Here is a link to the Ban the Box editorial posted in today’s Charlotte Observer.
On January 29, 2013, the Ethics Committee of the North Carolina State Bar responded to the Civil Rights Clinic’s inquiry with a proposed Formal Ethics Opinion banning the use of release-dismissal agreements by state prosecutors. North Carolina, one of the first states the Clinic contacted at the start of this project, is among the first state bars to draft an opinion initiated by the Clinic’s inquiry. The Ethics Committee based its Opinion on North Carolina Rule of Professional Conduct 3.8(a), which forbids a prosecutor from prosecuting a charge that the prosecutor knows is not supported by probable cause.
A release-dismissal agreement happens when a prosecutor enters into an agreement with a criminal defendant to dismiss criminal charges in exchange for the defendant’s release of any and all civil claims arising out of the defendant’s arrest, prosecution and/or conviction. When the Clinic started the project in the fall of 2011, 13 states had already addressed the issue. Indiana, South Carolina, New Jersey and Massachusetts prohibit the use of release-dismissal in entirely. California and Ohio permit defense attorneys to offer a release-dismissal agreement, but flatly prohibit a prosecutor from doing so. For more information about the project, where we have filed, and the status of the project, check out these articles:
- Release Dismissal Agreement Update: Students Advance Nation-Wide Call for Ethically Banning the Practice
- The Ethics of Release-Dismissals
- One in the “Win” Column: Virginia Bar Proposes Ethics Opinion on Release-Dismissal Agreements
In the proposed Opinion, the Committee stated that the inquiry is limited only to state court prosecutions where the state “did not also assert civil claims against the defendant arising from the same alleged criminal conduct.” The Committee further stated, “When new evidence clearly demonstrates that a convicted person should be released from prison, the duty to ‘seek justice’ requires a state prosecutor to initiate a proceeding to have the conviction vacated if not already initiated by the convicted person.” The Committee asserted that conditioning the initiation of that proceeding, or cooperation with a proceeding initiated by the convicted person, upon the convicted person’s release of all civil claims against authorities “violates the most basic tenets of a prosecutor’s responsibilities as set forth in Rule 3.8.”
By tying the use of release-dismissal agreements to these rules and banning the use of release-dismissal agreements in dismissing convictions, North Carolina is on its way to joining the likes of Virginia, South Carolina, Indiana, Connecticut and others to prohibit the use of release-dismissals in criminal cases.
The Civil Rights Clinic will submit written comments on the proposed Formal Ethics Opinion to the Ethics Committee concerning the absence of federal prosecutors from the Opinion’s restrictions, its limitation of the ban to post-conviction matters, and language in the Opinion that requires clear demonstration that a convicted person should be released from prison.
If you wish to submit a comment on the proposed Formal Ethics Opinion to the Ethics Committee, please send the comments to
North Carolina State Bar
PO Box 25908
Raleigh, NC 27611
By Jordan Dupuis
Charlotte, North Carolina – March 8, 2013— The Charlotte School of Law Civil Rights Clinic has launched its Certificate of Relief project. The project’s goal is two-fold—to educate the public about Certificates of Relief and to pursue Certificates through the courts for qualified individuals.
North Carolina law now provides that individuals convicted of particular felonies or misdemeanors may petition the court in which they were convicted for a Certificate of Relief. The Certificate, if awarded, would grant the individual some relief from the collateral, civil consequences of the conviction. Although a Certificate of Relief is not an expunction, it can be a valuable asset. For example, the Certificate provides evidence to employers of the individual’s successful completion of their sentence and all terms of probation. It would also protect an employer who hires an individual with a Certificate from negligent hiring lawsuits.
