Recent Legislation on Collateral Consequences Andre R. Imbrogno, Member, Ohio Parole Board Ohio Department of Rehabilitation and Correction
Collateral Consequences • “Collateral consequences” are restrictions, disabilities, or penalties beyond the direct punishment imposed on individuals at the time of sentencing. • Generally, the term “collateral consequence” includes both “collateral sanctions,” which apply automatically upon conviction, and “discretionary disqualifications.”
Why Do Collateral Consequences Matter? •Over 1.9 million Ohio residents (out of 11.5 million, or 17%) have a misdemeanor or felony conviction. • For many Ohioans, their criminal histories limit their employment opportunities. • The inability to obtain employment, in turn, frustrates successful reentry. • There are over 800 places in the Ohio Revised Code and the Ohio Administrative Code that lists sanctions related to employment and other barriers for persons who have misdemeanor or felony convictions in their backgrounds.
A National Problem • In 1974, 1.8 million (1.3% of the population) had been imprisoned at some point in their lives. By 2001, that number had risen to 5.6 million (2.7% of the adult population). If that rate remains unchanged, 6.6% of Americans born in 2001 will serve prison time in their lives. An even larger portion of the population has been convicted of a criminal offense without going to prison. According to a 2003 DOJ report, nearly 25% of the population (71 million) had a criminal record. (source: Uniform Law Commission Collateral Consequences of Conviction Act Summary)
Facilitating Successful Reentry • Ohio’s offender recidivism rate is currently at an 11-year low, with only 34% of inmates returning to prison after release. • Ohio continues to explore opportunities to further decrease the number of offenders who return to prison. • Approximately 400,000 individuals have come through the prison system since the mid-1980s.
Facilitating Successful Reentry • The important role that gainful employment plays in successful reentry is recognized in Parole Board release considerations. Per administrative rule (5120:1-1-07), in determining suitability for release, the Board is to consider, among other things: • The “inmate’s employment history and . . . occupational skills” as well as the “inmate’s vocational, educational, and other training.” • “The adequacy of the inmate’s plan or prospects on release.”
Recent Legislation Two recently enacted pieces of legislation address collateral consequences in Ohio: HB 86 (Effective 9/30/11) SB 337 (Effective 9/28/12)
House Bill 86: Comprehensive Criminal Justice Reform Act • House Bill 86, enacted in 2011, is a comprehensive act that reformed virtually every aspect of Ohio’s criminal justice system, including sentencing, community supervision, and reentry.
House Bill 86: Comprehensive Criminal Justice Reform Act • State v. Foster—Consecutive Sentences • Crack/Powder Cocaine Penalty Equalization • Sentencing Guidance on Drug Offenses • Theft Thresholds • Non-Support Penalties • Intervention in Lieu • Probation Improvement and Incentive Grants • Admissions to Residential Community Sanctions • Concurrent Supervision • Probation and Training Standards • Justice Reinvestment • Risk Reduction Sentencing • Felony 4 and Felony 5 Sentencing/Felony 1 and Felony 3 Sentencing Ranges • Traditional Judicial Release (R.C. 2929.20) • New 80% Judicial Release (R.C. 2967.19) • Earned Credit • Collateral Consequences: Certificate of Achievement and Employability
House Bill 86: Certificate of achievement andEmployability • In House Bill 86, the Ohio legislature took a first, modest step toward addressing collateral consequences through the Certificate of Achievement and Employability.
House Bill 86: Certificate of achievement andEmployability Overview Eligible offenders may apply to the DRC for a certificate that relieves the applicant from one or more “mandatory civil impacts”— any section of the Revised Code or Administrative Code that creates a penalty, disability, or disadvantage that is imposed by a licensing agency or employer and which precludes a person with a criminal record from obtaining licensure or employment.
House Bill 86: Certificate of Achievement andEmployability Individual Consideration/Rebuttable Presumption If a person who has been issued a certificate applies to a licensing agency for a license or certificate and the person has a conviction that otherwise would bar licensure or certification, the licensing agency must give the person individualized consideration. • Certificate creates a rebuttable presumption that the criminal conviction is insufficient evidence that the person is unfit. • However, license/certification may be denied if agency determines the applicant is unfit after individualized consideration.
