Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences—invisible punishments that inhibit opportunity in all facets of a person’s life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone.
But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out of reach. A major problem, I argue, is the administrative burdens involved in accessing these remedies. Because of these hurdles, people with fewer resources—the population that would most benefit from the help—are the ones most likely to find these second chances out of reach. The Article closely examines one increasingly popular type of second-chance program: certificate laws that remove employment barriers.
Building on recent research identifying the low usage rates of petition-based second-chance programs, this Article catalogs and analyzes the costs and burdens placed on people attempting to access employment certificates. Of particular concern is not only these low usage rates themselves, but also the identity of those least likely to access these interventions. Second-chance programs like employment certificates that provide a way forward for people with greater resources while leaving behind those without may be more harmful than helpful when placed in the larger context of mass criminalization and social change, even if they help the small number of individuals who do access them. In contrast, a well-designed second-chance initiative that appropriately considers administrative burdens and the way that interventions like employment certificates fit into the broader picture of social change could provide short-term benefits to people with criminal records while also bolstering larger-scale reforms to the criminal legal system.
Introduction
For the tens of millions of people in the United States marked by a criminal record, a second chance can sound like an empty promise. The collateral consequences of a criminal record have been referred to as an “invisible punishment,”1 or even an “invisible life sentence,”2 holding people back from opportunities in life well beyond the end of their sentence. Throughout the country, policymakers have been hard at work developing solutions to these invisible punishments in an effort to fulfill the promise of a second chance.
The language of a “second chance” is, of course, loaded—in fact, many people do not receive a fair “first” chance, and all people need to be able to support themselves and their families regardless of the number of contacts they may have had with the criminal legal system. This language also does not acknowledge the vast differences in opportunities that people have, regardless of criminal conviction, based on factors including race, class, and social capital. Nonetheless, the phrase “second chances” is often used as shorthand in connection to reducing barriers to accessing employment, housing, and more after a criminal conviction, and will be used to refer to those same issues here. In 2019 alone, 43 states and the District of Columbia collectively passed 153 distinct laws designed to reduce barriers that people face in voting, employment, housing, and licensing.3 This breakneck pace of legislative innovation is a continuation and expansion of a trend that has been developing since 20134 of states working to stem the flow of lost opportunities due to formal and informal collateral consequences. While the rapid rate of change and experimentation is exciting, it is occurring against a very bleak backdrop—the crisis of mass criminalization and the enduring barriers and stigma of a criminal record.
Given the relatively recent surge in second-chance—related legislation, we are just now beginning to see initial data about the impact of some of these interventions—how many people they reach and what effect they have.5 Recent studies focusing on record-clearing remedies like expungement demonstrate significant benefits for people with criminal records.6 But they also show that very few people have taken advantage of them.7 The number of people who are eligible for a form of relief yet have not taken advantage of it is referred to as the “second-chance gap”8 or the “uptake gap.”9 These large gaps demonstrate that second-chance interventions are typically not reaching enough people and are, therefore, barely making a dent in the crisis of mass criminalization.
Building on these studies, this Article diagnoses the uptake gap. A major part of the problem, I argue, is the series of administrative hurdles involved in accessing these remedies. Because of those hurdles, people with fewer resources—the population that would most benefit from the help—are the ones most likely to fall into the gap. The Article closely examines one increasingly popular type of second-chance program that focuses primarily on employment barriers. These initiatives have varied names around the country, including Certificate of Employability, Certificate of Rehabilitation, and Certificate of Relief from Disabilities. These programs, which I refer to collectively here as “Certificate laws,” are designed to help people access employment despite having a criminal record. They typically give a person with a criminal record a positive credential that helps overcome statutory bars to occupational licensing and insulates employers from liability for negligently hiring a person with a criminal record.
Rooting the analysis of Certificate laws in the reality of mass criminalization, this Article evaluates these programs in practice and argues that we must center distributional concerns in assessing these initiatives. The Article draws on an administrative burden10 framework to catalog and analyze the many costs and obstacles an applicant might encounter in accessing a Certificate. Of particular concern is not only the uptake gap itself but also the identity of those most likely to fall into it. Certificate programs that provide a way forward for those with greater resources while leaving out those without are likely to be more harmful than helpful when placed in the larger context of mass criminalization and social change. This is so even if they are helpful to the small number of individuals who access them. In contrast, well-designed Certificate initiatives that appropriately consider administrative burdens and the way that Certificates fit into the broader picture of social change could provide short-term benefits to people with criminal records while still supporting larger-scale reforms to the criminal legal system.
This Article proceeds in three Parts. Part I lays out the problems of mass criminalization and employment barriers and identifies existing partial solutions and their limitations. Part II presents an introduction to Certificates, how they fit in with other reforms, and generally how they operate. This Part also introduces the concept of administrative burden in Certificate programs, and then presents three contrasting case studies of Certificate programs that highlight the ways in which each imposes or avoids burdens on an individual seeking a Certificate. Part III critically assesses Certificate programs, analyzing administrative burdens in many existing Certificate programs. This Part draws lessons from theory and from existing Certificate programs to recommend features of Certificate program design that would decrease administrative burdens. These features could make the Certificate programs more equitable and would make it more likely that they would continue to help individuals with criminal records trying to get ahead in the workforce while still being consistent with—and even supportive of—larger efforts to promote positive change in the criminal legal system.
I. Mass Criminalization, Employment Barriers, and Partial Solutions
A. The Era of Mass Criminalization
We live in an era of mass incarceration11 and, more broadly, mass criminalization.12 The term “mass criminalization” can be used to refer to a range of problems—here, it is used to highlight the large numbers of people who are marked by criminal records and forced to face the barriers and obstacles that a criminal record often creates.13 Much of the public discourse around mass criminalization focuses on the number of people who are imprisoned today, but that reveals only a small part of the criminalization picture. In addition to the 2.3 million people in prisons and jails in the United States,14 an additional 4.5 million people are under correctional control through probation or parole.15 Even the total number of people under correctional control, 6.7 million,16 does not tell nearly the full story.17
While prison sentences18 and correctional supervision typically come to an end, a criminal record can follow a person for a lifetime. Systems of criminalization extend far beyond prison walls or the front desk of a probation office. A criminal record, which can include felony and misdemeanor convictions, charged offenses, and often even arrest information not leading to a charge, can limit a person’s opportunities in nearly all areas of their lives.
Shockingly, we do not have a clear picture of how many people in the United States have criminal records. Estimates range from seventy million to over one hundred million.19 A Bureau of Justice Statistics (BJS) report using 2018 data identified 112,450,300 individual subjects in state criminal history files.20 That number, however, does not give us a full picture of the number of Americans with criminal records, since not all criminal records are reported and some people have criminal records in multiple states. Using conservative estimates,21 the number of people in the United States with criminal records is nearly seventy-eight million people—close to one in three adults in the United States.22
These numbers, of course, do not affect all people equally. Racial disparities exist at all points in the criminal legal system, from policing to arrest and from sentencing to parole.23 As a result, Latino men are two and a half times more likely than white men to be imprisoned and Black men are six times more likely.24 For people born in 2001, white men have a one in seventeen likelihood of imprisonment in their lifetime, whereas Black men have a one in three likelihood.25 While imprisonment and having a criminal record are not identical phenomena, there are similarly problematic racial disparities in criminal records. These disparities extend to the collateral consequences that arise from these contacts with the criminal legal system. As discussed below, these disparities are compounded by racial discrimination in other areas such as employment.
B. Employment Barriers
People with criminal records face a range of barriers and obstacles to employment. These range from legal or regulatory restrictions that bar them from some occupations to employers’ use of criminal records as a screening mechanism, to the generalized stigma that often accompanies a criminal record. As detailed below, while the term “collateral consequences” is sometimes used solely to refer to formalized barriers created by the state, this Article uses it to refer to the full range of barriers and obstacles that limit life opportunities for people who have had contact with the criminal legal system.26 Just as mass criminalization has grown out of slavery and race discrimination,27 so too the system of collateral consequences has its roots in racially discriminatory foundations.28
Some of the collateral consequences that people face are formalized barriers, including the “legal and regulatory restrictions that limit or prohibit people convicted of crimes from accessing employment, business and occupational licensing, housing, voting, education, and other rights, benefits, and opportunities.”29 The Council of State Governments’ National Inventory of Collateral Consequences of Conviction, a database of these laws and regulations around the country, currently catalogs 44,778 collateral consequences on the books around the country.30 These include restrictions on political and civic participation, recreational licenses, and public housing. Notably, 65% of these consequences concern employment or licensure.31 One might think that licensing restrictions are a fringe issue, but they are not. In fact, nearly one-third of jobs require occupational licenses,32 often extending to such varied occupations as barbers, auctioneers, and pest control applicators.33
Other barriers that people with criminal records face in employment are not formal legal exclusions or bars, though they often feel just as impermeable. The stigma of a criminal record often keeps a person from employment, even if no law is directly on point. While there are many formal restrictions limiting employment options for a person with a criminal record, there are significantly more that work through these informal barriers or obstacles, whether that is a licensing board rejecting an applicant for lack of amorphous “good moral character”34 or an employer preferring an applicant without a criminal record because of a concern about how customers might react to knowing an employee has a criminal record.35
Informal barriers are not erected by direct state action; rather, they stem most immediately from private, individual actors. However, they too exist within our statutory and regulatory frameworks, since stigma is created and reinforced through laws, policies, and enforcement or lack thereof surrounding criminal records, background checks,36 and tort liability,37 among other areas.38 One might well see a form of state action as well where the state has failed to act, for example through failing to enforce race-based anti-discrimination laws, failing to create anti-discrimination laws that would protect people with criminal records, or choosing not to promulgate laws that further limit the ways that criminal records are used.
