albert j. grudzinskas, jr., j.d. university of massachusetts medical school department of psychiatry...
TRANSCRIPT
Criminal Offender Record Information Reform: 65+ Million Need Not Apply
Albert J. Grudzinskas, Jr., J.D.
University of Massachusetts Medical SchoolDepartment of Psychiatry
Law and Psychiatry ProgramClinical Associate Professor &
Director of Legal Studies
©Copyrighted 2014, Albert J. Grudzinskas, Jr
Disclaimer
The Massachusetts Department of Mental Health and the University of Massachusetts Medical School have no responsibility for the content of this presentation.
The content of this presentation does notrepresent an official statement of the Massachusetts Department of Mental Health or the University of Massachusetts.
Financial Disclosure
Neither the presenter nor his spouse have had a relevant financial relationship in the past twelve months with proprietary entities producing health care goods or services as may be presented herein.
I have no actual or potential conflict of interest in relation to this presentation.
Legal DisclaimerThe opinions expressed during this presentation are not
necessarily the opinions of DMH or UMMS or the people expressing the opinions; nor should it be presumed or construed that they even are opinions or that the persons expressing them have any idea whatsoever of what they may or may not be talking about. The maker of the aforesaid opinions hereby reserves the right in perpetuity to change, modify, distinguish, overrule, or just plain deny that he ever made these or any other opinions at this or any other time since the beginning of the world and continuing to and through this presentation and its immediate aftermath.
Background
Massachusetts Body of Liberties“Every inhabitant shall have free liberty to search and review any rolls, records or registries of any Court…” (1642)
U.S. Constitution Amendment VI“Right to a speedy and public trial…” (1791)
M.G.L., Chapter 276, Section 100“Report of the work of Probation in Court” (1953)
Background
• Criminal History Systems Board (1972)
• Criminal Offender Record Information (1977)
• Department of Criminal Justice Information Services (2010)
• CORI Reform “An Act to Enhance Public Safety and Reduce Recidivism by Increasing Employment Opportunities.” (2010)
• “A good job is the best tool to prevent repeat offending.”
Arrest & Incarceration
• Nearly 1/3 of American adults have been arrested by age 23 (Solomon AG Re-Entry Council, 2011)
• U.S. 5% of world population – 25% of world incarcerated population (Pew Charitable Trusts, 2008)
• On any given day 1 in 100 U.S. adults are behind bars (Pew Charitable Trusts, 2008)
• Nearly 14 million arrests in 2009 – 4% for violent crime (Solomon AG Re-Entry Council, 2011)
Recidivism
Bureau of Justice Statistics:Over- All Re-Arrest Rates (3 years follow-up)
Non-Sex Offender: 179,391 of 262,420 68%
Sex Offenders: 4,163 of 9,691 43%
Felony Re-Arrest: Non-S/O: 84% S/O: 75%
Recidivism
• Law enforcement agencies in the U.S. made 1,906,600 arrests of persons under age 18 in 2009
• On February 24, 2010 approximately 71,000 juvenile offenders
were held in residential placement facilities in the United States. • Incarceration Rates:
– U.S. 336 per 100,000 youth– South Africa 69 per 100,000 youth– New Zealand 68 per 100,000 youth
OJJDP Statistical Briefing Book: Census of Juveniles in Residential Placement 2010. At pg. 4, Available: http://www.ojjdp.gov/ojstatbb/corrections/qa08201.asp?qaDate=2010. Released December 09, 2011.
Recidivism
•Available studies of youth released from residential corrections programs find that 70 to 80% of youth are re-arrested within two or three years.
•Of the six states reporting juvenile or adult arrests within two years of release [from juvenile placement], none showed less than a 68 % re-arrest rate.
•Virtually all states reporting three-year re-arrest rates converge at about 75 percent.
Federal LawTitle VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on race, gender, national origin, and other protected categories.
An employer’s consideration of criminal records may pass muster under Title VII if an individualized assessment is made taking into account:
1. The nature and gravity of the offense or offenses;2. The time that has passed since the conviction and/or completion of the sentence; and3. The nature of the job held or sought.
What is a CORI?
Record of charge – not just convictionState and Federal (if Massachusetts)Allows some employers, school administrators, & public housing officials to “screen out” potentially dangerous ex-offenders BUT, employers and landlords with “Standard Access” can only see open cases - convictions
CORI Problems• Public housing agencies can disqualify you from public housing or
subsidized housing (such as Section 8) based on your CORI or the CORI of any adult leaseholder in your household. You have the right to a hearing to discuss the accuracy or relevance of the information in your CORI.
