Western State University Law Review
Volume 42 | Issue 1
Article 1
9-2014
The Long Shadow: Decreasing Barriers to
Employment, Housing, and Civic Participation for
People with Criminal Records Will Improve Public
Safety and Strengthen the Economy
Steven D. Bell
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Steven D. Bell, The Long Shadow: Decreasing Barriers to Employment, Housing, and Civic Participation for People with Criminal Records
Will Improve Public Safety and Strengthen the Economy, 42 W. St. U. L. Rev. (2015).
Available at: http://lawscl.org/wslawreview/vol42/iss1/1
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The Long Shadow: Decreasing Barriers to
Employment, Housing, and Civic Participation for
People with Criminal Records Will Improve Public
Safety and Strengthen the Economy
Steven D. Bell*
A . Direct Consequences ...........................................
1. Incarceration ...............................................
2. Probation and Parole .......................................
3. Fines and Restitution .......................................
4. R egistration ................................................
5. R ecidivism ................................................
6. A Note about California's Realignment ......................
B. Collateral Consequences ........................................
1. D isenfranchisem ent .........................................
2. Other Civil Restrictions ....................................
3. E m ploym ent ...............................................
4. H ousing ...................................................
2
3
3
3
4
5
5
5
6
7
8
9
10
11
W ORSENING CONDITIONS...............................................
11
INTRODUCTION .................................................................
I.
II.
CONSEQUENCES OF A CRIMINAL CONVICTION .........................
A . Getting Tough on Crim e ........................................
B. Technological Advances ........................................
C. Increased Use of Background Checks ...........................
III. "BAN THE Box" MOVEMENT ............................................
A . D isenfranchisem ent .............................................
B . E m ploym ent ...................................................
1. M innesota .................................................
2. M assachusetts ..............................................
3. California ..................................................
4. San Francisco ..............................................
5. N ational Em ployers ........................................
6. Federal Law suits ...........................................
IV.
PROPOSAL ...............................................................
V.
CONCLUSION ...........................................................
11
13
13
16
17
18
18
19
19
20
21
21
22
24
* J.D. Candidate, May 2015, Western State College of Law. I would like to express my gratitude to
Western State for welcoming this formerly incarcerated person into its program and my appreciation to
Professor Elizabeth Jones, Director of the Criminal Law Practice Center, and Professor Dylan Malagrinb
for their continuing guidance, encouragement, and inspiration. Lastly, my profound thanks to my wife,
Sue, and to all my family and friends for their love, support, and patience through the years, especially
today as I pursue my passion.
Western State Law Review
Vol. 42 #1
INTRODUCTION
Two hundred years ago, attorney Francis Scott Key described America as "the
Land of the free."' He would find it difficult to pen those words today, when America
imprisons more than two million people. 2 Although home to only about five percent
of our world's population, America accounts for about twenty-five percent of all
prisoners. 3 Today, roughly 65 million Americans - one in four adults - have criminal
records. 4 In California, approximately 7 million people have criminal records. 5
"Every week more than 10,000 ex-prisoners [sic] 6 are released from U.S.
prisons . . . about 650,000 each year."' 7 However, even after completing their
sentences ex-prisoners face enormous obstacles to employment, housing, and civic
participation based on "[flears, myths . ..stereotypes and biases against those with
criminal records."'8 "[I]n 2010 5.5 million voting-age citizens were disenfranchised
because of their criminal records . . . 11 states (six in the South) ban[ ] ex-felons from
voting even after they have completed prison and probation or parole." 9 "[T]wo-thirds
of employers surveyed in five major U.S. cities would not knowingly hire a person
with a criminal record, regardless of the offense."' 0
The collateral consequences of a criminal conviction, the "long shadow" cast
by prison walls over former prisoners even after full payment for their crimes, threaten
to permanently marginalize a significant segment of our population. Such a
marginalized, chronically unemployed population represents a material threat to public
safety."I "We know from long experience that if [former prisoners] can't find work, or
a home, or help, they are much more likely to commit more crimes and return to
prison."12
1.
2.
3.
4.
Francis Scott Key, Defence of Fort McHenry (popularly known as The Star-Spangled Banner),
1814.
Gabriel J. Chin, The New Civil Death: Rethinking Punishment in the Era of Mass Conviction, 160
U. PA. L. Rizv. 1789, 1791 (2012).
Joshua Holland, Land of the Free? US Has 25 Percent of the World's Prisoners,MOYERS & Co.
(Dec. 16, 2013), http://billmoyers.com/2013/12/16/land-of-the-free-us-has-5-of-the-worlds-popula
tion-and-25-of-its-prisoners.
Ban the Box Resource Guide, NAT'L EMI'r.OYMENT LAW PROJECT 1 (July 2014), http://www.nelp
.org/page/-/sclp/2011/cityandcountyhiringinitiatives.pdf?nocdn=1.
5.
SAN FRANCISCO, CA., POuCE CODE Art. 49, §§ 4901-4920 (2014), [hereinafter "Fair Chance
6.
Ordinance"] at § 4902 Findings.
"Ex-prisoners" do not get released; prisoners get released and thereby become ex-prisoners.
7.
Preeti Vissa, President Bush Was Right, HUFINGTON
8.
9.
10.
11.
12.
POST (Feb. 27, 2014), http://www
.huffingtonpost.com/preeti-vissa/president-bush-was-right-b_4863511 .html.
Comm'r Ishimaru, Commission Meeting of November 20, 2008 - On Employment Discrimination
Faced by Individuals with Arrest and Conviction Records (Nov. 20, 2008), http://www.eeoc.gov/
eeoc/meetings/I 1-20-08/transcript.cfm.
Editorial, Disenfranchised Felons, N.Y. TIMI-S, p.A16 (July 15, 2012), available at http://www
.nytimes.com/2012/07/16/opinion/disenfranchised-felons.html?module=Search&mabReward=rel
bias%3Ar&_r=0.
See Fair Chance Ordinance, supra note 6, at 4.
Id.
Vissa, supra note 8.
2014
The Long Shadow
Because "almost all convicted persons eventually rejoin society,"'13 this article
proposes that decreasing barriers to employment, housing, and civic participation for
these people will advance public safety and strengthen the economy. Part I provides
an overview of the direct and collateral consequences of a criminal conviction. Part II
considers how several factors - recent technological advances, effects of "get tough on
crime" policies, and post-9/1 1 anxieties - have aggravated the collateral consequences
crisis. Part III examines the emergence of a national "Ban the Box" movement, which
seeks to remove obstacles to employment, housing, and civic participation for former
prisoners, and the burgeoning body of law that this movement has triggered. Part IV
proposes language for a new California statute aimed at eliminating blanket
employment discrimination against former prisoners while safeguarding legitimate
employer concerns. Finally, Part V concludes that when considering public safety,
economic impact, and fundamental fairness, the time is long overdue for California to
eliminate many of the collateral consequences faced by former prisoners.
I.
A.
CONSEQUENCES OF A CRIMINAL CONVICTION
Direct Consequences
Although "[t]here is some disagreement among the courts over how to
distinguish between direct and collateral consequences,"' 14 for the purposes of this
article direct consequences will be defined as those sanctions imposed upon an
individual by the judiciary as the result of a criminal conviction. Such sanctions
generally fall into four broad categories: incarceration, probation and parole, fines and
restitution, and registration.
1.
Incarceration
When most people consider the direct consequences of a criminal conviction,
they usually think of the offender's physical confinement in a jail or prison. In reality,
most convictions do not result in such incarceration.15 See 2. Probation and Parole,
infra. In California, as in most jurisdictions, "the purpose of imprisonment for crime
16
is punishment."'
A jail is "[a] local government's detention center where persons awaiting trial
or those convicted of misdemeanors are confined."' 17 Historically, jails have been
operated by counties and were used to house those sentenced to confinement for a year
or less, usually for misdemeanor convictions.' Prisons, on the other hand, generally
have been operated by the state and house those sentenced to more than a year, usually
13.
14.
15.
16.
17.
18.
Chin, supra note 3, at 1790.
Padilla v. Kentucky, 559 U.S. 356, 364 n.8 (2010).
See Chin, supra note 3, at 1804.
CAL. PENAL CODnE § 1170 (West 2014).
