UNNECESSARY AND COUNTERPRODUCTIVE: SUNY S CRIMINAL HISTORY SCREENING POLICY

UNNECESSARY AND COUNTERPRODUCTIVE: SUNY S CRIMINAL HISTORY SCREENING POLICY

The Education from the Inside Out Coalition Bronx Defenders Campaign to End the New Jim Crow Coalition for Prisoners' Rights Community Service Society of New York Correctional Association of New York Criminal Justice Initiative at Columbia University CURE ILLINOIS Drug Policy Alliance Getting Out and Staying Out Hudson Link Institute For Criminal Justice Ethics Legal Action Center Maurus & Heinegg Minnesota Second Chance Coalition National Coalition of Anti-Violence Programs (NCAVP) National H.I.R.E. Network National Lawyers Guild - New York City Chapter Mass Incarceration Committee New {Justice} Media New York Reentry Education Network Ohio Justice & Policy Center Partakers College Behind Bars Prison Education Initiative Prisoner Reentry Institute at John Jay College STEPS To End Family Violence Think Outside the Cell Foundation Transcending Through Education Foundation Women on The Rise Telling Herstory Women's Prison Association Youth Represent

Higher education is emerging as an important strategy for promoting the successful reintegration of people with criminal convictions. Research shows that post-secondary education is the most successful and cost-effective method of preventing crime, reducing recidivism and poverty, enhancing public safety, and positively impacting individuals, their families, and the community as a whole. Public colleges and universities have an important role to play in providing equal access to higher education, thereby promoting citizenship and preventing marginalization. It is a matter of sound public policy for college admissions practices of our public institutions to be consistent with other policy initiatives that promote productive and successful reentry and reintegration into society. As explained further in this paper, the current policy of New York s state-wide public institution of higher education, the State University of New York (SUNY), to screen applicants for felony convictions has the practical effect of greatly diminishing higher education opportunities for applicants with past convictions. A. SUNY s Admission Policy - Screening for Past Criminal Convictions Results in Exclusion by Application Attrition The SUNY system consists of 64 campuses, serving more than 465,000 students at four year colleges, graduate schools, and community colleges. Since 1998, SUNY has maintained a system-wide policy of screening applicants for past felony convictions and then referring to Article 23-A of New York s Correction Law to guide decision-making on whether or not applicants with past felony convictions should be admitted. i Article 23-A of the Correction Law prohibits employers from denying employment to any person because of that person s previous criminal conviction unless the employer has considered nine factors to determine if one of two specific job-related circumstances exist ( direct relationship or unreasonable risk ). ii On the surface, using Article 23-A of the Correction Law to screen college applicants sounds reasonable. However, over the years EIO and its lead organizations have worked with many individuals who have faced difficult and at times insurmountable barriers to SUNY admission because of this policy. This work has revealed that Article 23-A cannot be transferred from the employment context to the higher education context without erecting needless, and often daunting or impassable, barriers to higher education for deserving candidates. Using New York s Freedom of Information Law, the Center for Community Alternatives (CCA) recently initiated a research project designed to investigate more deeply into the practical effects SUNY s policy has on access to education. Though CCA s research is incomplete, preliminary results reveal that SUNY s policy erects significant barriers for people with criminal convictions, and most applicants with felony convictions are unable to complete the application process. The manner in which SUNY s policy plays out in practice that is, the practice of exclusion by application attrition - is briefly explained below. All SUNY campuses require applicants to check a box on the application indicating whether or not they have been convicted of a felony offense. Applicants who check the yes box are then sent a supplemental directive requiring detailed information about the conviction and an array of additional documents. The scope and nature of the supplemental directives vary 1

