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Relieving Collateral Consequences. Daniel Bowes Staff 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 - PowerPoint PPT Presentation
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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
[email protected] (919) 861-2061