REENTRY LAW: What Legal Services Staff Need to Know October 3, 2008 CORT First Friday Webinar

What We’ll Cover Today I.Why Reentry Law is Important II.Applicable LSC Restrictions III.Getting and Sealing Records IV.Record Accuracy/FCRA V.Employment Barriers/Title VII Challenges VI.Housing Barriers VII.Public Benefits/Fleeing Felons/Student Aid VIII.Child Support/Parental Rights Termination IX.Tools You Can Use to Learn More

I. Why Is Reentry Law Important?  Vast increase in number of people with criminal records because of war on drugs and tough on crime policies  700,000 people are released annually from prisons.  Over 7 million individuals are released annually from jails.  Many people who are convicted never go to jail or prison, but still have records.  Between 9-25% of males have criminal records.  One in three African American males has a felony record.

Consequences of Having a Criminal Record Much More Severe  Many more civil consequences have been attached to criminal records: restrictions on employment, housing, public benefits, parental rights, etc.  Welfare to work policies make employment barriers a critical issue.

Explosion in Background Checking  Criminal record information much more easily available on internet.  Checks are cheap and easy.  Vast increase in use of background checks:  Survey of HR professionals: 96% of employers were conducting background checks in 2004, compared to 51% in 1996

People of with Records Often Face Multiple Barriers  14% of those released from prison are mentally ill.  84% of offenders were involved with drugs and alcohol at time of offense.  50% of prisoners have less than high school education  15-27% of prisoners will end up homeless.

Lack of Opportunity to Overcome Barriers  While many of our clients face similar barriers, people with criminal records don’t have access to many of the same opportunities to overcome these barriers.

II. What LSC Restrictions Apply?  LSC-funded programs can represent individuals who are no longer incarcerated on civil issues that relate to their criminal convictions, e.g. housing, employment, sex offender registration, public benefits, etc.  This includes sealing or expunging criminal records within a criminal case, seeking pardons, or correcting errors on criminal records.

What LSC-Funded Programs Cannot Do  Represent individuals in criminal proceedings that relate to guilt or innocence. See 45 CFR  Collaterally attack criminal convictions (e.g. habeas corpus). See 45 CFR  Represent prisoners who are currently incarcerated. See 45 CFR  If client becomes incarcerated after litigation commences, you must attempt to withdraw, unless incarceration is of short duration and litigation is likely to extend beyond period of incarceration.

III. Getting and Sealing Records First Step in Every Case: Know Exactly What is On the Record  Legal restrictions depend on exactly what the convictions are, and how old they are.  Tremendous number or errors on records.  Review record with client; clients frequently don’t know what is on their records.

Sealing Records Second Step in Every Case: Determine if Record Can be Sealed/Set Aside  The best record is no record: remove barriers by eliminating the record.  Possibility for expungement varies by state:  Michigan and Ohio have relatively liberal statutes for expungement.  West Virginia has very limited expungement statute.

How Do You Get a Criminal Record?  State Police Website or mailed request  State Department of Corrections Website  FBI fingerprint records  Local police records  Private background screening companies  Are considered credit reporting agencies, so FCRA applies.  Get free copy of report if resulted in adverse action.  Entitled to a copy from an employer prior to adverse employment action.

IV. Record Accuracy Issues  Help clients clean up errors on record.  Process will depend on who produced the record.  May be able to clear up using court records, or may require fingerprinting.  Errors on a commercially prepared background check can create a cause of action under the Fair Credit Reporting Act.

Fair Credit Reporting Act: What Record Info Can be Reported  No time limit on reporting of convictions.  7-year time limit on reporting arrests (unless employment at a salary of $75,000 or more). 15 U.S.C. §§1681c(a)(5), 1681c(b)(3).

Fair Credit Reporting Act: General Accuracy Standards  Credit Reporting Agency must use “reasonable procedures” to insure “maximum possible accuracy” of the information in the report. 15 U.S.C. §1681e(b).  Elements of cause of action: (1)Inaccurate information in report; (2)Inaccuracy due to CRA’s failure to follow reasonable procedures to assure maximum possible accuracy; (3)Consumer suffered injury (can include emotional injury); and (4)Injury was caused by inaccurate entry. See e.g. Crane v. Trans Union, 282 F.Supp.2d 311 (E.D. Pa. 2003)(Dalzell) (citing Philin v. Trans Union Corp., 101 F.3d 957, 963 (3d Cir. 1996)).

