Category: Criminal Records

President Trump supports opportunities for people with a criminal record

In an editorial published on May 21, the New York Times commended President Trump for remarks at a White House conference on prison reform last week, in which he expressed support for improved employment opportunities for people with a criminal record:

“A friend of mine told me that when people get out of prison, they’re all excited.” Mr. Trump said. “And then they go and they have that stigma; they can’t get a job. People don’t want to hire them. They can’t get that chance. When we talk about our national program to hire American, this must include helping millions of former inmates get back into the work force as gainfully employed citizens.”
It appears that most of the relevant discussion at the conference last week was about a House bill aimed at preparing federal prisoners for reentry, addressing such issues as good time credit and halfway house placement.  It also appears that the prospects for federal prison reform this year are dim, given the wide gulf between the pending House bill and the insistence of Senate leadership on including provisions for sentencing reform.  Nonetheless, the President’s words will be very useful for those working in state legislatures to restore rights and status.  Already in 2018, at least 13 states have enacted laws either reforming occupational licensure or extending record-clearing laws, and bills are awaiting the governor’s signature in another five.  We are already starting work on a report summarizing legislative accomplishments in 2018 that will be modeled on “Second Chance Reforms in 2017” published last fall.

“The Scale of Misdemeanor Justice”

There is a growing awareness that the consequences of a misdemeanor arrest or conviction have become exponentially more serious in recent years.  We also know that the misdemeanor system is enormous, and that its very size makes it particularly susceptible of abuse.  Yet we have very little reliable information about how many people in the United States have a misdemeanor record.  A new research report by Professors Megan Stevenson and Sandra Mayson begins to fill this gap, in the process challenging the conventional wisdom that the misdemeanor system is expanding.
Based on “the most comprehensive national-level analysis of misdemeanor criminal justice that is currently feasible,” the report reaches the surprising conclusion that both the number of misdemeanor arrests and cases filed each year have “declined markedly” in recent years.  At the same time, unsurprisingly, it concludes that there is “profound racial disparity” in misdemeanor arrest rates for most offense types, and that this disparity has “remained remarkably constant” over almost four decades.   While the report confirms current perceptions about the scale of misdemeanor justice and its disparate racial impact, its fascinating findings of “declining arrest and case-filing rates present a challenge for misdemeanor scholarship.”

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“The Juvenile Record Myth”

A new article in the Georgetown Law Journal exposes the fallacy that delinquency adjudications don’t follow juveniles into adulthood, and documents the alarming extent to which records of juvenile delinquency adjudications have become almost as accessible to the public as records of adult convictions.  In The Juvenile Record Myth, University of Tennessee Law Professor Joy Radice argues that state confidentiality and sealing provisions often provide far less protection than is commonly believed, and that juveniles frequently face continuing legal restrictions and stigma.   Almost all states permit some degree of public access, and some even publish juvenile records online.  Using recent literature on juvenile brain development and the recidivism research of criminologists, Radice presents new arguments for why delinquency records should not follow a juvenile into adulthood—and why the state’s obligation to help rehabilitate juveniles (an obligation typically recognized in a state’s juvenile code) should extend to restricting access to juvenile records.  The abstract of Professor Radice’s article is reprinted at the end of this post.

The state-by-state profiles from the Restoration of Rights Project analyze each state’s laws on access to records of juvenile adjudications.  These laws are summarized in the RRP’s 50-state-chart on expungement and sealing.

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May background screeners lawfully report expunged records?

The following post, by Sharon Dietrich of Community Legal Services of Philadelphia, addresses the question whether reporting of an expunged or sealed case by a commercial background screener violates the Fair Credit Reporting Act.  Sharon is a national authority on FCRA as applied to criminal records, and we are pleased to reprint her analysis below. 

The Fair Credit Reporting Act (FCRA) governs the accuracy of criminal background checks prepared by commercial screeners.  While there is little case law holding that the FCRA prohibits commercial screeners from reporting expunged or sealed cases, there is little doubt that this is the case.

