NEWS ARTICLES

Advocacy groups seek EEOC investigation into want ads barring applicants with criminal backgrounds

Tresa Baldas
June 09, 2009

Bank of America Corp. and the Manpower Inc. staffing agency could be in legal hot water over hundreds of job postings that allegedly warn applicants with criminal backgrounds not to bother applying.

That's what a dozen civil rights and worker advocacy groups told the Equal Employment Opportunity Commission (EEOC) on Tuesday when they alerted the federal agency about alleged discriminatory hiring practices at Manpower, Bank of America and the One-Stop Career Center in Alameda, Calif. The advocates, who requested a federal investigation, allege that those companies may be illegally blocking otherwise qualified African-American and Latino applicants from jobs by explicitly barring those with felony or misdemeanor records from applying for jobs.

The allegation revolves around recent job announcements for more than 600 clerical and administrative positions at Bank of America that were posted widely throughout the San Francisco Bay Area. After asking prospective applicants "Are you looking for a fun job?," the one-page flier goes on to state that qualified candidates must be able to pass a background check and have no felonies or misdemeanors. It does not distinguish between arrests or convictions.

The advocacy groups argue that such absolute prohibitions violate Title VII of the Civil Rights Act of 1964 and long-standing EEOC hiring guidelines.

"It's an enormous chilling effect. They're not only saying 'We're not going to hire you,' but the message is you can't even apply for these jobs," said attorney Laura Moskowitz of the National Employment Law Project, a employee advocacy group that is among the groups pushing for EEOC intervention.

In pressing the issue, Moskowitz is one of several lawyers who helped draft a letter that was sent today to EEOC Chairman Stuart Ishimaru, who is being called on to issue a rare commissioner's charge to trigger an investigation into the job announcements.

"A Commissioner's Charge will permit an investigation into whether one of the nation's largest employers, one of the world's largest staffing agencies, and a state office have violated Title VII, and it will focus much-needed attention on a widespread, illegal employment practice engaged in by more and more employers and affecting growing numbers of workers," the groups stated in the letter.

Officials at the EEOC said that EEOC commissioners do have the authority to issue a commissioner's charge, but that they could not comment on any specific allegations.

Bank of America and Manpower were contacted for this story, but were unavailable as of press time.

Management-side lawyers, meanwhile, say that the allegations are weak and overreaching and do not warrant a full-blown federal investigation.

"A very ambiguous flyer doesn't justify public assassination of a company [in the media]....I think this is extremely vague, and it's a very thin thread to justify the reaction," said Donald Livingston, a partner at Akin Gump Strauss Hauer & Feld, and a former general counsel of the EEOC.

Livingston, who represents employers in discrimination cases, said that the advocacy groups "have a point to make," but that they lack the evidence to prove discriminatory hiring practices at Bank of America and Manpower.

"These groups don't have any idea what the practices are at Bank of America or Manpower. There's nothing they say about the flier which gives you any information about what the company does with respect to its background check," Livingston said. "This is an extraordinary step to take to try to assert political pressure on the EEOC to undertake an investigation where they have no facts."

As for the use of background checks in the workplace, Livingston said that while there is a growing concern among employers that their background checks will be held against them, the law is on their side. He said employers do have a right to hold misdemeanor and felony convictions against job applications under certain circumstances, such as showing that the nature of the offense is job related.

Steve Miller of Chicago's Fisher and Phillips, who also represents employers in discrimination cases, echoed similar sentiments. He said that while the EEOC has found that the use of arrest records in some cases can lead to a disparate impact on minorities, most employers understand that and will tie in the criminal record to the nature of the job.

For example, he said, if someone has a fraud conviction or a history of bad check writing, that would bear upon his or her ability to work around money. He noted that employers also have a wide range of state laws to abide by when using background checks.

"Some states will outright prohibit the use of arrest records in considering employment decisions. Others will restrict how many years back you can go. And other states restrict what kinds of things you can raise inquiries into," Miller said. "The one guidance employers can fall back on is: You still have a right to use these things, but if you're going to use them, make sure they're job related."

