take time for evidence-based, research-driven policy recommendations to change long-established practices, as long as public perceptions and political scare tactics dominate the legislative agenda. Meanwhile, those on registries are subject to humiliating and unsafe restrictions on where they can live and where they can go.  The situation in Miami attracted international attention a few years ago after pictures of dozens of homeless sex offenders living in squalid conditions under the Julia Tuttle Bridge went viral on the internet.  In response, Miami-Dade authorities imposed even stricter controls, shuffling the hapless band of homeless men around the city from street corners to parking lots to abandoned warehouses, and finally to a field beside an active railroad track with no sanitation facilities or other basic necessities, in a fruitless effort to avoid their coming within 2500 ft. of schools or other places where children congregate.  The ACLU has filed a civil rights lawsuit in federal court in Miami, challenging the county ordinance on due process and vagueness grounds, arguing that its enforcement leaves the homeless men “in imminent risk of physical harm from attack, exposure or disease.”  A press release accompanying the filing argued that complaint The squalid conditions make it extremely difficult for former offenders to find and maintain stable employment and regular psychological treatment, which are the only two factors proven to reduce the likelihood of reoffending. Decades of research show that housing restrictions like Miami-Dade’s have no impact on reoffending and are more likely to increase it. At some point public policy will catch up with research and basic humanity.  But evidently not yet, especially not in Miami. Read more

Indiana’s new expungement law the product of “many, many compromises”

In May of 2013, Indiana Governor Mike Pence signed into law what is possibly the most comprehensive and forward-looking restoration of rights statute ever enacted in this country.  Under the new law, courts are empowered to “expunge” most criminal records, after waiting periods keyed to the seriousness of the offense.  The effect of an expungement order varies to some extent according to the nature of the crime, but its core concept is to restore rights and eliminate discrimination based on criminal record in the workplace and elsewhere.  This new law has already resulted in relief for hundreds of individuals, due in large part to the proactive approach of the state courts in facilitating pro se representation. We recently had a chance to talk to the person primarily responsible for shepherding this law through the Indiana legislature, and his experience should be instructive to reform advocates in other states.  Jud McMillin, a conservative former prosecutor who chairs the House Committee on Courts and Criminal Code, might once have been regarded as a rather unusual champion of this unique and progressive legislation.  But in an age of bipartisan support for criminal justice reform, apparently anything can happen.   Rep. McMillin told us how he was able to persuade his colleagues in the legislature by careful groundwork, and overcome opposition from prosecutors and courts by making what he described as “many, many compromises.” One of the most important of those compromises was limiting use of criminal records rather than limiting public access to them, at least in the case of more serious offenses. Before letting Rep. McMillan describe in his own words how he secured passage of this relief scheme, here is a brief description of the law’s most salient features. (A more detailed description can be found here.)     All criminal records (except convictions involving serious violence, public corruption, and sexual offenses) are eligible for expungement from the court of conviction, after waiting periods ranging from one year (for non-conviction records) to ten years (for the most serious eligible felonies). After the court has issued an expungement order, records not resulting in conviction and records of misdemeanors and minor felonies are automatically sealed.  After a record is sealed, even a prosecutor may not access it without a court order. Expunged records of more serious convictions “remain public,” although they must be “clearly and visibly marked or identified as being expunged.”  However, all expungement orders similarly limit the use to which a criminal record can be put, as described below. Expungement may be granted by the court without a hearing unless the prosecutor objects.  Those filing for expungement of a conviction must pay the filing fees required for filing a civil action ($141), and this requirement may not be waived. Defendants are not permitted to waive the right to seek expungement as part of a plea agreement. A petitioner may seek to expunge more than one conviction at the same time, but may be granted expungement only once in his or her lifetime. If the first petition fails, there is a three-year waiting period before a person may reapply, and the only convictions expungeable are those in the original petition. It is unlawful discrimination for any person to refuse to employ or license a person because of a conviction or arrest record that has been expunged or sealed, and a person may not be questioned about a previous criminal record except in terms that exclude expunged convictions or arrests. Expunged convictions are not admissible as evidence of negligence in a civil action against a person who relied on the expungement order, and they may not be reported by credit reporting companies. The Attorney General may enforce the provisions relating to credit reporting companies through injunction and fines, and a private individual injured by a violation of these sections may recover damages, court costs and attorney fees. The Indiana courts have published a detailed explanation of the law and sample petitions for expungement that are tailored to the particular categories of eligible cases, to enable a person to seeking expungement without hiring a lawyer. * * * * * * * * * Here is our interview with Rep. McMillin: How did you get interested in the subject of criminal records? As a former prosecutor, and now someone who does some criminal defense work while serving in the legislature, I think I have seen the justice system from several sides.  Also, as a fiscal conservative it just makes practical sense to me that when somebody has served their court-imposed sentence there has to be a pathway back into society for them. Without this, we can’t expect them to become productive members of society.  