The Human Rights of Persons With Criminal Histories

Established Human Rights Principles on Work

• Universal Declaration of Human Rights: Article 23: “Everyone has the right work”

• OAS Declaration of the Rights & Duties of Man, Art. XIV: “Every person has the right to work”

• International Covenant on Economic, Social, and Cultural Rights Art. 6: “the right to work..includes the right of everyone to the opportunity to gain his living by work…”

Maryland Court of Appeals I

• Singer v. State, 72 Md. 464, 19A. 1044 (1890) • “ No one questions the right of every person in

this country to follow any legitimate business or occupation he may see fit… His own labor, and the right to use it as a means of livelihood is a right as sacred and fully protected by the law as any other personal or private right.” Singer, at 1045.

Maryland Court of Appeals II

• Singer v. State, 72 Md. 464, 19A. 1044 (1890) again:

• State can qualify, or condition the right to work• “The nature and extent of the qualifications

required must primarily depend on the judgement of the state as to their necessity. If they are appropriate to the calling or profession, and attainable by reasonable application, no objection to their validity can be raised.”

Some Qualifications Set By the State

• School Employees: Persons convicted of Sexual Crimes or Crimes of Violence

• Respite/Personal/Dependent Care providers: persons convicted of a felony, any crime involving moral turpitude, theft, or criminal history indicating behavior that is potentially harmful to those under care

• Correctional Officers: Felony conviction for aggravated assault, murder…

State Laws Requiring Background Checks

• Facilities and Individuals Caring for children

• Health care facilities

• Drivers: Cabs, government, non-profits

• Security System Personnel

• DOJ personnel

All Employers Should Have “Policies”

• Legal Bar = policy (i.e. school employees)

• Legally required background check DOES NOT = a policy (still must say what is disqualifying)

• Unwritten Rules DO NOT = a policy

• Policy should be in accordance with Title VII Directives of EEOC

Title VII of Civil Rights Act

• Can’t discriminate on the basis of Race

• Neutral Tests—like criminal records (and credit) screening, can be considered to be racial discrimination

• Employer can avoid this by showing the screening is JOB RELATED and CONSISTENT with business necessity

What Must Employers Do?

• They Must Have Policies— with THREE PRONGS that consider:

• Nature and gravity of the offense

• The time that has passed since the conviction and/or completion of the sentence

• The nature of the job held or sought and the job relatedness of the offense(s)

What Employers Cannot Do

• No Broad Based Prohibitions --“We don’t hire anyone with a conviction, regardless of the crime”

• Too Broad a policy—will screen out minorities at a higher rate than whites & violates Title VII

• Arrest but not a conviction? Employers should avoid and focus on convictions.

Pardons

• Recommendation by Maryland Parole Commission (which has guidelines relative to being crime free)

• Purely Discretionary Act by Governor

• Commutes the Sentence—Does not remove it from record, though pardon is noted

• Expungement then must be filed

Expungement: A Limited Tool

• Convictions Cannot Be Expunged (unless homeless related nuisance crimes)

• A Conviction will “extinguish” your right to expunge prior charges

• For PBJs and Stets, must wait three years from entry to even file expungement petition

• “merger” concept: 3 charges for 1 incident? All 3 are considered 1.

What is a Conviction and What Isn’t?

• Guilty = Conviction

• Non Convictions

• Probation Before Judgment

• Stet

• Nol Pross

• Dismissal

• Acquittal

Probation Before Judgment

• Sufficient evidence exists to convict, but court allows defendant to escape the stigma of conviction through an agreement to abide by the terms of probation

• Pleads Guilty, No Contest, or Found Guilty• If Probation violated, court can enter conviction• is not a conviction for the purpose of any

disqualification or disability imposed by law because of conviction of a crime. Crim Pro 6-220

Stet

• The State postpones the trial

• Indefinitely (forever)

• May be rescheduled by request of state within one year

• After one year, state needs to show “Good Cause” for rescheduling it

• MD Rule 4-248

Nolle Prosequi

• MD Rule 2-247

• State Terminates the Prosecution

• Charge is technically dismissed but disposition is Nolle Prosequi

What is a Conviction and What Isn’t?

• Guilty = Conviction

• Non Convictions

• Probation Before Judgment

• Stet

• Nol Pross

• Dismissal

• Acquittal

Expungement

• Generally—Only the Non Convictions

• PBJ, Nol Pros, Stet, Dismissal, Acquittal

• Recent change in law allowing some convictions to be expunged

• Panhandling

• Public drinking-urinating-obstruction passage

• No proof MTA-loitering-park vio

Expungement & Nol Pross

• Aside from those Nuisance crimes, only NON-CONVICTIONS can be expunged

• Special Rules depending on the non-conviction

• Nol Pross? Expunge anytime as long as not convicted of a criminal offense SINCE time of nol pross

• Example: 01 Nol Pross, then 08 Conviction—you are out of luck

Expungement and STET or PBJ

• Like Nol Pros – if you’ve been CONVICTED since the time of the Stet or PBJ, you have lost your right to expunge the stet or PBJ

• Also, must wait three years to file expungement request (3 yrs after entry)

Expungement Process

• File Expungement Petition in Court in which the PBJ, Stet, Nol Pross, Dismissal, Acquittal occurred

• Filing Fee Waiver

• Roughly 60 days—Order

• Compliance with Order

Expungement Summary

• Really only good for folks without convictions

• New Law—nuisance crimes

• PBJ and Stet—Need to wait three years

Expungement Example

• 03 Stet– CDS possession

• 04 PBJ– possession

• 05 Stet—theft less than $300

• Nothing since? Can expunge them all after three year wait and if no convictions since

• File Petition

• Await Orders of Compliance

Expungement Example II

• 03 Stet– CDS possession

• 04 PBJ– possession

• 05 Stet—theft less than $300

• 06 Guilty– CDS possesion

• CONVICTION extinguishes right to expunge these charges (Stet, PBJ or Nol Pros)

Expungement Example III

• 03 Dismissed– CDS possession

• 04 Dismissed– possession

• 05 Dismissed—theft less than $300

• 06 Guilty– CDS possession

• Still can expunge the Dismissals

• CONVICTION extinguishes right to expunge a Stet, PBJ or Nol Pros

Child Abuse & Neglect Registry

• State (DHR) maintains a listing of those “found responsible for child abuse or neglect”

• Responsible = Indicated or Unsubstantiated

• Indicated = credible evidence not refuted

• Unsubstantiated = insufficient evidence to support a finding either way

Registry—Notice & Appeal

• Within 30 days of investigation, DSS shall send a notice to person found responsible for indicated or unsubstantiated

• Includes finding and appeal process

• Must Appeal within 60 days of notice

• Can be waived for “good cause”

• Prior to 1999—special rules

• Conference—Then Hearing

Recap

• There is a Right to Work (freedom to work)• It Can’t be abridged on basis of race• Racial disparities in arrests & convictions• Title VII of Civil Rights Act requires Employers to

used a standard that is JOB RELATED and CONSISTENT with business necessity

• Expungement is a limited tool—ONLY for NON CONVICTIONS (w/homeless nuisance exception) and for THOSE WHO HAVE KEPT OUTTA TROUBLE SINCE….