Whatever the source of the obstacle, it is undisputed that people with criminal records face a significant challenge in employment. Most of these obstacles are based on perception, not the reality of whether people with criminal records might be good employees.39 In a recent survey, only around half of managers and human resources professionals stated that they are “willing” to work with people with criminal records.40 Employers’ expressed concerns about hiring people with criminal records include general stigma-related concerns including how customers41 or co-workers42 might react to knowing that employees have criminal records, legal liability,43 and regulatory constraints.44 Perception is much harsher than reality when we look at job performance of people with criminal records. For those who have hired people with criminal records, however, the vast majority of managers (82%) state that the “quality of hire” for people with criminal records has been similar or better than comparable hires without criminal records.45 Multiple studies have found that when people with criminal records are given job opportunities, they perform comparably to—and sometimes even better than—the general population.46
The vast majority of employers conduct criminal background checks on applicants.47 Experimental studies confirm that a criminal record makes it much more difficult for people to get a job.48 This has become an increasingly significant issue as the number of people with criminal records has increased while, at the same time, accessing those records has become easier due to centralization and digitization.49 Alarmingly, given the increased role of third-party criminal background search companies that sweep digital records, employers are increasingly likely to see information on criminal records that has been erased, sealed, or expunged.50
The significant costs of unemployment and underemployment do not fall solely on the individual with a criminal record. Reduced employment opportunities for people with criminal records are estimated to cost the United States at least $57–65 billion dollars a year in lost productivity.51 Employment—especially good jobs—are consistently featured as a protective factor against recidivism.52 Higher recidivism rates due to decreased opportunities harm communities because of public safety concerns as well as the costs of imprisonment to the individual, their community, and the public.
The barriers that people with criminal records must overcome in gaining employment are multiplied by race discrimination and other forms of discrimination that people of color, and particularly Black people, face. Experimental studies show that white people with criminal records receive job callbacks at rates higher than Black people without a criminal record.53 And having a criminal record has been shown to have a 40% worse effect on the likelihood of getting a job callback for Black compared to white applicants.54 These studies suggest that employers often use a criminal record as a pretext to engage in race discrimination—while this is illegal, it is very difficult to identify and almost impossible to enforce.55 Since Black people are more likely to have a criminal record and are also more likely to face barriers related to employment discrimination, these overlapping systems contribute not only to low employment rates for people with criminal records but also to low resource levels in Black communities and for Black families. The tremendous racial wealth gap in the United States, with white households having on average nearly 6.5 times the wealth of Black households,56 is made significantly worse by low income due to criminal records and imprisonment.57 Employment barriers due to criminal records, therefore, disproportionately negatively affect not only Black people with a criminal record themselves, but also their families and communities.
C. Solutions and Their Limitations
Given the high costs of employment barriers, advocates, politicians, and state officials have been looking for solutions. As the Uniform Law Commission notes, “Most states have not yet developed a comprehensive and effective way of ‘neutralizing’ the effect of a conviction in cases where it is not necessary or appropriate for it to be decisive.”58 States are in the process of experimenting to try to fill that gap.
1. Pardons and Expungement
The more traditional tools for giving someone a second chance, such as pardons or expungement, can have significant positive life-changing effects.59 They are, in many ways, the cleanest and most effective tools for opening up opportunities for people with conviction records because they remove the prior conviction from consideration and often from third parties’ ability to view them. Because of this, they are not dependent on the ways that third parties might react to a criminal history, so the stereotypes, prejudices, and anxieties of people like employers and landlords do not play as big a role as in solutions that depend on how interventions are received by third parties. Despite their significant benefits, however, these are limited solutions because of political feasibility. In most states, pardons are rarely or infrequently granted,60 with many governors waiting until the end of their terms out of concern for political backlash. While expungement laws have recently been expanded significantly,61 they typically include only non-convictions, like dismissals or diversion that still otherwise show up on a person’s criminal record, or a narrow range of specified minor convictions. Felony expungement remains exceedingly rare. Given the positive effects of record clearing, including improved employment and earning outcomes62 as well as their general positive effects on equity of opportunity, there is reason to hope that state expungement initiatives will continue to expand. However, the more expansive proposed expungement laws become, the more political pushback they will receive. At least in the foreseeable future, many people with criminal records will be unable to overcome the significant employment-related collateral consequences of a criminal record through expungement because of limited eligibility. Pardons and conviction expungement also both often require long waiting periods. This makes these interventions particularly unhelpful to people shortly after their conviction or release from prison, which is the time period in which a person with a criminal record is most likely to be unemployed.63
2. Ban-the-Box Legislation
One policy innovation that has entered the field in the recent past is ban-the-box legislation, statutes that prohibit employers from inquiring about criminal history on job applications.64 These policies typically do permit employers to conduct background checks or inquire about criminal history at later points in the hiring process, though some also constrain the ways that employers may use this information. While ban-the-box legislation typically only delays the revelation of a criminal record, the goal of these policies is to help people with criminal records get their foot in the door and give them the opportunity to show that they are the best candidate for the job. Most of these statutes address only public hiring,65 though fourteen states have extended their legislation to cover at least some private employers.66
In the past few years, however, there has been some increased concern that ban-the-box policies may have unintended consequences. For example, some data suggests that employers may discriminate against Black applicants as a proxy for perceived criminality in the absence of individualized information early in the hiring process. For example, a study looking at employment rates by demographic found up to a 5.1% decrease in employment among young, low-skilled Black men after the adoption of ban-the-box legislation.67 Experimental studies sending out fictitious resumes before and after the adoption of ban-the-box legislation in New York and New Jersey similarly showed decreased employment opportunities for Black applicants relative to identical white applicants.68 The jury is still out on the efficacy and side effects of ban-the-box legislation, with some arguing that the response should be to enforce race discrimination laws, not abandon ban-the-box.69 Between these concerns, however, and the more traditional opposition from employers who do not want limits on their access to information, some advocates and legislators are looking to other models. Even in states that have ban-the-box, there remains the issue of how applicants will be treated once their records are disclosed later in the hiring process.
3. Other Anti-Discrimination Legislation
Some states have taken additional legislative steps to protect job applicants with criminal records. Most of these efforts have focused on public employment, such as a law in Arizona requiring that there be a “reasonable relationship” between the conviction and job or license sought for the public employer to deny employment,70 or Louisiana’s similar law requiring that any conviction used as a basis for denying employment “directly relate[]” to the employment sought.71 Others, however, have extended these protections to people applying for private employment. For example, Wisconsin prohibits employment discrimination on the basis of a criminal record in the same way that it protects members of other protected classes (though with many exceptions),72 and Kansas law requires a criminal record to “reasonably bear[]”73 on an applicant’s trustworthiness or on public safety concerns for an employer to refuse to hire someone based on a criminal record.74
Generally applicable anti-discrimination laws that protect people with criminal records come with the significant benefit that they are automatically applicable to all eligible people within a jurisdiction and do not require a specific application. Unfortunately, as with the 2012 Equal Employment Opportunity Commission’s guidance on when consideration of arrest or conviction information may violate Title VII,75 anti-discrimination laws supporting people with criminal records often face enforcement challenges. Of course, most jurisdictions do not currently have strong anti-discrimination laws, and, even with strong anti-discrimination laws, there will be people with criminal records who remain unprotected. These shortcomings leave room for additional needed interventions to help people with criminal records be competitive in job applications.
II. Employment Certificates and Case Studies
A. Overview of Employment Certificate Programs
Alongside the interventions discussed above, another policy intervention being experimented with around the country is an employment certificate program.76 These programs have a wide range of names, including Certificate of Employability,77 Certificate of Relief from Disabilities,78 and Certificate of Qualification for Employment.79 They are referred to in this Article collectively as “Certificates.” The idea behind Certificates is to give a person with a criminal record, which is a negative credential, an official certification that will counteract it as a positive credential. These Certificates often operate by removing legal barriers, such as mandatory licensure and occupational exclusions, that would otherwise attach to a person with a conviction. Many also feature liability protections for employers that hire a person with a Certificate. Some additionally serve as some degree of evidence of rehabilitation. New York is the only state that combines this evidence of rehabilitation with an enforcement mechanism, through New York’s anti-discrimination law.80 While states vary in how early in a person’s reintegration process they may be eligible, Certificates that help people get jobs are also likely to promote further rehabilitation and cut against the risk of recidivism.81 Certificates fit in with the other second-chance initiatives discussed above because each of them is only a partial solution to the problem of collateral consequences. Even if record clearance, ban-the-box, and anti-discrimination protections were in place in a single jurisdiction, Certificates would play their role whenever a person has an eligible record of conviction that cannot be expunged, when an employer runs a background check at later points in the hiring process despite a ban-the-box law, or when a conviction may be related to a position and, therefore, likely unprotected by general anti-discrimination laws.
These initiatives are part of a larger model of “rights restoration,” in which states take steps to mitigate the harmful consequences of a criminal record in order to restore people to their pre-conviction status in areas including employment, housing, and voting.82 This model is often thought of as one of “forgiving” rather than “forgetting” a person’s criminal history, since it does not hide or erase information from the public record.83 Instead, it adds a piece of information for employers or licensing boards to consider. Just as many states have rights-restoration procedures for civil rights that have been lost (such as the rights of firearm ownership, serving on a jury, or ability to hold public office) states are increasingly trying to restore a person’s employability through judicial or administrative processes.
