Using the Law To Fight Poverty in Ohio ©2010 Ohio Poverty Law Center CORT First Fridays Friday, September 3, 2010 Melissa Lindsay Prisoner Reentry Issues

CORT First FridaysCORT First Fridays

Friday, September 3, 2010Friday, September 3, 2010

Melissa LindsayMelissa Lindsay

Prisoner Reentry Prisoner Reentry Issues for Legal Issues for Legal

Services Advocates Services Advocates

Using the Law To Fight Poverty in Ohio

Road MapRoad Map

• Collateral ConsequencesCollateral Consequences• Background ChecksBackground Checks• Ban the BoxBan the Box• Title VII of the Civil Rights ActTitle VII of the Civil Rights Act• Working with the criminal defense Working with the criminal defense

barbar


Collateral Collateral ConsequencesConsequences

• AKA collateral sanctionsAKA collateral sanctions• The civil or other consequences from a The civil or other consequences from a

criminal convictioncriminal conviction• Examples: Examples:

-Sex offender registration-Sex offender registration -Public -Public benefitsbenefits

-Professional licensing-Professional licensing -Driver’s -Driver’s licenselicense

-Firearm possession-Firearm possession -Employment -Employment

-Housing-Housing



• There are over 400 collateral There are over 400 collateral consequences within the Ohio Revised consequences within the Ohio Revised CodeCode– Most are employment and professional Most are employment and professional

licensinglicensing– Represents “tough on crime” legislation at its Represents “tough on crime” legislation at its

worstworst– Does not include public housing restrictionsDoes not include public housing restrictions– Does not include restrictions by the private Does not include restrictions by the private

sectorsector

• What’s to be done?What’s to be done?



• Collateral Consequences DatabaseCollateral Consequences Database– Minnesota:Minnesota:

• http://www.collateralsanctions.org/mn/searchttp://www.collateralsanctions.org/mn/search.phph.php

– Ohio is using Minnesota’s database as a Ohio is using Minnesota’s database as a modelmodel

– Funding securedFunding secured– Beta version launch: January 2011Beta version launch: January 2011– EXCELLENT tool for all criminal and EXCELLENT tool for all criminal and

reentry advocatesreentry advocates


Collateral Collateral ConsequencesConsequences• Padilla v. KentuckyPadilla v. Kentucky

– SCOTUS decision issued March 31, 2010SCOTUS decision issued March 31, 2010– Expands 6th Amendment rightsExpands 6th Amendment rights

• Held that it was ineffective assistance of counsel under Held that it was ineffective assistance of counsel under Strickland v. Washington for a criminal defense attorney Strickland v. Washington for a criminal defense attorney to not warn his non-citizen client of immigration to not warn his non-citizen client of immigration consequences of guilty pleaconsequences of guilty plea

– Facts:Facts:• Jose Padilla had been a lawful permanent resident in the Jose Padilla had been a lawful permanent resident in the

US for more than 40 years. Padilla had served in the US US for more than 40 years. Padilla had served in the US Armed Forces in Vietnam.Armed Forces in Vietnam.

• Padilla pled guilty to the transportation of a large Padilla pled guilty to the transportation of a large amount of marijuana in his tractor trailer. This was amount of marijuana in his tractor trailer. This was clearly a deportable offense. clearly a deportable offense.

• Padilla’s lawyer advised him to plead guilty after Padilla’s lawyer advised him to plead guilty after reassuring him that he “did not have to worry about reassuring him that he “did not have to worry about immigration status since he had been in the county for so immigration status since he had been in the county for so long.”long.”