In recent years, as criminal background checks have gained popularity in the workplace, the EEOC has taken legal action to make sure that minority workers are not being denied jobs due to overly broad and arbitrary criminal background restrictions. Currently, the EEOC has a lawsuit pending in Michigan against another major staffing firm, Peoplemark Inc., alleging that Peoplemark unlawfully maintained a policy of denying employment to people with criminal records. Similar charges also have been filed by private and nonprofit lawyers against other major employers, including Comcast Corp., Lowe's Cos. Inc. and Madison Square Garden.

According to Moskowitz, the issue is not about whether employers have a right to ask job applicants about their criminal backgrounds; it's more about what how employers treat a spotty background, and what weight they give it when considering someone for a job. She believes criminal background checks especially hurt minorities.

"Because of the racial discrimination in the criminal justice system, that's going to have a disparate impact [on minorities]" Moskowitz said. "The EEOC has said that an absolute bar to hiring individuals with arrests or convictions has a disproportionate impact on minorities....[Employers] need to have a business necessity for looking at an arrest and conviction history."

And perhaps more importantly, she added, "Give the person a chance to explain."

If you or someone you know are experiencing problems in securing employment due to a criminal arrest or conviction record, be further advised that in addition to that reflected above, in many cases employers will employ once they are made aware of tax credits they will receive by employing a person with a criminal record and the federal government will post a bond if needed. For further information or to employ his services, contact William Marshall at 570-609-8800.

_______________________

By DEBORAH HASTINGS – June 4, 09

It wasn't the brightest decision she'd ever made. She admits that. But if she'd had enough money to hire a lawyer she might not have lost six months of her life.

Kimberly Hurrell-Harring, a certified nursing assistant and mother of two, had driven 7 1/2 hours to visit her husband and then secreted a small amount of marijuana in her private parts. He'd pleaded with her on the phone to bring it, saying he needed to get high in this awful place.

He was calling from a maximum-security prison, and someone must have been listening because when she walked into the Great Meadows Correctional Facility in upstate New York, guards immediately yanked her to the side.

They told her things would go easier if she handed over the dope without a fuss. She did, and things immediately got worse.

With a swiftness that made her head spin, she was handcuffed and hauled to jail. At her arraignment, there was no public defender available. Standing alone, she was charged with one felony count of bringing dangerous contraband into a prison.

And so she tumbled headlong into the Alice-in-Wonderland chaos of court-appointed lawyers, where even those lawyers say there is little time for clients. There are simply too many and not enough hours in the day.

"If you can't afford an attorney, and you fall into the criminal justice system, you are really, really screwed," said Demetrius Thomas of the New York American Civil Liberties Union.

Especially now. The spiraling recession and overwhelmed public defenders, some of whom have rebelled by filing lawsuits to reduce caseloads, pose one of the greatest challenges to the system since the U.S. Supreme Court in 1963 overturned the petty larceny and breaking-and-entering convictions of Clarence Gideon, a poor Florida man tried without a lawyer. In a landmark, unanimous ruling, justices said state courts must provide attorneys to every criminal defendant unable to afford counsel.

After her arraignment, Hurrell-Harring went back to jail because she couldn't afford bail, either. Three weeks passed before a public defender appeared, and she says she spent a total of 15 to 20 minutes with him before her sentencing hearing.

He told her not to fight the district attorney's recommended punishment — six months behind bars and five years of probation. It was the best she could hope for, he said. But she had no criminal record. Surely, she begged, couldn't possession of less than an ounce of pot, a misdemeanor under other circumstances, be bargained down to probation?

"It was like he had no time for me," she says now, still unemployed 17 months after her release because she lost her nursing license when she became a convicted felon. "He told me to plead guilty."

The accused, their lawyers, and even prosecutors agree that courts increasingly neglect their constitutional duties. In a series of Capitol Hill hearings, the latest scheduled for this week, Congress members are struggling to grasp the enormity of the crisis. But the options are far from clear, particularly when virtually every state and local government is crying poor.

