The Background Investigator September 2011 Edition
Volume 11 Number 9 September 2011from Texas Lawyer Precious Daniels is not what youd call ahardened criminal. In 2009, she was arrest-ed for blocking a doorway during a peace-ful protest against a health insurer in Mich-igan — charges that were later dropped. But Daniels claims that single arrest wasenough to prevent her from getting a jobwith the U.S. Census Bureau a few monthslater when the agency ran her namethrough a criminal records database. About 92 million Americans — morethan one in four adults — have some kindof criminal history, according to the U.S.Department of Justice. Whether it was anarrest or a conviction, the charge was for afelony or misdemeanor, the verdict wasguilty or innocent or the person was triedas a juvenile or an adult, the records can allshow up in background-check Article continues on page 3 Buffalo, New York Courthouse PRSRT STD Photograph by Steven Brownstein U.S. POSTAGE PAID PERMIT NO. 164 MORTONGROVE, ILby Steven Brownstein You can help physicians take simple steps to protect themselves Story Continues from becoming subjects of lawsuits or losing sub- on Page 8 stantial revenue.
Las Vegas vide by the Clerks office, of 3 - additional working Fee is $1.00 per Year* covered by this Statute for a fee, and the few sip- days is required to order searched per Name. Cus- must pay for research andJustice mple (?) rules that follow: and deliver these files to tomers should specify the documents. These feesCriminal Court the Clerks Office. To min- number of years they wish must be provided in ad- (From their Website) imize your waiting period, the record search to cover. vance of the request.Jurisdiction we suggest you send a FAX Due to Nevada record re-by Steven Brownstein Criminal Case Record in- request listing the Defend- tention standards, once a Please be aware, if the formation is available ei- ant Name, Case Number, criminal case is closed the records are being used for Las vegas Justice Court is ther in person or by mail. and type of documents you information is retained a legal purposes, you maythe court of first instance need. If you provide a tele- maximum of TEN (10) wish to have the courtfor misdemeanors and traf- You may obtain records in phone number or FAX YEARS. Therefore, rec- "Certify" the documents asfic offenses in Las Vegas person from the Las Vegas number, the court will noti- ords from closed cases old- "true and correct copies of(Clark County). Justice Court Clerks Of- fy you when the documents er than TEN (10) CALEN- the original". fice, 2nd Floor, Regional are available. The Clerks DAR YEARS may not be Some misdemeanors are Justice Center, 200 Lewis Criminal Office Customer available. Fee payments are requiredheard at the Clark County Avenue. Customer hours Service Division FAX for document copies andDistrict Court; those that are 8:00 am to 5:00 pm, number is: (702) 671-3175. To ensure complete cover- Certification of Records.are included as lessor of- Monday thru Friday, ex- age of the search, please The Fee for a Certifiedfenses to filed felony charg- cluding holidays: If you have an inquiry re- provide the following infor- Copy of a document ises. garding an arrest or an mation: the Defendants $3.00; and the copying Fee Or you can request them event number, which oc- full name (Last, First, MI); is $ .30 per page. The Clark County District through the mail. Record curred in the City of Las Date of Birth; Social Secu-Court records are available searches requested by mail Vegas, North Las Vegas, rity Number; or other iden- To expedite return of doc-at should be sent to: Las Ve- Henderson, or in an area tifiers. *NOTE: If a specif- uments, we suggest sendingwww.clarkcountycourts.us/ gas Justice Court; Att. outside of the Las Vegas ic time period for the $5.00 to $10.00 by check orAnonymous/default.aspx Criminal Customer Service Township, you must con- search is not given (such as money order for the Fee Division, P O Box 552511, tact courts in those jurisdic- five (5) years), then the full payment. All overpay- Las Vegas Justice Crimi- Las Vegas, NV 89155- tions for information. If TEN (10) YEAR time peri- ments will be refunded withnal Court information can 2511. For faster mail ser- you wish information on an od will be searched. the returned materials.not be found online. vice, please include a self- arrest, or criminal history addressed, stamped enve- information, contact the The Fee payment should Information on the status Just as a sidebar, Las Ve- lope. Metropolitan Police De- be made to the "Las Vegas of Criminal matters is alsogas Justice Court civil cases partment Records Office, Justice Court." Please use available from the Clarkare online. Please allow up to 21 - 30 their phone number is (702) a check or money order for County District Attorneys judicial (working) days for 795-3111. the payment. Do not send Office, (702) 671-2500. If Plus, there are no public a response. cash through the mail. you have an inquiry regard-access computers in the By Statute, customers ing a Bad Check, contactClerks office. Case Files for years prior must pay the required re- Due to Legislative chang- the District Attorneys Bad to 2002 are stored in a search Fee for criminal case es, fees are collected from Check Unit at (702) 671- Instead, a search is pro- warehouse. A MINIMUM record search requests. The non-criminal justice agen- 4701. cies, the general public and inmates according to the fee structure guidelines. Any agency of criminal jus- tice will NOT be charged fees as per Nevada Statute 179A.140. All private cus- tomers (research compa- nies, attorneys, etc.) not Read The Background Investigator online PUBLISHER Steven Brownstein CONTRIBUTORS: Mike Sankey, Les Rosen, Dennis Brownstein, Faheem Ebrahim COVER PHOTOGRAPH: Buffalo, New York Court COVER PHOTOGRAPHER: Steven Brownstein PURPOSE: “Dedicated to pre-employment screenings everywhere” The Background Investigator is published by Steven Brownstein, LLC, PMB 1007, Box 10001, Saipan, MP 96950. Phone: 670-256-7000. Copyright 2011 by Steven Brownstein. Some material in this publication must not be repro- duced by any method without the written permission of the copyright holder.