• Padilla claimed he would not have plead had he been Padilla claimed he would not have plead had he been correctly advised by his lawyercorrectly advised by his lawyer



• Padilla v. KentuckyPadilla v. Kentucky (continued) (continued)– Opinion:Opinion:

• Criminal defense lawyers with non-citizen clients now must at Criminal defense lawyers with non-citizen clients now must at least warn that a conviction may result in deportationleast warn that a conviction may result in deportation

• Because indirect consequences were both critically important Because indirect consequences were both critically important and truly clear, Padilla’s lawyer had an affirmative duty to and truly clear, Padilla’s lawyer had an affirmative duty to give correct advicegive correct advice

• Court signaled that this holding will have some retroactive Court signaled that this holding will have some retroactive effect as an application of Strickland as opposed to a new rule effect as an application of Strickland as opposed to a new rule of constitutional law. However, Court noted that it didn’t of constitutional law. However, Court noted that it didn’t expect a flood of challenges to convictions because “For at expect a flood of challenges to convictions because “For at least the past 15 years, professional norms have required least the past 15 years, professional norms have required defense counsel to provide advice on the deportation defense counsel to provide advice on the deportation consequences of a client’s plea.”consequences of a client’s plea.”

– Other collateral consequences:Other collateral consequences:• The Court specifically left open the possibility that its holding The Court specifically left open the possibility that its holding

might extend to other indirect consequences of a pleamight extend to other indirect consequences of a plea


Background ChecksBackground Checks• Portions of the information contained in this section Portions of the information contained in this section

of the presentation, including the sample dispute of the presentation, including the sample dispute letters, were derived from a manual titled letters, were derived from a manual titled A Citizen’s A Citizen’s Guide to Understanding and Clearing Up Criminal Guide to Understanding and Clearing Up Criminal Records in OhioRecords in Ohio created by the Ohio Justice & Policy created by the Ohio Justice & Policy Center (OJPC). Center (OJPC).

• OJPC is a Cincinnati-based nonpartisan, nonprofit law OJPC is a Cincinnati-based nonpartisan, nonprofit law firm representing people marginalized by the firm representing people marginalized by the criminal justice system and advocating for local and criminal justice system and advocating for local and statewide smart-on-crime reform.statewide smart-on-crime reform.– Contact:Contact:

• 215 East Ninth Street, Suite 601, Cincinnati, Ohio 45202215 East Ninth Street, Suite 601, Cincinnati, Ohio 45202• 513.421.1108513.421.1108• [email protected]@ohiojpc.org• www.ohiojpc.orgwww.ohiojpc.org


Background ChecksBackground Checks

• AKA: criminal record checks, rap sheetsAKA: criminal record checks, rap sheets• Types:Types:

– GovernmentGovernment• LocalLocal

– County sheriff’s offices and online court docketsCounty sheriff’s offices and online court dockets– Only contain information from particular countyOnly contain information from particular county

• StateState– Official criminal record repository (every state has one)Official criminal record repository (every state has one)– Ohio: Bureau of Criminal Identification and Investigation Ohio: Bureau of Criminal Identification and Investigation

(BCI&I)(BCI&I)• NationalNational

– FBIFBI– All FBI reports are based on information provided to the All FBI reports are based on information provided to the

FBI by the official criminal record repository of each stateFBI by the official criminal record repository of each state


Background ChecksBackground Checks• Types: (continued)Types: (continued)

– PrivatePrivate• Commercial background-checking companiesCommercial background-checking companies

– The National Association of Professional Background Screeners The National Association of Professional Background Screeners lists over 300 member background check companies lists over 300 member background check companies www.napbs.com/www.napbs.com/

– Employers tend to prefer because the rates are usually cheaper Employers tend to prefer because the rates are usually cheaper than government checks and the information is available onlinethan government checks and the information is available online

• Common problems: inaccurate, incomplete, or Common problems: inaccurate, incomplete, or misleading informationmisleading information– Only arrest data with no follow-upOnly arrest data with no follow-up– Sex offender registrations as arrestsSex offender registrations as arrests– According to the U.S. Attorney General, in 2006, According to the U.S. Attorney General, in 2006,

approximately 50% of FBI background checks were approximately 50% of FBI background checks were incomplete or inaccurate. In 2009, the number was 48%incomplete or inaccurate. In 2009, the number was 48%

• U.S. Attorney General, The Attorney General’s Report on Criminal Background Checks (June 2006), at page 3.