BLACK'S LAW DICTIONARY 409 (9th ed. 2009).
CAL. PENAL CODE § 18(b) (West 2014).
Western State Law Review
Vol. 42 #1
felony convictions. 19 Recently in California, however, these traditional distinctions
have become blurred through the state's so-called "corrections realignment" process 20 ,
discussed in Section I.A.6. A Note about California's Realignment, infra.
Whether post-conviction incarceration is accomplished through jail or prison,
its purpose remains the same: to confine convicted criminals.
2.
Probation and Parole
Despite America's unequaled incarceration rate, the prison population is
"dwarfed by the six-and-a-half million or so on probation or parole. ' 21 "The vast
'22
majority of people who have been convicted of crimes are not currently in prison.
While the terms often are used interchangeably, probation and parole are
distinctly different types of criminal sanctions. Probation is a "criminal sentence that,
subject to stated conditions, releases a convicted person into the community instead of
sending the criminal to jail or prison. '23 That is, probation is an alternative
punishment to incarceration. Parole, on the other hand, is the "conditional release of a
prisoner from imprisonment before the full sentence has been served. '24 Unlike
probation, parole in itself is not punishment but rather a supervised transitional period
that follows release from punitive incarceration.
Probation may be either unsupervised (for minor offenses) or supervised (for
more serious crimes) by correctional officials; parole is nearly always supervised.
25
Historically, in California probationers were supervised by county probation officers,
while parolees were supervised by state parole agents. 26 As with incarceration,
however, this distinction also has become blurred pursuant to California's correctional
realignment. See Section I.A.6. A Note about California's Realignment, infra.
Whether probation or parole, the court or correctional officials impose
behavioral conditions upon a convicted person, the violation of which typically results
in incarceration. Such conditions vary widely but normally include requirements to
work, to obey the law, to submit to searches of person and property, to regularly report
to the supervising officer or agent, to submit to drug or alcohol testing, and restrictions
on travel and possession of weapons.2 7 A so-called "technical violation" of a condition
of parole or probation involves misbehavior, which cannot be prosecuted as a crime,
such as failing to meet with the supervising officer or agent, refusing to attend
21.
JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 3 (6th ed. 2012).
Steven Thomas Fazzi, A Primer on the 2011 Corrections Realignment: Why California Placed
Felons Under County Control, 44 McGIFORGE L. REv. 423, 425 (2013).
Chin, supra note 3, at 1791.
22.
Id.
23.
24.
25.
BLACK'S LAW DICTIONARY 599-600 (9th ed. 2009).
Id. at 554.
Helen R. Mac Gregor, Adult Probation,Parole,and Pardon in California,38 TEX. L. REV. 887, 914
(1960) (citing CAL. PENAL CODE §§ 1203.5-1203.8).
See Fazzi, supra note 21, at 427.
See, e.g., 15 CAL. CO1E REGS. tit. 15,§ 2512 (2014).
19.
20.
26.
27.
2014
The Long Shadow
5
substance abuse meetings, or not performing required community service. 28 Violations
of behavioral conditions involving new crimes committed by the probationer or
parolee are addressed in Section I.A.5. Recidivism, infra.
Because both probation and parole impose significant restrictions on a
person's liberty, a probationer or parolee is considered to be legally "in custody"
29
despite living in free society.
3.
Fines and Restitution
Both fines and restitution involve financial penalties paid by the convicted
person. A fine is a "pecuniary criminal punishment . . . payable to the public
treasury. ' 30 Restitution, on the other hand, is not considered punishment but rather
payment of compensation or reparation to those harmed by the criminal offense.
Typically all fines and restitutions must be paid before a convicted person may be
released from probation or discharged from parole.
4.
Registration
Convictions for certain criminal acts, generally sex offenses, require the
offender to register with authorities even after completion of incarceration, probation,
parole, or other court-imposed sanctions. 31 Registration has been promoted as
"protecting public safety . . . an easy way for police to keep tabs on potentially
32
dangerous persons."
5.
Recidivism
Recidivism is "[t]he behavior of a repeat or habitual criminal" 33 who commits
a crime after completion of a previous sentence, usually incarceration. Most
jurisdictions "impose harsher sentences on habitual offenders" and "[a]t least thirty
states have instituted some form of 'three strikes' criminal legislation, mandating
progressively harsher sentences for adults convicted of multiple serious crimes and
34
typically culminating in a life sentence after the third such 'strike.' ,,
28.
ALISON
LAWRENCE,
PROBATION
AND
PAROLE
VIOLATIONS:
STATE
RESPONSIS,
NATIONAL
CONFERENCL OF STATE LEGISLATURES 4 (2008), available at http://www.ncsl.org/print/cj/violations
29.
report.pdf.
Jones v. Cunningham, 371 U.S. 236, 243 (1963).
313 (9th ed. 2009).
30.
BLACK'S LAW DICTIONARY
31.
32.
See Chin, supra note 3, at 1801.
Sex Offenses Definition, http://legal-dictionary.thefreedictionary.com/Sex+Offenses (last visited
Dec. 29, 2014).
Recidivism Definition, http://Iegal-dictionary.thefreedictionary.com/recidivism (last visited Dec. 29,
2014).
33.
34.
Steven D. Bell, A CorruptBargain, p.8, available at https://drive.google.com/file/d/OB9ruoZZu3H
mQTYyNUJIQWphUUO/edit?usp=sharing.
Western State Law Review
6
6.
Vol. 42 #1
A Note about California'sRealignment
Beginning in 2011, California changed many of the historical characteristics of
incarceration, probation, and parole discussed supra. Faced with a "monumental
budget deficit" and a federal court order to reduce prison overcrowding, 35 the
California Legislature passed the Prisoner Realignment Bill (also known as Assembly
Bill 109, hereinafter referred to as "realignment").3 6 Under realignment, the State
relinquished its responsibility for incarcerating and supervising certain felony
offenders, transferring this responsibility to county governments. "At its core,
corrections realignment is about defining which level of government is responsible for
'37
managing California's felons - the state or the counties.
California's twin goals in implementing realignment were (1) to help balance
the state budget by reducing prison costs and (2) to comply with the federal court order
by reducing the state prison population. 38 Until realignment, convicted felons
sentenced to more than one year of incarceration were confined in state prisons at state
expense. 39 Now, convicted felons sentenced to confinement for up to three years
40
remain incarcerated in county jails rather than being transferred to state prisons.
Thus "felons whose crimes are the most serious are treated as the least amenable to
county control and left predominantly to state control, while felons whose crimes are
less serious are considered more manageable and placed under significant (or
complete) county control. '41 In addition, the State also transferred to the counties the
responsibility for virtually all parole violations, technical or not, "requiring county
'42
jails, rather than State prisons, to incarcerate most parole violators.
However, some of the most significant changes wrought by realignment
concerned parole and probation. First, as with incarceration, the State transferred to
the counties responsibility for the supervision of significantly more released offenders,
usually low-level nonviolent felons.43 Next, as noted supra, the State also transferred
to the counties the responsibility for virtually all parole violators. 44 Third, realignment
also created two brand new types of noncustodial supervision in addition to parole and
probation: mandatory supervision and post-release community supervision
45
(commonly known as "PRCS").
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
See Fazzi, supra note 21, at 425.
Michael Santos, How Are Realignment Billions Being Spent?, HUFFINGTON POST (Mar. 18, 2013),
http://www.huffingtonpost.com/michael-santos/california-prisons-realignment b_2857140.html.
Fazzi, supra note 21, at 426.
Id. at 425.
Id. at 427.
Santos, supra note 37.
Fazzi, supra note 21, at 428.
Id. at 430.
Id. at 429.
Id. at 430.
Scott v. Bowen, No. RG14-712570, slip op. at 4 (Super. Ct. Alameda Cnty. April 2, 2014), available
at http://www.slideshare.net/andrewwilliamsjr/scott-v-bowen- 140507-order-writ-reversing-illegalvoter-disenfranchisment-in-califomia.
2014
The Long Shadow
7
Mandatory Supervision. The Realignment Act states that defendants
without prior or current felony convictions for serious, violent, or sex
related crimes are sentenced to county jail rather than to state prison.