Fair Credit Reporting Act: Accuracy Standards in Employment Context  A CRA reporting public record information for employment purposes which “is likely to have an adverse effect on the consumer’s ability to obtain employment” must either (1)Notify the person that the public record information is being reported and provide the name and address of the person who is requesting the information; or (2)The CRA must maintain strict procedures to insure that the information it reports is complete and up to date. See 15 U.S.C. §1681k.

Fair Credit Reporting Act: Employer Obligations NOTE: FCRA applies only if the report was prepared by an entity considered a credit reporting agency under FCRA. If so, employer must:  Provide clear written notice to the job applicant that employer may conduct a background check. 15 U.S.C. § 1681b(b)(2).  Obtain written authorization from the job applicant to get the report. 15 U.S.C. § 1681b(b)(3).

Fair Credit Reporting Act: Employer Obligations if Denying Employment  If the employer intends to take adverse action based on the consumer report, employer must provide a copy of the report and a Federal Trade Commission Summary of Rights to the job applicant BEFORE the action is taken. 15 U.S.C. § 1681b(b)(3).  After making an adverse decision, the employer must notify the job applicant that an adverse decision was made as a result of the report and must provide contact info for the CRA and notice of the right to dispute the accuracy or completeness of the report. 15 U.S.C. § 1681m(a).

How to Use FRCA:  Get damages when an inaccurate report costs a client a job.  Create leverage with employers – who routinely violate the FCRA requirements – by citing FCRA when a client is denied employment or terminated.

Major Legal Barriers Facing People with Records  Employment  Housing  Public Benefits  Family Law and Child Support  Student Loans/Government training programs  Drivers Licenses/ID  Fees and Fines  Immigration

V. Employment Barriers  Bewildering patchwork laws (mostly state and some federal) limiting employment by people with records.  As many as 40% of jobs affected.  2/3 employers won’t hire people with criminal records

Jobs Likely to Limit Employment of People with Criminal Records  Working with or near children  Working with or near vulnerable adults  Licensed Professions  Security-related fields  Transportation-related fields  Jobs hired or paid by Government

Evaluating Statutory Barriers to Employment  Laws barring the employment of people with criminal records in particular industries are very complicated.  Laws often depend on the exact conviction, the age of the conviction, and whether your client has a history working in the field.  Appeals process may be available.  Always review statute to determine whether your client is really ineligible to work.

Overcoming Statutory Barriers to Employment  If restriction appears to apply to your client, consider challenges based on:  Statutory construction or legislative intent  Does grandfathering apply?  Absence of legislative authorization if restrictions are imposed by a government agency without underlying statutory basis.  Constitution  Due process/Liberty interest in employment/irrebuttable presumptions  Equal protection if statute makes irrational distinctions between different groups  Comparison to licensing cases

Challenging Employer Discrimination Against People with Records: Title VII  Title VII prohibits employers from having policies or practices that have a disparate impact based on race.  Because people of color are disproportionately represented in the criminal justice system, record-based restrictions may have a disparate impact and can violate Title VII.

EEOC Guidances  Because record-based restrictions have a disparate impact on people of color, employers must be able to justify them under the “business necessity” test.  Restriction ok if they are necessary (e.g. no embezzlers in banks).  Must show that considered: 1. The nature and gravity of the offense. 2. The time that has passed since the conviction and/or completion of the sentence. 3. The nature of the job held or sought.

El v. SEPTA, 479 F.3d 232 (3d Cir. 2007)  Requires that a policy limiting employment of people with record "accurately distinguish between applicants that pose an unacceptable level of risk and those that do not."

How to Use Title VII  Send demand letters to employers who refuse to hire or terminate based solely on person’s criminal record.  File EEOC complaints, and use mediation process to get settlements.  Litigate: new area of law; requires experts and money to litigate; work collaboratively

Title VII Impact Litigation Project in Michigan  Looking for plaintiffs in Eastern District of MI who are:  Persons of color  Minor, nonviolent, old record  Recently fired or denied job because of record  Conviction is not related to the type of job lost

To Learn More About Title VII Criminal Records Cases  Participate in a training call sponsored by Community Legal Services on October 27, 3 p.m.  Contact: Janet Ginzberg:

VI. Housing Barriers  Stable housing is critical to successful re- entry and to family reunification.  Increasingly, clients are having housing problems related to criminal records.

