A host of state and federal laws limit the civil rights of individuals with criminal records in a wide variety of settings. This Article describes statutory limitations in eight areas: ability to obtain employment, eligibility for public housing, eligibility for public assistance and food stamps, eligibility for student loans, access to records for non-criminal justice purposes, voting rights, drivers' license privileges, and rights to be foster and adoptive parents. (1)
These restrictions each have a significant impact on the lives of people with criminal records; together they create a formidable set of barriers to their ability to reenter and participate in society. The number of people with histories of arrest or conviction in the United States subject to limitations on their civil rights--often for the rest of their lives--is large and growing. (2) More than 600,000 people are released from state and federal prisons every year, a population equal to that of Baltimore or Boston. (3) The United States Department of Justice ("DOJ") estimates that nearly seven million people are under criminal justice supervision, incarcerated in state and federal prisons and local jails, on probation, or on parole. (4) Tens of millions more have a criminal history record on file with state or federal governments. (5) This means that about twenty-five percent of the nation's adult population lives a substantial portion of their lives with a criminal record. (6)
Incarceration rates are significantly higher for young men of color. (7) DOJ found that eleven percent of all African-American males in their twenties and early thirties are in prison or jail, compared to four percent of Hispanics and 1.5 percent of whites. (8) Indeed, 560,000 young African-American men constitute more than a quarter of the nation's entire incarcerated population. (9) African-Americans are at least seven times more likely than whites, and two times more likely than Hispanics, to be incarcerated. (10)
Government can and should have legitimate concerns about protecting the public safety from people who might do the public harm and about allowing employers and others to disqualify those whose criminal records demonstrate their unsuitability. At the same time, government also has an obligation to ensure fairness and opportunity for people who were arrested but never convicted or, if convicted, satisfied or are complying with their sentences, so they can obtain employment, housing, food, and other necessities of life.
I. ABILITY TO OBTAIN EMPLOYMENT
Legal standards for employment of people with criminal records are predominately created by state laws. While there is no explicit federal law, the Equal Employment Opportunity Commission ("EEOC") has ruled that employment policies excluding people based upon arrests of convictions unrelated to the job sought may violate Title VII of the Civil Rights Act of 1964 because of their disproportionate impact on minorities, who are arrested and convicted at a significantly higher rate than their percentage in the population. (11)
Under the EEOC's Title VII guidelines, employers may not exclude people based upon arrests that did not lead to conviction unless there is a business justification. (12) A "business justification" must show that the applicant engaged in the conduct for which he or she was arrested, and that the conduct is both job-related and fairly recent. The EEOC guidance requires employers to give applicants a chance to explain their arrest records before they are disqualified from employment. (13)
Similarly, the EEOC has stated that an employer only may exclude a person because of a criminal conviction if there is a business necessity. (14) To establish business necessity, the employer must consider: 1) the nature and gravity of the offense(s); 2) the time that has elapsed since the conviction and/or completion of the sentence; and 3) the nature of the job held or sought. …