STYMIED BY THE STIGMA OF A CRIMINAL CONVICTION

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STYMIED BY THE STIGMA OF A CRIMINAL CONVICTION:
CONNECTICUT AND THE STRUGGLE TO RELIEVE
COLLATERAL CONSEQUENCES
I. INTRODUCTION: STORIES FROM AN INDISCRIMINATELY
PROMULGATED AND ADMINISTERED REGIME
Like thousands of adolescents in communities across the nation,1
young Leah Gibson’s indiscretions landed her in serious legal trouble.2
In 1992, Ms. Gibson, then just seventeen years old minor, was convicted
of breach of peace and disorderly conduct.3 In 1995, at the age of
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1. Juvenile arrests are common. In 2010, there were 4,857 arrests of persons aged 10–
17 per 100,000 persons aged 10–17 in the United States population. Juvenile Arrest Rate
Trends, U.S. DEPT. OF JUSTICE: OFFICE OF JUVENILE JUSTICE AND DELINQUENCY
PREVENTION,
http://www.ojjdp.gov/ojstatbb/crime/JAR_Display.asp?ID=qa05200
(last
visited Feb. 18, 2013). [hereinafter Juvenile Arrest Rate Trends]. While quite high, this
nonetheless represents a 24 percent reduction in juvenile arrests since 1980, and a 43 percent
reduction since 1996. See id. In fact, there has been an across-the-board drop in virtually all
categories of juvenile crime, including serious violent crimes, property crimes such as
burglary and arson, and less serious offenses such as vandalism, loitering, and disorderly
conduct. Juvenile Arrest Rates, U.S. DEPT. OF JUSTICE: OFFICE OF JUVENILE JUSTICE AND
DELINQUENCY PREVENTION, http://www.ojjdp.gov/ojstatbb/crime/jar.asp (last visited Feb.
18, 2013). Trends in overall juvenile arrest rates have followed consistent patterns for both
males and females, and also for all races. Juvenile Arrest Rate Trends, U.S. DEPT. OF
JUSTICE: OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION,
http://www.ojjdp.gov/ojstatbb/crime/JAR_Display.asp?ID=qa05230 (last visited Feb. 18,
2013) (Showing statistics for juvenile arrest rates for all crimes by sex, 1980–2009); Juvenile
Arrest Rate Trends, U.S. DEPT. OF JUSTICE: OFFICE OF JUVENILE JUSTICE AND DELINQUENCY
PREVENTION,
http://www.ojjdp.gov/ojstatbb/crime/JAR_Display.asp?ID=qa05260
(last
visited Feb. 24, 2013) (Showing statistics for juvenile arrest rates for all crimes by race,
1980–2009. “Between 1980 and 2010, the total juvenile arrest rate decreased 54% for Asians,
51% for American Indians, 30% for whites, and 8% for black juveniles.”).
2. See Gibson v. State Dist. Attorney, City of New Haven, CV074027738S, 2007 WL
4239801, at *1 (Conn. Super. Ct. Nov. 16, 2007).
3. Id.
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twenty, she was convicted of assault in the third degree and aiding and
abetting robbery in the third degree.4 But in the twelve years after these
convictions, Ms. Gibson overcame these “personal obstacles” and
became a licensed registered nurse, eligible to practice in multiple
states.5
Yet, despite the fact that Ms. Gibson had lived a law-abiding and
productive life for over a decade, she continued to bear the stigma of a
criminal record.6 As a result of her criminal convictions, Ms. Gibson
experienced difficulties personally and professionally.7 Her ability to
find housing was compromised.8 She had trouble obtaining employment
in her chosen field of nursing.9 She even failed to qualify for
participation in dating agencies.10 Ms. Gibson felt that, based on (1) her
youth at the time of the offenses, (2) the time elapsed since the
convictions, and (3) her success in rehabilitating herself and “assum[ing]
a responsible position in society,” she was entitled to ask the state to
refrain from releasing her criminal records to the public. 11 She felt that,
under the circumstances, her status as a convict was simply an unfair
burden to bear.12
As a result, Ms. Gibson, acting in a pro se capacity, sought her “day
in court” to effectuate her desire to put her criminal past behind her in
favor of a law-abiding and productive future.13 But when she went to
court seeking injunctive relief to restrain the state and other persons and
agencies “from releasing [her] legal record to the public, namely
employers and landlords,”14 the Connecticut Superior Court held that it
lacked “the power . . . to undertake any action . . . that could provide
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Id.
Id.
Gibson, 2007 WL 4239801, at *1. This Note does not address or comment on the
wisdom of various penal consequences (i.e., imprisonment, probation, parole, forfeiture, fine,
etc.) associated with a criminal conviction, but is solely concerned with the civil consequences
of a criminal conviction.
7. Id. In addition to the difficulties resulting from her criminal convictions, Ms.
Gibson also cited the enhanced security concerns since September 11, 2001 and her status as a
member of a minority group as further reasons for her difficulties finding employment and
housing and for qualifying for dating agencies. Id.
8. Id.
9. Gibson, 2007 WL 4239801, at *1.
10. Id.
11. Id. at *2.
12. Id.
13. Gibson, 2007 WL 4239801, at *1.
14. Id. (quoting plaintiff Leah Gibson’s complaint).
4.
5.
6.
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[Ms. Gibson] with the relief she desir[ed].”15 While the Court
sympathetically noted that the request seemed “reasonable,” it had no
authority to provide relief.16
Ms. Gibson’s situation is far from unique.17 New Britain,
Connecticut, resident LaResse Harvey, who came from a “chaotic
background” with “little support from either of her parents,” shares a
similar story.18 In 1993, Ms. Harvey, then a young single mother, was
“losing her nights in booze” when she was involved in a 3 a.m. fight.19
Ms. Harvey was “jumped” on her twenty-first birthday and she “stabbed
a young lady [who] passed away.”20 She was found guilty of seconddegree manslaughter and was incarcerated for five and a half years.21
While incarcerated, Ms. Harvey was repeatedly sexually assaulted.22
Despite this trauma, she took advantage of numerous rehabilitative
opportunities, participating in “every . . . vocational and life-skills course
available in prison” while “tak[ing] college courses and tutor[ing] other
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15. Id. at *3.
16. Id. at *2–3. New Haven Superior Court Judge Jonathan E. Silbert observed that
Ms. Gibson did “not attack the validity of her criminal convictions” and “ma[de] no allegation
that any of the defendants did anything wrong or inconsistent with their duties under the law.”
Gibson, 2007 WL 4239801, at *2. “Rather, she complain[ed] that no one reasonably could
have intended for her to continue to suffer the harsh consequences of the youthful
indiscretions that occurred when she was between the ages of 17 and 20, in light of the fact
that she has done so much since then to rehabilitate herself and to assume a responsible
position in society.” Id. at *2. While holding that it lacked the power to provide this relief,
the court noted that the state legislature has provided a method for releasing the burden of the
stigma of a criminal conviction when that privilege has been earned. Id. at *2. (citing CONN.
GEN. STAT. §§ 54-130a, 54-130e (2007)). This method is by filing a pardon application to the
Board of Pardons and Paroles. See discussion infra Part II.B.1.
17. See, e.g., Matthew Kauffman, Arrest Turned Her Life Around, HARTFORD
COURANT
(Sept.
9,
1995),
http://articles.courant.com/1995-0909/news/9509090272_1_maximum-sentence-second-chances-prison.
18. See id.
19. Id.
20. Thomas MacMillan, Prison Rape Bill Advances, NEW HAVEN INDEPENDENT (Apr.
18,
2011),
http://www.newhavenindependent.org/index.php/archives/entry/prison_rape_bill_advances/.
21. Id.
22. Id. Ms. Harvey’s female cellmate raped her numerous times over an eight-month
period. Id. When Ms. Harvey tried to report the incidents, authorities did not believe her.
MacMillan, supra note 20. She eventually found support from a facility psychiatrist. Id.
Regrettably, Ms. Harvey’s experience is far from unique. See US: Federal Statistics Show
Widespread
Prison
Rape,
HUMAN
RIGHTS
WATCH
(Dec.
15,
2007),
http://www.hrw.org/news/2007/12/15/us-federal-statistics-show-widespread-prison-rape.
The U.S. Justice Department’s Bureau of Justice Statistics reports that in 2007, 4.5% of
surveyed state and federal prisoners reported sexual victimization. Id. “Given a national
prison population of 1,570,861, the . . . findings suggest that in one year alone more than
70,000 prisoners were sexually abused.” Id.
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inmates.”23 Of these courses, Ms. Harvey took one class that provided
her with the training necessary to earn a cosmetology license.24
After Ms. Harvey was released on parole, she found a job working
in a barbershop.25 Yet, the situation was too good to be true. Ms.
Harvey alleges that her employer “took advantage” of her felony
conviction by not paying her the wages promised.26 Ms. Harvey went on
to work at several other employers in her home town, jobs she was able
to obtain, in part, as a result of references from friends.27 During this
time, she also earned three Associates Degrees and a Bachelor’s Degree
in Social Work.28
As Ms. Harvey’s career progressed, however, she continued to bear
the burden of her criminal conviction, despite her well-documented
rehabilitation.29Eventually, after receiving her degrees, Ms. Harvey
sought employment in her chosen field of social work.30 Over the course
of a year, she attended twenty-five interviews and on several occasions
was hired on the spot.31 In each instance, however, the employer would
discover her felony conviction and rescind the job offer.32
Today, Ms. Harvey is the Director of Strategic Relations at A
Better Way Foundation, a Connecticut nonprofit that works on
leadership development and educating communities on a plethora of
issues including drug policy, criminal and juvenile justice, and reentry.33
Additionally, she operates a nonprofit lobbying company.34 She has
made the transition from incarcerated person to professional social
justice advocate.35 Because some employers were willing to take a
chance on a person with a very serious criminal conviction, Ms. Harvey
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Kauffman, supra note 17.
Telephone Interview with LaResse Harvey, Director of Strategic Relations, A
Better Way Foundation (Oct. 25, 2011).
25. Id.
26. Id.
27. Id. For example, Ms. Harvey worked part-time at the local Cost Cutters
barbershop. She knew one of the women who worked there since grade school; this friend
was able to convince the owner that she was not a threat. Interview with LaResse Harvey,
supra note 24.
28. Id.
29. Id.
30. Id.
31. Interview with LaResse Harvey, supra note 24.
32. Id.
33. Id.
34. Id.
35. See Interview with LaResse Harvey, supra note 24.
23.
24.
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received the proverbial “second chance” in life.36
While Ms. Harvey’s compelling story has a remarkable
conclusion,37 countless other ex-offenders are unable to remove the
stigma of a prior criminal conviction.38 The number of people shackled
by a criminal conviction is staggering.39 Researchers estimate that “just
under twenty million individuals in the United States [have] a felony
conviction record, about 8.6 percent of the total adult population, and
approximately one-third of the adult African-American population.”40 In
Connecticut alone, there are hundreds of thousands of Leah Gibsons and
LaResse Harveys.41 Approximately 250,000 people in one tiny and
affluent state have a criminal record.42 Undoubtedly some of these
individuals present serious problems for employers, housing authorities,
and the general public. But many others have served their sentences,
paid back their debt to society, rehabilitated themselves, and not
recidivated.43 These persons claim that they deserve relief from their
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36. The notion of a “second chance” is common theme in contemporary American
discourse. See, e.g., Text of President Bush’s 2004 State of the Union Address, WASH. POST
(Jan.
20,
2004),
http://www.washingtonpost.com/wpsrv/politics/transcripts/bushtext_012004.html [hereinafter Bush’s State of the Union]
(“America is the land of second chance, and when the gates of the prison open, the path ahead
should lead to a better life.”). A Google search for “second chance in life” yields
approximately 447 million results. GOOGLE, http://www.google.com (search for “second
chance in life”) (last visited June 26, 2013). News articles frequently speak of ex-offenders
on probation or parole as being given a “second chance.” See, e.g., Justin Ward, Gifts of a
Second Chance at Life for Ex-Offenders in Southern Virginia, WBDJ7.COM (Dec. 21, 2011),
http://articles.wdbj7.com/2011-12-21/second-chance_30544708; Local Program Gives ExOffenders Real Chance at Job, New Life, FROST ILLUSTRATED, May 12, 2010, available at
http://dev.little.am/frostillustrated.com/atf.php-sid=7446.html (“Everyone deserves a second
chance, but they have to earn it.”).
37. Ms. Harvey’s story of rehabilitation has moved people of all political stripes. See,
e.g., Dan Lovallo, The Show Was People, DANLOVALLO.COM (March 7, 2012), available at
http://www.danlovallo.com/774/the-show-was-people/. The staunchly conservative radio talk
show host Dan Lovallo (self-billed as “Connecticut radio’s true conservative voice,” About
Dan, DANLOVALLO.COM, http://www.danlovallo.com/about-dan/ (last visited Mar. 8, 2013))
hosted Ms. Harvey on his program and wrote that her “compelling story . . . deserved to be
told.” Lovallo, The Show Was People, supra.
38. See JOHN SCHMITT & KRIS WARNER, CTR. FOR ECON. & POLICY RESEARCH, EXOFFENDERS
AND
THE
LABOR
MARKET
1
(2010),
available
at
http://www.cepr.net/documents/publications/ex-offenders-2010-11.pdf.
39. See id.
40. Margaret Colgate Love, Paying Their Debt to Society: Forgiveness, Redemption,
and the Uniform Collateral Consequences of Conviction Act, 54 HOW. L.J. 753, 755 n.4
(2011) (internal citations omitted).
41. See Interview with LaResse Harvey, supra note 24.
42. See id.
43. In recent years, Connecticut has placed considerable emphasis on reducing
recidivism. The comprehensive 2011 annual recidivism study by the Criminal Justice Policy
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present “legal limbo.”44
The “collateral consequences”45 of a criminal conviction can
remain with people for years and decades after they have fully served
their sentences.46 Whether it is the reluctance of employers to hire an
individual with a criminal record; the former offender’s inability to
obtain professional licenses or public housing; or the disqualification of
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and Planning Division of the State of Connecticut’s Office of Policy and Management (the
study is mandated by state statute, see CONN. GEN. STAT. § 4-68o (2011)), found mixed
results. See STATE OF CONN. OFFICE OF POLICY AND MGMT., 2011 ANNUAL RECIDIVISM
REPORT
(2011),
available
at
http://www.ct.gov/opm/lib/opm/cjppd/cjresearch/recidivismstudy/2011_recidivism_report_fin
al.pdf. The study reports that 16,286 sentenced offenders were released or discharged from
Department of Corrections (“DOC”) facilities in 2008. Id. at 5. Within two years, 56% of
those individuals were rearrested, but only 39% were convicted on new charges and 27%
began a new prison sentence. Id. Consistent with previous studies, the recidivism rates for
young male offenders were considerably higher than their older counterparts; also, male
offenders generally recidivate at higher rates than females. Id. at 7.
44.
See AM. BAR ASS’N, CRIM. JUST. SECTION, NATIONAL INVENTORY OF THE
COLLATERAL CONSEQUENCES OF CONVICTION: PROJECT DESCRIPTION, (2012) [hereinafter
INVENTORY
PROJECT
DESCRIPTION],
available
at
http://www.abacollateralconsequences.org/CollateralConsequences/docs/ProjectDescription.g
p.ml.pdf (“While collateral consequences have been a familiar feature of the American justice
system since colonial times, they have become more important and more problematic in the
past 20 years for three reasons: they are more numerous and more severe, they affect more
people, and they are harder to avoid or mitigate. As a result, millions of Americans are
consigned to a kind of legal limbo because at one point in their past they committed a
crime.”).
45. As the name implies, the “collateral consequences” of a criminal conviction are
consequences that are not explicit (contrasted with direct consequences, which are anticipated,
intended, and explicit). See UNIFORM COLLATERAL CONSEQUENCES OF CONVICTION ACT
(2010)
§
2(1)
[hereinafter
UCCCA],
available
at
http://www.law.upenn.edu/bll/archives/ulc/ucsada/2010final_amends.pdf.
Collateral
consequences are generally civil consequences of a criminal conviction. See id. The
definition contained in the Uniform Collateral Consequences of Conviction Act provides that
“‘[c]ollateral consequence’ means a collateral sanction or a disqualification.” Id. Collateral
sanction is further defined as “a penalty, disability, or disadvantage . . . imposed on an
individual as a result of the individual’s conviction of an offense which applies by operation
of law whether or not the penalty, disability, or disadvantage is included in the judgment or
sentence,” excluding “imprisonment, probation, parole, supervised release, forfeiture,
restitution, fine, assessment, or costs of prosecution.” Id. § 2(2). By contrast, a
disqualification is discretionary in nature and means “a penalty, disability, or disadvantage . . .
that an administrative agency, governmental official, or court in a civil proceeding is
authorized, but not required, to impose on an individual on grounds relating to the individual’s
conviction of an offense.” UCCCA, supra, § 2(5). As used in this Note, “collateral
consequences” includes both mandatory and discretionary bars imposed by virtue of a
criminal conviction.
46. MARGARET COLGATE LOVE, RELIEF FROM THE COLLATERAL CONSEQUENCES OF
A CRIMINAL CONVICTION: A STATE-BY-STATE RESOURCE GUIDE 6 (2006) [hereinafter
RESOURCE GUIDE].
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47.
48.
49.
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Id. at 7.
Id. at ix.
See AM. BAR ASS’N STANDARDS FOR CRIMINAL JUSTICE, COLLATERAL
SANCTIONS AND DISCRETIONARY DISQUALIFICATION OF CONVICTED PERSONS 10 (3d ed.
2004)
[hereinafter
ABA
STANDARDS],
available
at
http://www.americanbar.org/content/dam/aba/publishing/criminal_justice_section_newsletter/
crimjust_standards_collateralsanctionwithcommentary.authcheckdam.pdf.
Many
commentators have observed that “[o]ur prison system seems to perpetuate its population,
instead of diminish it.” See, e.g., Halle Tecco, Prison Programs Take Innovative Approach to
Reducing
Recidivism,
HUFFINGTON
POST
(Oct.
19,
2009),
http://www.huffingtonpost.com/halle-tecco/prison-programs-take-inno_b_326020.html.