• Commercial Background ChecksCommercial Background Checks– Governed by the Fair Credit Reporting Act Governed by the Fair Credit Reporting Act

(FCRA)(FCRA)– Under FCRA, when an employer uses a Under FCRA, when an employer uses a

commercial background check and the commercial background check and the check provides information that causes the check provides information that causes the employer to make an adverse employer to make an adverse determination (i.e. not hiring, firing, not determination (i.e. not hiring, firing, not promoting, etc), the employer is required promoting, etc), the employer is required to provide the subject of the background to provide the subject of the background check two notices.check two notices.



• Commercial Background Checks (con’t)Commercial Background Checks (con’t)– FCRA NoticesFCRA Notices

• Pre-adverse action: Pre-adverse action: – BeforeBefore the adverse action is taken, the employer must the adverse action is taken, the employer must

give the applicant a "pre-adverse action disclosure." give the applicant a "pre-adverse action disclosure." – This includes This includes a copy of the reporta copy of the report and an explanation of and an explanation of

the individual's rights under the FCRA, which include a the individual's rights under the FCRA, which include a reasonable time to correct inaccuracies. reasonable time to correct inaccuracies.

• Post-adverse action:Post-adverse action:– AfterAfter the adverse action is taken, the individual must be the adverse action is taken, the individual must be

given an "adverse action notice." This document must given an "adverse action notice." This document must contain the name, address, and phone number of the contain the name, address, and phone number of the employment screening company, a statement that this employment screening company, a statement that this company did not make the adverse decision, rather that company did not make the adverse decision, rather that the employer did, and a notice that the individual has the the employer did, and a notice that the individual has the right to dispute the accuracy or completeness of any of right to dispute the accuracy or completeness of any of the information in the report.the information in the report.


Background ChecksBackground Checks• Commercial Background Checks – Disputing Commercial Background Checks – Disputing

InaccuraciesInaccuracies– If there are inaccuracies on the background If there are inaccuracies on the background

check, the subject of the check should file a check, the subject of the check should file a dispute in writing with the company that dispute in writing with the company that prepared the report. prepared the report.

– Under the FCRA, the company has 30 days to Under the FCRA, the company has 30 days to investigate the dispute. investigate the dispute.

– The company should then send a written notice The company should then send a written notice of the results not later than five business days of the results not later than five business days after the investigation is completed.after the investigation is completed.

– Remember there are over 300 background check Remember there are over 300 background check companies, so one dispute may not correct the companies, so one dispute may not correct the inaccuracy entirely. Multiple disputes may be inaccuracy entirely. Multiple disputes may be necessary.necessary.


Background ChecksBackground ChecksCommercial Background Checks – Sample Commercial Background Checks – Sample

Dispute LetterDispute LetterSeptember 3, 2010

[Name of Commercial Background Check Company][Address Line][Address Line][Address Line]

To Whom It May Concern:

I am writing to request a correction to my criminal background check. Currently, your records show my case as: [state precisely what the background check says]. I have enclosed a copy of my criminal background check with the disputed entry circled in red.

However, I was not convicted of [X]. I have enclosed a copy of certified court records from [name of county, court] for case number [Y] that

show that I was actually convicted of [exact final charge]. Please add this final disposition information to my Computerized Criminal History entry for this case.

Also, please send me a revised version of my background check once this correction is made. If you have any questions about this correction request, please contact me at [address, phone number]

Sincerely,

[Name][Full mailing address]

ALL dispute letters should be sent

CMRRR!



