Statutory limitations on civil rights of people with criminal records.

• Author: Mukamal, Debbie A.

A host of state and federal laws limit the civil rights of individuals with criminal records in a wide variety of settings. This Article describes statutory limitations in eight areas: ability to obtain employment, eligibility for public housing, eligibility for public assistance and food stamps, eligibility for student loans, access to records for non-criminal justice purposes, voting rights, drivers' license privileges, and rights to be foster and adoptive parents. (1)

These restrictions each have a significant impact on the lives of people with criminal records; together they create a formidable set of barriers to their ability to reenter and participate in society. The number of people with histories of arrest or conviction in the United States subject to limitations on their civil rights--often for the rest of their lives--is large and growing. (2) More than 600,000 people are released from state and federal prisons every year, a population equal to that of Baltimore or Boston. (3) The United States Department of Justice ("DOJ") estimates that nearly seven million people are under criminal justice supervision, incarcerated in state and federal prisons and local jails, on probation, or on parole. (4) Tens of millions more have a criminal history record on file with state or federal governments. (5) This means that about twenty-five percent of the nation's adult population lives a substantial portion of their lives with a criminal record. (6)

Incarceration rates are significantly higher for young men of color. (7) DOJ found that eleven percent of all African-American males in their twenties and early thirties are in prison or jail, compared to four percent of Hispanics and 1.5 percent of whites. (8) Indeed, 560,000 young African-American men constitute more than a quarter of the nation's entire incarcerated population. (9) African-Americans are at least seven times more likely than whites, and two times more likely than Hispanics, to be incarcerated. (10)

Government can and should have legitimate concerns about protecting the public safety from people who might do the public harm and about allowing employers and others to disqualify those whose criminal records demonstrate their unsuitability. At the same time, government also has an obligation to ensure fairness and opportunity for people who were arrested but never convicted or, if convicted, satisfied or are complying with their sentences, so they can obtain employment, housing, food, and other necessities of life.

1. ABILITY TO OBTAIN EMPLOYMENT

   Legal standards for employment of people with criminal records are predominately created by state laws. While there is no explicit federal law, the Equal Employment Opportunity Commission ("EEOC") has ruled that employment policies excluding people based upon arrests of convictions unrelated to the job sought may violate Title VII of the Civil Rights Act of 1964 because of their disproportionate impact on minorities, who are arrested and convicted at a significantly higher rate than their percentage in the population. (11)

   Under the EEOC's Title VII guidelines, employers may not exclude people based upon arrests that did not lead to conviction unless there is a business justification. (12) A "business justification" must show that the applicant engaged in the conduct for which he or she was arrested, and that the conduct is both job-related and fairly recent. The EEOC guidance requires employers to give applicants a chance to explain their arrest records before they are disqualified from employment. (13)

   Similarly, the EEOC has stated that an employer only may exclude a person because of a criminal conviction if there is a business necessity. (14) To establish business necessity, the employer must consider: 1) the nature and gravity of the offense(s); 2) the time that has elapsed since the conviction and/or completion of the sentence; and 3) the nature of the job held or sought. (15) For example, business necessity exists where the applicant has a fairly recent conviction for a serious offense that is job-related.

   Thirty-eight states permit all employers (public and private) and occupational licensing agencies to inquire about and rely upon arrests that did not result in a conviction. Nine states--California, (16) Hawaii, (17) Massachusetts, (18) Michigan, (19) New York, (20) Ohio, (21) Rhode Island, (22) Utah, (23) and Wisconsin (24)--prohibit any use by public and private employers and occupational licensing agencies of arrests that never led to conviction. Arkansas (25) and New Mexico (26) restrict both public employers and occupational licensing agencies from considering arrests and New Hampshire (27) prohibits only public employers. All three states allow private employers to use arrests that did not lead to conviction.