(Penal Code 1170(h).) Under Penal Code 1170(h)(5)(B), the court
may suspend the term and release the defendant to Mandatory
Supervision, "during which time the defendant shall be supervised by
the county probation officer in accordance with the terms, conditions,
and procedures generally applicable to persons placed on probation."
A person on Mandatory Supervision is serving their felony sentence
under the supervision of a county probation officer instead of in a
46
county jail.
Post-Release Community Supervision ("PRCS"). The Postrelease
Community Supervision Act states that defendants without prior or
current felony convictions for serious, violent, or sex related crimes
will, upon release from state prison, "be subject to community
supervision provided by a county agency." (Penal Code 3451(a).) A
person on PRCS is serving their mandatory period of supervision
instead of
following release under the supervision of a county agency
47
the state Department of Corrections and Rehabilitation.
Finally, county supervision of released offenders differs significantly from
state parole in the range of sanctions and programs available for violations. "Instead
of relying primarily on one sanction - return to prison - to punish parole violations,
counties deploy a range of options, and harsh sanctions need approval from a court' 48
appointed hearing officer.
However, as discussed infra, California's corrections realignment scheme has
had some unintended collateral consequences.
B.
Collateral Consequences
Not all sanctions for a criminal conviction are direct in the sense of being
imposed by a sentencing court. These secondary or collateral consequences include
civil and social sanctions that attach to the individual as the result of a conviction.
"For many people convicted of crimes, the most severe and long-lasting effect of
conviction is not imprisonment or fine. Rather, it is being subjected to collateral
consequences involving the actual or potential loss of civil rights, parental rights,
'49
public benefits, and employment opportunities.
Some collateral consequences are mandated by statute, such as
' 50
disenfranchisement, or by civil regulations, such as "professional licensing schemes.
Others have evolved into common community practices, such as the check box on
46.
47.
48.
49.
50.
Id.
Id.
Fazzi, supra note 21, at 479 (citation omitted) (internal quotation marks omitted).
Chin, supra note 3, at 1791.
Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal
Courts, 45 U.C. DAVis L. Ri-W. 277, 372 (2011).
Western State Law Review
Vol. 42 #1
employment or housing applications which generally reads something like this: "Have
you ever been convicted of a crime?"
1.
Disenfranchisement
Disenfranchisement involves taking away the right to vote in public elections
from a citizen or class of citizens.5' Because each state determines by statute the
qualifications required for its citizens to vote, 52 each state likewise determines the
voting effect of a criminal conviction. This has resulted in "[a] patchwork of state
felony disfranchisement laws, varying in severity from state to state, prevent[ing]
approximately 5.85 million Americans with felony (and in several states
'53
misdemeanor) convictions from voting.
In at least three states - Iowa, Kentucky, and Florida 54 - all persons convicted
of a felony "are barred from the polls for life unless they receive clemency from the
governor. '55 Many other states are almost as severe: "[iln Mississippi, passing a $100
bad check carries a lifetime ban from voting. '56 At the opposite end of the spectrum,
two states - Maine and Vermont - "allow all persons with felony convictions to vote,
'57
even while incarcerated.
California falls in the middle, disenfranchising felons only during the time
they are imprisoned or on parole; those on probation do not lose their right to vote. 58
However, as noted supra, California's recent corrections realignment scheme created
two new types of noncustodial supervision (i.e., mandatory supervision and PRCS)
without considering how this would affect voting rights. 59 Despite the Legislature's
silence on this issue, in December 2011, the California Secretary of State nonetheless
sought to deny voting rights to approximately 42,000 persons 60 on mandatory
supervision or PRCS because these were the "functional equivalent" of parole. 61
Because the state's "functional equivalent" argument already had been rejected by
51.
52.
53.
54.
55.
237 (9th ed. 2009).
Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247, 2257-58 (2013).
Map of State Criminal Disenfranchisement Laws, AM. CIVIL LIBERTIES UNION, https://www.aclu
.org/maps/map-state-criminal-disfranchisement-laws (last visited Dec. 29, 2014).
Id.
BLACK'S LAW DICTIONARY
Matt Apuzzo, Holder Urges States to Lift Bans on Felons' Voting, N.Y. TIMES, Feb. 11, 2014,
available at http://www.nytimes.com/20 14/02/1 2/us/politics/holder-urges-states-to-repeal-bans-on-
56.
voting-by-felons.html.
Id.
57.
The Democracy Restoration Act of 2014, AM. CIVIL LiBlRTIES UNION, at 2, available at https:/l
58.
59.
www.aclu.org/sites/default/files/assets/dra - fact-sheet_1 13thcongress_4_2014_2.pdf.
CAL. CONST. art. II, § 4.
Scott v. Bowen, No. RG14-712570, slip op. at 4 (Super. Ct. Alameda Cnty. April 2, 2014), available
at http://www.slideshare.net/andrewwllIiamsjr/scott-v-bowen- 140507-order-writ-reversing-illegalvoter-disenfranchisment-in-california.
60.
61.
Paige St. John, Judge Says Ex-Cons Under Supervision Have the Right to Vote, L.A.TIMFS, May 7,
2014, available at http://www.latimes.com/local/political/la-me-ff-judge-says-excons-under-
supervision-have-right-to-vote-20140507-story.html.
Scott, slip op. at 5.
2014
The Long Shadow
three California appellate courts in different contexts, 62 on April 2, 2014, the Alameda
County Superior Court held that those on mandatory supervision or PRCS retained
their right to vote:
In short: (1) the plain language of Elections Code 2101 states that
United States citizens who are residents of California and "not in
prison or on parole for the conviction of a felony" are entitled to
register to vote; (2) Cruz, Fandinola, and Isaac each hold that
Mandatory Supervision and PRCS are not "parole," so (3) persons63on
Mandatory Supervision and PRCS are entitled to register to vote.
"State disenfranchisement laws disproportionately impact racial and ethnic
minorities," 64 who are "disproportionately over-represented in the criminal justice
system. '65 "Nationwide one in 13 African Americans of voting age have lost the right
66
to vote - a rate four times the national average."
2.
Other Civil Restrictions
The patchwork of state disenfranchisement laws pales in comparison to
number and complexity of other statutory and regulatory restrictions faced by former
prisoners. In response, in 2011 the American Bar Association ("ABA") created an online "database identifying more than 38,000 punitive provisions that apply to people
convicted of crimes, pertaining to everything from public housing to welfare assistance
to occupational licenses. More than two-thirds of the states allow hiring and
professional-licensing decisions to be made on the basis of an arrest alone. '67 Federal
law prohibits anyone "who has been convicted of a felony" from enlisting in the armed
forces.
68
According to the ABA database, California imposes 1,739 civil restrictions on
former prisoners in employment, housing, and public assistance; the number of
69
restrictions increases to 2,804 when including corresponding federal consequences.
Examples of California's civil restrictions include: (1) mandatory prohibitions against
operating or working at hospitals, daycare centers, and elder care facilities (even if
unrelated to the nature of the prior offense), (2) ineligibility to become a certified
domestic violence counselor (but not a certified substance abuse counselor), and (3)
62.
63.
64.
65.
66.
67.
68.
69.
People v. Cruz, 143 Cal. Rptr. 3d 664 742, 747 & n.6 (5th Dist. Ct. App. 2012); People v.
Fandinola, 165 Cal. Rptr. 3d, 388-389 (3rd Dist. Ct. App. 2013); People v. Isaac, 168 Cal. Rptr. 3d
544, 545 (1st Dist. Ct. App. 2014).
Scott, slip op. at 9.
Democracy Restoration Act of 2014, S. 2235, 113th Cong., at 5 (2014), available at https://
beta.congress.gov/1 13/bills/s2235/BILLS- 113s2235is.pdf.
Democracy Restoration Act of 2014, supra note 58, at 1.
Id.
Alfred Blumstein & Kiminori Nakamura, Op-Ed., Paying a Price, Long After the Crime, N.Y.
TiMiEs, Jan. 9, 2012, available at http://www.nytimes.com/2012/01 / 10/opinion/paying-a-price-longafter-the-crime.html.
10 U.S.C. § 504 (2012).
Am. Bar Ass'n, National Inventory of the Collateral Consequences of a Conviction, http://www
.abacollateralconsequences.org/search/?jurisdiction=10 (last visited Dec. 29, 2014).