• State/FBI Background ChecksState/FBI Background Checks– NOT governed by FCRANOT governed by FCRA– Every state has an official criminal record Every state has an official criminal record

repositoryrepository• Federal mandate Federal mandate • Ohio: Bureau of Criminal Identification and Ohio: Bureau of Criminal Identification and

InvestigationInvestigation

– FBI checks are comprised entirely of state FBI checks are comprised entirely of state repository datarepository data

– Disputes should be directed to the state Disputes should be directed to the state where the inaccurate information originated. where the inaccurate information originated. FBI records will be updated accordingly FBI records will be updated accordingly


Background ChecksBackground ChecksCommercial Background Checks – Sample Commercial Background Checks – Sample

Dispute LetterDispute LetterSeptember 3, 2010

Bureau of Criminal Identification and InvestigationP.O. Box 365London, Ohio 43140

To Whom It May Concern:

I am writing to request a correction to my BCI&I criminal background check. Currently, your records show my case as: [state precisely what the background check says]. I have enclosed a copy of my BCI&I criminal background check with the disputed entry circled in red.

However, I was not convicted of [X]. I have enclosed a copy of certified court records from [name of county, court] for case number [Y] that

show that I was actually convicted of [exact final charge]. Please add this final disposition information to my Computerized Criminal History entry for this case.

Please be certain to electronically notify the FBI of this correction so that the FBI can also correct its records.

Also, please send me a revised version of my BCI&I check once this correction is made. If you have any questions about this correction request, please contact me at [address, phone number]

Sincerely,

[Name][Full mailing address]


Ban the BoxBan the Box

• ““Ban the Box” refers to removing the Ban the Box” refers to removing the criminal history question from a job criminal history question from a job application and only considering application and only considering criminal records at a later point in the criminal records at a later point in the hiring process. hiring process.

• This gives all job applicants an equal This gives all job applicants an equal chance at presenting their work chance at presenting their work history and skills to employers without history and skills to employers without being prejudiced by prior mistakes.being prejudiced by prior mistakes.


Ban the BoxBan the Box

• Connecticut, Hawaii, Maryland, Connecticut, Hawaii, Maryland, Massachusetts, Minnesota, New Mexico, Massachusetts, Minnesota, New Mexico, New Jersey, and Ohio have current or New Jersey, and Ohio have current or pending legislation that make “Ban the pending legislation that make “Ban the Box” law for Box” law for public public sector employerssector employers– Hawaii & Massachusetts require Hawaii & Massachusetts require private private

sector employers toosector employers too

• 21 cities and counties have “Ban the 21 cities and counties have “Ban the Box” municipal ordinances as wellBox” municipal ordinances as well– 6 in just the last year enacted “Ban the Box”6 in just the last year enacted “Ban the Box”


Title VII of CRATitle VII of CRA

• EEOC has construed Title VII EEOC has construed Title VII protections to extend to people with protections to extend to people with criminal recordscriminal records

• This is due to the vast disproportionate This is due to the vast disproportionate minority contact with the criminal minority contact with the criminal justice system nationwidejustice system nationwide– Ohio ranks in the top ten nationally for Ohio ranks in the top ten nationally for

largest discrepancy:largest discrepancy:• Ohio population: White: 84.8%, African-American: 12%, Ohio population: White: 84.8%, African-American: 12%,

Other: 3.2%Other: 3.2%• Ohio prison population: White: 51.05%, African-Ohio prison population: White: 51.05%, African-

American: 47.66%, Other: 1.29%American: 47.66%, Other: 1.29%



• To avoid Title VII liability an employer:To avoid Title VII liability an employer:– Must be able to validate job applicant Must be able to validate job applicant

screening criteria as consistent with screening criteria as consistent with business need.business need.

– An employer may not base an An employer may not base an employment decision on the conviction employment decision on the conviction record of an applicant or employee absent record of an applicant or employee absent business necessity.business necessity.

– BLANKET EXCLUSIONS ARE ILLEGAL!BLANKET EXCLUSIONS ARE ILLEGAL!• I.e. I.e. Felons need not apply.Felons need not apply.



