Prisoner Reentry Issues for Legal Services Advocates

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1 Prisoner Reentry Issues for Legal Services Advocates CORT First Fridays Friday, September 3, 2010 Melissa Lindsay 2010 Ohio Poverty Law Center

2 Road Map Collateral Consequences Background Checks Ban the Box Title VII of the Civil Rights Act Working with the criminal defense bar

3 Collateral Consequences AKA collateral sanctions The civil or other consequences from a criminal conviction Examples: -Sex offender registration -Professional licensing -Firearm possession -Housing -Public benefits -Driver s s license -Employment

4 Collateral Consequences There are over 400 collateral consequences within the Ohio Revised Code Most are employment and professional licensing Represents tough on crime legislation at its worst Does not include public housing restrictions Does not include restrictions by the private sector What s s to be done?

5 Collateral Consequences Collateral Consequences Database Minnesota: Ohio is using Minnesota s s database as a model Funding secured Beta version launch: January 2011 EXCELLENT tool for all criminal and reentry advocates

6 Padilla v. Kentucky Collateral Consequences SCOTUS decision issued March 31, 2010 Expands 6th Amendment rights Held that it was ineffective assistance of counsel under Strickland v. Washington for a criminal defense attorney to not warn his non- citizen client of immigration consequences of guilty plea Facts: Jose Padilla had been a lawful permanent resident in the US for more than 40 years. Padilla had served in the US Armed Forces in Vietnam. Padilla pled guilty to the transportation of a large amount of marijuana in his tractor trailer. This was clearly a deportable offense. Padilla s s lawyer advised him to plead guilty after reassuring him that he did not have to worry about immigration status since he had been in the county for so long. Padilla claimed he would not have plead had he been correctly advised by his lawyer

7 Collateral Consequences Padilla v. Kentucky (continued) Opinion: Criminal defense lawyers with non-citizen clients now must at least warn that a conviction may result in deportation Because indirect consequences were both critically important and truly clear, Padilla s s lawyer had an affirmative duty to give correct advice Court signaled that this holding will have some retroactive effect as an application of Strickland as opposed to a new rule of constitutional onal law. However, Court noted that it didn t t expect a flood of challenges to convictions because For at least the past 15 years, professional norms have required defense counsel to provide advice on the deportation consequences of a client s s plea. Other collateral consequences: The Court specifically left open the possibility that its holding g might extend to other indirect consequences of a plea

8 Background Checks Portions of the information contained in this section of the presentation, including the sample dispute letters, were derived from a manual titled A Citizen s s Guide to Understanding and Clearing Up Criminal Records in Ohio created by the Ohio Justice & Policy Center (OJPC). OJPC is a Cincinnati-based nonpartisan, nonprofit law firm representing people marginalized by the criminal justice system and advocating for local and statewide smart-on on-crime reform. Contact: 215 East Ninth Street, Suite 601, Cincinnati, Ohio

9 Background Checks AKA: criminal record checks, rap sheets Types: Government Local County sheriff s s offices and online court dockets Only contain information from particular county State Official criminal record repository (every state has one) Ohio: Bureau of Criminal Identification and Investigation (BCI&I) I) National FBI All FBI reports are based on information provided to the FBI by the official criminal record repository of each state

10 Types: (continued) Background Checks Private Commercial background-checking checking companies The National Association of Professional Background Screeners lists sts over 300 member background check companies Employers tend to prefer because the rates are usually cheaper than t government checks and the information is available online Common problems: inaccurate, incomplete, or misleading information Only arrest data with no follow-up Sex offender registrations as arrests According to the U.S. Attorney General, in 2006, approximately 50% 5 of FBI background checks were incomplete or inaccurate. In 2009, the t number was 48% U.S. Attorney General, The Attorney General s Report on Criminal Background Checks (June 2006), at page 3.

11 Background Checks Commercial Background Checks Governed by the Fair Credit Reporting Act (FCRA) Under FCRA, when an employer uses a commercial background check and the check provides information that causes the employer to make an adverse determination (i.e. not hiring, firing, not promoting, etc), the employer is required to provide the subject of the background check two notices.

12 Background Checks Commercial Background Checks (con t) FCRA Notices Pre-adverse action: Before the adverse action is taken, the employer must give the applicant a "pre-adverse adverse action disclosure." This includes a copy of the report and an explanation of the individual's rights under the FCRA, which include a reasonable time t to correct inaccuracies. Post-adverse action: After the adverse action is taken, the individual must be given an "adverse action notice." This document must contain the name, address, dress, and phone number of the employment screening company, a statement that this company did not make the adverse decision, rather that the employer did, and a notice that the individual has the right to dispute the accuracy or completeness of any of the information in the report.

13 Background Checks Commercial Background Checks Disputing Inaccuracies If there are inaccuracies on the background check, the subject of the check should file a dispute in writing with the company that prepared the report. Under the FCRA, the company has 30 days to investigate the dispute. The company should then send a written notice of the results not later than five business days after the investigation is completed. Remember there are over 300 background check companies, so one dispute may not correct the inaccuracy entirely. Multiple disputes may be necessary.

