SB 731: Record Sealing and Second Chances

A couple of weeks ago, we passed SB 731, which is another round in a set of efforts to give people with criminal records a fighting chance in life, and in the job market in particular. This Vox article (one of their better “explainers”) comprehensively lays out what the bill will do:

If signed, SB 731 would significantly expand automatic sealing eligibility for people who served time in prison. And while people with violent, serious felony records would not be offered the automatic “clean slate,” they could, for the first time, petition to have their records sealed. Virtually all ex-offenders, except registered sex offenders, would now be eligible for relief.

Under SB 731, while landlords and most employers would not be able to view expunged records, public and private schools would still be able to review them during job background checks. Law enforcement, courts, and the state justice department would also still have access to the sealed records, and individuals would be required to disclose their criminal history if asked about it when applying to serve in a public office, among other exceptions. And the law would not apply to sex offenders.

If signed into law, record relief would become available for most defendants convicted of a felony on or after January 1, 2005, if they had completed their sentence and any remaining parole and probation, and had not been convicted of a new felony offense for four years. Advocates originally wanted records sealed after two years, but that version failed to clear the state assembly a year ago.

Rachel Cohen, “California could give more than a million people with criminal records a fresh start,” Vox, Sep. 9, 2022

If you’re unfamiliar with background checks, you’d be stunned by the sheer number of occupations and life transitions that require clean criminal records. It’s pervasive and it has a deeply unsavory racial aspect. David McElhattan of Purdue University found out that, between 1983 and 2013, the number of institutional thresholds where background checks frighteningly mushroomed, and not only that: The rate at which state institutions adopted background checks increased as African-Americans represented larger shares of state criminal record populations. McElhattan also found considerable support for racial economic threat and, to a lesser extent, ethnic economic threat–and only a weak association between background checks and violent crime.

A few years ago, I was part of a statewide effort to give people with criminal records the ability to at least get through the first stage of employment screening, which resulted in the Ban the Box initiative. Not only did we believe this would lead to less discrimination against people with criminal records, but we thought it would minimize employers’ use of criminal records as a proxy for race. I wrote about this experience here, and especially about its aftermath: to my deep disappointment, my colleagues Jennifer Doleac and Benjamin Hansen found out that employers, unable to discriminate against people based on their criminal record, went back to… discriminating by race as a proxy for criminal records. I concluded that race in America has a protean quality that makes discrimination pop up somehow, no matter what we try to do to undo it. This led me to the bitter observation that any effort to curb overt racism (such as in Foster v. Chatman) seems to just drive the racism underground. What prosecutors once did by scribbling notes at the margins of their work product, they probably now do via snapchat.

This doesn’t mean we have to stop trying, and I’m glad we’ll have a chance to see whether SB 731 works as planned. But my problem with the incompleteness of this bill goes deeper than that: like pretty much everything else I’ve been paying close attention to in the last few years, the people left outside this bill are precisely the people who would benefit the most from it, and the surest bets on clean slate proposals. I refer to people released from prison after serving very long stretches of time for, well, violent crime.

As I explained in Yesterday’s Monsters, and as we further explain in FESTER, any time leniency or mercy comes up, politicians and the public are conditioned to create an exception for “violent offenders”, which we imperfectly define as people convicted for violent crimes. For the many reasons that my colleague David Sklansky explains in his new book, it is not always clear what counts as a “violent crime”–and for the reasons my colleague Susan Turner has repeatedly explained, there isn’t really much of an overlap between the crime of conviction and the risk the person actually poses.