Some unusual efforts to reduce recidivism have been particularly inventive, with programs
promoting entrepreneurship, the rehabilitative benefits of yoga and the arts, and even one state
(Kansas) which matches homeless puppies to violent offenders in an effort to help inmates
“rediscover their humanity.” Id.
the former offender in areas as diverse as education, health care, and
child care; a person with a criminal record faces innumerable barriers to
reintegration into society.47 Even when people have fully rehabilitated
themselves, they are likely to carry the “collateral disabilities and stigma
of conviction to their grave.”48 “If promulgated and administered
indiscriminately, a regime of collateral consequences may frustrate the
chance of successful re-entry into the community, and thereby encourage
recidivism.”49 In short, such a regime may forever foreclose relief.
How will individuals like Ms. Gibson and Ms. Harvey fare as they
reenter society, after serving their penal sentence, and seek relief from
the collateral consequences of a criminal conviction in areas such as
licensing, employment, and housing under existing Connecticut statutes?
Part II of this Note explores the interesting mix of progressive and
regressive legislation and administrative practices in Connecticut, with
an emphasis on what other jurisdictions can learn from Connecticut’s
unusually robust pardons program. Furthermore, the inadequacy of
other administrative mechanisms is explored. How can Connecticut’s
system be reformed in light of the best practices of selected other
jurisdictions? Part III explores the practices of other states with active
administrative programs to relieve barriers and disabilities, such as the
Certificates of Relief from Disabilities and Certificates of Good Conduct
granted by New York and Illinois. In addition to examining the
practices of other jurisdictions, how would individuals fare under model
legislation authored by practitioners, academics, and reformers? Part IV
explores the mechanisms found in the Model Penal Code, the American
Bar Association Collateral Sanctions Standards, and the Uniform
Collateral Consequences of Conviction Act. Finally, Part V explains
what other jurisdictions can learn from Connecticut’s best practices,
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particularly an administrative pardon regime that other states should
emulate. Finally, this Note reviews the strengths and weaknesses in the
menu of statutory options available and proposes a model that
incorporates successful aspects of the existing statutory and
administrative regimes while supplementing those features with
processes and guidelines that attempt to provide greater clarity. Such a
model would streamline the hurdles imposed by irrational, burdensome,
and disproportionate collateral consequences.
II. EXISTING COLLATERAL CONSEQUENCES AND MECHANISMS FOR
RELIEF IN CONNECTICUT
A. Discrimination Based on a Criminal Record: Surveying Collateral
Consequences
Persons with a criminal conviction record must navigate a complex
maze of legal and regulatory collateral consequences existing at every
level of government.50 While academics and policymakers mainly
concentrate on the barriers at the state level,51 a wide variety of
disabilities are imposed on ex-offenders at each governmental tier:
Statutes establishing collateral
federal,52 state,53 and local.54
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50. Historically, courts have not considered these permanent civil punishments to be a
part of criminal sentencing, even if the civil consequences are disproportionate to a fairly
minor criminal sentence. See Deborah N. Archer & Kele S. Williams, Making America ‘the
Land of Second Chances’: Restoring Socioeconomic Rights for Ex-Offenders, 30 N.Y.U. REV.
L. & SOC. CHANGE 527, 536 (2006). However, in 2010, the United States Supreme Court
held for the first time that, under the Sixth Amendment, a criminal defendant must be
informed about certain civil consequences, even though they may not be a direct part of the
criminal sentence. Padilla v. Kentucky, 559 U.S. 356, 373–74 (2010). Specifically, the court
held that defense attorneys are required under the Sixth Amendment right to counsel to advise
their clients of deportation consequences in the context of plea negotiations. Id. at 1481
(“We . . . have never applied a distinction between direct and collateral consequences to
define the scope of constitutionally ‘reasonable professional assistance’ required under
[Strickland v. Washington, 466 U.S. 668, 689 (1984)].”). Commentators and scholars have
argued that the Padilla decision requires criminal defense attorneys to consider collateral
consequences and advise their client’s accordingly, predicting that the “‘Padilla advisory’ may
become as familiar a fixture of a criminal case as the Miranda warning.” Margaret Love &
Gabriel J. Chin, The “Major Upheaval” of Padilla v. Kentucky: Extending the Right to
Counsel to the Collateral Consequences of a Conviction, 25 CRIM. JUST. 36, 37 (2010).
51. See, e.g., Jennifer Leavitt, Walking a Tightrope: Balancing Competing Public
Interests in the Employment of Criminal Defenders, 34 CONN. L. REV. 1281, 1285–97 (2002)
(focusing on the “[u]neven and [d]iverse [s]tatutory [s]chemes” employed by the states when
“creating . . . employment opportunities for ex-offenders”).
52. See, e.g., 28 U.S.C. § 1865(b)(5) (2012) (disqualification from federal jury service);
20 U.S.C. § 1091(r) (2012); 26 U.S.C. § 25A(b)(2)(D) (2012) (restricting access to federal
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consequences are widespread and have been “promulgated with little
coordination in disparate sections of state and federal codes.”55 A
comprehensive national study by the American Bar Association
identified a multitude of statutes containing a collateral consequence.56
In addition to these statutory and administrative barriers, ex-offenders
applying for private employment or housing are likely to be stymied by
the private, informal collateral consequences imposed at all levels of
society.57
The federal government imposes certain barriers. For example, a
higher education student is ineligible for federal aid (grants, loans, or
work assistance) if he is convicted under federal or state law of a crime
involving possession or sale of a controlled substance.58 No one
convicted of any felony can serve in the military.59 Federal law strictly
prohibits persons convicted of manufacturing or producing
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student loans); 42 U.S.C. §§ 1437n(f), 13663(a), 13661(c) (2012) (restricting admission to
federally supported housing).
53. See, e.g., CONN. GEN. STAT. §§ 20-494, 21a-9(c) (2011) (disqualifying exoffenders from home improvement contractor or salesman registration); CONN. GEN. STAT. §
20-162p (2011) (providing for the revocation, suspension, etc. of license for respiratory care
practitioners); CONN. GEN. STAT. § 31-236(a)(2)(B) (2011) and CONN. AGENCIES REGS. § 31236-25 (2013) (providing that felons can be discharged from unemployment compensation
program).
54. See, e.g., CITY OF NEW HAVEN, NEW HAVEN REENTRY RESOURCE GUIDE 51 (May
2012) (noting that “[t]he Housing Authority will consider the application of someone with a
criminal record on a case-by-case basis. Therefore, whether or not HANH will deny
admission to an applicant for public housing based on his or her criminal record is hard to
predict”); CITY OF NEW HAVEN, NEW HAVEN REENTRY RESOURCE GUIDE 48–49 (Sept.
2009) (restricting individuals from housing administered by the New Haven Housing
Authority for “[c]riminal activity that shows a pattern or history of abuse of alcohol, illegal or
prescription drugs and narcotics; [the] [i]llegal manufacture, sale, distribution, use, or
possession with the intent to manufacture, sell, distribute, or use a controlled substance or
drug; [u]se, attempted use, or threatened use of physical violence; [i]njury to a minor;
[e]viction from public housing for illegal drug activity; [r]obbery; [f]elony larceny;
[p]rostitution; [h]omicide; [p]ossession or sale of illegal firearms; [f]elony financial crimes
(including but not limited to welfare fraud and forgery); [a]ny form of terrorism.”).
55. See INVENTORY PROJECT DESCRIPTION, supra note 44.
56. National Inventory of the Collateral Consequences of Conviction, AM. BAR ASS’N,
CRIM. JUST. SECTION, http://www.abacollateralconsequences.org/ (last visited Oct. 15, 2013).
57. See RESOURCE GUIDE, supra note, 46, at 6–7 (“Limited employment opportunities
are perhaps the most troublesome of the secondary legal consequences of conviction, since an
inability to get or keep a job has been identified as a major factor in recidivism. The natural
reluctance to hire people with a criminal record has been exacerbated since the 9/11 terrorist
attacks, so that it now more likely than ever than a criminal record will be discovered, and that
it will result in loss of a job or other professional opportunity.”).
58. 20 U.S.C. § 1091(r) (2012).
59. 10 U.S.C. § 504(a) (2012) (providing that “[n]o person who . . . has been convicted
of a felony, may be enlisted in any armed force”).
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methamphetamines on public housing premises or anyone subject to a
lifetime sex offender registration requirement from ever being eligible
for admission to federally assisted housing.60
Connecticut, like all jurisdictions, addresses collateral
consequences extensively in its statutory scheme.61 Unlike other issues
where the public policy of the state is unclear at best, or indecipherable
at worst,62 the expressed philosophy of Connecticut is manifestly and
explicitly clear on issues of collateral consequences. Connecticut’s
policy regarding reemployment of criminal offenders “that the public is
best protected when criminal offenders are rehabilitated and returned to
society prepared to take their places as productive citizens and that the
ability of returned offenders to find meaningful employment is directly
related to their normal functioning in the community” is codified by
statute.63 Thus, it is the policy of Connecticut to “encourage all
employers to give favorable consideration to providing jobs to qualified
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60. 42 U.S.C. § 1437n(f) (2012) (mandating the “[i]neligibility of individuals convicted
of manufacturing or producing methamphetamine on the [public housing] premises”) and 42
U.S.C. § 13663(a) (2012) (requiring “an owner of federally assisted housing” to “prohibit
admission to such housing for any household that includes any individual who is subject to a
lifetime registration requirement under a State sex offender registration program”). Because
valid federal law trumps its state counterpart and this Note is primarily concerned with state
law, hereafter I will generally avoid discussion of federal collateral consequences and
potential mechanisms for relief of such consequences. This Note focuses on state mechanisms
for relief of collateral consequences. Such mechanisms could relieve both state consequences
and local consequences, since a valid state law generally preempts a local municipal
ordinance.
61. See Margaret Love & April Frazier, Certificates of Rehabilitation and Other Forms
of Relief from the Collateral Consequences of Conviction: A Survey of State Laws, AM. BAR
ASS’N
1
(Oct.
1,
2006),
available
at
http://meetings.abanet.org/webupload/commupload/CR209800/sitesofinterest_files/AllStates
BriefingSheet10106.pdf [hereinafter Survey of State Laws] (“The statute books in every
jurisdiction are filled with laws that disqualify people with a criminal record from jobs,
occupational licenses, housing, and other benefits and opportunities.”). For a concise and
helpful overview of the barriers imposed in Connecticut, see OFFICE OF LEGISLATIVE
RESEARCH, 2005-R-0311, CONSEQUENCES OF A FELONY CONVICTION REGARDING
EMPLOYMENT (2005) [hereinafter FELONY CONVICTION CONSEQUENCES], available at
http://www.cga.ct.gov/2005/rpt/2005-r-0311.htm.
62. Cf. Brockmeyer v. Dun & Bradstreet, 335 N.W.2d 834, 840 (Wis. 1983)
(discussing “the vagueness of the concept of public policy”); Sullivan v. Mass. Mut. Life Ins.
Co., 802 F. Supp. 716, 725 (D. Conn. 1992) (“Many areas of the law are evolving and
unclear.”).
63. CONN. GEN. STAT. § 46a-79 (2011) (“State policy re employment of criminal
offenders”). In this statute, Connecticut clearly expresses a preference for the rehabilitative
theory of punishment. See id. Traditionally, the commonly cited goals of punishment are
retribution, deterrence, rehabilitation, and incapacitation. See, e.g., Michele Cotton, Back with
A Vengeance: The Resilience of Retribution As an Articulated Purpose of Criminal
Punishment, 37 AM. CRIM. L. REV. 1313, 1313 (2000).
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individuals, including those who may have criminal conviction
records.”64 Yet despite this long-standing statutory statement of public
policy,65 Connecticut imposes numerous barriers and forfeitures, mainly
relating to employment and licensure.66
The collateral consequences authorized by Connecticut’s legislature
are voluminous.
Many licensing and permitting statutes grant
discretionary authority to a state agency to suspend, revoke, or deny a
license or permit based on a felony conviction.67 Among the many
licenses and permits which may be revoked by an agency in light of a
criminal conviction are those affecting private detectives, watchmen,
guards, and patrol services;68 radiographers and radiologic
technologists;69 contractors;70 attorneys;71 public service gas
technicians;72 athlete agents;73 midwives;74 architects;75 any professions
under the jurisdiction of the Department of Public Health;76 and
individuals or businesses selling insurance.77
64.
65.
66.
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CONN. GEN. STAT. § 46a-79 (2011).
Id. (This statute has been in effect, in one form or another, since 1958).
FELONY CONVICTION CONSEQUENCES, supra note 61, at 1–2 (“A convicted felon
could lose a professional license or permit” and “[m]any statutes authorize government
agencies to revoke or suspend licenses or permits for conviction of a felony,” while the law
simultaneously “restricts the ability of agencies to do so.”).
67. See, e.g., CONN. GEN. STAT. § 51-51i (2011) (judges, family support magistrates,
worker’s compensation commissioners); CONN. GEN. STAT. § 20-559e (2011) (athlete
agents); CONN. GEN. STAT. § 29-158 (2011) (private detectives, watchmen, guards, and patrol
services).
68. See CONN. GEN. STAT. § 29-158 (2011).
69. See CONN. GEN. STAT. § 20-74cc. (2011).
70. See CONN. GEN. STAT. § 20-341gg (2011). The statutory scheme allows for the
denial or revocation of licenses affecting electricians; plumbers; heating, piping, and cooling
contractors and journeymen; elevator contractors and craftsmen; solar contractors and
journeymen; fire protection sprinkler contractors and journeymen; irrigation contractors and
journeymen; sheet metal contractors and journeymen; and automotive and flat glass
contractors and journeymen. FELONY CONVICTION CONSEQUENCES, supra note 61, at 3.
71. See CONN. GEN. STAT. § 51-91a (2011).
72. See CONN. GEN. STAT. § 20-540 (2011).
73. See CONN. GEN. STAT. § 20-559e (2011).
74. See CONN. GEN. STAT. § 20-86h (2011).
75. See CONN. GEN. STAT. § 20-294 (2011).
76. See, e.g., CONN. GEN. STAT. § 19-17 (2011). Professions specifically under the
jurisdiction of the Department of Health include the following: “healing arts, medicine and
surgery, osteopathy, chiropractic, natureopathy, podiatry, physical therapists, nursing, nurse’s
aides, dentistry, optometry, opticians, psychologists, marital and family therapists, clinic
social workers, professional counselors, veterinary medicine, massage therapists, dieticiannutritionists, acupuncturists, paramedics, embalmers and funeral directors, barbers,
hairdressers and cosmeticians, and hypertrichologists.”
FELONY CONVICTION
CONSEQUENCES , supra note 61, at 3.
77. See CONN. GEN. STAT. §§ 38a-702k, 38a-660(h) (2011).
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78. See, e.g., CONN. GEN. STAT. § 29-152f (2011) (prohibiting licensing a convicted
felon as a bail enforcement agent).
80. CONN. GEN. STAT. § 21-100 (2011).
81. FELONY CONVICTION CONSEQUENCES , supra note 61, at 4.
82. CONN. GEN. STAT. § 20-74g (2011).
83. CONN. GEN. STAT. § 20-354 (2011).
84. CONN. GEN. STAT. § 20-363 (2011).
85. CONN. GEN. STAT. § 20-377r (2011).
86. See CONN. GEN. STAT. § 20-195p (2011) (authorizing the Department of Health to
suspend or revoke a social worker’s license based on a felony conviction).
88. See INVENTORY PROJECT DESCRIPTION, supra note 44.
89. See CONN. GEN. STAT. § 20-294. (2011).
90. See CONN. GEN STAT. § 19-17 (2011).
91. Id.
In addition to these discretionary barriers, other statutes create
mandatory bars to obtaining a license or permit.78 For example,
Connecticut law prohibits a person convicted of any felony from being
employed as an agent, operator, assistant, guard, watchman, or
patrolman.79 Some provisions impose mandatory barriers which
municipalities must enforce, such as a statute requiring a chief of police
or first selectman to refuse to issue a license for the purchase of precious
metals and stones to any applicant with a felony conviction.80 Other
statutes provide for suspension or revocation of licenses or permits for
lack of good moral character or conviction of certain specified crimes
(often those related to possession, fraud, or extortion).81 Professions
affected by these provisions include occupational therapists,82 television
and radio service dealers,83 sanitarians,84 and interior designers.85
Some of these consequences serve an important and legitimate state
interest. The state has a strong interest in protecting vulnerable children
or seniors from unscrupulous social workers,86 or affirming that
attorneys convicted of fraud are barred from a position of public trust.87
These restrictions seem narrowly tailored to serve the state’s regulatory
function of protecting the public against well-defined public harms. But
many other consequences appear irrational and dubious because they
“apply across the board . . . without regard to any relationship between
crime and consequence, and frequently without consideration of how
long ago the crime occurred or what the individual has managed to
accomplish since.”88 For example, Connecticut’s statutory scheme
specifically authorizes an agency to suspend or revoke a license or
permit based on conviction of a felony for architects,89 barbers,90
hairdressers and cosmeticians,91 radiographers and radiologic
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technologists,92 and lead abatement consultants.93 The sheer plethora
and variety of these collateral consequences, affecting a wide range of
activities, suggests a scattershot approach that is attenuated to the real
harms to be addressed. The lack of temporal limitations, the lack of
regard for any post-conviction rehabilitation, and the categorical nature
of these disqualifications all buttress that conclusion.94How do these
barriers comport with the aforementioned statutory statement of public
policy encouraging employers to hire qualified ex-offenders?95 Happily,
these seemingly incongruous statutes are harmonized to some extent by
92.
93.
94.
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See CONN. GEN. STAT. § 20-74cc (2011).
See CONN. GEN. STAT. § 20-481 (2011).
In addition to being poor public policy, some of Connecticut’s categorical bars to
licensure and permitting may be unconstitutional. In 2013, Judge Stefan R. Underhill of the
United States District Court for the District of Connecticut held that CONN. GEN. STAT. § 21100 (2011), mandating that municipal leaders deny a precious metals license to persons
convicted of any felony, is unconstitutional because it violates the Equal Protection Clause.
Barletta v. Rilling, No. 3:11cv990, 2013 WL 5405665, at *2–5 (D. Conn. Sept. 26, 2013). .
Judge Underhill concluded:
A rational nexus between a conviction for any and every felony offense and the
fitness to act as a precious metals dealer simply does not exist. The legislature has
not drawn any distinctions beyond the classification of the felon; it has not written
the statute to conform to the legitimate state interest of protecting the public from
unscrupulous dealers. Many unsuitable applicants can obtain licenses, yet many
suitable applicants cannot. . . . Many, if not most, of the hundreds of federal
felonies and more than 265 Connecticut felonies, have no tendency whatsoever to
predict unsuitability for licensure . . . .