Two FCRA provisions are applicable to this issue.

  • Commercial screeners must use “reasonable procedures” to insure “maximum possible accuracy” of the information in the report.  15 U.S.C. §1681e(b).
  • A commercial screener reporting public record information for employment purposes which “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either notify the person that the public record information is being reported and provide the name and address of the person who is requesting the information at the time that the information is provider to the user or the commercial screener must maintain strict procedures to insure that the information it reports is complete and up to date.  15 U.S.C. §1681k.

Numerous FCRA class actions have been brought under one or both of these provisions to challenge a commercial screener’s reporting of expunged or sealed cases.

  • Henderson v. HireRight Solutions, Inc., No. 10-459 (E.D. Pa. 2010).
  • Robinson v. General Information Services, Inc., No. 11-7782 (E.D. Pa. 2011).
  • Roe v. Intellicorp Records, Inc., No. 1:12-cv-2288 (N.D. Ohio 2012).
  • Giddiens v. LexisNexis Risk Solutions, Inc., No. 2:12-cv-02624-LDD (E.D. Pa. 2012).
  • Stokes v. RealPage, Inc., No. 2:15-cv-01520-JP (E.D. Pa. 2015).

All of these cases were settled, with the settlement typically requiring the discontinuation of the use of stale data or the screener to change its practice to verify data.

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Living with a marijuana conviction after legalization (updated)

Jacob Sullum, senior editor at Reason, has written a fabulous article about expungement of marijuana convictions in places that have since legalized marijuana: so far 10 states, DC, and the Northern Mariana Islands have legalized.  The piece is currently available to Reason subscribers and will be available to the public in the coming weeks (we will update this post with the link).

Sullum tells the stories of eleven individuals, from the jurisdictions that have legalized, who describe how their marijuana convictions have impacted their lives before and after legalization.  He documents the lingering legal and social sanctions that burden people long after they have served their sentences, sanctions that “seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use.”

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Clean Slate Clearinghouse goes live

 

Earlier today the Council of  State Governments (CSG) launched the Clean Slate Clearinghouse, an impressive online resource that provides information on the availability of expungement and sealing in all 50 states and helps individuals with criminal records connect with pro bono legal service providers.  The project, which is jointly funded by the U.S. Departments of Justice and Labor, is the result of over a year’s work by CSG and its partner organizations.

The resource is focused squarely on record closure mechanisms and does not cover restoration authorities that leave the record intact, such as executive pardon, judicial certificates of relief, or nondiscrimination laws.  It also does not directly address the effect of closure in different jurisdictions.  It does, however, provide succinct information about the various record closure procedures available in each state, and does so in a way that non-lawyers can easily understand. In addition, it collects links to state application forms and guides as well as links to helpful third-party resources.  As such, it will be a useful tool for individuals seeking to leave their criminal records in the past.  It complements the more detailed legal analysis in the Restoration of Rights Project.

The Clearinghouse is available at https://cleanslateclearinghouse.org. We look forward to hearing about how it is being put to use and to watching its further development.  The official project description follows:

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A closer look at Indiana’s expungement law

More than four years ago, Indiana’s then-Governor Mike Pence signed into law what was at the time perhaps the Nation’s most comprehensive and elaborate scheme for restoring rights and status after conviction.  In the fall of 2014, as one of CCRC’s very first posts, Margaret Love published her interview with the legislator primarily responsible for its enactment, in which he shared details of his successful legislative strategy.  Later posts on this site reported on judicial interpretation of the law.  Since that time, a number of other states have enacted broad record-closing laws, including Louisiana, Missouri, Nevada, New York, and most recently Illinois.

We have been impressed by the evident enthusiasm for Indiana’s “expungement” law within the state, from the courts, the bar, the advocacy community, and even from prosecutors.  So we thought it might be both interesting and useful to take a closer look at how the Indiana law has been interpreted and administered, how many people have taken advantage of it, and how effective it has been in facilitating opportunities for individuals with a criminal record, particularly in the workforce.  We also wanted to see what light this might shed on what has brought to the forefront of reform so many politically-conservative states.  Spoiler alert: the Chamber of Commerce was one of the strongest proponents of the law.

