Legislative Victories:

Recent California i Reentry Legislative Victories: The Good, The Great, and The Complicated December 12, 2013 12 pm 1:30 pm

Agenda Introductions & Info Court-Based Criminal Record Remedies ed es AB 651 (New Realignment Remedy) Meredith Desautels SB 530 (Certificates of Rehabilitation) Eliza Hersh People v. Parker CT Turney 1203.4/1203.4a 4a forms (CR 180 & CR 181) Eliza Hersh Reentry & Employment Law AB 218 (Ban the Box) Michelle Rodriguez SB 530 (Reporting to Employers) CT Turney Other Reentry Law SB 513 (Diversion Programs and Record Sealings), AB 625 (Acceptance of Inmate ID Cards), and AB 720 (Skinner - Inmate Healthcare Enrollment) Jesse Stout Q & A Closing and CLE Information

Panelists Tanya Koshy EBCLC, Clean Slate Practice tkoshy@ebclc.org Meredith Desautels Lawyers Committee for Civil Rights mdesautels@lccr.com Eliza Hersh EBCLC, Clean Slate Practice ehersh@ebclc.org CT Turney A New Way of Life ctturney@anewwayoflife.org Michelle Rodriguez National Employment Law Project mrodriguez@nelp.org Jesse Stout Legal Services for Prisoners With Children - jesse@prisonerswithchildren.org

Webinar Info The material in this presentation is general information only and does not constitute legal advice. Please use these materials in a manner consistent with our mission: To advance the rights of people with criminal records, and to provide them with high-quality, free or low-cost reentry legal services. CLE Credit info at conclusion of webinar. Contact ehersh@ebclc.org Webinar materials will be posted at ebclc.org and nelp.org, and circulated to the California Reentry Legal Services Listserv

CA Reentry Legal Services Info Continue the Conversation: Join the Reentry Listservs California Reentry Legal Services Providers Contact: ehersh@ebclc.org National Employment Law Project - Criminal Records Group Contact: mrodriguez@nelp.org California Reentry Legal Services Referral Information: California Reentry Legal Services Referral Information: Interactive Map: ebclc.org/reentry_legal_services.php

Court-Based Criminal Record Remedies Updates AB 651 Meredith Desautels SB 530 Eliza Hersh People v. Parker CT Turney CR 180 & CR 181 Eliza Hersh

AB 651: Realignment & Dismissal Remedies Meredith Desautels, Staff Attorney, mdesautels@lccr.com, 415-543-9444, ext. 223 131 STEUART STREET, SUITE 400 SAN FRANCISCO, CALIFORNIA 94105 (415) 543-9444 WWW.LCCR.COM COM

AB 651 Authored by Assemblymember Bradford Co-Sponsors: ACLU East Bay Community Law Center A New Way of Life Reentry Project Lawyers Committee for Civil Rights First introduced in 2012 (AB 2263), signed into law on October 13, 2013 Goes into effect January a 1, 2014.

Penal Code 1203.41 In general, mirrors Penal Code 1203.4 (dismissal relief for probationers) Eligibility: Applies to convictions with Realignment sentences imposed under Penal Code 1170(h) Felony sentences under Realignment: News laws established county jail sentences for lower-level level felonies to address prison overcrowding To get a Realignment sentence: Offense must be non-serious, ous, non-violent, oe non-sex offense, and Defendant must have no prior serious, violent or sex offense Realignment sentencing options: (PC 1170(h)(5)) Jail term Jail followed by mandatory supervision i by county Probation Dept. Must not be currently facing charges, serving a sentence, or on probation for any offense

Penal Code 1203.41 Timing: (PC 1203.41(a)(2)) For straight jail sentences: Eligible for relief 2 years after completion of the sentence For split sentences that include mandatory supervision: Eligible for relief 1 year after completion of the sentence Standard: Relief is discretionary with the court, subject to the interests of justice standard People v. McLernon, 174 Cal. App. 4th 569, 577 (2009) Retroactive: Applies to any conviction before, on, or after January 1, 2014 (PC 1203.41(c))

