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EXPUNGEMENT: A FAIR CHANCE AFTER CONVICTION

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices

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4/11/2016
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The Obama administration has worked diligently over the last five years to ease the marginalization of more than 70 million Americans with criminal records that can shut them out of jobs, housing, higher education or the consumer credit system — sometimes for minor offenses in the distant past or arrests that never led to conviction. By addressing this problem, Mr. Obama is pushing the country to re-evaluate longstanding policies that trap people with criminal records at the very edges of society, driving many of them right back to prison.

Last week, for example, the Department of Housing and Urban Development warned private landlords that blanket bans on renting to people with criminal convictions — common throughout the country — violate the Fair Housing Act and can lead to lawsuits and charges of discrimination.

The guidelines make clear that landlords cannot use arrests — which quite often do not lead to conviction — to disqualify applicants, and must consider the nature and severity of convictions in evaluating rental applicants and prove that any exclusions are justified. Landlords who reflexively bar people with criminal records risk being hauled into court unless they revise that policy.

The department took a similar step toward policies in public housing last year, advising local agencies that administer federally assisted housing programs against shutting out applicants based on arrests and discouraging “one strike” policies that automatically evict people for brushes with the law.

These and other policy changes can be traced to the Federal Interagency Reentry Council, a group of more than 20 federal agencies led by the attorney general and convened in 2011. The council and its member agencies have been especially focused in removing unfair barriers to employment that have become pervasive since employers turned to computer-based arrest and conviction records for job-screening purposes.

These records are notoriously inaccurate, and frequently contain mistakes, including records of arrests that either were dismissed or never led to conviction. To address this problem, the administration is creating a national clearinghouse that will teach legal aid programs how to clean up such mistakes.

The federal Equal Employment Opportunity Commission took an important step in 2012 when it updated a ruling that bars companies from automatically denying jobs to people based on arrest or conviction records. The commission’s guidance explained that companies needed to take into account the seriousness of the offense, when it had occurred and whether it was relevant to the job. The agency has since taken strong enforcement actions against companies that have failed to observe the ruling.

Many states and counties already forbid public agencies and in some cases private businesses from asking applicants about their criminal histories until after they have had a chance to prove their qualifications. The administration joined this “ban the box” movement last year when it ordered federal agencies to take the same approach.

Another area of marginalization has been in higher education. There is no doubt that inmates who receive college degrees in prison — or who even attend classes without graduating — are far less likely to end up back behind bars once they leave. Yet Congress disqualified inmates from getting federal Pell Grants during the “tough-on-crime” 1990s. Mr. Obama opened the door to prison education again last year with an executive order creating a pilot program that will permit a limited number of inmates to pay for college courses through federal Pell Grants. More than 200 colleges in 47 states have expressed interest in participating in the program.

In the 1990s, Congress caused great damage by denying federal grants and loans to people with minor drug convictions. It later narrowed the rule so that only people enrolled in school and receiving aid at the time of the offense would be disqualified. Both the House and the Senate are considering bills that would repeal the whole rule and bar the Department of Education from including questions about drug convictions on the federal application for financial aid, known as the Fafsa. More than 20 million people use the form each year.

By committing himself to reform in this area, Mr. Obama is leading the country away from policies that once wrote off millions of people and cast them permanently aside.



Category: Expungements


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