Western State Law Review
Vol. 42 #1
discretionary ineligibility or mandatory revocations of licenses in virtually every
regulated occupation or profession, from barbers to nurses to attorneys. 70
3.
Employment
By far the most serious and pervasive collateral consequence faced by former
prisoners is employment discrimination. While the Civil Rights Act of 1964 and its
progeny banned employment discrimination on the basis of "race, color, religion, sex
or national origin," 7' no such protection was afforded former prisoners.
A felony conviction, no matter how long in the past, carries a stigma
that makes job-hunting exceedingly difficult. Employment forms often
include a box that asks: "Have you ever been convicted of a crime?"
Check the box, and the application most likely goes to the bottom of
the stack or into the trash. In large companies or public institutions,
those applicants are generally blocked by lowest-level bureaucrats or
by human resources software before they can even make their case to
decision makers, who can put any criminal history in its proper
72
perspective.
Studies have shown that job applicants with criminal records are fifty percent
less likely to receive a job callback. 73 A former offender without some type of
employment "is three times more likely to recommit" a crime. 74 These findings are
"even more pronounced for African American men than for white men." 75 Recently
released prisoners face unemployment levels between seventy and eighty percent. 76
Unemployment is a major cause of recidivism. "The most telling predictor of
whether an ex-offender will reenter the community as a law-abiding and productive
member, or whether instead he or she will return to jail or prison, is employment. ' 77
"[O]ne study of 1,600 individuals recently released from prison in Illinois found that
only eight percent of those who were employed for a year committed another crime,
compared to the state's average recidivism rate of fifty-four percent. '78 "Providing
70.
Id.
71.
42 U.S.C. § 2000e (2012).
72.
Editorial, To Help Ex-cons, Ban the Box, L.A. TiMES, July 3, 2013, available at http://
articles.latimes.com/201 3/jul/03/opinion/la-ed-ban-the-box-employment-ex-felons-20130703.
Devah Pager, Bruce Western & Naomi Sugie, Sequencing Disadvantage: Barriers to Employment
Facing Young Black and White Men with Criminal Records, 623 THE ANNALS OF THE AM. ACAD.
Pot.. & Soc. Sci. 195, 199 (2009), available at http://prisonstudiesproject.org/wp-content/uploads/
2011 /07/pager-westemsequencing-disadvantage_2009.pdf.
73.
74.
75.
Eugene M. Hyman, The Scarlet eLetter and Other Roadblocks to Redemption for Female Offenders,
54 SANTA CLARA L. REV. 119, 123 (2014), available at http://digitalcommons.law.scu.edu/lawre
view/vol54/iss1/4.
Pager et al., supra note 75.
76.
Little Hoover Comm'n, Back to the Community: Safe and Sound Parole Policies, at vi, Nov. 13,
2003, available at http://www.lhc.ca.gov/studies/172/report172.pdf.
77.
78.
Editorial, supra note 73.
Fair Chance Ordinance, supra note 6.
The Long Shadow
2014
individuals the opportunity for stable employment actually lowers crime recidivism
79
rates and thus increases public safety.
4.
Housing
Next to employment, the second most important factor affecting recidivism is
stable housing. 80 A "study in New York reported that a person without stable housing
was seven times more likely to re-offend after returning from prison. ' 81 Often even a
misdemeanor conviction is sufficient for someone to "lose or be unable to get public
82
housing and benefits.
II.
WORSENING CONDITIONS
While former prisoners have faced collateral consequences for centuries,
changing conditions over the past few decades have significantly worsened the
problem. The most significant of these have been: (1) America's "get tough on crime"
policies, (2) technological advances, particularly the Internet, and (3) the upsurge of
background checks in the wake of 9/11.
Today, this unprecedented combination of circumstances - record numbers of
former prisoners reentering society, more personal information inexpensively and
readily available on-line, and an upsurge in employers and landlords conducting
background checks on applicants - has created a "perfect storm" of collateral
83
consequences, negatively affecting our economy and public safety.
A.
Getting Tough on Crime
Beginning in the late 1980s, jurisdictions across America began implementing
"get tough on crime" legislation which imposed increasingly severe, mandatory
penalties on people convicted of crimes, especially those "committing violent crimes,
those using guns in the commission of their offenses, habitual or repeat offenders, and
high-profile drug traffickers. 8' 4 As part of this movement, in 1994 California
implemented its "Three Strikes" law mandating harsher penalties for repeat offenders;
"[a]t least thirty states have instituted some form of 'three strikes' criminal
85
legislation."
83.
Am. Corr. Assoc., 135th Congress of Correction, Presentation by Dr. Art Lurigio (Loyola
University) Safer FoundationRecidivism Study (Aug. 8, 2005).
San Francisco Youth Comm'n, Draft - Minutes, Feb. 3, 2014, available at http://www.sfbos.org/
index.aspxpage= 15867.
Fair Chance Ordinance, supra note 6.
Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal
Courts, 45 U.C. DAVIs L. Ri.v. 277, 288-89 (2011).
See Fair Chance Ordinance, supra note 6.
84.
James P. Lynch & William J. Sabol, Did Getting Tough on Crime Pay?, UR3AN INST. CRIME
85.
See Bell, supra note 35.
79.
80.
81.
82.
Poi-icy
REPORT
No. 1, Aug. 1, 1997, availableat http://www.urban.org/publications/307337.html.
Western State Law Review
Vol. 42 #1
As a result of these policies, America's prison population exploded, "growing
by over 700%" from 1970 to 2007.86 According to the Equal Employment
Opportunity Commission ("EEOC"),
[I]n 1991, only 1.8% of the adult population had served time in prison.
After ten years, in 2001, the percentage rose to 2.7% (1 in 37 adults).
By the end of 2007, 3.2% of all adults in the United States (1 in every
31) were under some form of correctional control involving probation,
parole, prison, or jail. The Department of Justice's Bureau of Justice
Statistics (DOJ/BJS) has concluded that, if incarceration rates do not
decrease, approximately 6.6% of all persons born in the United States
in 2001 will serve time in state or federal prison during their
lifetimes. 87
From 1980 to 2006, California's state prison population increased 600%, "growing
from 27,916 to 161,000."88
One of the problems with these "get tough on crime" policies, and the
resulting prison population boom, was that no one considered the back-end of the
process. Because "[t]he vast majority of prisoners get out eventually," 89 the explosion
of prison inmates resulted in a corresponding explosion of parolees returning to
society. "Every week more than 10,000 ex-prisoners [sic] are released from U.S.
prisons ...about 650,000 each year. That's more people than the entire population of
Boston - or Seattle or Denver or Washington, D.C." 90
Large populations of unemployed former prisoners are a drag on the economy.
"[I]n 2008, the United States had between 12 and 14 million formerly incarcerated
people and people with felonies of working age." 91 Given "this population's greatly
reduced job prospects ...the cost to the U.S. economy was between $57 and $65
billion in lost output. '92 Permanent unemployment for such a large population
negatively impacts the overall economy for everyone. The "lowered job prospects
of . . .formerly incarcerated people cost the U.S. economy between $57 and $65
billion in lost output. Not to mention that serving time reduces annual earnings for
93
men by 40 percent, meaning their families too often fall into a poverty trap."
Chronic unemployment among the formerly incarcerated also threatens public
safety.94 "Lack of employment and housing are significant causes of recidivism;
86.
87.
88.
89.
90.
91.
92.
93.
94.
Lauren Salins & Shepard Simpson, Efforts to Fix A Broken System: Brown v. Plata and the Prison
Overcrowding Epidemic, 44 Loy. U. CHi. L.J. 1153, 1157 (2013).
Equal Employment Opportunity Comm'n, EEOC Enforcement Guidance on the Consideration of
Arrest and Conviction Records in Employment Decisions Under Title VI! (Apr. 25, 2012), 2012 WL
2031244.
Salins & Simpson, supra note 87, at 1157.
Vissa, supra note 8.
Id.
Fair Chance Ordinance, supra note 6.
Id.
Michelle Natividad Rodriguez, 'Ban the Box' Fair Hiring Policies Take Hold Around the Nation,
HU.FFINGTON POST, Feb. 18, 2014, available at http://www.huffingtonpost.comlmichelle-natividad-
rodriguezlban-the-box-fair-hiring-b_4811072.htmi.
