INQUIRIES ABOUT ARRESTS
The Unfair Roadblock: Despite the fact that the majority of Americans do not support access to records of arrests that never led to conviction for non-criminal justice purposes, the overwhelming majority of states allow employers to deny employment to applicants based solely on arrests that did not lead to conviction. In addition, many housing authorities and other non-criminal justice agencies also ask about and use arrests without convictions. Such practices flout the notion that one is innocent until proven guilty, which is the bedrock of our criminal justice system.
How To Remove The Roadblock: States should enact legislation that prohibits any inquiries about, consideration, or use of information about arrests that did not lead to conviction by employers, housing authorities and other non-law enforcement agencies.
This tool kit provides materials and information that advocates can use to encourage state legislatures to adopt those sensible reforms, including:
on this issue can be found in the Legal Action Center’s report,
After Prison: Roadblocks to Reentry, at http://lac.org/roadblocks-to-reentry/main.php?view=law&subaction=4
Despite the fact that the
“presumption of innocence in favor of the accused is the undoubted
law, axiomatic and elementary, and its enforcement lies at the foundation
of the administration of our criminal law," most states do not have
legislation that prohibits the use of arrest records in employment, housing
and other decisions. In the absence of state legislation regulating such
access, employers may use this information as a bar to employment, and
housing authorities and landlords may deny housing. Thus, persons with
records of arrests that never led to conviction can be branded with the
same debilitating stigma that often harm people with past convictions,
though these individuals have not been convicted of a crime.
Thirty-six states allow
all employers and occupational licensing agencies to inquire about, consider
and make hiring decisions based on arrests that never led to a conviction.
Advocates should encourage state legislatures to enact legislation that prevents public and private employers and licensing agencies from inquiring about, considering, or using an applicant’s or employee’s record of arrests that never led to conviction. The goal of legislation should be to restore the accused to the status he or she occupied before the arrest and/or prosecution that never led to conviction, including assurance that such records will not be used against him or her in obtaining and maintaining employment, licensing, or housing. In passing such laws, advocates should promote legislation that clearly:
New York State’s has two model laws that explicitly provide protections to people with records of arrests that did not lead to conviction. One law nullifies the effect of a criminal record disposed of in favor of the accused and the other offers additional protection by limiting the use and consideration of these records by employers, licensing agencies and providers of credit or insurance. Click here for the text and brief description of the New York State laws.
you are advocating for legislation that prohibits employers, occupational
licensing authorities, and/or other agencies from gaining access to and
using arrest records that never led to conviction, alerting grass roots
allies and supporters and asking them to contact their legislators to
support the legislation is an effective way to bring about change.
here for a model Action Alert
you can shape for your specific needs and use to seek grass roots support.
Click here for a model Sample Letter you can send along with the Action Alert to help your grass roots supporters write to their elected officials urging them to support legislation prohibiting employers, occupational licensing authorities, and/or other agencies from gaining access to and using arrest records that never led to conviction. Once again you can shape this Sample Letter to meet your specific needs.
U.S. DEPARTMENT OF JUSTICE, PUBLIC ATTITUDES TOWARD USES OF CRIMINAL HISTORY INFORMATION: A PRIVACY, TECHNOLOGY, AND CRIMINAL JUSTICE INFORMATION REPORT, NCJ 187663 (2001).
Coffin v. United States, 156 U.S. 432, 453 (1895).
See "Survey of State Criminal History Information Systems, 2001: A Criminal Justice Information Policy Report." August 2003
CAL. ADMIN. CODE tit. 2, § 7287.4(d)(1)(A), (B); CAL. LABOR CODE §§ 432.7(f)(1), (2); CAL. PENAL CODE § 13203 (2003).
MICH. COMP. LAWS § 37.2205a(1) (2003).
N.Y. EXEC. LAW § 296.16 (2003); N.Y. CRIM. PROC. LAW §§ 160.50, and 160.60 (2003); N.Y. CORRECT. LAW §§ 752-754 (2003).
OHIO REV. CODE ANN. §§ 2953.55(A) and 2953.52 (2003).
R.I. GEN. LAWS § 28-5-6(7) and -7(7) (2003).
UTAH ADMIN. CODE 606-2-2(U), (V) (2003).
WIS. STAT. §§ 111.325, 111.335(1)(a) and (b) (2003).
18 PA. CONS. STAT. § 1925(a), (b) (2003). See also Cisco v. United Parcel Services, 476 A.2d 1340, 1343 (Pa. Super. 1984) (construing § 1925(b) to prohibit employer consideration of “any experience with the criminal justice system which falls short of a conviction”).
ARK. CODE ANN. §§ 17-1-103(c)(1) and (l) (2002).
N.M. STAT. ANN. § 28-2-3 (2002).
N.H. REV. STAT. ANN. § 21-I:51 (2003).