Category Archives: Reentry

Disenfranchisement in Alabama

Alabama passed a law in May clarifying which felonies constituted “moral turpitude,” potentially enfranchising thousands of citizens, but Secretary of State John Merrill had said that his office wouldn’t take any action to make sure that people affected by the law actually know about it. The Campaign Legal Center, which is representing 10 plaintiffs suing the state over the moral turpitude law, has now asked the court to require Merrill to take meaningful measures to advertise the changes to the law, such as updating his website, election forms or advising local voter registrars. With a voter registration deadline for a special election for U.S. Senate approaching at the end of July, the Center said Merrill must act soon to educate voters.

Alabama had blocked people convicted of a crime of “moral turpitude” from voting since 1901 but never explicitly defined what constituted an offense of moral turpitude, although the law was limited to felonies in the 1990s. The ambiguity gave local election officials broad discretion to deny people the right to vote, which means some eligible voters may have been told in the past that they couldn’t vote and may continue to think they can’t.

“The state is responsible for correcting the confusion that has wrongly disenfranchised voters for decades. In order for HB 282 to have any meaningful effect, Alabama must notify voters about their right and ensure they are able to successfully cast a ballot going forward,” Danielle Lang, a lawyer at Campaign Legal Center, said in a statement. In addition to promoting the changes in eligibility, the Center has asked the court to require the state to automatically reinstate and notify voters who were disqualified to vote in the last two years but are now eligible. It also requests that the state produce a comprehensive list of all individuals who had been blocked from voting because of a conviction over the last two years and implement a public education plan targeted at people with convictions.

LA County Moves Forward On “Fair Chance”

The LA County Board of Supervisors is moving forward on several “fair chance” ordinances that would bar county government, businesses that contract with the county and businesses that operate in unincorporated L.A. County, from applying restrictions on employment  based solely on prior criminal records. This could include such policies as not asking job seekers about criminal convictions until a conditional offer of employment is made, giving them an opportunity to appeal if an offer is rescinded and fining businesses that repeatedly flout the guidelines.

According to the National Employment Law Project, an advocacy and research organization that tracks these policies nationwide, 28 states and more than 150 counties and cities now have “ban the box” policies, which eliminate the check box on job applications that asks about prior criminal convictions.

In nine states and 13 cities, including Los Angeles and San Francisco, these policies extend to private employers.

A California state law that went into effect in 2014 prohibits public employers from asking about criminal history on the initial application.

The state legislature is considering a bill that would make it unlawful for any employer, including private businesses, to ask about an applicant’s criminal history until a conditional offer of employment is made.

 

New CA Regulations on Criminal History in Hiring Decisions

On July 1, new regulations took effect in California further limiting employer’s ability to use an applicant’s criminal history in hiring decisions. Under 2 CCR § 11017.1, adverse action based on criminal history may violate state law, closely tracking the 2012 guidance issued by the U.S. Equal Employment Opportunity Commission that consideration of criminal history by employers violates Title VII of the federal Civil Rights Act when it adversely impacts racial minorities and is not job-related or consistent with business necessity. Factors used to determine whether a particular practice is job-related and consistent with business necessity, including whether it takes into account “the nature and gravity of the offense,” “the time that has passed since the offense,” and “the nature of the job held or sought.” The text:

“(a) Introduction. Employers and other covered entities (“employers” for purposes of this section) in California are explicitly prohibited under other state laws from utilizing certain enumerated criminal records and information (hereinafter “criminal history”) in hiring, promotion, training, discipline, lay-off, termination, and other employment decisions as outlined in subsection (b) below. Employers are prohibited under the Act from utilizing other forms of criminal history in employment decisions if doing so would have an adverse impact on individuals on a basis enumerated in the Act that the employer cannot prove is job-related and consistent with business necessity or if the employee or applicant has demonstrated a less discriminatory alternative means of achieving the specific business necessity as effectively.”

 

State-by-State Review of Restoration of Rights

The Collateral Consequences Resource Center has published a new and improved state-by-state analysis of  law and practice in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction. The jurisdictional profiles cover the loss and restoration of civil rights and firearms rights, judicial and executive mechanisms for avoiding or mitigating collateral consequences, and provisions addressing non-discrimination in employment and licensing. Links to many original sources are included. The analysis includes a set of 50-state comparison charts showing national patterns in restoration laws and policies.