House bill 86: certificate of achievement andemployability Rules Applying to Employers Same rules, above, apply for employers who are seeking a license or certification and who have hired a certificate holder.
House bill 86: certificate of achievement andemployability Employer Immunity: Negligent Hiring If an employer hires a certificate holder, if a subsequent action is filed against the employer for negligent hiring based on the employer’s actual or constructive knowledge of the certificate holder’s incompetence or dangerousness, the certificate is an absolute defense to the element of the employer’s actual or constructive knowledge.
House Bill 86:Certificate of achievement and employability Employer Immunity: Negligent Retention If the certificate holder, after being hired, subsequently demonstrates dangerousness and if the employer nevertheless retains the employee, the employer may be held liable in a civil action that relates to the retention only if it is proven that the employer had actual knowledge of the employee’s dangerousness and willfully retained the employee after the employee demonstrated the employee’s dangerousness.
House bill 86: certificate of achievement andemployability Eligibility for a Certificate Applicant is currently incarcerated with an expected release date that is one year or less from the date of the application or the applicant is currently on parole or post- release control. The applicant satisfactorily completed one or more in-prison vocational programs approved by department rule.
House bill 86: certificate of achievement andemployability Eligibility for a certificate (continued): The applicant completed one or more cognitive or behavioral improvement programs while incarcerated, while under supervision, or both. The applicant has completed community service hours. The applicant has shown other evidence of achievement and rehabilitation.
House bill 86: certificate of achievement andemployability “Evidence of achievement and rehabilitation”— Examples: Completing adult basic education Obtaining a GED Completing a pre-GED program Obtaining a high school diploma Completing anger management Completing victim awareness
House Bill 86:Certificate of achievement and employability Revocation of Certificate An issued certificate must be revoked if the certificate holder is subsequently convicted of any offense other than a minor misdemeanor or traffic offense. Certificate cannot be revoked for violation of a condition of release unless the violation is also a criminal offense.
SENAte Bill 337 • Effective September 28, 2012. • Enacts a number of proposals developed in collateral consequences forums debuted in 2011 by Gov. Kasich and co-sponsored by DRC and DYS to formulate consensus-based policy proposals to present to the General Assembly. • Other stakeholders included legislators, judges, prosecutors, and the Ohio Public Defender.
SENAte Bill 337 • Areas Affected by Senate Bill 337 • Professional Licensing • Record Sealing • Child Support • Traffic Penalties/Driver’s Licenses • Juvenile Justice
SENAte Bill 337: Professional licensing • Certificate of Qualification for Employment (CQE) Senate Bill 337 creates a new type of court-issued certificate that removes barriers to professional licensing. The CQE lifts the automatic bar of an employment-related collateral consequence and entitles the certificate holder to individualized consideration on the question of fitness. The CQE builds upon the concept of the Certificate of Achievement and Employability.
SENAte Bill 337: Professional licensing • CQEs: Eligibility An individual is eligible for a CQE regardless of whether the offender was incarcerated for the crime or instead received community control. Application may be made at any time after one year has expired from release from incarceration and any period of post-release supervision, or one year from final release from all community control sanctions, as appropriate.
SENAte Bill 337: Professional licensing • CQEs: Review of Applications In most cases, applications for CQEs are submitted to the DRC and are reviewed for completeness by DRC’s Adult Parole Authority. If the application is complete, the APA will forward the application to the court of common pleas of the county in which the applicant resides.
SENAte Bill 337: Professional licensing • CQEs: Application Information • Name, date of birth, and Social Security number. • All aliases and all Social Security numbers associated with the aliases. • Residence address. • Length of time that the applicant has been an Ohio resident. • Name or type of each collateral sanction from which the individual is requesting a CQE.
SENAte Bill 337: Professional licensing • CQEs: Application Information (continued): (6) A summary of the applicant’s criminal history with respect to each offense that is a disqualification from employment or licensing, including the years of each conviction. (7) A summary of the applicant’s employment history. (8) Verifiable references. (9) The name of immediate family members or others who support the applicant’s reentry plan.