Tenants with Criminal Records in Private Housing  Any convictions can make it harder to find housing.  Difficult to challenge record-based restrictions by private landlords:  Potential claims where individuals have disabilities.  Potential disparate impact claim under Fair Housing Act, but these have not been litigated.  However, a landlord cannot evict individual who has a valid lease just because person has a criminal record.

Tenants with Criminal Records in Subsidized Housing  Certain convictions will result in denial of subsidized housing.  However, many people with records, including felony records, are eligible for subsidized housing.

Subsidized Housing Plan Requirements  Public Housing Authorities should publish standards for denying eligibility and terminating assistance based on criminal activity.  Plans must include certain federal standards, but are PHAs are often more restrictive than federal requirements.

What Subsidized Housing is Covered by Criminal Record Restrictions?  “Federally Assisted Housing”: 24 CFR et. seq. (Definition of “federally assisted housing” is in 24 CFR 5.100)  Public Housing: 24 CFR ; 24 CFR  Section 8: 24 CFR ; 24 CFR

Differences Between Different Types of Subsidized Housing  Federal standards largely the same between programs, but don’t assume identical.  Federal standards set a baseline – great variation in implementation.  Different public housing authorities can and do have different rules in discretionary areas.  When in doubt, review policies of housing provider and make sure they comply with relevant federal regulations.

Admission to Subsidized Housing: Mandatory Denial Life-time Sex Offender Registration Offenses Methamphetamine Production on premises of federally assisted housing.

Admission to Subsidized Housing: Presumptive Denial  Household member evicted from subsidized housing in past 3 years for drug-related activity UNLESS  Completed approved rehab program.  Circumstances no longer exist (i.e. offending household member dead or incarcerated)  Household member currently engaging in illegal use of drugs UNLESS  Completed approved rehab program, or otherwise rehabilitated  Household member abusing alcohol UNLESS  Completed approved rehab program, or otherwise rehabilitated

Admission to Subsidized Housing: Discretionary Denial  May Deny Admission if Any Household Member Engaged in:  Drug-related crimes  Violent crimes  Other crimes that affect health, safety or right to peaceful enjoyment of residents, neighbors, staff, owner, or PHA contractor.  Limited to reasonable amount of time after criminal activity – Potential Area for Challenge.

Admission to Subsidized Housing: Getting Clients In Despite a Record  24 CFR , 24 CFR , 24 CFR 5.852: In discretionary cases, PHA can consider factors like:  Seriousness of activity  Extent of participation/culpability  Evidence of Rehabilitation  Effect of Denial on Members Not Involved  PHA can reconsider denial if “sufficient evidence” that household member not currently engaged, and has not engaged in criminal activity during a reasonable time prior to admission.

Conditioning admission on exclusion of Household Member  PHA may require applicant to excludes household member who was responsible for the criminal activity that would otherwise lead to denial.

Eviction from Public Housing: Mandatory Termination  PHA must evict residents who:  Are subject to lifetime sex offender registration.  Were convicted of methamphetamine production on premises of federally assisted housing.

Eviction from Subsidized Housing: Discretionary Termination  Engaging in illegal drug use UNLESS rehabilitated  Abusing alcohol UNLESS rehabilitated  Furnishing false information re drug/alcohol use  Fleeing felons or parole violators  Persons engaging in criminal activity  Drug crime on or off premises  Crimes entailing threat to other residents or persons residing in immediate vicinity

Mitigation Provisions  For Discretionary Terminations, Housing Authority may consider factors such as:  Seriousness of offending action  Extent of participation of leaseholder in offending action  Effect eviction would have on family members not involved in offense  Steps leaseholder took to prevent or mitigate offense

If Substance Abuse, Pursue Rehab  For some drug or alcohol related activities, housing authority may accept defendant, if defendant completes rehabilitation program approved by the Housing Authority.

Sex Offender Registry Exclusion Zones  Some states restrict where individuals who are on the sex offender registry can live.  Parole/probation conditions may also limit where individuals with sex offenses can live.  Understand what exceptions apply under your state statute.  Refer sympathetic cases to impact organizations.

VII. Public Benefits Impact of Incarceration  SSI benefits terminated if individuals is incarcerated for a year or more.  Social Security benefits are suspended during incarceration.  Benefits to a retired or disabled person’s dependents should continue.  Very short term incarceration may not effect benefits.