widely among the 64 SUNY campuses. Nonetheless, CCA s research reveals the following trends across all 64 campuses: The supplemental directives generally erect significant barriers to admission, typically obligating applicants to gather and disclose several different documents, including, for example: certificates of disposition, certificates of rehabilitation, verification of sentence completion, and letters of support from various criminal justice stakeholders. It is not unusual for the SUNY supplemental directives to require applicants to provide documents that cannot be produced. For example, many campuses require applicants to provide a letter of support or letter of reasonable assurance from their parole or probation officer, despite the fact that as a matter of policy most parole and probation officers will not write such letters. One SUNY campus requires applicants to provide a Letter of Discharge, a document that simply does not exist in the criminal justice system. Most SUNY campuses require applicants to obtain their own criminal history record from the Division of Criminal Justice Services (DCJS), New York s central repository for criminal records, and then provide this record to the college admissions office. At best this requirement is inappropriate; at worst, it is illegal. This is because when a person requests his or her own criminal history, that criminal history contains information that has been sealed, charges that have been dismissed, and information that has otherwise been deemed legally confidential, such as Youthful Offender adjudications. The supplemental directive of one SUNY campus, SUNY Purchase, instructs applicants to write to DCJS and request that the official criminal history record be sent directly to the college admissions office. Ironically, DCJS does not honor such requests because they can only provide such records to the individual making the request or the individual s designated attorney. Responding to the supplemental directive is not only a time-intensive endeavor, it is also quite expensive. The DCJS record alone requires applicants to expend $59.95 of their own money, and there are fees associated with obtaining many of the other documents required. For example, courts generally charge a fee to obtain a certificate of disposition. For most people, the financial costs of the supplemental directive far exceed the $50 fee associated with applying in the first place. For some SUNY campuses it is evident that students do not complete the application process because the supplemental directive imposes a requirement that is impossible to meet. For other SUNY campuses, the supplemental requirements are simply too daunting. Some students drop out of the application process, assuming that the procedures are intended to exclude them, while others are just not able to provide all of the requested documentation. The practical effect for the applicant who is unable to provide all of the required documentation is termination of the admissions process. As one campus supplemental directive informs anyone who checks the felony conviction box, applicants who do not complete all Admission Review (for self-disclosed felony applicants) procedures will be deemed incomplete No further consideration for admission into the College will be completed until the requested documents have been received and reviewed by the Admissions Review Committee. The applicant who 2

does not complete all of the requirements of the supplemental directive is de facto denied admission. Prefatory findings from the CCA study place the application attrition rate at double, or for some campuses quadruple, the rate of applicants who do not check the box. For several campuses the application attrition rate for applicants who checked the box exceeds eighty (80%) percent. This insidious practice of denying equal access to education should be recognized for what it is: denial of admission by application attrition. The significant number of applicants denied admission by application attrition may only be part of the story. Early research indicates that an even more significant number of wellqualified applicants desirous of attending college never even begin to fill out the application because of the chilling effect caused by the very presence of the criminal history question on the application. The chilling effect caused by the box was poignantly described by one formerly incarcerated college applicant when explaining how he interpreted the box : For the prospective student, does it mean to suggest, please stop filling out the application because you have been spotted? Does it mean, even if you are qualified for academic enrollment, we do not want your kind? iii The box leads to self-doubt, kills morale and motivation to seek higher learning, and promotes avoidance of rejection. It is intrusive and degrading. The box sends a message of exclusion. B. CUNY as a Contrast to SUNY Compare SUNY s policy with the policy of New York s City premier public institution of higher education, the City University of New York (CUNY). CUNY serves slightly more students per year than SUNY (540,000 compared to SUNY s 465,000 students served) at 24 different campuses. Although similar in size and purpose, the admissions policies at SUNY and CUNY schools present an illuminating contrast. While SUNY maintains a policy of screening applicants for felony convictions and erecting barriers for those who admit to a past felony conviction, CUNY has a long standing admissions practice that does not require selfdisclosure of a criminal history record on the admissions application. CUNY counts itself among about one-third of the U.S. colleges and universities that do not screen for criminal history. iv Despite SUNY s more restrictive practices, there is nothing to indicate that the rate at which students offend on SUNY campuses is any less than on CUNY campuses. Rather, CUNY s no-screening policy highlights CUNY s role in the vanguard of colleges that champion access to higher education to promote the successful and productive reentry and reintegration into society of people who have a past conviction. C. Implications on Public Safety, Recidivism and Diversity Over the past 30 years, as the reach of the criminal justice system has been extended, having a criminal record has become ubiquitous. More than 2.3 million people are in the nation s jails and prison on any given day, and over 92 million people have a criminal history record on file with a state central repository (arrest and/or conviction). There are important implications for public safety and racial impact when criminal history screening for college admissions is considered in this context. 3