ligent hiring. According to a re- an Jacqueline Berrien noted at stead, the guidelines call for em- was needlessly restrictive.From cent survey by the Society for the meeting, it costs taxpayers ployers to make individual as- Human Resource Management, $56 billion a year to keep people sessments of ex-cons, taking into EEOC Commissioner StuartJail 92% of employers conduct crimi- locked up. Ex-offenders who account the nature and gravity of Ishimaru shared the concern. nal-background checks some of dont find employment are three the offense, the time passed since "One thing thats been troublingTo the time, and 73% do so for eve- times more likely to return to conviction and the job itself. to me is that so many employersJobless, ry position. prison than those who have jobs. "We recognize the importance to Its not always an easy call. use this in an overbroad fashion, so that it affects all their jobs,continued from "We have to strike a balance individuals of dismantling un- "Obviously youre not going to and all their applicants for jobs,"front page between having a safe workplace necessary roadblocks to employ- hire a convicted embezzler to said Ishimaru, who is a Demo- and giving someone a second ment, if and when arrest and con- work as a bank teller or a child crat. "Are they losing out on chance," said Buena Vista Lyons, viction records are used inappro- molester to work with children, good employees who would do a a Dallas partner at Ford & Harri- priately or unnecessarily," Ber- but for every no-brainer like this, fine job for them?" son who defends businesses in rien said. there are 10 combinations in a labor and employment matters. gray area," said Travis Gemoets,databases that have proliferated "Employers dont want the Of particular concern to the a partner at Jeffer, Mangels, But- Continues on Page 10on the Internet. EEOC to create rigid regulations. EEOC is the effect on minorities. ler & Mitchell in Los Angeles. …If they come up with unrealis- One in 106 white men is current- "You have to look at what some- As employers increasingly use tic standards, its not going to ly incarcerated, compared with one would do in the course andsuch background checks to help anyone, and its not going to one in 36 Hispanic men and one scope of employment."screen prospective workers, the help the economy." in 15 African-American men,practice is creating a minefield of according to Amy Solomon, who For example, Juan Cartagena,employment law issues — and The National Retail Federation, is senior adviser to the assistant president and general counsel ofhas caught the attention of the the National Restaurant Associa- attorney general in the Depart- Latino Justice, cited a pendingU.S. Equal Employment Oppor- tion and 11 other trade groups, ment of Justice Office of Justice case involving a young Latinotunity Commission. On July 26, which together claim to represent Programs. man who worked for an Eckerdthe EEOC held a packed public industries that account for more Pharmacy stocking shelves andmeeting in Washington focusing than 55 million jobs, sent a letter "To me, there will be a dispar- was promoted to supervisor. Buton how the use of background to the EEOC in late July urging ate impact if [employers] are after the drug store chain waschecks adversely affects minori- the agency not to bar criminal going to be using criminal histo- bought by Rite Aid Corp., he wasties, since blacks and Hispanics background checks. "As long as ries," said EEOC Commissioner fired because he had a prior drugare much more likely to have there is workplace violence, Chai Feldblum, a Democrat, at conviction.criminal histories. fraud, theft, and a need to protect the meeting. Under Title VII of vulnerable populations, there will the Civil Rights Act of 1964, an On one hand, a drug store refus- The commissioners hinted that always be a need to review the employment policy may be con- ing to employ someone with athey plan to revise the EEOCs criminal histories of applicants sidered illegal if it has a discrimi- drug conviction sounds logical.20-year-old background-check for certain positions," the letter natory effect — even if the em- But Cartagena argues that theguidelines, a prospect that has stated. "[W]e want the flexibility ployer didnt intend to discrimi- policy is too broad. "Largealarmed the business community to conduct criminal background nate. The counterweight for em- chains are not simple pharma-and triggered fears of burden- checks that are fair and appropri- ployers is to show that the policy cies," he said — theyre moresome new regulations. ate." is a business necessity and has a like variety stores, selling every- "manifest relationship" to the job thing from lawn chairs to frozen Employers argue that they have For the EEOC, the question is: in question. pizza. These were the kinds ofa legitimate need to check out What does fair and appropriate items the man handled — notprospective workers to protect mean? Current EEOC guidelines make drugs. "The pharmacy stockscustomers and co-workers and, it clear that an absolute ban on their own shelves and accountsindeed, that failing to do so could The policy implications are hiring anyone with a criminal for their own inventory," Carta-expose them to lawsuits for neg- profound. As EEOC Chairwom- conviction is unacceptable. In- gena said, arguing that the ban
Cook County, IL How long that will last no cpdock- teens, its nearly 41 percent. In 1996, the number of one knows. et.cp.cuyahogacounty.us/ criminal screenings wasCivil Cases The cases are searchable p_PickSearch.aspx The U.S. Equal Employ- only 51 percent.Online by party, case number, tck- ment Opportunity Commis- et number, or business sion (EEOC) believes that Due to the large increaseby Steven Brownstein name. it’s not by chance that of criminal screenings in EEOC Says: Black unemployment num- less than 20 years, the The Clerk of the Circuit Website: bers are so high. EEOC is investigating howCourt offers on-line access "Your Customer http://220.127.116.11/pa/ the federal government isto the full electronic docket cms/SearchPrompt.php Needs To Be The EEOC considers dealing with employersfor cases filed in the Civil, criminal background who illegally screen outLaw, Chancery, and Do- Fair" checks as a possible con- applicants based on priormestic Relations divisions. Cuyahoga tributing factor to Black arrests or convictions—The Electronic Docket Among all racial groups, unemployment because 92 without investigating theSearch includes infor- County Cases African-American unem- percent of employers con- applicant’s age, relevancemation similar to that found Online ployment hovers at 16.2 duct the screenings on of the criminal record oron the Clerks Public Ac- percent, the highest in the some or all job applicants, seriousness of the crime, ascess terminals located in by Steven Brownstein nation. according to a 2010 Society described under thethe various courthouses. for Human Resources Man- EEOC’s guidelines based The Cuyahoga Common For Black males, its 17.5 agement survey. Continues next page The cases are searchable Pleas Court offers on-line percent, and for Blackby litigant name, case num- access to electronic docketber, or filing date. for cases filed in the Circuit Court. Search Results are limitedto the first 1000 cases. The information found did not include misdemanor That could be rather and lessor cases normallydaunting. found at the Cleveland and other Municipal Courthous- It pays to use a researcher es.in Cook County. Those need to be re-Website: searched separately.http://18.104.22.168/?sec- Felonies are found ontion=CASEINFOPage&CA their results page, as well asSEINFOPage=2400 defendant identifiers. The cases are searchableWill County, IL by name or case number.Cases Online Website:by Steven Brownstein http:// The Clerk of the CircuitCourt offers on-line accessto limited electronic docketfor cases filed in the CircuitCourt. The information seemssimilar to that found on theClerks Public Access ter-minals located in the vari-ous courthouses. Their disclaimer may bedue to the fact that the cas-es might not be uploaded totheir Web Site as quickly asit is entered into their com-puter system. Felonies, misdemeanors,traffic, ordinance viola-tions, and civil cases arefound on their results page,as well as defendant identi-fiers.
