The Human Rights of Ex-Offenders

International Treaties I

• Maryland Constitution: Declaration of Rights Article II

• "The Constitution of the United States, and the Laws made, or which shall be made, in pursuance thereof, and all Treaties made, or which shall be made, under the authority of the United States, are, and shall be the Supreme Law of the State; and the Judges of this State, and all the People of this State, are, and shall be bound thereby; anything in the Constitution or Law of this State to the contrary notwithstanding."

International Treaties II

• Universal Declaration of Human Rights: Article 23: “Everyone has the right work”

• International Covention on the Elimination of All Forms of Racial Discrimination Art. 5 “parties [to treaty] undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee…the enjoyment of the…the right to work”

• OAS Declaration of the Rights & Duties of Man, Art. XIV: “Every person has the right to work”

Maryland Constitution

• Article 27: “That no conviction shall work corruption of the blood or forfeiture of estate.”

• Forfeiture of Estate = loss of land

• Loss of livelihood?

• Corruption of Blood = sins of parents visited on the children

Maryland Court of Appeals I

• Singer v. State, 72 Md. 464, 19A. 1044 (1890) • “ No one questions the right of every person in

this country to follow any legitimate business or occupation he may see fit. This is a privilege open alike to every one. His own labor, and the right to use it as a means of livelihood is a right as sacred and fully protected by the law as any other personal or private right.” Singer, at 1045.

Maryland Court of Appeals II

• Singer again: • State can qualify the right• “The nature and extent of the qualifications

required must primarily depend on the judgement of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable application, no objection to their validity can be raised.”

Title VII of Civil Rts Act

• Can’t discriminate on the basis of Race

• Neutral Tests—like criminal records screening, can be considered to be racial discrimination

• Employer can avoid this by showing the screening is JOB RELATED and CONSISTENT with business necessity

What Must Employers Do?

• Nature and gravity of the offense

• The time that has passed since the conviction and/or completion of the sentence

• The nature of the job held or sought

• SUMMARY: JOB RELATEDNESS of Conviction and TIME FRAME INVOLVED

What Employers Can’t Do

• No Questions About Arrests

• No Broad Based Prohibitions --“We don’t hire anyone with a conviction, regardless of the crime”

• Too Broad a policy—will screen out minorities at a higher rate than whites & violates Title VII

What is a Conviction and What Isn’t?

• Guilty = Conviction

• Non Convictions

• Probation Before Judgment

• Stet

• Nol Pross

• Dismissal

• Acquittal

Probation Before Judgment

• Sufficient evidence exists to convict, but court allows defendant to escape the stigma of conviction through an agreement to abide by the terms of probation

• Pleads Guilty, No Contest, or Found Guilty• If Probation violated, court can enter conviction• is not a conviction for the purpose of any

disqualification or disability imposed by law because of conviction of a crime. Crim Pro 6-220

Stet

• The State postpones the trial

• Indefinitely (forever)

• May be rescheduled by request of state within one year

• After one year, state needs to show “Good Cause” for rescheduling it

• MD Rule 4-248

Nolle Prosequi

• MD Rule 2-247

• State Terminates the Prosecution

• Charge is technically dismissed but disposition is Nolle Prosequi

What is a Conviction and What Isn’t?

• Guilty = Conviction

• Non Convictions

• Probation Before Judgment

• Stet

• Nol Pross

• Dismissal

• Acquittal

Expungement

• Generally—Only the Non Convictions

• PBJ, Nol Pros, Stet, Dismissal, Acquittal

• Recent change in law allowing some convictions to be expunged

• Panhandling

• Public drinking-urinating-obstruction passage

• No proof MTA-loitering-park vio

Expungement & Nol Pross

• Aside from those Nuisance crimes, only NON-CONVICTIONS can be expunged

• Special Rules depending on the non-conviction

• Nol Pross? Expunge anytime as long as not convicted of a criminal offense SINCE time of nol pross

• Example: 01 Nol Pross, then 08 Conviction—you are out of luck

Expungement and STET or PBJ

• Like Nol Pros – if you’ve been CONVICTED since the time of the Stet or PBJ, you have lost your right to expunge the stet or PBJ

• Also, must wait three years to file expungement request (3 yrs after entry)

Expungement Process

• File Expungement Petition in Court in which the PBJ, Stet, Nol Pross, Dismissal, Acquittal occurred

• Filing Fee Waiver

• Roughly 60 days—Order

• Compliance with Order

Expungement Summary

• Really only good for folks without convictions

• New Law—nuisance crimes

• PBJ and Stet—Need to wait three years

Expungement Example

• 03 Stet– CDS possession

• 04 PBJ– possession

• 05 Stet—theft less than $300

• Nothing since? Can expunge the all after three year wait and if no convictions since

• File Petition

• Await Orders of Compliance

Expungement Example II

• 03 Stet– CDS possession

• 04 PBJ– possession

• 05 Stet—theft less than $300

• 06 Guilty– CDS possesion

• CONVICTION extinguishes right to expunge these charges (Stet, PBJ or Nol Pros)

Expungement Example III

• 03 Dismissed– CDS possession

• 04 Dismissed– possession

• 05 Dismissed—theft less than $300

• 06 Guilty– CDS possession

• Still can expunge the Dismissals

• CONVICTION extinguishes right to expunge a Stet, PBJ or Nol Pros

Recap

• There is a Right to Work (freedom to work)• It Can’t be abridged on basis of race• Racial disparities in arrests & convictions• Title VII of Civil Rights Act requires Employers to

used a standard that is JOB RELATED and CONSISTENT with business necessity

• Expungement is a limited tool—ONLY for NON CONVICTIONS (w/homeless nuisance exception) and for THOSE WHO HAVE KEPT OUTTA TROUBLE SINCE….