This work is an invaluable resource for criminal justice practitioners in all phases of the system, particularly for policymakers and advocates interested in reentry and reintegration of convicted persons, and for the millions of Americans with a criminal record who are seeking to put their past behind them.

“Ban the Box” in Louisiana

Louisiana has become the first state to ban public colleges from asking about criminal history.  Last year the Department of Education asked colleges to voluntarily remove criminal history questions from their applications, and some large public university systems including California’s and New York’s – as well as some private colleges – have done so. But Louisiana’s is the first statewide ban. The Republican governor of Maryland, Larry Hogan, vetoed a similar law for college applications in May, saying “Parents have an expectation that the school to which they entrust their child will do everything possible to keep their students safe.”

As many as 70 to 100 million Americans have some kind of criminal record, with the highest proportion in minority communities. The “ban the box” movement is intended to open opportunities to these Americans by preventing discrimination on the basis of those records alone. Twenty-four states, Washington, D.C., and the federal government now prohibit asking about a criminal record on public job applications.

The Mugshot Industry

A Marshall Project report on the uniquely American practice of publishing mug shots, even those of individuals never charged or later found innocent. As the Sixth Circuit Court of Appeals said last year in denying a newspaper’s request for U.S. Marshals’ booking photos: “Mugshots now present an acute problem in the digital age. These images preserve the indignity of a deprivation of liberty, often at the (literal) expense of the most vulnerable among us.”

In Illinois, a potential class action suit has been filed against “mugshots.com” describing the site as an extortion racket that, among other things, deliberately and routinely published inaccurate information in order to drive people to a prominently advertised “sister” site — unpublisharrest.com — where, for removal services, they spent anywhere from $399 (for a single arrest) to $1,799 (for five).

As one of the attorneys in the suit said, “They were deliberately trying to use this information as a cudgel to beat people with because they are desperate enough to pay that kind of money,”

Collateral Consequences, Cont.

The Washington State Bar has denied membership to Tarra Simmons, a third-year law student, convicted felon and former drug addict who in December won a Skadden Fellowship to help people recently released from prison. The Bar’s “character and fitness board” voted against Simmons’ recommendation 6-3, according to Northwest Public Radio reports.

Previously a registered nurse, Ms. Simmons became addicted to prescription drugs and methamphetamine after her father died, as self-medication for depression. In 2011, she was charged with felony theft, drug possession and gun possession. She pleaded guilty to the drug and theft charges and served 20 months in state prison.

Simmons told the ABA Journal “I understand the bar’s concerns because I have made some serious mistakes in my past. I respect the individuals on the board and I respect the process. I hope to use my experiences and achievements to assist former justice-involved individuals by offering them a lawyer who has lived their experience. As an attorney who brings that background, they can relate and trust me to assist them to overcome barriers and rejoin society.”

Attorneys who helped Simmons with her home foreclosure, debt and family law issues encouraged her to become an attorney, according to the Northwest Public Radio piece. She cannot sit for the Washington Bar without a character and fitness recommendation.

Boston Globe: “Less Power For Prosecutors

The Boston Globe cites Fordham professor John Pfaff’s research, discussed in a previous blog, to call fro a reduction on prosecutorial power to solve the problem of mass incarceration. In an editorial titled “Why we should free violent criminals,” the Globe staff cites Pfaff’s upcoming book,  Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform: “We put all of our attention — almost all of our attention — on things that aren’t nearly as important as the things we ignore.” Pfaff’s research shows that the war on drugs is not the primary driver of  America’s huge prison growth over the last several decades; less than 20 percent of the country’s 1.5 million prisoners are serving time for such offenses. Free them all tomorrow, and the United States would still have the largest prison population in the world — larger than Russia, Mexico, and Iran combined. Nor are mandatory minimums the biggest problem. The issue is prosecutors becoming more and more aggressive about seeking jail time. In the mid-’90s, prosecutors filed felony charges against about one in three arrestees. By 2008, it was more like two in three. The push to file more felony charges, according to Pfaff, is the single most important factor in the growth in prison admissions since crime started dropping in the early-’90s.