Blacks and Hispanics in they may re-offend.”Your Customers light of statistics showingNeed To Be that they are convicted at a So these folks will commit rate disproportionately more crimes if companiesFair, greater than their represen- don’t hire them, but theycontinued tation in the population." will be model employees if corporations do employ them? Yeah, that makeson Title VII of the Civil Hire that Felon, sense.Rights Act of 1964. You Racist! The EEOC needs to aban- The EEOC guidelines reg- A Blog by Amy Ridenour don this misguided guid-ulating employers’ use of ance and let employers re-criminal records dates back ...One the one hand, the sume hiring based on validover twenty years to 1987. EEOC is telling employers, business considerations. “don’t worry, hire crimi- In it the EEOC makes nals, they are contributing America does not have aclear that "an employers members of society.” But crisis of too few regula-policy or practice of ex- on the other hand, an tions. It has a crisis of toocluding individuals from EEOC spokeswoman told few jobs. Perhaps, if weemployment on the basis of the Wall Street Journal, “if got rid of some of the for-their conviction records has ex-offenders are not given mer, we could have more ofan adverse impact on jobs the chances are that the latter. XR2 POINT TO POINT SERVICE Criminal Search NO DELAYS PUERTO RICO Canada The ‘XR2’ Puerto Rico search is your Provincialinsurance that you are getting the best possible Courtsresults. Criminal Research It is proven that police searches in Puerto Ri-co can contain more than 50% more missed Call 1-866-909-6678hits than the XR2. The XR2 signifies a new plateau of search re-sults never before heard of. And no one else but Straightline offers theXR2. or anything similar. Shouldn’t you be offering your clients thebest? Call 1-866-909-6678 Or Fax 1-866-909-6679 Straightline International Alberta Nova Scotia British Columbia Ontario Manitoba Prince Edward Islands New Brunswick Quebec New Foundland Saskatchewan Northwest Territories Yukon Territories
identify and highlight ways ing employment decisions to ensure accuracy. The one keep their business running Les Rosen’s in which arrest and convic- – including conflicting laws quick fix that would help and provide jobs in a reces- Corner tion records have been used – and urged the Commis- employers and job appli- sion can ill afford to hire appropriately and current sion to consider these con- cants is to make the rule in unsafe, unfit, dangerous orA monthly column legal standards. The EEOC straints on businesses in California where a criminal dishonest people. “I am not By Lester Rosen, has already issued written deciding whether to pursue record cannot be reported sure that even the EEOC Attorney at Law policy guidance regarding litigation in certain cases. unless it has been con- has hired a person with a the use of arrest and con- Noting the unreliability of firmed to be accurate and criminal record,” says viction records in employ- criminal record databases, up to date, which normally Rosen. “When you are not ment and the meeting was the EEOC was warned requires reconfirmation the actually running a business, an opportunity to “learn about the proliferation of courthouse, a nationwide or meeting payroll, it is about the practical ways online companies offering rule.” easy to become a Monday employers have been able “instant” background morning quarterback and to balance business con- checks that generate reports In addition, Rosen said try to shift the solution to cerns with the need to en- that often contain inaccu- some of the meeting’s testi- social ills on employers al- sure that employment prac- rate or incomplete infor- mony seemed to lack real ready stressed by a reces- tices are fair and non- mation and rarely any de- world experiences where sion.” discriminatory,” according tails about criminal record employers that are trying to to EEOC Chair Jacqueline information. A. Berrien. Attorney Lester Rosen,Equal Employment Some in the meeting com- CEO of EmploymentOpportunity mented that removing arbi- Screening Resources trary bars to hiring people (ESR), commented on theCommission Holds with arrest and conviction EEOC press release for theMeeting on Use of records improves job avail- meeting. “It is a valid pointCriminal Records for ability and lowers crime that the proliferation ofEmployment Screen- and social costs, and also cheap and instant onlineing Background urged employers to develop databases can have a higherChecks and implement a degree of inaccurate results. “responsible business plan” However, the speakers did The Equal Employment and overcome “fears, biases not distinguish betweenOpportunity Commission and hiring challenges” in professional background(EEOC) – the agency of the order to facilitate hiring screeners and cheap onlineUnited States Government people with arrest and con- data websites,” says Rosen,that enforces federal laws viction records. author of ‘The Safe Hiringprohibiting employment Manual,’ the first compre-discrimination – held a Others in the meeting de- hensive guide to employ-meeting Tuesday, July 26, tailed to the EEOC the con- ment screening. “A real2011 focusing on the use of fusing and often contradic- background screening firmcriminal records by em- tory pressures on business- is obligated under the Fairployers for employment es when using arrest and Credit Reporting Act toscreening background conviction records in mak- take a number of measureschecks, according to theEEOC press release‘Striking the Balance Be-tween Workplace Fairnessand Workplace Safety.’ Atthe meeting, the Commis-sion was told by expertsthat employers refusing tohire people with arrest andconviction records evenyears after they have com-pleted their sentences maycause recidivism and highersocial services costs, butalso that businesses faceconfusing and conflictinglaws when using sometimesunreliable arrest and con-viction records in makingemployment decisions. The meeting – part of aseries convened by theEEOC to examine the im-plications of various hiringpractices – was designed to