Aside from New York’s Certificate of Good Conduct and Certificate of Relief from Disabilities, which have been around for decades, these certificates are a relatively recent phenomenon. Illinois created its Certificate program in 2006, and Iowa created the first version of its program in 2008. The other current Certificate programs have been created within the past decade. Arizona, Arkansas, California, Colorado, Connecticut, Washington, D.C., Georgia, Illinois, Iowa, Maryland, Michigan, New Jersey, New York, North Carolina, Ohio, Rhode Island, Tennessee, Vermont, and Washington each have some version of a Certificate program.84
The scholarly literature on Certificates has, so far, focused primarily on New York’s decades-old Certificate regime and lessons to be learned from its successes and shortcomings. Joy Radice, in her Article Administering Justice: Removing Statutory Barriers to Reentry,85 conducted a deep dive into the history and evolution of the New York statute, identifying its strengths and weaknesses with an eye toward improving Certificate programs. Heather J. Garretson, in her Article Legislating Forgiveness: A Study of Post-Conviction Certificates as Policy to Address the Employment Consequences of a Conviction,86 expands on Radice’s work by supplementing the statutory and historical analysis of the New York Certificate with a series of qualitative interviews with judges, people with Certificates, people who are eligible for Certificates but do not have one, probation officials, and advocates. Both authors identify issues around access as essential to the success of Certificate programs generally. Alec C. Ewald, in his Article, Rights Restoration and the Entanglement of US Criminal and Civil Law: A Study of New York’s “Certificates of Relief,”87 similarly supplements our understanding of how the New York Certificate works on the ground through structured interviews with probation officers and judges throughout the state of New York. These interviews reveal differences in implementation in rural versus urban areas and add significant color to the on-the-ground practice of Certificate administration in New York. A more recent Article, An Analysis of Certificates of Rehabilitation in the United States,88 takes a national perspective and conducts statutory analysis of different states’ Certificates to assess the likelihood of states giving reciprocity to other states’ Certificates. The outstanding and invaluable Restoration of Rights Project89 tracks the rapidly changing statutes governing rights restoration around the country. This Article is the first to take a close look at the administrative burdens involved in Certificate programs around the country with a primary focus on the way that those burdens affect not just access generally, but the distribution of that access—who is likely able to get a Certificate, and who is likely to be left behind?
To date, there is very little field-based evidence of how having a Certificate increases recipients’ employment prospects. A survey in Ohio, in which researchers attempted to contact all recipients of a Certificate, revealed that 42% of Ohio Certificate recipients reached believed that the Certificate made a difference in their employment search.90 Unfortunately, they only reached a small percentage of recipients.91 In a survey of Washington, D.C. employers, 50% of the surveyed employers said that policies like legal liability protections and certificates of rehabilitation would “significantly increase or influence hiring,”92 which suggests that a Certificate program that limited liability could have a significant effect on job prospects there. The story out of New York is more mixed—qualitative interviews in New York, for example, reveal that some probation officers perceive Certificates as making a big difference, but that others are highly skeptical about their effects.93 A recent study in the health care sector in New York studied outcomes of denial challenges after provisional offers were rescinded because of criminal records. The study showed that a large percentage (20%) of people who challenged denials did have a Certificate, but that a Certificate did not make a significant difference in who was ultimately hired.94
There is some strong experimental evidence that Certificates can have a positive effect on a person’s employment prospects. An experimental study in Ohio, published in 2016, sent identical fictitious resumes to employers. The study found that when the “applicant” informed employers that they had a Certificate, they benefited from much higher call-back rates than when the criminal record was disclosed without a Certificate.95 The positive response rate with no criminal record information was 28.97%, for a disclosed one-year-old felony it was 9.8%, and with a disclosed one-year-old felony with a Certificate of Qualification for Employment the rate was 25.45%—nearly identical to the call-back rate when no record was disclosed.96 This study suggests that Certificates do hold promise for improving employment for people with criminal records. Of course, the best measure of Certificates’ efficacy would be to see how they operate in practice. Unfortunately, no large-scale assessment of the effect of Certificates on real people’s employment yet exists.
Certificates are politically popular interventions, as evidenced by their quick spread to politically diverse states. As criminal justice reforms in general, and reentry in particular, see more and more bipartisan support,97 Certificates might be an easy win for advocates interested in supporting people with criminal records. The popularity of these laws stems, in part, from the fact that they typically provide protection not only to employees but also to employers through liability protections. They also do not involve concealing information either from the public, as expungements do, or from employers, as initiatives like ban-the-box do. These can often feel like a win-win intervention.
Under this framing, states with Certificate programs that have seen low levels of application, issuance, and use of Certificates might assume that even if the programs have limited upside, they have little to no downside. That may not be true, however. The ways that Certificate programs are designed and implemented raise important questions, including questions of equity about who ends up with a Certificate in hand, and of how Certificates may or may not fit in with larger social change. The way many Certificate programs are designed today, people with more resources and privilege are particularly likely to be able to access them, while those with fewer resources and less privilege are less likely. Certificate programs that require an individual to overcome obstacles to earn a Certificate can also reinforce the idea that the obstacles that Certificates are designed to alleviate are personal failings rather than social problems created and reinforced by state law. In most Certificate programs, an individual has to jump through costly administrative hoops and carry heavy, but amorphous, evidentiary burdens98 to get one of these Certificates. This places the onus firmly on the individual affected by these employment barriers, rather than on the state.
The obstacles a person faces to getting a Certificate are administrative burdens. Administrative burdens can be thought of as falling into three buckets. The first is learning costs, which include the time and effort it takes to learn about a program or service, to determine eligibility, to figure out if it is something that brings expected benefits, and to identify the steps one must take.99 The second is compliance costs, which includes financial costs, provision of information and documentation, and other steps taken to respond to administrative demands.100 The third is psychological costs, which includes stigma, loss of autonomy, and stress related to navigating a complex and unpredictable process.101 The way in which these Certificate programs are designed and implemented to minimize or maximize these costs will help determine if, ultimately, they are more helpful or harmful.
B. Case Studies
Below are three case studies that explore three different existing models of administering a Certificate program. These case studies draw on the underlying statutes as well as any administrative rules, regulations, or processes that states have developed. This description is supplemented, where available, with updated information about usage rates and people’s actual experiences of trying to access a Certificate. Each case study briefly presents the background, eligibility and effect, and administration of the state’s efforts at a Certificate program. As discussed below, each Certificate program varies significantly from the others in terms of eligibility and effect. They also vary significantly in the types of administrative burdens—the learning, compliance, and psychological costs—a person would face in securing one of them. Tennessee is presented as an example of a strongly individualistic system of Certificate administration where the burdens are entirely on the individual who must file a motion in state court, and Georgia provides an example of a system in which the administration of the Certificates is almost exclusively managed by a state agency. New York provides an example of a hybrid model, in which the state takes on varying roles throughout the process depending on timing, eligibility, and custodial status. None of these case studies is presented as an ideal model—rather, each provides lessons for ways in which administrative burdens can be lightened for people seeking Certificates. The following Section includes a critique and analysis of the features of these three case studies and of Certificates more generally, as well as lessons learned for a way forward.
C. Tennessee
1. Background and Origins
Tennessee’s Certificate law demonstrates the popularity and political feasibility of Certificate laws generally. The Tennessee Certificate law was drafted and championed by Republican state legislators when it was first passed in 2014. It was then amended in 2017. Both times, the legislation received near-universal bipartisan support in a heavily Republican state legislature.102 The law was touted by its advocates as a solution to the obstacles people with felonies face when searching for jobs.103 The Certificate law received nothing but positive press when it was passed, including being hailed by The Commercial Appeal’s editorial board as “[o]ne of the more important pieces of legislation that came out of the Tennessee General Assembly’s recently ended session.”104 The Jackson Sun declared it “a step in the right direction that could help felons overcome one of the greatest obstacles to becoming productive citizens, getting a good job. It also could help slow the costly revolving door of repeat offenders.”105
2. Eligibility and Effect
The Tennessee law as amended has relatively broad eligibility. The law originally applied to a subgroup of people with felony convictions who had completed their sentences, since it was part of the general rights restoration process.106 After the 2017 amendment, the Certificate of Restoration was severed from the broader rights restoration process, thereby expanding eligibility to all people with felony convictions, though the requirement of sentence completion likely still remains.107
A Certificate may be granted if a court finds by a preponderance of evidence that various factors, such as that a person “has sustained the character of a person of honesty, respectability, and veracity and is generally esteemed as such by the petitioner’s neighbors,”108 the person has a significant need for a certificate, and there would be no unreasonable risk to public safety, are met.109 A court, however, may deny a Certificate in its discretion even if the above factors are all met.110 Denials are appealable only for abuse of discretion.111
The recipient of a Certificate receives two primary benefits. The first is that no licensing or certifying board or agency can deny a person an occupational license or certificate based on the criminal conviction alone.112 Instead, the agency or board must conduct an individualized, case-by-case analysis of whether to grant or deny a license or certification.113 The law provides a significant loophole, however, which permits licensing entities to adopt new rules denying the issuance of a license to a person based on either the time that has elapsed since the criminal offense or the “direct bearing” of the offense on the “fitness or ability of the person to perform” a duty “necessarily related to the license.”114 The second benefit is that if an employer knows of a Certificate at the time of hiring, an employer has complete immunity from a civil claim of negligent hiring of a person with a prior conviction.115 The Certificate statute specifies conditions under which an employer could be held liable for negligent retention, including demonstrated danger or subsequent conviction of a felony.116 A Certificate is also evidence of an employer’s due care in hiring or retaining an employee.117 The use of a Certificate as evidence defending against negligence or other liability extends beyond the employment realm to landlords, schools or other programs, and organizations doing business with a person who holds a Certificate.118 A less formal but equally significant benefit is that the Certificate may informally act as a positive credential that helps an applicant overcome the generalized stigma of a criminal record.
3. Administration
No state agency has any role in making people aware that Certificates of Employability exist or in assisting people to apply for Certificates. In the context of restoring voting rights, state law “urge[s]” judges, probation, and parole to have someone inform a person about the restoration of citizenship rights procedure.119 No law or policy, however, requires anyone to inform a person with a felony conviction of the voting rights restoration process, and no law even urges—let alone requires—judges, corrections personnel, or any other actor to inform people about the Certificate of Employability or provide any other assistance.