1. Campus Safety and Public Safety Enhanced campus safety cannot be used as a legitimate rationale for the practice of criminal history screening in college admissions. While college campuses are not immune from crime, the data show that they are remarkably safe places compared to the community-at-large. v Although very little research has been undertaken on this issue, what is clear is that there is no empirical evidence to indicate that criminal history screening has any predictive value to determine who will offend on campus. In fact, one of the few studies to address this issue found that there is no statistically significant difference in the rate of campus crime between institutions of higher education that explore undergraduate applicants disciplinary background and those that do not. vi From a public safety perspective, criminal history screening in college admissions makes no sense. Higher education opens doors of opportunity, enhances critical thinking, and leads to better and more stable employment. vii Studies of recidivism rates of people who attend college while in prison, as well as those with criminal records who attend college following their release, show that a college education dramatically reduces recidivism. viii When people are denied admission to college based solely on the presence of a criminal history, not only are college campuses not made any safer, the community-at-large is less safe. 2. Race National data, reflective of New York, supports the conclusion that criminal history screening in the college admissions process, and the resulting exclusion by attrition, has a disparate impact based on race and national origin. Because of the tragic racial disparities in the U.S. criminal justice and education systems, policies and practices that exclude people with criminal history records from institutions of higher education threaten to set back the gains of the civil rights struggles to open higher education to all people, regardless of race or ethnicity. For example, in 2010, 28% of all arrests were of African Americans. ix African American men were imprisoned at a rate nearly 7 times higher than White men and almost 3 times higher than Hispanic men. x In 2008, Hispanics were arrested for federal drug charges at a rate approximately three time their proportion of the general population. xi Based on national incarceration data the U.S. Department of Justice estimated in 2001 that 1 out of every 17 White men is expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain xii xiii unchanged. This rate is 1 in 6 for Hispanic men, and climbs to an astounding 1 in 3 for African American men. xiv Conclusion SUNY s admissions practice of criminal history screening and its application of Article 23-A may be well-intentioned, but it belies the SUNY mission of providing the broadest possible access to a student body that is fully representative of all segments of the population and that reflects the needs of society. xv The de facto denial of admission by application attrition that results from criminal history screening of college applications not only undermines the needs of society recognized in other public domains to promote successful and productive reentry and reintegration into society, but also frustrates societal efforts to increase 4

diversity, promote public safety, increase access to opportunity, and reduce the racial and economic divide in New York. SUNY s practical experience with screening highlights why the Fair Access to Education Act (S.6437/A.8574) is an important and necessary legislative response. i SUNY s policy, which is entitled the Admission of Persons with Prior Felony Convictions or Disciplinary Dismissals, was updated with a FAQ in 2013. ii See Correction Law 752 and 753. iii Greene, A.C. Checking the Box: Enduring the Stigma of Applying to Graduate School Post-Incarceration, available at http://johnjayresearch.org/pri/2013/11/checking-the-box.pdf iv Though CUNY has wisely refrained from implementing such as policy, campus leadership retains the power to engage in Administrative Withdrawals which can be used to target students with criminal histories. v Center for Community Alternatives. THE USE OF CRIMINAL HISTORY RECORDS IN COLLEGE ADMISSIONS RECONSIDERED. 5 (2010). vi Olszewska, M.J.V. UNDERGRADUATE ADMISSION APPLICATION AS A CAMPUS CRIME MITIGATION MEASURE: DISCLOSURE OF APPLICANTS DISCIPLINARY BACKGROUND INFORMATION AND ITS RELATIONSHIP TO CAMPUS CRIME. Unpublished Dissertation for the degree of Doctor of Education East Carolina University (2007). vii Center for Community Alternatives.THE USE OF CRIMINAL HISTORY RECORDS IN COLLEGE ADMISSIONS RECONSIDERED.32 (2010). viii Id. ix UNIF. CRIME REPORTING PROGRAM, FED. BUREAU OF INVESTIGATION, CRIME IN THE U.S. 2010, at Table 43a (2011), http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/table- 43/10tbl43a.xls. x Guerino, Pail, et al., BUREAU OF JUSTICE STATISTICS, U.S. DEP T OF JUSTICE, PRISONERS IN 2010, at 27, Table 14 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/p10.pdf (reporting that as of December 31, 2010, Black men were imprisoned at a rate of 3,074 per 100,000 Black male residents, Hispanic men were imprisoned at a rate of 1,258 per 100,000 Hispanic male residents, and White men were imprisoned at a rate of 459 per 100,000 White male residents); cf. ONE IN 31, supra note 4, at 5 ( Black adults are four times as likely as whites and nearly 2.5 times as likely as Hispanics to be under correctional control. One in 11 black adults -- 9.2 percent -- was under correctional control [probation, parole, prison, or jail] at year end 2007. ) xi Accurate data on the number of Hispanics arrested and convicted in the United States is limited. See Walker, Nancy E., et al., NAT L COUNCIL OF LA RAZA, LOST OPPORTUNITIES: THE REALITY OF LATINOS IN THE U.S. CRIMINAL JUSTICE SYSTEM 17 18 (2004), http://www.policyarchive.org/handle/10207/bitstreams/20279.pdf (explaining why [i]t is very difficult to find any information let alone accurate information on the number of Latinos arrested in the United States ). The Department of Justice s Bureau of Justice Statistics (BJS) Sourcebook of Criminal Justice Statistics and the FBI s Crime Information Services Division do not provide data for arrests by ethnicity. Id. at 17. However, the U.S. Drug Enforcement Administration (DEA) disaggregates data by Hispanic and non-hispanic ethnicity. Id. at 18. According to DOJ/BJS, from October 1, 2008 to September 30, 2009, 45.5% of drug arrests made by the DEA were of Hispanics or Latinos. Motivans, Mark, BUREAU OF JUSTICE STATISTICS, U.S. DEP T OF JUSTICE, FEDERAL JUSTICE STATISTICS, 2009 STATISTICAL TABLES, at 6, Table 1.4 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/fjs09.pdf. Accordingly, Hispanics were arrested for drug offenses by the DEA at a rate of three times their numbers in the general population. See U.S. CENSUS BUREAU, OVERVIEW OF RACE AND HISPANIC ORIGIN: 2010, at 3 (2011), http://www.census.gov/prod/cen2010/briefs/c2010br- 5