Id. at *4. Ultimately, Judge Underhill determined:
The statute is irrational because the ban on felons is insufficiently related to the
purpose of the statute. Without a meaningful relationship between the absolute bar
on felons from holding a precious metals license and the legitimate state interest of
protecting the public from unscrupulous precious metals dealers, the ban violates
the Equal Protection Clause.
Id. at *5.
95. Recently, I have worked with Quinnipiac University School of Law’s Civil Justice
Clinic advocating for a modest proposal which would help to harmonize state law and remove
indiscriminate barriers imposed on individuals with a criminal conviction through the creation
of a “‘Certificates of Rehabilitation’ program, aimed at reducing barriers faced by individuals
with convictions and encouraging reintegration into communities.” See CONN. SENTENCING
COMMISSION, SYNOPSIS OF SENTENCING COMMISSION PROPOSAL ON CERTIFICATES OF
REHABILITATION
(2012),
available
at
http://www.ct.gov/opm/lib/opm/cjppd/cjabout/sentencingcommission/20121129_certificates_
of_rehabilitation_synopsis.pdf. This proposal would hopefully help to harmonize these
existing barriers with the aforementioned statement of public policy and the more recently
articulated legislative declaration that “sentencing should have as an overriding goal the
reduction of criminal activity, the imposition of just punishment and the provision of
meaningful and effective rehabilitation and reintegration of the offender.” See CONN. GEN.
STAT. § 54-300 (2011) (emphasis added). This extremely modest proposal, however, does not
contemplate many of the reforms suggested by this Note.
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another provision clarifying that, despite any other statement seemingly
to the contrary, individuals are “not disqualified” from pursuing an
occupation in which a state-issued license or permit is required or from
state employment “solely because of a prior conviction of a crime.”96
The State may only deny a license or state employment based on a prior
criminal conviction after considering (1) “the nature of the crime and its
relationship to the job for which the person has applied,” (2) ”the
rehabilitation of the convicted person,” and (3) “the time elapsed since
the conviction or release.”97
While academics and policy-makers traditionally view the barriers
and disqualifications imposed on those convicted of a criminal
conviction as the province of state policymakers,98 even local
governments impose collateral consequences.99 While not as plentiful as
their state counterparts, municipal governments nonetheless have created
municipal ordinances and regulations imposing collateral consequences,
often in the areas of licensing and permitting.100 In the city of New
Haven,101 for example, licenses or permits are required for a disparate
array of business activities including the maintenance and opening of
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96. CONN. GEN. STAT. §§ 46a-80, 46a-81 (2011). Section 46a-80(b) contains
Connecticut’s “Ban the Box” provision, so named because it eliminates from state job
application forms the question requiring job-seekers to “check” if they have ever been
convicted of a crime. State employers may still consider a criminal conviction as provided for
elsewhere, but only after the applicant has been deemed qualified for the position. See Tim
Judson, “Banning the Box”: New CT Law To Stop Discrimination Against Ex-Prisoners
Based Solely On Their Criminal Record, PROGRESSIVE STATES NETWORK (May 10, 2010),
http://www.progressivestates.org/news/dispatch/banning-the-box-new-ct-law-stopdiscrimination-against-ex-prisoners-based-solely-on-th [hereinafter Banning the Box].
97. CONN. GEN. STAT. §§ 46a-80, 46a-81. These provisions, which otherwise prevail
over specific statutory provisions enabling agencies to deny, suspend, or revoke licenses or
permits based on a criminal conviction or a lack of good moral character, expressly do not
apply to law enforcement agencies. See CONN. GEN. STAT. § 46a-81. Nonetheless, law
enforcement agencies may utilize their discretion in adopting such policies on their own
accord. CONN. GEN. STAT. § 46a-81(b).
98. See, e.g., RESOURCE GUIDE , supra note 46, at ix.
99. See, e.g., New Haven, Conn., Code of Ordinances title III, ch. 17, art. V, §17-1.4
(Apr. 2, 2012); Vernon, Conn., Code of Ordinances pt. II, ch. 7, § 7-129 (Jan. 15, 1991), § 7164 (Dec. 6, 1988); Hartford, Conn., Code of Ordinances pt. II, ch. 21, § 21-52 (1977).
100. See, e.g., New Haven, Conn., Code of Ordinances title III, ch. 17, art. V, §17-1.4 ;
Vernon, Conn., Code of Ordinances pt. II, ch. 7, §§ 7-129, 7-164; Hartford, Conn., Code of
Ordinances pt. II, ch. 21, § 21-52.
101. In New Haven, a city of approximately 129,779 persons, approximately 25 exoffenders are released by Connecticut Department of Corrections (“DOC”) facilities and reenter the city every week. State & County QuickFacts, UNITED STATES CENSUS BUREAU,
http://quickfacts.census.gov/qfd/states/09/0952000.html (last visited Mar. 22, 2013);
Interview with Amy Meek, Former Coordinator for the New Haven Prison Re-Entry Initiative,
in New Haven, Conn. (Oct. 28, 2011) [hereinafter Interview with Amy Meek).
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billiard tables and bowling alleys,102 service of pedal cabs (also known
as “pedicabs”),103 and the operation of flea markets and tag sales.104
These licenses and permits are crucial for some re-entrants’ employment
and livelihood.105 These municipal ordinances, however, can hamper
people’s ability to attain these crucial licenses and permits, which are
necessary to lawfully carry on certain business activities.106 Even in the
city of New Haven, which is otherwise quite progressive and forwardthinking on issues of collateral consequences,107 the Municipal Code of
Ordinances explicitly provides that an applicant can be denied a license
or permit on the basis of his or her “criminal history.” 108 While such
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102. New Haven, Conn., Code of General Ordinances, Title III, Chapter 17, Article V
(Dec. 17, 2001).
103. New Haven, Conn., Code of General Ordinances, Title III, Chapter 17, Article
XVII (Nov. 11, 2009).
104. New Haven, Conn., Code of General Ordinances,Title III, Chapter 17, Article VII
(Dec. 17, 2001).
105. Interview with Amy Meek, supra note 101.
106. See New Haven, Conn., Code of General Ordinances, Title III, Chapter 17, Article
I, Sec. 17-1.4 (Apr. 2, 2012); See, e.g., New Haven, Conn., Code of General Ordinances, Title
III, Chapter 17, Article XVII (Nov. 11, 2009).
107. New Haven is one of four Connecticut cities to enact a “Ban the Box” ordinance,
and was just the third city in the nation to extend the practice beyond city employment to city
vendors, who must affirm that their hiring practices are consistent with the ordinance in order
to attain and maintain contracts with the city. See William Kaempffer, Aldermen Vote to ‘Ban
the
Box’,
NEW
HAVEN
REGISTER
(Feb.
18,
2009),
http://www.nhregister.com/articles/2009/02/18/news/a3-banthebox11.txt; Interview with Amy
Meek, supra note 101. The ordinance removes from all city job applications the box or query
relating to an applicant’s criminal past. Id. Only after making a provisional offer of
employment on the basis of qualifications will the city inquire about any conviction history.
See New Haven, Conn., Code of General Ordinances, Title III, Chapter 2, Article XII (Feb.
17, 2009). Through the Office of the Mayor, New Haven operates an active “Prison Reentry
Initiative,” which “facilitates the coordination of community partners, state agencies and other
reentry stakeholders for the purpose of creating a citywide, strategic, and systematic delivery
of resources that leads to reduced recidivism, increased employment, access to continued
education and the long term self-sufficiency of returning citizens.” Prison Reentry Initiative,
City of New Haven Conn., http://www.cityofnewhaven.com/mayor/prisonreentry.asp (last
visited Feb. 10, 2013). New Haven is currently the only Connecticut city with such a
program, although the capital city of Hartford is working to create a comparable office.
Interview with Amy Meek, supra note 101.
108. New Haven, Conn., Code of General Ordinances, Title III, Chapter 17, Article I,
Sec. 17-1.4 (Apr. 2, 2012). This ordinance specifically states:
An applicant will not be issued a license or permit if the police chief or his designee
determines that the applicant is not a suitable person. This determination will be
made on a case-by-case basis, depending upon factors that include, but are not
limited to, one (1) or more of the following:
(a) the criminal history of the applicant, specifically:
(1) The nature of the criminal offense or offenses for which the
individual has been convicted and the relationship of that offense or
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“determination will be made on a case-by-case basis,” this specificallydesignated factor may lead to a decision that “the applicant is not a
suitable person” for the license or permit.109
This policy particularly affects reentrants who seek to be food cart
and street vendors,110 “a good entrepreneurial activity for exoffenders”111 with limited assets who are worried about passing a
background check or handling a skeptical potential employer.112 But,
according to Amy Meek, former Coordinator for New Haven’s Prison
Reentry Initiative, the ability of people to conduct business in this field
is hindered by a criminal record.113 In New Haven, of the approximately
two hundred yearly street vendor permit applications, about one in seven
applicants (or fourteen percent) are denied due to past criminal
convictions.114 There are, of course, some legitimate public safety
concerns behind the denial of these applications.115 For example, Ms.
Meek cites concerns about people dealing drugs from street carts.116
Nonetheless, Ms. Meek firmly believes that “we are denying many
people who should be given a chance.”117 Any discretionary barrier to
licensing or permitting ought to address legitimate public safety
(2)
(3)
(4)
(5)
(7)
Id.
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109. Id. The municipal code grants the city police chief or his designee responsibility
for this licensing decision in New Haven. See id.
110. Street vendors must be licensed in New Haven. New Haven, Conn., Code of
General Ordinances, Title III, Chapter 17, Article XI”). (Dec. 17, 2001). In Hartford, similar
vendors must be licensed by the city. Hartford, Conn., Code of Ordinances, Part II, Chapter
27, Article III, Division I (1977).
112. See id.
113. Id.
114. Id.
116. Id.
117. Id.
(6)
those offenses to the benefit or opportunity that the individual
seeks;
The gravity of the offense(s);
The age of the individual at the time of occurrence of the criminal
offense or offenses;
The time elapsed since the individual’s conviction or release;
Information pertaining to the degree of rehabilitation of the
convicted individual;
Any information produced by the individual, or produced on his
behalf, in regard to his rehabilitation and good conduct; and,
The public policy of this city, as expressed in New Haven Code of
Ordinances section 2-852, to encourage the employment of persons
previously convicted of one (1) or more criminal offenses.
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concerns without unduly hindering the ability of other hard-working and
rehabilitated individuals to carry on their livelihood in a safe and
productive manner. In other words, a collateral consequence needs to
address any legitimate state concerns without applying across the board
in a haphazard and arbitrary manner.
The myriad of consequences found in the business world are, if
anything, more acute and pervasive than those on the federal, state, and
local levels.118 The vast majority of private employers routinely run
background checks on prospective employees.119 Under current state
law, it is completely permissible for prospective employers to ask job
applicants whether they have been convicted of a crime.120 If the
applicant has not received a pardon or provisional pardon for the
offenses,121 no provision in Connecticut state law limits an employer’s
ability to consider the criminal conviction and use it as the basis for
denial or discharge of employment.122
Despite the strong public policy supporting the “rehabilitat[ion]”
and “meaningful employment” of criminal offenders,123 the Connecticut
legislature has chosen to adopt specific prohibitions against criminal
record discrimination only for public – not private – employment or
licensure.124 Connecticut state law authorizes state agencies to discharge
118.
119.
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See Love, supra note 40, at 772.
See SOC’Y FOR HUMAN RES. MGMT., BACKGROUND CHECKING: CONDUCTING
CRIMINAL
BACKGROUND
CHECKS
3
(2010),
available
at
http://www.shrm.org/Research/SurveyFindings/Articles/Pages/BackgroundCheckCriminalCh
ecks.aspx. According to a 2010 survey by the Society for Human Resource Management, a
whopping 92% of their members perform criminal background checks on some or all job
candidates. Id. Seventy-three percent perform checks on all job candidates. Id. The
consequences of these criminal background checks extend beyond the employment context
into volunteer opportunities, many of which are closed to persons with a record under all
circumstances. See Love, supra note 40, at 772 (“Parents convicted years before of minor
fraud or drug possession could be barred from volunteering at their children’s school or
coaching their sports.”). Even political candidates are often reluctant to accept campaign
contributions from individuals with a criminal conviction. Id.
120. See FELONY CONVICTION CONSEQUENCES, supra note 61, at 1.
121. See CONN. GEN. STAT. § 31-51i (2011) (describing the treatment that employers
must grant to applicants holding pardons or provisional pardons).
122. See e.g., “BAN THE BOX” LAWS, OLR RESEARCH REP., CONN. GEN. ASSEMB.,
2010-R-0294, at 1 (2010), [hereinafter “BAN THE BOX” LAWS], available at
http://www.cga.ct.gov/2010/rpt/2010-R-0294.htm.
123. CONN. GEN. STAT. § 46a-79 (2011).
124. See, e.g., CONN. GEN. STAT. §§ 46a-79 to -81 (2011). A minority of states have
taken this approach. See “BAN THE BOX” LAWS, supra note 122, at 1; see also COLO. REV.
STAT. § 24-5-101 (2008 & Supp. 2012) (While Colorado encourages employers to “expand
employment opportunities for persons who, notwithstanding the fact of conviction of an
offense, have been rehabilitated and are ready to accept the responsibilities of a law-abiding
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classified employees for “misconduct, incompetence or other reasons
relating to the effective performance of the employee’s duties.”125
Regulations promulgated by state agencies allow various state
authorities to suspend, demote, or dismiss state employees for “[j]ust
cause,” which includes (1) the conviction of a felony; (2) the conviction
of a misdemeanor committed while on duty; and (3) the conviction of a
misdemeanor committed off duty “which could impact upon the
performance of job responsibilities.”126
Yet these statutes and regulations are not absolute. Despite these
provisions, individuals are “not disqualified” from state employment
“solely because of a prior conviction of a crime.”127 In fact, Connecticut
is one of just five states with a “ban the box” law, prohibiting state
employers from utilizing job applications that require applicants to
check a box if they have been convicted of a crime.128 State employers
may still consider a criminal conviction, but only after the applicant has
been deemed qualified for the position.129 Unlike the aforementioned
New Haven “ban the box” ordinance, only state employers and state job
applications are affected by Connecticut’s state-wide “ban the box”
statute.130 No statutory provision extends its effects to the private
sector.131
12/09/2013 15:27:08
and productive member of society,” the statutory language prohibits only public employers or
licensing agencies from denying applicants jobs or licenses solely based on past convictions);
N.J. STAT. ANN. § 2A:168A-1 (2011).
125. CONN. GEN. STAT. § 5-240(c) (2011).
126. CONN. AGENCIES REGS. § 5-240-1a (2011).
127. CONN. GEN. STAT. §§ 46a-80 to -81 (2011).
128. See CONN. GEN. STAT. § 46a-80(b) (2011). In addition to Connecticut, the other
jurisdictions with “ban the box” laws are Hawaii, Massachusetts, Minnesota, and New
Mexico. “BAN THE BOX” LAWS, supra note 122, at 1. Of these states, only Hawaii and
Massachusetts have statutes reaching private employers. Carie Torrence, Massachusetts
Becomes the Second State to “Ban the Box” on All Employment Applications, LITTLER
MENDELSON
(Aug.
11,
2010),
http://www.littler.com/publicationpress/publication/massachusetts-becomes-second-state-ban-box-all-employment-applications.
129. See CONN. GEN. STAT. § 46a-80(b) (2011); Banning the Box, supra note 96.
130. See CONN. GEN. STAT. § 46a-80(b).
131. See id. The Connecticut “ban the box” statute states that it applies, with certain
limitations, to “employers” as that term is defined in section 5-270. CONN. GEN. STAT. § 5270(a) (2011). Therefore, for purposes of the “ban the box” statute:
“Employer” means the state of Connecticut, its executive and judicial
branches, including, without limitation, any board, department,
commission, institution, or agency of such branches or any appropriate
unit thereof and any board of trustees of a state-owned or supported
college or university and branches thereof, public and quasi-public state
corporation, or authority established by state law, or any person or
persons designated by the employer to act in its interest in dealing with
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Even though the state statutory regime is apparently silent on the
question of criminal record discrimination in the private sector,132
Connecticut employers must still be mindful of the requirements
imposed by federal civil rights law.133 Although the federal government
also has not included individuals with a criminal record as a protected
class of persons in discrimination legislation,134 Title VII of the Civil
Rights Act of 1964135 nonetheless restricts an employer’s ability to use
criminal background information in the hiring process.136 Specifically,
the law prohibits “employers from limiting, segregating, or classifying
employees or applicants in any way that would deprive or tend to
deprive any individual of employment opportunities due to race, color,
religion, sex, or national origin.”137 Under the legislation’s “disparate
impact test,” “an employment category, tool, or test cannot tend to
discriminate against certain protected classes of people.”138 But just
because the legislation does not set forth an explicit limitation on an
employer’s use of criminal background check as part of the hiring
process does not mean that the act offers no protection to individuals
with a criminal conviction.139
In fact, the longstanding interpretation of the Equal Employment
Opportunity Commission (“EEOC”), the federal agency that enforces
Title VII, has held that disqualifying people who have criminal records
from jobs is discriminatory because such a hiring practice
disproportionately affects certain minority groups.140 Specifically,
groups like African-Americans and Hispanics have significantly higher
criminal conviction rates than do white persons.141 A private employer
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132. Connecticut state law does not protect individuals with a criminal record in the
private sector, with the exception of the treatment all employers must grant to the holder of a
pardon or a provisional pardon. See discussion infra Part II.B.1.
133. See Leavitt, supra note 51, at 1298.
134. Id.
135. See, e.g., 42 U.S.C. § 2000e (1991).
137. Id.
138. Id.
139. See EEOC Policy Statement on the Issue of Conviction Records under Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982), U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMM’N, [hereinafter EEOC Policy Statement], available at
http://www.eeoc.gov/policy/docs/convict1.html (last modified Sept. 11, 2006).
140. Id.
141. FELONY CONVICTION CONSEQUENCES, supra note 61, at 5.
Id.
employees, but shall not include the State Board of Labor Relations or the
State Board of Mediation and Arbitration.
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142.
143.
144.
145.
146.
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See EEOC Policy Statement, supra note 139.
Id.
Id.
See id.