by the U.S. Dept. of Health status for exclusion is rela- news that notorious child- Fees Act. Of the 1,086 indi-Background and Human Services tively simple and there are molester Graham James viduals and organizationsChecks For The Centers for Mediacre and had received a pardon, and that responded, only 12 Medicaid Services (CMS). that Karla Homolka would were in favour of raisingThe Medical soon be eligible to apply. the fee. 98% said the pro-Industry Additionally, the govern- The New Cost posal was "appalling",continued from Page 1 ment may impose a civil Of Canadian In its efforts to deal quick- "outrageous", monetary penalty of up to Criminal ly with a perceived gap in "preposterous", "downright $10,000.00 for each item or the law, the Harper govern- criminal", and a "cash service furnished during the Pardons ment has again passed leg- grab." They said that the Obviously, these steps in- CMS exclusion period. By Paula Mallea islation which will adverse- new fee would affect dis-clude conducting back- ly affect thousands of of- proportionately the poor,ground checks of staff and Considering this prohibi- The Conservative govern- fenders needlessly. From disadvantaged, and margin-other physicians. tion, many physician prac- ment, with the collabora- introduction to royal assent, alized. Nonetheless, the tices hire excluded individ- tion of opposition parties, the new procedure for ob- government is forging It is not, at least to us in uals. hastily passed a piece of taining pardons became law ahead.the employment screening legislation (Bill C-23A) last in 49 days.industry, common Surprsing as that is, it is a year which makes it more 4.2 million Canadiansknowledge that no federal money make for us. difficult for offenders to The new law sets out have criminal records. Mosthealth benefit payments are obtain a pardon for their longer eligibility dates for people who apply for par-permitted for services fur- Checking an employees offences. This was the gov- offenders, and makes it dons do so in order to get anished by persons excluded or physicians background ernments response to the much harder to convince job. Offenders who have no the National Parole Board job, or have a low-paying that a pardon should be job, will not be able to af- granted. As a consequence, ford the application pro- it will now take much long- cess, and so they will not er to process each applica- be able to improve their tion. The government thus circumstances. This is needs to increase the NPBs Catch-22 writ large. budget. It proposes to re- cover the costs by charging The government says that a higher fee for applica- $631 is what it costs to pro- tions. cess a pardon application. The government has not The Harper government is made public the report that about to raise the cost of contains the cost break- obtaining a pardon to $631 down or the rationale for from $150. Yet when the the new fee. The govern- fee was raised from $50 to ment also takes the position $150 last year, one person that offenders should pay who helps offenders obtain for their own applications, pardons said it was "earth- and not the taxpayer. Yet shattering for hundreds of the government knows par- our clients." Quadrupling dons are an essential com- the new fee will ensure that ponent of rehabilitation. very few offenders can af- Leaving aside the humani- ford to apply. tarian aspects, the govern- ment must know that peo- For most offenders, ob- ple will not be able to con- taining a pardon is abso- tribute to the economic lutely essential in order to productivity of the nation if obtain housing and employ- they are saddled with crimi- ment. These are necessary nal records. components for the rehabil- itation and reintegration of Bill C-23 is a mean- offenders when they have spirited law. It will keep served their sentences. thousands of former of- Even Public Safety Minis- fenders from obtaining par- ter Vic Toews agrees: "I dons, a process which used certainly believe in the con- to be straightforward, af- cept of pardons, theyre an fordable and sensible. Lest absolutely essential part of the reader think that par- the rehabilitation of indi- dons are being granted to viduals." violent, repeat offenders, it is important to point out Mr. Toews engaged the that 38.6% of pardons public in a short consulta- granted in the last 10 years tion process about raising went to victimless offend- the fees, as he is required to ers: impaired driving, driv- do under the federal User ing over 80, drug offences
property offences: theft, 247,438 people obtained this necessary in order to Depts.Office of the Inspec-The New Cost break and enter and theft, pardons. Now all applicants keep Karla Homolka from tor Generals Exclusion ListOf Canadian theft under $1,000 and mis- will have to go through a obtaining a pardon? (http://oig.hhs.gov/fraud/ chief. Only 12% went to longer and more expensive readily available sources of exclusions.asp) and thePardons, continued offenders who were con- process, with less likeli- information to you to General Service Admin- victed of assault. hood of success. Many of search. istrations Excluded Partiesand failing to appear in them will not even be able List Systemcourt. About 50% went to In the past 10 years, to start the process. Was all These include the Health (www.epls.gov) These lists are updated constantly and provide enough information to de- termine if a candidate has been excluded. No Unemployed Need Apply (NUNA) If you are employed, chances are you have not heard of NUNA. However, if you are ac- tively seeking a job and have been doing so for a while, you are probably familiar with the phrase “No Unemployed Need Apply.” This is a standard that many businesses are adopt- ing and simply means they will not hire an applicant who is not currently em- ployed or has recently been laid off. It’s no secret that compa- nies prefer not to hire workers who have gaps in their employment, as it of- ten signals that something about the applicant is unde- sirable to other companies. In fact, it’s not difficult to find companies on various job boards that post their preference for candidates who are currently em- ployed. The question many have for this practice, however, is can companies legally do this?
