REENTRY LAW : What Legal Services Staff Need to Know October 3, 2008 CORT First Friday Webinar

1. REENTRY LAW:What Legal Services Staff Need to KnowOctober 3, 2008CORT First Friday Webinar

2. What We’ll Cover Today • Why Reentry Law is Important • Applicable LSC Restrictions • Getting and Sealing Records • Record Accuracy/FCRA • Employment Barriers/Title VII Challenges • Housing Barriers • Public Benefits/Fleeing Felons/Student Aid • Child Support/Parental Rights Termination • Tools You Can Use to Learn More

3. I. Why Is Reentry Law Important? • Vast increase in number of people with criminal records because of war on drugs and tough on crime policies • 700,000 people are released annually from prisons. • Over 7 million individuals are released annually from jails. • Many people who are convicted never go to jail or prison, but still have records. • Between 9-25% of males have criminal records. • One in three African American males has a felony record.

4. Consequences of Having a Criminal Record Much More Severe • Many more civil consequences have been attached to criminal records: restrictions on employment, housing, public benefits, parental rights, etc. • Welfare to work policies make employment barriers a critical issue.

5. Explosion in Background Checking • Criminal record information much more easily available on internet. • Checks are cheap and easy. • Vast increase in use of background checks: • Survey of HR professionals: 96% of employers were conducting background checks in 2004, compared to 51% in 1996

6. People of with Records Often Face Multiple Barriers • 14% of those released from prison are mentally ill. • 84% of offenders were involved with drugs and alcohol at time of offense. • 50% of prisoners have less than high school education • 15-27% of prisoners will end up homeless.

7. Lack of Opportunity to Overcome Barriers • While many of our clients face similar barriers, people with criminal records don’t have access to many of the same opportunities to overcome these barriers.

8. II. What LSC Restrictions Apply? • LSC-funded programs can represent individuals who are no longer incarcerated on civil issues that relate to their criminal convictions, e.g. housing, employment, sex offender registration, public benefits, etc. • This includes sealing or expunging criminal records within a criminal case, seeking pardons, or correcting errors on criminal records.

9. What LSC-Funded Programs Cannot Do • Represent individuals in criminal proceedings that relate to guilt or innocence. See 45 CFR 1613. • Collaterally attack criminal convictions (e.g. habeas corpus). See 45 CFR 1615. • Represent prisoners who are currently incarcerated. See 45 CFR 1637. • If client becomes incarcerated after litigation commences, you must attempt to withdraw, unless incarceration is of short duration and litigation is likely to extend beyond period of incarceration.

10. III. Getting and Sealing Records First Step in Every Case: Know Exactly What is On the Record • Legal restrictions depend on exactly what the convictions are, and how old they are. • Tremendous number or errors on records. • Review record with client; clients frequently don’t know what is on their records.

11. Sealing Records Second Step in Every Case: Determine if Record Can be Sealed/Set Aside • The best record is no record: remove barriers by eliminating the record. • Possibility for expungement varies by state: • Michigan and Ohio have relatively liberal statutes for expungement. • West Virginia has very limited expungement statute.

12. How Do You Get a Criminal Record? • State Police Website or mailed request • State Department of Corrections Website • FBI fingerprint records • Local police records • Private background screening companies • Are considered credit reporting agencies, so FCRA applies. • Get free copy of report if resulted in adverse action. • Entitled to a copy from an employer prior to adverse employment action.

13. IV. Record Accuracy Issues • Help clients clean up errors on record. • Process will depend on who produced the record. • May be able to clear up using court records, or may require fingerprinting. • Errors on a commercially prepared background check can create a cause of action under the Fair Credit Reporting Act.

14. Fair Credit Reporting Act: What Record Info Can be Reported • No time limit on reporting of convictions. • 7-year time limit on reporting arrests (unless employment at a salary of $75,000 or more). 15 U.S.C. §§1681c(a)(5), 1681c(b)(3).

15. Fair Credit Reporting Act: General Accuracy Standards • Credit Reporting Agency must use “reasonable procedures” to insure “maximum possible accuracy” of the information in the report. 15 U.S.C. §1681e(b). • Elements of cause of action: • Inaccurate information in report; • Inaccuracy due to CRA’s failure to follow reasonable procedures to assure maximum possible accuracy; • Consumer suffered injury (can include emotional injury); and • Injury was caused by inaccurate entry. See e.g. Crane v. Trans Union, 282 F.Supp.2d 311 (E.D. Pa. 2003)(Dalzell) (citing Philin v. Trans Union Corp., 101 F.3d 957, 963 (3d Cir. 1996)).

16. Fair Credit Reporting Act: Accuracy Standards in Employment Context • A CRA reporting public record information for employment purposes which “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either • Notify the person that the public record information is being reported and provide the name and address of the person who is requesting the information; or • The CRA must maintain strict procedures to insure that the information it reports is complete and up to date. See 15 U.S.C. §1681k.

