Transcript Collateral Consequences of Criminal Convictions

Relieving Collateral
Consequences
Daniel Bowes
Staff Attorney
Collateral Consequences
Explained
 Civil Disabilities (imposed by statute)
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Attach at the time of conviction
Direct (incarceration, probation, fine) v. Collateral
Imposed by hundreds of state and federal statutes
Often unknown to defendants at plea
Impacts are severe, far-reaching, and long-lasting
 Private Bias
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Individuals with criminal records are often
treated as second class citizens
Questions of arrest and conviction asked in
applications for private employment and housing

92% of employers do background checks
 Both types of collateral consequences
serve as barriers to reentry

Facilitate high rates of recidivism
A Sample of Civil Disabilites in
NC
The UNC School of Government has catalogued each of the civil disabilities triggered by a
criminal record in North Carolina. There were almost 1000.
The Collateral Consequences Assessment Tool (CCAT) will be available to the public by the
end of the month. http://ccat.sog.unc.edu/
 Immigration
 Housing
 Hunting License
 Child Custody
 Foster
 Child Support
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Parental Rights
 Workers
Compensation
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Care/Adoption
Jury Duty
Occupational
License
Public Office
Financial Aid
Public Benefits
Public
Employment
Drivers License
 Termination of
 Unemployment
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Insurance
License plate
Voting
Military Service
Firearm Permit
Employer Bias
Effect of
Incarceration on
Employment

2 in 3 men were
working/financial
contributors before
incarceration.
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Incarceration reduces
annual employment by
more than 2 months and
reduces yearly earnings by
40 percent.

Underemployment of
individuals with criminal
histories lowers overall
male employment rates as
much as 1.5 to 1.7
percentage points; costing
the country $57 to $65
billion per year.
What Influences
Employers?

92% of employers now
conduct criminal
background checks.

What influences employers:
 Arrests- 64% of
employers are influenced
 Non-violent
misdemeanors- 97%
 Violent misdemeanors99%
 Felonies- 100% of
employers influenced

