The Human Rights of Ex-Offenders

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The Human Rights of Ex-Offenders
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International Treaties I

• Maryland Constitution Declaration of Rights
  Article II
• "The Constitution of the United States, and the
  Laws made, or which shall be made, in pursuance
  thereof, and all Treaties made, or which shall be
  made, under the authority of the United States,
  are, and shall be the Supreme Law of the State
  and the Judges of this State, and all the People
  of this State, are, and shall be bound thereby
  anything in the Constitution or Law of this State
  to the contrary notwithstanding."

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International Treaties II

• Universal Declaration of Human Rights Article
  23 Everyone has the right work
• International Covention on the Elimination of All
  Forms of Racial Discrimination Art. 5 parties
  to treaty undertake to prohibit and to
  eliminate racial discrimination in all its forms
  and to guaranteethe enjoyment of thethe right
  to work
• OAS Declaration of the Rights Duties of Man,
  Art. XIV Every person has the right to work

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Maryland Constitution

• Article 27 That no conviction shall work
  corruption of the blood or forfeiture of estate.
  
• Forfeiture of Estate loss of land
• Loss of livelihood?
• Corruption of Blood sins of parents visited on
  the children

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Maryland Court of Appeals I

• Singer v. State, 72 Md. 464, 19A. 1044 (1890)
• No one questions the right of every person in
  this country to follow any legitimate business or
  occupation he may see fit. This is a privilege
  open alike to every one. His own labor, and the
  right to use it as a means of livelihood is a
  right as sacred and fully protected by the law as
  any other personal or private right. Singer,
  at 1045.

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Maryland Court of Appeals II

• Singer again
• State can qualify the right
• The nature and extent of the qualifications
  required must primarily depend on the judgement
  of the state as to their necessity. If they are
  appropriate to the calling or profession, and
  attainable by reasonable application, no
  objection to their validity can be raised.

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Title VII of Civil Rts Act

• Cant discriminate on the basis of Race
• Neutral Testslike criminal records screening,
  can be considered to be racial discrimination
• Employer can avoid this by showing the screening
  is JOB RELATED and CONSISTENT with business
  necessity

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What Must Employers Do?

• Nature and gravity of the offense
• The time that has passed since the conviction
  and/or completion of the sentence
• The nature of the job held or sought
• SUMMARY JOB RELATEDNESS of Conviction and TIME
  FRAME INVOLVED

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What Employers Cant Do

• No Questions About Arrests
• No Broad Based Prohibitions --We dont hire
  anyone with a conviction, regardless of the
  crime
• Too Broad a policywill screen out minorities at
  a higher rate than whites violates Title VII

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What is a Conviction and What Isnt?

• Guilty Conviction
• Non Convictions
• Probation Before Judgment
• Stet
• Nol Pross
• Dismissal
• Acquittal

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Probation Before Judgment

• Sufficient evidence exists to convict, but court
  allows defendant to escape the stigma of
  conviction through an agreement to abide by the
  terms of probation
• Pleads Guilty, No Contest, or Found Guilty
• If Probation violated, court can enter conviction
• is not a conviction for the purpose of any
  disqualification or disability imposed by law
  because of conviction of a crime. Crim Pro 6-220

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Stet

• The State postpones the trial
• Indefinitely (forever)
• May be rescheduled by request of state within one
  year
• After one year, state needs to show Good Cause
  for rescheduling it
• MD Rule 4-248

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Nolle Prosequi

• MD Rule 2-247
• State Terminates the Prosecution
• Charge is technically dismissed but disposition
  is Nolle Prosequi

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What is a Conviction and What Isnt?

• Guilty Conviction
• Non Convictions
• Probation Before Judgment
• Stet
• Nol Pross
• Dismissal
• Acquittal

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Expungement

• GenerallyOnly the Non Convictions
• PBJ, Nol Pros, Stet, Dismissal, Acquittal
• Recent change in law allowing some convictions to
  be expunged
• Panhandling
• Public drinking-urinating-obstruction passage
• No proof MTA-loitering-park vio

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Expungement Nol Pross

• Aside from those Nuisance crimes, only
  NON-CONVICTIONS can be expunged
• Special Rules depending on the non-conviction
• Nol Pross? Expunge anytime as long as not
  convicted of a criminal offense SINCE time of nol
  pross
• Example 01 Nol Pross, then 08 Convictionyou
  are out of luck

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Expungement and STET or PBJ

• Like Nol Pros if youve been CONVICTED since
  the time of the Stet or PBJ, you have lost your
  right to expunge the stet or PBJ
• Also, must wait three years to file expungement
  request (3 yrs after entry)

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Expungement Process

• File Expungement Petition in Court in which the
  PBJ, Stet, Nol Pross, Dismissal, Acquittal
  occurred
• Filing Fee Waiver
• Roughly 60 daysOrder
• Compliance with Order

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Expungement Summary

• Really only good for folks without convictions
• New Lawnuisance crimes
• PBJ and StetNeed to wait three years

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Expungement Example

• 03 Stet CDS possession
• 04 PBJ possession
• 05 Stettheft less than 300
• Nothing since? Can expunge the all after three
  year wait and if no convictions since
• File Petition
• Await Orders of Compliance

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Expungement Example II

• 03 Stet CDS possession
• 04 PBJ possession
• 05 Stettheft less than 300
• 06 Guilty CDS possesion
• CONVICTION extinguishes right to expunge these
  charges (Stet, PBJ or Nol Pros)

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Expungement Example III

• 03 Dismissed CDS possession
• 04 Dismissed possession
• 05 Dismissedtheft less than 300
• 06 Guilty CDS possession
• Still can expunge the Dismissals
• CONVICTION extinguishes right to expunge a Stet,
  PBJ or Nol Pros

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Recap

• There is a Right to Work (freedom to work)
• It Cant be abridged on basis of race
• Racial disparities in arrests convictions
• Title VII of Civil Rights Act requires Employers
  to used a standard that is JOB RELATED and
  CONSISTENT with business necessity
• Expungement is a limited toolONLY for NON
  CONVICTIONS (w/homeless nuisance exception) and
  for THOSE WHO HAVE KEPT OUTTA TROUBLE SINCE.