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Expungement Presentation – Gang Intervention Conference
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Expungement Presentation – Gang Intervention Conference

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Attorneys from the Foundation, Natasha Buchanan and Mathew Higbee, provided information during two separate breakout session at the Orange County Education Departments Gang Intervention Conference on ...

Attorneys from the Foundation, Natasha Buchanan and Mathew Higbee, provided information during two separate breakout session at the Orange County Education Departments Gang Intervention Conference on April 29, 2011. The conference was attended by approximately 500 leaders in the effort to help reduce crime and help people transition out of gangs.

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Expungement Presentation – Gang Intervention Conference Expungement Presentation – Gang Intervention Conference Presentation Transcript

    • Presented by:
    Visit ContinuingJustice.org or RecordGone.com for more information.
    • 65 Million Americans have a criminal record – that is 1 in 4 adults
    • The FBI will keep a criminal record until a person reaches the age of 110 and the California Department of Justice keeps a criminal record until the person reach the age of 99.
    • Studies show that between 84 and 92 percent of employers conduct criminal background checks on job applicants.
    • Studies show that 80 percent of professional or corporate landlords conduct criminal background checks.
    • The FBI processed 61 million background checks in 2010, up from 20 million in 2005
    • There are more than 1,000 online sources for low cost criminal background checks
    • CONCLUSION: A large portion of the population will have an increasingly difficult time finding employment and housing.
    • THE CONSEQUENCES:
    • Increased crime & unemployment rates
    • Increased government dependency
    • Increased costs of criminal justice system
    • Estimated $57 billon a year in reduced output and services of those with a record.
    • Legislative reforms that expand opportunities for people to clear their criminal record. (CA’s “ expugement ” law has not had significant changes since enacted in the 1930s – Conservative states of UT and NV have more forgiving laws).
    • Legislative reforms to credit reporting and labor law (Background checks are governed by the Fair Credit & Reporting Act and Investigative Consumer Reporting Agencies Act)
    • Educating employers and the public
    • Educating people with records about what they can do now to clear their record.
    • Why is it important to the individual?
      • Eliminates statutory or regulatory bars to employment
      • Helps level the playing field when competing for jobs with those who have no criminal record
      • Expands housing opportunities (safer and less expensive options)
    • Governing Law
      • Person must clear the record in the state (and usually the same court) where the record occurred
      • We will be talking only about California law
    • There are two avenues of available relief for juvenile offenders.
    • The first is Juvenile Record Sealing.
      • If the juvenile was not sent to the California Youth Authority and did not commit specific serious violent offenses, they can seal their juvenile record.
    • Sealing means that juvenile court records, including records of arrest relating to the case, in the custody of the juvenile court and probation officer and any other agencies, including law enforcement agencies, and public officials will be sealed and treated as if they never occurred.
    • The law allows one to legally say that they were not adjudicated or arrested for the matter that was sealed.
    • Juvenile offenders who have reached the age of 18 or if it has been 5 years since the jurisdiction of the juvenile court has terminated.
    • Since the termination of jurisdiction on the matter to be sealed
      • The juvenile has not been convicted of a felony or misdemeanor involving moral turpitude and
      • The juvenile has been rehabilitated to the satisfaction of the court.
    • Certain serious violent offenses committed after age 14 are not eligible to be sealed. (EX: murder, arson, robbery, kidnapping, rape, torture, etc.)
    • If the juvenile was sent to the California Youth Authority and was honorably discharged from the program, they can petition to have the verdict of guilt set aside.
    • Setting Aside A Juvenile Offense means the case is set aside and the juvenile will be released from all penalties and disabilities that resulted from the offense or crime that was committed
    • In addition, the juvenile will no longer be disqualified for employment or occupational licenses.
    • An expungement (or a dismissal) is when a conviction is set aside and dismissed on the record.
    • The court withdraws the plea of guilty and enters in a plea of not guilty and dismisses the case.
    • When an expungement is granted, the individual can legally state that they were not convicted of that crime when they are applying for most jobs or schools.
    • Not currently on probation or parole for any offense.
    • Not sentenced to state prison for this conviction
    • Not currently charged with a crime.
    • In addition, certain offenses are not eligible for dismissal.
      • Any misdemeanor within the provisions of Vehicle Code section 42001(b).
      • Any violation of Penal Code section 286(c), 288,
      • 288a(c), 288.5, or 289(j).
      • A felony under Penal Code section 261.5(d).
