Category: Types of Consequences

California’s Proposition 47 and collateral consequences: Part II (reentry and restoration of rights)

Prop 47 and restoration of rights 

California’s recently enacted Proposition 47 fundamentally alters the landscape for a handful of lower-level felony offenses in California. As discussed by Jeffery Aaron in a previous post, Prop 47 reclassifies eight offenses as misdemeanors, including simple drug possession offenses and theft of less than $950. Anyone with a qualifying conviction, who also does not have a disqualifying prior, can now petition under Prop 47 to have a felony reclassifiedimages as a misdemeanor. The most significant and immediate relief will be for people who are incarcerated for qualifying low-level felonies and who are now eligible for resentencing and release. Public defender offices around the state are busy filing those petitions.

But, Prop 47 also allows two other populations to petition for reclassification of their qualifying felonies to misdemeanors: People who are under supervision but not incarcerated (on probation, parole, or post-release community supervision), and people whose sentences were completed long ago. This aspect of the new law presents good opportunities for tens of thousands of Californians, and not insignificant implementation challenges.

Simply by reclassifying certain offenses from felonies to misdemeanors, Prop 47 can undo some of the most serious collateral consequences.  It’s clear from our experience providing reentry legal services to thousands of clients over the years that people with felony, as opposed to misdemeanor, convictions face increased barriers to employment, housing, and full and meaningful community reintegration and citizenship. For example, people with a felony conviction, even a decades-old low-level offense, can never serve on a jury in California. For many people, Prop 47 will reverse this lifetime disenfranchisement and move them one step closer to full civic engagement.

But unfortunately, many of the statuary and extra-legal barriers to successful reentry that block people convicted of felonies also apply to people with convictions for misdemeanors and criminal infractions. Consequently, Prop 47 relief alone is not a cure-all for collateral consequences, and for most people it’s not even the most important petition they can file to overcome the statutory disabilities they face.  The following section describes how Prop 47 relief interacts with other California relief mechanisms. Read more

Special interests succeed in watering down NJ Opportunity to Compete Act

In updating our book on New Jersey Collateral Consequences, J.C. Lore and I analyzed the provisions of New Jerseys’ new Opportunity to Compete Act, signed by Governor Christie in August and scheduled to become effective on March 15, 2015.   The Act applies a ban-the-box requirement to most public and private employers with more than 15 employees.  Having followed the bill through its passage in the House last spring, we were disappointed but not surprised to see that there were a number of employer-friendly amendments added to the Act just prior to final action in the Senate, with the result that there is a great deal of uncertainty about what the law actually accomplishes.  The important provisions omitted from the bill in the Senate, after lobbying by business and industry groups, includedstock-photo-usa-american-new-jersey-state-map-outline-with-grunge-effect-flag-insert-101188936

  • A prohibition on considering certain types of criminal histories, including conviction records after a certain number of years;
  • A private right of action against employers;
  • A definition of “initial employment application process” that permits inspection of criminal records at an earlier stage of the employment process;
  • A requirement that an employer make a good faith effort to discuss the applicants criminal record if it is of concern; and
  • A provision permitting negligent hiring suits in cases of “gross negligence.”

The bill as amended also preempted local ban-the-box laws, so that Newark’s more progressive ban-the-box ordinance appears to be on life support.

Attached are the enacted version of the New Jersey Opportunity to Compete Act, as well as the “advance law” with brackets to show which language was removed in the Senate.

EDITOR’S NOTE:  Much chastened, the author of the NACDL Restoration of Rights Resource has made appropriate modifications in the New Jersey profile.  Note that similar last-minute amendments also substantially weakened the Delaware ban-the-box law, omitting similar provisions that would have prohibited employers from considering certain types of criminal records, notably convictions more than 10 years old.  In the same fashion, last-minute amendments to Vermont’s Uniform Collateral Consequences of Conviction Act restricted its coverage to less serious offenses, disappointing its sponsors.