In order to secure a Certificate of Employability in Tennessee, a person must file a petition in the Circuit Court of the county of conviction or where the person resides.120 The person filing the petition bears the costs of the filing fees, which vary by county but can easily be a couple hundred dollars.121 Since a person cannot file the petition as part of their criminal case, they are without appointed legal counsel. Legislators discussing the Certificate legislation acknowledged the ways in which this petition would be difficult and costly, including the cost of retaining counsel to advise about the Certificate and advocate on behalf of a petitioner.122 The statute does provide that the Administrative Office of the Courts should create a pro se form,123 which has been done, but it seems exceedingly rare that a person in Tennessee pursues a Certificate pro se. The pro se form essentially parrots the language of the statute, including questions that are difficult for individuals to answer, for example, “[i]nclude each offense that is a disqualification from employment or licensing in an occupation or profession, including the years of each conviction or plea of guilty.”124
4. Usage and Impact
Despite the significant benefits that a Certificate would grant someone, the Tennessee Certificate statute is very rarely used. While the Tennessee Administrative Office of the Courts does not keep data on how frequently Certificate petitions are requested and granted or denied, and this information was not accessible from courts themselves without docket information, it is clear that these are not common even in the largest counties. Inquiries made of Circuit Court clerks’ offices by county paint a depressing picture.125 Of the ninety-five counties in Tennessee, fifty-one of the clerks’ offices contacted indicated that they were not aware of the Certificate at all or incorrectly claimed that they did not have them in their county.126 Another twenty-two indicated that they were aware of them but had never seen one.127 Six indicated that a small number of Certificates have been filed in their court since the law was passed.128 Conversations with reentry advocates in Tennessee reinforce the fact that these are very rarely accessed in Tennessee.129
D. Georgia
1. Background and Origins
Georgia provides another example of the political viability of Certificate legislation. In 2014, Georgia passed legislation creating its first Certificate program.130 The Program and Treatment Completion Certificate (“Certificate”)131 was initially only designed to be issued by the Georgia Department of Corrections for people in prison and on parole. In 2017, the Certificate program was extended so that people on probation can receive the Certificate through the Department of Community Supervision as well.132 These laws were parts of Governor Deal’s criminal justice reform packages, which passed with significant bipartisan support.133
2. Eligibility and Effect
According to statute, the Certificate “symbolize[s] an offender’s achievements toward successful reentry into society.”134 The statute excludes people who have been convicted of certain enumerated violent felonies.135 Rather than the statute’s dictating the parameters of the Certificate, the law directed the Board of Corrections to promulgate rules and regulations relating to the Certificate, simply stating that these “shall take into account an offender’s disciplinary record and any other factor the board deems relevant to an individual’s qualification for such certificate.”136 The 2017 statute has identical language about the effect of the Certificate, but directs the Board of Community Supervision to create “rules and regulations relating to the issuance of such certificate [that] shall take into account a probationer’s violations of the terms of his or her probation and any other factor the board deems relevant to an individual’s qualification for such certificate.”137
Georgia’s Certificate, like a pardon, creates a “presumption of due care in hiring, retaining, licensing, leasing to, admitting to a school or program, or otherwise engaging in activity with the individual to whom the Program and Treatment Completion Certificate was issued or the pardon was granted.”138 A Certificate, therefore, provides assurance to potential employers, landlords, schools, and programs that they would be unlikely to be liable for hiring, renting to, or admitting a person with a criminal record who has a Certificate unless there were other red flags. The Georgia Certificate does not have any effect on mandatory bars related to occupational licensing, though one may not be necessary given Georgia’s licensing law requiring individualized assessment of people with criminal records.139
The Department of Corrections (DOC) has issued Standard Operating Procedures outlining eligibility and the process for receiving a Certificate. The eligibility criteria are clear and largely objective. Under the DOC-promulgated eligibility criteria, a person is eligible for a Certificate if they have not been convicted of one of a small group of enumerated serious violent felonies,140 they do not have an active ICE detainer, they are not receiving a Level IV mental health treatment or higher,141 they have not had any convictions for additional crimes during the current period of imprisonment, have not been found guilty of a high-level disciplinary action within the last twelve months before release, and have not had any refusal or disciplinary withdrawal from programs or treatment within the last twelve months before release.142
In 2017, based on the first two years of data on Georgia’s Certificate program, the Georgia Council on Criminal Justice Reform suggested expanding the program to people on probation.143 As of February 2019, however, the Department of Community Supervision has not issued eligibility criteria.
3. Administration
The DOC regulations provide clear procedures that place the onus on DOC employees, rather than the person in prison, to secure a Certificate for people who are eligible. The DOC regulations state that “[i]t is the responsibility of the Warden, Superintendent or their designee, and the Deputy Warden of Care and Treatment or Assistant Superintendent to ensure that Certificates are issued to eligible and approved offenders.”144 The Certificate contains information about programs and trainings completed and work history during the period of imprisonment, and is automatically populated.145 It is the staff’s responsibility to confirm the accuracy of the information.146 The regulations also obligate DOC staff to make sure people know about the Certificate, eligibility requirements, and its benefits. People in prison are told about the Certificate during orientation and upon arrival at a new facility.147 Staff educate people in prison about eligibility and benefits of a Certificate.148 Once a person’s release date is determined, a counselor meets with a person who is eligible for a Certificate to let them know that that the Certificate will be included in their “release package,” and to “discuss the Certificate’s use and benefits.”149 The Certificate is then automatically provided to a person leaving prison upon their release.150
4. Usage and Impact
The issuance rate of these Certificates to people leaving prison in Georgia is very high compared to Certificate issuance in other states. In the first two years that the Certificate program was implemented and administered through the DOC, approximately 5,000 Certificates were issued.151 Since the Certificates were first issued in 2015, the number has increased each year.152 In fiscal year 2018, “7,662 Program Treatment Completion Certificates were issued.”153 More than half of the population of people released from prison were eligible for Certificates in 2018.154 Interestingly, Georgia’s DOC states that while 9,669 people were eligible, only 7,662 were granted155—this strongly suggests that, despite the automated process that the Georgia regulations have created, some people are still falling through the cracks. In total, as of the end of fiscal year 2018, 18,882 Certificates had been issued by the Georgia DOC.156 The expansion of Certificates to the Department of Community Supervision for people on probation and parole has not yet occurred but has the potential to reach many more people.
E. New York
1. Background and Origins
New York, which has the country’s oldest Certificate legislation by far, is often looked to as the original model for a Certificate. New York’s Certificates, which were first created in 1945157 but then amended and adapted through the 1970s,158 hearken back to an era well before our current era of mass criminalization and mass incarceration to a period in which the rehabilitative ideal was the driving force in criminal justice reform.159 Through the early decades of the Certificate’s creation and development, legislators, with the support of Governor Nelson Rockefeller and wide popular support, took steps to expand access to and eligibility for Certificates, with an eye toward promoting rehabilitation and reentry.160 The evolution and amendments over this period made clear that the Certificates were intended to promote rehabilitation (and be “consistent with” rehabilitation),161 not solely as a reward for past rehabilitation.162
2. Eligibility and Effect
New York has two certificates—a Certificate of Relief from Disabilities (CRD) and a Certificate of Good Conduct (CGC)—which have similar effect but varying eligibility requirements.163 A Certificate of Relief can be issued as early as sentencing when a person has no more than one felony conviction and any number of misdemeanors.164 A person must apply for a Certificate of Relief for every conviction on their record.165 A Certificate of Good Conduct has a waiting period and is available for people with more than one felony conviction.166 The standard for both Certificates is whether the person is eligible, whether the relief to be granted is consistent with the rehabilitation of the person, and whether the relief to be granted is consistent with the public interest.167 Both Certificates remove mandatory168 bars in employment and licensing and require an employer or licensing board to consider their conviction in accord with state anti-discrimination law.169
3. Administration
There are many possible ways that a person in New York might get a Certificate. If a person is not committed to a state prison under the jurisdiction of the state Department of Corrections and Community Supervision (DOCCS), the sentencing court is the authority that may issue the Certificate of Relief from Disabilities.170 This could be issued at the time of conviction,171 or at any time after. However, if a person is sentenced to state prison time, or if a person is attempting to get a Certificate for a federal or out-of-state conviction, then DOCCS issues the certificate.172 DOCCS is the only institution with the power to issue a Certificate of Good Conduct.173
Judicial grants, particularly at sentencing or early on in the reentry or reintegration process when they would likely be most helpful, are unpredictable and all-too-rare.174 Despite the low standard for granting a Certificate that is written into the statute—that a person be eligible and that granting it be consistent with the rehabilitation of the person and with the public interest175—judges typically create higher standards when a request is before them. While some judges grant certificates routinely,176 that is not the norm. Despite clear statutory language that a person is eligible for a Certificate at the time of sentencing, judges instead often prefer to have a person convicted of a crime “earn[]” the Certificate over time.177 Former Probation Commissioner Vincent Schiraldi commented that getting a judicially-granted Certificate is “completely roulette.”178 Since sentencing grants are so rare, most Certificate applicants return to court months or years later,179 when they no longer have their appointed defense attorney by their side. People, therefore, would need to navigate the Certificate application process themselves—collecting criminal history information, specifying the relief requested, and collecting and attaching evidence of rehabilitation—or they would need to hire another lawyer.180
Submitting the application involves hassle and uncertainty. As the New York Courts website notes, “Different Courts follow different procedures for CRD applications.”181 Applicants are encouraged to look up and then call the court that sentenced them for each offense, and ask the following questions:
[1] How do I submit my application, can I mail it, if so, where? [2] Do I have to get a probation report, and if so, how? [3] Do I have to submit my fingerprints, and if so, how? [4] Will I have a court date and hearing? if so, when? [5] How do I find out the Judge’s decision on the CRD? Do I have to submit a self-addressed stamped envelope?182
There is also a lack of clarity about what will happen after an application is submitted. Courts typically, but not always, refer the application to probation, which investigates and issues a report. Probation officers’ approaches to Certificate recommendations vary widely. Notably, probation officers’ approaches to Certificates often mirror those of the judges in their district, as probation officers often consider the judge’s view of Certificates in making their recommendations and reports.183 Judges’ approaches to Certificate requests appear to be “diverse,” with some taking the approach of, “If they’re eligible, I’ll give it to them,” and others wondering, “Is there something compelling, such that I should lift the onus of a criminal conviction from this person?”184 Judicial assessments of whether to grant Certificates, particularly outside of New York City, frequently use more stringent standards than those in the statute.185