02.pdf (reporting that in 2010, there were 50.5 million Hispanics in the United States, composing 16 percent of the total population ). However, national statistics indicate that Hispanics have similar or lower drug usage rates compared to Whites. See, e.g., SUBSTANCE ABUSE &MENTAL HEALTH SERVS.ADMIN., U.S. DEP T OF HEALTH &HUMAN SERVS., RESULTS FROM THE 2010 NATIONAL SURVEY ON DRUG USE AND HEALTH: SUMMARY OF NATIONAL FINDINGS 21, Figure 2.10 (2011), http://oas.samhsa.gov/nsduh/2k10nsduh/2k10results.pdf (reporting, for example, that the usage rate for Hispanics in 2009 was 7.9% compared to 8.8% for Whites). xii See Bonczar, Thomas P.,BUREAU OF JUSTICE STATISTICS, U.S. DEP T OF JUSTICE, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974 2001, at 3 (2003), http://bjs.ojp.usdoj.gov/content/pub/pdf/piusp01.pdf [hereinafter PREVALENCE OF IMPRISONMENT] ( Between 1974 and 2001 the number of former prisoners living in the United States more than doubled, from 1,603,000 to 4,299,000. ); SEAN ROSENMERKEL ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP T OF JUSTICE, FELONY SENTENCES IN STATE COURTS, 2006 STATISTICAL TABLES 1 (2009), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf (reporting that between 1990 and 2006, there has been a 37% increase in the number of felony offenders sentenced in state courts); see also PewCtr. onthe States, ONE IN 31: THE LONG REACH OF AMERICAN CORRECTIONS 4 (2009), http://www.pewcenteronthestates.org/uploadedfiles/pspp_1in31_report_final_web_3-26-09.pdf [hereinafter ONE IN 31] ( During the past quarter-century, the number of prison and jail inmates has grown by 274 percent....[bringing] the total population in custody to 2.3 million. During the same period, the number under community supervision grew by a staggering 3,535,660 to a total of 5.1 million. ); PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 3 (2008), http://www.pewcenteronthestates.org/uploadedfiles/8015pcts_prison08_final_2-1-1_forweb.pdf ( [M]ore than one in every 100 adults is now confined in an American jail or prison. ); Brame, R., Turner, M., Paternoster, R., Bushway, S, Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 PEDIATRICS 21, 25, 26 (2012) (finding that approximately 1 out of 3 of all American youth will experience at least 1 arrest for a nontraffic offense by the age of 23). xiv. PREVALENCE OF IMPRISONMENT, supra note 4, at 1, 8. Due to the nature of available data, the Commission is using incarceration data as a proxy for conviction data. xiii Id. xiv Id. xv State University of New York Mission Statement. 6