   Thirty-one states have no standards governing the relevance of conviction records of applicants for occupational licensure, nineteen do. (28) Thirty-six states have no standards governing public employers' consideration of applicants' criminal records; fourteen do. (29) Forty-five states have no standards governing private employers; five do: Hawaii, (30) Kansas, (31) New York, (32) Pennsylvania, (33) and Wisconsin. (34)

   Five states--Arizona, (35) California, (36) Nevada, (37) New Jersey, (38) and New York (39)--0ffer certificates of rehabilitation that lift or limit the restrictions imposed on people with criminal records in obtaining occupational licenses or employment.

2. ELIGIBILITY FOR PUBLIC HOUSING

   In determining eligibility for Section 8 and other federally assisted housing, the Housing Opportunity Program Extension Act of 1996 (40) and the Quality Housing and Work Responsibility Act of 1998 (41) require local housing authorities to permanently bar individuals convicted of certain sex offenses and methamphetamine production on public housing premises. (42) The federal laws also give local public housing agencies discretion to deny eligibility to virtually anyone with a criminal background, including: 1) people who have been evicted from public, federally assisted, of Section 8 housing because of drug-related criminal activity for three years; and 2) anyone who has engaged in any drug-related criminal activity, any violent criminal activity, and other criminal activity that would adversely affect the health, safety, or right to peaceful enjoyment of the premises. (43) Local housing agencies have the authority to: 1) identify which crimes make an applicant ineligible for public housing; 2) decide whether they will consider arrests not leading to conviction in eviction proceedings; 3) decide how long to deny housing assistance to people with criminal records; and 4) determine what, if anything, qualifies as rehabilitation for purposes of lifting the bars to public housing. Thus, local authorities have wide discretion in determining how restrictive, or inclusive, their policies regarding admission of people with criminal records will be.

3. ELIGIBILITY FOR PUBLIC ASSISTANCE AND FOOD STAMPS

   The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (44) permanently prohibits from receiving federally-funded cash assistance ("Temporary Assistance for Needy Families" of "TANF") and food stamps anyone convicted of a drug-related felony after the enactment of the statute. (45) This lifetime ban applies only to drug-related felonies, not to any other types of convictions. (46) The federal law allows states to pass legislation "opting out" of or modifying this ban. Nineteen states have adopted the federal drug felon ban in its entirety. (47) Eleven states "opted out" entirely; the lifetime ban on cash assistance and food stamps for drug felony convictions does not apply in those states. (48) Eight states modified the ban by requiring recipients with drug felony convictions to seek or participate in alcohol and drug treatment to keep their eligibility. (49) One of those states, Connecticut, (50) also restores eligibility once a person has completed his or her criminal justice sentence. Ten states modified the ban in other ways, providing benefits to those who submit to drug tests, wait a certain period of time, were convicted of possession offenses only, or meet other conditions. (51) Two states, Illinois (52) and Massachusetts, (53) eliminated the ban on food stamps and modified, but did not eliminate, the ban on cash assistance.

4. ELIGIBILITY FOR EDUCATIONAL ASSISTANCE

   The Higher Education Act of 1998 makes students convicted of drug-related offenses ineligible for any grant, loan, or work assistance. (54) States cannot discard or alter this restriction. No other class of offense results in the automatic denial of federal financial aid eligibility. (55) The suspension begins on the date of the conviction. (56) The restriction applies even if the person is not receiving assistance at the time of the conviction. A person with a conviction record must wait until the end of the ineligibility period before being eligible to apply for student assistance. (57)

   The length of the suspension depends on the type and frequency of the offense or offenses. (58) For first-time convictions of possession of a controlled substance, ineligibility lasts one year. (59) A second offense for drug possession results in two years of ineligibility and a third offense leads to indefinite ineligibility. (60) First-time convictions for sale of a controlled substance lead to two years of ineligibility. (61) The period of ineligibility is indefinite for subsequent offenses involving drug sale. (62) A student may resume eligibility before the end of the suspension period if he of she satisfactorily completes a drug rehabilitation program that complies with criteria set out by the Secretary of Education and includes two unannounced drug tests, or if the conviction is reversed, set aside, or otherwise struck down. (63)

5. AVAILABILITY OF CRIMINAL RECORDS FOR EMPLOYMENT, HOUSING, AND NON-CRIMINAL...