Something’s Been Cooking at the Clinic: The Beginning of Charlotte’s Specialty Court for the Homeless and Veterans

May 13, 2015

By: M. Claire Donnelly

FINALLY, it is time for the Clinic to share a little project we have been working on all semester! As part of Charlotte’s 10-Year Implementation Plan to End and Prevent Homelessness, a team of community leaders approached the Clinic in September 2014. Members of the team included representatives from Helping Homeless to Housing, Urban Ministry Center, Mecklenburg County Community Support Services, the Public Defender’s Office, among others. These leaders, who knew the Clinic from our successful efforts with the Ban the Box movement, were interested in the Clinic getting on board with an initiative to start a homeless court here in Charlotte that would serve all of Mecklenburg County.

A homeless court is a specialty court designed specifically for individuals who are homeless and are charged with a status offense based on their homelessness. These charges include public urination, solicitation, trespass, etc. For many of these individuals, getting to the courthouse and keeping up with court dates is nearly impossible. Even if these individuals do make it to their court date, research shows that the criminal justice system is not meeting their needs and the cycle of homelessness continues.

The Clinic was immediately interested in the project and decided that this something we should take on. During the Fall 2014 semester, we completed research that we presented to the team of leaders at the end of November.[1] In our research, we looked at 9 homeless court models across the country, from Orange County, NC, to Birmingham, AL, to San Diego, CA, and more. Each court was unique in its own way, and we quickly found that like the courts we researched, our court in Charlotte-Mecklenburg should be tailored to our court system’s and our client’s needs.

Clinic students presenting research in November 2014.

Clinic students presenting research in November 2014.

San Diego began the first Homeless Court program in 1989, and has since provided the model program for other courts that have begun across the nation. The American Bar Association (ABA) used San Diego’s model in their adopted proposal for homeless courts. According to the ABA, “[t]o counteract the effect of criminal cases pushing homeless defendants further outside society, this court combines a progressive plea bargain system, an alternative sentencing structure, and proof of community-based shelter program activities to address a range of misdemeanor offenses. Homeless courts expand access to justice, reduce court costs, and help homeless people reintegrate into society and lead productive lives.”

Most homeless court models represent a marriage between service providers, community volunteers, defense attorneys, prosecutors, and judges. Typically, this team of people works together to figure out the needs of the homeless individual, whether the need is employment or housing or education or addiction services, etc. Then, the team creates a “sentence” related to that need, and if they follow through with their sentence, they get a dismissal for the charge.

During the Spring 2015 semester, the Clinic met with the team again and discussed next steps. It was decided that the court initiative would be tentatively named “Specialty Court for the Homeless and Veterans.” A proposal was written to submit to the Mecklenburg Board of County Commissioners (BOCC), who we hope will eventually approve the court in their budget. We attended two BOCC Public Policy workshops this semester, and there were optimistic comments regarding the start of a court. [2] The Clinic plans to continue assisting in any way we can to get the City on board with the court as soon as possible!

We also got a chance to travel to Orange County’s Outreach Court in the spring semester, which took place at the courthouse in Chapel Hill. Our team was WOW-ed by this visit and it really got us excited for the potential of a court of this type in Charlotte-Mecklenburg. It was absolutely incredible to see that just down the road, a court of this type was not only so successful, but so compassionate for their clients.

The Clinic has tremendous hope for the start of this court here in Charlotte-Mecklenburg and plans to stay actively involved in keeping it going. Keep following the blog as we provide updates on our progress!

For a great article and updated information on Charlotte-Mecklenburg’s efforts to end homelessness, see this article in the Observer from May 4, 2015.

[1] For access to our research document, please email mclairedonnelly@gmail.com.

[2] The meeting where Commissioners discussed the proposal occurred on April 28, 2015, and can be viewed at: http://mecklenburg.granicus.com/MediaPlayer.php?view_id=44&clip_id=2713The segment regarding Specialty Court for the Homeless and Veterans begins around 1:29:48 and ends around 1:35:15.