14 Background Checks Commercial Background Checks Sample Dispute Letter September 3, 2010 [Name of Commercial Background Check Company] [Address Line] [Address Line] [Address Line] To Whom It May Concern: I am writing to request a correction to my criminal background check. Currently, your records show my case as: [state precisely what the background check says]. I have enclosed a copy of my criminal background check with the disputed entry circled in red. However, I was not convicted of [X]. I have enclosed a copy of certified court records from [name of county, court] for case number [Y] that show that I was actually convicted of [exact final charge]. Please add this final disposition information to my Computerized Criminal History entry for this case. Also, please send me a revised version of my background check once this correction is made. If you have any questions about this correction request, please contact me at [address, phone number] Sincerely, [Name] [Full mailing address] ALL dispute letters should be sent CMRRR!

15 Background Checks State/FBI Background Checks NOT governed by FCRA Every state has an official criminal record repository Federal mandate Ohio: Bureau of Criminal Identification and Investigation FBI checks are comprised entirely of state repository data Disputes should be directed to the state where the inaccurate information originated. FBI records will be updated accordingly

16 Background Checks Commercial Background Checks Sample Dispute Letter September 3, 2010 Bureau of Criminal Identification and Investigation P.O. Box 365 London, Ohio To Whom It May Concern: I am writing to request a correction to my BCI&I criminal background check. Currently, your records show my case as: [state precisely what the background check says]. I have enclosed a copy of my BCI&I criminal background check with the disputed entry circled in red. However, I was not convicted of [X]. I have enclosed a copy of certified court records from [name of county, court] for case number [Y] that show that I was actually convicted of [exact final charge]. Please add this final disposition information to my Computerized Criminal History entry for this case. Please be certain to electronically notify the FBI of this correction so that the FBI can also correct its records. Also, please send me a revised version of my BCI&I check once this correction is made. If you have any questions about this correction request, please contact me at [address, phone number] Sincerely, [Name] [Full mailing address]

17 Ban the Box Ban the Box refers to removing the criminal history question from a job application and only considering criminal records at a later point in the hiring process. This gives all job applicants an equal chance at presenting their work history and skills to employers without being prejudiced by prior mistakes.

18 Ban the Box Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, New Mexico, New Jersey, and Ohio have current or pending legislation that make Ban the Box law for public sector employers Hawaii & Massachusetts require private sector employers too 21 cities and counties have Ban the Box municipal ordinances as well 6 in just the last year enacted Ban the Box

19 Title VII of CRA EEOC has construed Title VII protections to extend to people with criminal records This is due to the vast disproportionate minority contact with the criminal justice system nationwide Ohio ranks in the top ten nationally for largest discrepancy: Ohio population: White: 84.8%, African-American: American: 12%, Other: 3.2% Ohio prison population: White: 51.05%, African-American: American: 47.66%, Other: 1.29%

20 Title VII of CRA To avoid Title VII liability an employer: Must be able to validate job applicant screening criteria as consistent with business need. An employer may not base an employment decision on the conviction record of an applicant or employee absent business necessity. BLANKET EXCLUSIONS ARE ILLEGAL! I.e. Felons need not apply.

21 Title VII of CRA Business necessity may be established after review of: The nature and gravity of the offense of CONVICTION The time passed since CONVICTION The nature of job held or sought Certain positions, like security or safety, allow higher standards You must be able to connect the job duties to the offense of conviction, otherwise you are likely to lose a legal battle

22 Title VII of CRA Cases September 2009: EEOC v. Freeman Companies A nationwide convention, exhibition and corporate events marketing company that used a blanket no felon policy. The claim was dismissed because more than 300 days had passed between the denial of employment and the filing of the administrative charge,, but the court (Maryland District Court) left the door open for the substantive issues March 2010: EEOC settled a similar case with Franke Foodservice Systems April 2010: Johnson, et al. v. Locke,, No. 1:10cv3105, S.D. N.Y. Pending Class Action Attacks the Census Bureau s s hiring policies for temporary census workers gs/ne wlawsuitfilings/archive/2010/08/18/federal-eeoc eeoc-warned-census-bureau-of- likely-discrimination discrimination-lawsuit-claims.aspx

23 Title VII of CRA July 2010: Hudson v. First Transit, Inc. One of the nation s s largest busing companies Pending Class Action Complaint: Transit-Complaint.pdf

24 Working with Criminal Defense Bar Same clients, different days of the week OPLC has included state and county public defenders in our Reentry Task Force Planning statewide substantive and cultural trainings Make yourself available to talk about consequences Remember: almost all collateral consequences affect legal aid work (public housing, benefits, employment, etc). Working together is the only way to ensure maximum benefit for our mutual clients

25 Contact Information Melissa Lindsay Ohio Poverty Law Center Attorney/Equal Justice Works Fellow 555 Buttles Avenue Columbus, Ohio x113

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