The Dismissal i Process Determining Eligibility RAP Sheets Court files Petitioning the Court Judicial Council form Supporting documentation Petitioner s Declaration Letters of Support Other evidence of rehabilitation Filing fees or fee waiver Notice to the DA 15 days (PC 1203.41(e)) Hearing

Impact of a PC 1203.41 Dismissali Same legal remedy as PC 1203.4 Plea or verdict set aside Accusation dismissed, releasing petitioner from all penalties and disabilities Statutory Exceptions (1203.41(b)): May be used as a prior Must disclose in response to question regarding public office or licensing or contracting with Lottery Commission Does not reinstate firearm rights Does not reinstate eligibility for public office Additional limitations similar to PC 1203.4 will apply Ex: no impact on federal immigration consequences

Advocacy related to additional collateral consequences SB 530 Labor Code 432.7 prohibits employers from asking about dismissed convictions Licensingi Various statutes and regulations may give weight to dismissals under PC 1203.4 Under EPC grounds, should be given same consideration

SB 530 (Senator Wright) Certificates of Rehabilitation Clean Slate - East Bay Community Law Center Eliza Hersh - ehersh@ebclc.org 15 East Bay Community Law Center

SB 530 (Senator Wright) Certificates of Rehabilitation OVERVIEW Current law: A court may grant a Certificate of Rehabilitation (COR) after a requisite period of rehabilitation Mandatory rehabilitation period is 7 years, 9 years, or 10 years depending on the offense PC 4852.03 SB 530 s change: A court can now grant a COR before the applicable period of rehabilitation Effective January 1, 2014 16 East Bay Community Law Center

SB 530 (Senator Wright) Certificates of Rehabilitation TEXT SEC. 2: Section 4852.22 is added to the Penal Code, to read: 4852.22: Except in a case requiring registration pursuant to Section 290, a trial court hearing an application for a certificate of rehabilitation before the applicable period of rehabilitation has elapsed may grant the application if thecourt court, in its discretion, believes relief serves the interests of justice. Full text and analysis: http://leginfo.legislature.ca.gov 17 East Bay Community Law Center

SB 530 (Senator Wright) Certificates of Rehabilitation MORE DETAILS Does not apply to any misdo sex offenses 10 year waiting period is still mandatory Clients who SB 530 will help: Example 1 John was released from prison in 2009 following his conviction for Penal Code 245, which has a statutory rehabilitation period of 7 years. John hasmadegreatstrides strides since his release. After January1,2014,a a judge may grant his COR petition if doing so serves the interests of justice. Example 2 Laura was released from prison in 1993 following a conviction for drug sales (7 year rehab period). She had no contact with law enforcement until a DUI in 2010. After January 1, 2014, a judge may grant her COR petition if doing so serves the interests of justice. 18 East Bay Community Law Center

SB 530 (Senator Wright) Certificates of Rehabilitation COR BACKGROUND A COR is the only court based reentry record remedy available for: Convictions that resulted in a state prison sentence* Certain misdemeanor sex offenses A COR is one of two paths to a governor s pardon Once granted by a trial court, a COR becomes and automatic application for a pardon The other path is a direct Pardon A COR is an end in itself Can help people p in careers requiring licensing/certification In some cases relieve 290 (sex offender) registration requirement * But note: non prison felonies may also be eligible for a COR. 19 East Bay Community Law Center

SB 530 (Senator Wright) Certificates of Rehabilitation LIMITS of CORS WEIGH RISKS & BENEFITS WITH CLIENT BEFORE FILING A COR does not allow your client to say no convictions on job applications A COR is not a pardon A COR does not seal or expunge the record, nor remove it from public court files A COR does not restore firearm possession rights People who lost voting rights (while in prison or on parole) are eligible to vote once off parole. No COR/pardon is required to restore voting rights COR investigation may be invasive 20 East Bay Community Law Center