Public Benefits: Loss of Benefits Due to Drug Related Felony Convictions  Federal law permanently bars anyone with a drug-related felony conviction from receiving certain benefits during his or her lifetime.  Covers TANF benefits (traditional cash benefits for parents & children)  Food stamps

Implementation of Ban Varies By State  Michigan and Ohio have “opted out” of this ban, but West Virginia and many other states still have it.  Client who live in or are looking to move to other states need to know whether ban applies. State-by-state information at: reentry/upload/lacreport/LAC_PrintReport.pdf

Public Benefits: Loss of Benefits for “Fleeing Felons” and Parole Violators  If client has an outstanding felony warrant OR is violating a condition of probation OR parole then disqualified from:  TANF  SSI/SSD  Food stamps  Subsidized housing

Statutory Basis for Ineligibility: SSI  42 U.S.C. §1382(e)(4)(A): a person is ineligible for benefits during any month in which the person is: (i) fleeing to avoid prosecution, or custody or confinement after conviction under the laws of the place from which the person flees, for a crime, or an attempt to commit a crime, which is a felony under the laws of the place from which the person flees… (ii) violating a condition of probation or parole imposed under Federal or State law.  SSI disqualification adopted in  Good cause exceptions apply.

Statutory Basis for Ineligibility: Title II  In 2004, Congress extended the “fleeing felon” provisions to Title II beneficiaries.  42 U.S.C. §402(x)(1)(A) has essentially the same language as SSI disqualification provision.  Good cause exceptions apply.

Statutory Basis for Ineligibility: Food Stamps  7 U.S.C. 2015(k): “fleeing felons” are not eligible to participate in the food stamp program. Same statutory definition.  Apparently no good cause exceptions.  However, USDA Regional Letter limits ineligibility to person “acting with intent to avoid prosecution.” Person assumed to be “fleeing” once informed of warrant.

Statutory Basis for Ineligibility: TANF  42 U.S.C. §608(a)(9)(A): states which accept block grants, shall not use any part of the grant to provide assistance to any individual who is a “fleeing felon.” Same definitions as for SSI/Title II.  Apparently no good cause exceptions.

How the Process Works  Fugitive Felon Matching Operations: cross- matching of governmental databases.  Social Security actively involved in matching process.  Much less likely to see disqualifications in other programs because matching appears to be less common.  Disqualification from TANF/FAP may result when client reports being cut off from SSI/Title II.

Notification to Client  SSA notifies client that being cut off from benefits due to the existence of an outstanding warrant.  May also seek to recoup any benefits paid since warrant was issued.  Often the client had no knowledge that there is an outstanding warrant.

Good Cause Exceptions  Good cause exceptions available for SSI and Title II disqualifications.  Theoretically, SSA is supposed to be checking for good cause exceptions. But that doesn’t seem to happen.  Proving good cause is one of the quickest ways to get a client back on benefits.  See sample letters.

Good Cause Standard  POMS creates two categories of good cause: mandatory good cause and discretionary good cause.  For SSI: POMS SI  For Title II: POMS GN 02613:025  POMS definition of good cause is more restrictive than statutory provisions, because POMS imposes a “no subsequent felony” rule for discretionary good cause.

Mandatory Good Cause: Exoneration  May not suspend and must repay previously withheld benefits if:  Found not guilty.  Charges dismissed.  Warrant vacated.  Other exoneration, e.g. offense is no longer a felony.  While a conviction/guilty plea also results in reinstatement of benefits (assuming not incarcerated), exoneration allows for repayment of back benefits.

Practice Tip: Try to Get the Case Resolved or Warrant Vacated  If an out-of-state warrant, contact the public defender or an unrestricted local legal services office for help in the criminal case.  Restricted programs may be able to provide referrals to local criminal defense practitioners.  Depending on the charges, the distance to the charging jurisdiction, and the client’s health/ability to travel, the client may want to go to the charging jurisdiction to resolve the case.

If You Get the Warrant Vacated or Case Dismissed…  Contact SSA and ask for immediate reinstatement of benefits, repayment of any back benefits, and cessation of collection on alleged overpayments.

Potential Problems Even if Get Warrant/Case Dismissed  Even if benefits are restored prospectively, SSA may still seek to collect alleged overpayment or refuse to repay benefits withheld while warrant was active.  SSA has been taking position that because “good cause” provisions were not added until January 2005, SSA will not repay benefits withheld prior to that date.  Proposed regs contain this limitation, but neither statute nor POMS contains such a limitation. Compare 70 FR 72411, at with 42 USC 1832(e)(4) and POMS SI

Mandatory Good Cause: Identity Fraud  “Criminal records identity theft” – i.e. arrestee gives name that belongs to someone else – is extremely common.  FTC estimates 400,000 Americans affected.