There is an excellent reason for this, which I’ve come to refer to as “the age-violence knot”: people who are convicted of violent crimes are sentenced to long stretches–sometimes decades–in prison. Because of that, when they come out, sometimes after numerous hearings, they are much older–and are now an important demographic in California (a quarter of our prison population is over 50.) Tomorrow is my 48th birthday, and I have increased appreciation of the way age changes mentality–and I, of course, benefit from freedom, loving people, resources, an excellent education, a comfortable job, a lot of sports, and healthy nutrition. Imagine what 20-30 brutal years in these areas do to a person’s body and soul. We know people tend to age out of violent street crime in their late 20s; they become far less risky and far more expensive (healthcare-wise) the more they are incarcerated. My fieldwork for Yesterday’s Monsters included visiting places in which parole agents spoke with a lot of respect and care about these aging folks, many of them lifers, as mature, nonviolent, mentoring influences both in the yard and on the outside. These are precisely the people that are already going to face a ton of discrimination in the job market because they’d be fighting for jobs against much younger candidates, and with a complicated résumé to explain. The advantages of giving these folks a leg up are manifold, and the only reason we don’t do it is the murky political optics of “forgiving violent people.” As long as we exclude this group, we’ll continue to miss out on getting the most bang out of the reentry buck, and it’s beginning to feel like I will have to sing this refrain for many more years of my career.

People with Felony Records Approved to Serve on Juries in CA

KTVU reports:

The California Legislature approved “The Right to a Jury of Your Peers,” allowing people with a prior felony conviction to serve on juries in California for the first time. 

Current California law excludes from jury service people who may have had a graffiti conviction when they were 18 or a marijuana conviction from high school.  

Under SB 310, those with a felony record would be eligible to serve on a jury, unless the person is on parole or probation, or a registered sex offender for a felony conviction.

Here’s the text of SB 310, which suggests that there’s now an overlap between voting and serving on juries–with the exception of registered sex offenders.

CA Bar Hangs Red Scarlet Letters on Its Members

I just saw this absolutely horrible story on the Mercury news. It’s ridiculously headlined, “Is Your Lawyer a Crook?” And goes on to tell us:

What do you call up to 10 percent of lawyers in California? 

Convicted criminals. 

And that’s no rotten-lawyer joke. 

That’s the eye-popping new estimate by the agency that licenses them.
Of California’s 190,000 active attorneys, as many as 19,000 may have unreported criminal activity, from DUIs to more serious offenses, according to the State Bar of California. 

For the first time in California, all active lawyers will have to submit to having their fingerprints live-scanned or taken the old-fashioned way rby April 30 of next year under the plan the state Supreme Court is expected to approve in the coming weeks. The prints will be fed into the state Department of Justice’s database, and previous convictions will be reported to the Bar — as well as all future arrests. 

“If you have an attorney convicted, let’s say of fraud, you would want to know it,” said Leah T. Wilson, the Bar’s executive director, adding that the proposal evolved as Bar starts to “pay more attention to our public protection mission.”

Gosh, it’s almost as if Leah T. Wilson doesn’t really believe that the California criminal justice system is tasked with… what’s the word? Rehabilitation.

I speak from experience. As a law professor in California I teach hundreds of people every year. Given the high percentage of Californians that we incarcerate, inevitably some of my students have criminal records and have spent some time behind bar. As a consequence, they face an uphill battle with their moral character application, a component of their application to the bar. The application requires complete honesty, about expunged records as well as live ones, and undergoes an extreme degree of scrutiny, which people sometimes have to explain in letters and in hearings at the bar court. I’ve now testified in two bar trials and written four letters of recommendations on behalf of people with criminal records who want to be admitted or readmitted to the bar.

The bias, stigma, and ignorance–not just of the public, but of the bar itself–is breathtaking. At the bar trials in which I testified, I experienced what could only be described as a mediocre community theatre production of a morality tale. Grown people, who have matured and learned from their mistakes, have to recite their contrition. Parole and gubernatorial decisions to release people after decades of introspection and remorse are doubted and ridiculed. Skeletons are dragged out of closets to haunt people for mistakes they did as juveniles.

