Shared Prosperity Roundtable
Criminal Records:
From Barriers to Solutions
Sharon M. Dietrich, Litigation Director
Community Legal Services, Inc.
Philadelphia, PA
sdietrich@clsphila.org; 215-981-3700
September 29, 2014
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Background on Criminal Record
Issues
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How Many People Have Criminal Records?
Believe it or not, no one knows for sure.
USDOJ: est. 100 million American adults, or 1
of 3.
Applying this ratio to Philadelphia,
conservative estimate of 400,000 people.
Any way you measure it, it’s a LOT of people
and a large percentage of the population.
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Racial Disparities in Arrests
African Americans are 14% of the population,
but 28% of all arrests.
Hispanics are arrested on federal drug charges
3 times the proportion of the population.
African Americans and Hispanics are more
likely to be arrested for drug offenses than
Whites, despite similar rates of use.
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Many Collateral Consequences
 Employment
 Housing (public and private)
 Public benefits (in PA, mostly around BWs/probation
violations/criminal debt payments)
 Immigration (removal for “aggravated felonies”)
 Student loans
 Parental right termination (under ASFA)
 Debt (criminal debt and child support)
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Rise in Background Screening
Background checks are now easily obtainable.
Est. 87% of employers check backgrounds
Commercially prepared reports are replete
with errors: mismatches, reporting expunged
cases, wrong grade of offense, etc.
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Huge Impact on Employment
Recent NIJ study: Any lifetime arrest decreases
employment opportunities more than any
other employment-related factor.
Earnings loss estimated at 10-40%.
No case too old or too minor to have an effect
on employment.
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Criminal Record Problems Drive CLS’s Employment
Work
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Disconnect between Desistence and Life-Long
Consequences
Social science research supports a point of
“redemption” (when a former offender
presents similar risk as others) – around 7
years.
But many of the collateral consequences are
life-long bans.
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Conflation of Reentering People/People
Who Have Desisted
Focus on “reentry” of people from prison is
overly simplistic.
Different needs, different policy and legal
implications depending on time since offense.
 But all share the burden of their criminal
records. This includes people with arrests not
leading to conviction.
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Incarceration Increases Poverty
2009 Villanova paper: had mass incarceration
not occurred, the poverty rate would have
fallen by more than 20% between 1980-2004.
Possible reasons: Removing breadwinners
from the family; depressed wages afterward.
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Legal Framework:
Record-Clearing and Employment
Rights in PA
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Why Does Record-Clearing Matter?
Because the best record is NO record.
The next best record? Less of a record.
A person doesn’t have employment and other
barriers if the record doesn’t exist.
In PA, the mechanisms are expungements and
pardons.
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What Can Be Expunged in PA?
 Arrests on which there are not convictions
 Cases in which diversionary sentences have been
successfully served (such as for ARD or Probation
Without Verdict/Section 17)
 Convictions for summary offenses after five years
without arrest
 Convictions for underage drinking
 Convictions of persons who are 70 years old or older
and who have not been arrested in ten years.
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What Cannot Be Expunged in PA?
Most convictions cannot be expunged.
Convictions go through the pardon process –
possible, but extremely long-term.
Bills in Harrisburg that would allow some
misdemeanors to be expunged were
promising but have stalled.
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How Does PA Compare to Other States?
30 states have broader expungement laws.
19 states allow some felony convictions to be
expunged.
23 states allow some misdemeanor
convictions to be expunged.
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Employment Law Protections
for People with Criminal Records
Race discrimination law (Title VII)
State law – “Section 9125”
City “Ban the Box” Ordinance – focuses more
on timing of background check than employer
consideration of a criminal record
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Nature of Race Discrimination Claim
Title VII prohibits discrimination that is
unintentional if a neutral rule has a racially
disparate impact (i.e., background checks
disproportionally exclude people of color).
EEOC has new 2012 policy guidance that
specifically deal with the disparate impact of
arrest and conviction records.
http:www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf
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Title VII: Arrests
The fact of an arrests which has not led to
a conviction MAY NOT be considered by
an employer (i.e., can’t just reject for an
arrest on a background check).
An employer MAY evaluate the likelihood
that the person engaged in the conduct for
which s/he was arrested.
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Title VII: Considering Convictions
EEOC policy says that an employer is to
consider the following factors:
1. The nature and gravity of the
offense/conduct;
2. The time that has passed since the
offense and/or the sentence completion;
3. The nature of the job held or sought.
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Title VII: Individualized Assessments
of People with Convictions
Not legally required, but EEOC strongly
recommends employers to do this to avoid
liability.
Process:
 Employer notifies applicant of possible rejection;
 Applicant has opportunity to respond;
 Employer considers what applicant said.
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Individualized Assessments: Factors to be
Considered
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Title VII: Some Implications about
Convictions
 Across-the-board exclusions usually violate Title
VII (i.e., an employer cannot demand “clean”
criminal records).
 So does the firing of current employees who are
performing well but have criminal records.
 So do on-line applications that kick out people
with a record.
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State Law Limitations
Title 18 Pa. Statutes Sect. 9125 says:
“Felony and misdemeanor convictions may be
considered by the employer only to the extent
to which they relate to the applicant’s suitability
for employment in the position for which he has
applied.”
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Some Implications of Section 9125
Employers should not consider:
 Arrests without conviction;
 Summary offense convictions;
 Juvenile adjudications of delinquency.
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Local Issues
Regarding Criminal Records
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Philadelphia’s “Ban the Box” Ordinance
Applies to private employers of 10 or more.
Can’t ask applicant to disclose convictions
before the first interview.
Can’t ask about arrests not leading to
convictions.
Enforced by Phila. Comm. on Human
Relations.
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RISE (Mayor’s Office of Reintegration Services)
•
•
•
•
•
•
•
Case management;
Substance misuse treatment;
Behavioral health services;
Educational services;
Vocational training;
Computer literacy;
Employment services.
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PREP Tax Credits
 Hire an individual who has an Agreement with R.I.S.E. in a fulltime position working at least 37 and ½ hours a week or in a
part-time position working at least 20 hours a week, but no
more that 37 and ½ hours.
 Employee must be employed for at least a 6 month period.
 Request a maximum amount of $30,000 in tax credits against
the business privilege tax for any 1 employee over all tax years
and $15,000 for any 1 part-time employee.
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Prosecution of Minor Crimes
Decriminalization of marijuana.
• Possessing fewer than 30 grams of marijuana is a civil
offense; violators face a $25 fine, but no arrest or criminal
record.
• Public use of the drug is civil offense with a penalty of a
$100 fine or up to nine hours of community service.
But rash of summary citations for “quality of
life” offenses.
• City Paper: 13,323 in 2009 to 23,458 last year.
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Collection of Criminal Debt
Starting in 2011, the City has aggressively tried
to collect $1.5 billion in fines, costs,
restitution, supervisory fees, and forfeited bail
from more than 320,000 Philadelphians,
about 21% of the City’s population.
Film: “Pay Up! Criminal Justice Debt in
Philadelphia”
http://www.youtube.com/watch?v=589fkbqZuOU&feature=BFa&list=SP21
FF8A914F87F246
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Solutions???
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Solutions, In My Humble Opinion
Expanded expungement: broader
expungement law; more methods to expunge.
Greater enforcement of law against
employers.
Transitional work programs.
More access to City jobs.
More reasonable policies on criminal debt.
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