The Indiana Constitution requires our criminal justice system to be based upon the principles of reformation and not vindication. I firmly believe that our expungement law moves substantially in that direction. How did you build support for the concept of expungement among your colleagues in the legislature? This was a process that played out over several years.  We proceeded in incremental steps, building on existing law and gaining supporters from various constituencies. We started by expanding an existing provision of the Indiana code that allowed courts to reduce a minor felony to a misdemeanor upon completion of the sentence, to allow people to come back after a waiting period to get the felony reduced, as long as they had no further charges.  I thought if I could just start the conversation with a simple bill that did not involve more serious offenses I would be able to get people to see how detrimental having a felony conviction can be for someone who wants to get back into the work force.  I took a practical approach, and was able to persuade some of my fiscally conservative colleagues that there can be economic benefits through the reduction of recidivism.  After getting that initial language enacted I came back the next session to work on full expungement, and found that there was support on both sides of the aisle as many people were able to see the benefits. There were those who had general objections to the legislation, some for ideological reasons, some for practical reasons, but we were able to overcome all of them with solid logic when it came to debating this issue.  We were even able to win over some of the prosecutors, enough that the opposition of the holdouts didn’t derail the legislation’s chances.  One of the most effective supporters was the Indianapolis Chamber of Commerce, which helped me convince people that expungement could be beneficial to business owners and economy as a whole. Obviously there were a lot of compromises we had to make, and it’s not hard to see what some of them were, like the lifetime limit to one expungement, the prohibition on seeking expungement of offenses committed after a petition has been denied, and the filing fee that is hefty for many.  Certain violent and sexual offenses had to be excluded from coverage or it would have torpedoed the effort before we got it off the ground. It was sometimes difficult to give up some things just to get the bill passed, while still ending up with a law that actually made a difference. We were able to resist several offers to compromise that would have simply gutted the bill.  We had to keep our eye on the core purposes of the legislation, which are to restore rights and give people a fair chance in the workplace and elsewhere.  We will see how the law works.  If some of the compromises we made need to be revisited, we can do that.  In fact, in the 2014 session we made quite a number of reasonably minor adjustments in the law, notably to permit more government entities including licensing agencies access to sealed records. How were you able to defuse opposition from the prosecutors? Because I anticipated the prosecutors would be the main opponents, I reached out to them early in the process, and worked with the ones who were willing to consider the concept. Here again I took a practical view, asking if they really wanted people they had prosecuted to return to the system, or whether they wanted them to succeed.  I had to persuade them that expunging a record did not reflect badly on the prosecution or create problems for law enforcement.  While their ideas were substantially different than mine, I felt it was important to incorporate many of them, and so we were able to reach a middle ground. That is how we came to have a multi-tiered system, with limits on sealing for more serious offenses, a role for prosecutors in the expungement process, the possibility of unsealing in the event of a new crime, and a lifetime limit of one expungement.   This is not to say that prosecutors across Indiana ended up supporting expungement. In fact many of them remain its most ardent opponents. However, asking for their input early and making them a part of the process instead of a constant and united opponent was instrumental in getting the job done. What about other sources of opposition or support? Many judges objected and some of the clerks were opposed to the additional work that the legislation would make for them.  The credit reporting companies were also not happy but they did not mount any substantial resistance.  As noted, the business community was surprisingly supportive.  Many employers liked the protections afforded them in the bill — including not being held responsible for information there were not permitted to have.  Governor Pence was a supporter from the beginning.  Early in his term he adopted a slogan that “Indiana should be the worst place to commit a crime, but the best place to get a second chance.” This slogan fit perfectly into the concept of this legislation. How has the law been working in its first year? Once the law was passed, the courts took a proactive role in carrying out their new responsibilities.  They took it upon themselves to develop a variety of forms for different kinds of cases, and publish them on a website so that people could apply for expungement without the need to hire a lawyer.   Legal services organizations have been spreading the word around the state, and are helping to clarify what appears to have been some initial confusion because of the law’s complexity.  There have been a few kinks, and as I said we have already passed several bills to make slight adjustments mostly of a procedural nature.  I anticipate that there will more a few more tweaks this year.  Thankfully the concept has been received wonderfully by the public so making the changes at this point is relatively easy and meets little resistance. Why is the relief called “expungement” if many records remain open to the public? I get this question frequently, and yes I agree it is a bit confusing to use a term that ordinarily implies some limits on access.  The original concept was that an expungement order would seal all records except for law enforcement purposes.  But that was not an approach that I could sell, in or out of the legislature, especially for more serious offenses.  