Some of the requirements to obtain a Certificate include:
- Conviction of no more than two felonies (class G, H or I) or misdemeanors in the same session of court
- No other convictions of a felony or misdemeanor (other than a traffic violation)
- At least 12 months have passed since completion of any period of probation, post-release supervision, or parole and since all active time was served (if any)
- No criminal charges currently pending
- All terms of sentence and probation were complied with
- There has been no violation of the terms of any criminal sentence (if that is not true, the failure is justified, excused, involuntary, or insubstantial), and
- That granting the petition would not pose an unreasonable risk to the safety or welfare of the public or any individual
The Civil Rights Clinic is currently seeking individuals who think they qualify for a Certificate to determine their eligibility. If you think you qualify for a Certificate of Relief, please contact:
Jason Huber: firstname.lastname@example.org or 704-971-8381
Everybody has an opinion on what should be done to “fix” public education. Unlike the issues arising in the medical field, tax law, or immigration, the average person has sufficient exposure to or knowledge of what takes place in a public school building. Every campaign season politicians discuss the need to “improve education,” and nearly every year states pass new legislation to help “make students competitive.” Public education and those that work within this field are also targeted and blamed, and in recent years a large trend for more charter schools and private schools has led parents to remove their children from the “failing system.” As parents remove their children from public education and society as a whole attempts to “assign blame” for the failing educational system, a socioeconomic segregation in today’s youth is setting the foundation for the future of civil rights movements.
It is easy to see that the current system is far from perfect. According to the National Center for Education Statistics, in 2008 only 39% of 17-year old students were able to find, understand, summarize, and explain relatively complicated literary and informational material. Internationally, PISA (Programme for International Student Assessment) scores have left the United States far behind other countries in regards to student performance. There is also evidence to show that drop out rates are still high, individuals are struggling to find employment after school even if they do pass, and the curriculum being taught is not necessarily helping students with jobs they are able to find.
Despite its prevalence in society and endless discussions about how to fix these problems, many people still do not consider public education to be a civil rights issue. However, the racial disparities are impossible to ignore: 47% of white students are at the highest level of reading, while only 21% of black students and 22% of Hispanic students are at that same level. There are also studies that show correlations between socioeconomic status and academic achievement, and additional studies to demonstrate that academic achievement can lead to future success. Unfortunately, these studies also show the correlations between low socioeconomic status, low academic achievement, and future inability to maintain steady employment. These studies form the basis of the “school to prison pipeline” and highlight how the failure to fix the educational system harms society as a whole.
Webster dictionary defines civil rights as the nonpolitical rights of the citizen, or the rights of citizens to political and social freedom and equality. The rights of citizens to political and social equality form the foundation for the most famous civil rights movements in our nation’s history. Education forms the foundation of these civil rights, as the purpose of education is to give all people an opportunity for success in the future. Those individuals leading our country, our states, our cities, and even our universities are all well educated, regardless of their race or former socioeconomic status. A strong education gives people an opportunity to pursue greater professions, to change their socioeconomic status, and to potentially avoid a life of crime or violence. All people have the right to social freedom and equality, yet without the knowledge of how to pursue those rights many individuals are left reliant on the educated elite who are able to navigate their way through the current system.
The reality is that all children can learn, regardless of race or socioeconomic status. Charter schools, private schools, and public schools have all provided evidence that children can learn in the right atmosphere and with the right teacher. Despite this evidence, people still refer to public school demographics and make assumptions about what that school is able to accomplish. People hear where an individual went to school and immediately make assumptions about that individual and what his experiences were like at that school, and assume he is similar to his peers. This is one of the reasons several educated parents that can afford to do so will place their children in private schools, where the assumption is that they will be getting a superior education and be in a better position to excel in the future.
Public education is the civil rights issue and a primary staple of our society that must be addressed to ensure that individuals have an equal opportunity at obtaining employment, higher education, and quality housing. Without addressing public education as a civil rights issue, we can only address the aftermath of inequality and not put prevent these issues from arising in the future. The research is available, and educators across the country can provide further insight into what changes need to happen to ensure that students are able to pursue social freedom and equality. Yet until public education is recognized as a true civil rights issue, and a majority of educated and uneducated adults are ready to demand true educational equality and opportunities, the education system will remain a topic for debate and political campaigns.
In this Episode, Clinic Member Daniel Melo talks Melissa Nicholson, a student at Charlotte School of Law about gun ownership and the 2nd Amendment.