Despite lacking a legislative mandate to do so, the New York City Probation Department has been a leader in educating the public, people on probation, judges, and attorneys about Certificates. For example, New York City Probation has held Certificate of Relief Days where eligible people are invited to the courthouse, told about the Certificate, and probation officers help them fill out the paperwork and send it into the courts.186 New York City Probation also hosts detailed and helpful Certificate information on its website.187 Non-profits and public defender offices, particularly those in New York City like The Bronx Defenders and the Neighborhood Defender Service, have also taken a lead in identifying collateral consequences that clients face and pushing for the grant of Certificates at sentencing or soon after.188
For people in DOCCS custody, the process looks much different. DOCCS, in contrast to the individual judges throughout New York State, has the capacity to create and pursue policies that would more systematically get Certificates into the hands of people who could benefit from them. In 2005, the Department of Parole (which was later merged into DOCCS) created a policy that they would issue Certificates to eligible people in prison when they are paroled.189 Today, this policy requires DOCCS staff to identify people in prison who are eligible and to fill out the application for a Certificate of Relief on their behalf when they are approved for release.190 The application is then submitted to the Superintendent, who determines whether to grant the Certificate or defer it for twenty-four months.191 The directive directs the Superintendent to grant the Certificate if it is “consistent with the rehabilitation” of the person and “consistent with the public interest.”192 It also includes a requirement that the Superintendent defer the grant of the Certificate if the person was subject to significant discipline or lost “good time” within the past year, or if the underlying offense of conviction was sexually motivated or one of a small number of specified offenses.193 If a Certificate is denied for other reasons, the Superintendent must issue a Notice of Deferral.194
People who do not receive a Certificate when paroled have a much more arduous process. DOCCS does not have a similarly streamlined policy for non-paroled applicants. Instead, it has an application that requires a person to include tax documentation, employment documentation, and criminal record information including dates of commitment. The form also includes warnings about falsification and requires notarization.195
4. Usage and Impact
There is no centralized data available concerning judicial grants of Certificates in New York.196 Information from interviews with probation officers makes it clear that only a very small proportion of eligible people seek Certificates.197 Judicial grants at sentencing remain infrequent, though they vary by county and judge,198 with judges more likely to grant Certificates once a candidate has shown success in supervision.199 One rare data point is that, in 2012, the New York City Probation Department Certificate days resulted in over 2,000 Certificates being issued.200
Since the DOCCS policy change in 2005 concerning people receiving parole, the number of Certificates granted by DOCCS has increased significantly.201 This trend continued under 2012 policy directives.202 In 2015, 2,033 Certificates of Relief were issued at the time of release, 1,724 in 2016, 2,064 in 2017, and 2,197 in 2018.203 Of course, policies are only as good as their implementation, and there is evidence that implementation of DOCCS’s policy to provide Certificates to eligible people on their way out of prison is “sporadic at best,” with formerly imprisoned people reporting in interviews that they were not given a Certificate at the time of their parole.204
In contrast, DOCCS grants for people who were not paroled remain low. In 2015, DOCCS issued only 337 CRDs and 335 CGCs; in 2016, 315 CRDs and 302 CGCs; in 2017, 206 CRDs and 247 CGCs; in 2018, 259 CRDs and 202 CGCs.205 These numbers for people who were not assessed for a Certificate during the process of being released on parole are much smaller, despite the fact that there is a much larger pool of potentially eligible people. The extensive information required, and the lack of institutional agency support, no doubt turns away a significant number of people who are otherwise eligible.206
III. Certificate Critiques and a Path Forward
Certificate legislation has proven to be a politically popular step to take to support reentry and reintegration. While even proponents of these policies do not think that they will be a silver bullet addressing collateral employment consequences, they are typically thought of as having upside promise and little downside cost. As evidenced by the three case studies of Certificate regimes in Part II, there is tremendous variation in these programs, particularly concerning eligibility requirements and the statutory effect of a Certificate. There is room for improvement on both axes for every state that has adopted a Certificate program. These areas, while important, are not the focus of this Article.
Even the most expansive eligibility standards and strongest effects will not improve people’s lives unless great care and attention are paid to how the Certificate programs are administered, with specific attention to who ultimately is able to access these Certificates. The greater the administrative burdens involved in a Certificate program, the more likely it is that Certificate programs will not reach as many people as they otherwise could and will continue to have limited impact. Even more worryingly, the greater the administrative burdens involved in securing a Certificate, the more this rights restoration process will be inaccessible for those with the fewest resources. This not only limits the upside benefits these programs might have, but it can also create unintended negative effects by increasing the already-significant inequity and disparities within the criminal legal system on the bases of race and wealth.
This does not, however, mean that Certificates necessarily are a failed experiment. Now that many states have a few years of experience with their Certificate programs, the time is ripe to reevaluate how these programs are designed and administered. This Part provides a theoretical and practical framework for critiquing and moving forward with Certificate programs that centers concerns about administrative burdens and how they relate to access and equity. The first section of the Part presents theories of both the state interest in promoting reintegration of people with criminal records and of administrative burdens as tools of policy design. This Part then draws on the three case studies above, as well as additional examples from around the country, to highlight administrative burdens—the learning, compliance, and psychological costs—that are features of existing Certificate programs, as well as efforts and proposals to lower those burdens. This Part ends with a discussion of how Certificates may fit into—or be in tension with—movements for broader change in the criminal legal system.
By making explicit the possible theoretical framings behind Certificate programs and understanding the role that administrative burdens play in creating and shaping Certificate policies, we can think proactively about how best to design Certificate and other second-chance initiatives. When that design is undertaken with a goal of ensuring that Certificates are not yet another facet of the criminal legal system that disadvantages and discriminates against people based on poverty and race, and with an eye toward how Certificate programs intersect with other criminal legal system policies, Certificates have a greater likelihood of playing a positive role in promoting opportunity and equity.
A. The State Interest in Successful Reintegration
Why should states create second-chance interventions like Certificates? The way that states view the purpose of these interventions can shape what these programs look like. Certificates could be viewed primarily as a tool of individual advancement—something an individual might earn to increase their employment prospects and earning potential. Or, even more narrowly, Certificates could be a reward for someone who has successfully rehabilitated himself against the odds, with the Certificate operating to remove barriers that seem unfair only in his individual case. Under this view, it might make sense for Certificates to have high standards and be designed to reach only a small number of seemingly-exceptional people, the worthy few. This type of intervention would be designed not to address in any way the system of mass criminalization, but to merely correct occasional discrete examples of individuals who no longer “deserve” to be marked by their criminal records because of their records of success.
This individualistic perspective, however, loses sight of who truly benefits from Certificates. Not only do people with criminal records benefit, but so do businesses that are interested in hiring people with criminal records and the state itself. As Joy Radice compellingly argues in The Reintegrative State, “there is a state interest, if not an obligation, to create an intentional and sequenced process to remove civil legal disabilities triggered by a conviction and to mitigate the permanency of public criminal records.”207 The state’s interest is in removing the continuing collateral consequences and sanctions of a criminal conviction that are created by the state208 when their costs outweigh their benefits.209 The state interests include public safety, ensuring criminal punishments are not excessive, economics, racial equity, and the moral values of redemption and forgiveness.210 While an individualistic framing opens the possibility that administrative burdens may serve a positive function, for example as an “ordeal mechanism”211 to weed out the undeserving, framing that focuses on the benefits to the state and the broader community highlights the costs of such an approach.
Framing Certificate initiatives in terms of not only the individual, but the collective and state interests highlights the negative role that unnecessary barriers and burdens play in Certificate administration. Standards that are too high, and processes that are too burdensome, work against state interest, as well as the interests of individuals, and present often-insurmountable barriers.212 This framing would also be more likely to reinforce a narrative about the criminal legal system that centers individual actions, while the latter is more consistent with a narrative about mass criminalization and its systemic factors. The way that lawmakers understand the purpose and goals of Certificates—as an individual safety valve or as a tool for promoting the state’s interests in reintegration—can shape the way these programs ultimately look. If legislators properly consider the many benefits that the state and community reap from successful reintegration, they should be particularly attuned to the urgency of reducing administrative burdens in the Certificate administration process. And this urgency is further heightened if they consider not only the value of reintegration, but also the role that Certificates may play in promoting rehabilitation, to begin with.
B. Administrative Burdens as Policy Levers
Anyone who has ever waited in line at the DMV is intimately familiar with government bureaucracy and red tape. But we do not often think about these hassles as tools for shaping public policy. The concept of administrative burden helps us see how and why the existence of these burdens shapes what our policies look like and what effect they have. In Administrative Burden: Policymaking by Other Means, Pamela Herd and Donald Moynihan argue that administrative burdens are not just the unintended byproducts of policymaking. Instead, they explain that administrative burdens are constructed, and are the product of political and administrative choices.213 Administrative burden decision points include both how heavy burdens should be and who, between the individual and the state, should shoulder the burdens. The shape that burdens take is affected by resource allocation decisions, decisions about whether we are more concerned about over- or under-inclusiveness in program access, and political calculations about who should benefit from, and who should be excluded from, particular policies. For example, administrative barriers and red tape can limit the number and type of people who can benefit from a welfare benefit even if the authorizing statute would suggest much broader reach and eligibility.214
Administrative burdens, then, are products of policy decisions and, in turn, also shape policies on the ground.215 Rather than being flaws in the system, they are often features.216 Sometimes administrative burdens are designed fully intentionally, other times they are intentionally created without understanding their full impact, and other times they are created based on unspoken assumptions.217 Administrative burdens are policy-making tools that have real distributional effects. As Herd and Moynihan explain, “[a]dministrative burdens play a central role in determining when, how, and where goods, services, and rights are distributed and, in practice, who is likely to receive them.”218 These distributive effects, in turn, are likely to harm groups with fewer resources more than others.219 Not only are administrative burdens most likely to fall on people with fewer resources, but people with fewer resources are less likely to have the resources to overcome those burdens.
