Medical Board Metes Out Discipline Based on a Police Report

If you’re a doctor or other licensed healthcare professional in California, remember. Your board or agency can discipline you for alleged conduct in a police report even if you’re never charged with or convicted of anything.

Just this week, the California Court of Appeal ruled that the medical board could discipline a doctor based on a police report even though his criminal case was dismissed.

Here’s what happened. The doctor was arrested for possessing cocaine. As part of his plea deal, he successfully completed a drug treatment program, and the case was dismissed. But the medical board learned of the arrest and filed its own case against him. At the hearing, the doctor argued the board’s case was based entirely on the arrest report, which was a problem because the Penal Code said you can’t do that.

The case pitted two statutes against each other. On one hand, the Penal Code says that when you complete a program like the one this doctor did, your arrest record can’t be used “in any way” to deny you a professional license or certificate. But the Business and Professions Code says that, “notwithstanding any other provision of law,” an agency that oversees the healing arts can do just that. It can rely on an arrest report to discipline you even if you successfully completed such a program.

It wasn’t the first time this question had come up, but remarkably, it was an issue of first impression in the law, meaning it was the first time a court of appeal had to decide it.

The court, though, had no trouble deciding that the second statute was a straightforward exception to the first one. The clincher was that the Penal Code was amended this year to make that interpretation explicit. So the doctor lost.

In these cases, you should begin to defend your professional license and livelihood at the same time you begin to defend against a criminal case or investigation. Which is immediately. We can help you do both.

California’s New Law of Fair Shakes

Whether you’re an employer or an employee, take note.

Earlier this month, California enacted the Fair Chance Act.

This means that, beginning next year, many employers can no longer ask about or look into criminal convictions until they’ve decided a person is right for the job. That means they can’t ask about convictions anymore on a job application. It also means they can’t run a background check until they’ve made a conditional offer of employment.

Also, once employers make a conditional offer and run someone’s record, they can’t deny the job based on a conviction unless they first analyze the relationship between the job and conviction. What kind of job is it, after all? Does it have anything to do with the conviction? How long ago was that, anyway? There must be a “direct and adverse” relationship between the two to justify the decision.

Employers don’t have to share their analysis with applicants, but they must advise of their decision in writing. When they do, they must identify the relevant conviction, attach a copy of the report they ran on the person, and explain that he or she has at least five business days to show why the report isn’t accurate or why they should still get the job based on rehabilitation or mitigating circumstances. Employers must consider any evidence they submit. If they still decide to deny the job, they must let the person know in writing, refer him or her to any existing procedure they have for challenging it, and give them notice of the right to file a complaint with the Department of Fair Employment and Housing.

What hasn’t changed? Employers still can’t consider arrests that didn’t lead to conviction, unless charges are still pending or the arrest was for certain drug or sex offenses and the job is in a healthcare facility that requires access to drugs or patients. Nor can employers consider convictions that have been sealed, dismissed, or otherwise expunged.

The law will apply to employers with five or more employees. It exempts those who must conduct background checks by law. For more on the new law and its passage, see here and here. For the text itself, see here.

Lifetime Sex-Offender Registration for Kids

Do you think sex-offender registration is punishment?

What if it’s for life?

What if it’s for a 12-year-old boy?

Last week, the California Court of Appeal ruled that it’s not punishment to call a kid a sex offender for life because of something he did when he was twelve years old.

According to the court, the boy’s early years were marked by extreme neglect and abuse. He was taken from his mother at age five and shunted from one foster home to another until he was adopted.

Then, when he was twelve, he was processed in juvenile court for pushing a five-year-old boy to the ground and committing a lewd act on him. He was put on probation and ordered to enroll in sex-offender treatment.

After that, he was found to have violated his probation three times: once for hanging out with other minors without adult supervision; once for touching his adoptive sister’s breast, after which he was sent to a group home; and once more for grabbing a boy’s butt there.