At the February 27th Charlotte City Council meeting, Charlotte School of Law Civil Rights Clinic students, along with over a hundred community members and representatives from local organizations and businesses including Changed Choices, Pasta Provisions, Democracy NC, Action NC, Charlotte Community Justice Coalition, and Center for Community Transitions rallied, spoke, and displayed signs while donning the Ban the Box movement’s symbolic red in order to persuade the Council to send the Ban the Box initiative to Committee for further review—which it did by a six to four vote. The vote represented a small first step in favor of the Coalition’s more than four year effort to convince the City to reform its hiring practices concerning individuals with conviction histories. While the City does have a non-discrimination policy concerning conviction histories, its job applications still have the “box” requiring that an applicant disclose a conviction history before the City makes a determination that the individual is qualified for the job. The key provisions of the Coalition’s proposed ordinance (drafted by students from the Civil Rights Clinic), removes the conviction history question from the initial job application, and permits a background check only after the city makes a conditional offer of employment; if the City determines the conviction disqualifies the applicant, the applicant will have a chance to explain why their conviction history shouldn’t disqualify them
The Signs of Our Times
The meeting itself was a model of grassroots organizing. Prior to it, hundreds gathered in the Government Center’s lobby. The excitement and tension in the air was palpable. Clinic students Cleat Walters III, Hailey Strobel, Emily Ray, Lindsey Engels, Katie Webb, Isabel Carson, Brandy Hagler, Daniel Melo, and Professor Jason Huber helped rally the Coalition and distribute signs. At 6:15 security opened Council Chambers’ doors and Coalition members filed in, overflowing into the balcony areas. During the opening convocation, Mayor Anthony Foxx played excerpts from a speech by Dr. Martin Luther King Jr. Foxx also read two ceremonial resolutions before he moved to the Citizen’s Forum portion of the meeting. The Coalition reserved six speaker spots through the efforts of Clinic student Cleat Walters III, who was also one of the primary organizers and leaders of the Coalition.
Speaking in a Sea of Red
Isaac Sturgill, a former Clinic student, who four years ago began to tackle this issue and who is currently a Legal Aid of North Carolina attorney, was the first to speak. He began by asking all Ban the Box supporters to stand—almost everyone in the room rose to their feet in a sea of red, holding their signs in silent solidarity. Mr. Sturgill then went on to explain how Ban the Box will benefit the community by reducing recidivism and encouraging persons with conviction histories to obtain employment.
Mia Hines, the Vice-President of Goodwill Industries of the Southern Piedmont, followed Mr. Sturgill. Ms. Hines discussed the hiring practices of Goodwill and the make-up of their workforce. She stated that Goodwill practices the highest level of due diligence in their hiring practices, but emphasized that it does not use conviction histories to screen out applicants. To emphasize this fact, she recounted that individuals with conviction histories compose 30 percent of Goodwill’s workforce. She also explained to Council that Goodwill’s hiring practices mirror the proposed hiring practices of Ban the Box.
Eric Ortega, program director for Charlotte’s Center for Community Transitions, spoke next discussing the 450 individuals with prior convictions that have participated in the Center’s rehabilitation program in the last six months. He said that these individuals seek to better themselves, redefine who they are, and move forward. He expressed the reasonable concern and fear felt by many when faced with the Box—that employers will toss those applications with the Box checked aside, automatically filtering them out. According to Ortega, last year the Center tracked 200 people for a year and found, after obtaining employment with the Center’s assistance, that 190 of the 200 were still employed and had not been rearrested. He emphasized the significance of 190 people paying taxes and contributing to their families and Charlotte’s economy.
Empowering through Employment
Tommy George followed Mr. Ortega to podium. Mr. George is the owner of a local business called Pasta Provisions, which regularly employs people with conviction histories dedicated to making themselves better. He expressed how the Box gives fear to some and anxiety to others. He stated that employers should ask about convictions during the interview process, allowing applicants to explain about their past discretions. Mr. George acknowledged that the City of Charlotte is an Equal Opportunity Employer, committed to fairness, but noted that the Box is “redundant” and asked that the City take a step forward to solidify its commitment to equality by Banning the Box.
Monique Maddox, Catering Manager with Second Helping, who has a conviction history, introduced herself from behind a Ban the Box sign, covering her face to symbolically demonstrate the barrier put between individuals with conviction histories and employers because of the Box. She went on to explain that this barrier prevents employers from seeing the person behind the Box. She requested that the City take the lead on implementing this policy so deserving people have an opportunity at a second chance.