F E Yes Client is ineligible for a COR in any case. Client is possibly eligible to petition the Governor directly for a pardon.¹ Have the requisite rehab period passed since Client was released from prison?² Was Client ever convicted of any of the following: 288, 288a(c), 286(c), 289(j), or 288.5? Yes No Was Client sentenced to California state prison in this case? No Was Client convicted of a wobbler felony in this case? L O Client N p I E Client is currently ineligible unless an early COR serves the interests of justice. See PC 4852.22 Yes No is currently ineligible unless an early COR serves the interests of justice. See PC 4852.22 No Yes Has Client had any negative contact with law enforcement during the rehab period? No Have all of Client s other eligible convictions been dismissed per 1203.4/1203.4a/1203.41? Yes Yes Consider a 17(b) felony reduction, 1203.4 relief, and a misdemeanor COR petition. No Best practice (not a statutory requirement) is to have all eligible convictions first dismissed per 1203.4/1203.4a/1203.41. No No Has this conviction been dismissed per 1203.4/1203.4a/1203.41? Yes Have all of Client s other eligible convictions been dismissed per 1203.4/1203.4a/1203.41? Best practice (not a statutory Has Client continuously resided in Best practice (not a statutory Has Client served any time in jail or requirement) is to have all eligible California for the last 5 years? requirement) is to have all eligible prison in any case since this convictions first dismissed per convictions first dismissed per conviction was dismissed per 1203.4/1203.4a/1203.41. 1203.4/1203.4a/1203.41. 1203.4? No 5 years of continuous CA residence immediately preceding COR petition required. Client is currently ineligible unless an early COR serves the interests of justice. See PC 4852.22 Yes Yes Client is eligible to apply for a Client is ineligible for a COR in this Has Client had any negative COR! 3 case. contact t with law enforcement during rehab period? Yes No Yes No S 21 No Client is currently ineligible unless an early COR serves the interests of justice. See PC 4852.22 5 years of continuous CA residence immediately preceding COR petition required. Client is currently ineligible unless an early COR serves the interests of justice. See PC 4852.22 Has Client continuously resided in California for the last 5 years? East Bay Community Law Center Yes Client is eligible to apply for a COR! 3

THANK YOU Eliza Hersh East Bay Community Law Center Clean Slate Reentry Legal Services ehersh@ebclc.org 22 East Bay Community Law Center

People v. Parker 217 Cal.App.4th 498 (2013) Second District 1203.4 Relief with a Suspended Felony Sentence CT Turney A New Way of Life Reentry Project ctturney@anewwayoflife.org

Parker 217 Cal.App.4th 498 Facts of the Case: Convicted of HS 11351.5 Sentenced to 5-year prison term Execution of sentence suspended, granted 3 years formal probation 1203.4 relief was discretionary unpaid restitution fine Previously denied twice No reason given in the record either time

Parker 217 Cal.App.4th 498 Trial Court: Different judge than previous denials Denied 1203.4 again Judge specifically stated in hearing that denial was because Parker was ineligible, due to suspended prison sentence. Common misconception among judges, prosecutors & public defenders in Los Angeles County

Parker 217 Cal.App.4th 498 Appeal Holding that suspended sentence rendered Parker ineligible was error of law Statutory language contains no bar, speaks generally of probation Case law focuses on retention of jurisdiction by the court Basing denial on error of law was abuse of discretion Attorney General filed reply brief agreeing

Parker 217 Cal.App.4th 498 Appellate Court Despite being a clear issue of law, court issued published decision due to pro per nature of 1203.4 Definition of probation in 1203. As used in this code, probation means the suspension of the imposition or execution of a sentence. PC 1203 Provided suspended sentence is never executed, defendant remains a probationer, and court retains jurisdiction over the case. People v. Banks, 53 Cal.2d 370, 384-85 (1959)

CR 180 & 181 FORMS East Bay Community Law Center

CR 180 & CR 181 Forms Statewide forms from the AOC Petition and Order for 1203.4, 1203.4a, 17(b) Changes effective January 1, 2014 Forms and more info available here: www.courts.ca.gov ca East Bay Community Law Center

Practice Notes Write in a box for PC 17(d) reduce a misdemeanor to an infraction Write in a box for PC 1203.41 set aside and dismissal of sentence under PC 1170(h) (Realignment) 1203.41 relief, please! East Bay Community Law Center

Reentry/Employment Updates AB 218 Michelle Rodriguez SB 530 CT Turney

Recent California Reentry Legislative Victories: i The Good, The Great, and the Complicated Date: Thursday, Dec. 12, 2013 Time: 12:00-1:30pm PT Michelle Natividad Rodriguez mrodriguez@nelp.org National Employment Law Project