Disenfranchisement of Felons

April 28, 2015

By: Adam Melrose

President Abraham Lincoln once said that democracy is government “of the people, by the people, and for the people.” The Merriam Webster dictionary defines democracy as “a form of government in which people choose leaders by voting.” By this logic, and by the language of the Fourteenth Amendment, it appears obvious that every citizen of the United States is afforded the right to vote. However, approximately 5.8 million legal citizens of the United States are unable to vote, barred from polling booths by state laws. These citizens are barred by laws that prevent those with felony convictions from voting. This removal of voting rights from convicted felons is known as felony disenfranchisement.

A Brief History

The practice of felony disenfranchisement is rooted in the common law of England through a social policy known as “civil death.” While the English used this doctrine to escheat a felon’s property to the state upon conviction, this practice of civil death in the United States was far more commonly applied to the removal of voting rights. While originally the removal of voting rights was reserved only for the conviction of crimes that were considered “egregious violations of the moral code,” states began to expand the penalty to a broader range of felonies in the 1870s. Some scholars believe that the rise in state disenfranchisement laws was a direct response to the elimination of the requirement that a citizen must hold property to vote. These scholars also believe felon disenfranchisement as an alternative method created by the wealthy to reduce the voting power of the lower classes.1

After the Civil War, some of the Southern states even tailored their felony disenfranchisement statutes to target crimes traditionally committed in a higher frequency by blacks. This racist approach was personified by laws in Mississippi that allowed murderers to vote, but disenfranchised those who committed crimes of theft or arson. While today it is unlikely that the old racist rationales for disenfranchisement exist to the same degree, the effects the laws have on modern society are similar to the effects felony disenfranchisement had in the past.

The Modern Effects

A disenfranchised population of 5.8 million people means that nearly two percent of the United States population is unable to vote. While at first blush this might seem like an insignificant number, it is estimated that had this disenfranchised population been able to vote, they would have affected the results of seven United States Senate races. In addition, Al Gore would have won the presidential election in 2000, as Florida would have been won by Al Gore instead of former President Bush.2 This is clearly a significant impact on the democratic system; a clear and obvious impact on any election caused by disenfranchisement is worrisome, and an election as important as a presidential election should make anyone sit up and take notice.

map of fd laws by state web

One of the core issues with the current system of felony disenfranchisement is that it is not limited to the period of time in which the citizen is serving active time in prison for their felony conviction. In fact, in the majority of states in the U.S., disenfranchisement continues through parole and probation, even though there is no practical hurdle to prevent these men and women from voting. Even worse, in twelve states, citizens convicted of felonies are prevented from voting even after they complete all court-mandated probation requirements. These people are again members of society, and they should have an equal voice in electing those who will shape the world around them.

There are even some indicators that civic participation, including voting, have a positive impact on recidivism rates. If nothing else, the clearly disproportionate impact that felony disenfranchisement laws have on communities of color should raise the question whether these laws are having their intended effects, whatever these intended effects may be. In Florida, Kentucky, and Virginia, more than one in five black adults is disenfranchised, unable to vote on issues that truly matter to them.3 There have been some legal challenges to felony disenfranchisement that have helped to change the tenor of the conversation, and these legal struggles continue today.

Legal Challenges to Felony Disenfranchisement

The primary way that felony disenfranchisement has been challenged has been the argument that disenfranchisement policies are unconstitutional under the Fourteenth Amendment. The applicable section of the Fourteenth Amendment is as follows:

[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.4

 

Felons do not lose their citizenship, and citizens are allowed to vote. At face value, it would appear that since voting is a fundamental right of the United States democratic system, any law denying that right to vote “abridge[s] the privileges” of lawful citizens. However, the most recent Supreme Court case on point, Richardson v. Ramirez, more than forty years ago, held that the historical interpretation of the Fourteenth Amendment’s intent was not to abolish felony disenfranchisement, as disenfranchisement existed at the time and there was no explicit mention of abolition.5 Notwithstanding this defeat in the highest court, some states have begun to move forward with policy reforms to felony disenfranchisement.