On their face, these costs and resource concerns sound primarily in the register of wealth-based disparities and discrimination. This alone, of course, is deeply problematic for all who believe that our criminal legal system should not treat people differently based on their wealth. However, given the fact that Black and other non-white people involved in the criminal legal system are particularly likely to have significantly less wealth,220 suffer a greater criminal record “penalty” in employment,221 and generally have a harder time getting a decent job due to race discrimination,222 wealth-based disparities disproportionately disadvantage people of color, particularly Black people involved in the criminal legal system.
Those who need to access a resource like a Certificate are likely to already be disadvantaged given the race- and class-based disparate impact of our criminal legal system and the resources needed to overcome those burdens are particularly likely to be out of reach.223 These burdens can be so heavy that they can lead to “administrative exclusion.”224 The administrative burdens connected to rights restoration generally, and Certificates specifically, therefore, can exacerbate inequality225 even while those pushing for these laws and policies may have hoped that they would play a positive role in reducing inequality.
By making the existence and impact of administrative burdens on Certificate policies explicit, advocates committed to opposing the race- and class-based hegemony of the system of mass criminalization can push for policies that truly pursue their goals and can work to avoid policies that appear to pursue their goals while actually undermining them. Strategic thinking about the goals of these programs and their attendant administrative burdens can promote the success of Certificate programs. If we fail to do so, however, we may be promoting the appearance of positive change while reifying and reinforcing race, class, and other resource-based disparities.226 Where, as in the Certificate space, unnecessarily heavy administrative burdens are likely to exacerbate class- and race-related disparities connected to the criminal legal system, the benefit of information about someone’s ability to overcome burdens is outweighed by the heavy attendant costs.
Policymakers, including politicians and administrators, “can deliberately alter burdens to generate a behavioral response that aligns with their preferred policy outcome.”227 Heavy burdens will keep people from getting Certificates, while lightening those burdens will make these interventions more widely accessible. If we believe that broader accessibility comes with social benefits, that suggests that the process of learning about and applying for a Certificate should not be part of the “test”228 for determining whether someone is worthy of getting a Certificate. While someone’s willingness to overcome burdens may tell us something about how much they want the end product, this concept fails to take into account perspectives from behavioral economics about people’s seemingly irrational behavior as well as differences in resources and human capital that affect a person’s ability to overcome administrative burdens.229 The administrative burdens involved in Certificate programs, then, should be evaluated for necessity and, when necessary, be adapted to be as little an obstacle as possible. Where possible, given the state interest in not further exacerbating inequality and in successful employment outcomes for people with criminal records, burdens should be shifted from the individual to the state. While this might increase costs to the state in the short term, this approach would better reflect the state’s interests in reintegration as well as the fact that the state, in many instances, is the least cost provider of the information used in Certificate assessments. The discussion that follows identifies administrative burdens in Certificate programs around the country and possible alternatives to lower those burdens and increase access and equity.
C. Administrative Burdens: Lessons from Practice
1. Learning Costs
The way that people learn about Certificates varies significantly across states with these programs. Jurisdictions that make it more difficult for people to learn about Certificates, or that do not take affirmative steps to promote people’s ability to learn about Certificates, have higher learning costs. When people do not know Certificates exist, do not know how to begin learning about the process, and do not understand the role that collateral consequences play in constructing the obstacles they face to employment, they are not going to benefit from even the most generous eligibility requirements and the strongest possible effects.
a. Notification
The Certificate programs discussed above vary significantly in whether and how people might be notified about Certificates. In Tennessee, no individual or agency is mandated to inform people who may be eligible about the Certificate. While state law “urge[s]” various actors to inform people about rights restoration generally,230 no criminal legal system actor is required to do so. As a result, in practice, no one takes on the responsibility for informing people about this option, and almost no one in Tennessee is aware of the Certificate program.231 Therefore, despite the legislation’s relatively broad eligibility, very few people have benefited from the legislation creating the program.
In contrast, in Georgia, DOC staff are obligated by policy to inform people about their version of a Certificate when they first enter a facility and at various points during the discharge planning process.232 Of course, it is easier to lower learning costs for people who are in prison and who are eligible to earn a Certificate during their imprisonment than it is when trying to lower learning costs for people who have already been released or who may never have been imprisoned at all.
In New York, there is a statutory requirement that judges advise all defendants of their eligibility for a Certificate,233 though in practice many judges regularly fail to do so.234 Since people may be eligible for a Certificate as early as sentencing, a person may learn about a Certificate from their defense attorney. Based on DOCCS policy, people who are eligible for a Certificate who are being paroled should automatically be considered for a Certificate.235 Sometimes people who are on probation are encouraged to apply by their probation officers. People who are not being sentenced, being released on parole since the advent of this policy, or informed by their probation officers, however, would have to figure out what a Certificate is and why they might want one on their own.
One lesson out of New York is that just because a statute mandates that a judge or other actor inform a person about the possibility of a Certificate does not mean that the actor will actually do so. Despite such a requirement in law, many judges still do not.236 This means that mandatory notification must not only be written into statutes and policies, but it must also be monitored and enforced, for example, through an obligation that notification be noted on the case file or a docket sheet in a way that can be audited. Similarly, when agencies are in charge of informing individuals about Certificates, the agency can take steps to collect information to ensure compliance. Mandatory notification and accountability could lower learning costs for individuals, whether those requirements are applied to judges, an agency, or both.
Where jurisdictions do not take steps to inform people about the possible obstacles related to collateral consequences of a conviction and of the possibility of a Certificate to help with that process, fewer people are likely to identify a need for a Certificate or to know that the program exists or where to begin. The people most likely to get Certificates, then, are people with more resources. A portion of the people most likely to learn about Certificates, even in states that do nothing to reduce learning costs, include those with the most to lose in the short term. For example, people with licenses for relatively high-paying jobs that are revoked because of criminal convictions are more likely to have the resources and to be willing to invest them in figuring out a way forward. Similarly, people who can afford lawyers to help navigate employment situations and reentry needs are also more likely to learn about Certificates.
b. Complexity
Learning costs also include the administrative barriers related to learning about the steps one must take to apply for a Certificate. Having unnecessary complexities in the law itself heightens these costs. For example, New York’s two types of Certificates, though they have similar effect, have been rightly critiqued as leading to unnecessary confusion237 that makes it harder for people to overcome the learning costs involved in applying for a Certificate. New York’s multiple pathways to getting a Certificate may also increase learning costs, though some of these pathways may come with corresponding benefits as far as compliance costs (discussed below), as some, like through the parole process, are easier than others. Having multiple “on-ramps” for Certificate programs, therefore, comes with costs in one area and benefits in another. This, however, is not necessarily a wash—the state could take further steps to lower learning costs for the various paths while still offering them, for example, through creating accessible resources that help people learn the various processes and ensuring that state actors take an active role in informing people about their possible paths to a Certificate at different points in the criminal legal system process.
In Tennessee, the Certificate statute simply says that a person must file a motion in Circuit Court.238 A lay person without a lawyer would likely have no idea what it means to file a motion. Even though the state of Tennessee does provide a blank pro se motion form,239 which a person can find if they know that a Certificate exists and know the proper terms to search for,240 it does not include any information about how to fill it out, the process for filing, or what comes next. Instead, state websites suggest that a person speak with an attorney,241 which, of course, requires resources. Since a person is not eligible for a Tennessee Certificate at sentencing or while they are in jail or prison, a person is unlikely to be connected with a lawyer or relevant state agency at the time of application.242 This is in sharp contrast to Georgia, where there is no process for an individual to file for a Certificate other than through the state-controlled and state-managed process.
Lessons from the case studies above show the importance of the state’s role in informing people of the existence of a Certificate, the ways in which they might benefit from a Certificate, and about the steps they need to take to secure a Certificate.
c. Timing
Both New York’s and Georgia’s Certificate laws demonstrate ways that learning costs can be reduced because of the timing eligibility. In New York, where a person may apply for a Certificate as early as sentencing,243 a person has the possibility of having a lawyer by their side at the time they consider requesting one.244 Of course, in practice, judges’ willingness to grant a Certificate at sentencing is not something that can be relied on,245 but even just the possibility of receiving a Certificate at sentencing increases the likelihood that a lawyer might tell a client about this possibility, thereby shifting the learning costs from the individual to a third party.
Public defender offices and civil legal aid offices have gotten increasingly involved in attempting to mitigate collateral consequences,246 and Certificates can play an important role in that. Having lawyers who are already representing a person advocate for a Certificate at sentencing fits in well with the state’s interest in minimizing unproductive barriers, the third party’s commitment to serving their clients and reducing collateral consequences, and, of course, for the individual seeking a Certificate. Not only does it serve each of these interests, but it does so in an efficient manner, since a lawyer would already be familiar with their client’s background and context.
Even when Certificates are not available at sentencing, learning costs can be reduced by making people eligible for a Certificate while they are still under state supervision. In Georgia, while a person is not eligible for a Certificate at sentencing, their eligibility is tied to their supervision status.247 Although this limits eligibility, it also provides a clear path through which a person must be in close contact with a state agency to be eligible for a Certificate, which in turn makes it easier to shift learning and other costs to agencies rather than the individual. Georgia’s clear regulations requiring that people entering the prison system be notified at specific points by particular actors of the Certificate,248 its eligibility, and its effects may be a useful model for other states as they experiment with how to assign responsibility for notification and information in a way that reduces learning costs. Other states considering creating or revising their Certificate programs could promote access by permitting eligibility while a person is under supervision, while still retaining alternative routes for people who are not.