See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 433–34 (1971); Gregory v.
Litton Sys., Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970), modified on other grounds, 472
F.2d 631 (9th Cir. 1972).
147. Griggs, 401 U.S. at 430.
148 Gregory, 316 F. Supp. 401.
150. Gregory, 316 F. Supp. at 403.
151. See EEOC Policy Statement, supra note 139.
152. See generally Michelle Natividad Rodriguez & Maurice Emsellem, 65 Million
who wishes to consider criminal records as part of the hiring process
must be mindful that they cannot simply apply a self-created unilateral
bar to block all individuals with a criminal conviction, precluding such
persons from any consideration for employment opportunities.142
Rather, the employer must show a “business necessity” for the
conviction-based disqualification.143 As explicated by the EEOC, the
employer satisfies this legal requirement only by showing that they
examined “[(1)] [t]he nature and gravity of the offense or offenses; [(2)]
[t]he time that has passed since the conviction and/or completion of the
sentence; and [(3)] [t]he nature of the job held or sought.” 144 In other
words, it is illegal for employers to exclude people from employment
based on arrest or conviction records – unless there is a compelling
business reason to do so.145
The EEOC’s interpretation has been followed by courts.146 In the
landmark case Griggs v. Duke Power Co., the United States Supreme
Court pointedly noted that “practices, procedures, or tests neutral on
their face, and even neutral in terms of intent, cannot be maintained if
they operate to ‘freeze’ the status quo of prior discriminatory
employment practices.”147 Gregory v. Litton Systems, Inc.,148 “the
leading federal case on the prohibition against requesting arrest records
from potential job applicants,”149 explicitly forbids all facially neutral
hiring practices which disproportionately impact minority job
applicants.150 In sum, only an employer who shows that a convictionbased disqualification is justified by a “business necessity” acts in
accordance with federal civil rights law.151
However, according to the National Employment Law Project,
many employers routinely deny employment based on criminal
convictions with no attempt to demonstrate the “business necessity”
required by federal law.152 There is substantial reason to suspect that
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many employers could not demonstrate such a necessity. Many
employers “routinely deny people with criminal records any opportunity
to establish their job qualifications,” even for entry-level jobs like
“warehouse workers,” “delivery drivers,” and “sales clerks.”153
Employers often post statements such as:
“No Exceptions! . . . No Misdemeanors and/or Felonies of any type ever in
154
background,”
“DO NOT APPLY WITH ANY MISDEMEANORS/FELONIES”
155
“You must not have any felony or misdemeanor convictions on your record.
156
Period.”
These hiring practices are not relegated to small town mom-andpop employers.157 On the contrary, “[e]ven some of the nation’s largest
companies,” including household names like Bank of America,
Aramark, Lowe’s, Domino’s Pizza, and RadioShack, “have imposed
overbroad background check requirements.”158 Practices like these,
which routinely deny persons with a criminal record all employment
opportunities, are patently illegal under EEOC rules.159 Yet, in the
absence of aggressive enforcement, regulations, or outreach and
education programs, such unlawful hiring practices persist.160
B. Mechanisms for Relief: America’s Most Active and Independent
Pardoning Regime
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“Need Not Apply,” THE NAT’L EMP’T LAW PROJECT (March 2011) [hereinafter 65 Million],
available
at
http://www.nelp.org/page//SCLP/2011/65_Million_Need_Not_Apply.pdf?nocdn=1.
153. Id. at 1.
154. Id.
155. Id.
156. 65 Million, supra note 151, at 1.
157. See id. at 1–2.
158. Id.
159. See EEOC Policy Statement, supra note 139.
160. See generally 65 Million, supra note 151.
Connecticut has two primary mechanisms for relief from the
disabilities faced by an ex-offender reintegrating into society: the longstanding and active pardon program and the newer provisional pardon
program.161 Connecticut maintains one of the most active and
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independent pardoning regimes in the nation, granting relief with an
almost unparalleled regularity.162 By statute, the Board of Pardons and
Paroles (“BOPP”),163 an autonomous state agency, has the exclusive
authority to grant pardons for any crime after sentencing.164 Generally,
pardons may be either (1) absolute “expungement” pardons or (2)
provisional pardons.165
1.
Connecticut’s Absolute “Expungement” Pardons: StateAuthorized Amnesia
Pardon regimes generally take one of two general approaches: (1) a
“forgetting” model in which the record of the criminal conviction is
expunged or erased, effectively forgetting that the conviction ever
occurred; or (2) a “forgiveness” model which acknowledges the
continued existence of the conviction but utilizes a pardon to showcase
the state’s official act of forgiveness.166 While the legal community has
long debated whether a “forgetting” model or a “forgiveness” model
would better effectuate public policy goals,167 Connecticut law is firmly
in the former camp.168 Since 1883, when the state legislature passed an
act establishing a Board of Pardons (later merged with the Board of
Parole to create the Board of Pardons and Paroles), an independent and
autonomous administrative board has had powerful authority to grant
relief by expunging criminal records.169 A traditional pardon in
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162. See RESOURCE GUIDE, supra note 46, at 21 (explaining that Connecticut is one of
“[o]nly nine states [which] administer the pardon power in a regular manner and issue a
significant number of pardons each year”).
163. The Board of Pardons and Paroles is composed of 20 members appointed by the
Governor with the advice and consent of both houses of the General Assembly. CONN. GEN.
STAT. § 54-124a (2011). Seven members serve exclusively on the Board’s pardons panel,
alongside the Board’s chairperson. Id.
164. See id. In Connecticut, the Governor’s only pardon-like authority is his ability to
grant temporary reprieves for any offense with the exception of impeachment until the next
session of the General Assembly. See Attorney General Richard Blumenthal, Attorney
General’s Opinion, OFFICE OF THE ATTORNEY GEN. (July 27, 1992), available at
http://www.ct.gov/ag/cwp/view.asp?A=1770&Q=281346.
165. See CONN. GEN. STAT. § 54-124a (2009 & Supp. 2012).
166. See Love, supra note 40, at 766–67.
167. See id.; Bernard Kogon & Doland L. Loughery, Jr., Sealing and Expungement of
Criminal Records – The Big Lie, 61 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 378, 389 (1970)
(Sealing or expungement of records are “forgetting” methods.).
169. See Christopher Reinhart, LEGISLATURE’S POWER TO COMMUTE DEATH
SENTENCES AND EFFECT ON PENDING CASES, OLR RESEARCH REP., CONN. GEN. ASSEMB.
2004-R-0930, at 1, 5 (2004), available at http://cga.ct.gov/2004/rpt/2004-R-0930.htm.
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Connecticut results in a complete expungement of the prior conviction(s)
for which the pardon is issued.170 In fact, Connecticut appears to be the
only jurisdiction in which all records relating to the offense are literally
erased.171 Because it effectively negates the existence of a criminal
conviction, a pardon theoretically relieves all legal disabilities, including
those related to employment and licensure.
In order to obtain a pardon, the individual must submit an
application containing a plethora of detailed information, including
details regarding the conviction, the sentence imposed and time served
(if any) as well as why he or she should be pardoned.172 Under
legislation passed in 2007, the BOPP is directed not to grant applications
for an absolute “expungement” pardon within three years of an
applicant’s conviction of a misdemeanor violation and within five years
of a felony conviction, although the Board is authorized to waive these
time frames under “extraordinary circumstances.”173
Given that the Board’s actions result in the erasure of criminal
records, an inquisitive reader might assume that the Board has standards
or guidelines for the granting of a full expungement pardon. There are,
however, no statutory provisions or formal regulations that create criteria
for when a pardon should or should not be granted to an otherwise
eligible applicant.174 Nonetheless, the Board’s website outlines some
informal decision-making criteria and informs prospective pardon
applicants that:
170.
171.
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See CONN. GEN. STAT. § 54-142a.
See id.; c.f. R.I. GEN. LAWS § 12-1.3-4 (2011). I have not discovered any
comparable statutes in other American jurisdictions, nor any sources citing any comparable
statutes.
172. Application for a Connecticut Full or Provisional Pardon, CONN. BD. OF PARDONS
& PAROLES, http://www.ct.gov/doc/lib/doc/PDF/BOPPPardonApplication.pdf (last updated
May 22, 2012).
173. See CONN. GEN. STAT. § 54-130a(c) (2011); see also George Coppolo, PARDONS
AND PROVISIONAL PARDONS, OLR RESEARCH REP., CONN. GEN. ASSEMB., 2007-R-0561, at
1 (2007) available at http://www.cga.ct.gov/2007/rpt/2007-R-0561.htm.
174. See CONN. GEN. STAT. § 54-124a(d) (2011).
At all times [the] Board has the discretion to grant or deny any pardon
application. The Board decides whether or not to grant a pardon, based on the
severity of the offense, the impact on the victim and the victim[‘]s input, past
criminal history and how much time has passed since the commission of the
original offense. The State[‘]s Attorney’s opinion is also taken into
consideration, along with what the individual has done since the offense
occurred. The Board considers the individual[‘]s work history; whether [they
have] stayed out of [the] criminal justice system, personal references, etc.
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Besides the aforementioned the Board may consider any other pertinent
information available in deciding to grant or deny a pardon. Volunteer and
175
community service activities on the part of the applicant are encouraged.
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175. Frequently Asked Questions regarding the Pardons Process, CT.GOV,
http://www.ct.gov/doc/lib/doc/pdf/PardonFAQ.pdf (last updated Oct. 26, 2009) (emphasis
added).
176. See CONN. AGENCIES REGS. § 54-124a(j)(3)-1 (2005).
177. See Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 458–59 (1981).
178. See id. at 466.
179. Ohio Adult Parole Auth. v. Woodward,523 U.S. 272 (1998). The Court reaffirmed
Woodward’s principles in Dist. Attorney for the Third Judicial Dist. v. Osborne, 129 S. Ct.
2308, 2319 (2009).
180. See Woodward, 523 U.S. at 273.
181. See Missionary Soc’y of Conn. v. Bd. of Pardons & Paroles, 866 A.2d 538, 540–
41, 272 Conn. 647, 651–52 (2005) (explaining that Conn Gen. Stat. § 54-130a “confers
unfettered discretion on the board” and “creates no right, entitlement or protected liberty or
life interest ‘beyond the [prisoner’s] right to seek commutation’”) (citations omitted).
182. See CONN. GEN. STAT. § 31-51i(b), (d), (e) (2011).
If the Board denies a pardon application, its regulations provide that it
must provide a written statement outlining the reasons for denial.176
The lack of standards, procedural protections, and judicial review in
Connecticut’s pardons regime does not implicate due process concerns
under federal or state law because pardons are a “gift” and not an
“entitlement.” In a 1981 case arising from a prisoner’s dissatisfaction
with Connecticut’s Board of Pardons, the United States Supreme Court
held that the Board’s lack of standards did not violate due process.177 In
fact, the lack of standards meant that the state had not bound itself to act
in any particular way, and therefore, there was no state-created liberty
interest that could give rise to a right to particular procedures.178 In Ohio
Adult Parole Authority v. Woodard,179 the Court again reaffirmed this
approach, holding that discretionary clemency proceedings in a death
penalty case did not create a “liberty interest” protected by the due
process clause.180 Similarly, the Connecticut Supreme Court has found
that the existing pardon statutes do not establish judicially enforceable
state rights.181
While there is no due process right in the granting of a pardon, the
legal rights associated with a granted absolute expungement pardon are
extraordinary. Not only is the conviction totally erased, no employer—
including the state—may require an employee or prospective employee
to ever again disclose the existence of any arrest, criminal charge, or
conviction when the records have been erased pursuant to the BOPP’s
authority.182 If an employment application utilized by any public or
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183.
184.
185.
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See CONN. GEN. STAT. § 31-51i(c).
Id.
Amnesia,
MERRIAM-WEBSTER,
http://www.merriamwebster.com/dictionary/amnesia (last visited Mar. 7, 2013).
186. See supra note 184 and accompanying text.
187. See supra notes 3–16 and accompanying text.
188. See CONN. GEN. STAT. § 31-51i(c) (2011). Is this authorized lying – this fictional
private employer contains any questions regarding the criminal history
of an applicant, the form must declare “in clear and conspicuous
language” that “criminal records subject to erasure . . . are records
pertaining to . . . a conviction for which the person received an absolute
pardon, and that any person whose criminal records have been erased . . .
shall be deemed to have never been arrested”.183 Moreover, an individual
in possession of an absolute expungement pardon “may . . . swear under
oath” that he or she was never convicted of the crime.184 The legal effect
of these provisions is to give the recipient of an absolute pardon a
completely clean slate; it is simply as though the arrest, charge, and
conviction never happened at all.
Rather than offer public forgiveness of a crime and remit its
penalty, recognize a public injustice, or correct a legal mistake,
Connecticut’s absolute expungement pardons act as criminal conviction
amnesia. Amnesia is defined as “a gap in one’s memory” or “the
selective overlooking or ignoring of events or acts that are not favorable
or useful to one’s purpose or position.”185 An expungement pardon
authorizes amnesia with regards to criminal convictions. The criminal
justice system experiences a gap in its memory: the literal erasure of all
records relating to the convictions. Moreover, the pardon recipient may
overlook and ignore the events or acts that formed the basis for that
conviction, events or acts which are presumably unfavorable to his or
her position.
Of course, Connecticut’s pardon statute actually permits much
more than mere ignorance; it authorizes a pardon recipient to actually lie
under oath.186 Imagine that, after her failed attempt at judicial relief,187
Leah Gibson received an absolute “expungement” pardon. Further
suppose that Ms. Gibson was later arrested and charged with other
offenses and went to trial. At that trial, Ms. Gibson testifies under oath
and is asked, “Have you ever been arrested or convicted of a crime?”
Ms. Gibson answers, “No.” Of course, this is untruthful. She has been
arrested and convicted of a crime—multiple crimes, in fact. But, as the
recipient of a pardon, Ms. Gibson would be authorized by law to lie
under oath.188
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The wisdom of this approach is not unquestioned. First, in all other
jurisdictions, expunged records are rarely literally erased and are nearly
always available to law enforcement agencies, courts, public agencies,
and even private investigators.189 Second, many doubt the theoretical
basis for this approach.190 “Expungement statutes have been criticized
as both ‘ineffective’ and ‘too costly in both moral and legal terms.’”191
The latter concern is premised upon the difficulty of squaring a legal
system founded on the quest for the truth with a lawful “rewriting” of
history, particularly when an individual is authorized to lie under oath.192
The “ineffectiveness” issue is a practical problem: in the modern
information age, critics ask, is quest for secrecy futile in the face of
“broader public posting and private dissemination of criminal history
information[?]”193 These concerns, however, are alleviated in some
respects by Connecticut’s highly unusual system. While sealed records
in other states are often still available to certain public and private
entities, this is not the case in Connecticut, where all copies of a criminal
record are literally erased.194
2. Provisional Pardons: “Certificates of Rehabilitation” . . . With
Limited Legal Effect
Connecticut is one of just six states offering administrative
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representation—so unusual in the law? “Probably no lawyer would deny that judges and
writers on legal topics frequently make statements they know to be false. These statements
are called ‘fictions.’” LON L. FULLER, LEGAL FICTIONS 1 (1967). Think, for example, “[t]he
judge . . . forced to declare, ‘For purpose x we must deem the marriage between A and B to be
valid; for purpose y it is to be deemed null and void.’” Id. at x. Yet Connecticut’s pardon
statute is quite distinct from the concept of a legal fiction. “[A] fiction is distinguished from a
lie by the fact that it is not intended to deceive.” Id. at 6. An expungement pardon, however,
is intended to deceive the world into believing that the recipient has no criminal conviction at
all.
189. See, e.g., WASH. REV. CODE § 43.43.815 (1) (2012).
190. See, e.g., Marc A. Franklin & Diane Johnsen, Expunging Criminal Records:
Concealment and Dishonesty in an Open Society, 9 HOFSTRA L. REV. 733, 735 (1981); T.
Markus Funk, A Mere Youthful Indiscretion? Reexamining the Policy of Expunging Juvenile
Delinquency Records, 29 U. MICH. J.L. REFORM 885, 913–33 (1996).
191. Margaret Colgate Love, Starting over with A Clean Slate: In Praise of A Forgotten
Section of the Model Penal Code, 30 FORDHAM URB. L.J. 1705, 1726 n.86 (2003) (citing
Franklin & Johnsen, supra note 190).
192. See id. at 1726.
193. See id.
194. See CONN. GEN. STAT. § 31-51i(c) (2011); see e.g., WASH. REV. CODE §
43.43.815(1) (2012).
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“certificates of rehabilitation”195 that restore some legal rights and
privileges lost due to a prior criminal conviction.196 These programs are
designed to facilitate offender reentry.197 In 2006, the Board of Pardons
and Paroles was granted statutory authority to issue “provisional
pardons,” granting offenders relief from specific “barriers or forfeitures”
relating to employment or licensing.198 The statute authorizes the BOPP
to issue a provisional pardon at any time after sentencing if (1) the
offender was convicted of a crime and resides in Connecticut, (2) the
relief in the provisional pardon “may promote the public policy of
rehabilitating ex-offenders through employment,” and (3) the relief in
the provisional pardon “is consistent with the public’s interest in public
safety and protection of property.”199
The provisional pardon “relieve[s] an eligible offender of barriers
or forfeitures by reason of such person’s conviction of the crime or
Unlike a full
crimes specified in such provisional pardon.”200
expungement pardon that applies to all offenses on an individual’s
criminal record, the BOPP may limit the provisional pardon “to one or
more enumerated barriers or forfeitures or may relieve the eligible
offender of all barriers and forfeitures.”201 This language allows the
Board broad discretion. For example, the Board could grant a
provisional pardon applying only to a specific barrier or forfeiture such
as a license for being a hairdresser or pawn broker, while leaving all
other barriers or forfeitures in place. Or the Board could choose to
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195. Survey of State Laws, supra note 61, at 2. As used in this Note, the term “certificate
of rehabilitation” means “an official recognition that a criminal offender deserves to regain
legal rights and status lost as a result of conviction, and has demonstrated reliability and good
character over a period of time.” Id. at 2 n.5. The other states offering “certificates of
rehabilitation” are New York, Illinois, California, Nevada, and New Jersey. Id. at 2.