See Fair Chance Ordinance, supra note 6.
2014
The Long Shadow
people who are employed and have stable housing are significantly less likely to be re95
arrested."
B.
Technological Advances
Since 1994, the Internet has "expanded to serve millions of users and a
multitude of purposes ...
way we communicate ....
[and] has changed forever the way we do business and the
Internet has become the universal source of information for
96
millions of people, at home, at school, and at work."
One of the fastest growing internet businesses "[i]n today's digital age... has
been widespread proliferation in the use of criminal background checks, with hundreds
of companies offering over the internet low-cost criminal background checks. '97 In
recent years, the criminal background check industry has grown exponentially. 98 On
April 26, 2014, a Google search by the author for "criminal background checks"
returned over 99 million hits (compared to a mere 5.85 million hits for "Kardashians").
Commercial background companies glean information from state and local
law enforcement agencies then re-package it for sale to employers. Disturbingly,
commercially prepared background checks have been found to be riddled with
inaccuracies, including criminal records being wrongly attributed to innocent
individuals, multiple reporting of the identical incidents, and uncorrected identity
theft. 99
C.
Increased Use of Background Checks
Employer nervousness following 9/11 together with "the growing problem of
workplace violence" has dramatically increased the demand for applicant background
checks.' 0 0 "Increased access to criminal records coincides with a recent, and
exponential, growth in the collateral consequences of criminal convictions."' 0' 1 The
demand for "security checks are now greater than ever."'' 0 2 "[T]he background check
industry has expanded and overall, more employers are now using background checks
95.
96.
97.
98.
99.
Id.
INTERNFT GROWTH STATISTICS, http://www.internetworldstats.com/emarketing.htm (last visited
Dec. 29, 2014).
Fair Chance Ordinance, supra note 6.
Soc'y for Human Res. Mgmt., Background Checking: Conducting Criminal Background Checks, at
3, Jan. 22, 2010, available at http://www.shrm.org/research/surveyfindings/articles/pages/back
groundcheckcriminalchecks.aspx.
NELP & Comty. Legal Services of Philadelphia, Comments to Federal Trade Commission
regarding FACTA Notices, Sept. 20, 2010, available at http:/Iwww.nelp.org/page/SCLP/2010/
NELPandCLSFCRANewNotices
Comments.pdf?nocdn=l
as cited in Michelle Rodriguez &
Maurice Emsellem, 65 Million "Need Not Apply": The Case for Reforming Criminal Background
Checksfor Employment, THE NATIONAL EMPLOYMENT LAW PROJECT (March 2011); infra note 110.
100. Fred Appleyard, Jr., Employee Background Checks: Security Checks on the Increase, Sept. 20,
2005, available at http://ezinearticles.com/?Employee-Background-Checks:-Security-Checks-onthe-Increase&id=72408.
101. Roberts, supra note 83, at 288.
102. Appleyard, supra note 101.
Western State Law Review
Vol. 42 #1
as an employment screen than ever before."' 103 "In one survey, more than 90 percent
4
of companies reported using criminal background checks for their hiring decisions."'0
"The ubiquity of criminal-background checks and the efficiency of
information technology in maintaining those records and making them widely
available, have meant that millions of Americans - even those who served probation
or parole but were never incarcerated - continue to pay a price long after the
crime."' 1 5 "The result is that employers and landlords can now quickly search criminal
records, so that even when there is no legal barrier to housing or employment for the
individual, there is an effective bar."' 10 6
Under federal law, commercial providers of criminal histories are subject to
the provisions of the Fair Credit Reporting Act 10 7 ("FCRA") and "generally may not
report records of arrests that did not result in entry of a judgment of conviction, where
the arrests occurred more than seven years ago. However, they may report convictions
indefinitely."' 18 Nonetheless, a survey of fifty randomly-selected on-line providers of
criminal history records found that despite these federal regulations, enforcement of
FCRA's protections "appears spotty at best."' 1 9 Not surprisingly, such lax
enforcement results in criminal history reports which are "not particularly
comprehensive or accurate.""10 In addition, despite specific FCRA provisions to the
contrary, 76.7% of the on-line providers surveyed report arrests not resulting in a
conviction and 57.1% report information more than seven years old."'I Worse, "there
is no mechanism for correcting or altering" incorrect information reported by on-line
providers. 112
Even if such background reports were accurate, the corresponding
"assumption that the existence of a criminal record accurately predicts negative work
behavior is subject to some debate; one limited study questions whether the two are, in
3
fact, empirically related.""
In addition to being inaccurate and unreasonable, these background checks
"can also be illegal under civil rights laws. Employers that adopt these and other
103.
104.
105.
106.
107.
108.
109.
NAT'L EMPLOYMENT LAW PROJECr, supra note 5, at 1.
NELP & Community Legal Services of Philadelphia, supra note 100.
Blumstein & Nakamura, supra note 68.
Roberts, supra note 83, at 288.
15 U.S.C. § 1681 (2012).
Equal Employment Opportunity Comm'n, supra note 88.
BARRIERS TO
REENTRY? THE LABOR MARKET
FOR RELEASED PRISONERS
IN POST-INDUSTRIAL
AMiRICA 184-192 (Shawn Bushway et al. eds., 2007).
110. Id.at 187.
Ill.
Id. at 186.
112. Id.at 192.
113. See Brent W. Roberts, et al., Predicting the Counterproductive Employee in a Child-to-Adult
Prospective Study, 92 J. APPLIED PSYCHOL. 1427, 1430 (2007), available at http://digitalcommons
.uni.edu/cgi/viewcontent.cgi?article=1044&context=managementfacpub (explaining that there is
little research examining the correlation between the existence of a criminal record and the
propensity to commit crimes at the workplace. However, in this study of New Zealand residents
from birth to age 26, researchers found that the existence of a criminal record for 13- to 16-year-olds
was unrelated to engaging in "counterproductive activities at work" at age 26, including tardiness,
absenteeism, disciplinary problems, violence, theft, property destruction, and substance abuse).
2014
The Long Shadow
blanket exclusions fail to take into account critical information, including the nature of
' 14
an offense, the age of the offense, or even its relationship to the job."
Because "[a]rrest and incarceration rates are particularly high for African
American and Hispanic men," the EEOC has found that blanket hiring denials based
15
on criminal records violates antidiscrimination laws."
Confirming the racial bias associated with a criminal record, an intriguing
recent study dispatched testers to apply for actual jobs in a big city. Each tester "had
identical credentials other than race and criminal record." ' 1 6 The results were startling:
"the white non-offender tester received callbacks 34% of the time he applied; [the]
white offender received callbacks for 17% of applications; and the black offender
'
tester callback ratio plummeted to 5%."17
In 2012, the EEOC issued new federal guidelines to employers concerning the
legal use of criminal background checks." 8 The new guidelines do not prohibit the
use of criminal record background checks, but rather recommends, inter alia, that
employers "wait until the final stages of the hiring process to conduct a criminal
background check. This sends the message to applicants that they will be evaluated
based on their qualifications for the job, rather than being segregated before they have
a fair chance to establish their credentials." ' 1 9 Under the EEOC's framework, "[a]n
employer's consideration of criminal records may pass muster under Title VII if an
individualized assessment is made taking into account: (1) The nature and gravity of
the offense or offenses; (2) The time that has passed since the conviction and/or
20
completion of the sentence; and (3) The nature of the job held or sought."'
114. Michelle Rodriguez & Maurice Emsellem, 65 Million "Need Not Apply": The Casefor Reforming
Criminal Background Checks for Employment, THu NATIONAL EMPLOYMENT LAW PROJECT, Mar.
2011, at 1, available at http://www.nelp.org/page/-/SCLP/2011/65_MillionNeed-NotApply.pdf?no
cdn=l.
115. See Equal Employment Opportunity Comm'n, supra note 88.
116. Devah Pager, The Mark of a Criminal Record, 108 AM. J. Soc. 937, 958 (2003) as cited in Roberts,
supra note 83, at 372.