Ban the Box: Restoring Hope and Opportunity to W k i h C i i Workers with Convictions Benefits to worker: remove chilling effect, decrease stigma, demonstrate qualifications Benefits to employers: maximize applicant pool and can reduce resource expenditure National Employment Law Project www.nelp.org 39

State Coverage & Inquiry Other Protections California (2013) Public Employment Colorado (2012) Public Employment/Licensing Cannot consider arrest that did not lead to conviction, limits consideration of expunged offenses. Connecticut (2010) Public Employment Written statement of reasons for rejection. Hawaii (1998) Private and Public Employment Employers may not consider felonies over 10 years (excluding incarceration) Illinois (2013 executive Public Employment order) Maryland (2013) Public Employment Massachusetts (2010) Minnesota (2009) and (2013) Private and Public Employment Private and Public Employment Employers may not consider felonies over 10 years and misdemeanors over 5 years Cannot consider arrest that did not lead to conviction, expunged offenses and misdemeanors not involving jail time. New Mexico (2010) Public Employment Cannot consider arrest that did not lead to conviction, and misdemeanors not involving moral turpitude. Rhode Island (2013) Private and Public Employment By request, denied applicants may be provided reasons for denial. National Employment Law Project www.nelp.org 40

Over 50 U.S. Cities and Counties 1. Alameda County, CA 2. Al Atlantic City, NJ 3. Atlanta, GA 4. Austin, TX 5. Baltimore, MD 6. Berkeley, CA 7. Boston, MA 8. Bridgeport, CT 9. Buffalo, NY 10. Cambridge, MA 11. Canton, OH 12. Carrboro, NC 13. Carson, CA 14. Chicago, IL 15. Cincinnati, OH 16. Cleveland, OH 17. Compton, CA 18. Cumberland County, NC 19. Detroit, MI 20. Durham City, NC 21. Durham County, NC 22. East Palo Alto, CA 23. Hartford, CT 24. Jacksonville, FL 25. Kalamazoo, MI 26. Kansas City, MO 27. Memphis, TN 28. Minneapolis, MN 29. Multnomah County, OR 30. Muskegon County, MI 32. New Haven, CT 33. New York, NY 34. Newark, NJ 35. Newport News, VA 36. Norfolk, VA 37. Norwich, CT 38. Oakland, CA 39. Philadelphia, PA 40. Pittsburgh, PA 41. Portsmouth, VA 42. Providence, RI 43. Richmond, CA 44. Richmond, VA 45. San Francisco, CA 46. Santa Clara County, CA 47. Seattle, WA 48. Spring Lake, NC 49. St. Paul, MN 50. Tampa, FL 51. Travis County, TX 52. Washington, DC 53. Wilmington, DE 54. Worcester, MA National Employment Law Project www.nelp.org 41

AB 218 Ban the Box National Employment Law Project www.nelp.org 42

AB 218 Added Cal Labor Code Sec. 432.9 (a) A state or local agency shall not ask an applicant for employment to disclose, orally or in writing, information concerning the conviction history of the applicant, including any inquiry about conviction history on any employment application, until the agency has determined the applicant meets the minimum employment qualifications, as stated in any notice issued for the position. National Employment Law Project www.nelp.org 43

AB 218 Exceptions (b) This section shall not apply to a position for which a state or local agency is otherwise required by law to conduct a conviction history background check, to any position within a criminal justice agency, as that term is defined in Section 13101 of the Penal Code, or to any individual working on a temporary or permanent basis for a criminal justice agency on a contract t basis or on loan from another governmental entity. National Employment Law Project www.nelp.org 44

Who and When (d) As used in this section, state agency means any state office, officer, department, division, bureau, board, commission, or agency. (e) As used in this section, local agency means any county, city, city and county, including a charter city or county, or any special district. (g) This section shall become operative on July 1, 2014. National Employment Law Project www.nelp.org 45

Take Action! Using AB 218 as a starting point National Employment Law Project www.nelp.org 46 46