Honestly, after undergoing the tribulations of punishment in California, sometimes the wringer of repeated parole hearings (and gubernatorial reversals,) and on top of that, the moral character ordeal at the bar, anyone left standing is bound to be so much more thoughtful, reflective, and humble, than various so-called “moral characters” without a criminal record. Anyone with a substance abuse problem would have had time to sort it out and would be so much more mature about it than some so-called “moral character” who is still drinking or snorting, but whose record is squeaky clean. I would so much prefer to have someone from the former category as my lawyer than someone from the latter. But the general public, who is woefully misinformed by articles such as this one about who is a “crook” and who isn’t, would not necessarily make that choice, and that is a horrible injury to do to someone, not to mention a horrible privacy violation.

This also raises the issue of the elitism of the profession. We disproportionately incarcerate folks of fewer means and darker skins. As a consequence, our population of lawyers with criminal records is likely to include a disproportionate percentage of people who came to the profession from humble backgrounds. If we also put additional barriers on their gainful employment in the way of revealing their personal and private histories to potential clients, we are just deepening that elitism.

The problem, of course, is not only with this atrocious decision of the CA bar to injure its own members; it is with the kind of journalistic reporting that makes this into salacious gossip material. Who the hell uses the word “crook” as a euphemism for a criminal record, like something out of a Damon Runyon short story? And who the hell uses lawyer jokes to talk about people who have gone through so much to redeem themselves and find a professional future?

Does rehabilitation actually mean anything to the bar, when it decides to admit folks back to its ranks and then backstabs them by reducing their employment prospects? This is not a move that “protects the public.” This is elitism, bigotry, and ignorance.

Reform and Unintended Consequences: The Case of Ban the Box

In early February, Malcolm Feeley won the President’s Award from Western Society of Criminology. It was a real treat to be able to recognize and reward, if only modestly, all he has been and done for me over the years with a mentorship award, and even more of a treat to hear him give a breakfast keynote titled The Failures of the Adversarial Process. In his talk, Malcolm revisited some of his arguments from Court Reform on Trial, and made the sobering observation that, where criminal justice reform is concerned, failure is the norm; it is the occasional success that should surprise us. Malcolm ascribes this to the structural/organizational context in which the reforms happen, and to the underpinnings of racism and hypercapitalism; according to him, the criminal process is in a constant state of market failure, and it’s only outside innovators that have to bail us out once in a while (seems like this is what this new PAC is trying to do.)

I was thinking about Malcolm’s wise words today, when I was invited to an event to support Ban the Box. As my regular readers probably recall, I’d been fighting for Ban the Box for a long time, until finding out in 2015, to my dismay, that it has had disastrous unintended consequences.

I was speaking at a conference in Sacramento when I ran into the good folks from the Urban Institute, whom no one would suspect of being cryptofascist double agents, and talked to them about this. When they mentioned the findings of this study I was beside myself with disillusionment and shock. Essentially, what they found is that, when criminal record information is unavailable to progressive employers, they tend to discriminate against young men of color–possibly because they see race as a proxy for criminal history (which, in itself, is sometimes used as a proxy for race. Sick, sad world.) In their words:

Research on ban the box has shown that it increases callback rates for people with criminal records (Agan and Starr 2016). Agan and Starr (2016) find that ban-the-box policies “effectively eliminate” the effect of having a criminal record on receiving a callback. Case studies from specific cities support these results, showing that hiring rates for people with criminal records increased after ban the box was implemented (Atkinson and Lockwood 2014; Berracasa et al. 2016). Additionally, ban the box as a social movement has drawn attention to the plight of people with criminal records and has increased awareness of the challenges they face beyond employment.

But recent research has concluded that ban the box also reduces the likelihood that employers call back or hire young black and Latino men (Agan and Starr 2016; Doleac and Hansen 2016). These findings suggest that when information about a person’s criminal history is not present, employers may make hiring decisions based on their perception of the likelihood that the applicant has a criminal history. Racism, harmful stereotypes, and disparities in contact with the justice system may heavily skew perceptions against young men of color.

