IHSS, Round 2

Governor Schwarzenegger tried to keep people with conviction history out of the care provider industry before, but he was blocked by the courts.  So he's going after it again--this time, in partnership with the LA Times.  A fitting partnership, I must say, given the paper's track record in fear-mongering against people with conviction history.

The current law already prohibits an IHSS recipient from employing her family member through the program if the family member has been convicted of child abuse, elder abuse, or Medicare fraud in the past 10 years.  The law does not care if the family member completely turned his life around, or if he may be the best caregiver for the IHSS recipient.  The 10-year ban is absolute.  Cal. Wel. & Inst. Code section 12305.81.

And the IHSS program is already set up to give the recipients the freedom and duty to screen whom they choose to care for them.  The existing law exempts IHSS agencies from liabilities arising out of the conduct of caregivers they refer to recipients.  Cal. Wel. & Inst. Code section 12301.6(f).

With this setup, individual recipients must follow existing laws on hiring people with conviction history.  For example, under California's Investigative Consumer Reporting Agencies Act (ICRAA), background check companies cannot report convictions older than 7 years.

If the laws change (as proposed by Governor Schwarzenegger) then the Department of Social Services would be exempt from the ICRAA provisions and will consider old convictions too, substituting its judgment for the judgment of recipients as to who is best qualified to provide care for them.

Needless to say, advocates are already working hard to make sure that rational deliberation wins over irrational fear-mongering.  (Thank you, Jessie!)  Here's hoping and praying that California legislators are more level-headed than LA Times reporters.

Kevin Pimentel

I first met Kevin when my law school friends and I started a small free legal clinic in O.C.  He brought with him not only his expertise in family law, immigration, and estate planning but also his invaluable and inspirational approach to serving those in need.  He treated our clients with respect and honesty.  He was never afraid or ashamed to say he didn't know an answer to a question, though his years of experience also gave him the confidence that inspired trust.

I heard this morning that he had passed away last Friday.  It hasn't been that long--not more than 2 weeks--since we last spoke.  It was just one of those phone calls we routinely had--me calling him to ask for help.  I gave him a call to see if he's interested in helping out a now-indigent senior recover some of the money her relatives defrauded out of her through a divorce proceeding.  He did a quick research while we were on the phone and determined that there's a fighting chance for her.  We promised to connect after I discover additional facts.  As I proudly shared with my wife that evening, his calm yet firm response to my request was: "That's not right.  Let's see what we can do to fix that."  The man was moved by a sense of justice and fairness.  I was, and am, proud to call him a friend.

UPDATE:  I went to a public viewing following his funeral service last week, and quite a few APABA members came to show their respect.  And APABA posted an obit for Kevin on their website.  To quote, "Kevin’s death is a tremendous loss for our communities and for APABA.  We will miss him dearly."

"First, they came for sex offenders"

An article by David Rittgers from the Cato Institute, discussing potential implications of the recent Comstock decision by SCOTUS.  I don't agree with them often, but here I do--at least with its concern.  Especially of note:

I responded forcefully that such a system is antithetical to American traditions of due process. Battlefield detention is necessary to incapacitate insurgents and terrorists overseas, and is often employed in lieu of killing them. Broad powers of detention without trial in the criminal context do not make Guantanamo less controversial; they bring it on to our shores and in to our courtrooms. If we have enough information to show that someone is a threat by a preponderance of the evidence in order to detain them, we probably have enough to indict them for conspiracy. One of the reasons that few people turn to political violence in the United States is that the Bill of Rights bars the government from telling the citizenry how to worship, what to think, and what they can say. Generally speaking, you have to actually be a criminal to get charged as one.

SHRM survey & presentation on "Background Checking: Conducting Criminal Background Checks"

I was alerted by a listserv email to a recent study of background check practices among employers, conducted by Society for Human Resource Management (SHRM).  An informative read.  This being a self-reported survey, I'm skeptical how accurately it reflects the reality of employer policy vis-a-vis criminal background check; however, this is the first time I've ever seen any survey of this type, so I'm very much interested in its findings.  Among them are:

1. 73% of all responding ERs conduct background check for everyone, while only 19% do so for selected job candidates;
2. The perceived severity of a crime is highly relevant to whether it will materially impact an applicant's employment prospect (81% finding that it's "very influential" in their decision NOT to extend a job offer);
3. Employee safety (61%) and concern for negligent hiring (55%) are the 2 most important reasons for conducting a background check; and
4. The vast majority of ERs (63%) claim to allow job candidates to explain the results of criminal background check prior to making an adverse decision.