Meanwhile, defendants suffer.

In Georgia, a man accused of murder spent eight months without a lawyer because the state's public defender office couldn't afford one. In Washington, an appeals court awarded $3 million to a man falsely accused of child molestation who was jailed for seven months because his public defender failed to investigate the case.

There are open lawsuits in at least seven states — including populous New York, Florida and Michigan — where overburdened defenders claim those presumed innocent until proven guilty are routinely denied their right to an attorney. Their suggested remedies: capping the number of cases assigned to them and completely overhauling state systems.

In April, the bipartisan, nonprofit Constitution Project released a phone-book-sized report titled "Justice Denied," a national review of court-appointed lawyers. The five-year analysis, the most comprehensive look at indigent defense in decades, said many states fail terribly in their constitutional duty to provide lawyers for the poor.

"Sometimes counsel is not provided at all, and it often is supplied in ways that make a mockery of the great promise of the Gideon decision," said the report signed by former Vice President Walter F. Mondale and former FBI Director William S. Sessions. "The call for reform has never been more urgent," the study said.

In May, a major reform battle was lost by court-appointed lawyers in Florida's Miami-Dade County. An appellate court harshly rebuked and reversed a lower court ruling that allowed the public defenders' office to refuse certain felony cases because it faced funding cuts and crushing workloads. Under the initial ruling, attorneys would have been brought in from a smaller state office and from private firms, which would have increased costs.

Reform advocates said the decision was history repeating itself.

"In the 1960s, the state of Florida believed Clarence Earl Gideon could get a fair trial without the guiding hand of counsel," said David Carroll, research director for the National Legal Aid and Defender Association. "Today, the assumption is that a poor defendant in Florida can get equal justice. They were wrong then and are wrong today."

But even in the best of times, public defenders say a quick plea bargain is sometimes as good as it gets. Court-appointed lawyers often have only seconds to whisper with clients they've just met — before standing while a judge sets bail.

Their days are spent like emergency room doctors performing triage. The worst cases get the most attention, the lesser cases wait the longest. Pleas are shuffled like prescriptions — take this, it's a good deal. Plead guilty, settle for time served. No, going to trial won't prove you innocent, it will get you convicted.

The pay is awful and so are the hours.

Hurrell-Harring's court-appointed attorney is a case in point.

For a yearly salary of $54,000, Patrick Barber juggles between 100 and 120 cases in his Washington County, N.Y., office — on top of his private practice. Between himself and four part-time defenders, he says they represent 1,661 cases.

He agrees with his former client. He doesn't have much time to visit clients. It's not possible to see every defendant, he said. Many have no car, and can't get to his office. Others are in jail, and he simply can't get to all of them, he says.

Barber claims he did the best he could for Hurrell-Harring.

"She couldn't have been charged with a misdemeanor because it wasn't offered. It wasn't going to be offered. The district attorney takes a very hard stance when it comes to prison contraband," he said.

Hurrell-Harring, 33, doesn't much care about Barber's caseload, and she has two pending legal actions over her incarceration.

In one, she's part of a class-action lawsuit filed by the New York Civil Liberties Union against the state, accusing it of "persistent failure" in providing legal services to the poor.

In the second, she's asked the appellate division of state Supreme Court to reduce her conviction to a misdemeanor because of inept legal representation, and because a recent appellate ruling said a small amount of pot did not qualify as "dangerous contraband" in prison settings and should be charged as a misdemeanor.

If the court agrees, Hurrell-Harring could get her nursing license back. She is living with her mother, who suffered a recent stroke, and her two girls, ages 5 and 18. She's getting by on Social Security.

Poor people like her constitute about 80 percent of criminal defendants. And in bad economic times, crime rates increase, legal researchers say, adding more weight to the groaning system.

In troubled Miami-Dade County, the public defenders office has lost 12 percent of its budget in the last 18 months, while the average felony caseload per lawyer increased from 367 to 500 over the past three years. The maximum number of cases an attorney should carry is 200, according to Florida's public defender association. And that's a conservative number — the Constitution Project study suggested 100 cases per lawyer is too many.