We expect to be able to post our account of the Indiana expungement law shortly after Labor Day.  In the meantime, we thought it might be useful to reprint our 2014 interview with former Rep. Jud McMillan, which has been among our most viewed posts.

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Fair Credit Reporting Act applied to criminal records

The following is a summary of how the Fair Credit Reporting Act (FCRA) applies to criminal background checks, written by Sharon Dietrich of Community Legal Services of Philadelphia.  More detailed information about FCRA’s interpretation and enforcement is available in this 2011 FTC report.  Current information about FCRA’s enforcement as applied to criminal records will appear in the upcoming third edition of Collateral Consequences of Criminal Conviction: Law Policy and Practice.  

Where a criminal record report is provided to an employer by a credit reporting agency (“CRA”), the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq, is applicable. See Beaudette, FTC Informal Staff Opinion Letter, June 9, 1998 (available here).  FCRA creates obligations both on CRAs preparing criminal background reports and on employers using them.

Among the duties of CRAs compiling criminal background reports for employers are the following:

  • CRAs may not report arrests or other adverse information (other than convictions of crimes) which are more than seven years old, provided that the report does not concern employment of an individual who has an annual salary that is $75,000 or more.   15 U.S.C. §§ 1681c(a)(5), 1681c(b)(3).
  • CRAs must use “reasonable procedures” to insure “maximum possible accuracy” of the information in the report.  15 U.S.C. §1681e(b).
  • Elements of cause of action: (1) Inaccurate information in report; (2) inaccuracy due to CRA’s failure to follow reasonable procedures to assure maximum possible accuracy; (3) consumer suffered injury (can include emotional injury); and (4) injury was caused by inaccurate entry.  Crane v. Trans Union, 282 F. Supp. 2d 311 (E.D. Pa. 2003)(Dalzell) (citing Philin v. Trans Union Corp., 101 F. 3d 957, 963 (3d Cir. 1996)).
  • A CRA reporting public record information for employment purposes which “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either notify the person that the public record information is being reported and provide the name and address of the person who is requesting the information at the time that the information is provider to the user or the CRA must maintain strict procedures to insure that the information it reports is complete and up to date.  15 U.S.C. §1681k.

“More Justice and Less Harm: Reinventing Access to Criminal History Records”

This is the title of an important new article published by Alessandro Corda in the Howard Law Journal proposing a radical way of addressing the malign social impact of our current policies on public access to arrest and conviction records.  Corda traces the evolution of record dissemination policies and practices since the 1950s, contrasting the American and European experience where “informal collateral consequences” are concerned.  He critiques “partial remedial measures” like expungement and certificates of rehabilitation, and argues for making publication of a defendant’s record an “ancillary sanction” ordered (or not) by the court at sentencing.

While this solution may at first blush seem a bit ambitious, there are states (like Wisconsin) whose sentencing courts can offer the promise of set-aside and expungement upon successful completion of sentence, and that is indeed how the federal Youth Corrections Act operated before its repeal in 1984.

At the very least, Corda makes a convincing case that strong measures are necessary to mitigate the permanent stigma of a criminal record in the information age.  The historical and international material will be of particular value to those currently working on this problem in legislatures across the country.  Here is the abstract:

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Montana just authorized expungement of adult convictions

For the first time in its history, Montana has enacted a law authorizing its courts to limitfish public access to adult conviction records. On April 13, Governor Steve Bullock signed into law House Bill 168, giving district courts the power to “expunge” the records of misdemeanor convictions after completion of sentence, effective October 1 of this year. This makes Montana the 30th state since 2012 to enact some form of record-closing law, or to expand an existing one. The possibility of full destruction of the record for all misdemeanor convictions makes Montana’s one of the more ambitious collateral consequences reform measures of the past several years.

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