196. Id. at 2.
197. Survey of State Laws, supra note 61, at 2.
198. CONN. GEN. STAT. § 54-130e(b) (2011) (A “barrier” is a denial of employment or
license because of a criminal conviction, without considering whether the nature of the crime
bears a direct relationship to the employment or license, while a “forfeiture” is a
disqualification or ineligibility for employment or a license by reason of law based on the
offender’s criminal conviction.); AN ACT REQUIRING A STUDY OF BUDGETED STATE
AGENCIES WITH RESPECT TO THE EXPENDITURES OF SUCH AGENCIES IN RELATION TO
PROGRAMS ADMINISTERED OR SERVICES PROVIDED BY SUCH AGENCIES, OLR BILL
ANALYSIS, CONN. GEN. ASSEMB., HB 5846, §§ 84–87 (2006), available at
http://www.cga.ct.gov/2006/BA/2006HB-05846-R00-BA.htm. This Note generally uses the
terms interchangeably.
199. Id.
200. CONN. GEN. STAT. § 54-130e(b) (2011).
201. Id. (nonetheless providing that no provisional pardon may apply to the right of a
person to hold or be eligible for public office).
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202.
203.
204.
205.
206.
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BLACK’S LAW DICTIONARY 1144 (8th ed. 2004).
See Coppolo, supra note 173, at 2.
See supra note 108 and accompanying text.
See CONN. GEN. STAT. § 31-51i(d) (2011); see also Coppolo, supra note 173.
Earlier versions of the provisional pardon legislation were more robust. “A
provision similar to New York’s fair employment practices law, which would have given the
provisional pardon the effect of creating a ‘presumption of rehabilitation’ was excised from
the bill shortly before its passage.” Survey of State Laws, supra note 61, at 5 n.12; see also
infra note 235 and accompanying text.
207. See
Pardon
Counts,
CONN.
DEP’T
OF
CORR.
(2011),
http://www.ct.gov/doc/lib/doc/PDF/PDFReport/PardonsCounts.pdf (last visited June 28,
2013). In 2009, 220 pardons were granted without a hearing while 259 were granted after a
hearing, for a total of 479 pardons granted. Id. In 2010, 215 pardons were granted without a
hearing while 188 were granted after a hearing, for a total of 403 pardons granted. Id.
simply grant a provisional pardon applying to all barriers and forfeitures.
Provisional pardons are generally designed to work as a certificate
of employability. In other words, by granting a provisional pardon, the
BOPP is exercising its judgment that the recipient of the provisional
pardon is suitable for employment. The nomenclature denoting the
certificate as a “provisional pardon,” however, is misleading. A
provisional pardon is unlike a traditional pardon – or any pardon.
Black’s Law Dictionary defines a pardon as “[t]he act or an instance of
officially nullifying punishment or other legal consequences of a
crime.”202 With a provisional pardon, previous convictions are not
erased, no punishment is nullified, no forgiveness is offered, and
criminal conviction records are still made available to employers and the
public.203
What, then, is the purpose of a provisional pardon? Because
Connecticut, like most states, generally allows employers to deny
employment based on any criminal conviction—no matter how old,204—
the provisional pardon is designed to act as a form of governmental
approval that individuals who are in possession of a provisional pardon
are generally employable and their criminal conviction should probably
not impact their employment. The relevant statutes prohibit all public or
private employers from denying employment to a prospective employee
or discharging and/or discriminating against an employee solely on the
basis of a conviction that occurred before his employment for which the
person received a provisional pardon.205 Nonetheless, because the
provisional pardon does not expunge or seal the criminal record or even
certify an offender’s rehabilitation, it has limited legal effect.206
Unlike traditional pardons, provisional pardons have been granted
sparsely thus far in their short existence.207 While the Board granted 479
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208.
209.
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Id.
Interview with LaResse Harvey, supra note 24. Ms. Harvey actually has a
provisional pardon; since this interview, Ms. Harvey applied for a full expungement pardon,
but was granted a provisional pardon instead. See Michelle Tuccitto Sullo, Many Victims
Unaware When Convicted Offenders Apply for Pardons (video, documents), NEW HAVEN
REGISTER
(July
28,
2012),
http://nhregister.com/articles/2012/07/28/news/doc5014ab5714651189737461.txt.
210. Interview with LaResse Harvey, supra note 24.
211. Id.
212. See Interview with Amy Meek, supra note 101.
213. See id.
214. Id.
215. Id.
216. See Interview with Amy Meek, supra note 101.
217. Id.
pardons in 2009 and 403 pardons in 2010, the Board issued just 66 and
63 provisional pardons in those years, respectively.208 A significant
reason for the sparse issuance of provisional pardons may be the relative
youth of the program; persons with a criminal conviction record may be
unaware that this is an option. Additionally, some persons who could
potentially benefit from a well-administered and thoughtful provisional
pardon may feel as though the program as presently promulgated and
administered will simply not be of assistance to them.
LaResse Harvey believes that the program is all but useless.209
“Provisional pardons are not helping any person get a job,” reports Ms.
Harvey.210 “The same barriers still exist.”211 Ms. Harvey’s criticisms
highlight another salient point: the legal effect of these statutes matters
little if there is no practical effect. Most employers do not appear to
understand the legal role of a provisional pardon.212 Amy Meek, the
former Coordinator for New Haven’s Prison Reentry Initiative, explains
that “employers need to be taught how to look at a criminal record” and
how to look at a provisional pardon.213 As an example, Ms. Meek
pointed to the experience of the City of New Haven.214 New Haven’s
Human Resources director came to the city after a long career in the
private sector.215 This director said that due to the city’s “Ban-the-Box”
ordinance and other hiring practices, he has hired people with criminal
records who would not have been considered for employment by
companies in the private sector.216 However, despite hiring these
individuals, Ms. Meek reports that the city has not had a single incident
where an employee was terminated due to misconduct similar to a
previous criminal conviction.217
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III. A COMPARATIVE PERSPECTIVE: THE APPROACHES OF
NEW YORK AND ILLINOIS
While pardons are widely considered the “gold standard” in terms
of procedures that can provide relief, they are available with such
irregularity that they are a realistic option in only a handful of states—
Connecticut’s pardons program is,
such as in Connecticut.218
comparatively, a model of efficiency and success, but the state’s
provisional pardon remains a pale imitation of the administrative relief
programs available in New York and, to a lesser extent, Illinois. In
Illinois, judges have the power to grant relief as early as sentencing from
some of the collateral consequences of convictions; in New York, relief
may be available after sentencing.219 New York’s statutory scheme
provides enforcement mechanisms and strong administrative
discretion.220 The certificates granted in New York and Illinois relieve
some or all of the legal rights and privileges lost as a result of conviction
and in some cases evince good character.
A. New York: The Oldest and Most Robust Administrative Scheme
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218. See Survey of State Laws, supra note 61, at 2 (noting that a “[p]ardon is of course
the ‘patriarch’ of relief procedures, but as a practical matter these days pardon is a realistic
option in only a handful of states.”).
219. Id. at 3–4.
220. See id.
221. Id. at 2–3; NEW YORK DIVISION OF PROBATION AND CORRECTIONAL
ALTERNATIVES, CERTIFICATES OF RELIEF FROM DISABILITIES AND CERTIFICATES OF GOOD
CONDUCT: LICENSURE AND EMPLOYMENT
OF OFFENDERS 1, 7, available at
http://dpca.state.ny.us/pdfs/certificatesofrelieffromforfeituresanddisabilitiesqanda.pdf
(last
visited Oct. 16, 2013); NEW YORK STATE UNIFIED COURT SYSTEM, ACCESS TO COURT
RECORDS 1, available at http://www.nycourts.gov/press/AccessToCourtRecords.pdf (last
visited Oct. 16, 2013) Executive pardons are granted very infrequently, if at all. Id.
New York offers a variety of mechanisms for relieving persons
with a criminal conviction record from burdensome collateral
consequences: executive pardons, administrative certificates, and
judicial sealing or expungement of records.221 If Connecticut is to
reform and strengthen its own provisional pardon and “certificates of
rehabilitation” program, New York is the most important jurisdiction to
consult because its certificate program is the oldest and most robust
administrative mechanism for issuing certificates in the country; in fact,
in a 2004 study comparing collateral consequences in all fifty states,
New York was ranked first as the state with the fewest “unfair or
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counterproductive barriers.”222
New York law provides for two types of administrative certificates:
Certificates of Relief from Disabilities (“CRDs”)223 and Certificates of
Good Conduct (“CGCs”),224 both of which may be obtained with relative
ease in order to restore certain rights.225 New York’s certificate
program, first enacted in the 1940s,226 exists to effectuate the public
policy of encouraging the licensure and employment of convicted
individuals.227 The Certificates (CRDs and CGCs) differ primarily in
their eligibility requirements and, depending on the circumstances, may
be issued by either the sentencing court or the Department of
Corrections and Community Supervision (“DOCCS”).228 The only other
findings necessary for eligibility are that the granting the certificate is
“consistent with rehabilitation and with the public interest.”229
Both certificates have more or less the same legal effect, relieving
an eligible person of “any forfeiture or disability,” and “remov[ing] any
barrier to . . . employment that is automatically imposed by law by
reason of conviction of the crime or offense.”230 The certificates create a
judicially enforceable “presumption of rehabilitation” that must be given
effect by employers and licensing boards.231 Advocates report that the
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222. LEGAL ACTION CTR., AFTER PRISON: ROADBLOCKS TO REENTRY: A REPORT ON
STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 19–21 (2004), available
at http://www.lac.org/roadblocks-to-reentry/upload/lacreport/LAC_PrintReport.pdf.
223.
N.Y. CORRECT. L. §§ 700–705 (McKinney 2013).
224. N.Y. CORRECT. L. §§ 703-a, 703-b (McKinney 2013).
225. See, Survey of State Laws, supra note 61, at 3.
226. Specifically, Certificates of Good Conduct Program has existed since the 1940s,
while the Certificates of Relief from Disabilities Program was created in 1966. MARGARET
COLGATE LOVE, NACDL RESTORATION OF RIGHTS PROJECT, NEW YORK 4 (2013), available
at
http://www.nacdl.org/uploadedFiles/files/resource_center/2012_restoration_project/state_na
rr_ny.pdf.
227. See generally People v. Adams, 747 N.Y.S.2d 909 (N.Y. Sup. Ct. 2002).
228. See generally N.Y. CORRECT. L. §§ 700–705 (McKinney 2013). New York
imposes no offense-based limitations on eligibility for certificates, but distinguishes between
first-time offenders and recidivists for purposes of the type of certificate they may obtain and
how long they must wait to apply. Id. While a CRD may be awarded to misdemeanants and
first-time felony offenders at sentencing or any point thereafter by a court where no prison
term is involved or after release from confinement by the DOCCS, a CGC will be available to
repeat felony offenders only from the DOCCS and only after displaying good conduct for a
waiting period of one to five years, depending on the seriousness of the offense. Id.
230. Id.
231. N.Y. CORRECT. L. § 753(2) (McKinney 2013); see also Arrocha v. Bd. of Ed., 712
N.E.2d 669, 671 (N.Y. 1999); Bonacorsa v. Van Lindt, 71 N.Y.2d 605 (N.Y. 1988). In
Bonacorsa, the court held that a harness racing license board must consider the “presumption
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certificates have another practical effect: they are often useful not only
in the employment context, but also in areas such as housing—despite
the fact that New York’s statutory scheme does not explicitly address
housing issues or any barriers outside the licensing and employment
context.232
Even outside of the population receiving these certificates, all New
Yorkers with a criminal record enjoy unique and robust protections
from discrimination in licensing and employment.233 It is unlawful for
public employers, licensing authorities, and most private employers to
“discriminate against” applicants for employment and to discriminate
against current employees based on a previous conviction unless:
(1) there is a direct relationship between one or more of the previous criminal
offenses and the specific license or employment sought . . . ; or
(2) the issuance . . . of the license or the granting . . . of the employment would
involve an unreasonable risk to property or to the safety or welfare of specific
individuals or the general public.234
In order to assist employers and licensing authorities making such a
determination, New York law provides specific factors which the public
agency or employer is required to consider, including an analysis of the
duties and responsibilities of the license or employment, whether the
criminal conviction relates to those duties and responsibilities, and
information regarding “rehabilitation and good conduct,” among other
salient considerations.235 Additionally, the public agency or private
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of rehabilitation” even where there is a direct relationship between the criminal conviction and
the licensed activity. Id. at 611. The board must consider that presumption “to determine
whether in fact the direct relationship is sufficiently attenuated to warrant issuance of the
license.” Id.
232. Telephone Interview with Joy Radice, Acting Assistant Professor of Lawyering,
New York University School of Law (Jan. 17, 2012).
233. See N.Y. CORRECT. L. §§ 750–755 (McKinney 2013) (Article 23-A).
234. N.Y. CORRECT. L. § 752 (McKinney 2013). Law enforcement positions are
explicitly excluded from the definition of “employment” under this section. N.Y. CORRECT.
L. § 750(5) (McKinney 2013).
235. N.Y. CORRECT. L. § 753 (McKinney 2013). The eight specific statutory factors
that must be considered are: (1) New York’s “expressed” “public policy. . . [of] encourag[ing]
the licensure and employment of persons previously convicted of . . . criminal offense[s]”; (2)
“specific duties and responsibilities necessarily related to the license or employment”; (3) any
“bearing . . . the criminal offense . . . will have on [the person’s] fitness or ability to perform
[the aforementioned] duties and responsibilities”; (4) “time . . . elapsed since the occurrence
of the criminal offense”; (5) the offender’s “age . . . at the time of occurrence of the criminal
offense”; (6) the “seriousness” of the criminal offense; (7) any information on the
“rehabilitation and good conduct” of the applicant; and (8) “[t]he legitimate interest . . . in
protecting property, and the safety and welfare of specific individuals or the general public.”
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employer “shall . . . give consideration to a certificate . . . which . . . shall
create a presumption of rehabilitation.”236 These provisions are backed
by a robust enforcement scheme. If denied employment or a license by
virtue of a criminal conviction, an individual is entitled to a statement of
reasons.237 Furthermore, individuals who believe they are the victim of
criminal conviction discrimination may enforce these provisions by
filing a civil action (in the case of a public employer) or through the
Division of Human Rights and Commission on Human Rights (in the
case of a private employer).238
In addition to protecting prospective employees with a criminal
record, New York law also contains liability protection for employers
who hire applicants with a criminal record.239 Under New York law:
[T]here shall be a rebuttable presumption in favor of excluding from evidence
the prior incarceration or conviction of any person, in a case alleging that the
employer has been negligent in hiring or retaining an applicant or employee, or
supervising a hiring manager, if after learning about an applicant or
employee’s past criminal conviction history, such employer has evaluated the
factors [outlined above], and made a reasonable, good faith determination that
such factors militate in favor of hire or retention of that applicant or
240
employee.
Id.
236.
237.
238.
239.
240.
241.
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N.Y. CORRECT. L. § 753(2) (McKinney 2013).
N.Y. CORRECT. L. § 754 (McKinney 2013).
N.Y. CORRECT. L. § 755(2) (McKinney 2013).
See N.Y. EXEC. L. §296(15) (McKinney 2013).
Id.
Negligent hiring liability theory or negligent retention liability theory “recognizes
that an employer has a duty to use reasonable care in the selection and retention of
employees,” and holds liable under certain circumstances the “employer [who] has hired or
retained an unsafe or incompetent person who committed intentional or criminal acts.” 29
Am. Jur. Trials 267 § 2 (1982) (“Negligent Hiring and Retention of An Employee”). In this
context, the theory would be that the employer failed to exercise reasonable care in the
selection of the employee because the employee has a criminal conviction record.
To better illustrate the effect of this provision, consider the
following hypothetical: suppose an employer hires a person with a
criminal record after reasonably considering the factors in a good faith
manner. Unfortunately, that employee, acting within the scope of his or
her employment, subsequently commits a tort causing injury to a
customer of the employer. If the employer is then sued by the customer
based on a negligent-hiring theory,241 this statute acts as an evidentiary
rule, creating a “rebuttable presumption in favor of excluding” the
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evidence that the person was previously convicted or incarcerated.242
In comparison to Connecticut, New York’s administrative
certificate and employment discrimination regimes are more robust and
wide-ranging. Unlike Connecticut, the New York certificates create a
judicially enforceable “presumption of rehabilitation.”243 The state
statutes provide fairly specific instructions to employers as to how to
consider potential employees with a criminal conviction record, whether
or not they have a certificate. New York’s regime also contains
comprehensive anti-discrimination protections backed by strong
enforcement mechanisms.244 Lastly, the New York statutes provide
liability protection to employers who hire persons with a criminal
conviction record.245 Connecticut law contains none of these provisions.
B. Illinois: Restorative Certificates with Familiar Nomenclature
242.
243.
244.
245.
246.
247.
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N.Y. EXEC. L. § 296(15) (McKinney 2013). (emphasis added).
See supra notes 233–38 and accompanying text.
See supra notes 237–240 and accompanying text.
See generally RESOURCE GUIDE, supra note 46 at Illinois-1 app.
See, e.g., ILL. CONST. art. III, § 2 (automatically restoring the right to vote); 705
ILL. COMP. STAT. § 305/2 (2012) (providing that all citizens are eligible for jury service, so
long as they are “[f]ree from all legal exception, of fair character, of approved integrity, [and]
of sound judgment”); 730 ILL. COMP. STAT. § 5/5-5-5(d) (2012) (restoring “all license rights
and privileges . . . which have been revoked or suspended” upon completion of sentence of
imprisonment or discharge from probation, although this provision is riddled with exceptions
such as motor vehicle licensing and employment in child care facilities or as a school bus
driver).
248. ILL. CONST. art. V, § 12; 730 ILL. COMP. STAT. § 5/3-3-1(a)(3) (2012).
For states wishing to help ex-offenders find relief from the barriers
imposed by irrational or overly burdensome collateral consequences,
Illinois offers another approach. Like every other jurisdiction, Illinois
imposes a variety of collateral consequences on individuals with a
Nonetheless, Illinois has some effective
criminal conviction.246
mechanisms for granting mercy in the form of relief from the barriers
and disabilities imposed on former offenders. In addition to the
automatic restoration of many rights,247 Illinois has a fairly active pardon
program in which the Governor grants pardons, after review and
recommendation by the state’s Prisoner Review Board.248 While not as
active, independent, and powerful as the Connecticut system described
above, Illinois appears to have a functional and effective pardon
program where a pardon removes penalties and disabilities resulting
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249. See People v. Glisson, 358 N.E.2d 35, 38 (Ill. App. Ct. 1976), aff’d in part, rev’d in
part on other grounds, 372 N.E.2d 669 (Ill. 1978).
