One of the biggest issues former offenders face upon release is the difficulty in obtaining employment with a prior conviction on the books. Effectively, the notion that imprisonment is payment of one’s “debt to society” for criminal conduct is incorrect; the offender ends up paying for the remainder of his adult life.
As John Gleeson, US District Court Judge, wrote in a recent decision (Doe v. United States of America) in which case the plaintiff sought expungement of Gleeson’s conviction of her twelve years prior:
“The conviction has proven troublesome for Doe because it appears in the government’s databases and in the New York City Professional Database Summaries. In other words, the conviction is visible to a prospective employer both as a result of the criminal background check and upon examination of her nursing license. Numerous employers have denied Doe a job because of her conviction. On more than one occasion, she was hired by a nursing agency only to have her offer revoked after the employer learned of her record … That said, I had no intention to sentence her to the unending hardship she has endured in the job market. I have reviewed her case in painstaking detail, and I can certify that Doe has been rehabilitated.”
While expungement is deemed by legal precedent to be a remedy applicable only in “extreme circumstances”, there is an alternative to expungement available to courts: certificates of rehabilitation.
“There are two general approaches to limiting the collateral consequences of convictions: (1) the ‘forgetting’ model, in which a criminal record is deleted or expunged so that society may forget that the conviction ever happened; and (2) the ‘forgiveness’ model, which acknowledges the conviction but uses a certificate of rehabilitation or a pardon to symbolize society’s forgiveness of the underlying offense conduct.”
The certificate concept emerged from the states, notably attached to strong enforcement provisions. New York has been especially active in this space given that “Conviction-based discrimination is unlawful unless it falls under the exceptions described in New York Correct. Law § 752”.
“A person who believes she is the victim of discrimination based on her conviction may file a claim to enforce the protections above, either through a civil action (against a public employer), or through the New York City Commission on Human Rights (against a private employer).”
New York state law (New York Correct. Law § 753) mandates that employers consider a number of factors including “(1) the public policy of the state to encourage employment of people with criminal records; (2) the specific duties and responsibilities necessarily related to the employment sought; (3) the bearing, if any, of the criminal offense underlying the conviction on the applicant’s fitness to perform the required duties and responsibilities; (4) the time that has elapsed since the offense conduct; (5) the age of the person at the time of the offense; (6) the seriousness of that offense; (7) rehabilitation and good conduct; (8) the legitimate interest of the employer in protecting property, and the safety and welfare of specific individuals or the general public.”
It is not just New York. “Arizona, Arkansas, California, Connecticut, Georgia, Illinois, Nevada, New Jersey, New York, North Carolina, Ohio, Rhode Island, Tennessee, and Vermont, as well as Washington, D.C.” all offer some form of certificates of rehabilitation.
“As a state senator, President Obama co-authored the Illinois certificate statute, which is based on the New York program.”
A recent paper by Heather Garretson, “Legislating Forgiveness: A Study of Post-Conviction Certificates as Policy to Address the Employment Consequences of Conviction,” suggests that there are two factors that are important to the success of certificate programs: a combination of certificates with anti-discrimination legislation, as in New York with its Article 23A statutes; and (2) general awareness among both employers and the newly released.
Even without these, an experiment in which researchers in South Carolina applied for entry-level positions in the Columbus-area using “fabricated resumes with identical names, educational backgrounds, employment experience, and skills”, differentiated only by the “type of criminal record and the presence of a Certificate of Qualification for Employment (CQE)”, the certificate eliminated the effect of prior incarceration.
“Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of recovery/relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.”
American Prison Data Systems, PBC has an important role to play in making it easier for offenders to learn about the power of certificates of rehabilitation while they are still incarcerated or under supervised control; in identifying incarcerated individuals who may be most likely to benefit from certification; and in helping offenders apply for certification by specifically addressing the statutorily permitted exceptions to discrimination.