State Considers Helping Felons Who 'Paid Their Debt'

CHRISTIAN NOLAN

The Connecticut Law Tribune

12-07-2012

It's no secret that anyone with a felony conviction on their record is going to have a difficult time finding a job.

Someone with a history of violent crime is unlikely to be hired to work with the general public. A person convicted of embezzlement isn't going to get that available accounting job.

But proponents of giving people who have paid their debt to society a second chance say convicted felons deserve an equal opportunity in the hiring process.

Former State Sen. Ernie Newton, convicted in 2006 on corruption charges, recently urged members of the state's Sentencing Commission to recommend to legislators a proposal that would enact certain measures that may help a convict find a job.

"Being an ex-felon is almost discriminatory because everywhere you go the door is closed on you," Newton told the group at a hearing late last month.

While Newton, who wants to get back into politics despite convictions including accepting bribes and stealing campaign funds, may not be the best example of someone deserving a second chance at their job, Sentencing Commission members acknowledge that more can be done to assist convicted felons get back on their feet.

A proposal called "Certificates of Rehabilitation" would enable a judge or the Board of Pardons and Paroles to issue such a certificate stating that the person is rehabilitated since the time of the offense. The certificate wouldn't mandate that the person be hired and wouldn't be issued to all convicted felons getting out of prison. But advocates say it still might help some people restart their lives.

"The thinking is, if we had some sort of a system to give individuals a good housekeeping seal of approval, that would be meaningful to a potential employer to sort of overcome this stigma of being a convicted criminal," said Michael Lawlor, undersecretary of criminal justice for the governor and vice chair of the Sentencing Commission.

Lawlor said the ex-convict would have the certificate to show an employer that "for what it's worth when I got sentenced the judge said I did something wrong but it doesn't affect my ability to do this or that kind of job. That might help someone get over that hump."

For instance, Lawlor said a person convicted of cocaine possession years ago who has since turned their life around might make a really good employee. But that conviction on their record may remove them from consideration.

Lawlor said it's still early on in the process of the Commission considering the proposal but the aim is to eventually have something to present to lawmakers next session. The Commission will consider the proposal at its next meeting Dec. 20.

Thomas Ullmann, New Haven's public defender and also a member of the Sentencing Commission, said he's still undecided on how he feels about specifics in the proposal. However, he does think many convicted felons deserve another chance.

"The few [employers] that do take chances with prisoners are usually pretty well rewarded.," said Ullmann. "They're hard working. They want to help, earn a living. They don't want to be dependent on the state."

Ullmann said the odds of recidivism go up when a person released from prison can't find housing or a job. As a public defender those are the scenarios he sees amongst the defendants that keep coming back into the criminal justice system.

"People that come out (of prison) want to do well," said Ullmann. "They don't want to go back to prison. They want to help their families. The problem is there are all these barriers out there. We need to try to think of creative ways to be more successful at reintegrating people into the community."

In Connecticut, the Board of Pardons and Paroles may issue provisional pardons to help certain convicts get jobs or housing but Erika Tindill noted that such pardons are rarely ever given out.

New York and Illinois have processes currently in place that are similar to the Certificates of Rehabilitation proposal in Connecticut. The certificates remove any bar to a person's employment that is automatically imposed by law because of their conviction.

As is included in the Connecticut proposal, the statutes contain provisions that remove liability against an employer who hires someone convicted of a felony. For instance, if that person, in the course of their job, harms a customer, that victim cannot sue the company for negligence in hiring the ex-convict.

One employment law expert told the Law Tribune that if such a provision removing liability for employers makes its way in the proposal to the Legislature for consideration, the state Trial Lawyers Association would likely oppose it.

According to Daniel A. Schwartz, of Pullman & Comley in Hartford, who has followed this topic for his Employment Law Blog, Connecticut has a law that was passed in 2010 that says state employers cannot conduct background checks until later on in the hiring process when an applicant is deemed qualified. Previously, public employers could screen applicants prior to evaluating their qualifications.

Private employers, meanwhile, remain in the clear.

"For private employers it's one of the relatively few areas where employers have almost unfettered discretion in making their decisions," said Schwartz.

Last April, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance that has suggested a blanket policy against hiring ex-convicts may have a disparate impact on some minority groups "but the EEOC hasn't suggested it's prohibited entirely under Title VII," said Schwartz.

George E. O'Brien, Jr., of Littler Mendelson in New Haven, represents employers in labor matters. O'Brien said felony convicts will likely never become a protected class like race, age, gender and religion. But O'Brien does think more litigation may result, especially if not considering applicants with felony records has a disparate impact on a particular race.

So O'Brien recommends that companies assess each applicant individually rather than a blanket policy stating that all applicants with a felony record will not be considered. "The advice we give people is you really should look at the nature of the offense and the nature of the job and make sure that you assess individually whether the conviction is disqualifying in light of all the circumstances," said O'Brien.

"The fact is, if you've got somebody who comes to you and has a conviction three years ago for embezzlement, there's no chance in hell you're going to hire him," continued O'Brien. "But if you have somebody who's in their 40s and had a shoplifting conviction when they were 18 and has had a clean record since then, you may well say this person's got more positive qualities than the negative ones and they may well be worth hiring."

Lawlor said since the advent of Google, social media and state web sites listing criminal records, it may be futile to try to regulate the hiring practices of private employers when it comes to ex-convicts.

"You can always pass a law, right, but in this day and age, it would be impossible to enforce such a thing," said Lawlor. "You don't have to do a [formal] background check, you can go online and do it yourself."•