17. Fair Credit Reporting Act: Employer Obligations NOTE: FCRA applies only if the report was prepared by an entity considered a credit reporting agency under FCRA. If so, employer must: • Provide clear written notice to the job applicant that employer may conduct a background check. 15 U.S.C. § 1681b(b)(2). • Obtain written authorization from the job applicant to get the report. 15 U.S.C. § 1681b(b)(3).

18. Fair Credit Reporting Act:Employer Obligations if Denying Employment • If the employer intends to take adverse action based on the consumer report, employer must provide a copy of the report and a Federal Trade Commission Summary of Rights to the job applicant BEFORE the action is taken. 15 U.S.C. § 1681b(b)(3). • After making an adverse decision, the employer must notify the job applicant that an adverse decision was made as a result of the report and must provide contact info for the CRA and notice of the right to dispute the accuracy or completeness of the report. 15 U.S.C. § 1681m(a).

19. Get damages when an inaccurate report costs a client a job. Create leverage with employers – who routinely violate the FCRA requirements – by citing FCRA when a client is denied employment or terminated. How to Use FRCA:

20. Major Legal Barriers Facing People with Records • Employment • Housing • Public Benefits • Family Law and Child Support • Student Loans/Government training programs • Drivers Licenses/ID • Fees and Fines • Immigration

21. V. Employment Barriers • Bewildering patchwork laws (mostly state and some federal) limiting employment by people with records. • As many as 40% of jobs affected. • 2/3 employers won’t hire people with criminal records

22. Jobs Likely to Limit Employment of People with Criminal Records • Working with or near children • Working with or near vulnerable adults • Licensed Professions • Security-related fields • Transportation-related fields • Jobs hired or paid by Government

23. Evaluating Statutory Barriers to Employment • Laws barring the employment of people with criminal records in particular industries are very complicated. • Laws often depend on the exact conviction, the age of the conviction, and whether your client has a history working in the field. • Appeals process may be available. • Always review statute to determine whether your client is really ineligible to work.

24. Overcoming Statutory Barriers to Employment • If restriction appears to apply to your client, consider challenges based on: • Statutory construction or legislative intent • Does grandfathering apply? • Absence of legislative authorization if restrictions are imposed by a government agency without underlying statutory basis. • Constitution • Due process/Liberty interest in employment/irrebuttable presumptions • Equal protection if statute makes irrational distinctions between different groups • Comparison to licensing cases

25. Challenging Employer Discrimination Against People with Records: Title VII • Title VII prohibits employers from having policies or practices that have a disparate impact based on race. • Because people of color are disproportionately represented in the criminal justice system, record-based restrictions may have a disparate impact and can violate Title VII.

26. EEOC Guidances • Because record-based restrictions have a disparate impact on people of color, employers must be able to justify them under the “business necessity” test. • Restriction ok if they are necessary (e.g. no embezzlers in banks). • Must show that considered: 1. The nature and gravity of the offense.2. The time that has passed since the conviction and/or completion of the sentence.3. The nature of the job held or sought.

27. El v. SEPTA, 479 F.3d 232 (3d Cir. 2007) • Requires that a policy limiting employment of people with record "accurately distinguish between applicants that pose an unacceptable level of risk and those that do not."

28. How to Use Title VII • Send demand letters to employers who refuse to hire or terminate based solely on person’s criminal record. • File EEOC complaints, and use mediation process to get settlements. • Litigate: new area of law; requires experts and money to litigate; work collaboratively

29. Title VII Impact Litigation Project in Michigan • Looking for plaintiffs in Eastern District of MI who are: • Persons of color • Minor, nonviolent, old record • Recently fired or denied job because of record • Conviction is not related to the type of job lost

30. Participate in a training call sponsored by Community Legal Services on October 27, 3 p.m. Contact: Janet Ginzberg: JGinzberg@clsphila.org To Learn More About Title VII Criminal Records Cases

31. VI. Housing Barriers Stable housing is critical to successful re-entry and to family reunification. Increasingly, clients are having housing problems related to criminal records.

32. Tenants with Criminal Records in Private Housing • Any convictions can make it harder to find housing. • Difficult to challenge record-based restrictions by private landlords: • Potential claims where individuals have disabilities. • Potential disparate impact claim under Fair Housing Act, but these have not been litigated. • However, a landlord cannot evict individual who has a valid lease just because person has a criminal record.

33. Tenants with Criminal Records in Subsidized Housing • Certain convictions will result in denial of subsidized housing. • However, many people with records, including felony records, are eligible for subsidized housing.

