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State Reforms Reducing
Collateral Consequences for
People with Criminal Records
Tuesday, Sept. 25, 2012
Panelists: Rachel Bloom, ACLU; Nicolette Chambery, CBI;
Roberta Meyers, LAC/HIRE; Nicole Porter, The Sentencing
Project; and Michelle Natividad Rodriguez, NELP
A project of
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Collateral Consequences of a Criminal Conviction
Collateral consequences are the additional penalties tied
to a conviction that greatly impact an individual’s capacity to engage politically, economically and socially
upon their reentry to society. These consequences
include barriers to housing, education, and employment,
felony disenfranchisement, and ineligibility for public
benefits. Collateral consequences are distinct from direct
consequences of convictions in that they are not factored
in to the calculation of punishment or sentencing, and
are triggered outside the jurisdiction of the courts.
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The Growing Impact of Collateral Consequences
As the U.S. prison population grows, so do the
number of individuals impacted by collateral
consequences.
The American Bar Association has identified
over 38,000 collateral consequences.
Approximately 19.8 million Americans have a
felony conviction, 8.6% of the adult population.
An estimated 65 million Americans have a
criminal record.
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Momentum for Reform
Growing awareness of the negative impact of
collateral consequences.
Bills to advance a proactive agenda were
introduced in approximately half of all state
legislatures in 2012.
Strong bipartisan support for reforming collateral
consequences.
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Agenda
Federal Opt Out (Roberta Meyers, LAC/HIRE)
Negligent Hiring (Roberta Meyers, LAC/HIRE)
Ban the Box (Michelle Natividad Rodriguez, NELP)
Expungement (Nicole Porter, The Sentencing Project)
Felony Enfranchisement (Nicole Porter, The Sentencing
Project)
Universal Collateral Consequences of Conviction Act
(Nicolette Chambery, Crossroad Bible Institute)
Q&A (Rachel Bloom, ACLU)
State Reforms Reducing Collateral
Consequences for People with
Criminal Records
National H.I.R.E. Network
Webinar
Tuesday, September 25, 2012
Roberta Meyers
Director
Restoring Eligibility for Public Benefits
Drug felony ban on Supplemental Nutrition Assistance Program (SNAP) and
Temporary Assistance to Needy Families (TANF)
12 States have fully opted out (DE, KS, ME, NH, NJ, NM, NY, OH, OK.
PA, RI, VT)
7 States have full ban (AL, AK, GA, MI, SC, TX, WV)
32 States have a limited (modified) ban on SNAP or TANF
SNAP: 15 States plus DC—No Ban
TANF: 14 States—No Ban
**4 States introduced measures to increase access to benefits (AL, CA, MO, PA)
***5 States adopted measures to reduce access to benefits through drug testing
(GA, OK, TN, UT, and WV)
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Employer Negligent Hiring Protections
Why a policy consideration?
Negligent hiring liability is one of the top reasons
employers say they may not hire an individual with a
criminal record.
A new policy that offers additional and overt
protections to employers may increase employment
opportunities for job seekers with criminal histories.
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State Negligent Hiring Policies
Colorado: C.R.S. § 8-2-201(2)(a)
restricts information at trial
Florida: FL. Stat. Ann. §768.096
presumption against negligent hiring with adequate background investigation
Massachusetts: 6 Mass. Gen. Law. 172(e)
safe harbor attached to CORI (long term care facilities)
New York: N.Y. Exec. Law § 296(15)
rebuttable presumption
North Carolina: N.C. Stat. § 15A-173.5
limited liability attached to certificate
Ohio:
immunity from negligent hiring of employee with certificate
CO, MN, NJ, NY, VT, WV, and WI—new proposals introduced but not passed
Resources
Advocacy Toolkits to Combat Legal Barriers Facing Individuals with Criminal Records:
http://www.lac.org/toolkits/Introduction.htm
Make Your Voice Heard: Guidelines for Effective Advocacy:
http://www.hirenetwork.org/content/make-your-voice-heard-guidelines-effective-advocacy
ABA National Collateral Consequences Inventory:
http://www.abacollateralconsequences.org/CollateralConsequences/index.html
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“Ban the box”: Fair Hiring and Occupational Licensing Standards
National Employment Law Project
September 25, 2012
Michelle Natividad Rodriguez
Staff Attorney
11 www.nelp.org
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“Ban the Box:” Restoring Hope and Opportunity to
Workers with Criminal Records
• Benefits to worker: remove chilling effect, decrease stigma, demonstrate qualifications
• Benefits to employers: maximize applicant pool and can reduce resource expenditure
www.nelp.org
13 www.nelp.org
State Coverage & Inquiry Screening Criteria Other Protections
California (2010)
Executive Policy
Public Employment
Colorado (2012)
HB 1263
Public
Employment/Licensing
(checked when finalist or
conditional offer)
Must consider nature of offense
& relationship to job, age of
offense, rehabilitation
Cannot consider arrest that did not
lead to conviction, limits
consideration of expunged offenses.
Connecticut (2010)
HB 5207
Public
Employment/Licensing
Boards (checked when
otherwise qualified)
Must consider nature of offense
& relationship to job,
rehabilitation, age of offense
Written statement of reasons for
rejection.
Hawaii (1998)
HRS Sections 378-2,
378.2.5
Private and Public
Employment (checked
when conditional offer of
employment)
Criminal record must bear a
“rational relationship” to the
job
Employers may not consider
felonies over 10 years (excluding
incarceration)
Massachusetts
(2010) Ch. 256 of
Acts 2010
Private and Public
Employment (checked when
finalists selected)
Employers may not consider
felonies over 10 years and
misdemeanors over 5 years
Minnesota (2009)
Minn.Stat., Section
364, et seq.