The final speaker, Henderson Hill, the current Executive Director of the Federal Defenders of Western North Carolina, a member of the Charlotte Community Justice Coalition, and a 32-year Charlottean civil rights attorney and activist, asked the Council to look at individuals as returning citizens, rather than inmates, felons, and convicts. Mr. Hill, drawing on his extensive experience working with individuals with conviction histories, and citing the excerpts of Dr. King’s speech from earlier in the meeting, called on the Council to judge people by the “content of their character.” Mr. Hill went on to say that through this proposal, the City can use its posture as an employer of over 6,500 people, to affirmatively express that looking at the content of someone’s character and evidence of rehabilitation is more important than a box on an application. Mr. Hill closed by saying that mass incarcerations, which are connected to national and state policies and not of the City Council’s doing, have a very real effect on the community and Ban the Box is one way to address this effect.
A Motion to Move Forward
The Council then proceeded to discuss the motion. Councilperson Warren Cooksey expressed concerns about hiring for certain jobs, that the City already had an anti-discrimination policy in place, and that the initiative was “a solution in search of a problem.” Councilperson Michael Barnes voiced his opposition to the motion by saying that before adopting Ban the Box, the state legislature should pass a bill providing immunity to municipalities which adopt Ban the Box. At the request of Councilperson Barnes, City Attorney Robert Hagemann briefly discussed a previously circulated Human Resources on the issue, and went on to say that immunity is only one concern and reiterated that Ban the Box implicates several issues. Councilperson Claire Green Fallon commented that maybe the ordinance’s focus should be on the smaller demographic of individuals convicted of marijuana possession.
Next, Councilperson Andy Dulin began by discussing how he provided job opportunities to people with conviction histories when he was a private business owner. However, Mr. Dulin stated that he believed that his responsibilities to his constituency required him to oppose the motion. Councilperson Beth Pickering was the first to speak in favor of Ban the Box. She expressed that her primary objective is to see that everyone has the opportunity to work. Ms. Pickering expressed the desire to explore Ban the Box more and supported the motion to go to committee which fomented a small eruption of applause from the Coalition.
Finally, Councilperson Mayfield, a Ban the Box supporter long before her City Council election, spoke passionately in favor of Committee referral. Noting, in response to Councilpersons Cooksey, Barnes, and Dulin, that the ordinance does not prohibit background checks, nor does it require the city to hire individuals with conviction histories. Rather, she said, it simply gives all applicants a fair chance. She recognized the City’s existing non-discrimination policy, and expressed her belief that studying and adopting the proposed ordinance would further support that policy. She also discussed how cities like Durham, North Carolina amongst others have successfully adopted similar Ban the Box ordinances and expressed her desire to keep Charlotte a “first-class city.”
A Kick for the Win
Mayor Foxx then requested that all those in favor of the motion raise their hands, and the room fell quiet. Councilpersons Autry, Mayfield, Mitchell, Fallon, Howard, and Pickering raised their hands. One could feel every mind in the room counting and re-counting. Six votes in favor.
No one moved or made a sound.
Councilpersons Cooksey, Barnes, Kinsey, and Dulin raised their hands. Four votes.
Mayor Foxx the declared the motion referred to committee for further study. The audience, before filing out, cheered and applauded Council for their decision. The enthusiasm was so energetic in the lobby that security politely asked the exiting crowd to quiet down. There was an abundance of smiles, hugs, handshakes and congratulations to all for a small but significant victory. Ban the Box will undergo study in the Economic and Development Committee. Throughout this process, the Coalition will continue to raise support and awareness, Clinic members will attend the Committee meetings, and the Coalition encourages everyone to continue to support and educate the community about Ban the Box.
If you are interested in working with the Coalition or have any questions please contact Cleat Walters III at email@example.com or the Charlotte School of Law Civil Rights Clinic at firstname.lastname@example.org
Mr. George, who eloquently quoted Ralph Waldo Emerson during his address to City Council, provides an appropriate final thought:
“What lies behind us and what lies before us are tiny matters compared to what lies within us.”
By: Daniel Melo, Brandy Hagler, and Cleat Walters III