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 nonconviction
• 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….