As the bill ended up with tiered approaches, there really was not a single term that fit the whole — and as we studied what other states do, I am not even sure the term “expungement” has a single meaning. Also, even if a record is actually destroyed, it may be impossible to ever remove all evidence of it.   In the end, I was convinced that “expungement” was the best term to use to ensure that people who need relief would take advantage of it.  There’s no doubt that most people believe that you only get a second chance if your record is clear in a literal sense.  But even where a record is sealed, our law does not permit people to deny that they were arrested or convicted; rather, they cannot be asked about a record that has been expunged.  In this way we were able to reconcile keeping the record open with the core concept of restoring rights.  By limiting the use of a record we hope to clear away the cloud that these individuals have been living under. What advice do you have for legislators in other states and for advocates who want to try to develop a comprehensive scheme like Indiana’s? To begin with, to pass a bill like this you have to have someone in a leadership role who really understands the inside and out of the criminal justice system, and who is willing to live and breathe this concept through the entire legislative process and see it all the way through to completion. You have to start the conversation very early, and learn patience. It takes a long time to convince people who may only have a passing interest (or no real interest at all) in something like this, and no personal experience with the justice system, to understand why it is a good idea and why they should take the perceived risk of supporting this concept. In the political world it is very easy for those who oppose this concept to get their hooks into legislators early by telling them that this is “soft on crime” and that it will damage them politically to support it. In order to combat this I think it is necessary for the legislator who is carrying the bill to spend one-on-one time sitting down with other legislators. While advocates are important and certainly should be recruited, I find that nothing is as persuasive as the legislators themselves discussing the concept.  The other really important thing is to secure the support of the business community.   You should also find examples of individuals who have been battling for years if not decades to be successful in society while carrying the weight of a criminal record. Their anecdotal testimony can be extremely powerful. I also recommend reaching out to those you anticipate will oppose the bill and asking them to help with the bill. If they are not on the inside helping they will be on the outside opposing. Even if the “help” they are giving is not always consistent with the concept you are trying to advance, you are still much better off having those people working with you on developing language than trying to kill any language that you come up with. It is helpful to defuse opposition if you couch the conversation in terms of the social and economic benefit to society rather than always talking about the benefit to the individuals who might seek expungement. It is very important to make people see that while our human compassion should want to give people a second chance, our duty is to be fiscally responsible to our constituents, and that for numerous reasons (recidivism, costs of incarceration, costs of providing welfare, public safety, etc.) this concept is the right one for all of our constituents. In the end, you really do have to be willing to compromise, recognizing that if you get the key concepts enacted you can always come back later and change the details.     Read more

Federal agencies reportedly (mostly) satisfied with their collateral consequences

In 2013, the Justice Department launched its Smart on Crime Initiative, which included a call for federal agencies to review collateral consequences in their own rules and policies, to determine which could be narrowed or amended without jeopardizing public safety. According to an NPR report, the results of that long-anticipated review are now in: Amy Solomon was appointed by Attorney General Holder to oversee the twenty federal agencies charged with reviewing their regulations and policies for potential changes. She reports that hundreds of regulations were reviewed, but the vast majority were deemed “appropriately tailored for their purposes,” including HUD’s discretionary housing policies. So far, only three agencies have submitted changes. In assessing the “appropriately tailored” conclusion in the context of HUD housing policies, NPR reporter Monica Haywood tells the story of Maurice Alexander, a 67-year-old man who was turned away from subsidized housing in the District of Columbia based on a six-year-old misdemeanor threat conviction, despite guidance from HUD encouraging property owners and agents “to develop policies and procedures that allow ex-offenders to rejoin the community.” The HUD guidance urges property owners to consider all relevant information when reviewing applications from people with a criminal record, including evidence of rehabilitation and “probability of favorable future conduct.” Haywood concludes that, “If Alexander’s case is any indication, owners may not be taking HUD’s advice.” The D.C. Housing Authority determined that he was eligible for three properties in his area, but he received three rejection letters, each specifically citing his criminal record as the reason he was denied.  As a result, his plans to move into subsidized housing were derailed, and he became homeless. Even with help from the Legal Aid Society of the District of Columbia, he wasn’t able to find housing until November, nearly seven months later. The problem is that when even when decision-makers have discretion “to review case-specific mitigating circumstances, such as how long ago the crime was committed, and how the offender has behaved since,” in practice they generally prefer not to take a risk.  The result is categorical rejection based upon status alone.  If challenged, an agency may relent in a particular case, but continue to enforce the “just say no” rule in all others. It now appears that most federal agencies are willing to go along with this result where their own regulations and policies are concerned. In considering what might be done to put some teeth into his exhortation to federal agencies to ensure that people with a criminal record are treated fairly, the Attorney General might consider what Colorado has recently done to ensure agency accountability. Under a law enacted in 2013, Colorado licensing agencies must now report in a public hearing on whether collateral consequences in their regulations and policies “serve public safety or commercial or consumer protection interests.” Colo. Rev. Stat. § 24-34-104(9)(b)(VIII.5).  