Overcoming Legal Barriers to Reentry

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Overcoming Legal Barriers to Reentry

• April 24, 2007

2
Stories of Reentry

• Personal stories of reentry help us to understand
  the collateral consequences that flow from
  contact with the criminal justice system
• Discussion Leader Claudia

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Race and Incarceration Rates
Presented by Liza
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Impact on Black Women

• Black women were 2.5 times more likely than
  Hispanic women and nearly 4.5 times more likely
  than white women to be incarcerated in 2004.
• (Source U.S. Dept. of Justice, Bureau of Justice
  and Statistics)

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General Statistics

• Of the 265,100 state prison inmates serving time
  for drug offenses in 2002, 47.53 were black,
  23.27 were Hispanic, and 24.33 were white.
• Regarding state prison population growth from
  1990-2000 the increasing number of drug offenses
  accounted for 27 of the total growth among black
  inmates, 7 of the total growth among Hispanic
  inmates, and 15 of growth among white inmates.
• (Source U.S. Dept. of Justice, Bureau of Justice
  and Statistics)

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Disparate Impact of Harsh Drug Laws

• In 1986, before mandatory minimums for crack
  offenses became effective, the average federal
  drug offense sentence for blacks was 11 higher
  than for whites
• Four years later, following the implementation of
  harsher drug sentencing laws, the average federal
  drug offense sentence was 49 higher for blacks
• (Source Federal Judicial Center)

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Disparate Impact of Harsh Drug Laws

• In 1998 among persons convicted of drug felonies
  in state courts, whites were less likely than
  African-Americans to be sent to prison
• 33 of convicted white defendants received a
  prison sentence while 51 of African-American
  defendants received prison sentences.
• (Source U.S. DOJ, Bureau of Justice and
  Statistics)

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Voter Disenfranchisement

• 13 of all Black men cannot vote because of
  felony disenfranchisement.
• (Source Human Rights Watch The Sentencing
  Project)

9
U.S. Population by Race
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State and Federal Inmates by Race

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• Government Laws that
• Limit What People with
• Criminal Records Can Do
• 
  Presented by Cecelia

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Federal Statutes Limiting Access to Education

• Ineligibility for Federal Education Funds

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Federal Laws Limiting Access to Housing

• Housing Opportunity Program Extension Act of
  1996
• Federally-funded local housing authorities may
  require that applicants consent to criminal
  background check. In addition, housing
  authorities may obtain information about
  applicants from drug abuse treatment facilities
• Strengthened eviction rules and, for the first
  time, strongly urged that certain applicants for
  federally-subsidized housing be excluded based on
  their criminal records
• Established a three year ban on public housing
  for those evicted from public housing for
  drug-related activity
• Given that housing authorities typically exclude
  for 5 years anyone convicted of a felony
  regardless of the nature of their offense, its
  likely that at least 3.5 million Americans are
  currently ineligible for public housing.  

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Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 Ineligibility for
all federal benefits
Federal Laws Limiting Access to Welfare Benefits
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California Statutes that Limit What People with
Convictions Can Do

• Code of Civil Procedure 203(a)(5) People
  convicted of a felony may not serve as trial
  jurors unless he/she has his/her civil rights
  restored.
• Government Code 1029(a)(1)-(7) Persons
  convicted of a felony (in any jurisdiction)
  charged with a felony and adjudged not mentally
  competent or not guilty by reason of insanity
  adjudged a mentally ill sex offender or adjudged
  a narcotics or potential narcotics addict may not
  serve as a peace officer.

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California Statutes (Continued)

• CA Penal Code 12021 Any person convicted of a
  felony who possesses a firearm is guilty of a
  felony.
• Elections Code 2201(c) The right to vote shall
  be denied to incarcerated persons or persons
  convicted of a felony.

