Serving Clients with Criminal Records

Transcription

1 Serving Clients with Criminal Records Jack E. Cohoon Head Attorney, Employment Unit South Carolina Legal Services 2109 Bull Street Columbia, SC (803)

2 Mission Statement South Carolina Legal Services (SCLS) is a statewide law firm that provides civil legal services to protect the rights and represent the interests of low income South Carolinians. 2

3 Which Areas of Law? Consumer/Finance Education Employment Family Health Housing Income Maintenance/Public Benefits Elder Law and Miscellaneous 14

4 Employment To ensure economic stability and access to employment remedies Barriers to Employment Employment Discrimination Wage Claims Earned Income Tax Credit Other Tax Issues Employee Rights Other Employment Issues (including wrongful termination) 17

5 SCLS Offices & Counties Served Charleston Office Serving: Beaufort, Berkeley, Charleston, Colleton, Dorchester, Hampton, and Jasper Counties Columbia Office Serving: Lee, Lexington, Kershaw, Richland, and Sumter Counties Conway Office Serving: Georgetown, Horry, Marion, and Williamsburg Counties Pee Dee Office Serving: Chesterfield, Clarendon, Darlington, Dillon, Florence, and Marlboro Counties Greenville Office Serving: Anderson, Greenville, Oconee, and Pickens Counties Greenwood Office Serving: Abbeville, Edgefield, Greenwood, Laurens, McCormick, Newberry, and Saluda Counties Orangeburg Office Serving: Aiken, Allendale, Bamberg, Barnwell, Calhoun, and Orangeburg Counties Rock Hill Office Serving: Chester, Fairfield, Lancaster, and York Counties Spartanburg Office Serving: Cherokee, Spartanburg, and Union Counties Intake Requests: Centralized Intake Office:

6 To Apply Statewide Intake Office Hours of operation -- 9:00 a.m. to 6:00 p.m., Monday through Thursday. (888) Office Intakes Referrals received from out of state legal services programs; Emergency referrals from court staff, other service providers or community based organizations; Applicants who are unable to communicate by telephone because of an impairment, homebound or in an institution; Walk-ins Online Intakes 6

7 Why are Criminal Records Important? 7

8 Americans with Criminal Records-- 30% 65 million See How Many Americans Have a Police Record? Probably More Than You Think, Wall Street Journal, Aug. 7, 2015, 8

9 About 2 percent of the population is under correctional supervision.

10 Who is being arrested? In 2016 African Americans made up 13.4% of the U.S. population. African Americans made up 26.7% of arrests for drug offenses. Sources: Uniform Crime Reporting Program, FBI; U.S. Census Bureau, 2016 (accessed July 23, 2018) U.S. Census Quick Facts (accessed July 23, 2018)

11 Source: Twelve Facts about Incarceration and Prisoner Reentry: (accessed July 23, 2018) (data from Uniform Reporting System and National Longitudinal Survey of Youth).

12 Brain injuries and criminality the connection Following brain lesions, previously normal patients sometimes exhibit criminal behavior. Systematic mapping of lesions with known temporal association to criminal behavior, identifying 17 lesion cases. Lesion sites were spatially heterogeneous, including the medial prefrontal cortex, orbitofrontal cortex, and different locations within the bilateral temporal lobes. Lesion network mapping, has recently identified regions involved in symptom generation across a variety of lesion-induced disorders. All lesions were functionally connected to the same network of brain regions. Our results suggest that lesions in criminals occur in different brain locations but localize to a unique resting state network, providing insight into the neurobiology of criminal behavior. Lesion network localization of criminal behavior. Ryan Darby et al., National Academy of Sciences of the U.S.A., Jan. 16, (accessed July 23, 2018). 12

13 Brain injuries and criminality the connection 35-year population study in Sweden by Oxford University researchers. Results showed that overall, Swedes had a 2.5% chance of becoming violent offenders. If they had a head injury on their records, that rose to 9%. To make allowances for the fact brain injuries could be a result of upbringing, the researchers also looked at the siblings of those with brain damage they had a 4.5% chance of becoming offenders too. The Oxford research shows that people have nearly double the chance of becoming violent offenders if they something in their upbringing, genetics, or environment that predisposes it. Add a head injury on top of that, then the risk is doubled again. Source: Brain injuries can cause some people to become violent criminals, Business Insider, (accessed July 23, 2018) 13

14 National Inventory of Collateral Consequences of Conviction 38,000+ collateral consequences under state and federal law! org/ 14

15 Examples of collateral consequences affecting employment Even misdemeanor convictions can interfere with ability to work selling, manufacturing, or repairing manufactured housing, S.C. Code Ann ; as an embalmer or funeral director, Id. at ; as an engineer or surveyor, Id. at ; as a property manager; Id as a barber; Id ; as a health care worker, Id ; as a dry cleaner, S.C. Regs

16 Employers that ask about criminal records Workers with Criminal Records, SHRM and Koch Institute. CKI%20Workers%20with%20Criminal%20Records%20Issue%20Brief% pdf (accessed July 23, 2018).