AB 218 implementation 1) NELP and LSPC are preparing resources. 2) Contact your city, county, special districts. 3) After July 1 st, has it been implemented? 4) Question removed? Inquiry delayed? 5) No change? Inform and enforce. National Employment Law Project www.nelp.org 47

Opportunity for more 1) Contact NELP and All of Us or None. 2) Understand d current policies. i 3) Identify community and unlikely allies. 4) People directly affected leading. 5) Cultivate t champions in the city or county. 6) What is the best vehicle? Administrative, resolution, ordinance. 7) What components? National Employment Law Project www.nelp.org 48

Components of Model Ban the Box Policies National Employment Law Project www.nelp.org 49

Maximizing Effectiveness of Ban the Box Evaluate hiring policies & adopt federal Title VII standards. (Chicago) Limit background checks. (Richmond, Boston) Inquiry after conditional offer. (Worcester) Include notice on job application that conviction will not bar consideration. (Jacksonville encouraged to apply ) National Employment Law Project www.nelp.org 50

Provide applicant copy of background report. (Memphis highlight conviction) Allow applicant time to correct information. (Longest example was at least 10 business days (Cincinnati)) Only consider job-related convictions. (Hartford, CT direct, specific negative bearing) Consider other factors: time passed, rehabilitation, public policy to hire people with convictions. (New Haven, CT) If conviction is job-related, allow for appeal. (Bridgeport) National Employment Law Project www.nelp.org 51

Confidentiality. (Baltimore discards criminal history information) Enforcement: complaints, auditing, data collection. (Worcester, Richmond) Extend policies to vendors. (Boston, Cambridge, Detroit, Worcester, New Haven, Hartford, Richmond) Extend policies to private employers. (Philadelphia, Seattle, Buffalo, Newark) Consider targeted hiring. (Partnership for Working Families: Oakland Army Base) National Employment Law Project www.nelp.org 52

Resources National Employment Law Project www.nelp.org 53

NELP Resources 65 Million Need Not Apply: The Case For Reforming Criminal Background Checks for Employment; http://www.nelp.org/page/- /SCLP/2011/65_ Million_ Need_ Not_ Apply.pdf?nocdn=1 p AB 218 Key Endorsers; http://www.nelp.org/page/-/sclp/2013/ab_218_key_endorsers.pdf Ban the Box: Major U.S. Cities and Counties Adopt Fair Hiring Policies to Remove Unfair Barriers to Employment of People with Criminal Records; http://www.nelp.org/page/ /SCLP/CityandCountyHiringInitiatives.pdf?nocdn=1 States Adopt Fair Hiring Standards Reducing Barriers to Employment of People with Criminal Records; http://nelp.3cdn.net/3c0ae798a3c30d354e_jgm6beq1q.pdf net/3c0ae798a3c30d354e pdf Contact: Michelle Natividad Rodriguez, mrodriguez@nelp.org National Employment Law Project www.nelp.org 54

SB 530 EMPLOYMENT CT TURNEY - A NEW WAY OF LIFE REENTRY PROJECT C TTURNEY@ ANEWWAYO FLIFE.O R G

SB 530 EMPLOYMENT GENERAL OVERVIEW Amends Cal. Labor Code 432.7 Increases protections for people with expunged convictions Public & private employers no longer allowed to ask for or utilize information regarding judicially dismissed convictions ( including but not limited to ): 1203.4 1203.4a 1203.45 (dismissing & sealing expunged juvenile misdemeanor criminal convictions) 1210.1 (the old Prop 36) E ti f iti i l i t t t t i ti Exceptions for positions involving statutory restrictions on hiring notwithstanding dismissal

SB 530 EMPLOYMENT PROTECTIONS PRIOR TO SB 530 Labor Code 432.7 contained no protection for expunged (judicially dismissed) convictions 2 CCR 7287.4(d)(1)(B) ) bars employers from inquiring about misdemeanors dismissed under 1203.4 Gaps: 2 CCR 7287.4 did not bar utilization - self-disclosure negates protection No clear protection for expunged felonies Both sections contained prohibitions against inquiry & utilization of arrests not leading to conviction possible argument that this is what remains post-expungement

SB 530 EMPLOYMENT LANGUAGE AFTER SB 530 Language barring inquiry: No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information... concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.11 of the Penal Code

SB 530 EMPLOYMENT LANGUAGE AFTER SB 530 Language barring utilization:... nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including hiring, promotion, termination, or any apprenticeship training program or any other training program leading to employment, any record... concerning a conviction that has been judicially dismissed i d or ordered d sealed pursuant to law, including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code.