Reform: A State by State Effort

There is no doubt that much of the resiliency of felony disenfranchisement laws is the lack of exposure about how onerous the hurdles are that convicted felons must overcome to once again become a voting member of society. Recent public opinion surveys show that eighty percent of Americans support the re-establishment of voting rights for felons once they complete their sentence, and sixty percent of Americans support voting rights for those still on probation or parole. These numbers sit in stark contrast to the majority of states that have laws contrary to public opinion, and help to show that lack of exposure is a serious issue in the reform movement. This is especially true where the individuals most affected by felony disenfranchisement are themselves unable to vote for representatives sympathetic to their plight. This quandary alone shows the dysfunction in the felony disenfranchisement statutes structure, and some states in recent years have come to this realization, and begun to act accordingly.

In the past twenty years, eight states amended or repealed lifetime disenfranchisement laws, ten states have made it easier for convicted felons to enter into the restoration process, and two states expanded voting rights to citizens on probation or parole. North Carolina now requires state agencies to create a process where citizens can be more fully informed about their voting rights under North Carolina law. While states have made some strides to combat unfair felony disenfranchisement, the battle is nowhere near complete.

Regardless of any individual’s personal opinion on whether a person convicted of a felony should be allowed to vote, it is important that society has the conversation about the costs and benefits surrounding felony disenfranchisement. The benefits are nebulous in nature, and ridiculous in reality: preventing “bad people” from voting because bad people make bad decisions. But the benefits of allowing felons to vote are many: the restoration of the key right of democracy; the potential for reduced recidivism rates; a more complete voice of the people through the voting process; and a basic adherence to simple standards of equality. This is a conversation that should be had, and one that the very people under attack are unable to fix for themselves.

1 – Elliott, W. E. Y., The rise of guardian democracy: The Supreme Court’s role in voting rights disputes, 1845- 1969, Cambridge, MA: Harvard University Press (1974).

2 – Uggen, C. & Manza, J., Democratic contraction? Political consequences of felon disenfranchisement in the United States, American Sociological Review, 67 (6), 777-803 (2002).

3 – Uggen, C. & Manza, J., Voting and subsequent crime and arrest: Evidence from a community sample, Columbia Human Rights Law Review, 36 (1), 193-215 (2004).

4 – U.S. Const. Amend. XIV.

5 – Richardson v. Ramirez, 418 U.S. 24, 54-56 (1974).


EEOC Cracks Down on Consideration of Criminal Convictions in Hiring

January 21, 2015

By: Gabrielle Valentine

While reducing recidivism has been the driving force behind the Ban the Box initiative, the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (“the Guidance”) sheds a new light on the importance of employers following fair hiring standards.[1]  Although the Guidance is not binding on courts, it is of great significance to employers because many courts defer to the Equal Employment Opportunity Commission (EEOC), and companies not complying with EEOC regulations risk being sued by the EEOC.

Under Title VII of the Civil Rights Act, employers may not treat a current or potential employee differently than other current or potential employees on the basis of a protected class such as race, color, religion, sex, or national origin.[2]  This prohibits employers from engaging in activities such as hiring, firing, or demoting based on a protected class.  Title VII also prohibits employers from engaging in standard operating practices and procedures that, while seemingly neutral and non-discriminatory on their face, ultimately have the effect of discriminating against a particular protected class.

Prior to enacting the Guidance, the EEOC recognized that for the previous twenty years, the number of people having contact with the criminal justice system was significantly increasing in the working-age population.[3]  Specifically, the EEOC recognized that arrest and incarceration rates were particularly high for African-American and Hispanic men.[4]  The EEOC notes that African-Americans are arrested two to three times more frequently that others of the general population.[5]  While statistics predict that 1 in 17 white men will spend time in prison during their lifetime, 1 in 6 Hispanic men and 1 in 3 African-American men are expected to serve time in a prison.[6]  Thus, an employer may violate Title VII two ways: (1) if, based on race or national origin, he treats criminal history information differently for different applicants or employees, or (2) he has a practice of uniformly considering arrest and conviction records that, on its face seem non-discriminatory, but actually has the effect of excluding African-Americans and Hispanics from the workplace because of the statistically proven higher arrest and conviction rates.[7]

The EEOC Guidance provides that, for an employer to have a practice of considering an applicant’s criminal history without risking liability under Title VII, the consideration of applicants’ criminal history must be job-related and consistent with business necessity.[8] In determining whether the conviction is consistent with business necessity, the EEOC will consider the following factors: (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense or conduct and/or completion of the sentence, and (3) the nature of the job held or sought.[9]