250. 20 ILL. COMP. STAT. § 2630/5 (2012).
251. 730 ILL. COMP. STAT. § 5/5-5-5(e-f) (2012).
252. See 730 ILL. COMP. STAT. § 5/5-5.5-10 (2012).
254. Id.
255. 730 ILL. COMP. STAT. § 5/5-5.5-15 (2012).
257. 730 ILL. COMP. STAT. § 5/5-5-5 (2012).
from a criminal conviction, restoring all civil rights.249 Illinois law also
contains other provisions for sealing criminal records under certain
circumstances250 as well as a judicial certificate of discharge, where the
committing court may enter an order “certifying” that the sentence has
been “completed when the court believes it would assist in the
rehabilitation” of the former offender.251
Most important for our purposes are the state’s administrative relief
mechanisms. In order to help rehabilitated offenders mitigate or avoid
the consequences of a criminal conviction, Illinois offers administrative
restoration in the form of certificates with familiar nomenclature:
Certificates of Relief from Disabilities (“CRDs”) and Certificates of
Relief from Good Conduct (“CGCs”).252 Illinois’ certificate program is
modeled on New York’s and is similar to it in many respects, but
“differs significantly in its eligibility criteria and legal effect.”253
Eligibility is strictly limited to individuals with no more than two nonviolent felony convictions and the certificates do not generally relieve
disabilities and remove employment barriers.254
Depending on the circumstances, the Illinois CRD can be issued by
either the sentencing court (for offenders who did not receive a prison
sentence) or by the Prisoner Review Board (for offenders who did
receive a prison sentence) as long as the issuance is “consistent with the
[former offender’s] rehabilitation” and is “consistent with the public
interest.”255 Unlike its New York counterpart, the Illinois CRD is
“narrowly tailored” to facilitate licensing in 27 specific areas, creating a
“presumption of rehabilitation” that must be considered by a licensing
board, but which does not generally relieve disabilities and employment
barriers.256 A licensing board must either find a “direct relationship”
between the conviction and the license sought, or find that issuing the
license would involve an “unreasonable risk to property or . . . safety or
welfare” in order to deny a recipient of a CRD a license in these 27
fields, solely based on their conviction.257 When making that “direct
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relationship” decision, licensing boards must consider that the CRD
creates a “presumption of rehabilitation.”258
The Prisoner Review Board may issue a CGC after a waiting period
when the person “has demonstrated . . . that he or she has been a lawabiding citizen and is fully rehabilitated;” in other words, the person has,
by virtue of the passage of time and his or her actions, become more
deserving of relief.259 The certificate is apparently designed to evince
rehabilitation for employment and other purposes, but it lacks the New
York CGC’s “presumption of rehabilitation” and, thus, has “no
independent legal effect.”260
As in New York, the certificates in Illinois provide an incentive to
employers to hire ex-offenders by providing protection from liability –
but this statute is far more strongly worded than New York’s version.261
Illinois’s statute provides that:
An employer is not civilly or criminally liable for an act or omission by an
employee who has been issued a certificate of relief from disabilities, except
for a willful or wanton act by the employer in hiring the employee who has
been issued a certificate of relief from disabilities.262
IV. MODEL LEGISLATION: COMPREHENSIVE POLICY REGIMES TO
RELIEVE THE STIGMA
In addition to the statutory schemes in effect in New York and
Illinois, practitioners, reformers, and academics have crafted multiple
Id.
730 ILL. COMP. STAT. § 5/5-5.5-25(a-6), -30(c) (2012).
See generally RESOURCE GUIDE, supra note 46, at Illinois-1 app.
See ILL COMP. STAT. § 5/5-5.5-15(f), -25(c) (2012).
730 ILL. COMP. STAT. § 5/5-5.5-15(f) (2012). A comparable statute applies the
same protection with respect to Certificates of Good Conduct. 730 ILL. COMP. STAT. § 5/55.5-25(c) (2012).
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258.
259.
260.
261.
262.
This liability protection is broad, going far beyond the evidentiary
rule employed in New York law. Instead, this rule appears to act as a
complete bar to any civil or criminal liability (except for a willful or
wanton act) for an act or omission of an employee. Employers will
almost always be immune from negligent hiring liability under this
approach. In sum, Illinois combines a relatively strong scheme of
collateral consequences relief, including executive pardons, judicial
certificates of discharge, multiple administrative certificates of
rehabilitation, and strong negligent hiring liability protection.
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model approaches which address relief from collateral consequences in a
comprehensive and thoughtful manner. The Model Penal Code
(“MPC”), the ABA Collateral Sanctions Standards (“ABA Standards”),
and the Uniform Collateral Consequences of Conviction Act
(“UCCCA”) all grant judges the power to relieve ex-offenders of the
collateral consequences of convictions.263
A. Model Penal Code: A Nuanced Two-Tiered Approach
263.
264.
265.
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See discussion infra Parts IV.A, B, and C.
See, e.g., Kogon & Loughery, supra note 167, at 389.
See Love, supra note 40, at 767. Connecticut’s erasure/expungement regime is an
extreme example of a “forgetting” model.
266. Id.; see also Love, supra note 191, at 1711.
267. See Love, supra note 40, at 767; MODEL PENAL CODE § 306.6 (1962) (“Order
Removing Disqualifications or Disabilities; Vacation of Conviction; Effect of Order of
Removal or Vacation”). It does not appear that this approach was ever widely adopted in the
states. Love, supra note 191, at 1711 n.23.
268. MODEL PENAL CODE § 306.6(1).
269. Id.; Love, supra note 191, at 1711–12.
270. MODEL PENAL CODE § 306.6.
As described in Section II.B.1 infra, the legal community has long
debated the virtues of “forgetting” or “forgiving” as a model for relief
from collateral consequences.264 The American Law Institute’s MPC
formulated a novel strategy rejecting a Connecticut-like system of
concealment.265 Rather, the MPC proposed a more “nuanced” approach
in which the sentencing court would be empowered to certify that the
offender had paid his debt to society.266
Section 306.6 of the MPC employs a two-tiered system whereby
the court can first relieve disqualifications and disabilities and then later
vacate the conviction itself, if warranted in the situation.267 So long as
the defendant is not convicted of another crime, the court would be
empowered to make a declaration that the conviction would not
“constitute a conviction for the purpose of any disqualification or
disability imposed by law” after an offender had fully satisfied the
sentence.268 Sometime later, the sentencing court can vacate the record
of conviction altogether provided the ex-offender has led a “law-abiding
life” for a period of time, which would be longer for adult offenders than
for their juvenile counterparts.269
Essentially, the MPC allows for the conviction to stand, while
assuring that the conviction itself is no longer permitted to serve as the
basis for disqualification.270 When the court-imposed sentence reached
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its conclusion, relief from civil barriers would be granted and collateral
penalties would cease.271 The MPC’s model is similar “in concept and
function” to a traditional executive pardon.272 What really distinguished
the MPC’s approach was its unusual treatment of the issue of candor.273
In stark contrast to Connecticut law whereby a pardon recipient may
actually deny under oath ever having been convicted, the MPC model
contemplates that neither the initial restoration nor the later vacation
order may justify a defendant denying the crime’s existence.274 The
system refuses to “indulge the fiction that the conviction had somehow
never taken place.”275 Rather than attempting to rewrite history, the
MPC takes a markedly different tack by affirming the past, while still
“confront[ing that] history squarely with evidence of change.”276
B. ABA Standards: Advancing a Comprehensive Policy Regime
Formulated in 2003, the ABA Standards made significant advances
in fashioning a comprehensive policy regime to address collateral
consequences.277 Among the Standards’ objectives with regard to
mandatory collateral sanctions278 are the limiting of collateral sanctions
to those that are warranted, the complete prohibition of unjustified
collateral sanctions, and the full dissemination of information regarding
applicable collateral sanctions to criminal defendants.279 Notably, the
271.
272.
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See id.
Love, supra note 40, at 767. A traditional executive pardon is, of course, quite
different from Connecticut’s absolute full expungement pardons, which are granted by an
independent administrative body.
273. Love, supra note 191 at 1712.
274. MODEL PENAL CODE § 306.6 (f).
275. Love, supra note 191, at 1712.
276. Id. at 1713.
277. See ABA STANDARDS, supra note 49, at 12–13.
278. In the ABA Standards, collateral sanctions are non-discretionary collateral
consequences. See id. at 15, Standard 19-1.1(a) (“Definitions”) (defining “collateral sanction”
as “a legal penalty, disability or disadvantage, however denominated, that is imposed on a
person automatically upon that person’s conviction for a felony, misdemeanor or other
offense, even if it is not included in the sentence.”).
279. Id. at 18, Standard 19-1.2(a) (“Objectives”). The stated objectives are: (1) limiting
collateral sanctions to those which are specifically warranted in light of the prior offense; (2)
altogether prohibiting collateral sanctions which “without justification, infringe on
fundamental rights, or frustrate a convicted person’s chances of successfully reentering
society”; (3) providing adequate means to readily obtain the information concerning collateral
sanctions for a particular offense; (4) require that criminal defendants be fully informed of
applicable collateral sanctions before pleading guilty and at sentencing; (5) “includ[ing]
collateral sanctions as a factor in determining the appropriate sentence” and, crucially, (6)
providing a mechanism for former offenders to obtain relief from collateral sanctions by
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“judicial or administrative” means. Id.
280. Id. at 21, Standard 19-2.1 (“Codification of collateral sanctions”).
281. ABA STANDARDS, supra note 49, at 35, Standard 19-2.6 (“Prohibited collateral
sanctions”).
282. Id. at 18, Standard 19-1.2(b) (“Objectives”). A “discretionary disqualification” is
defined as “a penalty, disability or disadvantage, however denominated, that a civil court,
administrate agency, or official is authorized but not required to impose on a person convicted
of an offense on grounds related to the conviction.” Id. at 15, Standard 19-1.1(b)
(“Definitions”).
283. See id. at 18, Standard 19-1.2(b) (“Objectives”).
284. See generally ABA STANDARDS, supra note 49.
285. See id. at 30, Standard 19-2.5 (a) (“Waiver, modification, relief”).
286. Id. at 30, Standard 19-2.5(c) (emphasis added).
Standards contemplate codifying “all collateral sanctions in a single
chapter or section of the jurisdiction’s criminal code,” which “should
identify with particularity the type, severity and duration of collateral
sanctions applicable to each offense.”280 Additionally, certain collateral
sanctions, such as deprivation of the right to vote post-confinement,
deprivation of judicial rights, or deprivation of legally recognized
domestic relationships, are altogether prohibited.281
The standards do not limit themselves to these mandatory sanctions,
as they also address discretionary disqualifications.282 The stated
objectives with regards to this latter category are to: (1) limit situations
whereby a convicted person is able to be disqualified due to “otherwise
available benefits or opportunities” in order to “facilitate reentry into
society . . . and reduce recidivism;” (2) provide that a criminal
conviction shall not be the disqualifying factor precluding a person from
a benefit or opportunity “unless the basis for disqualification is
particularly related to the offense for which the person is convicted;”
and, crucially, (3) establish a mechanism by which persons with a
criminal record may obtain “review of, and relief from, discretionary
disqualification[s].”283
Much like Section 306.6 of the MPC, the ABA Standards propose a
two-tiered system dealing with the full gamut of collateral consequences
in areas such as civil rights, jobs, housing, and welfare.284 Under this
model, courts and/or a specified administrative body should be
authorized to grant “timely and effective relief” from collateral sanctions
imposed by the jurisdiction’s laws.285 In addition to this sanctionspecific relief, the ABA model proposes a general procedure that allows
a convicted person to obtain “an order relieving the person of all
collateral sanctions.”286 Commentators have noted that this “more
comprehensive relief . . . is intended to function as a kind of certification
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rehabilitation that addresses issues of stigma and lost status as well as
legal barriers,” and in that sense, it “is like a statutory pardon”—much
like what Connecticut already offers in the form of an absolute pardon
from the BOPP.287 Unlike Connecticut, however, which employs an
expungement model “forgetting” the crime’s very existence, the
commentaries to the ABA Standards may be read to favor an open and
transparent “vacatur” MPC-style approach that acknowledges the
crime’s existence.288 This version of relief forgives, but does not
necessarily forget.
C. Uniform Collateral Consequences of Conviction Act: Specific
Procedural Statutory Language
While the ABA Standards are fashioned as public policy goals to
which jurisdictions should aspire,289 the UCCCA has produced specific
statutory language that can be enacted by the states.290 The drafting
committee of the Uniform Law Commission (“ULC”), which crafted the
UCCCA, chose to deal only with procedural issues, avoiding the scope
and substantive content addressed by the ABA Standards.291 The
drafting committee appears to have followed the basic approach of the
ABA Standards by (1) removing absolute legal barriers and (2) guiding
discretion.292 Generally, the UCCCA provides “immediate relief from
specific status-generated legal barriers that might impede a convicted
person’s ability to live in the community, and more complete relief from
all such barriers after a period of law-abiding conduct.”293 Perhaps most
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See Love, supra note 40, at 782–83.
See ABA STANDARDS, supra note 49, at 33, Standard 19-2.5 cmt. (stating that
“[t]his relief may be accomplished in a number of different ways including, for example,
expungement or sealing, but these standards do not require any specific method to be used,”
before describing only the MPC approach in detail).
289. See discussion infra in Part IV.B.
290. See generally UCCCA, supra note 45.
291. See Love, supra note 40, at 784. The ULC is the organization responsible for
drafting numerous well-regarded uniform acts such as the Uniform Commercial Code. See
About the ULC, UNIF. LAW COMM’N: NAT’L CONF. OF COMM’RS OF UNIF. STATE LAWS,
http://www.uniformlaws.org/Narrative.aspx?title=About%20the%20ULC
(last visited June 30, 2013). The Uniform Law Commission (formally known as the National
Conference of Commissioners on Uniform State Laws) was created to determine areas where
uniformity of state law is desirable and to draft uniform and model acts for consideration by
the states. Id. They are well known for widely enacted statutory schemes like the Uniform
Commercial Code. Id. The organization has been in existence since 1892. Id.
292. See generally UCCCA, supra note 45. .
293. See Love, supra note 40, at 784.
287.
288.
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UCCCA, supra note 45, § 8.
See generally id. § 10.
Id.
Id. § 11.
See UCCCA, supra note 45, § 11(d).
Id. § 11.
See id. § 8.
Id.
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294.
295.
296.
297.
298.
299.
300.
301.
importantly, discretionary decisions to disqualify are guided by
established and well-enunciated parameters.294
The UCCCA allows offenders to obtain some relief from
mandatory collateral consequences from the beginning: before
sentencing or any time thereafter.295 This relief comes in the form of an
“Order of Limited Relief,” which may only be granted with regards to a
particular mandatory collateral sanction if there is a “substantial need for
the relief,” if the order would assist the offender “in obtaining or
maintaining employment, education, housing, public benefits, or
occupational licensing,” and if the order would not pose “an
unreasonable risk to the safety or welfare of the public or any
individual.”296 In some regards, these certificates are similar in effect to
Certificates of Relief from Disabilities issued by New York sentencing
courts, although the UCCCA order is more limited in effect.
One UCCCA provision, however, provides much more
comprehensive and universal relief than New York’s certificates or
Connecticut’s provisional pardons. Section 11 authorizes a board to
issue “Certificate[s] of Restoration of Rights” after a recommended fiveyear period of law-abiding conduct.297 These certificates provide
complete relief from all mandatory collateral consequences.298 In order
to issue these certificates, the authorized board must find that an
individual is lawfully employed, has been involved in no subsequent
criminal conduct, and poses no danger to the public.299 In effect, Section
11 converts a jurisdiction’s mandatory collateral consequences into
discretionary disqualifications.
Next, the statutory scheme addresses the use of discretion in
individual cases when denying a benefit or opportunity on grounds
relating to a person’s prior criminal conviction.300 This process requires
the decision-maker to undertake an “individualized assessment” when
choosing whether to deny a benefit or opportunity.301 Furthermore, all
of the information related to the criminal offense should not be
considered in every circumstance.
The “particular facts and
circumstances involved in the offense” should only be considered if they
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are “substantially related to the benefit or opportunity at issue.”302
In similar fashion to the statutory schemes of New York and
Illinois, the UCCCA provides some liability protection for entities that
employ persons holding certificates.303 Section 14 provides that a
certificate or order “may be introduced as evidence of a person’s due
care” in “a judicial or administrative proceeding alleging negligence or
other fault.”304 If a business’s ex-offender employee commits a tort in
the scope of his or her employment and the injured person sues the
business entity on a negligent hiring theory, the business will be able to
introduce the state-issued certificates as evidence of their due care.305
This liability protection rule, however, is different than New York’s
approach. New York’s rule creates a presumption to exclude evidence
of the conviction altogether,306 while the UCCCA approach is to simply
introduce evidence of the certificate or order.307
The overall achievement of the UCCCA is remarkable: a
comprehensive and thoughtful statutory scheme addressing multiple
aspects of collateral consequences in a way that rationalizes and clarifies
policies regarding how societies ought to treat people with a criminal
conviction once they have paid their debt to society. This made it
disappointing that although legislators in several jurisdictions introduced
the UCCCA, the act was having trouble achieving adoption in any
state.308 That changed, however, when North Carolina become the first
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302. UCCCA, supra note 45, § 8. “The decision-maker shall also consider other
relevant information, including the effect on third parties. . . . ”. Id.
303. See id. §14.
304. Id. The comments make clear that the ULC designed this section to provide
protection to businesses and other entities that employ people with a criminal conviction who
have obtained Orders of Limited Relief and Certificates of Restoration of Rights. See id. § 14
cmt.