To assist the legislature in determining agency compliance, the department of regulatory agencies is required to prepare an analysis for each agency that includes “data on the number of licenses or certifications that were denied, revoked, or suspended based on a disqualification and the basis for the disqualification.” Id.  Any proposal to regulate a new profession or occupation must evaluate any proposed disqualification based on criminal record by these same standards.  Colo. Rev. Stat. §§ 24-34-104.1(2)(f), (4)(b)(IV).  Colorado backs up its new procedures with a general anti-discrimination law that governs consideration of conviction in most licensed professions.  See Colo. Rev. Stat. § 24-5-101(1)(a). Colorado is not the only state that polices its agencies, holding them to account for their treatment of people with a criminal record with evidence-based practices.  Many states include provisions in their administrative codes that compel fair consideration of conviction, and provide for the enforcement of these provisions through the courts.  See 50-state chart here.  It is unfortunate that the federal government does not.  Absent the kind of transparency and data-driven accountability that Colorado has introduced into its regulatory scheme, the default rule will inevitably be rejection. Read more

“One Strike and You’re Out:” Center for American Progress reports on criminal records policy

Earlier this week, the Center for American Progress published a new report on the effect of the proliferation of criminal records in a nation of mass incarceration and criminalization. The report (“One Strike and You’re Out: How We Can Eliminate Barriers to Economic Security and Mobility for People with Criminal Records”) explores the debilitating effect that a criminal record – including records for relatively minor offenses and for arrests that did not result in a conviction – can have on an individual’s access to housing, public assistance, education, family stability, and, in turn, their prospects for economic stability. The report’s authors are Rebecca Vallas of the Center for American Progress’s Poverty and Prosperity Program, and Sharon Dietrich of Community Legal Services of Philadelphia (and of our own CCRC Board). The report makes the point that the proliferation of criminal records, and the ease with which they can be accessed, harms not only individuals but society as a whole. The collateral consequences of a criminal record result in employment losses of $65 billion a year in GDP according to one study cited. Another study estimates that the national poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the accompanying criminal record crisis. The report notes that the war on drugs and the “criminalization of poverty” has resulted in a disproportionately high incidence of justice system contact in communities of color. Criminal records are thus both a cause of poverty and a consequence of poverty. “Failure to address the barriers associated with having a record as part of a larger antipoverty strategy risks missing a huge piece of the puzzle,” Vallas told me shortly after the report’s publication. “On the flip side, enacting policies to remove those barriers and provide a second chance has the potential to make a huge dent in our nation’s poverty rate.” To this end, the report recommends broadening access to expungement and record sealing, expanding fair employment and housing protections, and requiring accuracy in criminal background checks. Some of the recommendations target specific collateral consequences like the felony drug ban for federal nutrition assistance, and for federal financial aid for those with drug convictions. The report also gives examples of laws and policies already on the books that can serve as models for reform. I also asked Vallas about the prospects for meaningful reform in the current political climate. This is what she had to say: Bipartisan momentum in support of criminal justice reform — including second-chance policies — has been growing for the past several years. We seem to have moved past the “tough-on-crime” era and into a new “smart-on-crime” era with increased support for criminal justice policies that avoid needless incarceration. This shift appears to have happened in part because of the enormous costs of incarceration — the U.S. spends more than $80 billion per year on locking people up, and more than $270 billion per year if you count the costs of law enforcement, policing, etc. — and because of increased interest in evidence-based policies that support reentry, reduce recidivism, and increase public safety and spend law enforcement resources more effectively. There’s also a strong faith-based argument, that we’re a society that practices and values redemption. Additionally, the impact on the national economy has begun to get people’s attention. A study by the Center for Economic and Policy Research, or CEPR, which we cite in the report, finds that the cost of employment losses from people with records being shut out of the labor market is as high as $65 billion per year in GDP terms. That’s a big hit to our nation’s bottom line. In researching the report, I pulled together a bunch of quotes from prominent elected officials and thought leaders across the political spectrum, calling for criminal justice reform and second-chance policies—and I realized that when you take away the names of who said them, it’s nearly impossible to tell whether each came from a Democrat or a Republican. It’s extremely encouraging, especially at a time when the word “bipartisan” doesn’t apply to too many issues. There’s a lot of hope and optimism that we’ll see real progress on these issues in the next Congress, as well as continued positive steps at the state and local levels. Editor’s note: We think it is particularly hopeful that the Center for American Progress, generally considered the think tank of the Democratic Party, is now taking an interest in issues that for many years have been considered a third rail by progressive candidates for office. Perhaps a constructive practical approach to criminal justice issues will replace fear-mongering and stereotypes in the 2016 election cycle. Perhaps we can finally abandon the unfortunate phrase “soft on crime” without needing to be reassured that we are being smart about it.  —  Read more