In April, New York became the first city to cap the number of criminal cases juggled by public defenders. Tucked inside the state budget bill, the law requires that standards be established by 2010, and phased in over the next four years as funding permits.

But like other legislation, it has been criticized for not going far enough.

"A major metropolitan area in our country is finally willing to enforce caseload standards," says Carroll. "But if you look at it, it says at some future date some standard will be enforced, if there's money to do it.

"How can you say someone in New York City deserves a reputable lawyer, but if you're in Buffalo, sorry? It's really not doing anything to help the indigent defense crisis," he said.

In some areas, attorneys say overhauling the system could actually save government money.

The Michigan Appellate Defender Office, for example, saved nearly $3.7 million in prison costs by correcting four years' worth of sentencing errors.

"You don't have to just throw money at it," said Carroll. "We could just allow law enforcement more leeway in deciding whether to issue a citation or arrest someone."

Hurrell-Harring, of course, wishes she had been given a ticket instead of six months in prison. But then she is asked what possessed her to smuggle a controlled substance into a state prison?

"I asked myself the same question," she says, matter-of-factly. "But let's be honest, we all did things for men that we shouldn't have did. I bet it's happened to you."

________________________

Suspects can be interrogated without lawyer

By JESSE J. HOLLAND Associated Press Writer

WASHINGTON (AP) - The Supreme Court on Tuesday May 26, 09 overturned a long-standing ruling that stopped police from initiating questions unless a defendant's lawyer was present, a move that will make it easier for prosecutors to interrogate suspects.

The high court, in a 5-4 ruling, overturned the 1986 Michigan v. Jackson ruling, which said police may not initiate questioning of a defendant who has a lawyer or has asked for one unless the attorney is present. The Michigan ruling applied even to defendants who agreed to talk to the authorities without their lawyers.

The court's conservatives overturned that opinion, with Justice Antonin Scalia saying "it was poorly reasoned."

Under the Jackson opinion, police could not even ask a defendant who had been appointed a lawyer if he wanted to talk, Scalia said.

"It would be completely unjustified to presume that a defendant's consent to police-initiated interrogation was involuntary or coerced simply because he had previously been appointed a lawyer," Scalia said in the court's opinion.

Scalia, who read the opinion from the bench, said the decision will have "minimal" effects on criminal defendants because of the protections the court has provided in other decisions. "The considerable adverse effect of this rule upon society's ability to solve crimes and bring criminals to justice far outweighs its capacity to prevent a genuinely coerced agreement to speak without counsel present," Scalia said.

The Michigan v. Jackson opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time. He and Justices David Souter, Stephen Breyer and Ruth Bader Ginsburg dissented from the ruling, and in an unusual move Stevens read his dissent aloud from the bench. It was the first time this term a justice had read a dissent aloud.

"The police interrogation in this case clearly violated petitioner's Sixth Amendment right to counsel," Stevens said. Overruling the Jackson case, he said, "can only diminish the public's confidence in the reliability and fairness of our system of justice."

The Obama administration had asked the court to overturn Michigan v. Jackson, disappointing civil rights and civil liberties groups that expected President Barack Obama to reverse the policies of his Republican predecessor, George W. Bush.

The Justice Department, in a brief signed by Solicitor General Elena Kagan, said the 1986 decision "serves no real purpose" and offers only "meager benefits." The government said defendants who don't wish to talk to police don't have to and that officers must respect that decision. But it said there is no reason a defendant who wants to should not be able to respond to officers' questions.

Eleven states also echoed the administration's call to overrule the 1986 case.

The decision comes in the case of Jesse Jay Montejo, who was found guilty in 2005 of the shooting death of Louis Ferrari in the victim's home on Sept. 5, 2002.

Montejo was appointed a public defender at his Sept. 10, 2002 hearing, but never indicated that he wanted the lawyer's help. Montejo then went with police detectives to help them look for the murder weapon. While in the car, Montejo wrote a letter to Ferrari's widow incriminating himself.