2. Compliance Costs
Once a person learns about what a Certificate is, how it might help them, and general information about how to apply, the next administrative burdens they face are the compliance costs, the costs of actually applying for a Certificate. One common feature of Certificate legislation that raises compliance costs is a mismatch between the standards used in issuing Certificates and the important but limited effects these have. High standards for receiving Certificates can be written into the laws themselves, such as when laws require proof of rehabilitation249 or good character,250 or they can be added by decision-makers like judges. Does a person need to be fully rehabilitated before they can have a decent job? Does a person need to have a character of respectability in his community to be able to earn a living? These standards are not in line with the benefits or effects of a Certificate, particularly given the social benefit we receive from people with criminal records accessing employment. In the realm of occupational licensing, the effect of a Certificate typically lets a licensing board conduct an individualized assessment—it does not mean someone will necessarily receive a license. A recent study demonstrates that while there remain significant licensing barriers for people with criminal records, the vast majority of these restrictions are discretionary (such as including assessments of “good moral character” that involve an individualized determination) rather than mandatory.251 For the effects on employers’ potential liability, while employers do receive protection from negligent hiring and retention claims, this is typically only a presumption—employers still must act reasonably based on employee conduct. When the hoops to jump through are too difficult and the standards are too high, this adds unnecessary burdens on people who already have to work particularly hard to get ahead.
a. Filing Fees and Court Debt
Perhaps the most obvious of the compliance costs are direct financial obligations related to applying to receive a Certificate. Many states have filing fees when people apply for Certificates. For example, in Tennessee, filing fees vary by county but can be hundreds of dollars.252 Similarly, in Ohio, fees vary by county, ranging from no fee to as high as $300.253 Many states require that a person have fully completed their sentence before being eligible for a certificate. Where financial obligations such as restitution, fines, and court fees are part of the sentence, a person who is unable to pay will be ineligible for a certificate.254
Some states, like Tennessee, are reconsidering the high filing fees that historically have accompanied other reentry-related filings, like those around expungements. Whereas the state previously imposed hundreds of dollars to expunge a judicially diverted charge,255 for example, the state has now repealed those filing fees.256 The state also removed the $180 state expungement fee for some convictions.257 These changes were made in acknowledgment of the positive social effects—increased employment and access to housing—that come from access to expungement.258 States should extend this logic to other efforts to reduce collateral consequences, like Certificates, and remove filing fees and other financial burdens to accessing Certificates.
b. Costs of Court Process
Compliance costs continue to proliferate if a person seeking a Certificate needs to secure a lawyer and go to court. Some Certificate processes are so complex that a person who wants to access a Certificate would likely need a lawyer to help navigate the process. For example, when legislators debated amending the Tennessee Certificate law discussed below to make it more easily accessible, they assumed that a person seeking a Certificate would still need a lawyer to help them with the process.259 They just believed the modified procedure would make that proposition less costly.260 While jurisdictions that have immediate eligibility, like New York, have an easier time connecting people with legal services since they are already represented by their criminal defense attorney at the time their criminal case is resolved, other jurisdictions that have delayed eligibility do not give their citizens that opportunity. Other compliance costs proliferate when the process requires people to appear in court or in front of a decision-making body—these include getting to and from courthouses, taking time off from work, and arranging childcare. Processes that permit application without going to court, or even that create the ability to apply online or by mail,261 lower these costs significantly.
c. State Record Information
Another source of costs in terms of money, time, and know-how is getting and making sense of the information needed for a Certificate application. In many states, applicants must assess their own eligibility, collect criminal history documentation, and identify the ways in which their criminal conviction is holding them back. Even getting copies of these records often comes with financial obligations as well, whether through running a state background check262 or paying for copies of criminal court records.263 For example, while in North Carolina the petition form is designed to be accessible through use of checkboxes, the application form still asks not only about prior convictions, but also demands completion of the file number, date of conviction, general statute and offense description, class, and date of sentence.264 Instructions “helpfully” say: “If you do not have this information on hand, you may want to review your case file in the Office of the Clerk of Superior Court.”265 Illinois has attempted to create a clear guide for applicants about how to read their criminal records, but, despite their best efforts and multiple pages of charts, this remains an exceedingly difficult task for someone without a background in criminal justice.266 On top of the onerous process of collecting and making sense of criminal history, applicants often must collect and present evidence of rehabilitation, family and community ties, and other factors that a decision-maker may want to consider. This process could include requesting transcripts and certifications, requesting letters of support from one’s social network, and collecting banking and pay stub information. Where jurisdictions use high but amorphous standards, like showing “rehabilitation”267 or good character,268 an applicant may be particularly likely to feel overwhelmed by the costs of collecting evidence.
This burden around criminal records in particular could easily be transferred back to the state, since much of the documentation required is already in the state’s possession. When collecting and identifying relevant criminal record history, the state, as opposed to the individual, is in the position of the least cost provider—it is much less costly for the state to do this than for an applicant. In Georgia, given the exclusive role of the state agencies in identifying possible applicants and applying for a Certificate, the state takes on this role entirely and includes collecting information and records about people’s programs and conduct while imprisoned.269 In New York, agencies like the Department of Probation or DOCCS at least sometimes play this role in assisting applicants with the materials needed for their consideration.270 In contrast, in states like Tennessee, Ohio, North Carolina, and Illinois, applicants must navigate obtaining and analyzing these complex records themselves. This is an area that is particularly appropriate for an increased state agency role in promoting Certificates and successful reentry and reintegration.
d. Employment History and Collateral Consequences Information
Beyond collecting and making sense of criminal record information, Certificate applications also typically weigh heavily information related to employment history and goals. Even collecting basic employment history can take significant time and can make or break an application. In Ohio, more than one-third of the application is dedicated to employment history.271 Some states make the process even more difficult by requiring proof of employment history beyond self-reporting. For example, in New York, one of the methods of receiving a Certificate requires applicants to submit two years of W-2s and tax records.272 Some states not only require employment history information, but go further by requiring the applicant to identify the specific ways in which their criminal record is holding them back from opportunities. In New Jersey, by statute, an applicant must
establish[] that a specific licensing or employment disqualification, forfeiture, or bar, will apply to the applicant, and may endanger the applicant’s ability to maintain existing public employment or employment for which the applicant has made application, or to engage in a business enterprise for which a license or certification is required[.]273
Even more specifically, the fifteen-page Ohio application for a Certificate requires applicants to “[d]efine the name or type of each collateral sanction for which you are requesting a certificate of qualification for employment.”274 While employment history and goals may well be relevant to a Certificate determination, it is also costly for an individual to figure out, collect, and present.
The means of asking for this information often do not align with the goals or effect of a Certificate. A Certificate in Ohio, for example, both removes specific collateral consequences outlined in law as well as provides general wrongful hiring immunity to employers,275 which would be helpful to any job applicant. In addition, all people with criminal records face collateral consequences in searching for employment, even if they are not formally barred from a particular occupation or license. Acknowledging that, the Ohio Certificate statute notes that a Certificate may be used for general employment purposes, referring to the employer immunity provision of the Certificate legislation that would help all job-seekers regardless of a particular bar or collateral consequence.276 The requirement that a person specify the specific collateral consequences they face, therefore, does not properly align with the effect of Ohio’s Certificate and also imposes significant costs on an applicant. While an Ohio non-profit created a website as a resource to simplify the process for people with Ohio convictions who are trying to figure out what collateral consequences may apply to them,277 the website itself highlights the challenges people face in identifying which collateral consequences are specifically holding them back. For example, even misdemeanor theft comes with over three hundred identified collateral consequences.278 The website is one example of ways in which non-profit organizations or state agencies can take on roles in providing information to applicants to help them navigate the Certificate process. However, it also highlights the question of what information is actually needed to make an appropriate determination of who should get a Certificate. Even more effective than shifting some of the work to a third-party non-profit or agency would be eliminating questions that ask a lot of applicants but provide little helpful information to the Certificate decision-makers.
3. Psychological Costs
A third type of administrative burden is the psychological cost of applying for a Certificate. Certificate application processes that require applicants to go to court present significant psychological costs. For many people with criminal records, the courthouse is a site of pain, fear, and even trauma.279 Often, the periods during which people were involved with the criminal legal system are some of the lowest points in their lives, and people are loath to re-open old wounds. Many Certificate processes require either appearing in court, being interviewed by probation, or otherwise revisiting sites of past trauma and helplessness. That alone can be so significant a burden that a person is unwilling to go through with the Certificate application process.280 One way to lessen this barrier could be to structure a Certificate process in a way that does not force a person to go into court or to interface with probation or parole. Another way to address this is to structure timing-related eligibility so that a person is already in contact with the court or agency that can grant a Certificate. This includes, for example, Georgia’s system of granting a Certificate as a person is on his way out of the prison system281 or New York’s policy of considering parolees for a Certificate as they go through the parole process.282
The subjective and amorphous standards at play in some Certificate programs, asking whether someone is rehabilitated or of good character, for instance, may create their own additional psychological costs because of how a denial could reflect on a person’s sense of self and on the way a person is viewed by their social network.283 If a person presents information about their life and reaches out to her network to get letters of support and then is denied a Certificate, for example, she risks losing face in her community and losing a sense of motivation and pride in her path.284 This risk is likely heightened due to the unpredictable and highly subjective nature of many of these inquiries.285
The questions included in Certificate applications and the weight given to them in evaluating an applicant may also heighten psychological costs. For example, the heavy focus on employment history may turn away applicants with sparse or non-existent work histories, even if a person has other evidence that would warrant their getting a Certificate and even if that person would be more likely to get a job with a Certificate in hand. This is also likely to reflect patterns of criminalization and job discrimination, particularly of and against Black people. Extensive work history inquiries are another area in which questions may not be calibrated to the purpose or effect of the Certificates, and it illustrates how unreflectively high standards can raise psychological costs as well as compliance costs.
Third parties like non-profit organizations can play an important role in framing Certificates in a way that limits the psychological costs. Messaging about Certificates and their recipients can shape the way that these programs are perceived and understood by people who would stand to benefit from them. While positive messaging from government actors would likely lower the psychological costs involved, messaging from trusted service providers and community-based non-profits may be even more powerful in shaping how people who would benefit from Certificates see these programs and the costs and benefits involved in getting one.286
4. Administrative Burden Take-Aways
All of these costs—learning, compliance, and psychological—make it less likely that people who could benefit from Certificates would access them. They also raise significant equity concerns because these high costs make it much more likely that the people who would be able to access Certificates are those with more resources. The financial costs of filing fees and paying off court debt are more easily borne by those with financial resources while they are often insurmountable for people who are poor. People who can pay for an attorney’s help in applying for a Certificate are more likely to navigate the costs of collecting and presenting evidence of criminal history and of rehabilitation than those who cannot.