Line Up At the lines at the Jefferson Needless to say, taxpayers tion law takes effect Sep- A provision of the law County Courthouse for eve- don’t like it. tember 1 and county work- says "Any person enteringJefferson ryday services, such as car ers believe it could have an into a business transactionCounty, AL tag renewals, are already "My legs. My back. I effect on service at the or attempting to enter into a too long. Now with the dont like staying in those courthouse, preventing peo- business transaction withCourthouse forthcoming illegal immi- lines," Tracy Sanchez said. ple from conducting busi- this state or political subdi- gration law, those lines ness online. vision of this state shall beMany would argue that could grow even longer. Alabama’s new immigra- required to demonstrate his or her United States citizen- ship." This means people can no longer apply for car tags or drivers licenses online be- cause they won’t be able to prove their citizenship. "I dont think we have enough employees at the courthouse to do that,” Gre- ta Hogg said. “Thats going to be a prob- lem.,’ he added. "Our lines are going to get longer and longer, and its unnecessary,” county com- missioner George Bowman said. “One of the purposes of automation is to shorten the lines." At the time of publication, Commissioners were hop- ing for a special legislative session, or for a federal court to order an injunction to prevent the law from go- ing into effect. NO DELAYS Not a Police Data Base Search Canada Provincial Courts Criminal Research Call 1-866-909-6678 Or Fax 1-866-909-6679 Straightline International
asking about old convic- tions, especially in the fi- sued temporary staffing District Court for theFrom Jail To tions. nancial services, child care,company Peoplemark Inc. Southern District of NewJobless health care and transporta- in Michigan federal court York, the U.S. Census Bu-Contimued from page 3 Solomon of the Justice tion industries — re- for allegedly refusing to reau, as a precondition of Department cited a study strictions that go all the hire any person with a employment, required near-One impetus for the EEOC on the "point of redemp- way down to local rules for criminal record. The EEOC ly all job applicants to pro-to update its guidelines tion" — when a person licensed barbers. named 286 so-called vic- vide within 30 dayscomes from the U.S. Court with a prior arrest becomes tims of the policy — except "official court documenta-of Appeals for the 3d Cir- no more likely than mem- The EEOC guidelines do it turned out that 22% of tion" for any and all arrests,cuit. In a rare appellate de- bers of the general popula- not have the force of law — them had in fact been hired regardless of whether acision on the use of crimi- tion to commit another theyre most useful for by the company despite conviction resulted, the na-nal-background checks, the crime. The study found the helping companies avoid their felony records. "The ture of the offense or whencourt in 2007 complained point exists between three being sued. Overall, litiga- complaint turned out to be it took place. Among thethat the EEOCs guidelines and eight years after release tion over criminal back- without foundation from applicants was Preciouswere too vague to be of from jail, depending on the ground checks has been the beginning," wrote Mag- Daniels, who was told bymuch use. severity of the crime and scant, though theres been a istrate Judge Hugh Bren- her local court that there the persons age. recent uptick in activity. neman Jr. was no record of her arrest The plaintiff in the case, in the health care protestDouglas El, claimed that "Should [employers] just Lawyers are watching Peoplemark was repre- since the charges werethe Southeastern Pennsyl- stop asking…at some EEOC v. Freeman Cos., sented by Barris, Sott, dropped. Nonetheless, Dan-vania Transportation Au- point?" Ishimaru said. pending in U.S. district Denn & Driker in Detroit iels, who is black, was dis-thority improperly disquali- "Theres a time at which its court in Maryland, which and Southern firm Baker, qualified for a job with thefied job applicants because no longer relevant statisti- challenges the use of crimi- Donelson, Bear-man, Cald- census.of prior convictions. El, cally," Solomon replied. nal-background checks, as well & Berkowitz.who drove a bus, was fired well as the use of credit According to the com-when his employer learned But George Washington checks, as a screening tool The biggest pending case plaint, the requirementof his 40-year-old convic- University Law School pro- for new hires. — what plaintiffs lawyer eliminated 93% of appli-tion for second-degree mur- fessor Stephen Saltzburg Adam Klein, a partner at cants with criminal histo-der. argued that this would be of Another recent effort by Outten & Golden in New ries — about 700,000 peo- little practical use. When the EEOC to challenge a York, calls "the megatsuna- ple — who couldnt find The court expressed people are released from companys criminal back- mi of background check their records or submit"reservations" about the jail, he said, "They need ground policy ended in hu- cases" — is one against the them quickly enough, ortransportation authoritys jobs now. You cant tell miliation for the agency, federal government, chal- who just gave up. For thepolicy, but ruled against El them to wait three or four which was hit with lenging the hiring policies few who did send them in,because he didnt hire an years and if you have a $750,000 in attorney fees used for the 2010 census. they foundexpert witness and couldnt clean record, great, because and court costs in March.rebut the defenses expert if they cant get a job, After a three-year investi- According to the com- Continues next pagetestimony that someone theyre not going to have a gation, the EEOC in 2008 plaint filed last year in U.S.who committed a violent clean record."crime once is more likely todo so again, no matter how Some lawyers fear themuch time has passed. agency going forward may tell employers not to ask The court complained that about criminal history inthe EEOCs guidelines dont initial job applicationsexplain how employers are (though they can ask latersupposed to consider the in the hiring process). Suchnature and gravity of the "ban the box" rules are inoffense in crafting any place in the states of Mas-bright-line policy on crimi- sachusetts and Hawaii, plusnal convictions, nor do they cities such as Philadelphia.address whether an em-ployer can decide that cer- Its not a popular optiontain offenses (like murder) with defense-side employ-are serious enough to war- ment lawyers, who say itrant a lifetime ban on being places an extra burden onhired. "The EEOCs guide- employers. "Theyre invest-lines are not entitled to ing resources in interview-great deference," wrote ing people who would notJudge Thomas Ambro for be considered," said Susanthe unanimous panel. "The Lessack, a partner in thepolicy document itself does Berwyn, Pa., and Philadel-not substantively analyze phia offices of Pepperthe statute." Hamilton. What new EEOC guide- At the same time, therelines might look like is not are also thousands of feder-clear, but one option dis- al and state restrictions bar-cussed at the meeting was ring employers from hiringbanning employers from people with certain convic-