When they returned to the prison, a public defender was waiting for Montejo, irate that his client had been questioned in his absence. Police used the letter against Montejo at trial, and he was convicted and sentenced to death. He appealed, but the Louisiana Supreme Court upheld the conviction and sentence.

The Supreme Court sent the case back for a determination of whether any of Montejo's other court-provided protections, like his Miranda rights, were violated.

The case is Montejo v. Louisiana, 07-1529.

____________________________________

ABUELHAWA v. UNITED STATES

certiorari to the united states court of appeals for the fourth circuit

No. 08-192. Argued March 4, 2009--Decided May 26, 2009

A wiretap of Mohammed Said's telephone recorded six calls in which petitioner Abuelhawa arranged to buy cocaine from Said in two separate 1-gram transactions. Those two purchases were misdemeanors under the Controlled Substances Act (CSA), 21 U. S. C. §844, while Said's two sales were felonies, §841(a)(1) and (b). The Government charged Abuelhawa with six felonies on the theory that each of the phone calls, some placed by him, some by Said, violated §843(b), which makes it a felony "to use any communication facility in ... facilitating" felony distribution and other drug crimes. The District Court denied Abuelhawa's acquittal motion, in which he argued that his efforts to make misdemeanor purchases could not be treated as facilitating Said's felonies. The jury convicted Abuelhawa on all six felony counts. The Fourth Circuit affirmed, reasoning that "facilitat[e]" should be given its ordinary meaning in §843(b) and that Abuelhawa's use of a phone to buy cocaine counted as ordinary facilitation because it made Said's distribution of the drug easier.

Held: Using a telephone to make a misdemeanor drug purchase does not "facilitat[e]" felony drug distribution in violation of §843(b). Stopping with the plain meaning of "facilitate" here would ignore the rule that because statutes are not read as a collection of isolated phrases, "[a] word in a statute may or may not extend to the outer limits of its definitional possibilities." Dolan v. Postal Service, 546 U. S. 481, 486. Here it does not. The literal sweep of "facilitat[e]" sits uncomfortably with common usage: Where a transaction like a sale necessarily presupposes two parties with specific roles, it would be odd to speak of one party as facilitating the other's conduct. The common usage has its parallel in cases holding that where a statute treats one side of a bilateral transaction more leniently, adding to the penalty of the party on that side for facilitating the action by the other would upend the legislature's punishment calibration. In Gebardi v. United States, 287 U. S. 112, 119, for example, the Court held that a woman who voluntarily crossed a state line with a man to have sex could not be tagged with the Mann Act violation for "aid[ing] or assist[ing]" interstate transportation for immoral purposes because the statutory penalties were "clearly directed against the acts of the transporter as distinguished from the consent of the subject of the transportation." Such cases have a bearing here in two ways. First, given the presumption, see, e.g., Williams v. Taylor, 529 U. S. 362, 380-381, and n. 12, that the Congress that enacted §843(b) was familiar with the traditional judicial limitation on applying terms like "aid," "abet," and "assist," it is likely the Legislature had a comparable scope in mind when it used "facilitate," a word with equivalent meaning. Second, any broader reading would for practical purposes substantially skew the congressional calibration of respective buyer-seller penalties. Moreover, the statute's history--which shows that in 1970 the CSA downgraded simple possession from a felony to a misdemeanor, §844(a), and simultaneously limited the communications provision's prohibition of facilitating a drug "offense" to facilitating a "felony," §843(b)--drives home what is clear from the statutory text: Congress meant to treat purchasing drugs for personal use more leniently than felony distribution, and to narrow the scope of the communications provision to cover only those who facilitate a felony. Yet, under the Government's reading of §843(b), in a substantial number of cases Congress would for all practical purposes simultaneously have graded back up to felony status with the left hand the same offense, simple drug possession, it had dropped to a misdemeanor with the right. Given that Congress used no language spelling out a purpose so improbable, but legislated against a background usage of terms such as "aid," "abet," and "assist" that points in the opposite direction and accords with the CSA's choice to classify small purchases as misdemeanors, the Government's position is just too unlikely. Pp. 3-8.

