The California legislature has approved a bill that would dramatically expand protections for people with a criminal record under the state’s Fair Employment and Housing Act (FEHA). AB 1008 provides that non-conviction records may not be considered at all in any employment decision by a covered employer (one with more than five employees), and makes violation of this an unfair employment practice under FEHA. Non-conviction records include records of convictions that have been dismissed pursuant to California’s set-aside law, and convictions that have been sealed or expunged.
The new law makes it an unfair employment practice to ask about an applicant’s conviction record before a conditional offer of employment, and requires an employer who intends to deny employment solely or in part because of the applicant’s conviction history to make an individualized assessment of whether this has “a direct and adverse relationship with the specific duties of the job.” In making that individualized assessment, the employer must take into account (i) The nature and gravity of the offense or conduct; (ii) The time that has passed since the offense or conduct and completion of the sentence; and (iii)The nature of the job held or sought.
The bill still has to be signed by Governor Brown, but when that happens California will become the fourth state in the country, after New York, Wisconsin, and Hawaii, to extend the full protections of its fair employment law to individuals with a criminal record.
In a recent law review article, Why Prosecutors Rule the Criminal Justice System—And What Can Be Done About It, 111 Nw. U. L. Rev. 1429 (2017), Judge Rakoff discusses the history of prosecutorial power, plea-bargaining, and mass incarceration, and reviews some of the possible solutions. The short version:
- Repeal mandatory minimum and career offender laws (something the federal judiciary has requested for several decades) and a reduction in the sentences “recommended” by sentencing guidelines.
- Do away with plea bargaining altogether? This, in fact, is the status quo in many European countries. In Germany, for example, where plea bargains are officially not recognized, roughly 50% of all criminal cases go to trial, and most of the remaining cases are resolved through de facto pleas to the initial charges.
- Promulgate binding regulations, similar to those enacted by administrative agencies, that would govern plea bargaining
- A voluntary version of the same basic proposal, that prosecutorial agencies, state and federal, each adopt some internal guidelines that, while not enforceable by outside parties, would nevertheless bring some order to prosecutors’ exercise of discretion in the plea bargaining process.
- A variation on what is sometimes referred to as a “preliminary hearing.” where the prosecutor and defense counsel would be required to appear shortly after indictment before a judicial officer, who would separately question them, in camera and under seal, as to what their evidence was, what discovery they would likely have, and what disposition they were seeking. The judicial officer, without revealing any of this information to the other side or to the judge who would be assigned to the case for all other purposes, would then recommend to the parties what leads still needed to be explored, what disclosures needed to be made, and, where appropriate, what the judicial officer thought would be a fair disposition of the case. In other words, the judicial officer would, in effect, oversee the plea bargaining process and, while not having the power to force either side to his view, could use her persuasive powers to assure a fairer, more neutral process. (This is Rakoff’s own proposal – a variation is currently in practice in the Connecticut).
- Have prosecutors occasionally serve as defense counsel
One legacy of the “tough on crime” era is the aging prison population. From 2009 to 2013, the number of federal prisoners over the age of 50 increased by 25 percent even as the figure for the incarcerated under age 50 dropped. More than 10,000 federal prisoners are in their 60s, 70s or 80s. Older inmates have significantly higher medical costs than younger inmates, and often need special accommodations (such as lower bunks or wheelchair-accessible areas) that prisons are ill-equipped to provide. In an effort to address these issues, AG Holder announced an expanded compassionate release program for inmates who were elderly, seriously ill or both. But the Washington Post reports that only 2 of the 296 release requests made by elderly inmates were granted during the first 13 months Holder’s expanded guidelines were in place.
What is the problem? In part its that the “default” for decision-making about compassionate release is that elderly and infirm prisoners do not receive compassionate release unless significant time and effort is expended by the inmate and multiple levels of the federal bureaucracy. If anyone at any level disapproves or indeed just doesn’t put in any effort one way or the other, the compassionate release isn’t granted. Likewise, if the bureaucracy is simply slow at reviewing even the most meritorious cases, the release isn’t granted, which is why a significant proportion of applicants die waiting for their case to wind its way through the system.
Changing defaults changes decisions, the most famous example being that employees save much more for retirement if they have to fill out a form to opt out of their company’s 401(k) plan rather than fill out a form to opt in. If Congress wants compassionate release more broadly employed, legislators could pass a law that shifts the default to granting compassionate release for elderly inmates instead of denying it.