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July 31, 2014 Articles

The Penn Law Criminal Record Expungement Project

Helping Philadelphians with criminal records get back to work.

By Molly Kenney, William Moine, Kevin Hoagland-Hanson, Elizabeth Frawley, and Robert Kieffer

On January 25, 2014, over 100 Philadelphians traveled to the People’s Emergency Center in west Philadelphia to obtain assistance from University of Pennsylvania Law School students. The attendees braved freezing temperatures, long waits, and a fierce snowstorm to share their stories and receive help with getting back to work despite having a criminal record.

One in five Philadelphians has a criminal record, and these records make it difficult, if not impossible, to find work. Fair Criminal Record Screening Standards, Philadelphia Code § 9-3501(1)(c) (2012). Individuals are often fired once employers learn of their criminal record. Many others are denied the opportunity to obtain an interview for a job once an employer discovers that the individual has a record. The inability to obtain new employment with a criminal record keeps many individuals out of the workforce and may even contribute to recidivism.

Criminal Records and Collateral Consequences
These obstacles to employment are a few of the negative effects of criminal arrests and convictions, known as “collateral consequences.” Collateral consequences act as an additional barrier to reentry into society. Even after completing their sentences and being released, individuals with convictions quickly learn that they can never truly escape their criminal records. Some of the more widespread collateral consequences include voter ineligibility in federal elections and deportation. Additionally, students with drug convictions are ineligible to receive federal student loans.

Moreover, public access to criminal records further exposes individuals with arrest records to collateral consequences. In Pennsylvania, criminal records are generated for every person who is arrested. These records are publicly available via Pennsylvania’s online database under the Unified Judicial System of Pennsylvania website. All charges from the time of arrest are available to the public, including those later dismissed for lack of evidence and those that resulted in a verdict of not guilty. Therefore, employers who run criminal-background checks on applicants are able to view both conviction and non-conviction data. While Pennsylvania law prohibits employers from considering an applicant’s criminal records unless the applicant has been convicted of a crime that relates to the position for which the applicant applied, this does not mean that non-conviction data do not result in collateral consequences in hiring. 18 Pa. Cons. Stat. § 9125. In fact, some employers do not know the difference between the two types of data and end up make hiring decisions based on non-conviction data. Others know the difference but either are ignorant of Pennsylvania law or consciously disregard it. This means that many people who were found innocent by a jury of their peers or who were wrongfully arrested will be permanently hindered by public access to criminal records.

The Criminal Record Expungement Project
In 2010, with a generous grant from the Bread and Roses Foundation, the Philadelphia Lawyers for Social Equity (PLSE) partnered with students from the University of Pennsylvania Law School to form the Criminal Record Expungement Project (C-REP), as a project of the Philadelphia chapter of the National Lawyers Guild. The goal of C-REP’s founders was to bring expungement services directly into communities most affected by criminal records—an expansion of the work previously executed by the Defender Association of Philadelphia and Community Legal Services. In February 2011, C-REP held its first expungement clinic at Enon Baptist Church in north Philadelphia. That day, C-REP conducted an intake for more than 200 clients and prepared about 290 expungement petitions.

In fall 2011, the Penn Law students in C-REP organized the Penn Law Criminal Record Expungement Project chapter. The chapter is a student-led pro bono project that is part of Penn Law’s Toll Public Interest Center and consists of over 80 student volunteers. Penn Law C-REP conducts clinics monthly in west and north Philadelphia to help clients obtain pardons and expungements of their criminal records. To date, Penn Law C-REP has assisted hundreds of Philadelphians in clearing their criminal records and getting back to work.

