BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 5 3 0 SB 530 (Wright) As Amended April 15, 2013 Hearing date: April 23, 2013 Labor and Penal Codes MK:mc CRIMINAL RECORD OFFENDERS: REHABILITATION HISTORY Source: Author Prior Legislation: None Support: Congress of Racial Equality of California (CORE-CA); Taxpayers for Improving Public Safety; Lawyers' Committee for Civil Rights of the San Francisco Bay Area; Legal Services for Prisoners with Children; California Attorneys for Criminal Justice; American Civil Liberties Union; California Public Defenders Association; National Employment Law Project; Clean Slate Practice of the East Bay Community Law Center; A New Way of Life Reentry Project Opposition:California District Attorneys Association KEY ISSUES SHOULD THE LAW PROVIDE THAT A POTENTIAL EMPLOYER CANNOT ASK (More) SB 530 (Wright) Page 2 ABOUT OR USE INFORMATION ABOUT A CONVICTION WHICH HAS BEEN EXPUNGED? (CONTINUED) SHOULD THE FIVE-YEAR RESIDENCY REQUIREMENT FOR A CERTIFICATE OF REHABILITATION BE ELIMINATED? SHOULD A PERSON WITH AN OUT-OF-STATE CONVICTION BE PERMITTED TO SEEK A CERTIFICATE OF REHABILITATION IN CALIFORNIA? PURPOSE The purpose of this bill is to prohibit the use of a conviction that has been expunged in employment and to make changes to the process for certificates of rehabilitation. Existing law provides for a process for a court to allow a defendant to withdraw his or her plea or set aside verdict of guilty and dismiss the accusation or information if the defendant has fulfilled the conditions of probation for the entire period of probation, or who has been discharged prior to the termination for the period of probation, or in any other case in which the interests of justice, determines that a defendant should be granted relief available. (Penal Code § 1203.4.) Existing law provides that no employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or post trial diversion program, nor shall any employer seek from any source whatsoever, or utilize, as a factor in determining any condition of employment including, hiring, promotion, termination, or any (More) SB 530 (Wright) Page 3 apprenticeship training program or any other training program leading to employment, record of arrest or detention that did not result in conviction, or any record regarding a referral to, and participation in, any pretrial or post trial diversion program. (Labor Code § 432.7.) This bill would provide that an employer also may not ask about or use as a factor in determining condition of employment the fact that the person has a conviction that has been judicially dismissed pursuant to Penal Code Section 1203.4. This bill provides that an employer is not prohibited from asking an applicant about a criminal conviction or seeking from any source information regarding a criminal conviction of, or entry into a pretrial diversion, or similar program by the applicant if because of any state or federal any of the following apply: The employer is required by law to obtain information regarding a conviction of an applicant. The applicant would be required to possess or use a firearm in the course of his or her employment. An individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation. The employer is prohibited by law from hiring an applicant who has been convicted of a crime. This bill provides that to determine if a conviction directly relates to the position of the employment sought, the employer shall consider all of the following: The nature and seriousness of the crime or crimes of which the individual was convicted. The relationship of the crime or crimes to the purposes of the position for which employment is sought. The relationship of the crime or crimes to the ability, capacity, and fitness required to perform the duties and discharge the responsibilities of the position of (More) SB 530 (Wright) Page 4 employment. Existing law sets forth the requirements for a person to file a petition for a certificate or rehabilitation. (Penal Code § 4852.01.) Existing law provides that any person convicted of a felony, or any person who is convicted of a misdemeanor violation of any sex offense specified in Section 290, the accusatory pleading of which has been dismissed pursuant to Section 1203.4, may file a petition for certificate of rehabilitation and pardon if the petitioner has not been incarcerated in any prison, jail, detention facility, or other penal institution or agency since the dismissal of the accusatory pleading and is not on probation for the commission of any other felony, and the petition presents satisfactory evidence of five years residence in this state prior to the filing of the petition. (Penal Code § 4852.01 (c).) This bill removes the requirement that the petitioner "presents satisfactory evidence of five years residence in this state prior to the filing of the petition." This bill provides that any individual convicted outside the state, but in the United States or one of its territories, of an offense that would be a felony or a misdemeanor sex offense specified in Section 290 if the conviction had occurred in the state, may file a petition for a certificate of rehabilitation if the petitioner has not been incarcerated in any prison, jail, detention facility, or other penal institution or agency since the dismissal of the accusatory pleading, is not on probation for the commission of any other felony, and the petitioner presents clear and convincing evidence that he or she has been a resident of the United