34. Subsidized Housing Plan Requirements • Public Housing Authorities should publish standards for denying eligibility and terminating assistance based on criminal activity. • Plans must include certain federal standards, but are PHAs are often more restrictive than federal requirements.

35. What Subsidized Housing is Covered by Criminal Record Restrictions? • “Federally Assisted Housing”: 24 CFR 5.850 et. seq. (Definition of “federally assisted housing” is in 24 CFR 5.100) • Public Housing: 24 CFR 960.203-204; 24 CFR 966.4 • Section 8: 24 CFR 982.553; 24 CFR 882.518

36. Differences Between Different Types of Subsidized Housing • Federal standards largely the same between programs, but don’t assume identical. • Federal standards set a baseline – great variation in implementation. • Different public housing authorities can and do have different rules in discretionary areas. • When in doubt, review policies of housing provider and make sure they comply with relevant federal regulations.

37. Admission to Subsidized Housing: Mandatory Denial • Life-time Sex Offender Registration Offenses • Methamphetamine Production on premises of federally assisted housing.

38. Admission to Subsidized Housing: Presumptive Denial • Household member evicted from subsidized housing in past 3 years for drug-related activity UNLESS • Completed approved rehab program. • Circumstances no longer exist (i.e. offending household member dead or incarcerated) • Household member currently engaging in illegal use of drugs UNLESS • Completed approved rehab program, or otherwise rehabilitated • Household member abusing alcohol UNLESS • Completed approved rehab program, or otherwise rehabilitated

39. Admission to Subsidized Housing: Discretionary Denial • May Deny Admission if Any Household Member Engaged in: • Drug-related crimes • Violent crimes • Other crimes that affect health, safety or right to peaceful enjoyment of residents, neighbors, staff, owner, or PHA contractor. • Limited to reasonable amount of time after criminal activity – Potential Area for Challenge.

40. Admission to Subsidized Housing: Getting Clients In Despite a Record • 24 CFR 960.203, 24 CFR 982.553, 24 CFR 5.852: In discretionary cases, PHA can consider factors like: • Seriousness of activity • Extent of participation/culpability • Evidence of Rehabilitation • Effect of Denial on Members Not Involved • PHA can reconsider denial if “sufficient evidence” that household member not currently engaged, and has not engaged in criminal activity during a reasonable time prior to admission.

41. Conditioning admission on exclusion of Household Member • PHA may require applicant to excludes household member who was responsible for the criminal activity that would otherwise lead to denial.

42. Eviction from Public Housing: Mandatory Termination • PHA must evict residents who: • Are subject to lifetime sex offender registration. • Were convicted of methamphetamine production on premises of federally assisted housing.

43. Eviction from Subsidized Housing: Discretionary Termination • Engaging in illegal drug use UNLESS rehabilitated • Abusing alcohol UNLESS rehabilitated • Furnishing false information re drug/alcohol use • Fleeing felons or parole violators • Persons engaging in criminal activity • Drug crime on or off premises • Crimes entailing threat to other residents or persons residing in immediate vicinity

44. Mitigation Provisions • For Discretionary Terminations, Housing Authority may consider factors such as: • Seriousness of offending action • Extent of participation of leaseholder in offending action • Effect eviction would have on family members not involved in offense • Steps leaseholder took to prevent or mitigate offense

45. If Substance Abuse, Pursue Rehab • For some drug or alcohol related activities, housing authority may accept defendant, if defendant completes rehabilitation program approved by the Housing Authority.

46. Sex Offender Registry Exclusion Zones • Some states restrict where individuals who are on the sex offender registry can live. • Parole/probation conditions may also limit where individuals with sex offenses can live. • Understand what exceptions apply under your state statute. • Refer sympathetic cases to impact organizations.

47. VII. Public Benefits Impact of Incarceration • SSI benefits terminated if individuals is incarcerated for a year or more. • Social Security benefits are suspended during incarceration. • Benefits to a retired or disabled person’s dependents should continue. • Very short term incarceration may not effect benefits.

48. Public Benefits: Loss of Benefits Due to Drug Related Felony Convictions • Federal law permanently bars anyone with a drug-related felony conviction from receiving certain benefits during his or her lifetime. • Covers TANF benefits (traditional cash benefits for parents & children) • Food stamps

49. Implementation of Ban Varies By State • Michigan and Ohio have “opted out” of this ban, but West Virginia and many other states still have it. • Client who live in or are looking to move to other states need to know whether ban applies. State-by-state information at: www.lac.org/roadblocks-to-reentry/upload/lacreport/LAC_PrintReport.pdf

50. Public Benefits: Loss of Benefits for “Fleeing Felons” and Parole Violators • If client has an outstanding felony warrant OR is violating a condition of probation OR parole then disqualified from: • TANF • SSI/SSD • Food stamps • Subsidized housing