Relieving Collateral Consequences

Daniel BowesStaff Attorney

Collateral Consequences Explained

Civil Disabilities (imposed by statute) Attach at the time of conviction Direct (incarceration, probation, fine) v. Collateral Imposed by hundreds of state and federal

statutes Often unknown to defendants at plea Impacts are severe, far-reaching, and long-

lasting

Private Bias Individuals with criminal records are often

treated as second class citizens Questions of arrest and conviction asked in

applications for private employment and housing 92% of employers do background checks

Both types of collateral consequences serve as barriers to reentry Facilitate high rates of recidivism

ImmigrationHousingFoster Care/

AdoptionJury DutyOccupational

LicensePublic OfficeFinancial AidPublic

BenefitsPublic

EmploymentDrivers

License

Hunting LicenseChild CustodyChild SupportTermination of

Parental RightsWorkers

CompensationUnemployment

InsuranceLicense plateVotingMilitary ServiceFirearm Permit

A Sample of Civil Disabilites in NC

The UNC School of Government has catalogued each of the civil disabilities triggered by a criminal record in North Carolina. There were almost 1000.

The Collateral Consequences Assessment Tool (CCAT) will be available to the public by the end of the month. http://ccat.sog.unc.edu/

Effect of Incarceration on Employment

What Influences Employers?

2 in 3 men were working/financial contributors before incarceration.

Incarceration reduces annual employment by more than 2 months and reduces yearly earnings by 40 percent.

Underemployment of individuals with criminal histories lowers overall male employment rates as much as 1.5 to 1.7 percentage points; costing the country $57 to $65 billion per year.

92% of employers now conduct criminal background checks.

What influences employers: Arrests- 64% of

employers are influenced

Non-violent misdemeanors- 97%

Violent misdemeanors- 99%

Felonies- 100% of employers influenced

Inaccuracy of criminal background reports: 25% include errors serious enough to employment

Employer Bias

T H E M A R K O F A C R I M I N A L R E C O R D, D E VA H PA G E R , P R I N C E T O N

W H I L E T H E R AT I O O F C A L L B A C K S F O R N O N O F F E N D E R S R E L AT I V E T O E X - O F F E N D E R S F O R W H I T E S I S 2 : 1 , T H I S S A M E R AT I O F O R B L A C K S I S N E A R LY 3 : 1 . T H E E F F E C T O F A C R I M I N A L R E C O R D I S T H U S 4 0 % L A R G E R F O R B L A C K S T H A N F O R W H I T E S .

Racial Disparities in the Impact of a Criminal Record

http://www.princeton.edu/~pager/pager_ajs.pdf

Impact: Recidivism

“Although no one supports ‘coddling criminals,’ society has a strong interest in preventing recidivism.”

-Uniform Law Comm.

The three pillars of successful reintegration are gainful employment, stable housing, and family supports. Isolated from these opportunities by collateral consequences, individuals with criminal convictions are more likely to recidivate.

Tools of Reliefs

Expungement Offense Committed before 18/21 years of age Charges not resulting in conviction 1st Time Nonviolent Offenses

Certificates of Relief Low-level 1st time felonies and misdemeanors

Title VII/Title VIII of the Civil Rights Act of 1964 Targeted screen and individualized assessments

Fair Credit Reporting Act Notice of adverse action

Expungement

Age at Commission

Misdemeanor Under Age 18

NCGS 145

Gang offense under 18

NCGS 15A-145.1

Cyber bullyingNCGS 14-458

Non-violent felony under 18

NCGS 15A-145.4

Controlled Substance under 22

15A-145.2& 15A-145.3

General

Nonviolent OffensesNCGS 15A-145.5

Dismissal or NGNCGS 15A-146

Identity TheftNCGS 15A-147

DNA RecordsNCGS 15A-148

Pardon of InnocenceNCGS 15A-149

Expungement is the process by which a record of a criminal incident is destroyed or sealed. It is basically as if the incident never happened.

Accordingly, if an individual has his only criminal conviction expunged, then he would answer “no” when asked on an employment application whether he had ever been convicted of a crime. Convictions Non-

Convictions

Expungement Eligibility

First-time Offense15A-145 - 15A-145.5: All expunctions for convictions have “first time” offense restriction (multiple convictions count as single conviction if occurring in the same session of court) meaning that if someone has a prior conviction they are not eligible15A-146 (dismissed): ineligible if you have a felony conviction15A-147 - 15A-149: no restriction

Subsequent Conviction15A-145,15A-145.4: no other conviction during waiting period15A-145.2, 15A-145.3: ineligible if subsequent misdemeanor conviction involving drugs, or any felony conviction15A-145.5: no other misdemeanor or felony convictions 15A-146: no felony convictions

Waiting PeriodImmediate: 15A-146, 15A-147, 15A-148, 15A-1491 year*: 15A-145.2, 15A-145.32 years: 15A-145, 15A-145.14 years: 15A-145.415 years: 15A-145.5Waiting periods are from the date of conviction-however, if at the expiration of the waiting period, the person has not completed their sentence (including probation), then they must wait until they do so. *The exception is 15A-145.2 & 3—no requirement the sentence be complete.

Automatic/DiscretionaryDiscretionary: 15A-145.4, 15A-145.5 Automatic: All Other

Prior Expungement15A-145: statute does not say that any prior expunction makes person ineligible15A-145.2, 15A-145.3: only states that person is ineligible if previously received expunction under that specific statute, no word on other expunctions15A-145.4, 15A-145.5: no prior expunctions, except under 15A-146 – 15A-14915A-146: no prior expunctions

Eligibility 1 Class G, H, or I felony or misdemeanor (2 if in same session of court) Violent crimes are included (so broader than expungements) 12 month waiting period from completion of sentence

3 Primary Benefits: Relieves most collateral sanctions (§15A-173.2d) Considered favorably in disqualification decisions (§15A-173.2d) Protects employers and landlords from negligence lawsuits (§15A-

173.5) BONUS: Evidence of rehabilitation persuasive to employers, etc.

Sanction v. Disqualification A collateral sanction is an automatic bar to a benefit or opportunity A collateral disqualification is statutory language which allows another

decision making group to deny an individual a benefit or opportunity based on the conviction.

Ex. Medical Doctor/Physicians Assistant (§90-14) Statute contains both a collateral sanction and a disqualification Disqualification for conviction of “crime involving moral turpitude” Sanction for “conviction of a felony”

NOT an expunction or pardon

Certificates of Relief(NCGS §15A-173)

Title VII/Fair Credit Reporting Act Claims

TITLE VII/Title VIIITitle VII does not recognize individuals with criminal records as a protected class.However, Title VII prohibits employers from having a race-neutral policy against employing individuals with criminal records because of the disparate adverse impact on African-Americans and Hispanics.

A blanket ban on hiring anyone with a criminal record likely violates Title VII. There must be an individualized assessment: the nature and gravity of the offense, the time that has passed since the conviction, and the nature of the job sought.

Protection only extends to minorities.More Info:

http://reentry.mplp.org/reentry/index.php/Employment:_Disparate_Impact_Claims_Under_Title_VII

FAIR CREDIT REPORTING ACT• Criminal background checks are “consumer reports,” so FCRA

applies• After 7 years, Arrests CANNOT be reported, convictions can

be• When the FCRA applies, employers must satisfy five

requirements for using consumer reports through a third-party agency:• Written disclosure• Written authorization• Certification to credit reporting agency• Provision of the report and notice of the intent to take

adverse action• Notice of the adverse action

• The notice must be in writing and must state that the decision is based on the criminal record

Daniel BowesStaff Attorney

danielb@ncjustice.org (919) 861-2061