From Jail To re-Jobless, Look Voted #1Continued from previous page LAKE,IL Belowvirtually all available posi-tions had already been COUNTYfilled. quests will uncover." COURTThe plaintiffs allege thatthe policy violated Title RECORDSVII. If the case is certifiedas a class, Klein sees poten- CALLtial for hundreds of millionsof dollars in damages. Still, the case is an anoma- 1-866-909-6678ly. As Klein noted, its"very difficult as a privatelawyer to litigate these cas-es.…The guidance be-comes critical."ACLU Goes ToWar With Police The American Civil Lib-erties Union is bringing itsheavy artillery to bear onthe mobile location privacydebate. The civil advocacy grouphas coordinated 34 of itsoffices to send 375 publicrecords requests to policeand law enforcement agen-cies across the nation, re-questing comprehensiveinformation about how po-lice obtain and use cell-phone locations and otherInternet data to hunt crimi-nals. "All too often, the govern-ment is taking advantage ofoutdated privacy laws toget its hands on this valua-ble private information bydemanding it without awarrant," the ACLU said ina statement on its website."The public has a right toknow how and under whatcircumstances their locationinformation is being ac-cessed by the government –- and that is exactly whatwe hope our information
Australias New Ms Burch says there will now be a final round ofBackground community consultationCheck Laws over the next month. A new scheme to provide Can Lawyersmore thorough security Get Anychecks for those workingwith children and vulnera- Dumber?ble adults will be intro-duced in the ACT next Lawyer: "Do you knowyear. how far pregnant you are now?" The Government hasreached agreement with the Witness: "Ill be threemental health and drug and months on November 8."alcohol sectors to imple-ment the new laws over six Lawyer: "Apparently, then,years. the date of conception was August 8?" Community Services Min-ister Joy Burch says the Witness: "Yes."new scheme will bring uni-form standards to back- Lawyer: "What were youground checks. doing at that time?" "All services to childrenand vulnerable Canberranswill have the same check-ing process. Also part ofthis is the issue of a card soworkers will have a clear-ance card, a suitability card,that they can transfer re-gardless of what job theyrein," she said. "Volunteers form a keypart of work across ourcommunity. So volunteerswill also be issued with acard and there will be nocharge for that card for vol-unteers." The mental health anddrug and alcohol sectorshad previously been reluc-tant to move to the newscheme because of con-cerns on how it would im-pact on employees whohave lived experience. "What weve done withthis is make sure theres acommon assessment andwe will phase in this check-ing system over a couple ofyears," Ms Burch said. "The drug and alcohol andmental health sector willcome in at the latter part ofthis so all the systems willbe very clear and transpar-ent when those workforceare checked."
As Criminal dramatically expanded its zen behavior now potential- deserve the punishment away from the nightmare of authority and reach. ly subject to federal crimi- they get. a federal indictment."Laws Proliferate, nal control has increased inMore Are As federal criminal stat- astonishing proportions in Roscoe Howard, the for- Last September, retired utes have ballooned, it has the last few decades." mer U.S. Attorney for the race-car champion BobbyEnsnared become increasingly easy District of Columbia, ar- Unser told a congressionalBy Gary Fields and John R. for Americans to end up on A Justice spokeswoman gues that the system "isnt hearing about his 1996 mis-Emshwiller the wrong side of the law. said there was no quantifia- broken." Congress, he says, demeanor conviction for Many of the new federal ble number. Criminal stat- took its cue over the dec- accidentally driving a Eddie Leroy Anderson of laws also set a lower bar for utes are sprinkled through- ades from a public less tol- snowmobile onto protectedCraigmont, Idaho, is a re- conviction than in the past: out some 27,000 pages of erant of certain behaviors. federal land, violating thetired logger, a former sci- Prosecutors dont necessari- the federal code. Current law provides a Wilderness Act, while lostence teacher and now a fed- ly need to show that the range of options to protect in a snowstorm. Though theeral criminal thanks to his defendant had criminal in- There are many reasons society, he says. "It would judge gave him only a $75arrowhead-collecting hob- tent. for the rising tide of laws. be horrible if they started fine, the 77-year-old racingby. Its partly due to lawmakers repealing laws and taking legend got a criminal rec- These factors are contrib- responding to hot-button those options away." ord. In 2009, Mr. Anderson uting to some unusual ap- issues—environmentalloaned his son some tools plications of justice. Father- messes, financial machina- Still, federal criminal laws Mr. Unser says he wasto dig for arrowheads near and-son arrowhead lovers tions, child kidnappings, can be controversial. Some charged after he went toa favorite campground of cant argue they made an consumer protection—with duplicate existing state authorities for help findingtheirs. Unfortunately, they innocent mistake. A lobster calls for federal criminal criminal laws, and others his abandoned snowmobile.were on federal land. Au- importer is convicted in the penalties. Federal regula- address matters that might "The criminal doesnt usu-thorities "notified me to get U.S. for violating a Hondu- tions can also carry the better be handled as civil ally call the police fora lawyer and a damn good ran law that the Honduran force of federal criminal rather than criminal mat- help," he says.one," Mr. Anderson recalls. government disavowed. A law, adding to the legal ters. Pennsylvanian who injured complexity. A Justice Department There is no evidence the her husbands lover doesnt Some federal laws appear spokesman cited the age ofAndersons intended to face state criminal charg- With the growing number picayune. Unauthorized use the case in declining tobreak the law, or even es—instead, she faces fed- of federal crimes, the num- of the Smokey Bear image comment. The U.S. Attor-knew the law existed, ac- eral charges tied to an inter- ber of people sentenced to could land an offender in ney at the time said he did-cording to court records national arms-control trea- federal prison has risen prison. So can unauthorized nt remember the case.and interviews. But the law, ty. nearly