States, its territories, or a military base for the five consecutive years prior to the filing of the petition. Existing law provides that the period of rehabilitation shall begin to run upon the discharge of the petitioner from custody (More) SB 530 (Wright) Page 5 due to his or her completion of the term to which he or she was sentenced or upon his or her release on parole or probation, whichever is sooner. The period of rehabilitation shall constitute five years residence in this state, plus an additional period of time depending on the type of crime. (Penal Code § 4852.03 (a).) This bill removes the requirement that during the five years the person has to be a resident in this state. Existing law provides that unless and until the period of rehabilitation has passed, the petitioner shall be ineligible to file his or her petition for a certificate of rehabilitation with the court. Any certificate of rehabilitation that is issued and under which the petitioner has not fulfilled the requirements shall be void. (Penal Code § 4852.03 (b).) This bill provides that except in a case requiring sex offender registration a trial court hearing an application for a certificate of rehabilitation before the applicable period of rehabilitation has elapsed may grant the application, if the court, in its discretion believes relief services the interests of justice. Existing law provides that except as provided in Penal Code Section 4852.01(a) after the expiration of the minimum period of rehabilitation applicable to him or her (and, in the case of persons released upon parole or probation, after the termination of parole or probation), each person who has complied with the requirements of Penal Code § 4852.05 may file in the superior court of the county in which he or she then resides a petition for ascertainment and declaration of the fact that his or her rehabilitation in matters incident thereto, and for a certificate of rehabilitation. No petition shall be filed until and unless the petitioner has continuously resided in this state, after leaving prison, for a period of not less than five years immediately preceding the date of filing the petition. (Penal Code § 4852.06.) (More) SB 530 (Wright) Page 6 This bill also provides except as provided in Penal Code section 4852.03(b) a person may bring the petition. This bill deletes the requirement that a person must live continuously in the state for five years. Existing law provides the petitioner shall give notice of the filing of the petition to the district attorney of the county in which the petition is filed, to the district attorney of each county in which the petitioner was convicted of a felony or of a crime the accusatory leading of which was dismissed pursuant to Penal Code § 1203.4 and to the office of the Governor, together with notice of the time of the hearing of the petition at least 30 days prior to the date set for that hearing. (Penal Code 4852.07.) This bill provides that if a petitioner is filing pursuant to the provision allowing a petition to be filed for a crime outside California, the petitioner shall give notice of the filing of the petition to the district attorney in each county, or the equivalent jurisdiction, where a felony or misdemeanor offense occurred, and in each county where the petitioner resided for the previous five years, at least 90 days prior to the date of the hearing. Existing law provides that if after a hearing, the court finds that the petitioner has demonstrated by his or her course of conduct his or her rehabilitation and his or her fitness to exercise all of the civil and political rights of citizenship, the court may make an order declaring that the petitioner has been rehabilitated and recommending that the Governor grant a full pardon to the petitioner. The order shall be filed with the court of the clerk of the court and shall be known as a certificate of rehabilitation. (Penal Code § 4852.13(a).) This bill provides that if an individual has filed the petition pursuant to the provision allowing a petition to be filed for a crime outside California and the court finds that the petitioner has demonstrated the fitness and rehabilitation (More) SB 530 (Wright) Page 7 requirements by clear and convincing evidence, the court may make an order decaling that the petitioner has been rehabilitated. The order shall be filed with the clerk of the court and shall be known as a certificate of rehabilitation. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures which created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation which would increase the prison population. ROCA necessitated many hard and difficult decisions for the Committee. