Certificates of Rehabilitation

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By Lizzy Gilbert. 

Have you heard this statistic yet? One out of every three Americans has a criminal record.[1] As the Center for American Progress brilliantly noted in a 2014 report:

“Today, a criminal record serves as both a direct cause and consequence of poverty. It is a cause because having a criminal record can present obstacles to employment, housing, public assistance, education, family reunification, and more; convictions can result in monetary debts as well. It is a consequence due to the growing criminalization of poverty and homelessness. One recent study finds that our nation’s poverty rate would have dropped by 20 percent between 1980 and 2004 if not for mass incarceration and the subsequent criminal records that haunt people for years after they have paid their debt to society. Failure to address this link as part of a larger anti-poverty agenda risks missing a major piece of the puzzle.”[2]

As our country grapples with the implications of hypercriminalization, policymakers are starting to discuss ways they can ameliorate some of the 44,000 documented barriers and roadblocks that decades of their shortsighted “tough on crime” legislation have inflicted on us. Expungement, or the official sealing of a criminal record, is one option. Another, lesser known path, is a legal certification of rehabilitation. That’s what I’m here to discuss today.

Certificates of Rehabilitation (CORs), sometimes called Certificates of Good Standing or Employability, are currently offered in 14 states and Washington, D.C.[3] As is the case with expungement, the eligibility, application and value of CORs varies from state to state, but they are generally viewed as a legal stamp of approval from a judge or parole board, verifying that the grantee has proven themselves rehabilitated in the eyes of the law. CORs also generally give recipients a respite from automatic exclusion from certain licenses and professions.

In an effort to learn more about the various state certificate programs, we spent some time studying the California COR system and comparing it to the 13 other states that offer them.* As expected, we found great variety in how different states have chosen to write and implement their statutes. In some states, like Connecticut, individuals are eligible to apply for a COR as soon as they’re released from prison or jail. In others, people have to wait 10 years after release from any kind of supervision before they can apply. Some judicial relief programs look great on paper, but hold little value in practice. For example, Nevada’s Certificate of Good Standing appears promising: it removes a legal disability, or collateral consequence, that is inflicted as a result of a conviction (e.g. a ban from acquiring a particular license); it furnishes evidence of good moral character; and it provide official government recognition that the grantee is “rehabilitated.” Sounds great, right? Unfortunately, Nevada hasn’t issued a single Certificate of Good Standing in years.[4]

California’s COR program was written into law in 1943, but is also exceptionally underutilized. The application process, comparatively, is cumbersome, and the wait period is a minimum of 5 years after release from supervision (depending on conviction). But there are also some favorable components to California’s law: applicants are entitled to be represented by a public defender; if granted, it can relieve the individual from having to register as a sex offender; and it mandates that professional or business licensing cannot be denied solely based on conviction (without the COR, absolute denial is legal and ubiquitous).

Why is this information pertinent to us today? Because Root & Rebound, in partnership with Project Rebound at SFSU, is embarking on a dual public education/direct service campaign to expand the use, impact and value of Certificates of Rehabilitation in California. Our goal with this project is twofold: 1) to directly aid and educate those who are eligible to apply for CORs (as well as their advocates and attorneys) about the application process, the benefits of applying, and their right to be informed; and 2) to educate the public, including judges, attorneys, employers, licensing boards, and professionals, about the existence of CORs, their value, and their impact.

With this campaign, we hope to drastically increase the number of Californians who possess a COR, thus decreasing the number of our community members who are denied a license, a job, or an apartment based on their criminal conviction. We also want to ensure that their value is well understood by potential employers, landlords, and licensing boards; we want them to know that a COR is meaningful, that certificate holders have proven themselves rehabilitated in the eyes of the law—the same eyes that originally convicted them.

In the reentry space, we’re continually looking for a way to reduce the barriers people with criminal records encounter. California’s Certificate of Rehabilitation program is not perfect by any means, but we believe that it has the potential to transform peoples’ lives. Please stay tuned as we move forward with this exciting campaign!

*To share our findings from web research of the national landscape, we have shared the link to the table here and below (Table 1). This matrix is a quantitative evaluation of the 14 states that currently offer judicial certificate programs as relief mechanisms for convictions and criminal records.

Here is description of the measures used for evaluation:

  • Ease refers to the level of difficulty of the certificate application process, where 1= very difficult and 10= extremely easy, or automatic.
  • Wait period refers to the amount of time an individual must wait post-release (or post-sentence, in some states) before eligibility for the certificate begins, where 1= a long wait period (over 10 years) and 10= no wait period.
  • Accessibility refers to how available the certificate option is for individuals with criminal records in the state, where 1= very low accessibility (only nonviolent, first-time offenders are eligible) and 10= highly accessible (all individuals with a criminal record can apply).
  • Scope refers to what the certificate program aims to do or accomplish, where 1= a limited scope, for example an automatic presumption of rehabilitation for licensing with no enforcement mechanisms, and 10= a broad scope, for example a program that seeks to provide relief for an individual across a myriad of areas (employment, voting rights, housing).
  • Value refers to the extent to which the certification, if granted, improves the area in which it is intended to bring improvement, where 1= little to no value, and 10= the certificate is highly valuable and impactful.
  • Bonus refers to a specific component of a state’s certificate program that either increases or decreases program quality, for example the states that offer immunity to employers from negligent hiring lawsuits were given a bonus point, and Nevada lost a point because a certificate hasn’t been granted in the state for over a decade.

Although the matrix allows us to compare states side-by-side, it has its limitations. First, this evaluation tool does not measure the frequency with which certificates are granted, unless it is specifically indicated in the description. This information has been left out for most states because the information is unpublished, or at least not easily accessible.

Secondly, the matrix does not necessarily measure the overall quality of the certificate program because each state’s program has different stated goals, so direct comparison is bound to be flawed. For example, some states, like Ohio, have programs that offer relief only for very specific occupational licenses, while others, like California, seek to offer relief from collateral consequences that affect one’s life much more broadly.

A third limitation to the matrix is that, depending on the individual and his or her states’ program goals, it’s nearly impossible to arbitrarily assign a numeric score. For example, a long ‘wait time’ can sometimes be a positive program component, and sometimes a negative. Although excessively long wait times will disqualify a lot of people (many of whom would benefit from the certificate), the more time that has passed since an individual’s last conviction, the better and more substantiated proof there may be of rehabilitation. Programs that have very short wait times will, obviously, permit more people to apply, but by doing so may reduce the value of the certificate solely due to the fact that individuals don’t have to wait as long to apply for it. For these reasons, the matrix should be seen as one lens through which the 14 state programs can be compared, rather than a complete and definite ranking from ‘best’ to ‘worst.’

Table 1-Certificate of Rehabilitation State Assessment

[1] http://www.sentencingproject.org/doc/publications/cc_HiT_CriminalRecords_profile_1.pdf

[2] https://cdn.americanprogress.org/wp-content/uploads/2014/12/VallasCriminalRecordsReport.pdf

[3]https://www.prisonlegalnews.org/media/publications/States%20Rethink%20Collateral%20Consequences%2C%20Vera%20Inst.%2C%202014.pdf

[4] http://www.shouselaw.com/nevada/certificate-good-conduct.html