SB 530 EMPLOYMENT STATUTORY EXCEPTIONS Exceptions existing prior to SB 530 remain Subs. (b) & (e) Peace officers (f) Health facilities PC 290-related arrests for positions with regular access to patients HS 11590-related arrests for positions with access to medication (k) & (l) concessionaires with government New exception relating to convictions sub. (m) Employer required by law to obtain conviction information Applicant required to possess/use firearm in employment Conviction bars applicant from holding position, notwithstanding dismissal Employer prohibited from employing applicant with conviction

SB 530 EMPLOYMENT PRIVATE EMPLOYMENT Creates fairly straightforward protections for the vast majority of private employment Shores up restrictions on consumer reporting agencies against reporting dismissed convictions

SB 530 EMPLOYMENT PUBLIC EMPLOYMENT SB 530 does NOT impact the information transmitted from the DOJ to employers via LiveScan Statutorily determined in Penal Code 11105 PC 11105 does state that Labor Code 432.7 must be followed Creates difficult situation for applicants Public agency cannot legally ask or utilize, applicant has legal l right to not disclose Public agency will see expunged convictions Believe applicant lied? Use convictions anyway?

SB 530 EMPLOYMENT PUBLIC EMPLOYER BEST PRACTICES Approach at All of Us or None-LA/A New Way of Life Leverage opportunity presented by AB 218 to reform hiring practices & applications When an agency does ask the question, clearly state that applicants need not disclose protected records Revise hiring policies to clearly eliminate consideration of protected records Implement internal procedures to prevent dissemination of protected records Train hiring personnel on new protections Prepare for post-denial advocacy Utilize employment denials as opportunities to engage Litigation

SB 530 EMPLOYMENT CLIENT BEST PRACTICES Approach at All of Us or None-LA/A New Way of Life Explain protections & potential setbacks to clients Allow them to make their own decision regarding disclosure Arm them with knowledge about their rights Offer advocacy down the road if they need it Applicants who choose to disclose may face less grief re: they lied, but ultimately, insisting on compliance will be the only way to achieve compliance.

Other Reentry Law Updates SB 513, AB 625, AB 720 Jesse Stout

AB 625, AB 720, SB 513 Jesse Stout Policy Director Legal Services for Prisoners with Children prisonerswithchildren.org

AB 625 (Quirk) Civil Code 1185 Prisoner s s ID (prisoner identification card) is now valid ID for a notary to formalize legal documents http://leginfo.legislature.ca.gov/faces/billnavcli ent.xhtml?bill_id=201320140ab625 id=201320140ab625

AB 720 (Skinner) Prevents current Medi Cal enrollees from losing their eligibility based solely on their detention, and authorizes counties to obtain Medi Cal on behalf of hospitalized inmates. WIC 14011.10 Allows counties to enroll eligibleinmates inmates into the Medi Cal program before the inmate is released. PC 4011.11 http://leginfo.legislature.ca.gov/faces/billnavclient. xhtml?bill_ id=201320140ab720

SB 513 (Hancock) PC 851.87 May petition to seal arrest records two years after successful completion of pretrial diversion http://leginfo.legislature.ca.gov/faces/billnavcli ent.xhtml?bill_id=201320140sb513 id=201320140sb513

Info and Q & A

INFO - CLE & Listservs To receive CLE credit: Send an email to ehersh@ebclc.org with Your bar number, and Length of time you participated in webinar You will receive a CLE certificate and evaluation form CLE for this webinar does not cover legal ethics, elimination of bias, or prevention, detection, and treatment of substance abuse or mental abuse that impairs professional competence. To Join the Reentry Legal Services Listservs: California Reentry Legal Services Providers Contact: t ehersh@ebclc.org h@ National Employment Law Project - Criminal Records Group Contact: mrodriguez@nelp.org

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