For individuals with non-conviction criminal history information, Penn Law C-REP provides free legal services for seeking expungements in the Court of Common Pleas of Philadelphia County. To have non-conviction criminal history information expunged, an individual must file a motion for expungement and attend a hearing. During the hearing, the judge balances the harm caused to the petitioner by his or her criminal record against the interests of the Commonwealth of Pennsylvania in preserving the record. Commonwealth v. Wexler, 431 A.2d 877, 880 (Pa. 1981). The burden rests on the commonwealth to prove why the record should be maintained. Commonwealth v. McKee, 516 A.2d 6, 9 (Pa. 1986). If an order of expungement is granted, the order is sent to state and local law-enforcement agencies, with instructions to clear the expunged charges from the petitioner’s public criminal record. Because this process is difficult to navigate without the assistance of an attorney, and because private counsel is beyond the means of many in Philadelphia, the services provided by Penn Law C-REP are invaluable.

To attempt to meet the high demand for expungement assistance, Penn Law C-REP hosts three expungement clinics each semester at the People’s Emergency Center in west Philadelphia. During the expungement clinics, student volunteers meet with individuals to explain the expungement process and conduct client intakes to determine eligibility. Based on income eligibility and C-REP resources, supervising attorneys accept clients, and a law student drafts the petitions for expungement. Once the petition is drafted, the Penn Law C-REP student board conducts an initial review of these petitions and supervising attorneys conduct the final review. From there, petitions are filed with the Court of Common Pleas, and law students, with the guidance and oversight of supervising attorneys, represent clients at hearings.

Demand for C-REP’s services has reflected the level of need in the Philadelphia community. In the last three semesters (fall 2012, spring 2013, and fall 2013), Penn Law C-REP met with 384 individuals, accepted 237 clients, and prepared 718 petitions. Penn Law C-REP’s January 2014 intake session set a new record for intake clients served, with 104 people meeting with C-REP volunteers despite a snowstorm—a testament to the need for these services in Philadelphia.

Post-Conviction and Incarceration: The Need for Pardons
For the substantial number of Philadelphians who have been convicted of crimes, expungement alone is not a solution. While non-conviction data may be expunged (or redacted from a record that also included conviction data), there is no similar right to have conviction data removed. See 18 Pa. Cons. Stat. § 9125 (providing expungement remedy for non-convictions but silent as to conviction outside of limited exceptions). Many individuals with conviction data will instead seek a pardon. A pardon differs from an expungement; pardons require a lengthy review process by the Pennsylvania Board of Pardons and ultimately lie within the sole discretion of the governor.

Penn Law’s C-REP student volunteers also provide support to individuals navigating the pardon process through the Pardon Me Clinic, which is held twice per month in north Philadelphia in partnership with X-Offenders for Community Empowerment. Law-student volunteers are trained to help Pardon Me Clinic clients navigate the difficult pardon process by helping them complete the lengthy forms and persuasively articulate the stories behind their crimes, their goals, and the barriers posed by their criminal records. Through Pardon Me Clinics, Penn Law C-REP has served 283 clients since 2012.

Making Change
C-REP’s efforts don’t stop after an expungement or a pardon. Many C-REP clients remain involved with the project and participate in C-REP’s outreach efforts to educate Philadelphians about the effects of criminal records, and to advocate for reform of state and local laws concerning criminal records. C-REP helps clients share their personal stories to raise awareness of collateral consequences and the need for policy change via C-REP’s Expungement Impact Hotline and by connecting clients with the media. Empowering clients to advocate for themselves in the political process is central to C-REP’s mission of working to reduce the collateral effects of criminal records.

C-REP aims to assist Philadelphians who are trying to get back to work by removing some of the collateral consequences of a criminal arrest through a combination of advocacy for policy change and its direct service work. By removing one obstacle to employment, C-REP furthers its mission to help ensure that no person’s future is predetermined by a criminal record.

Keywords: litigation, access to justice, expungement, collateral consequences, pardon, criminal justice, employment discrimination, Penn Law School Criminal Record Expungement Project, C-REP

Molly Kenney is a staff attorney with The Bronx Defenders in Bronx, New York; William Moine is a post-bar clerk with the Clark County Office of the Public Defender; and Kevin Hoagland-Hanson, Elizabeth Frawley, and Robert Kieffer are 3L law students at the University of Pennsylvania Law School.

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