threefold over the use of the slogan "Give athe Archaeological Re- past 30 years to 83,000 an- Hoot, Dont Pollute." Some of these new federalsources Protection Act of The U.S. Constitution nually. The U.S. population statutes dont require prose-1979, doesnt require crimi- mentions three federal grew only about 36% in The spread of federal stat- cutors to prove criminalnal intent and makes it a crimes by citizens: treason, that period. The total feder- ues has opponents on both intent, eroding a bedrockfelony punishable by up to piracy and counterfeiting. al prison population, over sides of the aisle, though principle in English andtwo years in prison to at- By the turn of the 20th cen- 200,000, grew more than for different reasons. For American law. The absencetempt to take artifacts off tury, the number of crimi- eightfold—twice the Republicans, the issue is of this provision, known asfederal land without a per- nal statutes numbered in the growth rate of the state partly about federal intru- mens rea, makes prosecu-mit. dozens. Today, there are an prison population, now at 2 sions into areas historically tion easier, critics argue. estimated 4,500 crimes in million, according the fed- handled by states. For Faced with that reality, the federal statutes, according eral Bureau of Justice Sta- Democrats, the concerns A study last year by thetwo men, who didnt find to a 2008 study by retired tistics include the often lengthy Heritage Foundation andarrowheads that day, plead- Louisiana State University prison sentences that feder- the National Association ofed guilty to a misdemeanor law professor John Baker. Tougher federal drug laws al convictions now pro- Criminal Defense Lawyersand got a years probation account for about 30% of duce. analyzed scores of pro-and a $1,500 penalty each. There are also thousands people sentenced, a decline posed and enacted new"We kind of wonder why it of regulations that carry from over 40% two decades Those expressing con- laws for nonviolent crimesgot took to the level that it criminal penalties. Some ago. The proportion of peo- cerns include the American in the 109th Congress ofdid," says Mr. Anderson, laws are so complex, schol- ple sentenced for most oth- Civil Liberties Union and 2005 and 2006. It found of68 years old. ars debate whether they er crimes, such as firearms Edwin Meese III, former the 36 new crimes created, represent one offense, or possession, fraud and other attorney general under a quarter had no mens rea Wendy Olson, the U.S. scores of offenses. non-violent offenses, has President Ronald Reagan. requirement and nearlyAttorney for Idaho, said the doubled in the past 20 Mr. Meese, now with the 40% more had only amen were on an archeologi- Counting them is impossi- years. conservative Heritage "weak" one.cal site that was 13,000 ble. The Justice Department Foundation, argues Ameri-years old. "Folks do need to spent two years trying in The growth in federal law cans are increasingly vul- Some jurists are disturbedpay attention to where they the 1980s, but produced has produced benefits. Fed- nerable to being "convicted by the diminished require-are," she said. only an estimate: 3,000 fed- eral legislation was indis- for doing something they ment to show criminal in- eral criminal offenses. pensable in winning civil never suspected was ille- tent in order to convict. In a The Andersons are two of rights for African- gal." 1998 decision, federal ap-the hundreds of thousands The American Bar Asso- Americans. Some of the pellate judge Richard Pos-of Americans to be charged ciation tried in the late new laws, including those "Most people think crimi- ner, a noted conservative,and convicted in recent 1990s, but concluded only tackling political corruption nal law is for bad people," attacked a 1994 federal lawdecades under federal crim- that the number was likely and violent crimes, are rela- says Timothy Lynch of Ca- under which an Illinois maninal laws—as opposed to much higher than 3,000. tively noncontroversial and to Institute, a libertarian went to prison for threestate or local laws—as the The ABAs report said "the address significant prob- think tank. People dont re- years for possessing gunsfederal justice system has amount of individual citi- lems. Plenty of convicts alize "theyre one misstep while under a state
More Are Ensnared, In early 1999, federal offi- edly violating Russian law charged him with violating question recently came be- continued cials seized a 70,000-pound after some of his clients the Resource Conservation fore the Supreme Court in shipment after a tip that the shot game from a helicopter and Recovery Act, a 1976 the case of Carol Bond, a load violated a Honduran in that country. In the end, federal law that regulates Pennsylvania woman whorestraining order taken out statute setting a minimum he was acquitted after a handling of toxic waste. is fighting a six-year prisonby his estranged wife. size on lobsters that could Russian official testified The government contended sentence arising out of vio- be caught. Such a shipment, the hunters had an exemp- Mr. Evertson had told fed- lating a 1998 federal chem-He possessed the guns oth- in turn, violated a U.S. law, tion from the helicopter eral investigators he had ical-weapons law tied to anerwise legally, they posed the Lacey Act, which hunting ban. Still, legal abandoned the chemicals. It international arms-controlno immediate threat to the makes it a felony to import bills totaling more than also said the landlord of the treaty. The law makes it aspouse, and the restraining fish or wildlife if it breaks $860,000 essentially wiped Idaho storage site claimed crime for an average citizenorder didnt mention any another countrys laws. out his retirement savings, he was owed back rent and to possess a "chemicalweapons bar. Roughly 2% of the seized Mr. Kern says. couldnt find the inventor— weapon" for other than a shipment was clearly un- allegations Mr. Evertson "peaceful purpose." The "Congress created, and the dersized, and records indi- Justice Department offi- disputed. statute defines such a weap-Department of Justice cated other shipments car- cials declined to comment on as any chemical thatsprang, a trap" on a defend- ried much higher percent- on Messrs. Kern and Once the government could harm humans or ani-ant who "could not have ages, federal officials said. Schoenwetter. deemed the chemicals mals.suspected" he was commit- "abandoned," they becameting a crime, Judge Posner In an interview, Mr. One area of expansion has "waste" and subject to Ms. Bonds criminal casewrote. Schoenwetter, 65 years old, been environmental crimes. RCRA. He was charged stemmed from having said he and other buyers Since its inception in 1970, under a separate federal law spread some chemicals, in- Another area of concern routinely accepted a per- the Environmental Protec- with illegally moving the cluding an arsenic-basedamong some jurists