The lesson for advocates is that they must be eternally vigilant for last-minute lobbying by special interests to dilute provisions of progressive legislation intended to give people with a criminal record a fairer chance in the workplace. – ML

The “president’s idle executive power” and collateral consequences

In their Washington Post op ed on the President’s neglect of his pardon power posted earlier on this site, Rachel Barkow and Mark Osler are critical of the Justice Department’s us-department-of-justice-squarelogobureaucratic process for processing applications for executive clemency, which they argue takes a very long time and yields very little.  (The New York Times editorialized last year in a similar vein about how DOJ has effectively sidelined the president’s power as a tool for justice for more than 20 years.)  Barkow and Osler ask why Justice considered it necessary or wise to farm out the processing of thousands of petitions from federal prisoners to a private consortium called Clemency Project 2014, rather than reform the official process:  “such a short-term program does nothing to fix the problematic regular clemency process that will survive this administration unless action is taken.”

Barkow and Osler focus on sentence commutations, and not on the other common type of clemency grant: a full pardon, typically sought by those who have fully served their court-imposed sentences, to avoid or mitigate collateral consequences.  In addition to the thousands of prisoner petitions awaiting consideration by DOJ’s Pardon Attorney, there are now more than 800 petitions for full pardon pending in the Justice Department.  Most of these petitions were filed by individuals who completed their court-imposed sentences long ago but remain burdened by legal restrictions and social stigma.  A majority of the pending petitions were filed years ago and have long since been fully investigated.  What can be holding things up?

Read more

Labels and stereotypes in the President’s immigration speech

obama-immigration-speechThe President’s decision to take unilateral executive action to insulate certain undocumented immigrants from the immediate threat of deportation has provoked outrage in some quarters and profound relief in others.   The legal issues raised by this decision are important and debatable, some of its line-drawing is problematic, and its success stands or falls on the uncertain terrain of bureaucratic discretion.  No doubt its political implications are yet to be revealed.

But amid all the uncertainty, one thing is clear.  In his speech announcing the initiative the President said, repeatedly and definitively, that no one with a criminal record would benefit from his reprieve.   Thus, he emphasized that enforcement resources would remain focused on “actual threats to our security,” by which he meant “Felons, not families. Criminals, not children.”   Again, it is possible to benefit from the law if you can “pass a criminal background check” (whatever that means), but “[i]f you’re a criminal, you’ll be deported.”   Even people convicted of misdemeanors will not be spared under the new DHS enforcement priorities.

Entirely apart from the wisdom or fairness of the immigration policy choice involved in this broad blanket exclusion (and there are good reasons to be critical of it), it was disheartening to hear the President present it in such unfortunate language.  The ugly labels of “felon” and “criminal” do, after all, at least technically describe a status shared by 25% of adult Americans.  Labels like these serve only to demonize and exclude, and they are fundamentally at odds with our national policy of encouraging rehabilitation to reduce crime.  There were other ways the President could have justified continuing his policy of deporting based on criminal record than by using words that do more to stir up fear of “the other” than to describe relevant functional attributes.

The President’s words suggest that people who have been convicted of a crime are evermore to be regarded as “felons” and “criminals,” categorically threatening to our safety and security, and uniformly deserving to be segregated and sent away.  But he himself pardoned such a person less than two years ago, precisely to keep her from being deported. And he is surely aware of the bipartisan conversation now underway about the need to curb over-criminalization, one of the few matters on which Republicans and Democrats can agree.   It is tempting to take linguistic shortcuts when politically expedient, but it is a temptation he might have resisted without jeopardizing his larger objective.

It is time we stopped using negative stereotypes and labels to describe people who at some point in their past have committed a crime, in the immigration context or otherwise.  It is no longer acceptable to describe undocumented immigrants as “illegal aliens.”  Our language needs a similar makeover where past convictions are concerned.