• Massachusetts employers can refuse to hire you because of your criminal record, even if you are qualified for the job. You have the right to a hearing to discuss the accuracy or relevance of the information in your CORI.
• You may be prohibited from volunteering at your child's school or sports events, or doing other volunteer work with children, or with elderly or disabled adults.
CORI Problems
• If you were incarcerated for a drug-related felony and were released from prison less than 12 months ago, you cannot get TAFDC for yourself unless you are exempt from the time limit or get a domestic violence waiver.
• A CORI may prevent you from becoming a foster or adoptive parent.
• Colleges and technical schools might not allow you to do clinical work or internships in certain fields like nursing or teaching that require contact with children, the elderly, or people with disabilities.
Ban the Box
M.G.L., C. 151B, Sec. 4(9):Unfair employment practice to ask about CORI in initial written application unless applicant is applying for position that Federal or State law creates a mandatory or presumption disqualification
When Can an Employer See My CORI?
Most employers are not allowed to ask you about your criminal history on an initial job application. After the initial job application, an employer may access your CORI under these conditions:• you must agree to a CORI check by signing a CORI
Acknowledgment Form for Employment and Housing• the employer must verify your identity• the employer must certify under oath that the reason for
the CORI request is to evaluate a current or potential employee
• Employers can request a copy of your CORI using the online iCORI Service
Who Gets to See What?
All Employers have “Standard Access” to CORI:• All pending criminal charges• All misdemeanor convictions for 5 years• All felony convictions for 10 years• All convictions for murder, voluntary
manslaughter, involuntary manslaughter & sex offenses
• Offenses adjudicated as adult while under 17
Required 1 Access
• All pending criminal charges• All misdemeanor convictions and all felony
convictions from 18th birthday• All convictions for murder, voluntary
manslaughter, involuntary manslaughter & sex offenses
• Offenses adjudicated as adult while under 18
Required 2 Access
• Non-conviction information• All pending criminal charges• All misdemeanor convictions and all felony
convictions from 18th birthday• All convictions for murder, voluntary
manslaughter, involuntary manslaughter & sex offenses
• Offenses adjudicated as adult while under 18
Required 3 Access
• Non-conviction information juvenile and adult• All pending criminal charges• All misdemeanor convictions and juvenile
delinquency adjudications• All convictions for murder, voluntary
manslaughter, involuntary manslaughter & sex offenses
Required 4 Access
• Non-conviction information juvenile and adult• All pending criminal charges• All misdemeanor convictions and juvenile
delinquency adjudications• All convictions for murder, voluntary
manslaughter, involuntary manslaughter & sex offenses
Information regarding sealed offenses
Due Process
If an employer has obtained criminal history information about an applicant, regardless of the source, he or she must provide the history to the applicant prior to any questioning about it
Violations
Civil (Criminal Record Review Board):• First $1,000• Second $2,500• Third or Subsequent $5,000Criminal (By referral):• I year HOC & up to $5,000• Juvenile violation 1 year HOC & up to $7,500• Businesses Max $50,000 or $75,000 (juvenile)
Housing
• Public housing authorities/government housing agencies that oversee any federal or state-funded public or subsidized housing REQUIRED 1
• Property management companies operating public or subsidized housing (also called multifamily subsidized housing) REQUIRED 1
• Property management companies with market-rate housing STANDARD
• Private landlords STANDARD• Real estate agents STANDARD• Landlords renting to subsidized housing voucher holders
STANDARD
Why Should I Get My CORI?
• Check for mistakes
• To seal your criminal records
• Prepare for job interviews
How Do I Get a Copy of My CORI?
By Mail: Dept. of Criminal Justice Information Services200 Arlington Street, Suite 2200Chelsea, MA 02150
Online:https://icori.chs.state.ma.us/icori/resources/help/WebHelp/index.htm
What Do I Need to Get My CORI?
Personal CORI Request Form:http://www.mass.gov/eopss/docs/chsb/personal-access-form-v2-20121228.pdf
Fee:$25.00
Indigency
You can get your CORI report for free if:• you get TAFDC, EAEDC, SSI,
MassHealth, or Massachusetts Veterans' Benefits
• or if you meet the income limits (125% FPG)
• or if paying the $25 fee for the CORI will cause you hardship
Consumer Report CORI Access
Before a Consumer Reporting Agency can request CORI from the state, a landlord, property management company, and real estate agent must: 1) notify you in writing that a consumerreport may be used in making a decision; 2) have you sign a separate form (separate from the CORI Acknowledgement Form), giving them permission to conduct background screening through such an service
Sealing CORI• All convictions, except for a first time drug possession
conviction, can only be sealed by mail after a waiting period of at least 5 years for a misdemeanor conviction or 10 years for a felony conviction.
