Relieving Collateral Consequences Daniel Bowes Staff Attorney

Collateral Consequences Explained Civil Disabilities (imposed by statute) 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 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

Immigration Housing Foster Care/Adoption Foster Care/Adoption Jury Duty Occupational License Occupational License Public Office Financial Aid Public Benefits Public Employment Drivers License Hunting License Child Custody Child Support Termination of Parental Rights Workers Compensation Unemployment Insurance License plate Voting Military Service Firearm Permit 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 The Collateral Consequences Assessment Tool (CCAT) will be available to the public by the end of the month.

Effect of Incarceration on Employment What Influences Employers? 2 in 3 men were working/financial contributors before incarceration. 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. 92% of employers now conduct criminal background checks. What influences employers:  Arrests- 64% of employers are influenced  Non-violent misdemeanors- 97%  Violent misdemeanors- 99%  Felonies- 100% of employers influenced Inaccuracy of criminal background reports: 25% include errors serious enough to employment Employer Bias

THE MARK OF A CRIMINAL RECORDTHE 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. Racial Disparities in the Impact of a Criminal Record

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  Expungement  Offense Committed before 18/21 years of age  Charges not resulting in conviction  1 st Time Nonviolent Offenses  Certificates of Relief  Low-level 1 st time felonies and misdemeanors  Title VII/Title VIII of the Civil Rights Act of 1964  Targeted screen and individualized assessments  Fair Credit Reporting Act  Notice of adverse action

Expungement Age at Commission Misdemeanor Under Age 18 NCGS 145 Gang offense under 18 NCGS 15A Cyber bullying NCGS Non-violent felony under 18 NCGS 15A Controlled Substance under 22 15A-145.2& 15A General Nonviolent Offenses NCGS 15A Dismissal or NG NCGS 15A-146 Identity Theft NCGS 15A-147 DNA Records NCGS 15A-148 Pardon of Innocence NCGS 15A-149 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 Non- Convictions

Expungement Eligibility First-time Offense 15A A-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 A-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 year*: 15A-145.2, 15A years: 15A-145, 15A years: 15A years: 15A 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 & 3—no requirement the sentence be complete. Automatic/Discretionary Discretionary: 15A-145.4, 15A 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 A-146: no prior expunctions

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 (§15A )  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 Certificates of Relief (NCGS §15A-173)

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: 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 (919) Daniel Bowes Staff Attorney (919)