Relieving Collateral Consequences

1. Relieving Collateral Consequences Daniel Bowes Staff Attorney

2. 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

3. 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/ • Immigration • Housing • Foster Care/Adoption • Jury Duty • Occupational License • Public Office • Financial Aid • Public Benefits • Public Employment • Drivers License • Hunting License • Child Custody • Child Support • Termination of Parental Rights • Workers Compensation • Unemployment Insurance • License plate • Voting • Military Service • Firearm Permit

4. Employer Bias What Influences Employers? Effect of Incarceration on Employment • 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

5. Racial Disparities in the Impact of a Criminal Record The Mark Of a Criminal Record, Devah Pager, Princeton While the ratio of callbacks for non offenders relative to ex-offenders for whites is 2:1, this same ratio for blacks is nearly 3:1. The effect of a criminal record is thus 40% larger for blacks than for whites. http://www.princeton.edu/~pager/pager_ajs.pdf

6. 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. Impact: Recidivism “Although no one supports ‘coddling criminals,’ society has a strong interest in preventing recidivism.” -Uniform Law Comm.

7. 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

8. Expungement Expungementis 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

10. Expungement EligibilityFirst-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 restrictionSubsequent 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 convictionsWaiting 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 OtherPrior 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

11. Certificates of Relief(NCGS §15A-173) • 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

13. Title VII/Fair Credit Reporting Act Claims TITLE VII/Title VIII Title 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

14. Daniel Bowes Staff Attorney danielb@ncjustice.org (919) 861-2061