Evan M. Lopez
David Scott never had a problem finding work. Not in 1995 — when he landed a job at Herrs while still on a work-release program, after being convicted of conspiracy to robbery (some men he knew had done the crime, and given him money to keep his mouth shut). Not in 1997, when he began a six-year career at Nordstrom. And not in 2002, when the East Mount Airy resident began a decade-long stint as a driver for a pain-management clinic.
Now, though, he just can’t seem to get a job. And if he gets one, he can’t keep it. For the first time in his life, Scott is among the long-term unemployed.
The reason? “The background checks are really hurting me now,” he says. “In 1995, the background check wasn’t a must back then. Background checks were only done by big, big corporations, not by everyone.” Today, though, 87 percent of companies are doing them, according to the Society for Human Resource Management.
Consequently, Scott is one of a flood of ex-offenders now seeking expungements and pardons to liberate them from the stigma of criminal convictions or mere arrests that happened years — or even decades — ago.
Lawyers who offer free legal services to help people file petitions for expungement say it’s hard to track the growth in demand — because they are nowhere near to keeping up with it.
“We are only able to do the tip of the iceberg with the funding we currently have,” says Sharon Dietrich, managing attorney for employment and public benefits at Community Legal Services (CLS). Erasing an arrest or charge from a person’s record — a process that involves filing a civil action and requires a judge’s approval — can be critical to obtaining not just a job, but also housing or benefits. “There’s almost an infinite demand, but very limited resources.”
This spring, CLS lawyers showed up repeatedly at City Council to lobby the city to budget $100,000 for expungement services, which CLS argued would generate $6 million in savings and tax revenues. CLS used to get dedicated funding from the Department of Public Welfare to help welfare recipients get expungements, but that funding was eliminated in 2011. “It used to be that the welfare-to-work providers were encouraged to send people to us to help them with expungements,” says Dietrich. “But when the funding stopped, that did as well.”
In 2012, more than 1,000 people asked CLS for help clearing their records. But CLS can only assist about 500 to 600 people a year with expungements. “And we don’t advertise,” she says. “If we did, we’d be overrun.” The lawyer doing expungement petitions full-time at CLS completed his fellowship in July; the firm couldn’t afford to replace him, so they can do even fewer going forward.
The proliferation of online background-checking services has created a new wrinkle. Even once a charge is expunged, it can live on digitally. And while it’s illegal in Philadelphia for employers to consider nonconviction data, it’s not hard for them to access it.
“Many people are acquitted of a crime, or not convicted, and they’re surprised to find that information is still shared or reproduced through the Internet on these other third-party channels [such as online background-checking services],” says Mike Lee, executive director of Philadelphia Lawyers for Social Equity and supervising attorney of the 3-year-old Criminal Record Expungement Project (C-REP), which has completed more than 3,000 expungement and redaction petitions.
Lee says private companies that provide the data online currently fall into a legal gray area. “They’re pretty much exempt from having to comply with the expungement order.”
Pending legislation in Harrisburg could improve matters by automatically expunging nonconviction data from criminal records. That would help shift some of the burden from individuals back onto the courts. Lee estimates that those who can’t get pro bono assistance typically pay $750 to $2,000 for expungement-related legal services. Other bills would allow for the expungement of additional crimes, such as nonviolent misdemeanors.
Dietrich says that many clients — including those who were arrested but never charged — tell her they’ve been offered jobs contingent on background checks, only to have the job offers revoked due to the blemishes on their records.
That happened to Scott, who landed a job last November but was fired in February after the company got around to doing a background check. Since then, he’s had about 20 offers contingent on the checks. “But once they did the background check, no one has hired me,” he says. “No matter if the conviction was 20 years old or not.”
At the city-run Ex-Offender Expo this summer — held at the Convention Center after the first expo, at a municipal building, was shut down due to overwhelming crowds of job-seekers — others described similar incidents.
Michael Wilson, 44, said that up until this year he’d worked steadily. But lately things have changed.
He did time in prison 15 years ago; afterward, he found seasonal jobs as a floor technician at universities like Temple and Penn, cleaning carpets or waxing and stripping floors. But this year, there was a background check. “When she got the FBI background clearance, they told me to go,” he said.
“I never had an issue [finding work] since 15 years ago,” he added. But by the day of the expo, he had been out of work for six months. “The challenge is as far as my criminal background.”
Isaac Fullman, 31, also was looking for work at the expo. He’d been unemployed for eight months. Though he has never been convicted of a felony, he fears even the misdemeanor on his record could present a problem going forward. “It’s best to have a clean criminal record than to have something on your record — it doesn’t matter if it’s a summary offense or a misdemeanor.”
The reality is, expungements only help so much for people like Scott, Wilson and Fullman. C-REP files an average of six different expungement petitions per client — to address multiple arrests, or multiple charges arising from one arrest — and sometimes that still doesn’t clear a person’s record. That’s because Pennsylvania has unusually tough laws on what can be expunged, restricted mostly to summary offenses and charges that don’t end in convictions. CLS has identified at least 30 states in which the laws are more forgiving. “Other states allow felony convictions to be expunged, where we don’t even allow misdemeanors,” Dietrich says.
So, what people like Scott and Fullman really need is a pardon. Fullman applied for one in April from the state Board of Pardons, which currently has a three-year backlog due to growth in background checks. But that process is difficult, and the odds are long. In 2012, only 85 pardons were granted.
Lee says more work is needed, but at least awareness of the issue has improved in the past few years. His organization is trying to spread the word about expungements, their limitations and what legislative change could accomplish. “We treat a 30-year-old conviction equally and as harmfully as a 30-day-old conviction,” he says — but people are beginning to realize that that’s not constructive.
In Philadelphia, where about 20 percent of adults have a criminal record, it’s even more critical.
“A lot of people think this is some marginal issue that only affects low-income people, a few here and there,” Dietrich says. “But it really affects a large percentage of our population.”
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