    • If the individual did not violate any terms of their probation, they are entitled to have their conviction expunged.
    • If the individual did violate their probation, the court can use its discretion to grant or deny the motion. Therefore, the individual should provide the court with a declaration or other supporting evidence to demonstrate that they are now reformed and rehabilitated.
    • For offenses that were not sentenced to probation, if more than one year has elapsed since the date of conviction and there were no violations within that year, the individual is entitled to have their conviction expunged.
    • What constitutes a violation of probation?
      • Failing to paying fines and fees on time
      • A subsequent conviction while on probation
      • Failing to complete the court ordered programs by the date required by the court.
    • What does the judge look for when deciding if it is the interest of justice to grant a dismissal?
      • The court likes to see that the individual has been reformed or rehabilitated since the offense.
      • It’s up to the court to decide if the conviction should be dismissed, so it is important to give as much helpful information as possible to convince the court that granting a dismissal is in the interests of justice.
    • Describe what life was like at the time of the conviction (Ex. homeless, unemployed, addicted to drugs or alcohol)
    • Describe what steps have been taken to get their life on track (Ex. rehabilitation, schooling, job training)
    • Describe their life now (Ex. Church, supportive family, community involvement)
    • Describe why they need this conviction taken off their record (Ex: it ’s preventing them from getting a job or going to school)
    • Expungement petitions must be filed and completed separately per conviction.
    • The petition is usually filed in the court in which the conviction occurred.
    • Courts require a filing fee of $60.00-$150.00 (Varies by county and level of offense).
    • A fee waiver form is available for those that cannot afford the fee.
    • Generally, expungement petitions can take anywhere from 1-2 months to process from the date they are filed.
    • Certain counties, like Los Angeles County, are taking 3-4 months.
    • Certain felony convictions are eligible to be reduced to a misdemeanor.
    • A “wobbler” is an offense that could have been a misdemeanor or felony at the time of the conviction.
    • If the individual was not sentenced to state prison or given a suspended prison sentence and the offense is a “wobbler,” then one can file with the court to have the felony conviction reduced to a misdemeanor.
    • Thereafter, the felony is deemed a misdemeanor for all purposes.
    • Reducing eligible felony convictions to a misdemeanor is completely up to the judge ’s discretion.
    • Provide the court with as much helpful information to convince the court that the individual is deserving of this relief.
    • A reduction can be filed at the same time as the expungement (using the same petition).
    • A reduction can also be filed even if the conviction has already been expunged.
    • Certificate of Rehabilitation and Pardon
    • Adult convictions that resulted in a state prison sentence cannot be expunged. However, an individual may qualify for a Certificate of Rehabilitation.
    • A Certificate of Rehabilitation is the ultimate statement by a court that the former offender is now an “honest” person of “good character” who is known to “obey the laws of the land.” It tells employers, licensing agencies and potential landlords that they truly have put the past behind them, are rehabilitated to the court’s satisfaction and are ready to reach their potential.
    • It has been seven (7) years since the release from prison or jail, or probation, if the individual was on probation.
    • Resided in California for the past five years. (Certain offenses require a longer residency period)
    • Once a Certificate of Rehabilitation is granted by the Superior Court judge, it is forwarded to the Governor ’s Office as an application for a pardon.
    • Higbee and Associates also works with the Foundation for Continuing Justice.
    • The Foundation for Continuing Justice is a non-profit law firm dedicated to reducing the consequences of a criminal record.
    • www.continuingjustice.org
    • The Foundation for Continuing Justice offers a free service to those who have had their criminal record sealed, reduced or set aside to have this information updated and/or removed from private companies who provide the information for background checks.
    • Applying for a pardon from the Governor’s Office is an important process that is complicated and often confusing.
    • You can visit www.applyforpardon.com
      • This website is easy to use and provides helpful advice from attorneys to simplify the process of applying for a pardon.
      • Plus, there are options for free online help from pro bono attorneys.
    • Additional Free Services Offered By The Foundation
      • www.recordclearing.org
        • A free informational website about record clearing
      • www.pardon411.com
        • A free informational guide for state and federal pardon information
      • www.applyforpardon.com
        • This website is easy to use and provides helpful advice from attorneys to simplify the process of applying for a pardon.
        • Plus, there are options for free online help from pro bono attorneys.
    • Thank you for joining us and thank you to the Orange County Department of Education for allowing us to be here today.
    Visit ContinuingJustice.org or RecordGone.com for more information.