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the federal court order issued by the Three-Judge Court three years earlier to reduce the state's prison population to 137.5 percent of design capacity. The State submitted in part that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment (More) SB 530 (Wright) Page 8 went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs, who opposed the state's motion, argue in part that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % prisoner population cap by December 31st of this year. In an order dated April 11, 2013, the Three-Judge Court denied the state's motions, and ordered the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." The ongoing litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. However, in light of the real gains in reducing the prison population that have been made, although even greater reductions are required by the court, the Committee will review each ROCA bill with more flexible consideration. The following questions will inform this consideration: whether a measure erodes realignment; whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; whether a bill corrects a constitutional infirmity or legislative drafting error; whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. (More) SB 530 (Wright) Page 9 COMMENTS 1. Need for This Bill According to the author: California's existing expungement law, Penal Code 1203.4, is ineffective. Even after receiving an expungement, rehabilitated former offenders suffer lifelong discrimination in employment, housing and travel. Not only is this unjust, it inevitably costs California millions of dollars in dealing with recidivism, unemployment, and under employment. The expungement process is generally recognized by people in the field as having limited benefit despite the legislative intent because other court records and background companies can discover these convictions or employers now know what the term "expunged pursuant to PC Section 1203.4" means. The Certificate of Rehabilitation process is limited because if requires a five year state residency even to those who were convicted outside of California and now have moved into the state. The law also provides no discretion for the court to grant a certificate before the five year waiting period in extraordinary circumstances. The protections in current law (Labor Code section 432.7) prohibit employers from asking applicants for employment to disclose certain criminal background information. This provision however does not cover records expunged under PC 1203.4, thus limiting its effectiveness. SB 530 makes three corrections to existing law. First, it adds records expunged to the protections under Labor Code 432.7. Second, it eliminates the five year state (More) SB 530 (Wright) Page 10 residency for those convicted outside of California but moved into the state for a Certificate of Rehabilitation ("COR"). Third, it allows the court to waive the 5 year time period to grant a COR in the "interests of justice". (More) 2. Expungement Existing law provides for an expungement process. A person can seek to have dismissed an accusation or information after he or she has fulfilled his or her probation or parole period. While granting of the expungement of releases a person from all penalties and disabilities resulting from the offense, the release is not absolute. The expunged offense can still be used as a prior in a subsequent conviction. The expungement order does not relieve a person of the obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public offense, for licensure by any state or local agency, or for contracting the California State Lottery. It also does not permit a person to own a firearm or hold public office if the conviction would bar that person from holding office. The author argues that while the a person is supposed to be relieved from the disabilities of their offense, the fact that people can get records online and understand what a dismissal under Penal Code Section 1203.4 means, even an offense dismissed under Penal Code Section 1203.4 is interfering with the ability of many to fully rehabilitate by gaining employment. 3. Labor Code The author argues that while the a person is supposed to be relieved from the disabilities of their offense, the fact that people can get records on line and understand what a dismissal under Penal Code Section 1203.4 means, even an offense dismissed under Penal Code Section 1203.4 is interfering with the ability of many to fully rehabilitate by gaining employment. This bill would amend the Labor Code to provide that in addition to not being able to ask or use information on an applicant about arrests that did not result in conviction or participation in diversion that an employer cannot ask about or use information that a conviction was dismissed pursuant to Penal Code Section 1203.4 unless the conviction fall under one of the (More) SB 530 (Wright) Page 12 specified exceptions because the law otherwise requires the conviction to be considered. 4. Elimination of 5-Year Residency Under existing law, a person who has had their record expunged under Penal Code Section 1203.4 may seek a certificate of rehabilitation and pardon. One of the elements for seeking the certificate of rehabilitation is that a person must "present satisfactory evidence of five years residence in this state prior to filing of the petition." This bill eliminates that requirement. This will allow someone who has met all their conditions of probation but not lived in California for the whole five years to be able to seek a certificate of rehabilitation. 5. Out-of-State Conviction This bill also extends the ability to seek a certificate of rehabilitation to a person who is convicted outside of the state if the person shows evidence of his or her rehabilitation. The person will be required to give notice of their petition to seek a certificate of rehabilitation to the prosecutor in the county where he or she was convicted as well as any county where he or she lived for at least 90 days in the last five years so that the court can verify the rehabilitation. The intent is to give a person currently living in California the ability to have proof of rehabilitation and thus be able to seek employment. *************** SB 530 (Wright) Page 13