At that point, the court put him in juvie and ordered him to register as a sex offender. In California, that meant he would have to register as one for the rest of his life. Wherever he moved, he would have to register with the city police or the county sheriff. If he went to college, he would have to register there, too. Even if he never moved, he would have to register again every year within five days of his birthday.

He appealed on the ground that lifetime registration for kids was cruel and unusual punishment. He also argued that it hindered public safety rather than helped it because it hurt a kid’s chance to live a normal life. Even the juvenile court had acknowledged that it “mess[ed] up the rest of their lives by hanging this tag on them.” Of course, the same could be said for adults, as we’ve explained before.

But the appellate court held that it wasn’t even punishment, let alone cruel and unusual punishment. The court relied on prior cases by the California Supreme Court and the U.S. Supreme Court to that effect. Although those cases didn’t address the question of kids specifically, this court wasn’t going to be the first to carve out an exception for them.

[Update: Beginning January 1, 2021, California will eliminate lifetime registration for many offenses, as we explain here.]

The Restoration of Rights Project

Have you ever been arrested? Do you have a prior conviction?

Do you wonder whether you can clean up your record and how that affects you, if at all?

Start here. It’s called the Restoration of Rights Project, and it looks at the law in every state for restoring your rights and status after an arrest or conviction. It covers federal law, too.

For each state, the Project compiles answers to these questions:

  1. Whether and how you can seal, expunge, or dismiss your arrest or conviction.
  2. Whether and how you can restore your civil rights, like the right to vote.
  3. Whether and how your state’s laws affect your chance of landing a job or license, losing one, or getting it back.
  4. Whether your state has a regular process to apply for a pardon and how often it grants one.
  5. Whether and how you can stop having to register as a sex offender.

It’s a great resource not just for lawyers and the courts but for, in its words, “the millions of Americans with a criminal record who are seeking to put their past behind them.”

The Modern Public Square

This week brought us another unanimous U.S. Supreme Court case that’s arguably more important because it concerned the First Amendment.

The issue was a North Carolina law that made it a felony for registered sex offenders to use any social-networking site that let minors join. So, to be clear: that’s any social-media site, period, that let minors join. That meant Facebook, LinkedIn, Twitter, or pretty much any other social-media site. The law was even broad enough to include websites like Amazon, WebMD, and the Washington Post. So you almost couldn’t use the Internet.

The defendant was one of more than 1,000 people who’ve been prosecuted under the law. In 2002, when he was 21 years old, he had sex with a 13-year-old girl, and he was charged with it. He pleaded guilty to it and registered as a sex offender. Then the law passed in 2008.

In 2010, he happened to get a traffic ticket dismissed in court, whereupon he logged on to Facebook and posted this to his timeline: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent … Praise be to GOD, WOW! Thanks JESUS!”

He was indicted for that.

He moved to dismiss on the ground that the law violated the First Amendment, but the trial court denied it. He was convicted at trial and given a suspended prison sentence.

On appeal, the state courts duked it out. The court of appeals agreed with the guy, finding that the law violated the First Amendment. But the state supreme court reversed, finding the law “constitutional in all respects.”

Finally, the federal high court unanimously struck down the law because it plainly applied to websites like Facebook, LinkedIn, and Twitter among others. Facebook itself had 1.79 billion active users—or three times the population of North America.

The Court called these sites “integral to the fabric of our modern society and culture.” They had become our main sources for sharing current events, participating in the public square, and exploring human thought and knowledge. To foreclose access to them was to foreclose the legitimate exercise of First-Amendment rights.

Yes, a state could pass specific, narrowly-tailored laws that regulate the type of conduct that portends crime, like contacting a minor or using a website to gather information about one.

But it couldn’t just cut people off from the public square.

Judge Not, Lest We Be Judged

If you’re still not sold on the power of redemption, I may not be able to sway you.