17 What is a criminal record? Rap Sheet SLED and FBI Court records Public index Private database (preemployment screening companies)

18 Rap Sheets Can be obtained from SLED website $25 payable by credit card / $8 for a charitable organization. Returns South Carolina results only.

19 Public Index A really useful tool and it s free! Every Judicial Circuit has a different website.

20 What is on a SLED report? Convictions Arrests (even if no conviction) Dismissed charges Nol prossed (not prosecuted) charges. Not guilty verdicts!?!?!

21 Expungements What everybody wants but not everybody can get.

22 What is an expungement? The destruction or sealing of criminal records related to an arrest or criminal conviction. Expunged charges and convictions are no longer reported on the SLED report or in public index.

23 Category 1: Non-Convictions S.C. Code Arrests and charges not resulting in conviction. Dismissed charges. Nol prossed charges Not guilty verdicts Expungements for cases dismissed after June 2, 2009 are automatic. Before that date, the expungement must be requested. Must turn in the expungement to the court you were charged in. Free! (if not part of a plea bargain).

24 Dismissed, Nol Prossed, Not Guilty Charges Court you were charged in All Other Expungements Solicitor s Office in arresting county

25 Category 2: PTI S.C. Code (a) Charges dismissed by Solicitor because the defendant successfully completed the Pretrial Intervention Program (PTI). Fees (payable by cashier s check or money order) $250 to the Solicitor. $35 to the Clerk of Court.

26 Category 3: Alcohol Education Program S.C. Code Charges dismissed by Solicitor because the defendant successfully completed the Alcohol Education Program (AEP). Persons between the age of years old, charged with alcohol related offense. Fees (payable by cashier s check or money order): $250 to the Solicitor. $35 to the Clerk of Court.

27 Category 4: Traffic Education Program S.C. Code (A) This is only for people who have successfully completed a traffic education program. Once the TEP is complete, the solicitor will mark the charges as dismissed and the charge may be expunged. Established to educate drivers with minor traffic offenses, while giving them the opportunity to have eligible traffic tickets dismissed. Persons who commit traffic related offenses that are punishable only by a fine and loss of 4 points or less, no significant history of traffic violations, and has not previously participated in TEP. (Participation in AEP or PTI is not a bar to TEP) Fees (payable by cashier s check or money order): 2 $250 to the Solicitor. $35 to the Clerk of Court.

28 Category 5: Fraudulent Check S.C. Code (e) Must be first offense misdemeanor conviction under the Fraudulent Check Law. Each fraudulent check is a separate offense. However, the Court may consider an expungement for a person with multiple warrants served at the same time. There must be no criminal conviction within one year from date of conviction. Fees (payable by cashier s check or money order): $250 to the Solicitor. $35 to the Clerk of Court. $25 to SLED.

29 Category 6:Drug Possession/ Conditional Discharge S.C. Code (b) Conviction of a first offense drug possession. Defendant received conditional discharge. Defendant successfully complied with terms of the conditional discharge. Fees (payable by cashier s check or money order): $250 to the Solicitor. $35 to the Clerk of Court.

30 Category 7: First Offense Drug Conviction S.C. Code * First offense conviction for either simple possession of a controlled substance or unlawful possession of a prescription drug. Must wait 3 years(no other convictions) after the completion of the sentence, probation or parole. First offense conviction for possession with intent to distribute a controlled substance. Must wait 20 years(no other drug convictions) from the completion of any sentence, probation, parole. (also includes any associated bench warrant) May not obtain if criminal charges pending unless pending for more than 5 years, or if a conditional discharge was received within 5 years prior to date of arrest, 10 years if other drug offenses (controlled substance, unlawful possession of prescription drug). Fees (payable by cashier s check or money order): $250 to the Solicitor. $35 to the Clerk of Court.

31 Category 8: Conviction with max. penalty of 30 days/ $1,000. S.C. Code (A) The expungement of any 30-day term of imprisonment/$1000 fine conviction may be expunged No other convictions within 3 years of conviction (or 5 years if Domestic Violence) Charge does not have to be a first offense. May only use once. Fees (payable by cashier s check or money order): $250 to the Solicitor. $35 to the Clerk of Court. $25 to SLED.