Several other studies have found similar outcomes. So, I’m no longer on the Ban the Box bandwagon. But what should we do instead? The Urban Institute team runs us through some options and their pros and cons:

My grim conclusion, inspired by Malcolm’s talk, is that as long as we have the nexus race-crime so embedded in the conversation (read Khalil Gibran Muhammad’s book to figure out where this came from) nothing we try to devise to avoid discrimination will get rid of it entirely.

More Voting Controversies

“Those swept up in this system too often had their rights rescinded, their dignity diminished, and the full measure of their citizenship revoked for the rest of their lives,” Mr. Holder said. “They could not vote.”A couple of years after the failure of the effort to interpret voting regulation in CA so that folks doing time in jails as a result of realignment can vote, civil rights organizations are trying again. This time, the petition focuses on folks who are under mandatory supervision, who are told by the Secretary of State they can’t vote.

The petitioners might have just felt some wind in their sales, blown by the federal government. Recently, Attorney General Eric Holder urged states to repeal felon disenfranchisement laws.

“Those swept up in this system too often had their rights rescinded, their dignity diminished, and the full measure of their citizenship revoked for the rest of their lives,” Mr. Holder said. “They could not vote.”

Holder was addressing life-long bans in Southern states, a holdover from the nadir of race relations in the 1920s, which render, for example, 10% of Florida citizens ineligible to vote. By contrast, California offers more opportunity for redemption (and has done so since 1974.) But this governmental animus toward enfranchisement is important to notice.

Lots of Big News

I’m hard at work on book revisions and other projects, and updates have been scarce. But there are lots of big news, so here is a roundup of links:

A new lawsuit by civil rights organizations tackles the voting rights of people who, post-Realignment, are under a regime of Mandatory Supervision.

There’s more talk of creating a California sentencing commission.

The Brown administration has received a two-year reprieve from the three-judge panel on the decrowding timeline.

More on these in the days to come.

Gubernatorial Budget 2014-2015

The Governor’s proposed budget for 2014-2015 is out and its full text is here. Public safety is addressed on pages 65-88 and the correctional budget is addressed on pages 89-93.

The budget proposes total funding of $9.8 billion ($9.5 billion General Fund and $320 million other funds), which is 9% of the state budget – only slightly less than our expenditures on higher education.

The report reviews the history of realignment and the Plata litigation, mentioning the state prison system’s commitment to reentry as per the Blueprint titled The Future of California Corrections (here is the Blueprint, for your convenience.) The report emphasizes CDCR’s commitment to expanding the rehabilitation menu to reach 70% of all inmates.

The report goes, at length, into the changes brought about with realignment, including the following useful classification of the prison population:

Still, the state prison population is higher than projected in 2013 – about 135,000 inmates vs. the 129,000 projected. The parolee population is expected to increase in 2013-2014 and decrease in 2014-2015, as a result of realignment and the transference of post-sentence supervisees to the counties. There are also more juvenile wards than projected, as a result of an increase in first admissions and in parole violations.

The budget report explicitly refers to the legal battle waged around the 137.5% capacity cap mandated by the federal court, and assumes that the deadline for meeting the cap will be extended by two years. Remember the $315 million that Governor Brown appropriated at the very last minute of the last legislative session? If there is an extension, the budget will allocate the first $75 million of the money to recidivism reduction (state reentry, substance abuse treatment, services for the mentally ill, and a special reentry facility) and the rest to the general fund. However, should the population cap deadline not be delayed, the money will be invested in private prisons “to avoid the early release of inmates.” You can see where this is going; the money is essentially there to more-or-less extort the Three Judge Panel and circumvent its perceived intention. The message is – play nice and give us two more years, in which case we’ll invest in rehabilitation, or you’ll get private prisons galore.