305. See UCCCA, supra note 45, § 14. New York and Illinois appear to be the only
jurisdictions with similar statutes. See N.Y. EXEC. LAW § 296(15) (McKinney 2013); 730
ILL. COMP. STAT. §§ 5/5-5.5-15(f), -25(c) (2012).
306. See supra notes 242 and accompanying text.
307. UCCCA, supra note 45, § 14. .
308. See Rich Cassidy, The Bad News: No Enactments of the Uniform Collateral
Consequences
Act
This
Year,
ON
LAWYERING
(May
19,
2011),
http://onlawyering.com/2011/05/the-bad-news-no-enactments-of-the-uniform-collateralconsequences-act-this-year/. In 2011, the UCCCA was introduced in the legislatures of seven
states (Colorado, Minnesota, Nevada, New Mexico, North Carolina, Vermont, and West
Virginia). Id.; see also John Rubin, Certificate of Relief from Collateral Consequences of a
Criminal Conviction, N.C. CRIM. LAW: UNC SCH. GOV’T BLOG (Aug. 8, 2011, 8:05 AM),
http://nccriminallaw.sog.unc.edu/?p=2765. It came close to passage in New Mexico, where it
passed both houses by overwhelming margins only to be vetoed by Governor Susana
Martinez. Cassidy, supra. Governor Martinez’s terse veto message states that the law is
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state to enact portions of the UCCCA, with the law becoming effective
December 1, 2011.309 North Carolina courts are now authorized to grant
certain ex-offenders certificates to obtain relief from collateral
consequences. Watching North Carolina’s experiences with the statute
should reveal its efficacy, and also problems that are sure to arise when a
new statutory scheme is introduced. Furthermore, other states continue
to consider the statute for enactment.310 As of this writing, the UCCCA
has been introduced in the New Mexico and New York state legislatures
during current 2013 legislative sessions.311
V. CONNECTICUT: A CASE STUDY
Citizens like LaResse Harvey and Leah Gibson face collateral
consequences every day, years after their convictions and after long,
sustained periods of productive, law-abiding living. In order to
understand how a rational and effective regime can relieve irrational and
ineffective collateral consequences for people like Ms. Harvey and Ms.
Gibson, this Section attempts to answer two key questions. First, what
can other jurisdictions learn from Connecticut laws and practices
affecting persons with a criminal conviction, particularly with regard to
Connecticut’s absolute expungement pardon program?312 Second, how
can policymakers in Connecticut and around the country embrace the
best practices of other states and the model acts to alleviate irrational and
discriminatory barriers?
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unnecessary because “[t]he attorney for the defendant has a responsibility to provide counsel
to his or her client and explain all possible collateral sanctions or penalties.” See Governor
Susana Martinez, House Executive Message No. 24 (Apr. 7, 2011), available at
http://onlawyering.com/wp-content/uploads/2011/05/VetoHB311-1.pdf. Governor Martinez’s
message does not even address other components of the act, such as the processes for
relieving barriers on a case-specific basis and guiding the exercise of discretion. See id.
309. See N. CAROLINA GEN. STAT. §§ 15A-173.1 through 15A-173.6 (2013); see also
Rubin, supra note 308.
310. See Collateral Consequences of Conviction Act: Enactment Status Map and
Legislative
Tracking,
UNIF.
LAW
COMM’N,
http://www.uniformlaws.org/Act.aspx?title=Collateral%20Consequences%20of%20Convictio
n%20Act (last visited June 30, 2013).
311. Id.
312. After all, despite its flaws, Connecticut’s statutory regime does have some
significant strengths. See Love, supra note 40, at 775 n. 97 (“Connecticut and New York are
the states that come closest to having comprehensive relief schemes [by which a convicted
person may fully regain the legal status of an ordinary citizen], the latter with administrative
certificates and a strong non-discrimination law, and the former with a robust pardoning
program, a state-wide ban-the-box scheme, and legal restrictions on consideration of
conviction in public employment and licensing.”).
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Hundreds of thousands of our fellow citizens are released from
American prisons every year—thousands each and every week.313 If
society wants these people to reenter, receive a second chance, and lead
lawful and productive lives, it must ask the timely and relevant question:
how can our legal system rationally and effectively remove unreasonable
collateral consequences that hinder rehabilitation and reentry for the
millions of Leah Gibsons and LaResse Harveys of this country?314
A. A Legislative Pardons Power: Connecticut’s Unique Administrative
Pardons Regime in Comparative Perspective
Pardons remain the “patriarch” of procedures for relieving persons
with a criminal conviction record of barriers, disabilities, and forfeitures
imposed by virtue of their conviction.315 A pardon overcomes legal
barriers while also confirming good character and offering psychological
benefit to people with a criminal record seeking a pardon to move on
from an agonizing experience.316 Yet the practical reality in most
jurisdictions is that pardons are all-but-impossible to attain for the
everyday individual.317 It was not always this way. Executive pardons
served an important function in early America: they often substituted for
appeals.318 Because “there were no criminal appeals in the seventeenth
and eighteenth centuries,” executive pardons were “the only means
available to correct legal errors occurring at trial.”319 Restoration of
rights and reputation was also historically accomplished through
executive pardon.320 But the granting of pardons, almost always done by
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313. See, e.g., U.S. DEP’T OF JUSTICE: BUREAU OF JUSTICE STATISTICS, RECIDIVISM OF
PRISONERS
RELEASED
IN
1994
(June
2002),
available
at
http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf [hereinafter RECIDIVISM].
314. As of 2010, there were 2,266,800 adults incarcerated in the United States. See U.S.
DEP’T OF JUSTICE: BUREAU OF JUSTICE STATISTICS, CORRECTIONAL POPULATION IN THE
UNITED
STATES,
2010
(Dec.
2011),
available
at
http://bjs.ojp.usdoj.gov/content/pub/pdf/cpus10.pdf. The vast majority of these individuals
will be released and reenter society at some point.
315. See Survey of State Laws, supra note 61, at 1.
316. See Love, supra note 40, at 776.
317. See Survey of State Laws, supra note 61, at 2 (noting that a “[p]ardon is of course
the ‘patriarch’ of relief procedures, but as a practical matter these days pardon is a realistic
option in only a handful of states”).
318. See Stuart Banner, THE DEATH PENALTY: AN AMERICAN HISTORY 56–57 (2003).
319. Id. at 56. Of course, “[t]oday appellate courts perform [this] role.” Id.
320. See generally W.H. HUMBERT, THE PARDONING POWER OF THE PRESIDENT 95–
133 (1941) (noting that the pardon power was frequently exercised in the 19th century);
Margaret Colgate Love, The Twilight of the Pardon Power, 100 J. CRIM. L. & CRIMINOLOGY
1169 (2010) (explaining that usage of the pardon power dropped dramatically after 1980).
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a state governor, has become taboo in nearly every jurisdiction except
Connecticut. This Section proceeds by first demonstrating the inherent
problems with the executive pardons in modern times. It then discusses
the efficacy of Connecticut’s administrative pardons regime in an era of
massive criminal conviction records and innumerable collateral
consequences.
In modern practice, the pardon has become a “phantom remedy”
because with rare exceptions, “governors and presidents are reluctant to
use their constitutional power while in office while they can still be
punished at the polls as ‘soft on crime,’ or, worse, held responsible for
some undiscovered vices or subsequent bad behavior of a beneficiary of
their forgiveness.”321 The pardon power is expansive because in the vast
majority of U.S. jurisdictions, the Governor as chief executive has the
exclusive and unreviewable power to pardon; “[t]he power to pardon
conferred by various constitutions,” including the United States
Constitution and most state constitutions, “is practically unrestricted, or,
as alternately stated, is left to the absolute discretion of the official
having that power.”322 In an age of increased media coverage and
widespread suspicion of the actions of our elected officials, it makes
sense that chief executives have become restrained in using this
unlimited power.323 In fact, President Barack Obama is on track to be
the stingiest pardon-granter ever.324 While President Franklin D.
Roosevelt granted an average of 235 pardons per year during his
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See Love, supra note 40, at 776.
59 Am. Jur. 2d Pardon and Parole § 12; see also Roll v. Carnahan, 225 F.3d 1016,
1018 (8th Cir. 2000) (applying Mo. law); Bacon v. Lee, 549 S.E.2d 840, 854 (N.C. 2001).
323. The federal pardon power is, as in most states, virtually “unlimited.” See Ex parte
Garland, 71 U.S. 333, 380 (1866); Lauren Schorr, Breaking into the Pardon Power: Congress
and the Office of the Pardon Attorney, 46 AM. CRIM. L. REV. 1535, 1536 (2009) (noting that
the Pardon Clause, U.S. CONST. art II, § 2, cl. 1, is a “near-unfettered” grant of authority to the
President).
324. See Clemency Statistics, U.S. DEP’T OF JUSTICE OFFICE OF THE PARDON
ATTORNEY, http://www.justice.gov/pardon/statistics.htm (last visited June 30, 2013).
Nonetheless, in contexts outside the granting of presidential pardons, President Obama has
proven very sympathetic to the plight of persons with a criminal record trying to overcome
collateral consequences. Then State Senator Barack Obama, a former community organizer,
was the co-author of Illinois’s certificate statute. See 730 ILL. COMP. STAT. 5/5-5-5(i) (2011).
In 2010, President Obama applauded the owner of National Football League team the
Philadelphia Eagles for hiring Michael Vick, an all-star quarterback who was released from
federal prison after serving two years for participation in a dog-fighting ring. See Michael
Gerson, Power of the Second Chance, WASH. POST, Jan. 4, 2011 at A13 ([i]t’s never a level
playing field for prisoners when they get out of jail.”); Apologetic Vick Gets 23-Month
Sentence
on
Dogfighting
Charges,
ESPN.COM
(Dec.
11,
2007),
http://sports.espn.go.com/nfl/news/story?id=3148549.
321.
322.
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presidency, President Obama granted approximately 39 pardons during
his entire four-year first term.325
The recent saga of former Mississippi Governor Haley Barbour
provides an instructive case study as to why leaders such as President
Obama are so reluctant to use their pardoning powers. Just before
leaving office in January 2012, Governor Barbour, a popular and affable
conservative Republican who flirted with a presidential run, granted full
pardons or clemency to 215 people, including convicted shoplifters,
rapists, burglars, and embezzlers, as well as 14 murderers.326 Twentysix of those individuals were still in prison.327 Governor Barbour’s
rationale was simple; he intended the pardons to allow these people “to
find gainful employment or acquire professional licenses as well as hunt
and vote.”328 In other words, he issued these pardons to help people with
a criminal conviction overcome the burdens of collateral consequences:
barriers to employment, licensure, hunting, and voting. This use of the
pardoning power was unprecedented in Mississippi329 and the uproar
was swift and fierce: “[t]he law-and-order state of Mississippi was
stunned.”330 Governor Barbour found few unqualified supporters; up-inarms Democrats in the state legislature introduced a bill that would
curtail governors’ power to grant pardons.331 Governor Barbour
responded that he was “totally at peace with these pardons.”332 “I
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325. See Clemency Statistics, supra note 324; Charlie Savage, Obama Pardons 17
Felons, First in His Second Term, N.Y TIMES, Mar. 1, 2013, at A11, available at
http://www.nytimes.com/2013/03/02/us/politics/obama-pardons-17-felons-first-in-his-secondterm.html?_r=2&. Such a reticence to use the pardon power is virtually without precedent.
See id. President Ronald Reagan, the last President to win the popular vote in two successive
presidential elections, granted 213 pardons in his first term in office. See id.
326. See Maggy Patrick, Haley Barbour Defends Decision to Grant Pardons, Says He
Believes
in
‘Second
Chances’,
ABC
NEWS
(Jan.
13,
2012),
http://abcnews.go.com/blogs/politics/2012/01/haley-barbour-defends-decision-to-grantpardons-says-he-believes-in-second-chances/; Haley Barbour’s ‘Shocking’ Pardon Spree: A
Guide, THE WEEK (Jan. 13, 2012), http://theweek.com/article/index/223306/haley-barboursshocking-pardon-spree-a-guide [hereinafter Barbour’s Spree].
327. Barbour’s Spree, supra note 326.
328. Id.
329. Id.
330. A Quality of Mercy in Haley Barbour’s Pardons, CHRISTIAN SCIENCE MONITOR
(Jan. 24, 2012), http://www.csmonitor.com/Commentary/the-monitors-view/2012/0124/Aquality-of-mercy-in-Haley-Barbour-s-pardons.
331. See Barbour’s Spree, supra note 326; Campbell Robertson, Despite Uproar Over
Clemency, Barbour Finds Lucrative Nest, N.Y. TIMES, Jan. 15, 2012, at A14, available at
http://www.nytimes.com/2012/01/15/us/despite-clemency-uproar-haley-barbour-findslucrative-nest.html?_r=1&pagewanted=all.
332. Patrick, supra note 326.
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333. Id. Governor Barbour also noted that “[t]he State Parole Board reviewed about
95% of these 215 cases as well as many, many more applications that were rejected”; he
“accepted the Parole Board recommendations about 95% of the time.” See Haley Barbour: ‘I
Believe
in
Second
Chances’,
USA
TODAY
(Jan.
16,
2012),
http://www.usatoday.com/news/opinion/story/2012-01-16/Haley-Barbourpardons/52605708/1.
334. Robertson, supra note 331.
335. Georgia does as well. See GA. COMP. R. & REGS. 475-3-.10(3) (pardon) and (6)
(restoration of rights) (2012).
336. See, e.g., Alabama (ALA. CODE § 15-22-20(a) (2012)); Arkansas (ARK. CODE ANN,
§ 16-93-204 (2012)); Georgia (GA. CONST. art. IV, § 2, para. II).
337. See RESOURCE GUIDE, supra note 46, at 20.
338. Christopher Reinhart, Office of Legislative Research Report 2001-R-0498: Pardons
Power in Connecticut (May 2001), available at http://www.cga.ct.gov/2001/rpt/2001-R0498.htm.
339. Other “independent” boards are not as autonomous. For example, in Nebraska,
believe in second chances, and I try hard to be forgiving,” he said.333
While Governor Barbour’s intentions are laudable and his actions did
help to reopen a necessary national discussion, his pardons—all 215
coming in his very last days in office—nonetheless raise serious
questions about transparency and consistency. They also appeared to
destroy the Governor’s electoral future. The New York Times reported
that Governor Barbour’s pardons “seemed to have not only shut the door
to future electoral politics, but painted over it.”334
The hostile reaction to Haley Barbour’s Mississippi pardons will
only make other governors, many of whom do strive for a future in
electoral politics, even less likely to grant pardons. If other governors,
like Mr. Barbour, only grant pardons in their last few days in office, the
public will view pardons with disdain as a back-room tool of cronyism
and favors for the politically well-connected. In order to avoid such
malaise of the pardon function and to ensure that relief is granted in a
consistent, transparent, and large-scale manner, an autonomous and
independent pardoning system has become a virtual necessity.
Connecticut provides just such a model.335
In most states where the pardon power is exercised with regularity,
the authority to pardon is exercised or controlled by an independent
board.336 The least active pardon states are uniformly characterized by a
governor who exercises the power without any administrative
constraints.337 Connecticut is particularly unique because it is the only
state where the pardon authority is vested in a legislative, and not an
executive, authority.338 If other states are looking for a model of a truly
independent board that can add a healthy dose of relief to rehabilitated
offenders, Connecticut is the best jurisdiction for answers.339 In
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pardons are granted by a technically “independent” board, but that board consists of the
Governor, Secretary of State, and Attorney General – all political figures. See NEB. REV.
STAT. § 83-188 (2012); NEB. CONST. art. IV, § 13.
340. See Pardon Counts, BOARD OF PARDONS AND PAROLE (2011), available at
http://www.ct.gov/doc/lib/doc/PDF/PDFReport/PardonsCounts.pdf (last accessed Aug. 28,
2013).
341.
342.
See supra Part II.B.1 and accompanying footnotes.
12/09/2013 15:27:08
See Sarah Shannon et al., Growth in the U.S. Ex-Felon and Ex-Prisoner
Population, 1948 to 2010, Paper delivered at the Population Association of American 2011
Annual
Meeting
12
(Apr.
1,
2011),
available
at
http://xa.yimg.com/kq/groups/1624843/1140387168/name/Uggen%20%20Growth%20in%20t
h%20U.S.%20Ex-Felon%20Population%202010.
343. See, e.g., Love, supra note 40, at 777–78.
344. See id.
Connecticut, issuing hundreds of pardons, as Governor Haley Barbour
did, would not be at all unusual. In fact, in the most recent year for
which statistics are available, the Connecticut BOPP issued 188 full
expungement pardons after a hearing, and 215 provisional pardons
granted without a hearing.340 Importantly, the general public can be
satisfied that the independent board members sitting on the BOPP, all of
whom were subject to legislative confirmation, reviewed these cases
individually and in detail.341 Furthermore, Connecticut’s type of pardon
system is well-equipped to handle the huge number of people with a
criminal record. With more than nineteen million people with a felony
conviction on their record,342 pardon as a relief mechanism is suitable for
large-scale use only in a jurisdiction like Connecticut, where the pardon
power is vested in an independent authority that handles these matters on
a regular basis. Even in a small state like Connecticut (let alone a large
jurisdiction like California, New York, or Texas), a single governor and
his or her administration logistically cannot adequately examine the
large number of individual cases in a thorough manner so that the public
has confidence in their pardon decision-making.
Connecticut’s pardon regime is also unique in the way it fully and
literally erases a criminal record, purporting to offer complete
expungement of the offense(s) pardoned. Some commentators question
this approach, especially in the era of modern technology and Internet
Yet this “forgetting” approach, so well
background checks.343
established in Connecticut, is undeniably powerful because it solves
many of the problems of other jurisdictions that seal rather than expunge
the records. While sealed records in other states are often still available
to certain public and private entities deemed to have a special need to
know about a person’s criminal history,344 no such problems are present
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CONN. GEN. STAT. § 31-51i (2011).
CONN. GEN. STAT. § 46a-79 (2011).
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345.
346.
in Connecticut, where all copies of a criminal record are literally erased.
But what happens when a criminal record is inadvertently not
erased somewhere in a database and is used by an employer, licensing
board, or housing authority? Connecticut law does address this issue,
providing that no employer may deny employment or discriminate
against a person “solely on the basis that the [individual] had a prior
arrest, criminal charge or conviction, the records of which have been
erased.”345 The law then falls short, however, by not including an
enforcement mechanism. There is no consequence for employers who
fail to follow this statute. An enforcement mechanism—either by an
administrative sanction or a private civil right of action—should be
added to the statutory scheme in order to provide a more robust pardon
regime.
Another simple component of Connecticut’s laws relating to
collateral consequences is also worthy of consideration by other states.