But consider this guy. He committed a carjacking at 16 and spent eight years in prison for it. Today, at 35, he has a wife, two bouncy sons, and now, a law degree from Yale. He just graduated last month. I guess it’s good we didn’t throw away the key.

His story reminded me of three quotes I saw recently. They each spoke to why we should treat people humanely in our justice system. I saw them in the email signature of a defense lawyer in Texas, and while he and I have never met, I think they say something positive about him, too. If you need a lawyer in his neck of the woods, look him up.

I especially liked how the quotes were attributed to three very different people. An itinerant lawyer and activist. An influential computer scientist. An acclaimed writer and novelist.

Three different walks of life, but they seemed to agree on some things.

  1. Freedom is not worth having if it doesn’t include the freedom to make mistakes.”
  2. “Good judgment comes from experience, and experience comes from bad judgment.”
  3. “Sometimes you make choices in life and sometimes the choices make you.”

Great quotes, all. You live and breathe long enough, you know them to be true.

A Model Penal Code for the 21st Century

Charging decisions, which we wrote about last week, matter for many reasons. They drive plea bargains, and they affect sentencing. You file a felony, for example, so that the guy will plead to a misdemeanor without giving you much trouble. It happens all the time.

Bad charging decisions, though, don’t just cause wrongful convictions or unjust sentences.

They cause other consequences that continue to torment you after you’ve served your sentence. Your actual sentence may include your jail or prison time, the fines you must pay, or the terms of probation you must follow. You did the crime so you should do the time and pay the fine, right? Okay, but then even after you do, you still may not be able to cast a vote, land a job, rent a home, hold a license, or get a loan. These are the so-called collateral consequences of a conviction.

But the future may be brighter.

Last week, the American Law Institute approved major changes to the Model Penal Code to address these consequences. The ALI is the leading scholarly body that aims to clarify, modernize, and otherwise improve American law. The Model Penal Code is its seminal work in the area of criminal law. It doesn’t have the force of law by itself, but it’s influential. Most states have used it in passing their own laws, and courts cite to it often.

The new provisions would require you to prove, by clear and convincing evidence, that a collateral consequence of your conviction imposes a heavy burden on your ability to rejoin society and that public safety doesn’t need you to suffer it.

If you do that then a court could relieve you from that burden. A court could even issue a certificate of rehabilitation that shields employers, landlords, or others who give you a second chance from civil liability.

Already, state legislatures have been proposing and passing laws to give people a fair shake to prove themselves before dismissing them based on the past.

Hopefully, that momentum keeps building. We should consider what it means to have a record, anyway, when most people either have one, know someone close to them who does, or would have one but for the grace of God. And we should consider how we judge people altogether in a world in which our every action can leave a permanent trace.

The twenty-first century may demand it.

The Enduring Collateral Consequences of a Criminal Conviction

“The United States is not a nation of criminals, and most collateral consequences do not advance public safety.” Most of them, the paragraph goes on to say, undermine it.

That’s from the conclusion of a report by the National Association of Criminal Defense Lawyers regarding the so-called “collateral consequences” of convictions, which are the kinds of things that continue to punish people who were supposed to have paid their debt to society and which perpetuate a kind of social alienation that destroys lives. They make it so you can’t vote, get a job, find housing, get a license, obtain credit, qualify for benefits, or even, apparently, call bingo in the state of New York.

The report was released last week to some fanfare, including Sunday from the New York Times, which concluded its editorial in these words:

“The point is not to excuse or forget the crime; in the Internet era that wouldn’t be possible anyway. Rather, it is to recognize that in America’s vast criminal justice system, where 14 million people are arrested a year and 2.2 million are put behind bars (virtually all of whom will one day be released), second chances are imperative. It is in no one’s interest to keep a large segment of the population on the margins of society.”

It’s true. More than 65 million people in the United States, or more than one in four adults, have some form of criminal record. Maybe we arrest too many people in the first place.

