THE BLOG

Everybody Deserves a Second Chance, Right?

03/12/2015 02:02 pm ET | Updated May 12, 2015
Siri Stafford via Getty Images

Former U.S. President George W. Bush said that "America is the land of the second chance; and when the gates of the prison open, the path ahead should lead to a better life." That may soon be true. To those with criminal convictions who have had a difficult time finding a job: don't give up, there is now hope. Recently, some states have eased the obstacles for those with a criminal past seeking employment. For the most part, this has been achieved with laws preventing employers from asking about criminal records at the beginning of the job interview process. These laws typically apply to public sector jobs, both state and federal, but recently private sectors employers -Walmart and Target, for example - have joined the push to permit those with criminal records to compete more fairly when seeking a job.

On job applications, most employers ask if the applicant has ever been convicted of a crime. Some employers even ask if he or she has been arrested. If the applicant checks the box "yes," most employers will not consider that applicant any further. You may be amazed to learn that about 70 million Americans have criminal histories that may prevent them from ever finding a job, even when those histories involve arrests or convictions for minor crimes occurring long ago. In fact, according to a recent NY Times/CBS News poll, men with criminal records account for about 34 percent of all non-working men ages 25 to 54.

To counter this staggering trend, various state and city governments have barred public agencies from asking job candidates about criminal convictions until later in the application process, when the applicant has had a chance to prove their qualifications. But the movement has been slow-going. In 1998, Hawaii passed the first "fair chance" law prohibiting most private employers from inquiring about criminal history until after making a conditional job offer. Under that law, the offer can be revoked only if the offense is relevant. Since then, only a handful of city and state governments have joined Hawaii.

Recently, the trend began picking up steam. For instance, in 2013, the Obama administration called for making the federal government "a model employer" on this issue. Specifically, the federal Equal Employment Opportunity Commission reaffirmed a ruling that barred employers from automatically denying people jobs based on arrest or conviction records. Instead, the Commission suggested that employers take into account the seriousness of the offense, when it occurred and its relevance to the job.

Not only liberals are leading this charge. Consider recent actions by the Governor of Georgia- Nathan Deal, a Republican. Just a few weeks ago, Governor Deal signed an executive order ending the practice of automatically barring state employment where there is a criminal record.

These new employment policies keep applicants in the running, allowing the opportunity to show the potential employer that they are not defined by their past conviction.The movement toward a fairer hiring process is crucial because there are currently very few employment options for a person with a criminal record. In New York, for example, there is no judicial mechanism to expunge a criminal conviction. What this means is that irrespective of how long ago you were convicted, the crime for which you were convicted, and what you have done since the conviction, your record for all employers to see.

The truth is that these movements towards a fairer hiring process are greatly needed because there are very few options for those with criminal records to remove or seal their conviction. In New York, where I practice, there is no judicial mechanism to expunge a criminal conviction. What this means is that irrespective of how long ago you were convicted, what you were convicted for, and what you have done since the conviction, the conviction remains on your record for all employers to see. In some cases, a convicted felon can apply for a Certificate of Relief of Civil Disabilities, and if granted, the Certificate may remove any bar to employment automatically imposed by law for a felony conviction. Unfortunately, this Certificate has very little effect on private employers, who are not obligated to consider it.

That is why "fair chance" legislation is so important. What better way to get someone back on his feet, and at the same time lower the crime rate by decreasing recidivism?

What this boils down to is second chances. New starts. Fair shots. Sounds very American to me. As a criminal defense attorney who has represented many individuals charged with criminal acts, I have seen first-hand those clients who have a lot to offer society, but are shut out because of an isolated mistake. One bad decision has overwhelmingly defined them. Legislation making the job application process more compassionate and fair, gives these deserving people that much needed second chance - and everybody deserves a second chance. Right?

If you like what you read, please follow Sullivan Brill, LLP on their Facebook page, on sbcriminallawyers.com or sullivanbrill.com. You can also email Steven Brill at steven.brill@sullivanbrill.com