• If a case was dismissed or ended with a not guilty finding or a nolle prosequi (the prosecutor dropped the case), it can be sealed by mail after a waiting period or by a judge without any waiting period. A misdemeanor is a crime where you can be punished by a jail sentence of up to 2½ years even if you do not go to jail or serve the maximum jail sentence. A felony is a crime where you can be punished by more than 2½ years in jail even if you do not go to jail or serve the maximum jail sentence.
Commissioner of ProbationOne Ashburton Place, Rm. 405Boston, Ma 02150-1612
Petition to seal:http://www.mass.gov/courts/probation/sealingpetition.pdf
Sealing CORI in Court
A judge in the court that handled the criminal case has the power to seal:
• a first time drug possession conviction where the person did not violate any requirements connected to being on probation or a “CWOF” (continuance without a finding) such as going to drug treatment or doing community service;
• any cases where you were found “not guilty;”• any cases that were dismissed or ended in a nolle
prosequi (a case dropped by the District Attorney) even if you were on probation.
Petition & Motion
•http://www.masslegalhelp.org/cori/forms-folder/court-petition-to-seal-new-may-4-2012-sample.pdf
Correcting CORI Mistakes
If you find a mistake on your CORI, the probation office where the case was heard may be able to correct it. You can also call the Commissioner of Probation at 617-727-5300 for help. In some cases, you may have to file a petition with the court to have your record corrected.
What if I have a Record?The Work Opportunity Tax Credit (WOTC) is a federal tax credit for employers who hire workers from certain hard-to-place target groups. One of the WOTC target groups is ex-felons who were convicted or released from prison within one year of the date of hire. In most cases, the employer is eligible for a tax credit of $2400.
http://www.doleta.gov/business/Incentives/opptax/http://www.mass.gov/lwd/employment-services/one-stop-career-centers/special-programs/wotc-program.html
What if I have a Record?
The Federal Bonding Program is a job hiring incentive program that protects employers from loss resulting from any dishonest acts performed by "at-risk" employees that they hire. The "at-risk" categories include ex-offenders, recovering substance abusers, dishonorably discharged veterans, etc.. http://www.bonds4jobs.com/index.html
Massachusetts General Laws(Sex Offender Registry Board)
• M.G.L., Chapter 6, Sections 178C – 178QRegistration
• M.G.L., Chapter 123A, Sections 1 – 16Commitment
What is the SORB? (Sex Offender Registry Board)
• Administrative agency under the Executive Office of Public Safety
• Established by M.G.L. Chapter 6, Sections 178C-178Q • Regulations: 803 CMR• Began full operations in 2003 after seven years of
litigation• Current SORB members include a psychologist, two
lawyers, a former probation officer, a former state agency budget director, and a victim advocate (2008).
What does the Board do?
• Collects information from offenders and CJ agencies
• Maintains database• Informs FBI , police
and other CJ agencies
• Tracks sex offender compliance
• Disseminates information to public
• Assesses preliminary classification of risk
• Holds hearings on appeal from leveling
• May terminate sex offender status
Who is required to register?A person is required to register with the Board if he
or she: • 1. Resides in or is employed in Massachusetts, or
is a student at a post-secondary school in Massachusetts, AND
• 2. Has been convicted, adjudicated, incarcerated, supervised, or released from SDP status for one or more of the offenses listed on handout on or after 8/1/1981 (or a like violation in another state):
SORB levels• Level One
– Lowest risk of re-offense and degree of dangerousness– Initial and subsequent registrations directly to SORB via US
mail– No info to public
• Level Two– Moderate risk – Passive dissemination (to citizens requesting) at local
police department– Must appear in person at local police dept. to
register/update
SORB levels• Level Three
– Highest risk– Active dissemination by local police department, SORB
website, public media– Must appear in person at local police dept. to
register/update• Sexually violent predator
Residency restrictions
• Federal HUD bans all sex offenders with “lifetime obligation” from HUD funded housing
• NO statewide residency restrictions in MA• Each city or town may establish residency
restrictions by local ordinances • Restrictions based on physical distance of
offender’s residence from location of potential victims
• No evidence that RRs are effective