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• Employment Discrimination as Key Barrier to
  Reentry
• Presented by Priscilla

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Trends in Employment Discrimination

• Increasing Access to Criminal Convictions
• National survey indicates that 30 to 40 of
  employers perform official background checks on
  applicants for non-college jobs
• Most employers rely on private background checks,
  which often have inaccurate info
• Employers do not go out of their way to find out
  nuanced information about applicants such as
  checking references
• Only 20 of L.A. employers indicated a
  willingness to hire people with criminal
  convictions

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There is a large and significant effect of a
criminal record, particularly when applied to
race.
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• Studies show that criminal history info is
  especially likely to be misused against
  applicants of color
• Recent study found that white applicant with a
  criminal conviction received callbacks on their
  job applications only one half as often as
  otherwise identical white without a criminal
  conviction.
• For black applicants, however, the callback rate
  dropped even further, to only one third when
  compared to black applicants with no criminal
  record.

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Unemployment Rates

• One study found that recently released parolees
  face employment levels between 70-90, compared
  to the 6.8 overall unemployment rate for L.A.
  County.

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Legal Response to Discrimination

• Federal Title VII of the Civil Rights Act of
  1964
• Title VII specifically forbids employers from
  discriminating because of race, color, religion,
  sex, or national origin.
• Disparate Impact Test Under Title VII, an
  employment category, tool, or test cannot tend to
  discriminate against certain protected classes of
  people unless it is a business necessity.

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In Practice Title VII on criminal convictions
info and discrimination

• Employers cannot exclude an applicant based on
  number of arrests because of the
  disproportionately high number of arrests
  incurred by African-Americans and other
  minorities.
• The EEOCs 1990 policy guide sets forth the many
  steps an employer must take before choosing to
  consider arrest records in making employment
  decisions.

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When is an Employer Justified in Using Criminal
Conviction or Arrest Records?

• Employer must express compelling business
  justification
• Employers can demonstrate business justification
  after consideration of the following factors
• Nature of the gravity of offense
• Time that has passed since the conviction
• Nature of the job held or sought

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• Employers are strongly cautioned against making
  pre-employment inquiries into arrest and
  conviction records, because "information which is
  obtained is likely to be used" to discriminate

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So, theres plenty of protection against racial
discrimination, right?

• WRONG.
• Despite this solid foundation for Title VII
  claims based on criminal history records, courts
  have repeatedly rejected such claims during this
  decade.

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California Anti-Discrimination Law

• Californias Fair Employment Practices Act
• Says that freedom from job discrimination on
  specified grounds, including race, is a civil
  right.
• Californias Fair Employment and Housing
  Commission
• Places restrictions on prospective employers
  ability to ask about certain criminal records and
  prevents employers from requesting certain types
  of arrest information

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Under California Law, Employers Cannot Ask About

• Arrests where the applicant is out on bail or
  his/her own recognizance while awaiting trial
• Certain arrests when the applicant will be
  employed at a health facilities and have access
  to patients, drugs, or medication.

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• These laws and these legal trends show us that
  individuals with criminal convictions have some
  paper rights but very few real rights that
  they can count on to protect them from employment
  discrimination.

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• Self-Empowerment in Addressing Employment
  Discrimination
• Expungements and Certificates of Rehabilitation
• Presented by Betsy

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What is an Expungement?

• An expungement under CA Penal Code Section 1203.4
  does not erase or seal your criminal record. Your
  official rap sheet will still list the arrest and
  charges but instead of convicted it will be
  changed to say set aside and dismissed.
• According to this statute, a person granted
  expungement is "released from all penalties and
  disabilities resulting from the offense of which
  he or she has been convicted," with certain
  specified exceptions.

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What an Expungement Can Do

• Once an expungement pursuant to 1203.4 has been
  granted, you can lawfully state no when asked
  by an employer if youve ever been convicted b/c
  legally the conviction is gone.
• Exceptions even if you have an expungement, you
  still have to answer yes in the following
  situations
• Any dealings with the INS
• Any state or local licensing agency (guard cards,
  nursing licenses, etc.)
• Contracts with the state lottery
• In application for public office

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What an Expungement Can Do

• The expungement will be transmitted to the
  Department of Justice, and will be reflected on
  your official criminal record (both with
  California and the FBI).
• An expungement can help you with some job
  licenses and certificates. (Contact the specific
  agency to determine whether an expungement will
  help).
• An expungement can improve your credit rating and
  can help you with housing and loan applications.
• If you are ineligible for federal student loans
  because of a drug conviction, you may have your
  eligibility restored

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What an Expungement Does Not Do

• An expungement does not "erase" your record The
  arrest and charges will still fully appear on
  your official rap sheet, but the word convicted
  will be changed to set aside and dismissed.
• Expunged convictions can still be used as priors
  and strikes.
• Expunged convictions can still affect your
  ability to possess a firearm.
• Expunged convictions can still affect your
  driving privileges.
• Expungement does not guarantee that you will be
  able to get a state license

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Who is Eligible for an Expungement?

