Things have been incredibly busy in 2015, which is a blessing. In addition to representing several terrific clients in various complex litigation matters, I have been spending a significant amount of time on non-billable matters. (*Gasp* I know. Some lawyers actually DO have a heart...) In January, I taught a four-day interactive deposition workshop for students at Penn Law. I enjoyed the opportunity and was thrilled to experience the skills and excitement the Penn students brought to class each day. I've also been spending a significant amount of time assisting two non-profit organizations that are close to my heart -- Choral Arts of Southern New Jersey and Project 440. This year has been an exciting period of growth and development for both organizations. And I'm in the midst of preparing a two-day interactive deposition course for practicing attorneys that I will be presenting in June for The Pennsylvania Bar Institute.
But my biggest pro bono project thus far launched today: I am leading a coalition of talented attorneys who, on behalf of five individual petitioners and non-profit social service organization, are mounting a facial challenge to the constitutionality of The Older Adult Protective Services Act ("OAPSA"), a Pennsylvania law that prohibits anyone who has ever been convicted of any disqualifying crime at any time in his or her life from ever holding any job at any covered residential health care facility.
Sound draconian? It is all that and more.
The Pennsylvania General Assembly passed OAPSA in 1987. The Act originally established a network of agencies in Pennsylvania to provide assistance and protective services for older adults, including patients in OAPSA-covered facilities (such as nursing homes, home health care programs, and residential mental health facilities). In 1996 and 1997, the General Assembly amended OAPSA by adding a criminal records chapter to the law. After the amendments, no OAPSA-covered facility could hire or retain in any position any individual who had ever been convicted of any disqualifying crime at any time in his or her life.
In essence, the Act imposes a lifetime irrebuttable presumption, forever disqualifying individuals from employment due to long-past actions for which the offender’s debt to society has since been repaid. Even if the owner or operator of a covered facility, based upon his or her years of experience in the industry, believes that an applicant or employee with a prior conviction is the best qualified for the job, the criminal history of the applicant or employee is the only factor that the employer may consider and employment is barred. They have no discretion to make individualized hiring decisions.
Fifteen years ago, when I was a young associate at Hangley Aronchick Segal & Pudlin, I worked with Hangley partner David Wolfsohn (one of the most talented trial attorneys with whom I have ever had the pleasure of working), Penn Law Professor Seth Kreimer, and Community Legal Services to challenge the then-recently-passed OAPSA on behalf of five individual petitioners who were barred from their profession due to criminal convictions from decades ago that had no bearing whatsoever on their present fitness to continue working in their chosen profession. I am proud to say that we were successful. On December 11, 2001, the Commonwealth Court of Pennsylvania, sitting en banc, declared OAPSA's lifetime employment bar to be unconstitutional. See Nixon v. Commonwealth, 789 A.2d 376, 382 (Pa. Cmwlth. 2001) ("Petitioners’ well-pled facts vividly illustrate the constitutional infirmities present in Act 13 and the draconian impact of its enforcement. They further demonstrate the arbitrary and irrational nature of the challenged provisions and establish that no rational relationship exists between the classification imposed upon Petitioners and a legitimate governmental purpose. . . . Accordingly, the Court holds that the criminal records provisions of the Act are unconstitutional as applied to Petitioners."). The Supreme Court of Pennsylvania subsequently affirmed. See Nixon v. Dept' of Public Welfare, 576 Pa. 385, 404 (2003) ("[T]he criminal records chapter [of OAPSA], particularly as applied with regard to its application to the Employees, does not bear a real and substantial relationship to the Commonwealth’s interest in protecting the elderly, disabled, and infirm from victimization, and therefore unconstitutionally infringes on the Employees’ right to pursue an occupation.”).
Today, LeVan Law Group, along with Professor Kreimer, Community Legal Services and Robert LaRocca of Kohn Swift & Graf P.C., filed a second action challenging the constitutionality of OAPSA. The Petition can be found here. In the current action, we seek to invalidate the lifetime employment ban on its face -- not simply as applied to the petitioners. While our successful efforts in the first OAPSA litigation enabled the five individual petitioners to return to work, the litigation did not spur the General Assembly to make the necessary changes in the law that we (and Pennsylvania's own agencies) expected to occur; instead, 14 years later the law continues to bar thousands of otherwise qualified individuals from work. Accordingly, we have again mounted a constitutional challenge to OAPSA's lifetime employment ban and this time we hope to take it down in its entirety.
Laws like OAPSA operate to deprive individuals of their constitutional right to work in a lawful occupation. But equally troublingly, such laws are based on faulty assumptions and represent bad public policy.
Today, over 65 million Americans have a criminal record – that's more than one in four adults. Yet, according to a recent published survey of the Society of Human Resource Management, more than 90% of the member companies perform criminal background checks on some or all job candidates and many companies routinely deny employment to anyone with a criminal conviction regardless of work experience or job requirements. Pause for a second, get beyond what may be your initial reaction, and genuinely ask yourself: Does that make sense?
No. No, it doesn't.
Barring all individuals with prior criminal convictions from employment is completely antithetical to any concerns for rehabilitation and reintegration with society. An individual who has successfully completed his or her punishment after a criminal act should not be further stigmatized by being unable to get a job. Indeed, recidivism rates are substantially lower for individuals with steady employment opportunities; thus, public safety is actually harmed by statutory employment bars like OAPSA or hiring practices that automatically exclude individuals with criminal records. Moreover, allowing those with prior criminal convictions to reenter the work force saves public tax dollars by avoiding the high costs of corrections and other social service benefits to which an unemployed individual may be entitled. To successfully reintegrate an individual with a record back into society is the very epitome of a win-win situation.
In addition to making for bad public policy, lifetime employment bars such as that contained in OAPSA are based upon a faulty premise: namely, that a past criminal act is indicative of an increased risk of future criminal behavior. Rigorous social science studies have now confirmed that after a limited number of years – four to seven years for a single conviction and no more than ten years for multiple convictions – an individual with a prior criminal conviction is no more likely to commit a criminal offense than any member of the general public. Lifetime employment bars like OAPSA, which are based on an irrebuttable presumption of "once a criminal, always a criminal," are thus unsupported by applicable social science studies.
Instead, a balanced approach is required: Yes, under certain circumstances, a prior conviction may well be relevant to the fitness of a specific candidate or employee for the requirements of a specific job; but those determinations must be made on a individualized basis with consideration of all relevant factors, including the nature and severity of the prior criminal conduct, the time that has elapsed since the conviction, the efforts at rehabilitation and reintegration the individual has made in the interim, and the specific job requirements of the position for which he or she would be hired or retained. The decision whether to hire or retain an individual with a past criminal conviction is not amenable to a one-size-fits-all solution. And a lifetime ban, which completely precludes an employer from hiring an individual with a record (often from decades ago), even if the employer thinks that he or she is well-qualified for the position, is madness.
It's time to bring common sense back to this issue. Individuals with a prior criminal conviction already have plenty of barriers to overcome in becoming reemployed. Let's not make their reintegration into society impossible through misguided efforts that are premised upon faulty assumptions and actually increase public safety risks.
Wish us luck.