is the centage of undersized lob- tion Agency has grown to chemicals about a half-mile one, on the car, front-doorcriminalization of issues sters since the deliveries enforce some 25,000 pages to the storage site. handle and mailbox of athat they consider more ap- from the fishermen inevita- of federal regulations, woman who had had anpropriate to civil lawsuits. bly included smaller ones. equivalent to about 15% of "If I had abandoned the affair with her husband.In December, the Ninth He also said he didnt be- the entire body of federal chemicals, why would I The victim suffered a burnCircuit Court of Appeals, lieve bringing in some un- rules. Many of the EPA have told the investigators on her thumb.which is considered liberal, dersized lobsters was ille- rules carry potential crimi- about them?" said Mr.overturned the fraud con- gal, noting that previous nal penalties. Krister Evertson in an interview. In court filings, Ms.viction of a software- shipments had routinely Evertson, a would-be in- He added that he spent Bonds attorneys argued thecompany executive accused passed through U.S. Cus- ventor, recently spent 15 $100,000 on the material chemical-weapons law un-of helping to issue false toms. months in prison for envi- and always planned to re- constitutionally intrudedfinancial statements. The ronmental crimes where sume his experiments. into what should have beengovernment tried "to stretch After conviction, Mr. there was no evidence he a state criminal matter. Thecriminal law beyond its Schoenwetter and three co- harmed anyone, or intended Prosecutors emphasized state didnt file charges onproper bounds," wrote the defendants appealed, and to. the potential danger of hav- the chemicals, but underCircuits chief judge, Alex the Honduran government ing left the materials for state law she likely wouldKozinski. filed a brief on their behalf In May 2004 he was ar- two years. "You clean up have gotten a less harsh saying that Honduran rested near Wasilla, Alaska, after yourself and dont sentence, her attorneys Civil law, he said, is a bet- courts had invalidated the and charged with illegally leave messes for others," said.ter tool to judge "gray area" undersized-lobster law. By shipping sodium metal, a one prosecutor told the ju-conduct—actions that a two-to-one vote, howev- potentially flammable ma- ry, which convicted Mr. Recently, the Suprememight, or might not, be ille- er, a federal appeals panel terial, without proper pack- Evertson on three felony Court unanimously ruledgal. Criminal law, he said, found the Honduran law aging or labeling. counts. Prosecutors said Ms. Bond has standing to"should clearly separate valid at the time of the trial clean-up of the site cost the challenge the federal law.conduct that is criminal and upheld the convictions. He told federal authorities government $400,000. Mr. By distributing jurisdictionfrom conduct that is legal." he had been in Idaho work- Evertson, 57, remains on among federal and state The dissenting jurist, ing to develop a better hy- probation, working as night governments, the Constitu- Occasionally, Americans Judge Peter Fay, wrote: "I drogen fuel cell but had run watchman in Idaho. tion "protects the liberty ofare going to prison in the think we would be shocked out of money. He had the individual from arbi-U.S. for violating the laws should the tables be re- moved some sodium and In a statement, Ms. Olson, trary power," Justice An-and rules of other countries. versed and a foreign nation other chemicals to a storage the Idaho U.S. Attorney, thony Kennedy wrote forLast year, Abner Schoen- simply ignored one of our site near his workshop in said that by leaving danger- the court. "When govern-wetter finished 69 months court rulings." Salmon, Idaho, before trav- ous chemicals not properly ment acts in excess of itsin federal prison for con- eling back to his hometown attended he endangered lawful powers, that libertyspiracy and smuggling. His Robert Kern, a 62-year- of Wasilla to raise money others and caused the gov- is at stake."conviction was related to old Virginia hunting-trip by gold-mining. ernment to spend more thanimporting the wrong kinds organizer, was also prose- $400,000 in clean-up costs. Justice Samuel Alito alsoof lobsters and bulk pack- cuted in the U.S. for alleg- Mr. Evertson said he be- "This office will continue expressed concern aboutaging them in plastic, rather edly breaking the law of lieved he had shipped the to aggressively prosecute" the laws "breadth" by lay-than separately in boxes, in another country. Instead of sodium legally. A jury ac- environmental crimes, she ing out a hypothetical ex-violation of Honduran laws. lobsters from Honduras, quitted him in January said. ample. Simply pouring a Mr. Kerns troubles 2006. bottle of vinegar into a According to court rec- stemmed from moose from Critics contend that feder- bowl to kill someonesords and interviews, Mr. Russia. However, Idaho prosecu- al criminal law is increas- goldfish, Justice Alito said,Schoenwetter had been im- tors, using information Mr. ingly, and unconstitutional- could be "potentially pun-porting lobsters from Hon- He faced a 2008 Lacey Evertson provided to feder- ly, impinging on the sover- ishable by life imprison-duras since the mid-1980s. Act prosecution for alleg- al authorities in Alaska, eignty of the states. The ment."
Texas Man Cant State is unable to make a has been accussed in a fed- guilty in juvenile court to The school calls the girls prima facia case.” eral lawsuit that they failed unspecified charges charges frivoluous."Clear his Name to protect a middle-school (sealed) after the girl wasby Steven Brownstein The District Attorneys girl from being raped, say- raped a second time. Office also argued that the ing the girl "neglected to A Frisco, TX man has complainant has never re- use reasonable means tobeen unable to clear his canted her testimony, there- protect herself."name for over four years. fore the case should not be expunged. The 7th grade special edu- An appeals court has de- cation female student, wascided he has no right to The local judge disagreed raped twice during theseek equitable justice after but has been overruled by course of two school years,a local judge found for the the Texas apellate court. according to the lawsuit.defendant. His record remains. The school told the moth- Though he has never been er that they thought that herfound guilty of any crime, And a job, forget about it. daughter made it all up.he is shackled with a recordhe is unable to clear. Then she was suspended Rape Victim from school for The District Attorney had Gets Expelled "disrespectful conduct" anddismissed the charges after "public display of affec-the State admitted it could From School tion," finally being ex- by Steven Brownsteinnot obtain a guilty plea, pelled.telling the court that, “it has A Missouri school districtbeen determined that the Since then, a boy pleaded