The report was the work of a task force that heard testimony from over 150 witnesses and combed through statutes and scholarship for the better part of three years. The witnesses came not just from all sides of the justice system—including legislators, law enforcement, prosecutors, defenders, judges, and probation departments—but also from the broader community of businesses, employers, data firms, scientists, academics, nonprofits, churches, other community ministries, and of course, the population of people who have completed a sentence but continued to live with collateral consequences. They include sad tales of people who can’t live down even misdemeanor convictions from many years ago.

The net result is that we permanently consign a significant percentage of the public to a form of second-class citizenship. In the words of one researcher, “It sends people down a route that limits their life chances and sets up conditions that can lead them to commit additional crime. It makes it hard for people to have stability in their life. It’s not good crime policy and it doesn’t help to promote public safety.”

In the main, the NACDL report is comprised of ten core recommendations, which appear as follows from the general to the specific:

  1. The United States should embark on a national effort to end the second-class status and stigmatization of persons who have fulfilled the terms of a criminal sentence.
  2. We should disfavor all mandatory collateral consequences and not impose them unless substantially justified by the specific offense conduct.
  3. We should impose discretionary collateral consequences only when the offense conduct is recent and directly related to a particular benefit or opportunity.
  4. We should fully restore the rights and status of people who’ve served their sentence.
  5. Following federal convictions, Congress and the federal agencies should provide people with meaningful opportunities to regain their rights and status, and for state convictions, they should provide people with mechanisms to avoid collateral consequences under federal law.
  6. We should encourage the use of plea-bargaining tools that prosecutors already have and use, like diversion and deferred adjudication, to avoid some convictions altogether, as well as to reduce some felony convictions to misdemeanors during or after supervision, consistent with an overall graduated approach to our application of the criminal laws.
  7. We should encourage employers, landlords, and others to keep an open mind when evaluating criminal history, and we should prohibit arbitrary or capricious discrimination based on a criminal record.
  8. We should limit access to and the use of records for non-law-enforcement purposes, and we should maintain records that are complete and accurate.
  9. Defense lawyers should consider avoiding, mitigating, and relieving collateral consequences to be an integral part of their representation of a client.
  10. NACDL will launch education programs and advocacy aimed at curtailing collateral consequences and eliminating the social stigma that accompanies conviction.

How a Criminal Record Can Keep You Unemployed for Life

Imagine a 44-year-old man who lives with his wife and three kids in East Harlem, New York.

Trying to make ends meet, the man puts in for as many part-time gigs as possible until he can land a steady, full-time job to support him and his family. In one of his part-time jobs, he’s a porter and doorman at a swanky high-rise building in the East Village, and he loves it. Even though he sometimes gets calls to run errands in the middle of the night, he always says yes because the pay is great (at $17/hour) and the position holds promise that he’ll be hired there full time.

Until then, though, he needs all the work he can get, so he applies for another part-time job at a building across the street, and in the application, he truthfully discloses a burglary conviction from twenty years ago. Too bad for him. Suddenly, the swanky building at which he hoped to build a future stops giving him shifts. He calls his boss to find out why, and he’s told that they found out about his record, and he can’t work there anymore.

The man committed the burglary when he was 22. He was a lousy burglar, and he soon got caught. The judge didn’t sentence him to jail or prison, giving him five years’ probation instead, and the man earned his release from probation in two years. But twenty years later, the conviction is still there, and he can never serve enough of a sentence to step out from its shadow.

These collateral consequences of a criminal conviction affect us all. They are part of the problem of over-criminalization, and they create a permanent underclass of the underemployed and unemployable. According to most estimates, the percentage of working-age adults with criminal records lies somewhere between 25 and 33 percent. In 2006, the Justice Department pegged the number at 30 percent. Those numbers alone make you wonder what it all means when we talk about “those” criminals.

If you have a criminal conviction in your past, you may have options worth exploring to rehabilitate your record. You should consult with a lawyer in your jurisdiction about whether you can have your conviction(s) expunged from your record or whether there are other forms of relief that are available to you.

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