Inaccuracy of criminal
background reports: 25%
include errors serious
enough to employment
Racial Disparities in the
Impact of a Criminal
Record
THE MARK OF A CRIMINAL RECORD, DEVAH PAGER,
PRINCETON
WHILE THE RATIO OF CALLBACKS FOR NON OFFENDERS
RELATIVE TO EX-OFFENDERS FOR WHITES IS 2:1, THIS
SAME RATIO FOR BLACKS IS NEARLY 3:1. THE EFFECT OF A
CRIMINAL RECORD IS THUS 40% LARGER FOR BLACKS THAN
FOR WHITES.
http://www.princeton.edu/~pager/pager_ajs.pdf
Impact:
Recidivism
“Although no one
supports ‘coddling
criminals,’ society has a
strong interest in
preventing recidivism.”
-Uniform Law Comm.
The three pillars of
successful reintegration
are gainful employment,
stable housing, and family
supports. Isolated from
these opportunities by
collateral consequences,
individuals with criminal
convictions are more likely
to recidivate.
Tools of Reliefs
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Expungement
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Certificates of Relief
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Low-level 1st time felonies and misdemeanors
Title VII/Title VIII of the Civil
Rights Act of 1964
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Offense Committed before 18/21 years of age
Charges not resulting in conviction
1st Time Nonviolent Offenses
Targeted screen and individualized assessments
Fair Credit Reporting Act
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Notice of adverse action
Expungement
Expungement is the process by which a record of a criminal incident is
destroyed or sealed. It is basically as if the incident never happened.
Accordingly, if an individual has his only criminal conviction expunged,
then he would answer “no” when asked on an employment application
whether he had ever been convicted of a crime.
Convictions
Age at
Commission
General
Misdemeanor Under
Age 18
NCGS 145
Dismissal or NG
NCGS 15A-146
Gang offense under 18
NCGS 15A-145.1
Controlled Substance
under 22
15A-145.2& 15A-145.3
Non-violent felony
under 18
NCGS 15A-145.4
Cyber bullying
NCGS 14-458
NonConvictions
Identity Theft
NCGS 15A-147
Nonviolent Offenses
NCGS 15A-145.5
DNA Records
NCGS 15A-148
Pardon of Innocence
NCGS 15A-149
Expungement Eligibility
First-time Offense
15A-145 - 15A-145.5: All expunctions for convictions have “first time” offense
restriction (multiple convictions count as single conviction if occurring in the
same session of court) meaning that if someone has a prior conviction they are
not eligible
15A-146 (dismissed): ineligible if you have a felony conviction
15A-147 - 15A-149: no restriction
Subsequent Conviction
15A-145,15A-145.4: no other conviction during waiting period
15A-145.2, 15A-145.3: ineligible if subsequent misdemeanor conviction
involving drugs, or any felony conviction
15A-145.5: no other misdemeanor or felony convictions
15A-146: no felony convictions
Waiting Period
Immediate: 15A-146, 15A-147, 15A-148, 15A-149
1 year*: 15A-145.2, 15A-145.3
2 years: 15A-145, 15A-145.1
4 years: 15A-145.4
15 years: 15A-145.5
Waiting periods are from the date of conviction-however, if at the expiration of
the waiting period, the person has not completed their sentence (including
probation), then they must wait until they do so. *The exception is 15A-145.2 &
3—no requirement the sentence be complete.
Automatic/Discretionary
Discretionary: 15A-145.4, 15A-145.5
Automatic: All Other
Prior Expungement
15A-145: statute does not say that any prior expunction makes person ineligible
15A-145.2, 15A-145.3: only states that person is ineligible if previously received
expunction under that specific statute, no word on other expunctions
15A-145.4, 15A-145.5: no prior expunctions, except under 15A-146 – 15A-149
15A-146: no prior expunctions
Certificates of Relief
(NCGS §15A-173)
Eligibility
 1 Class G, H, or I felony or misdemeanor (2 if in same session of court)
 Violent crimes are included (so broader than expungements)
 12 month waiting period from completion of sentence
 3 Primary Benefits:
 Relieves most collateral sanctions (§15A-173.2d)
 Considered favorably in disqualification decisions (§15A-173.2d)
 Protects employers and landlords from negligence lawsuits (§15A173.5)
 BONUS: Evidence of rehabilitation persuasive to employers, etc.
 Sanction v. Disqualification
 A collateral sanction is an automatic bar to a benefit or opportunity
 A collateral disqualification is statutory language which allows another
decision making group to deny an individual a benefit or opportunity
based on the conviction.
 Ex. Medical Doctor/Physicians Assistant (§90-14)
 Statute contains both a collateral sanction and a disqualification
 Disqualification for conviction of “crime involving moral turpitude”
 Sanction for “conviction of a felony”
 NOT an expunction or pardon

Title VII/Fair Credit Reporting
Act Claims
TITLE VII/Title VIII
Title VII does not recognize individuals with criminal records as a
protected class.
However, Title VII prohibits employers from having a race-neutral policy
against employing individuals with criminal records because of the
disparate adverse impact on African-Americans and Hispanics.
A blanket ban on hiring anyone with a criminal record likely violates
Title VII.
There must be an individualized assessment: the nature and gravity of
the offense, the time that has passed since the conviction, and the
nature of the job sought.
Protection only extends to minorities.
More Info:
http://reentry.mplp.org/reentry/index.php/Employment:_Disparate_I
mpact_Claims_Under_Title_VII
FAIR CREDIT REPORTING ACT
•Criminal background checks are “consumer reports,” so FCRA applies
•After 7 years, Arrests CANNOT be reported, convictions can be
•When the FCRA applies, employers must satisfy five requirements for
using consumer reports through a third-party agency:
•Written disclosure
•Written authorization
•Certification to credit reporting agency
•Provision of the report and notice of the intent to take adverse
action
•Notice of the adverse action
•The notice must be in writing and must state that the
decision is based on the criminal record
Daniel Bowes
Staff Attorney
[email protected]
(919) 861-2061