Public Employment
(checked when selected for
interview)
Requires convictions to be “job
related” for public employment
and licensing purposes, and
consider rehabilitation
Cannot consider arrest that did not
lead to conviction, expunged
offenses and misdemeanors not
involving jail time.
New Mexico (2010)
N.M. Stat. Section
28-2-3
Public Employment
(checked when finalists
selected)
Conviction must be
“substantially related” to the
job
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Success! Colorado HB 1263 Prohibits state agencies and licensing agencies from performing a background check until finalist or conditional offer.
Must consider: (1) nature of conviction; (2) direct relationship of conviction to job; (3) rehabilitation and good conduct; and (4) time elapsed.
Prohibits use of arrests not leading to conviction.
No disqualifications based on expunged/dismissed unless agencies first consider factors.
Exempt: statute bars, certain public safety or correction-related jobs.
Voluntary information can be considered.
Prohibits blanket ban ads.
Supported by Colorado Criminal Justice Reform Coalition.
www.nelp.org
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Introduced Legislation in 2012
1. California AB 1831
2. Illinois HB 1210, Amd. No. 1
3. Maryland SB 671/HB 800
4. Minnesota HF 1448/SF 1122
5. New Jersey A2300
6. Rhode Island HB 1160, SB 241
7. Vermont H717
www.nelp.org
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Highlights of Introduced Legislation
California: applied to city and county
employment
Illinois: now an even stronger bill with House
Cmte. Amd. No. 1
Maryland: significant that garnered support
from powerful state agency
www.nelp.org
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Highlights of Introduced Legislation
Minnesota: applied to private employment
New Jersey: penalty for violation is $10,000 for
first offense and $20,000 for second offense
Rhode Island: must be “direct causal relationship” between offense and license/employment
Vermont: first attempt
www.nelp.org
Resources
65 Million Need Not Apply: The Case for Reforming Criminal
Background Checks http://www.nelp.org/page/-
/SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1
State Ban the Box Guide http://www.nelp.org/page/-
/SCLP/ModelStateHiringInitiatives.pdf?nocdn=1
18 www.nelp.org
Changes in State Collateral Sanctions Policies The Sentencing Project
Nicole D. Porter Director of Advocacy
Expungement and Sealing: Reducing Employment Barriers
• 2012, at least 8 states - Delaware, Georgia, Louisiana, Ohio, Maryland, North Carolina, Tennessee and Utah—adopted measures that authorize or expand expungement relief for criminal convictions.
• At least 8 other states, including Alabama, Florida, Kentucky, Louisiana, Missouri, New Jersey, New York and Rhode Island, introduced expungement provisions during 2012
• 3 measures -- in New Mexico, South Carolina, and West Virginia—were adopted by the legislature, but vetoed by the governor
•2012: Delaware’s House Bill 9
•1997-2010: 23 states enacted
reforms to disenfranchisement
policy
• 800,000 citizens regained voting
rights
Introduced Legislation to Enact the
Uniform Collateral Consequences of
Conviction Act Crossroad Bible Institute
Nicolette Chambery
Advocacy Coordinator
UCCA Background
• The Uniform Collateral Consequences of Conviction Act was
written in response to the increasingly high number of men and
women that were unable to find housing, employment, and access
to public benefits, upon their release from prison.
• Recognizing these and other missing opportunities as imperative
to a successful reentry, this act provides information and relief to
attorneys, their clients, and the public that equips them with tools
that mitigate these effects.
• Though no state has enacted UCCA, advocates are confident that
progress made in past years will continue into next year.
2011 Introduced Legislation
• North Carolina
• New Mexico
• Colorado
• Minnesota
• Vermont
• Nevada
• West Virginia
2012 Legislation
• New York Assembly Bill 8546
– The partisan divide between Assembly Members and the Senate remains to be a barrier in passing this legislation and concern for adopting a policy too soft on crime.
– Reentry reforms have been adopted on smaller scales and Assembly Members are hopeful this practice will continue to enact UCCA.
– This bill is being revised to accommodate existing relief mechanisms already in place, and will be reintroduced next session.
2012 Legislation
• Vermont Senate Bill 38
– This measure gained significant ground last session, and supporters of this bill are confident they have extinguished concerns surrounding its enactment.
– Advocates are hopeful the ABA study of which collateral consequences attach to a particular statute will be a great resource in the passage of this bill. The first 11 states in this study will be available at the end of September.
– This bill will be reintroduced next year.
2012 Legislation
West Virgina House Bill
– This bill was originally recommended by the Joint
Standing Committee on the Judiciary, though no action
was taken and it never received a hearing.
Wisconsin Senate Bill 304
– Senate Bill 304 also did not receive a hearing due to
opposition from the Chair with specific concerns over
public safety.
2012 Legislation
• Minnesota House Bill 489/Senate Bill 1448
– Though great progress continues to be made, some legislators have yet to embrace criminal justice reform.
– Advocates for this measure are meeting in late September to determine new strategies for raising awareness and support for this bill to accommodate concerns from lawmakers.
Rachel Bloom Nicole Porter
[email protected] [email protected]
www.aclu.org www.thesentencingproject.com
Nicolette Chambery Michelle Natividad Rodriguez
[email protected] [email protected]
www.cbi.fm www.nelp.org
Roberta Meyers
www.hirenetwork.org
A project of
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Contact Information
