‘Infrastructure’ repair part of criminal justice reform, advocates say

The growing trend toward criminal justice reform will create opportunities for people with criminal records to get second chances and avoid the collateral consequences of a conviction, but slip-ups and faulty policies on the administrative side of things can still cause problems.

Maryland’s recently-passed Justice Reinvestment Act hopes to remove barriers to reentering society, including finding employment, through tools like expungement of certain offenses. If an expungement is not properly reported, however, the record can still come back to haunt someone.

Caryn York, senior policy advocate at the Job Opportunities Task Force, said she gets calls weekly from people who have been denied a job because of a record an employer should not have had access to — an expungement is supposed to erase the existence of a record — or a mistake that associates their name or fingerprint with a crime they didn’t even commit.

York said the errors make the process discouraging and leave many wondering why they bothered going through the proper channels to expunge the record in the first place.

A 2015 report from the Government Accountability Office revealed that though states have improved the records they have on file with the FBI criminal history record check system, outdated information continues to be a concern when a job applicant’s fingerprints are sent for processing.

The use of private companies to conduct criminal history record checks is on the rise because of employer demand and quicker processing time. But those companies can have problems obtaining complete and accurate records, according to the GOA report.

“When a record is expunged, it doesn’t go to the background agencies,” York said.

When people report inaccurate information being returned in a background check, York said JOTF encourages them to gather all the documentation they can to show an employer their record has been expunged or the check has identified a crime committed by a different person.

Reform efforts like the Justice Reinvestment Act will only heighten the need for an administrative process that accurately reflects the legal standing of people who put in the work to have their record cleared, according to Towson solo practitioner Kathleen Cahill.

Provisions in the Justice Reinvestment Act will allow misdemeanors ranging from littering to theft and drug possession to be expunged 10 years from the conclusion of the sentence, including parole, probation or supervision. The person must have no new criminal convictions or pending cases.

“With this deluge, it’s inevitable that there are going to be mistakes and there’s going to be administrative problems,” said Cahill, an employment law attorney who advocates for expungement reform in the General Assembly.

Organizations like Maryland Volunteer Lawyers Service and JOTF are working to improve reforms and educate the public, according to Cahill.

“There are lots of concerned organizations trying to help because some of the work is legal work,” she said.

The General Assembly last year passed a law to allow expungement of convictions for offenses that are no longer crimes, such as possession of less than 10 grams of marijuana, a provision which draws hundreds of potential clients to pro bono expungement clinics.

There are more than 1,000 collateral consequences in Maryland’s laws for someone with a criminal record, according to a 2013 American Bar Association study. Approximately one-third of those consequences are related to employment.

When people hear about criminal justice reform, they tend to think about treatment options and changes to parole and probation, but Cahill said “the quieter work” is removing impediments to reentry into society.

“The infrastructure has to be there and if it’s not there, it’s all for naught,” she said.