SENAte Bill 337: Professional licensing • CQEs: Application Information (continued): (10) A summary of the reason that the applicant believes the CQE should be granted. (11) Any other information required by DRC rule.
SENAte Bill 337: Professional licensing • CQEs: Factors for Court to Consider A court of common pleas must consider all of the following factors in deciding whether or not to grant a CQE: • Will granting the certificate materially assist the offender in finding employment? • Does the offender have a substantial need for the CQE in order to live a law-abiding life? • Will granting the CQE pose an unreasonable safety risk to the general public or any individual? The burden is on the applicant to establish each of these criteria in his or her favor by a preponderance of evidence.
SENAte Bill 337: Professional licensing • A court may not issue a CQE that grants the individual relief from any of the following: • Requirements imposed under the SORN Law. • Certain driver’s license suspensions or revocations, including DUI. • Restrictions on employment as a prosecutor or law enforcement officer.
SENAte Bill 337: Professional licensing • CQE limitations—Collateral Consequences Not Eligible (continued) • Denial, ineligibility, or automatic suspension of a license as a health care professional under Title 47 if the person was convicted of aggravated murder, murder, voluntary manslaughter, felonious assault, kidnapping, rape, sexual battery, GSI, aggravated arson, aggravated robbery, aggravated burglary, unlawful distribution of abortion-inducing drug. • Immediate suspension of a license, certificate, or evidence of registration imposed on a licensed health care professional who is addicted to or illegally distributing a controlled substance.
SENAte Bill 337: Professional licensing • CQE limitations—Collateral Consequences Not Eligible (continued) • Denial or ineligibility for employment in a pain clinic for those convicted of felony drug offenses or felony theft offenses. • The mandatory suspension of a license as a health care professional for being in default on child support payments.
SENAte Bill 337: Professional licensing • CQEs: Court Procedure • Court of common pleas where the applicant resides hears and determines the application. • Steps the court must take upon receiving an application: • Notify the prosecutor of the county where the applicant resides that the prosecutor may send comments. • Notify all other courts in the state in which the offender has been convicted of an offense that the court may send comments on the application.
SENAte Bill 337: Professional licensing • CQEs: Court Procedure (continued) • Order any report, investigation, or disclosure by the individual that the court believes is necessary. • Consider any filings submitted by the victim or victims. • Decide whether to issue the certificate within 60 days after the court receives the application. (Court may extend beyond 60 days upon the applicant’s request.)
SENAte Bill 337: Professional licensing • CQEs: Denial • If a court denies an application for a CQE, the court must provide written notice of the denial to the offender. • Following a denial, the court may place conditions on reapplication. • A person denied a CQE by a court may appeal to the court of appeals. The court’s denial will be reviewed under an abuse of discretion standard.
SENAte Bill 337: Professional licensing • CQEs: Immunity Like the certificate of achievement and employability, the CQE affords employers who rely upon it immunity in negligent hiring actions and qualified immunity in negligent retention lawsuits filed against them on the basis of acts committed by their employee-certificate holders.
SENAte Bill 337: Professional licensing • CQEs: Revocation A CQE is presumptively revoked if the certificate holder, after receiving the certificate, is convicted of any felony offense.
SENAte Bill 337: Professional licensing • Senate Bill 337 prohibits the following agencies from denying licenses on the basis of a prior criminal history, unless the offense is a “disqualifying offense” or crime of moral turpitude. (1) Ohio Optical Dispensers Board (2) Registrar of Motor Vehicles (with respect to motor vehicle salvage dealers, motor vehicle auctions, and salvage motor vehicle pools) (3) Construction Industry Licensing Board (4) Hearing Aid Dealers and Fitters Licensing Board (5) Public Safety (with respect to private investigators and security guards)
SENAte Bill 337: Professional licensing • Definitions “Disqualifying offense” is defined as “an offense that is a felony and that has a direct nexus to an individual’s proposed or current field of licensure, certification, or employment.” Crime of “moral turpitude” is defined as: • Aggravated murder or murder, or complicity to commit aggravated murder or murder. • Any sexually oriented offense. • Any first or second degree offense of violence. • Any attempt or conspiracy to commit or complicity in committing any of the offenses listed in (1) through (3), above, if the attempt, conspiracy, or complicity is an F1 or F2.