Sexting prosecutions derailed by concerns about collateral consequences

The District Attorney of Oneida County (WI) has decided not to file criminal charges against forty teenagers implicated in a widespread sexting scandal in the Rhinelander school district.  His decision was reportedly based on concerns raised by parents and others about the collateral consequences of a criminal record.  In a joint press release, school officials and the local sheriff noted that felony charges could have limited students’ future employment prospects:

Although Wisconsin law does consider incidents such as this as felony offenses, and it does not have disciplinary alternatives for such offense, criminal charges were not filed against the students involved, which could be detrimental to the future of the students and, in turn, could be harmful to our community as these students will not be allowed to enter certain occupations

Under Wisconsin law, anyone convicted of a felony, no matter how minor, is permanently barred from obtaining over 100 professional licenses, and subject to many other adverse effects that may last a lifetime.

Instead of charging the students criminally, the school district is bringing in a Wisconsin Department of Justice special agent to give presentations to the students and parents about the seriousness of taking inappropriate photographs and distributing them on social media. Ten of the forty students who sexted on school grounds got one-day suspensions, and students who behavior violated the school athletic code were suspended for certain events.

The editor wonders whether such a resolution would be likely in an urban school setting.

Federal regulation of criminal background checking

FINGERPRINTTwenty years ago, criminal record background checks for employment were rare. Today, the easy accessibility of criminal records on the Internet, and the post-September 11th culture of heightened scrutiny, have contributed to a sharp increase in background checks of job candidates.  If you’re applying for jobs in most industries, expect employers to ask about a criminal record at some point in the hiring process—and expect many of them to run a background check on you.

It’s a harsh reality for an estimated one in four U.S. adults who have some type of criminal record.  Unfortunately, any involvement with the criminal justice system—even having minor or old offenses—could become a job obstacle for these 70 million Americans. Even if you’ve avoided a run-in with the law, you could still find yourself being unfairly screened out for a job due to an erroneous background check report. With thousands of private background check companies across the country that have varying levels of reliable information, inaccuracies in these reports are far too common.

Unknown to many job candidates, private background check companies and the employers relying on their reports are regulated by a federal consumer protection law called the Fair Credit Reporting Act (FCRA).  Although more well-known in the credit report context, FCRA also applies to companies that produce criminal background check information, and gives job-seekers a number of protections.

Read more

Civil rights lawsuit filed against rental complex for excluding people with a criminal record

The Fortune Society has charged a Queens landlord with civil rights violations for refusing to rent to people with a criminal record. From the New York Times report on the lawsuit filed in federal district court on October 30:

The lawsuit was brought against the owners and manager of the Sand Castle, a rental complex in Far Rockaway, Queens, with more than 900 apartments. The suit is one of the latest efforts in a nationwide push to make it easier to integrate people emerging from prisons back into their communities.

Concern over legal restrictions that hinder former prisoners’ efforts to find jobs and homes, long voiced by advocates of criminal justice reform, has taken on a broader urgency in recent years. Faced with stark fiscal pressures and rising criticism, many state governments have been rethinking practices that led to record levels of incarceration. Nationwide, about 700,000 people a year are currently being released from prison
…

Bars against former offenders in housing are said to be common around the country, although some landlords apply them only partially — barring sex offenders or arsonists, for example, or allowing those convicted of misdemeanors but not felons. The ability of landlords to easily look up criminal backgrounds on the Internet is believed to have increased the practice.

The Fortune Society’s press release on the suit can be found here.

NY Times spotlights the growing popularity of “ban-the-box” laws

An article on the front page of today’s New York Times describes the growing popularity of “ban-the-box” laws to help people with a criminal record get jobs.  The article also discusses the massive hurdles to employment that many with a criminal conviction in their past — some of which are for minor offenses that are a decade or more old — face without such laws in place to ensure fair hiring practices.