While any person with a criminal record could benefit from a Certificate, given the high administrative burdens involved in learning about and securing a Certificate, the people most likely to be motivated to access Certificates are people who have the most to lose in the short term.287 In fact, there is evidence that people who are at risk of losing or not regaining occupational licenses or jobs they held prior to conviction are particularly likely to pursue a Certificate.288 This is unsurprising given the fact that people are likely to delay or forgo accessing a benefit that has costs in the short term and uncertain benefits in the future,289 and that people are more attuned to losses than benefits.290 Decision-makers, particularly judges, also seem particularly likely to grant a Certificate when there is an immediate need.291 Since people who have the most to lose—an occupational license, a good-paying job—are the most likely to jump through the hoops and to withstand the obstacles needed to access a Certificate, the people most likely to end up with a Certificate in hand are likely to have had a history of well-paying, valued employment. People with fewer resources, at least historical resources, are less likely to access and, therefore, to benefit from these Certificates.
When designing a Certificate program, states need to center thinking not only about eligibility, standards, and effect, but also about administrative burdens and their distributional effects. This new focus would be most impactful if combined with a reframing of rights restoration as a state interest, and not only an individualized process where a person can earn back something they lost. An administrative burden focus would require states to identify what standards and processes are truly necessary given the goals and effects of Certificate programs, and would need to calibrate their Certificate programs accordingly.
One exciting new development in the area of collateral consequences and reentry is the recent rise of automated processes designed to help people move on after contact with the criminal legal system. In 2018, Pennsylvania passed the first law to retroactively seal misdemeanor records in the Clean Slate Act,292 and Utah, California, and New Jersey have followed suit in 2019.293 This move to automatic sealing or expungement is a response to the very low response rate for people eligible for expungement. In one study of Michigan’s set-aside law, researchers found that only 6.5% of those eligible for expungement successfully completed Michigan’s application process within five years of when they became eligible.294 This is despite the fact that the study also found significant positive effects of expungement, with recipients seeing an average increased income of 25% within two years of expungement.295 Scholars studying the reach and benefits of post-conviction efforts to lessen negative consequences of convictions suggest that automatic processes are one way that these programs could reach a broader range of people and benefit individuals and society more broadly.296 Voting rights is another area of rights restoration in which some states have created automatic processes to restore rights to people with felony convictions, leading to much higher rates of enfranchisement in some states than others.297 Automating the Certificate process could be a powerful way to close the gap between people who are eligible for a Certificate and people who have a Certificate in hand.298
Georgia’s Certificate model demonstrates one way to automate the Certificate grant process. It has clear and largely objective standards that state officials are able to assess, and then puts any burden on the agency officials to get the Certificate into people’s hands and inform them of what it does.299 Expanding Georgia’s model beyond corrections, as it is in the process of doing by expanding to probation,300 would be the next step in expanding automatic processes, but not the last. Given the large number of people who may benefit from a Certificate who are not currently under state supervision, it may take some creativity and effort to reach a broader audience.
Even if lawmakers and policymakers do not want to fully automate the Certificate grant process, parts of the process could be automated. For example, even if a state did not want to give people a Certificate while they are still under supervision or exiting prison, they could compile all of the needed information into a packet or online profile that a person could then later finish filling out by himself. The criminal record and collateral consequence information needed for many of these applications could be automated, if not all of the relevant information.
Another related proposal would be the clear use of rebuttable presumptions. For example, in Ohio, a person is presumptively entitled to a Certificate if the relevant waiting period is met.301 While the presumption in Ohio does not come with any corresponding easing of the other learning or compliance burdens involved in applying for a Certificate (it may lessen the psychological burden, though), another state could use the concept of presumptions to shift information gathering and other burdens away from the individual. Having strong presumptions and communicating that to people to lessen learning costs could lower the administrative burdens involved in getting a Certificate, since less information may be needed, unless there is an objection.
Leaving automatic processes aside, states can take other steps to remove administrative burdens from the Certificate application processes.302 For example, they could remove filing fees; remove court debt as a factor in these applications; create and enforce notification requirements; promote and streamline agency roles in collecting and making sense of relevant information; provide for mail or electronic submissions of applications; create and refine clear, simple, and functional pro se forms; and clarify relevant standards. States can make efforts to connect affected people with the support they need to pursue rights restoration, for example, by expanding eligibility timing to include the time of sentencing when they are already represented or are otherwise connected with a state agency that is tasked with assisting, by providing resources to public defender offices and legal aid providers, or by providing training and resources for there to be designated court clerks or governmental officials who work to support individuals through this process. The state can also take steps itself, or provide resources to third parties, to publicize these initiatives and also to make employers, landlords, and other relevant parties aware of Certificates and their effects.303
D. Certificates and Social Change
As states reconsider the best path forward for Certificates, and rights restoration more generally, advocates should also consider how Certificates fit in with larger efforts to oppose mass criminalization and promote opportunity for people who have criminal records. Just as Certificates hold both promise and peril as far as promoting equity and second chances, Certificates could also promote or impede larger social change in the area of criminal legal system and collateral consequence reform.
Certificates can easily fit into a limited and limiting narrative about our criminal legal system that says that the system would be fair if we provided relief to the exceptional individuals, the worthy few, who have managed to rehabilitate themselves against the odds. In this narrative, Certificates can act as a sort of safety valve—letting the small number of successful applicants out from under the burden of licensing restrictions and other employment obstacles. Approaches that let a small number of successful applicants have enhanced employment opportunities do not, by definition, take aim at addressing the problem of mass criminalization. If Certificates are never more than a safety valve, then they may promote inequality by providing a way out from under collateral consequences for those better able to navigate the administrative burdens while also decreasing the urgency for, and likelihood of, larger change that would affect everyone. For example, in Michigan, the business community used their support of Certificate legislation as a tool to decrease support from what they considered to be “more dangerous” legislation that would limit an employer’s ability to ask about criminal history on job applications.304 When the Tennessee law was first proposed, state legislators went out of their way to distinguish their support for the Certificate law from support for expungement.305 The existence of Certificates as a limited safety valve, in turn, may well relieve some of the pressure that arises from perceived unfairness, making further reform less likely.
One concern about Certificates within the broader landscape of reform is that their broad appeal may be precisely because, depending on how the programs are designed and implemented, Certificates can easily fit with and reinforce dominant understandings of the criminal legal system.306 This is particularly damaging for more radical efforts to rethink the foundations of our criminal legal system, but can also stand in the way of more moderate reforms. When Certificates are structured to reward only a few exceptional (or exceptionally well-resourced) individuals, rather than to reach a significant mass of people, then Certificates may operate further to shift responsibility for the criminal legal system’s collateral consequences from the state to the individual. If Certificate programs take pressure off the state from having created these statutory, regulatory, and stigmatic barriers and places the failure to overcome them at the feet of people with criminal records themselves, Certificates could serve a counterproductive role by reinforcing messages about personal, rather than communal, responsibility for the systems of mass criminalization. When proposed solutions take on the trappings of the criminal legal system itself, this “‘criminal justice’ logic”307 can result in reforms that do not advance the interests of people affected by the criminal legal system.308
Certificates, therefore, have the potential to stand in the way of both discrete near-term reforms, like expanding expungement, as well as larger, potential changes that would require a rethinking of the foundations of our criminal legal system. To avoid Certificates deflating energy for larger reform, or simply reflecting and reinforcing the logic of the criminal legal system, advocates supporting Certificate programs must view Certificates as a means, not an end in themselves. Instead of being an end point, Certificates are well-positioned to function as a testing ground for pushing the idea that people with criminal records typically are not risky hires309 and should not be excluded from licensing and job opportunities. Unfortunately, there is currently very little data being tracked by states experimenting with Certificates. If data about Certificate programs were carefully collected,310 however, successful Certificate programs could provide support for laws that limit negligent hiring liability311 more broadly, provide anti-discrimination protections for qualified people with criminal histories, present a time limit on how long employers can consider criminal history, or that otherwise work to roll back the many collateral consequences that hold people back from succeeding in employment. In the meantime, they could open up employment and career opportunities for those who need them.
Conclusion
In the era of mass criminalization and mass collateral consequences, we must figure out a way to give people with criminal records a true second chance. States are experimenting with different approaches, which often work in concert. Interventions like expungement, anti-discrimination laws, ban-the-box, and Certificates are quickly spreading across the country.
Any second-chance initiative that does not automatically apply to all eligible recipients will face the problem of an uptake gap. This Article has cataloged and analyzed the administrative burdens involved in applying for Certificates in order to shed light on one significant source of that gap. Lessons from existing Certificate programs demonstrate how the learning, compliance, and psychological costs involved can lower application rates and can lead to administrative exclusion. In addition to focusing on factors contributing to the gap itself, advocates and policymakers must consider the distributional effects of administrative burdens in second-chance initiatives. A system in which people’s resources affect whether or not they can access a second-chance opportunity will only exacerbate the race- and class-based disparities in our criminal legal system.
By making explicit the role of administrative burdens in Certificate programs, policymakers can think critically about burdens in program design when it comes to second-chance policies. If policymakers are seeking to address mass criminalization, rather than just alleviate collateral consequences for a few, these policies must be designed with an eye toward how second-chance initiatives fit in with social change in the criminal legal system. When interventions benefit a few but do not reach the many who are equally good candidates, or that provide a way out from under collateral consequences for those who are well-resourced while others fall in the gap, these initiatives may be more harmful than helpful. Just because these policies are politically popular does not mean that they are low-hanging fruit worth picking. In contrast, if second-chance policies are designed not only with access, but also equity in mind, they can be valuable tools to help people in the short term while supporting larger changes in the criminal legal system in the long term.