Right away, I notice that, perhaps because of the framing of the survey question, ERs consider the severity of the crime more relevant (81%) than the crime's relevance to the position applied for (73%).  Well, a simple narcotics possession under California Health & Safety § 11360 is a non-reducible straight felony, whereas battery under California Penal Code § 242-243 is most often a misdemeanor.  Well, you tell me who's less likely to be violent just based on the type and "severity" of crime.  To be fair, the existing EEOC guideline on Title VII does mention both the nature and gravity of an offense as a factor to consider.  Still, there's no reason why the increasingly arbitrary felony/misdemeanor distinction in criminal law should dictate employment policies of a private organization.

UPDATE: The right to vote while in prison, Farrakhan v. Gregoire

The 9th Circuit decision overturning Washington State's felon disenfranchisement law based on its disparate impact on people of color, has been ordered for an en banc review, according to Sentencing Law and Policy blog. As previously discussed, the decision is not likely to survive this or the next appellate review by the U.S. Supreme Court. But who knows? I'll be certainly glad to be proven wrong in my prediction.

U.S. Census

Over the last year or so, I've been seeing a steady flow of clients who are denied employment from the U.S. Census Bureau due to their criminal record. There's precious little I can help them with. (Judging by the widespread complaint among attorneys on various reentry listservs, I'm not alone in feeling frustrated by the Bureau's wall of silence.) Nowhere in their communication to the applicants does it show what criteria they're using to disqualify people, whether there's an appeal process to show rehabilitation or lack of nexus between the job and the conviction, or even what the disqualifying offense/arrest is! And all of this, based solely on the FBI background check, known to have over 50% error rate (e.g. mismatched names, records with no disposition, etc.)

Today's NY Times ran an editorial about this very issue (aptly-titled "We can't tell you why") reporting on a class action filed against the Bureau by the lead counsel, Outten & Golden, along with a group of community orgs, which alleges that the Bureau's actions violate Title VII of the 1964 Civil Rights Act. The NY Times editorial explains the concept of Title VII well enough.

The class action complaint alleges that, according to the Bureau's director, Robert Groves, its "concealed policy" is in fact to disqualify people with a prior conviction or pending charge for:

(1) Certain categories of crime, such as murder, sex offenses, robbery, voter fraud, or other crimes that suggest a threat to safety or the integrity of census data, or

(2) Crimes of dishonesty, burglary, theft, or vandalism

Except when the person conclusively demonstrates that he or she does not present a current threat.

Now, I first learned about this "policy" about a month ago from a listserv posting of an attorney who had corresponded successfully (unlike me and many other attorneys who ran into a bureaucratic goose-chase and gave up) with the Bureau. And I just laughed with disbelief. Like I said before, the Bureau does not make this information available to anyone or even hints at its existence in the dismissive termination letters sent to affected applicants. I have a lot of problem with this so-called "policy" itself, but actually following it would be an huge improvement over the present situation.

Anyway, upon learning of this "hidden" policy, I've been advising my clients to act as if it is in fact followed. I'm arguing nexus and negation in all my letters to the Bureau on behalf of my clients. And I'm asking for a hearing or some way to make the case that my clients do not pose any threat to "safety or the integrity of census data." So far, no luck. This is tilling at the windmills par excellence. FYI, this is what President Obama said about reentry and employment while campaigning for presidency.

America is facing an incarceration and post-incarceration crisis in urban communities. Today, nearly 2 million children have a parent in a correctional facility. In the U.S. Senate, Obama has worked to provide job training, substance abuse and mental health counseling, and employment opportunities to ex-offenders. In addition to signing these important programs into law, Barack Obama and Joe Biden will create a prison-to-work incentive program, modeled on the successful Welfare-to-Work Partnership to create ties with employers and third-party agencies that provide training and support services to ex-offenders, and to improve ex-offender employment and job retention rates. Obama and Biden will also work to reform correctional systems to break down barriers for ex-offenders to find employment.

I don't know how he's gonna do all that, if his administration denies even temporary employment to people with decades-old arrests.

Section 8 and crime

I have to leave work in 5 min., so this post will be short.

While doing research into a local housing authority's discretion to grant an exemption to Section 8 applicants with disqualifying criminal records, I came across an article in the Telegraph Herald, entitled Study: Section 8, crime linked, published on 12/6/2009.

The article discussed the result of a study by Alta Vista Research, which found that "Section 8 tenants, compared to other residents, are arrested far more often."

This can be evidence that links poverty and crime, as the article makes the case. Or it can be a reason to question the policing practice at Dubuque, IA. There are multiple ways to interpret this evidence. But how does this piece of evidence, if true, lead to the conclusion that we need to exclude "criminal elements" from Section 8?

By assuming that too many "criminal elements" are receiving Section 8 and that we can separate "criminal elements" from more "deserving" applicants for the benefit somehow--usually through a background check. But this is a flawed assumption. People are not neatly categorizable between the good and the bad. We're mostly just ugly. And no amount of background check can help us separate the three.