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Saturday, February 1, 2014

Criminal Records and Reentry, and the Importance of Civil Reform

Via the CrimProf Blog, I learned about a recent article by Michael Pinard entitled, Criminal Records, Race and Redemption. The citation is 16 N.Y.U. J. L. & Pub. Pol. 963 (2013).  Here is the abstract:

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records. To address these issues, this article proposes a redemption-focused approach to criminal records. This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records. Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.
I have not had very much time to read through the paper in depth, but from what I have read, Pinard seems to be presenting and addressing an extremely important issue facing the criminal justice system. Speaking from my own experience volunteering at a reentry clinic for a few years, I can say that (1) Pinard's arguments that criminal records make finding jobs and housing difficult are spot on, and (2) that I am relieved to be working at a clinic in California rather than Maryland, where expungement rules seem to be far more restricted.

Pinard also seems to offer some strong suggestions for reform. I would add to his conclusions by re-emphasizing the importance of civil remedies against employers who discriminate based on criminal background. I am aware that California has enacted legislation that provides for statutory damages in the event an individual can prove that they were not hired specifically because of their criminal background. And while Pinard correctly points out that this may be difficult to prove, I have nevertheless met numerous people who have heard either explicitly from employers that they were not hired because of their record -- or who had significant circumstantial evidence that this was the case. Legislation providing for substantial statutory damages would provide employees with record with a significant source for redress in the event they are not hired because of their criminal record.

Finally, while Pinard does not address this point, I have always wondered whether reforming wrongful hiring tort law would have any impact on the burdens faced by those with criminal records. Employers may be deterred from hiring applicants with criminal records because those employers may face liability if the applicant has a criminal record and ends up harming somebody while employed. In determining the liability of the employer, the question of whether that applicant had a criminal record tends to be a central consideration. The argument goes that if the employee had a criminal record at the time of hiring, the employer should have known that the employee would cause harm, and therefore should have avoided hiring the employee in the first place.

I always found this theory strange -- especially in light of rules of evidence that typically prohibit the use of past crimes or wrongs to prove that somebody would be more likely to commit crimes or wrongs in the future. While an person's criminal record cannot be used to argue that the person was more likely to have carried out a crime or wrong in determining that person's liability or guilt -- the record can be used to argue that the employer should have assumed that the person would have been more likely to commit a crime or harmful act.

In light of this seemingly inconsistent treatment of past crimes or wrongs in the context of wrongful hiring lawsuits, businesses' blameworthiness in hesitating to hire people with criminal records may be somewhat mitigated. Beyond reforms to the criminal justice system's keeping of criminal records and permitting expungements, a comprehensive set of civil reforms that (1) ensure statutory damages for those who are discriminated against based on criminal records and (2) restrict the use of criminal records in wrongful hiring lawsuits may help to end hiring practices that end up burdening those who are attempting to reenter society.

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