• Business necessity may be Business necessity may be established after review of:established after review of:– The nature and gravity of the offense of The nature and gravity of the offense of

CONVICTIONCONVICTION– The time passed since CONVICTIONThe time passed since CONVICTION– The nature of job held or soughtThe nature of job held or sought

• Certain positions, like security or safety, Certain positions, like security or safety, allow higher standardsallow higher standards

• You must be able to connect the job duties You must be able to connect the job duties to the offense of conviction, otherwise you to the offense of conviction, otherwise you are likely to lose a legal battleare likely to lose a legal battle


Title VII of CRATitle VII of CRA• CasesCases

– September 2009: EEOC v. Freeman Companies September 2009: EEOC v. Freeman Companies • A nationwide convention, exhibition and corporate events A nationwide convention, exhibition and corporate events

marketing company that used a blanket no felon policy.marketing company that used a blanket no felon policy.• The claim was dismissed because more than 300 days had passed The claim was dismissed because more than 300 days had passed

between the denial of employment and the filing of the between the denial of employment and the filing of the administrative charge, but the court (Maryland District Court) left administrative charge, but the court (Maryland District Court) left the door open for the substantive issuesthe door open for the substantive issues

– March 2010: EEOC settled a similar case with Franke March 2010: EEOC settled a similar case with Franke Foodservice Systems Foodservice Systems

– April 2010: April 2010: Johnson, et al. v. LockeJohnson, et al. v. Locke, No. 1:10cv3105, S.D. N.Y. , No. 1:10cv3105, S.D. N.Y. • Pending Class ActionPending Class Action• Attacks the Census Bureau’s hiring policies for temporary census Attacks the Census Bureau’s hiring policies for temporary census

workersworkers• http://www.lexisnexis.com/Community/LitigationResourceCenter/http://www.lexisnexis.com/Community/LitigationResourceCenter/

blogs/newlawsuitfilings/archive/2010/08/18/federal-eeoc-warned-blogs/newlawsuitfilings/archive/2010/08/18/federal-eeoc-warned-census-bureau-of-likely-discrimination-lawsuit-claims.aspxcensus-bureau-of-likely-discrimination-lawsuit-claims.aspx



• July 2010: Hudson v. First Transit, July 2010: Hudson v. First Transit, Inc.Inc.– One of the nation’s largest busing One of the nation’s largest busing

companiescompanies– Pending Class ActionPending Class Action– Complaint:Complaint:

• http://www.gdblegal.com/documents/Complhttp://www.gdblegal.com/documents/Complaints/First-Transit-Complaint.pdfaints/First-Transit-Complaint.pdf


Working with Working with Criminal Defense BarCriminal Defense Bar

• Same clients, different days of the weekSame clients, different days of the week• OPLC has included state and county public OPLC has included state and county public

defenders in our Reentry Task Forcedefenders in our Reentry Task Force– Planning statewide substantive and cultural Planning statewide substantive and cultural

trainingstrainings

• Make yourself available to talk about Make yourself available to talk about consequencesconsequences

• Remember: almost all collateral Remember: almost all collateral consequences affect legal aid work (public consequences affect legal aid work (public housing, benefits, employment, etc).housing, benefits, employment, etc).

• Working together is the only way to ensure Working together is the only way to ensure maximum benefit for our mutual clientsmaximum benefit for our mutual clients


Contact InformationContact Information

Melissa LindsayMelissa Lindsay

Ohio Poverty Law CenterOhio Poverty Law Center

Attorney/Equal Justice Works FellowAttorney/Equal Justice Works Fellow

555 Buttles Avenue555 Buttles Avenue

Columbus, Ohio 43215Columbus, Ohio 43215

614.221.7201 x113614.221.7201 x113

[email protected]@ohiopovertylaw.org

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Using the Law To Fight Poverty in Ohio ©2010 Ohio Poverty Law Center CORT First Fridays Friday, September 3, 2010 Melissa Lindsay Prisoner Reentry Issues