More interesting stuff: A projected expansion of medical and elderly parole. The age cutoff for the latter is 60, which means 5.4 percent of male inmates and 4.4 percent of female inmates (as of June 30.) If they pushed the age cutoff back to 55, which makes criminological and gerontological sense (people age faster in prison, and people leave crime behind at an earlier age), you’d be releasing 11.2 percent of men and 10.4 percent of women. So – a step in the right direction, but plenty of room for improvement.

The report also mentions two other savings mechanisms: nonviolent third-striker releases per Prop 36 and juvenile parole per SB260. While the report doesn’t explicitly take credit for them, it is a bit surprising to read such positive reports of these from an entity that fought the spirit of these initiatives for years.

A considerable amount of the money will be spent on improving health scores in state prisons so they can be wrangled away from the Receiver. Much of the money is allocated to fund litigation, to fight the Receiver and class-action suits in court; the rest of it on improvements to pharmacies, facilities, and staff training. The report mentions the impact of Obamacare on health care for county inmates as opposed to state inmates.

Lastly, there are some notable comments on realignment in the counties. There’s a proposal to make split sentences the default, but it still leaves a considerable amount of discretion to county judges, and would still create big disparities between county. Also, the report notes that keeping long-term inmates in county jails is not a great idea, but does not volunteer to take them back into state institutions en masse (as Manuel Perez has just suggested) because of the need to comply with the Plata/Coleman caps. The state is willing to take in offenders who are serving 10 years or more – that’s about 300 years annually – but that, of course, raises the question why people receive 10 years in prison for non-non-non offenses in the first place.

Criminal Justice Bills Signed Into Law by Gov. Brown, 2013 Season

Image courtesy NBC San Diego.

A month ago we provided a brief overview of the criminal justice bills on Gov. Brown’s desk. With the end of the legislative session, we have some important updates on some of these bills. This is the first of two posts, reporting on bills signed into law; the second post reviews vetoed bills.

We’ve all heard the news about the passage of AB 4, otherwise known as the TRUST Act. Federal law authorizes federal immigration officers to advise state and local law enforcement agents that a given person under custody has to be held for deportation. Under the new bill, CA law enforcement officials are not allowed to detain someone based on an ICE hold after the person is eligible for release from custody, unless certain conditions apply, such as a conviction for specified crimes.

Regular readers may recall our failed attempt to restore voting rights to non-serious, non-sexual, non-violent offenders in jail or on community supervision. AB 149 requires each county probation department to maintain a link to the Secretary of State’s voting rights guide, explaining clearly people’s rights to vote, which is particularly important in the case of probationers, who are eligible to vote in California and may not know that.

And we all remember the happy announcement that AB 218, otherwise known as Ban the Box, passed and was signed into law. The bill prohibits state or local agencies from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for the position. From the reentry perspective, it is a laudable initiative that gives formerly incarcerated people a fair shot at being considered for a position on their merits and qualifications. Fewer people are aware of SB 530, which prohibit employers from asking about convictions that have been judicially dismissed or ordered sealed, except in special circumstances.

There were a multitude of gun bills on the Governor’s desk, and the end result on those was fairly mixed. The higher-profile bills were vetoed, such as SB 374, which would have banned semi-automatic rifles with detachable magazines and require registration of even low-capacity rifles, and SB 567, which would have defined some rifles and shotguns as assault weapons. However, AB 231, which makes it a misdemeanor to store loaded weapons where children might have access to them, passed, and so did bills creating prohibitions for businesses from applying for assault weapons permits and two bills restricting firearms for mentally ill patients.

AB 494 increases CDCR’s accountability for literacy programs for inmates. Current law requires CDCR to implement literacy programs that would bring inmates, upon parole, to a 9thgrade reading level. ABA 494 requires CDCR to implement literacy programs that allow inmates who already have that level of literacy to acquire a GED certificate or its equivalent, as well as offer college programs through voluntary education programs. It also lists priorities. AB 624 is also a source of similar good news for inmate advocates. The bill allows sheriffs and other county directors of corrections to increase the number of programs that provide inmates with good credits toward release. Along the same lines, AB 1019 requires that the Superintendent of Education set goals for technical education programs in prison.