EEOC Pic

While the EEOC did not see much initial success in the enforcement of the Guidance, two recent lawsuits against BMW Manufacturing and Dolgencorp indicate EEOC’s interest in the enforcement of fair hiring standards.  In its suit against BMW, the EEOC alleged that BMW’s background check has a disparate impact on African-Americans by depriving them of employment with BMW and BMW’s logistic services providers.[10]

However, the EEOC faces much opposition because of its practice to conduct background checks when hiring for most positions.  In response to the EEOC’s complaint, BMW filed a motion to compel documents that describe the EEOC’s hiring process in relation to criminal background checks.[11]  The EEOC objected on the grounds that its hiring practices were not relevant to the issue of whether BMW’s practices were consistent with business necessity.[12]  The EEOC’s relentlessness in pursuing “violations” of Title VII in relation to criminal background checks marks the potential for a future of litigation.

Ultimately, the Ban the Box movement is nothing short of a win-win policy for everyone involved.  Not only does the community benefit from reduced recidivism, but following the Guidance shields employers from the risk of EEOC liability while greatly expanding the pool of qualified applicants since many applicants with a criminal history are deterred from even applying for a job.  Furthermore, the “business necessity” analysis applied by the EEOC shields the employer from negligent hiring claims because, for the most part, employers considering the nature of the offense, the time that has passed since the offense, and the nature of the job held or sought will not hire employees that pose a significant threat to the workplace.

[1] The Ban the Box initiative is a movement that asks employers to refrain from requiring individuals to disclose criminal convictions on initial applications. For more information about Ban the Box and the clinic’s work with the initiative please see the following: https://cslcivilrights.com/2014/03/13/i-am-not-my-record/.

[2] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

[3] EEOC Decision No. 915.002, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (2012).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Complaint, EEOC v. BMW Mfg. Co., LLC.

[11] Defendant’s Motion to Compel Production of Documents, EEOC v. BWM Mfg. Co., LLC.

[12] Brief in Opposition to Defendant’s Motion to Compel Production of Documents, EEOC v. BWM Mfg. Co., LLC.


The Certificate of Relief Act

September 12, 2012

In June 2011, the North Carolina General Assembly passed the Certificate of Relief Act (S.L. 2011-265).  This act was added to the Criminal Statutes of North Carolina to allow individuals with a criminal record, including felony and misdemeanor convictions, to escape some of the civil penalties that continue to haunt them after completion of their sentence.

The Certificate is meant to relieve the “Collateral Consequences” of criminal conviction.  Collateral consequences may include a mandatory bar on occupational licensure to discretionary penalties imposed by other decision-makers.  In a civil proceeding, the Certificate may be considered favorably in determining an individual’s receipt or denial of a benefit.  Additionally, the Act provides shelter for employers from negligent hiring lawsuits as a result of their hiring an individual who has received a certificate. Perhaps most importantly, the Certificate of Relief serves as evidence that the individual is not considered to “pose an unreasonable risk to the safety or welfare of the public or any individual.” See North Carolina Justice Center, Certificate of Relief From Collateral Consequences (last visited Aug. 28, 2012).

The Statutes have established a method for petitioning the court for a Certificate of Relief; however, the law is still new and it remains to be seen how well the statutory provisions play out in the courts.  Individuals who believe they qualify for these certificates may access the form online, here.  To qualify for consideration by the court, a petitioner must establish by a preponderance of the evidence (more likely than not), that he/she:

  • Was convicted of no more than two felonies (class G, H or I) or misdemeanors in the same session of court
  • Has 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)
  • Has no criminal charges pending
  • Is seeking to engage or is engaged in a lawful occupation or activity
  • Has complied with all terms of sentence and probation
  • Is not in 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.

This fledging avenue for relief, opportunity, and reintegration has captured the curiosity of the Civil Rights Clinic.  In the coming weeks, the Clinic will be developing a way for our members to get involved in the process of petitioning for Certificates on behalf of applicants and participating in the Certificate of Relief hearings.  We will post updates as they are available.

By: Emily Ray


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