The National Employment Law Project (“NELP”) keeps track of the growing number of states and cities that have adopted ban-the-box laws, including summaries of the laws and policies in those jurisdictions.  NELP’s current guide to state and local ban-the-box laws (including coverage of legislative initiatives) can be found here.

From the article:

During the past several months, states and cities as varied as Illinois; Nebraska; New Jersey; Indianapolis; Louisville, Ky.; and New Orleans and have adopted so-called Ban the Box laws. In total, some 70 cities and 13 states have passed such laws — most in the past four years.

The laws generally prohibit employers from asking applicants about criminal records as an initial step in the hiring process and from running criminal background checks until job seekers are considered serious candidates for an opening.

Studies have found that ex-offenders, particularly African-Americans, are far less likely to be called back for job interviews if they check the criminal history box on applications, even though research has shown that those possessing a criminal record are no more apt to commit a crime in the workplace than colleagues who have never been convicted.

The Times has posted some interesting responses from the founders of the Pennsylvania-based Fair Employment Opportunities Project (and others) here.  The attorneys behind the Project argue for additional restrictions on the use of criminal history information once it has been disclosed to employers:

While “Ban the Box” laws that forbid asking about a person’s criminal history are a good first step, we need stronger laws to empower job applicants with arrest or conviction records to become self-sufficient through employment. Several states already have such statutes, including Pennsylvania, where the Fair Employment Opportunities Project is working to educate employers and the public about the law.

Pennsylvania’s statute [18 Pa.C.S. § 9125] could be a model for other states. It forbids employers from considering non-convictions (like acquittals) when making hiring decisions. Convictions may be considered only to the extent they relate to the applicant’s suitability for the job. And when employers reject applicants because of their records, they must give written notice — an important safeguard, because criminal record databases are notoriously error-ridden and ensnare even people who were charged but never convicted.

Federal court embraces as-applied Second Amendment limit on federal felon-in-possession prohibition

A federal district court in Philadelphia has issued the first decision to invalidate the federal felon-in-possession statute on constitutional grounds. The notable as-applied Second Amendment ruling comes in Binderup v. Holder, No. 13-cv-06750 (E.D. Pa. Sept. 25, 2014).  Perhaps significantly, Binderup is a civil rights suit brought by an individual seeking relief from a minor conviction in his distant past, not one in which a defendant is seeking to avoid prosecution a federal criminal on Second Amendment grounds.  Here is an excerpt from the opinion:

As further discussed below, plaintiff distinguishes himself from those individuals traditionally disarmed as the result of prior criminal conduct and demonstrates that he poses no greater threat of future violent criminal activity than the average law-abiding citizen. Therefore, he prevails on his as-applied challenges to § 922(g)(1) on Second-Amendment grounds under the framework for such claims set forth by the United States Court of Appeals for the Third Circuit in United States v. Barton, 633 F.3d 168 (3d Cir. 2011).

The Binderup decision is here.  Gene Volokh’s comments on the decision from the Volokh Conspiracy are here.

Alan Gura, who represented Mr. Binderup and argued both D.C. v. Heller and McDonald v. City of Chicago in the Supreme Court, promises more Second Amendment fireworks involving people with dated non-violent convictions.  Criminal defense lawyers representing clients on felon-in-possession charges, and anyone seeking restoration of firearms after conviction, should keep an eye on this space.

New York colleges told to “ban the box” on admissions form

The website of the Center for Community Alternatives announces this important development involving college admissions:

The campaign to eliminate barriers to higher education for people with criminal history records, led by the Education from the Inside Out Coalition, is gaining traction. Less than a month ago, the New York Times Editorial Board called for colleges to remove the question about criminal records from college admissions applications. Today, the New York State’s Attorney General’s office announced a settlement with three colleges in New York state, that will end their practice of asking applicants if they have ever been arrested. The New York Times article about the settlement cites CCA’s study to support the Attorney General’s actions.

Link to the New York Times editorial.

Link to the New York Times article.

Link to the Attorney General’s Press Release.

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