In helping folks reintegrate into their communities, record-cleaning and expungement issues are incredibly important. Now that AB 651 has been signed into law, defendants who did jail time for felonies may apply for expungement (withdraw their plea of guilty) after one or two years following the completion of the sentence, if they have an otherwise clean record; this makes their situation vis-a-vis expungements similar to that of defendants on probation. Defendants who completed prefiling diversion programs may also petition to seal the arrest records, under newly enacted SB 513. There are special rules about expungement of juvenile records, and AB 1006 creates an obligation to notify juvenile defendants of their rights to petition for sealing and destruction of the records.

There are other bills specifically geared toward juvenile defendants. SB 569 requires recording all interrogations of juveniles accused of murder (why only juveniles? why only murder? I suppose someone thought an incremental approach would be best.) And, of course, there’s SB 260, which, as we pointed out in the past, extends SB 9 to allow resentencing petitions for juveniles sentences to lengthy periods of time.

And more good news on the health care front: AB 720 requires the board of supervisors in each county to designate an entity to assist certain jail inmates to apply for a health insurance affordability program, and will prohibit county jail inmates who are currently enrolled in the Medi-Cal from being terminated from the program due to their detention, unless required by federal law or they become otherwise ineligible.

While SB 649, intended to reclassify simple drug possession as a “wobbler” (in order to allow it to be prosecuted as a misdemeanor) was vetoed (and more on that on the next post), there are some developments. AB 721 redefines drug transportation as transportation for sale purposes, effectively decriminalizing transportation for personal use.

There are also some expansions to police authority and some new criminal offenses, but at least from my perspective they seem fairly reasonable–a far cry from the super-punitive voter initiatives of elections past. SB 255 prohibits “revenge porn”, that is, distributing someone’s nude photo to cause them distress. [EDITED TO ADD: Notably, the law does not cover “sexting” situations, that is, redistribution of photos the victim took him/herself.] SB 717 allows issuing a search warrant to authorized a blood draw from a pesron in a “reasonable, medically approved manner, for DUI suspects who refuse to comply with police request for a blood draw. There’s also SB 57, which prohibits registered sex offenders from tampering with their GPS devices, which I suppose is good news for folks who think these devices are good tools for recidivism prevention (I have doubts.)

SB 458 tempers the legal requirements for including people’s name in gang databases. Under the new law, a person, or his/her parent/guardian in case of a minor, now gets notified that there’s an intention to include him/her in the gang member registry, and the person may contest, with written materials, said designation. Local law enforcement has to prove verification of the designation, with written materials, within 60 days.

And finally, SB 618 extends the ability to receive compensation for wrongful conviction to felons serving jail time. Also, the bill extends the time to apply for compensation to two years, requiring the Attorney General to respond within 60 days, and also removes the burden on the exoneree or pardoned person to prove that they did not intentionally contribute to bringing about the arrest or conviction.

Some important themes emerge. First, note the emphasis on reentry and reintegration in the job market, which is a healthy recession-era policy to allow formerly incarcerated folks at least a fighting chance finding employment and rebuilding their lives. We’re also seeing particular care with regard to juvenile offenders, especially those charged with or convicted of serious offenses. There isn’t a lot of hyperpunitive legislation, and the few new offenses seem tempered and reasonable. The next post deals with the vetoed bills.

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BREAKING NEWS: Ban The Box Signed Into Law

Thank you all for your civic energy a few weeks ago, making phone calls and Facebook noise on behalf of Assembly Bill 218 (Ban the Box). Governor Brown has just signed the bill into law.

The bill prohibits a state or local agency from asking an applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum employment qualifications for the position, giving formerly incarcerated or convicted folks a fighting chance in getting their lives back on track as law-abiding, taxpaying citizens.