SENAte Bill 337: Professional licensing • Exception: The licensing board or agency may exercise discretion in denying the license, even if the conviction was for an offense other than a disqualifying offense or crime of moral turpitude if: • The applicant was convicted of a misdemeanor less than one year or a felony less than 3 years prior to the date of the application.
SENAte Bill 337: Professional licensing • Conditional Licenses Senate Bill 337 authorizes a licensing agency to issue a conditional license, certification, or permit that lasts for one year, after which time the conditional license, certification, or permit becomes permanent.
SENAte Bill 337: Professional licensing • Trainee Licenses Senate Bill 337 specifies that no agency that issues a trainee license may issue that license to an applicant who would not be eligible for issuance of a license, certificate, registration, permit, card, or other authority to engage in the profession or operation for which the trainee would apply.
SENAte Bill 337: Professional licensing • Definition of “Trainee License” A license, certificate, registration, permit, card, or other authority that is issued by any licensing agency that authorizes the holder to engage as a trainee in a profession, occupation, or occupational activity, or to operate as a trainee certain specific equipment, machinery, or premises.
SENAte Bill 337: Professional licensing • State Board of Cosmetology-specific provisions (1) Senate Bill 337 prohibits the Board from denying certification on the basis of prior incarceration or conviction for a crime. (2) Senate Bill 337 requires the Board to assist ex-offenders and military veterans who hold licenses to find employment.
SENAte Bill 337: Professional licensing • Casino Control Commission-specific provisions • Requires the Commission to provide a written statement to each applicant who is denied a license that describes the reason(s) for the denial. • Requires that, not later than January 31 in each calendar year, the Commission provide to the General Assembly and the Governor a report that, for each type of license issued under the Casino Control Law, specifies the number of applications made in the preceding calendar year for each type of such license, the number of applications denied in the preceding calendar year for each type of such license, and the reasons for those denials.
SENAte Bill 337: Record sealing • Under prior law, an individual could not petition his or her sentencing court to have the record of a criminal conviction sealed unless the individual was a first offender (i.e., the individual could have no more than one felony or misdemeanor conviction in any jurisdiction in the country).
SENAte Bill 337: Record sealing • Senate Bill 337 expands eligibility for record sealing to offenders who satisfy one of the following conditions: (1) The offender has no more than one felony conviction; (2) The offender has no more than two misdemeanor convictions if the convictions are not for the same offense; or (3) The offender has not more than one felony conviction and not more than one misdemeanor conviction.
SENAte Bill 337: Record sealing • As a general rule, the records of convictions involving child victims cannot be sealed. This has been interpreted as including convictions for nonsupport. • Senate Bill 337 removes the prohibition against sealing the records of nonsupport convictions, provided that the offender applying for sealing otherwise qualifies to have the records sealed.
SENAte Bill 337: child support determination • Imputed Income: Generally When a parent’s income is determined as part of the child support calculation, the court or child support enforcement agency (CSEA) must consider not only the parent’s gross income, but also any potential income that is imputed to a parent who is voluntarily unemployed or underemployed.
SENAte Bill 337: child support determination • Imputed Income: Current Interpretation Ohio appellate courts have generally held that a parent’s incarceration constitutes voluntary unemployment or underemployment.
SENAte Bill 337: child support determination • Imputed Income: New Exclusion Senate Bill 337 prohibits a court or CSEA from determining that a parent is voluntarily unemployed or underemployed and from thereby imputing income to that parent if the parent is incarcerated or institutionalized for a period of 12 months or more with no other available assets. EXCEPTIONS: This requirement does not apply if the parent is incarcerated for an offense relating to the abuse or neglect of a child who is the subject of the support order or criminal offense when the obligee or a child who is the subject of the support order is a victim of the offense. Further, this requirement does not apply if its application would be unjust or inappropriate and therefore not in the best interests of the child.