117. Id.
118. See Equal Employment Opportunity Comm'n, supra note 88.
119. National League of Cities & NELP, Cities Pave the Way: Promising Reentry Policies that Promote
Local Hiring of People with Criminal Records, (July 2010), at Appendix, available at http://www
.nelp.org/page/-ISCLP/20l0/CitiesPavetheWay.pdf; see also NELP, New State Initiatives Adopt
Model Hiring Policies Reducing Barriersto Employment of People with Criminal Record (Sept.
2010), available at http:llwww.nelp.org/ page/-/SCLP/ModelStateHiringlnitiatives.pdf.
120. U.S. Equal Employment Opportunity Comm'n, EEOC Enforcement Guidance: Consideration of
Arrest and Conviction Records in Employment Decisions, Apr. 25, 2012, available at http://www
.eeoc.gov/laws/guidancelarrest conviction.cfm; see also U.S. Equal Employment Opportunity
Commission, Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982), (Feb. 4, 1987).
Western State Law Review
III.
"BAN THE
Box"
Vol. 42 #1
MOVEMENT
"Ban the Box" began in 2004 as a campaign by the civil rights organization
"All of Us or None"' 12 1 to "open up opportunities for people with past convictions in
our workplace."' 122 The campaign derived its name from its goal to remove from
employment applications the box that asks: "Have you ever been convicted of a
crime?" In subsequent years, the campaign expanded to include efforts to ban housing
discrimination and other collateral consequences of criminal convictions. "All of Us
or None" sets forth the following goals on its website:
• To win full restoration of our civil and human rights after release
from prison or jail;
" To eliminate all forms of discrimination based on arrest or
conviction records;
" To institute fair hiring practices concerning past convictions; and
" To eliminate any restrictions on membership, volunteer or Board
participation that may exclude people with arrest or conviction
123
history.
The movement is not without its critics, who fear that "banning the box" could
jeopardize workplace safety. "[Ban the Box] may be giving those with a criminal
record a better chance of getting a job, but employers and businesses no longer have a
clear warning for who they are hiring."' 24 "Employers ...need to know who they hire
to avoid unqualified or dishonest job candidates but, at the same time, must be sure to
25
follow proper legal [EEOC] procedures."'
The EEOC's new regime leaves businesses in a Catch-22. As Todd
McCracken of the National Small Business Association recently
warned: "State and federal courts will allow potentially devastating
tort lawsuits against businesses that hire felons who commit crimes at
the workplace or in customers' homes. Yet the EEOC is threatening to
launch lawsuits if they do not hire those same felons" .. .. [T]he
EEOC is practically rewriting the law to add "criminal offender" to
26
the list of protected groups under civil-rights statutes.
121. All of Us or None is "a grassroots civil rights organization fighting for the rights of formerly- and
currently- incarcerated people and [their] families." See http://www.prisonerswithchildren.org/our122.
projects/allofus-or-none/ (last visited Dec. 29, 2014).
TAKE THE FAIR CHANCE PLEDGE, http://bantheboxcampaign.org/ (last visited Dec. 29, 2014).
123. Id.
124. Danni Wilson, Ban on the Box Could Mean No Warningfor Employers, L.A. LOYOLAN, Nov. 5,
2013, available at http://www.laloyolan.com/opinion/ban-on-the-box-could-mean-no-waming-foremployers/article_4103d5be-45c0- I1 e3-8115-001 a4bcf6878.html.
125. ESR News Blog, California Employers Face Sticky Situations when Using Background Checks,
Feb. 10, 2014, available at http://www.esrcheck.com/wordpress/2014/02/04/california-employers-
face-sticky-situations-using-background-checks/.
126. James Bovard, Perform Criminal Background Checks at Your Peril: A Federal Policy Intended to
Help Minorities Is Likely to Have the Opposite Effect, WALL ST. J., Feb. 14, 2013, availableat http:/
/online.wsj.com/news/articles/SB 10001424127887323701904578276491630786614.
2014
The Long Shadow
Discussed infra are some of the legal successes of the "Ban the Box"
movement.
A.
Disenfranchisement
The "Ban the Box" movement seems to have garnered some powerful support
in Washington, D.C., especially in the area of voting rights. In a speech at
Georgetown University on February 11, 2014, Attorney General Eric Holder "called
' 27
for the repeal of laws that prohibit millions of felons from voting."'
Recently the U.S. Congress has begun taking some action on
disenfranchisement, at least so far as federal elections are concerned. On April 10,
2014, Senator Ben Cardin (D-MD) and Representative John Conyers (D-MI)
introduced Senate Bill 2235, entitled the "Democracy Restoration Act of 2014."128 In
this bill, Congress explicitly finds that the widely varying "discrepancies in State laws
regarding criminal convictions lead to unfairness in Federal elections."' 129 Under its
broad authority to regulate federal elections, 130 the provisions of this pending
legislation would restore "Federal voting rights of persons when released from
incarceration."' 13 1 As of the writing of this article, this Bill is under consideration by
32
the Senate Judiciary Committee.1
However, while this Bill is a step in the right direction it remains to be seen
whether it would have any effect on state restrictions aimed at former prisoners' voting
rights in state and local elections. "Congress lacks the power to directly set
qualifications for voters in federal elections by virtue of the Qualifications Clauses of
Article I and the Seventeenth Amendment"' 133 and under Section 2 of the Fourteenth
Amendment which provides, in relevant part:
[W]hen the right to vote at any election for the choice of electors... is
denied to any of the male inhabitants of such State ...or in any way
134
abridged, except for participation in rebellion, or other crime.
(emphasis added)
Citing this section, the Supreme Court has previously upheld California's
disenfranchisement law. 135 However, the Supreme Court later distinguished a
challenge to another state disenfranchisement law, finding it unconstitutional where it
127. Apuzzo, supra note 56.
128. Democracy Restoration Act of 2014, S. 2235, 113th Cong. (2014), available at https://beta.congress
.gov/1 13/bills/s2235/BILLS- I13s2235is.pdf.
129. Id. at 2.
130. U.S. CONST. art. 1, § 4, cl.1.
131. Senate Bill 2235, The Democracy Restoration Act of 2014, 113th Congress, 2nd Session, introduced
April 10, 2014, http://beta.congress.gov/1 13/bills/s2235/BILLS-113s2235is.pdf.
132. Id.
133. BRENNAN CENTER FOR JUSTICE, NYU SCHOOl. OF LAW, Legal Analysis Of Congress' Constitutional
Authority to Restore Voting Rights to People with Criminal Histories, 2, Aug. 3, 2009, available at
http://www.brennancenter.org/sites/default/files/legacylDemocracy/Brennan%2OCenter%20analysis
%20of%2ODRA%20federal%20authority%208-10-09.pdf.
134. U.S. CONST. amend. XIV, § 2.
135. Richardson v. Ramirez, 418 U.S. 24, 56 (1974).
Western State Law Review
Vol. 42 #1
36
promoted "purposeful racial discrimination" based on prior criminal convictions.
As noted supra, because Congress has explicitly found that "disenfranchisement laws
disproportionately impact racial and ethnic minorities," 137 it is possible, perhaps even
likely, that the Democracy Restoration Act, if enacted, would withstand judicial
review. 138
B.
Employment
As of 2014, more than "45 cities and counties, including New York City,
Boston, Philadelphia, Atlanta, Chicago, Detroit, Seattle, and San Francisco have
removed the question regarding conviction history from their employment
applications. 39 Seven states, Hawai'i, California, Colorado, New Mexico, Minnesota,
Massachusetts, and Connecticut, have changed their hiring practices in public
40
employment to reduce discrimination based on arrest or conviction records."'
Hawaii, Massachusetts, Minnesota and Rhode Island "have applied [ban-the-box]
policies to private employers."' 4' "There are ban-the-box bills pending in five states Delaware, Nebraska, New Hampshire, New Jersey, and Virginia. Governor Jack
Markell of Delaware even endorsed the policy in his state-of-the-state address,
declaring that 'we should ban the box for state government hires this year ... because
42
marginalizing [people with records] helps none of us.'"1
1.
Minnesota
In 2009, Minnesota Statute section 364.021 banned the box from public
employment applications, requiring state and local public employers "to wait until a
job applicant has been selected for an interview before asking about criminal records
or conducting a criminal record check."' 143 It also "made it illegal for public employers
to disqualify a person from employment or to deny them a license because of their
criminal background unless it is directly related to the position."' 144 Exceptions were
145
made for peace officers and certain other positions as required by existing law.
