Shared Prosperity RoundtableCriminal Records:

From Barriers to Solutions

Sharon M. Dietrich, Litigation DirectorCommunity Legal Services, Inc.

Philadelphia, PA sdietrich@clsphila.org; 215-981-3700

September 29, 2014

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Background on Criminal RecordIssues

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How Many People Have Criminal Records?

Believe it or not, no one knows for sure.USDOJ: est. 100 million American adults, or 1

of 3.Applying this ratio to Philadelphia,

conservative estimate of 400,000 people.Any way you measure it, it’s a LOT of people

and a large percentage of the population.

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Racial Disparities in Arrests

African Americans are 14% of the population, but 28% of all arrests.

Hispanics are arrested on federal drug charges 3 times the proportion of the population.

African Americans and Hispanics are more likely to be arrested for drug offenses than Whites, despite similar rates of use.

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Many Collateral Consequences

Employment Housing (public and private) Public benefits (in PA, mostly around BWs/probation

violations/criminal debt payments) Immigration (removal for “aggravated felonies”) Student loans Parental right termination (under ASFA) Debt (criminal debt and child support)

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Rise in Background Screening

Background checks are now easily obtainable.Est. 87% of employers check backgroundsCommercially prepared reports are replete

with errors: mismatches, reporting expunged cases, wrong grade of offense, etc.

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Huge Impact on Employment

Recent NIJ study: Any lifetime arrest decreases employment opportunities more than any other employment-related factor.

Earnings loss estimated at 10-40%.No case too old or too minor to have an effect

on employment.

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Criminal Record Problems Drive CLS’s Employment Work

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Disconnect between Desistence and Life-Long Consequences

Social science research supports a point of “redemption” (when a former offender presents similar risk as others) – around 7 years.

But many of the collateral consequences are life-long bans.

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Conflation of Reentering People/People Who Have Desisted

Focus on “reentry” of people from prison is overly simplistic.

Different needs, different policy and legal implications depending on time since offense.

But all share the burden of their criminal records. This includes people with arrests not leading to conviction.

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Incarceration Increases Poverty

2009 Villanova paper: had mass incarceration not occurred, the poverty rate would have fallen by more than 20% between 1980-2004.

Possible reasons: Removing breadwinners from the family; depressed wages afterward.

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Legal Framework:Record-Clearing and Employment

Rights in PA

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Why Does Record-Clearing Matter?

Because the best record is NO record.The next best record? Less of a record.A person doesn’t have employment and other

barriers if the record doesn’t exist.In PA, the mechanisms are expungements and

pardons.

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What Can Be Expunged in PA?

Arrests on which there are not convictions Cases in which diversionary sentences have been

successfully served (such as for ARD or Probation Without Verdict/Section 17)

Convictions for summary offenses after five years without arrest

Convictions for underage drinking Convictions of persons who are 70 years old or older

and who have not been arrested in ten years.

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What Cannot Be Expunged in PA?

Most convictions cannot be expunged.Convictions go through the pardon process –

possible, but extremely long-term.Bills in Harrisburg that would allow some

misdemeanors to be expunged were promising but have stalled.

How Does PA Compare to Other States?

30 states have broader expungement laws.19 states allow some felony convictions to be

expunged.23 states allow some misdemeanor

convictions to be expunged.

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Employment Law Protections for People with Criminal Records

Race discrimination law (Title VII)State law – “Section 9125”City “Ban the Box” Ordinance – focuses more

on timing of background check than employer consideration of a criminal record

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Nature of Race Discrimination Claim

Title VII prohibits discrimination that is unintentional if a neutral rule has a racially disparate impact (i.e., background checks disproportionally exclude people of color).

EEOC has new 2012 policy guidance that specifically deal with the disparate impact of arrest and conviction records.

http:www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf

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Title VII: Arrests

The fact of an arrests which has not led to a conviction MAY NOT be considered by an employer (i.e., can’t just reject for an arrest on a background check).

An employer MAY evaluate the likelihood that the person engaged in the conduct for which s/he was arrested.

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Title VII: Considering Convictions

EEOC policy says that an employer is to consider the following factors:

1. The nature and gravity of the offense/conduct;

2. The time that has passed since the offense and/or the sentence completion;

3. The nature of the job held or sought.

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Title VII: Individualized Assessmentsof People with Convictions

Not legally required, but EEOC strongly recommends employers to do this to avoid liability.

Process: Employer notifies applicant of possible rejection; Applicant has opportunity to respond; Employer considers what applicant said.

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Individualized Assessments: Factors to be Considered

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Title VII: Some Implications about Convictions

Across-the-board exclusions usually violate Title VII (i.e., an employer cannot demand “clean” criminal records).

So does the firing of current employees who are performing well but have criminal records.

So do on-line applications that kick out people with a record.

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State Law Limitations

Title 18 Pa. Statutes Sect. 9125 says:

“Felony and misdemeanor convictions may be considered by the employer only to the extent to which they relate to the applicant’s suitability for employment in the position for which he has applied.”

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Some Implications of Section 9125

Employers should not consider: Arrests without conviction; Summary offense convictions; Juvenile adjudications of delinquency.

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Local Issues Regarding Criminal Records

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Philadelphia’s “Ban the Box” Ordinance

Applies to private employers of 10 or more.Can’t ask applicant to disclose convictions

before the first interview.Can’t ask about arrests not leading to

convictions.Enforced by Phila. Comm. on Human

Relations.

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RISE (Mayor’s Office of Reintegration Services)

• Case management;• Substance misuse treatment;• Behavioral health services;• Educational services;• Vocational training;• Computer literacy;• Employment services.

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PREP Tax Credits

Hire an individual who has an Agreement with R.I.S.E. in a full-time position working at least 37 and ½ hours a week or in a part-time position working at least 20 hours a week, but no more that 37 and ½ hours.

Employee must be employed for at least a 6 month period. Request a maximum amount of $30,000 in tax credits against

the business privilege tax for any 1 employee over all tax years and $15,000 for any 1 part-time employee.

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Prosecution of Minor Crimes

Decriminalization of marijuana.• Possessing fewer than 30 grams of marijuana is a civil

offense; violators face a $25 fine, but no arrest or criminal record.

• Public use of the drug is civil offense with a penalty of a $100 fine or up to nine hours of community service.

But rash of summary citations for “quality of life” offenses.• City Paper: 13,323 in 2009 to 23,458 last year.

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Collection of Criminal Debt

Starting in 2011, the City has aggressively tried to collect $1.5 billion in fines, costs, restitution, supervisory fees, and forfeited bail from more than 320,000 Philadelphians, about 21% of the City’s population.

Film: “Pay Up! Criminal Justice Debt in Philadelphia” http://www.youtube.com/watch?v=589fkbqZuOU&feature=BFa&list=SP21FF8A914F87F246

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Solutions???

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Solutions, In My Humble Opinion

Expanded expungement: broader expungement law; more methods to expunge.

Greater enforcement of law against employers.

Transitional work programs.More access to City jobs.More reasonable policies on criminal debt.

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