Discretionary Good Cause: Option A  Offense for which person charged was non-violent and not drug- related; and  Recipient was not convicted of any subsequent felony since the warrant was issued; and  The law enforcement agency that issued the warrant is unwilling to extradite.

Discretionary Good Cause: Option B  Offense was non-violent and not drug- related, and  Recipient not convicted of any subsequent felony, and  Warrant is the only existing warrant, and was issued 10 or more years ago, and  Recipient lacks the mental capacity to resolve the warrant.

Timelines for Good Cause  Mandatory good cause: may request at any time.  Discretionary good cause: must request within 12 months of Notice of Planned Action.  Once either mandatory or discretionary good cause is requested, have 90 days to provide necessary evidence.

Proving Good Cause  POMS sets out specific documents SSA will accept as proof.  For SSI: POMS SI  For Title II: POMS GN 02613:025  Some SSA offices are accepting documents other than those specified in POMS.

Proving That Offense is Not Violent or Drug-related  To prove nature of offense, get documents from the underlying criminal case.  SSA’s letter to your client may also state what the crime classification is.  See POMS SI B and GN for listing of which crimes are considered violent or drug-related.

Proving Law Enforcement Won’t Extradite  To prove law enforcement won’t extradite, check if warrant indicates that it has limited reach, e.g. “Wisconsin Only”.  Or, get letter from law enforcement agency stating it won’t extradite.  If you are concerned your client might be extradited, and that extradition would be a problem, consider sending the prosecutor medical information showing how disabled your client is, i.e. that they really don’t want him/her in their local jail.

Proving Lack of Subsequent Criminal History  To prove that person does not have subsequent convictions, POMS suggest a statement from the client made under penalty of perjury (SSA-795).  WARNING: Many clients do not know what is on their criminal records, and will claim, without intending to lie, that they have no subsequent felonies when they do.  You should independently investigate your client’s record, and use that as proof that the client has no subsequent felony convictions, unless SSA demands a sworn statement.

Period of Disqualification  Ineligibility period starts with month when warrant issued (or first month that avoiding prosecution, if indicated on warrant).  Because warrants often old, this frequently results in an “overpayment” issue.  For SSI, ineligibility period can go back no further than August  E.g. If warrant from August, 1992, ineligibility period starts in August,  For Title II, ineligibility period can go back no further than January 2005.

Resumption of Benefits  Benefits resume the first month in which there is no longer an active felony warrant, even if criminal case is ongoing.  Example: Client has active felony warrant from January Client goes to court and pleads guilty on January 15, Client’s benefits resume February  Example: Same facts. Client is arrested on January 15, 2007, and released on bond. Client is not tried until June Client’s benefits still resume in February 2007.

Selective Service Registration Problems  Individuals are sometimes denied government benefits, access to government- funded training programs, or student loans because they failed to register with the Selective Service.  Individuals who were incarcerated during the registration period need to file a request for a Status Information Letter with the Selective Service.

Student Loans & Financial Aid  Violation of federal or state law involving possession OR sale of controlled substance  Results in denial of federal financial aid for specified time  May be able to reduce time if complete approved rehabilitation program.

Student Financial Aid Tips  Tell your clients to attend a relevant treatment programs in order to prove rehabilitation for purposes of financial aid.

VIII Family Law Issues Child Support  If don’t address while incarcerated:  $28,000 average arrearage for prisoners  Difficult to get reduced after released  Up to 65% of wages taken to pay support after released.  Can increase risk of losing parental rights  Arrearages result in loss of driver’s license, bench warrants and re-incarceration

Actions to Take if Client Who Pays Support is Being Incarcerated  Request reduction or cancellation of child support payments ASAP

Parental Rights Termination Federal Law: Parental Rights MUST be terminated if:  In foster care 15 out of last 22 months unless compelling reason not to terminate  Being in prison may not be compelling reason not to terminate  Serious crime against child State Law: additional bases for termination

Actions to Take Where Parent Facing Prison Time  Client should give someone legal authority to care for client’s children. Best option depends on individual circumstances.  Avoid situations where children likely to end up in foster care.

IX. Tools You Can Use  Michigan Reentry Law Wiki   National Employment Law Project listserve on employment and criminal records; Contact Sharon Dietrich:  Other On-Line Resources  

Legal Aid of Western Michigan Reentry Law Project Miriam Aukerman (616) x 114 reentry.mplp.org