Criminal Screenings Cast Wide Net

Even those with non-violent records are prohibited from working at various jobs. Courts increasingly are taking a skeptical view

AMY WORDEN / Philadelphia Inquirer 8mar04

For more than 20 years, Reginald Curry cared for the severely mentally ill in Philadelphia group homes. He thrived in an occupation known for its high stress, low pay and rapid burnout rates.

In 1999, Curry - who three decades earlier had been convicted of swindling a man out of $30 - was caught in a net cast by a new state law prohibiting felons from working in all types of personal-care facilities, including those for the elderly or the mentally ill.

Curry, 51, was one of scores of caregivers throughout Pennsylvania with criminal records who were forced out of their jobs - for Curry, it meant a transfer to another facility - when the legislature in 1998 amended the state's Older Adults Protective Services Act. The law netted 38 caregivers or job candidates who had violent criminal histories.

But it presents a challenge for those who aim to protect vulnerable citizens from violent criminals without eliminating job opportunities for nonviolent ex-offenders.

The Older Adults Protective Services Act is just one of an increasing number of state and federal background-check laws enacted in the last decade to focus on protection. Civil-liberties advocates say the laws have gone too far, denying people with criminal records the right to work.

A number of state courts agree, and have moved to reverse laws that institute lifetime bans on employment or "zero tolerance" policies for ex-offenders.

In December, ruling in a case in which Curry was a plaintiff, the Pennsylvania Supreme Court found the Older Adults Protective Services Act unconstitutional because it exempted convicts who had been working at their jobs for more than a year, reasoning that this was unfair to those who did not qualify for the exemption. When the law was enacted, Curry had been at his job for less than a year.

Sharon Dietrich, a lawyer with Community Legal Services of Philadelphia, said the law was one of the most "overreaching" of its kind.

"It's unusual to see this kind of lifetime prohibition and no attention to the individual person," she said.

Late last year, the California Superior Court in two separate cases ruled against a state ban on individuals with burglary or robbery convictions from working in community-care facilities.

"These cases are another important lesson in how essential our courts are for protecting some of the least popular and least powerful members of our society," said Larry Frankel, legislative director of the American Civil Liberties Union of Pennsylvania.

The ever-growing number of jobs requiring background checks and stringent laws against hiring felons have sent droves of people to legal-aid offices.

"Scores of clients have flooded the doors, saying 'I can't work anymore,' " Dietrich said. "I look at the laws and tell them 'Oh, my God, you can't.' "

Background checks, once a small piece of legal-aid work, are now the most common reason people seek help from the organization, she said.

With frequent headlines noting the latest cases of child abuse or attacks on women or the elderly, support remains strong for tougher background-check laws.

An Orange County, Fla., woman, Lucia Bone, whose sister was raped and murdered by an air-conditioning repairman convicted of two earlier rapes, is pledging to go state to state to press for background checks for any service worker entering someone's home.

Bone's research found at least 15 other cases nationwide in which repairmen or delivery workers had committed crimes in people's homes, her attorney, John Overchuck, said. Bone's lawsuit against the department store that employed the man was settled last week for $9 million.

Bills that would expand the scope of background checks are moving through legislatures across the nation. In Pennsylvania, one proposed bill would widen background checks for foster-care workers to include drug- and alcohol-related arrests and hospitalizations. Another bill that would make background screening mandatory for certain hotel employees has been introduced in the legislature.

Lin and Sol Toder of the Pittsburgh area are pressing lawmakers here and in other states to adopt "Nan's Law," named for their daughter, who was slain in 1996 in a Chicago hotel by a maintenance worker with a criminal record.

Sol Toder told a state House committee hearing in January that most hotel chains do not conduct background checks and that laws are needed to protect people from violent criminals.

The Toders say their intention is not to shut out everyone who has been convicted of a crime from working in a hotel, but rather to make hotels safer. "We don't want to prohibit someone from working," Sol Toder said. "We only want background checks for people with keys to rooms."

Curry, who worked for the Philadelphia-based Resources for Human Development, was among 26 people - mostly convicted of petty thefts years before being hired - the agency had to discharge when the act went into effect.

Curry and several others were transferred to facilities not covered by the act, but their employer was forced to turn down many more potential employees because of the law.

In 2000, Curry and four other health-care workers, along with Resources for Human Development, sued the state, saying their right to fair employment had been violated.

At the Commonwealth Court hearing in Nixon v. Commonwealth of Pennsylvania, Jeffrey Fagan, a professor of law and public health at Columbia University Law School, testified that stable employment is the top indicator that a person will not commit another crime, along with the age of the offender and the length of time since the offense was committed.

Robert Fishman, executive director of Resources for Human Development, which employs 2,600 people in mainly low-wage jobs, said the law locked hundreds of rehabilitated criminals into a catch-22.

"It's the right of the government to protect us, but when it steps in to make blanket laws, all of the people who commit crimes cannot be rejected [from employment] for the rest of their lives," Fishman said.

The state House Committee on Aging is now considering legislation that would amend the Older Adults Protective Services Act to comply with the court.

The bill imposes the same lifetime ban on individuals who commit violent crimes, including murder and rape, but would allow ex-offenders who committed lesser crimes to be employed in nursing homes or other institutions 10 years after their release.

Critics say the amendment still does not allow for a review of individual cases and forces existing employees to undergo background checks.

"The bill does not go as far as the court in saying you have to look at the facts and circumstances and ask 'Has this person rehabilitated themselves?' " the ACLU's Frankel said.

New Jersey's equivalent law allows state agencies to decide whether an applicant should be disqualified because of a criminal conviction.

Violent or drug-related crimes are flagged as a "basis for disqualification," said Capt. Elizabeth Welch of the New Jersey State Police. "But the determination is made by the agency. They look at the severity, the time that has passed, and the rehabilitation of the individual."

Any disqualified applicant has the right to appeal, she said.

Curry, who has spent the last five years working with the chronically homeless, said he also did not want to see violent criminals working in close proximity to vulnerable people.

"But people like myself? I paid my debt way back when," he said. "This is my job. This is what I am effective at."

source: http://www.philly.com/mld/inquirer/news/front/8131342.htm?template=contentModules/printstory.jsp 8mar04