In its statutory scheme, Connecticut explicitly and clearly states its
position on the employment of criminal offenders, namely that “[i]t
is . . . the policy of [Connecticut] to encourage all employers to give
favorable consideration to providing jobs to qualified individuals,
including those who may have criminal records”; after all, “the public is
best protected when criminal offenders are rehabilitated and returned to
society prepared to take their places as productive citizens.”346 It is hard
to imagine a more direct, strong statement of public policy. Of course,
such a proclamation of purpose must be backed by a comprehensive
statutory regime that effectuates the stated purpose, but stating that
purpose is a place to begin. In that spirit, other jurisdictions should
consider adopting such a public policy statement that memorializes the
state’s public policy toward persons with a criminal conviction.
In these public policy decisions, legislators, advocates, and
academics must mindful of the effect of such policies. Let us return then
to the stories of Leah Gibson and LaResse Harvey. Connecticut’s
pardon system would likely have served Ms. Gibson’s needs and
relieved her from the collateral consequences she faced. In fact, had Ms.
Gibson gone to the BOPP instead of the Superior Court, she would
probably have received the relief she desired. She was convicted of
relatively minor charges, had demonstrated substantial rehabilitation,
received an education, and was a law-abiding person who had assumed a
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347. See generally Gibson v. State Dist. Attorney, City of New Haven, CV074027738S,
2007 WL 4239801 (Conn. Super. Ct. Nov. 16, 2007).
348. Interview with LaResse Harvey, supra note 24. Since our interview, Ms. Harvey
was denied a full expungement pardon for a second time, although she was granted a
provisional pardon. See Sullo, supra note 209.
349. See Presentation by Claudia Magnan, Statewide Legal Services of Connecticut, at
Yale Law School (Oct. 14, 2011).
350. See MacMillan, supra note 20.
351. Presentation by Claudia Magnan, supra note 349.
352. In Mississippi, Governor Haley Barbour did pardon some murderers, including
some who were still incarcerated. See supra notes 326–334 and accompanying text.
responsible position in society for well over a decade.347 The BOPP
would likely grant Ms. Gibson a pardon after hearing her story, if she
expressed the requisite remorse, allowing her to move beyond her
criminal past. In fact, it is a mystery why Ms. Gibson did not apply for a
pardon and instead filed a lawsuit. Perhaps Ms. Gibson was simply
unaware of the availability of pardons in Connecticut or the procedure to
obtain one. This reflects another area of concern: if individuals with a
criminal record are unaware of the available mechanisms for relief from
collateral consequences, the system will be inefficacious – no matter
how well-intentioned and soundly designed.
For Ms. Harvey, however, the pardon system has not provided
relief. The BOPP has twice denied her applications for a full
expungement pardon.348 In spite of the fact that no statutory limitation
exists regarding the availability of pardons to those convicted of serious
offenses, the BOPP in practice generally grants pardons only to those
convicted of lesser offenses.349 But Ms. Harvey was convicted of a
serious offense: second-degree manslaughter.350 BOPP members are
highly unlikely to grant pardons for violent crimes.351
Is this, then, the unusual case where a former offender would fare
better in Mississippi352 than in Connecticut? Perhaps on the surface—
but it need not be this way. If Connecticut is truly serious about giving
people a fresh start by injecting relief from collateral consequences into
its criminal justice system, then there is no reason to categorically
exclude a particular crime from pardon eligibility. Certainly, the more
serious the crime, the Board should require more evidence of
rehabilitation and more time elapsed since conviction, and perhaps very,
very few persons convicted of a crime like manslaughter or rape deserve
to be pardoned. But a de facto categorical rule—albeit informal and
uncodified—foreclosing the possibility of a pardon to persons like Ms.
Harvey who have demonstrated such extensive rehabilitation and lawabiding conduct is unsound.
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B. Completing the System and Effectuating Public Policy: Creating a
Two-Tier Model that Provides Appropriate Relief
353.
354.
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See discussion supra in Part V.A.
Connecticut’s current provisional pardons program is discussed at length infra in
Part II.B.2.
355. One study showed that within three years of release, 67.5% of prisoners were
rearrested for a felony or serious misdemeanor. See RECIDIVISM, supra note 313.
357. See CONN. GEN. STAT. § 29-158 (2011).
358. See CONN. GEN. STAT. § 19a-17 (2011).
359. Id.
360. See CONN. GEN. STAT. § 20-294 (2011).
To accomplish a comprehensive system of relief, a two-tiered
approach – like the proposals of the MPC, ABA Standards, and
UCCCA—is necessary to fully assist former offenders as they are
rehabilitated and become participatory members of a law-obeying
society.
While other jurisdictions have much to learn from
Connecticut’s unusual and robust pardon program,353 New York, Illinois,
and the model acts have much to teach Connecticut regarding the other
tier of relief: the “certificate of relief” and provisional pardon
program.354 While well intentioned, Connecticut’s system of provisional
pardons, as presently constituted, fails to adequately rehabilitate
previously incarcerated individuals during the early stages of relief. The
first tier is crucial because rates of recidivism are highest in the first few
years after conviction and release.355 Connecticut should take several
steps to reform and strengthen this tier of relief.
First, Connecticut legislators should conduct a comprehensive
review of the state’s current collateral consequences. For each specific
collateral consequence identified, a serious inquiry should be undertaken
to assure that the barrier, forfeiture, or disability is narrowly tailored to
avoid the real harm, if any, that it seeks to address. Certain
consequences—like those allowing agencies to suspend, revoke, or deny
an attorney’s356 or private detective’s357 license or permit to an
individual with a criminal record – will undoubtedly survive this inquiry.
Because the state has a compelling interest in affirming that individuals
in these professions respect the law, these collateral consequences may
very well be narrowly tailored to address an identified harm. Other
collateral consequences likely will not survive such an inquiry. For
example, current statutes authorizing an agency to suspend or revoke a
license or permit based on conviction of a felony for barbers,358
hairdressers and cosmeticians,359 and architects360 appear, at first blush,
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361. Other states are recognizing that a previous conviction seems to have little, if any,
bearing on whether an individual is well-suited for licensure as a barber, hairdresser, or
cosmetician. Recent legislation in Ohio has removed prior convictions as permissible grounds
for
denying
these
licenses.
S.B.
337
(Ohio
2012),
available
at
http://www.legislature.state.oh.us/bills.cfm?ID=129_SB_337; OHIO REV. CODE ANN. §§
4709.13(B)(2), 4713.28(K) (2012).
362. See ABA STANDARDS, supra note 49, at 21, Standard 19-2.1 (“Codification of
collateral sanctions”).
363. See supra note 50.
364. See CONN. GEN. STAT. § 46a-80(b) (2011) (the current “ban the box” statute).
365. In addition to Connecticut, the other jurisdictions with “ban the box” laws are
Hawaii, Minnesota, and New Mexico. “BAN THE BOX” LAWS, supra note 122.
to be dubious at best, suggesting a scattershot approach not appropriately
tailored to address any real harm.361 Collateral consequences that are
overbroad should be rewritten to become more narrowly tailored or
repealed altogether.
After weeding out irrational or overbroad collateral consequences,
the Connecticut legislature should codify all collateral sanctions in a
“single chapter or section . . . of [the state’s] criminal code” which
“should identify with particularity the type, severity and duration of
collateral sanctions applicable to each offense,” as recommended by the
ABA Standards.362 A major issue collateral consequences is that they
are a mystery not only criminal defendants, but to attorneys as well.
Codification of all the jurisdiction’s collateral consequences in one
section or chapter of the Connecticut General Statutes would
meaningfully address this problem and enable easier access to necessary
information. With such a simple and straightforward guide to the wide
array of collateral consequences, diligent defense attorneys faithfully
ensuring their client’s Sixth Amendment right to counsel363 would be
able to advise the client of all relevant collateral consequences. Even a
savvy criminal defendant could personally discover with ease any
collateral consequences that may affect him or her.
Connecticut should also adopt a more robust “ban the box” law364
by extending the law’s effects to the private sector. Connecticut, one of
just four states with a “ban the box” law, is already a leader in this
area.365 But the effects of any “ban the box” procedure which prohibits
only state employers from using job applications that require applicants
to check a box if they have been convicted of a crime is necessarily
limited because most people are employed by the private sector.
Instead, Connecticut should consider applying this requirement to all
employers, or at least employers of a certain size. Such a law would not
create overly burdensome new requirements on businesses. In fact,
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366. This is the procedure already present in Connecticut law. See CONN. GEN. STAT. §
46a-80(b) (2011); Banning the Box, supra note 96.
368. See HAW. REV. STAT § 378-2.5 (2012); MASS. GEN. LAWS ch. 151B, § 4(9½)
(2012).
369. A “certificate of rehabilitation” is “an official recognition that a criminal offender
deserves to regain legal rights and status lost as a result of conviction, and has demonstrated
reliability and good character over a period of time.” Survey of State Laws, supra note 61, at
fn. 5. The other states offering “certificates of rehabilitation” are New York, Illinois,
California, Nevada, and New Jersey. Survey of State Laws, supra note 61, at 3–5.
private employers could still consider a criminal conviction as provided
for elsewhere, but only after the applicant has been deemed otherwise
qualified for the position.366 This delay in timing as to when a criminal
conviction may be considered acts as a mechanism to help employers
remember that they must make individualized assessments, balancing a
prospective employee’s qualifications with a relevant criminal record.
This version of a “ban the box” statute is an ideal mechanism to
effectuate Connecticut’s stated policy of encouraging—but not
necessarily requiring – “all employers to give favorable consideration to
providing jobs to qualified individuals, including those who may have
criminal conviction records.”367 Such a policy need not be particularly
controversial, nor is it especially revolutionary; in fact, Hawaii and
Massachusetts already have “ban the box” provisions applying to all
public and private employers.368
Connecticut must also reform and expand its “provisional pardon”
program.
Connecticut, as one of just six states offering any
administrative “certificates of rehabilitation” that restore legal rights and
privileges lost due to a prior criminal conviction,369 is already a leader in
this area. But the current program lacks any legal enforcement
mechanisms, has little if any independent legal effect, and is utilized
very irregularly.
As an initial matter, the nomenclature used for these certificates
must be changed because provisional pardons are not really “pardons” in
any sense of the word. The BOPP’s granting of a provisional pardon
does not fulfill any traditionally pardon-like role: no forgiveness is
granted and no convictions are sealed or erased. As a result, provisional
pardon recipients, employers, and the general public are likely to be
confused as to what exactly a provisional pardon is and how it should be
treated. The “provisional” aspect may cause prospective employers to
believe that provisional pardons are temporary, or that they will become
pardons after a certain period of time. Neither perception is accurate. A
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370.
better approach would be to strip provisional pardons of their current
nomenclature and instead refer to them by a name indicating what they
actually are: certificates. Such an approach is in line with New York and
Illinois law and follows the spirit of the approaches contemplated by the
model acts.
But if Connecticut is to offer certificates, then exactly what should
the certificates indicate? While there may be more catchy and
memorable names, perhaps the best name is the simplest and most
descriptively accurate: Certificates of Relief from Collateral
Consequences (“CRCCs”). True, the general public may not be aware
of what a collateral consequence actually is, but this is an easier phrase
to define and explain than “disabilities,” “barriers,” “forfeitures,” or
trying to tell people what exactly is “provisional” about a provisional
pardon.
Other aspects of the New York and Illinois regime should not be
replicated. Both states utilize two separate certificates: CRDs and
CGCs. In New York, the reason for these two different certificates
seems to have more to do with mundane details of legislative history
than thoughtful public policy.
Employers and licensing boards
apparently treat both certificates identically. Illinois appears to have two
separate certificates only because its statutes were modeled on existing
New York law. Yet the existence of two certificates sharing one goal
serves no one. It will be difficult enough to convince employers and the
general public to “buy in” to the CGCC program without needlessly
confusing them by creating two new certificates with similar, if not
identical, purposes. In creating and implementing a statutory scheme,
the value of simplicity should not be undervalued.
In keeping with the spirit of the two-tiered approach first
contemplated by the MPC, Connecticut policymakers should consider
the approach for granting certificates will be best able to serve the needs
of ex-offenders re-entering society through every stage: conviction,
sentencing, incarceration, reentry, and rehabilitation. Successfully
reintegrating former offenders is a time-sensitive issue. Individuals do
not have six months or a year to sit around while they anxiously await
the decision of their CCRC application; they need relief now, while the
likelihood of recidivism is high.370
In order to provide timely relief and make the two-tiered approach
most effective, the relief regime must include, in some capacity, the
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1039
See N.Y. CORRECT. L. §§ 750–755 (McKinney 2013).
See supra the discussion in note 235.
12/09/2013 15:27:08
371.
372.
judicial system that handed down these sentences in the first place. Only
by successfully integrating the judicial system in the full panoply of
criminal justice consequences—from sentencing to incarceration to
release, reentry, and rehabilitation—can a functional and rational system
of collateral consequences emerge. Judges must be able to help
offenders avoid irrational disabilities by granting CRCCs as early as the
time of sentencing in less serious cases. Placing this responsibility in the
hands of judges will also help those sitting on the bench remember that
collateral consequences are a significant consequence of the sentencing
process—often a more significant consequence than the actual sentence.
While including the judicial system, a truly comprehensive and
successful model would also keep the BOPP’s important role, just as
New York also allows both administrative agencies and courts to grant
certificates. Essentially, the system would allow either the BOPP or the
courts to grant certificates, depending on the severity of the crime.
Furthermore, Connecticut should broadly align its state law with
federal EEOC rules. In so aligning itself, Connecticut should follow the
New York model,371 and make it unlawful for employers or licensing
authorities to “discriminate against” persons with a previous conviction
unless there is “a direct relationship” between one or more of the
previous criminal offenses and the specific license or employment
sought, or the issuance of the license or granting of employment would
involve an unreasonable risk to property or to the safety or welfare of
specific individuals or the general public. To help employers make such
a determination, Connecticut should adopt New York’s eight specific
factors that guide these considerations.372 Also, this approach should
mandate that employers must give consideration to a CRCC, which
would create a “presumption of rehabilitation.” This presumption may
be overcome by showing a “direct relationship,” as explained above.
In order for these reforms to be truly efficacious in relieving
collateral consequences, they must be backed by a robust enforcement
mechanism. In its absence, employers and other entities may feel that
they can ignore these laws, knowing that there are no consequences. An
individual denied employment or license by virtue of a criminal
conviction ought to be entitled to a statement of reasons and should be
authorized to file a civil or administrative action.
Another valuable component of a comprehensive system is the
incorporation of some liability protection for employers who make a
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VI. CONCLUSION: A GROUP OF AMERICANS IN NEED OF HELP
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In his 2004 State of the Union address, President George W. Bush
reminded the nation that former offenders who “can’t find work or a
good faith hiring based on a CGCC. Here, there is a menu of statutory
options available: the strong bar to a cause of action in Illinois law or the
evidentiary rules of New York and the UCCCA. In this situation,
legislators should consult with the business community to discover what
is important to them when hiring a person who has a criminal
conviction. If strong liability protection would make a difference to
businesses, then the legislature should consider a robust Illinois-style
law. If it is but one of many factors, however, perhaps the New York or
UCCCA evidentiary approaches are warranted.
How would this new comprehensive regime serve Leah Gibson,
LaResse Harvey, and other individuals with a criminal record? First,
certain collateral consequences—like unreasonable bars on barber’s
licenses—would be eliminated during the review of irrational or
overbroad collateral consequences. Second, the remaining collateral
consequences would not be a surprise to either woman because they or
their defense attorneys would have been able to look in a single chapter
or section of the criminal code and find all collateral consequences. This
would provide a simple and straightforward mechanism for ensuring that
criminal defendants like Ms. Harvey and Ms. Gibson are aware of all
potential barriers, forfeitures, or disabilities from the beginning. An
expanded “ban the box” law also may aid both women. Because they
both have solid professional and educational credentials, employers
would undoubtedly find them qualified for jobs before ever learning of
their criminal record. This would help employers remember that they
must consider and find a “direct relationship” if they wish to deny
employment based on a criminal conviction.
Both women could be aided by a CRCC too. Each woman
demonstrated extensive rehabilitation, which would be looked on
favorably by either the sentencing court or the BOPP, who would choose
to grant a certificate. If employers seriously considered the existence of
a CCRC as evidence of suitability for employment, the barriers facing
Ms. Gibson and Ms. Harvey would be eased. Finally, because this
certificate would be available to even those convicted of more serious
offenses, individuals like Ms. Harvey who committed very serious
offenses but have demonstrated extensive reform would still be eligible
for official state-recognized relief.
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1041
home” deserve a “second chance” and are a “group of Americans in
need of help.”373 But unrelieved collateral consequences frustrate hope
of a second chance. Reintegrating former criminal offenders into society
and restoring the same benefits, opportunities, and responsibilities
inherent in being a member of a free society requires a regime that
recognizes “redemption from the mark of crime.”374 In establishing
frameworks to successfully accomplish this goal, aspects of
Connecticut’s full expungement pardons program provide a model for
other jurisdictions, demonstrating how an independent and autonomous
board can fully welcome a repentant and rehabilitated offender back into
society. Just as Connecticut’s pardon system is instructive to other
states, Connecticut must learn from the best approaches of other
jurisdictions and the model acts. A reform of Connecticut’s statutory
regime to create an effective two-tiered approach would help guide
people from their first step out of the prison gates to the day their
conviction is literally erased.
Currently, hundreds of thousands of Connecticut residents are
stymied by criminal conviction records. This serves neither former
offenders nor society as a whole. Furthermore, it is inconsistent with
Connecticut’s stated public policy aims.375 In order to effectuate its
long-standing stated public policy goal of rehabilitating criminal
offenders and returning these persons to society as productive citizens,376
Connecticut should enact a regime that provides comprehensive relief
from collateral consequences.
373.
374.
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Bush’s State of the Union, supra note 36.
See Alfred Blumstein & Kiminori Nakamura, Redemption in the Presence of
Widespread Criminal Background Checks, 47 CRIMINOLOGY 327, 327 (2009) (“[S]ome point
in time is reached when a person with a criminal record, who remained free of further contact
with the criminal justice system, is of no greater risk than a counterpart of the same age – an
indication of redemption from the mark of crime.”).
376. See id.
* J.D., Quinnipiac University School of Law. For their guidance, criticism, and
wisdom, I am grateful to Linda Meyer and Sarah Russell. Their indefatigable passion led me
to embark on this journey, and their helpful comments and ideas proved immeasurably
helpful. Thank you also to the editors of the Quinnipiac Law Review, especially Sean Hamill
and Desmond Ryan.
David J. Norman*

STYMIED BY THE STIGMA OF A CRIMINAL CONVICTION

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