Going to law school with a conviction

ABA Journal reported a few weeks ago that Mr. David Powers, one of the top students at St. John's University School of Law, was let go from the school, because his disclosure of an expunged 1999 conviction for drug possession did not include the original charge of sales.  How did the school find out?  When he asked them for a letter of support to pass the NY Bar's moral character examination.  According to a comment (#26) following the story, the school's application asks:

Have you ever, either as an adult or juvenile, been cited, arrested, taken into custody, charged with, indicted, convicted or tried for, or pleaded guilty to the commission of any felony or misdemeanor, or the violation of any law, except minor parking violations, or been the subject of any juvenile delinquency or youthful offender proceeding?  If yes, please explain.  Please note: although a conviction may have been expunged or sealed by an order of a court, it nevertheless should be disclosed.

It starts out as a yes/no question.  Presumably, Mr. Powers answered it in the affirmative.  Presumably, he then indicated that he had an expunged drug possession conviction from 1999, as a way of explaining.  Mr. Powers, I'm sure, thought that this was sufficient to satisfy the call of the question.  The school, on the other hand, did not.

The traditional narrative about "a reformed criminal" says that, once a person truly reforms, s/he will freely and fully own up to his/her past mistake and be completely open about it with others.  The reality is less straightforward than that.  Sure, some will be completely open with others.  But, almost to the last one, they do so because they have since integrated their criminal past into their identity: "I am a reformed ex-felon."  They wear the stigma of a criminal conviction as a badge of experience and wisdom--and a sign of hope--as I do my identity as a former drug addict.  I hit the rock bottom, fell right through it, and then somehow, by the grace of God, made it out alive.  And, invariably, when we're sharing our stories, our audience is those that are fast approaching the bottom themselves.  And, invariably, the message is the same: Brother/sister, I hope you too make it out alive as I have.

But we don't always own up to our past mistakes.  Complete and utter transparency, i.e. surrender of privacy regarding one's past mistake, isn't a prerequisite to true rehabilitation.  Time and time again, in this line of work, I meet people who keep their darkest secrets even from their family and closest friends.  One of my first clients, when we first met, had a 40-year old murder conviction that even his wife did not know about.  Yet, ever since his release from prison, he led an exemplary life, serving others and providing for his family.  He was only the first.  Most of my clients hide their past convictions from just about everyone.  For Pete's sake, haven't we all watched Les Miserables and know the story of Jean Valjean?

Evidence of bias against people with criminal history

You may be familiar with the story of Mr. Beasley, a former X-ray technician at King Drew who was fired last year when the County discovered that he had an old rape conviction. Here is a story from Florida that is eerily similar to what happened to Mr. Beasley here in Los Angeles.

In both, we have a person convicted of a serious crime (a murder in the Florida story), who applies to a job with full disclosure of his criminal history. Then comes a long period of non-event. ("The custodian was never accused of doing anything inappropriate while he worked at the Palm Beach Gardens school.") Boring stuff, really. Just a guy doing his job, providing for his family, and living a life. Then comes the revelation that he has a conviction on his record.

At this point, both the LA Times (along with the County Board of Supervisors) and the Palm Beach Post.com saw a lucky break. "Oh, how lucky are we that this rapist/murdere didn't rape/kill again?" And "we shouldn't have let them work at the hospital/school in the first place!"

So they ignore the long period of non-event, where the guy just, you know, lived his life. That he did not kill or rape anyone isn't some luck or a coincidence or a mircale. It was his damn life for the past decade or two.

And this is the bias we have that eclipses everything else, including decades of a person's good life. The guy has moved on, but we are stuck in his past, judging him by it, from it. It's almost as if we want him to stay in it too.

UPDATE: A similar story from Oregon.

Fear over reason, every time...?

Let's say that an employer kept in check her bias against people with criminal history and purposefully considered the 3-N's to make a reasonable decision whether to hire an applicant with an extensive criminal history. After careful consideration, the employer finds that, although a particular need justifies background check (say, because the position would require interaction with young children), the applicant's criminal history lacks the nexus to warrant denial of his employment.

For 15 years, the employee with a criminal history does a good job, obeys all laws, and is fully "rehabilitated" by any definition of that word. Not even a traffic ticket, as they say. One could even say that the employer's careful consideration 15 years ago has been proven right by the passage of time.

But what if someone else finds that the employee has a criminal history? The fifteen years of no recidivism is thrown out the window, and there is a public outcry of "We were so lucky that the criminal didn't hurt our children!"

It happened earlier this year in Los Angeles, when the LA Times' fear-mongering articles resulted in the massive firing of people with criminal records from the county hospital for no other reason than that they had decades-old convictions.

Today, St. Petersburg Times reports that a 60-year old man may lose his position on the board of a girls softball team because of the revelation that he had been convicted of crimes more than 15 years ago.

Les Miserables anyone?

The 3 N's of the reentry law

In an ideal world, we would not consider a person's criminal record for employment purpose unless (1) a particular need exists, such as vulnerable population and/or sensitive information; (2) the criminal record indicates unfitness for the position; and (3) the finding of unfitness is not negated by evidence of rehabilitation. I call these 3 N's: need, nexus, and negation, respectively.

My argument is simple. If no particular need exists to consider a person's criminal record, why should we even ask that the person disclose his record? And, even if such a need exists because of the particular nature of the job, why do we want to know about the person's criminal history if it has nothing to do with the job? Finally, if the person can show that he is fully rehabilitated, why should we allow his past convictions to get in the way of his new life?

Over the past week in New York, Governor Paterson's reform of the Rockerfeller-era drug laws stirred up a fair amount of controversy for its impact on the nexus part of the equation. In short, the reform allows a judge to seal certain drug-related convictions and prevent an employer from even learning about them--no nexus, no check.

A recent op-ed piece in Daily News strongly criticized this aspect of Governor Paterson's reform, rhetorically asking:

How would you like a four-time convicted drug dealer to care for your grandmother in a nursing home?

Or an extortionist to handle your savings at the bank?

Or a burglar to teach your kids in school?

Or a car thief to watch your baby in day care?

You will notice that these scenarios all invoke the need factor--vulnerable populations such as the elderly and children, and sensitive information such as financial records. But you will also notice that these examples all lack the nexus factor.

What does drug dealing have to do with caring for the elderly in a nursing home? What does extortion have to with working at a bank? What does burglary have to do with teaching kids? And what does theft of automobile have to do with child care?

Nothing.

Unless you think that people with criminal records, no matter what their records, are likely to prey on the vulnerable population, whenever an opportunity for exploitation presents itself. But this is irrational fear, isn't it?