32 Category 9: First Offense Youthful Offender S.C. Code First offense conviction under the Youthful Offender Act (age 17 to 25) or, if conviction was prior to June 2, 2010, was a youthful offender at that time. Includes offenses for which the individual received a youthful offender sentence at a single sentencing proceeding for offenses that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes. No additional conviction for 5 years after completion of sentence, including probation and parole. Motor vehicle offenses cannot be expunged. Fees (payable by cashier s check or money order): $250 to the Solicitor. $35 to the Clerk of Court. $25 to SLED.

33 Category 10: Failure to Stop for Blue Light S.C. Code (f) Conviction of misdemeanor first offense Failure to Stop Motor Vehicle. No additional conviction for 3 years after completion of the sentence. Fees (payable by cashier s check or money order): $250 to the Solicitor. $35 to the Clerk of Court. $25 to SLED.

34 Category 11: Juvenile Offenses S.C. Code Must be non-violent ( violent offenses are defined by S.C. Code ). Successfully completed any dispositional sentence. No subsequent charge for any criminal offense. The court has discretion to grant or not grant. Fees (payable by cashier s check or money order): $250 to the Solicitor. $35 to the Clerk of Court. $25 to SLED.

35 Category 12: Human Trafficking Victims S.C. Code You must be a victim of human trafficking You must have been convicted of human trafficking, as defined in , OR you must have been convicted of prostitution. Your participation in the offense(s) you wish to be expunged must be a direct result of being a victim. 35

36 Update: Fee Restructuring The Solicitor s office is required to implement a policy and procedure regarding the collecting funds to defray the costs. The Solicitor s office will establish an account to collect funds to assist in defraying the administrative fee by up to 50%. Fees are available on a first-come first-serve basis.

37 What we ve accomplished for our clients! Bob was young man who wanted to be a truck driver. However, trucking companies wouldn t hire him because of an error on his rap sheet showing a DUI. An SCLS advocate challenged this error and got the false DUI removed. Now Bob is able to pursue his chosen career. Suzanne is a working mom. She applied for a job with a state agency. However, the agency wouldn t hire her because of two fraudulent check convictions from when she was young, including a $6 bounced check to a beauty supply store. The bad checks were too close in time to each other for either to be eligible for expungement. SCLS represented Suzanne to reopen one of the convictions so it could be dismissed. As a result, both items could now be expunged, and Suzanne was immediately hired to her new job. Rita was offered a job in a field she was qualified in pending a background check. However, when the background check came back, it showed, erroneously, that she had a felony conviction. The background check company refused to correct the error. SCLS represented Rita to bring a law suit under the Fair Credit Reporting Act that forced the background company to make the correction and got her compensation for the lost job opportunity. 37

38 What about convictions that cannot be expunged? Pardons 38

39 About Pardons A pardon is the State s forgiveness of a person for all the legal consequences of his crime and conviction. Does not remove the criminal conviction from the SLED report, however convictions are noted as pardoned. May lessen the effects of a criminal conviction, show that you are a changed person. 39

40 Eligibility for a Pardon Probationers: any time after discharge from supervision. Parolees: completion of 5 years under supervision; any time after date of discharge of successful completion of the maximum parole period, if less than 5 years. Persons Discharged from a sentence: any time after date of discharge. No person shall be granted a pardon unless all restitution and collection fees have been paid in full. 40

41 Process for obtaining a Pardon It is not necessary to hire an attorney. Complete application to Dept. of Probation, Paroles, and Pardons. Available at Make sure that you list all convictions on the application so that all convictions are pardoned. Filing fee of $

42 Process for obtaining a Pardon (cont.) A minimum of 3 letters of reference (preacher, employer, etc.) A hearing will be held. It is not mandatory that you attend by your chances are greatly diminished if you are not present. Takes 7-9 months. 2/3 s (5 out 7) members must agree. If you are denied you cannot re-apply for at least one (1) year. 70% of pardon applications are granted! 42

43 Strategy First, try to get everything expunged that you can. Then apply for a pardon for the rest. 43

44 Other tools to help people with legal obstacles to employment SLED error correction Driver s license restoration Child support on rap sheets Title VII (Civil Rights Act of 1964). Occupational license restoration Reopening criminal convictions Fair Credit Reporting Act 44

45 Partners and Resources SC Department of Vocational Rehabilitation Federal Bonding Program (through SCWorks) Workforce Investment Opportunity Act (through SCWorks) Goodwill Fast Forward Community Tech Center Dept. of Veterans Affairs 45