Effective January 1, 2014, Minnesota Statute section 364.02 expanded this
prohibition, banning the box for all private employers in the state regardless of size.
"[P]rivate employers may not inquire into an applicant's criminal history until after the
136. Hunter v. Underwood, 471 U.S. 222, 233 (1985).
137. Democracy Restoration Act of 2014, S. 2235, 113th Cong. (2014), availableat https://beta.congress
.gov/1 13/bills/s2235/BILLS- 113s2235is.pdf.
138. Id. at 4.
139. See National League of Cities & NELP, supra note 120.
140. Id.
141. See Fair Chance Ordinance, supra note 6.
142. See Rodriguez, supra note 94.
143. Criminal Background Checks: Minnesota History, MINN. DEP'T HUMAN RIGHTS, http://mn.gov/
mdhr/employers/cbgc-history.html (last visited Dec. 29, 2014).
144. Id.
145. Occupation Requiring Criminal Background Checks, MINN. DEFP'T HUMAN RIGHTS, http://mn.gov/
mdhr/employers/cbgcoccupations.html (last visited Dec. 29, 2014).
The Long Shadow
2014
applicant has been selected for an interview or before a conditional offer of
employment." 146 Fines for non-compliance begin at $100 per occurrence for
companies with fewer than ten employees and at $500 for larger employers.1 47 It is
important to note that "[e]mployers may still conduct a criminal background check on
an applicant before hiring an applicant. The Ban the Box law merely moves the
inquiry into criminal history from the initial point of contact with the applicant until
after the point in time in which the employer has decided to interview or extend a
' 48
conditional job offer."'
2.
Massachusetts
Effective on November 4, 2010, Massachusetts Statute G.L. c. 151 B, section
4( /2) prohibited all employers with more than six employees "from seeking
disclosure of job applicants' criminal record information prior to the interview stage of
the hiring process." 149 The statute further prohibited all employer inquiries concerning
"a prior first conviction for any of the following misdemeanors: drunkenness, simple
91
assault, speeding, minor traffic violations, affray, or disturbance of the peace" and
limited "employers' access to information about convictions to 5 years for
misdemeanors and 10 years for felonies."' 50 The law also provided protection for
employers "from due-diligence liability suits if someone they hire in accord with these
' 5
restrictions commits a further offense."' '
3.
California
Section 432.7(a) of the California Labor Code has long prohibited "a public or
private employer from asking a job applicant to disclose an arrest or detention that did
not result in 'conviction,' or seeking or utilizing such failed arrest or detention as a
factor 'in determining any condition of employment including hiring, promotion,[and]
termination.' "152
Then in October 2013, Governor Brown signed Assembly Bill 218 which will
"Ban the Box" for all public employment in the state effective July 1, 2014.153
146. National Employment Law Project, Statewide Ban the Box Reducing Unfair Barriers to
Employment of People with Criminal Records, NAT'L EMPI.OYMIENT LAW PROJECT, at 5 (2013),
http://www.nelp.org/page/-/SCLP/ModelStateHiringinitiatives.pdf.
147. Ban the Box: FAQ for Private Employers, MINN. DIP'T HUMAN
employers/cbgcjfaq.html (last visited Dec. 29, 2014).
148. Id.
149. MASS.
COMMISSION AGAINST DISCRIMINATION,
INFORMATION
MCAD
ADMINISTRATIVE PROCEIDURE REFORMS
RIGHTS,
http://mn.gov/mdhr/
FACT SHEET CRIMINAL OFFENDI)ER RECORD
(2010), available at http://www.mass.gov/
mcad/documents/Criminal%20Records%2OFact%20Sheet.pdf.
150. Blumstein & Nakamura, supra note 68.
151. Id.
152. Wallace Wade, Who's Lying Now?: How the Public Dissemination of Incomplete, Thus HalfTruthful, Criminal Record Information Regarding a Statutorily Rehabilitated Petty Offender Is an
Unjust Penalty and Why Laws Regarding Expungement of and Restrictions on Dissemination of
Criminal Records Information in CaliforniaMust Be Reformed, 38 W. ST. U. L. REV. 1, 19 (2010).
153. A.B. 218, § 1, 2013 Leg. Reg. Sess. (Cal. 2013).
Western State Law Review
Vol. 42 #1
The Legislature finds and declares that reducing barriers to
employment for people who have previously offended, and decreasing
unemployment in communities with concentrated numbers of people
who have previously offended, are matters of statewide concern.
Therefore, this act shall apply to state agencies, all cities and counties,
including charter cities and charter counties, and special districts. The
Legislature further finds and declares that, consistent with the 2011
Realignment Legislation addressing public safety, increasing
employment opportunities for people who have previously offended
will reduce recidivism and improve economic stability in our
communities.
154
The Bill modified section 432.9 of the California Labor Code to prohibit
public employers from making any inquiry into an applicant's criminal history "until
the agency has determined the applicant meets the minimum employment
qualifications, as stated in any notice issued for the position."' 55 Exceptions were
made for "position[s] for which a state or local agency is otherwise required by law to
' 56
conduct a conviction history . . . [including] within a criminal justice agency."'
4.
San Francisco
San Francisco's "Fair Chance" Ordinance - arguably the most comprehensive
such measure in the country - was enacted on January 27, 2014, with the stated
purpose "to enhance public health and safety by reducing recidivism and its associated
criminal justice costs and societal costs, and facilitating the successful reintegration
57
into society of persons with arrest and conviction records."'
The ordinance, which applies to all employers and landlords, is careful not "to
limit an employer or a housing provider's ability to choose the most qualified and
appropriate candidate from applicants for employment or housing."' 158 However, prior
to a "live interview" or "conditional offer" it absolutely bans "at any time or by any
means" employer and landlord inquiries into (1) any "arrest not leading to a
conviction," (2) participation in "a diversion or deferral of judgment program," (3)
convictions that were "dismissed, expunged, voided, [or] invalidated," (4) juvenile
adjudications, (5) any conviction "more than seven years old," and (6) any offense
"other than a felony or misdemeanor, such as an infraction."' 159
On January 30, 2014, the author spoke by telephone with Jim Lazarus, Senior
Vice President of Public Policy at the San Francisco Chamber of Commerce who
indicated that he knew of no opposition in the business community to the Fair Chance
154. Id.
155. A.B. 218, § 2.
156. Id.
157. Fair Chance Ordinance, supra note 6.
158. Id.
159. Id.
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Ordinance. 160 On February 12, 2014, the author exchanged a series of e-mails with Ivy
Lee, Legislative Aide to San Francisco Supervisor Jane Kim, author of the Fair Chance
61
Ordinance, who flatly stated: "There was zero opposition to our ordinance."'
5.
National Employers
Several national employers have voluntarily adopted "Ban the Box" policies,
the largest being Target Corporation. 162 Additional national employers may follow
suit rather than adopt a patchwork employment application process for each state or
city in which it conducts business.
6.
Federal Lawsuits
The EEOC has recognized that employer reliance criminal background checks
as "proxies for race ...[is] an important civil rights issue."'163 "People convicted of
crimes don't get special protections under civil-rights laws, but the EEOC can sue if it
believes information about prior convictions is being used to discriminate against a
racial or ethnic group."' 64
Title VII of the Civil Rights Act of 1964 prohibits discrimination in
employment based on race, gender, national origin, and other
protected categories. Enforced by the EEOC, Title VII has long been
recognized as prohibiting not only overt, intentional discrimination,
but also disallowing those facially neutral policies and practices that
have a disproportionate impact on certain groups. Using arrest and
conviction records to screen for employment is an example of the kind
65
of "neutral" selection criteria that invites Title VII scrutiny.
Because the arrest rate for "African Americans ...is more than double their
share of the population,"' 166 culling "job applicants with criminal records . ..has a
'disparate impact' on African Americans (and Latinos)."'' 67 This has led to several
pending lawsuits, including EEOC v. Dollar Genera' 68 and EEOC v. BMW 169 , in
160. Telephone Interview with Jim Lazarus, Senior Vice President Public Policy, San Francisco Chamber
of Commerce (Jan. 30, 2014).