523 F. 3d 415, reversed and remanded.

     Souter, J., delivered the opinion for a unanimous Court.

______________________

Court says states can't bar some rights suits

WASHINGTON (AP) - The Supreme Court has ruled that states may not prevent people from filing civil rights claims against government workers in state courts.

The court, by a 5-4 vote Tuesday, said people have a choice whether to file their claims in federal or state courts. Filing fees are cheaper and courthouses often are closer in the state system, potentially important factors for prison inmates and the poor.

Justice John Paul Stevens said in his majority opinion that a New York appeals court was wrong to throw out a lawsuit filed by state prison inmate Keith Haywood.

Haywood is an inmate at the state prison at Attica. He sued state Department of Corrections employees for alleged violations of his civil rights. New York courts dismissed his complaints.

2009-05-26     14:36:14 GMT

________________________

05/21/2009

Ex-correctional officers to be tried in two groups

By DAVID DISHNEAU
Associated Press Writer

HAGERSTOWN — Seven former Maryland correctional officers charged with beating an inmate during two shifts at a medium-security prison in Western Maryland will be tried in groups, a judge ruled Thursday.

Another defendant will be tried separately, and a ninth is expected to testify against the others.

The pretrial hearing Thursday in Washington County Circuit Court produced new details about the alleged attack on inmate Kenneth J. Davis, 42.

Davis was hospitalized for a broken nose and other injuries he suffered March 8 and 9, 2008, at the Roxbury Correctional Institution near Hagerstown.

All the defendants have pleaded innocent to a single charge of second-degree assault, a misdemeanor punishable by up to 10 years in prison and a $2,500 fine.

Four defendants, Scott Boozel, 28, of McConnellsburg, Pa.; Robert Harvey, 62, of Hagerstown; Timothy Mellott, 23, of Woodbridge, Va.; and Keith Morris, 27, of Warfordsburg, Pa., beat Davis during the 3 p.m. to 11 p.m. shift March 8, Assistant Attorney General Jason Abbott said.

The assault occurred in the prison’s medical unit, Abbott said. Davis had been taken there after allegedly assaulting an officer earlier in the day, according to court records. The state dropped assault charges against the inmate in December.

Abbott said the officers beat Davis in two separate attacks about two minutes apart.

“It was an assault — Boom! — wait — another assault,” Abbott said. “The same people that were involved in the first assault were involved in the second assault.”

On March 9, five other officers working the 7 a.m. to 3 p.m. shift allegedly beat Davis again, Abbott said. Those defendants are Tyson T. Hinkle, 33, of Martinsburg, W.Va.; Lucas A. Kelly, 29, of Frostburg, Md.; Reginald Martin, 38, of Chambersburg, Pa.; Michael Morgan, 39, of Fort Ashby, W.Va.; and Justin Norris, 24, of Martinsburg, W.Va.

Abbott said he expects Kelly to be a cooperating witness for the state. He said Kelly will enter a plea at a hearing yet to be scheduled.

The other defendants’ trials are set for June 15 and 16 except Morgan, who was granted a postponement due to unexplained family circumstances.

Defense lawyers argued for separate trials for each defendant.

“A jury will be inclined, when everybody is charged in a consolidated trial, to blanket find them all guilty,” said Boozel’s lawyer, D. Bruce Poole.

Attorney Alan L. Winik, representing Martin, said, “The spillover potential in a case like this, when all the defendants are correctional officers, is enormous.”

But Judge Daniel P. Dwyer sided with Abbott, who insisted that consolidation would save time and money.

In an unrelated incident, six officers fired from the North Branch Correctional Institution near Cumberland have pleaded innocent to charges that they assaulted six inmates there on March 6, 2008. They are scheduled for pretrial hearings Tuesday.

_______________________

Beach Bill Would Make Inmates Pay Cost Of Their Incarceration

By William Marshall; Paralegal

May 13, 09