• People Who Have Received Jail time and/or
  Probation (not prison time and parole)
• And
• Not be serving a sentence
• Not be on probation or parole for any conviction
• Not be charged with a crime
• Have paid all court fines and fees for this case

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The Courts Failure to Fulfill the Rights
Guaranteed by CAs Expungement Statute

• The plain language of the statute and early case
  law strongly suggest that the purpose of
  Californias expungement law, CA Penal Code
  Section 1203.4, was to eliminate all barriers to
  employment, housing, and social benefits for
  persons granted expungements.
• But, in violation of the statutes original
  purpose, many court decisions have held that an
  expungement does not release you from all
  penalties and disabilities.

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The Legislatures Failure to Fulfill the Rights
Guaranteed by CAs Expungement Statute

• Unless laws are enacted to conceal criminal
  records from the public, the expungement statute
  will have little effect.

38
Certificates of Rehabilitation

• A person with a felony conviction, where
  probation was not granted and a term in state
  prison was imposed is ineligible to apply for an
  expungement. In these cases, the only relief
  available is to obtain a Certificate of
  Rehabilitation from the courts (which
  automatically triggers a request for a Governors
  Pardon) or to apply directly for the pardon.
• Note Governor Schwarzenegger has only granted 3
  pardons since taking office.

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What is a Certificate of Rehabilitation?

• A certificate of rehabilitation is a court order
  declaring that a defendant previously convicted
  of a felony (or misdemeanor sex offense) in
  California has now been rehabilitated.

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What a Certificate Can Do

• Unlike an expungement, it doesnt allow you to
  check no on an application but, it may help
  get you hired with those employers who view it as
  an assurance of trustworthiness
• It may assist with obtaining occupational
  licenses depending on the agency

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Who Can Apply?

• Generally, people who are eligible to apply for a
  Certificate of Rehabilitation include those who
• Were convicted of a felony on or after May 13,
  1943 and
• Were sentenced to CA state prison and
• Were discharged from custody or released on
  parole and
• Present satisfactory evidence of five years
  residence in California immediately prior to the
  filing of the petition.

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Who Can Apply?

• The following people are generally not eligible
• Those who were convicted only of misdemeanors
  (except those convicted of a misdemeanor sex
  offense specified in Penal Code section 290) or
• Those who are serving a mandatory life parole or
  
• Those committed to prison under a death sentence
  or
• Those persons in the military service.

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When to Apply

• Persons eligible to petition for a Certificate
  may file the petition once the period of
  rehabilitation has passed. The period of
  rehabilitation begins to run upon the discharge
  from prison due to the completion of the term, or
  upon release on probation or parole.
• The period of rehabilitation constitutes 5 years
  residence in California PLUS a number of
  additional years according to your offense
  (anywhere from 2-5 years)so you must wait a
  minimum of 7 years.

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Collective Empowerment through Legal and
Legislative Action

• Lawsuits to Enforce anti-discrimination law
• Create state laws that prohibit discrimination
  against individuals with criminal convictions

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Collective Empowerment through Legal and
Legislative Action

• Ban the Box at local and county level
• Lobby for laws limiting public access to criminal
  records
• Bostons Success Story

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Collective Empowerment through Legal and
Legislative Action

• Private employer education campaigns
• Broad education
• Develop relationships with specific employers and
  ask them to commit to hiring people with criminal
  records.
• Job training programs
• Example Christopher Place Employment Academy in
  Baltimore

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Collective Empowerment through Legal and
Legislative Action

• Reassuring Employers
• Tax incentives for hiring formerly incarcerated
  individuals
• Expanded bonding programs to limit employer
  liability for negligent hiring
• Eliminate state statutes that restrict employers
  from hiring individuals with criminal convictions