161. E-mail from Ivy Lee, Legislative Aide to San Francisco Supervisor Jane Kim, to author (Feb. 12,
2014) (on file with author).
162. Brent Staples, Target Bans the Box, N.Y. TIMES, Oct. 29, 2013, availableat http://takingnote.blogs
.nytimes.com/?s=target+bans+the+box.
163. Commissioner Earp, Transcript of EEOC Meeting on Employment Discrimination Faced by
Individuals with Arrest and Conviction Records, at 2 (Nov. 20, 2008), http://www.eeoc.gov/eeoc/
meetings/I 1-20-08/transcript.cfm.
164. Scott Thurm, Employment Checks Fuel Race Complaints, WA.L ST. J., June 6, 2013, available at
http://online.wsj .com/news/articles/SB 10001424127887323495604578539283518855020
165. Rodriguez & Emsellem, supra note 115, at 5.
166. In 2013, an estimated 13.2% of the U.S. population is black. Factsfor Features: *Special Edition*
50th Anniversary of the Civil Rights Act: July 2, (June 26, 2012), http://www.census.gov/newsroom/
facts-for-features/2014/cb 14-ff 17.html.
167. Rodriguez & Emsellem, supra note 115, at 5.
168. U.S. Dist. Ct., N.D. Illinois, Case No. 1:13CV04307, filed June 11, 2013.
169. U.S. Dist. Ct., D. South Carolina, Case No. 7:13CV01583, filed June 11, 2013.
Western State Law Review
Vol. 42 #1
which the employers' alleged policies of blanket denials to all applicants with criminal
backgrounds had a disparate impact on minority applicants. In response, Dollar
General states that it "prohibits discrimination in its hiring and employment practices,"
claiming that its "criminal background checks are 'structured to foster a safe and
healthy environment for its employees, its customers, and to protect its assets in a
lawful, reasonable and nondiscriminatory manner.' "170
IV.
PROPOSAL
Since at least ten states, and many additional localities, have implemented
some form of "Ban the Box" legislation,' 7' California has several successful models to
guide its enactment of similar reforms. While there is considerable diversity among
the various states' programs, each generally seeks to prohibit across-the-board
discrimination against former prisoners by: (1) eliminating "the Box" from
employment and housing applications, (2) postponing disclosure and consideration of
criminal records until later in the application process, usually after the first interview,
and (3) limiting the use of irrelevant information, such as arrests not resulting in a
conviction, convictions unrelated to the purpose of the application, and convictions
rendered stale by the passage of time.
These statutes typically balance these reforms with safeguards for employers
and landlords, including: (4) exceptions for small businesses and home-based housing,
(5) exceptions for critical public safety and criminal justice agencies, and (6)
exceptions for certain offenses requiring lifetime registration, such as sex crimes. It is
important to note these statutes do not prohibit employers and landlords from
conducting appropriate background checks to ensure safety and security, they merely
postpone such checks until after an applicant is determined to be otherwise qualified.
Existing California law already prohibits both private and public employers
from asking or seeking to obtain information about a job applicant's arrests, which did
not result in conviction, referrals to diversion programs, or convictions that have been
dismissed or sealed.1 72 Even where the employer has come into such information,
existing law prohibits its use "as a factor in determining any condition of employment
including hiring, promotion, termination, or any apprenticeship training program or
any other training program leading to employment."' 73 Additionally, no employer
may consider convictions for the personal possession and use of marijuana "two years
from the date of such a conviction."' 174 These existing provisions meet most, but not
all, of factor (3) supra.
Further, as noted supra, as of July 1, 2014, California Assembly Bill 218
prohibits public agencies from asking or seeking to obtain "information regarding a
170. Thurm, supra note 165.
171. See NAT'L EMPiLOYMENT
172. CAL.
173. Id.
LAB. CoI)E
LAW PROJECT,
supra note 5, at 1.
§ 432.7(a) (West 2014) (effective Jan. 1, 2014).
174. Id. § 432.8 (West 2014).
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criminal conviction, except as specified, until the agency has determined the applicant
meets the minimum employment qualifications for the position.' 7 5 This prohibition
meets factors (2) and (5) supra for public employers but has no effect on private
employers.
In order to address all six factors supra for private employers, California
Labor Code section 432.7 should be modified as follows (proposed new language
shown in italics):
(a) No employer, whether a public agency or private individual or
corporation, shall ask an applicant for employment to disclose,
through any written form or verbally, information concerning an arrest
or detention that did not result in conviction, or information
concerning a referral to, and participation in, any pretrial or post-trial
diversion program, or concerning a conviction that has been judicially
dismissed or ordered sealed pursuant to law, including, but not limited
to, Sections 1203.4, 1203.4a, 1203.45, and 1210.1 of the Penal Code,
or any conviction or adjudication in the juvenile justice system, or
any misdemeanor conviction or infraction, or any conviction more
than seven (7) years old, excepting those convictions requiring
lifetime registration pursuant to Sections 290 to 290.023 of the Penal
Code, nor shall any employer seek from any source whatsoever, or
utilize, as a factor in determining any condition of employment
including hiring, promotion, termination, or any apprenticeship
training program or any other training program leading to
employment, any record of arrest or detention that did not result in
conviction, or any record regarding a referral to, and participation in,
any pretrial or posttrial diversion program, or concerning a conviction
that has been judicially dismissed or ordered sealed pursuant to law,
including, but not limited to, Sections 1203.4, 1203.4a, 1203.45, and
1210.1 of the Penal Code, or any conviction or adjudication in the
juvenile justice system, or any misdemeanor conviction or
infraction, or any conviction more than seven (7) years old,
excepting those convictions requiring lifetime registration pursuant
to Sections 290 to 290.023 of the Penal Code, until after either the
first live, in-person interview with the applicant or the making of a
conditional offer of employment. As used in this section, a conviction
shall include a plea, verdict, or finding of guilt regardless of whether
sentence is imposed by the court.
(e) Persons seeking employment or persons already employed in
home-based businesses, or in businesses having fewer than five (5)
full-time employees, or as peace officers or persons seeking
employment for positions in the Department of Justice or other
criminal justice agencies as defined in Section 13101 of the Penal
Code are not covered by this section.
175. A.B. 218, § 2, 2013 Leg. Reg. Sess. (Cal. 2013).
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(m) Subdivision (a) does not require an employer to hire any
applicantwith a criminalbackground nor prohibit an employer from
asking an applicant about a criminal conviction of, seeking from any
source information regarding a criminal conviction of, utilizing as a
factor in determining any condition of employment of, or entry into a
pretrial diversion or similar program by, the applicant if either the
employer shows by a preponderanceof evidence that the applicant's
conviction directly relates to the specific business of the employer or,
pursuant to Section 1829 of Title 12 of the United States Code or any
other state or federal law, any of the following apply:
(1) The employer is required by law to obtain information
regarding a conviction of an applicant.
(2) The applicant would be required to possess or use a firearm
in the course of his or her employment.
(3) An individual who has been convicted of a crime is
prohibited by law from holding the position sought by the
applicant, regardless of whether that conviction has been
expunged, judicially ordered sealed, statutorily eradicated, or
judicially dismissed following probation.
(4) The employer is prohibited by law from hiring an applicant
who has been convicted of a crime.
Similar language should be inserted into section 432.9 of the California Labor Code
covering public employers.
V.
CONCLUSION
As a recent Los Angeles Times editorial so aptly observed:
It is time for California to join the [Ban the Box] movement,
cautiously but deliberately. Cautiously, because employers have a
right to know who their workers are and a duty to protect their
businesses and workplaces; and deliberately, because we're foolishly
punishing ourselves by not welcoming safe and potentially productive
17 6
people into the workplace.
Banning the box on employment and housing applications also would improve public
77
safety and help to remove the social stigma of a criminal conviction.
The time is long overdue for California to embrace the maxim set forth by
President George W. Bush in his 2004 State of the Union Address: "America is the
land of the second chance, and when the gates of prison open, the path ahead should
178
lead to a better life."'
176. Editorial, supra note 73.
177. See, e.g., A.B. 218, § 1;Fair Chance Ordinance, supra note 6.
178. See Vissa, supra note 8.