REACHING A COMPROMISE: HOW TO SAVE MICHIGAN EX-OFFENDERS FROM UNEMPLOYMENT AND MICHIGAN EMPLOYERS FROM NEGLIGENT HIRING LIABILITY Irina Kashcheyeva* 2007 MICH. ST. L. REV. 1051 TABLE OF CONTENTS INTRODUCTION ........................................................................................ 1052 I. SURVEY OF NEGLIGENT HIRING DOCTRINE IN MICHIGAN ............... 1055 A. Negligent Hiring in Michigan at Its Nascent Stage .................. 1056 B. An Evasive Concept of Legal Duty: The Triggering Factors ... 1057 C. Establishing Proximate Causation: In the Hands of Jurors? ..... 1060 II. RECORDS-BASED EMPLOYMENT DISCRIMINATION: FEDERAL VERSUS STATE VIEW ...................................................................................... 1062 A. Limited Federal Protections ...................................................... 1062 1. Title VII: The Theory of Disparate Impact ......................... 1063 2. Equal Protection and Due Process Challenges ................. 1066 B. Approach to Employment Discrimination against Ex-Offenders in Michigan ................................................................................... 1068 1. Private Employment ........................................................... 1069 2. Licensed Occupations and Public Employment ................. 1070 3. Accessibility of Criminal Records in Michigan .................. 1073 III. TOWARDS A HOLISTIC MODEL OF IMPROVING EX-OFFENDERS’ EMPLOYMENT .................................................................................... 1075 A. Court-Issued Orders Restoring Ex-Offenders’ Rights .............. 1077 1. Advantages over Other Methods of Restoration ................ 1079 2. The Two-Shots-at-Restoration Approach ........................... 1082 3. Absolute Restoration: Outer Limits of Proportionality ...... 1084 B. Ex-Offender Anti-Discrimination Statute: Direct Relationship Test ............................................................................................ 1089 1. The Elements-Only Approach: Protecting Employers from Chaos .................................................................................. 1090 2. Factors Measuring Direct Relationship—Not Too Personal, but Personal Enough .......................................................... 1094 C. Accessibility of Criminal Records and Their Effect on Duty in Negligent Hiring ....................................................................... 1097 1052 Michigan State Law Review [Vol. 2007:1051 1. The Saga of Criminal Records: Is Sweet Lie Better Than Bitter Truth? ................................................................................. 1098 2. Expansion of Duty in Negligent Hiring Cases ................... 1099 D. Fiscal Therapy: State Wage Subsidy for Ex-Offenders As a Supplement to Federal Tax and Bonding Assistance................ 1101 E. An Intermediary Organization for Ex-Offenders—A Missing Link in Ex-Offenders’ Employment .................................................. 1105 CONCLUSION ............................................................................................ 1107 We are not all in the revolving door. We just need that opportunity once we do step forth outside those gates. —Johnny Gonzales, a prison inmate, after receiving a community college diploma1 INTRODUCTION Prompted by many tragic incidents of workplace violence,2 the law of negligent hiring represents a vigorous response of our society to careless recruitment practices of some employers. Animated by the direct, empirically-proven connection between ex-offenders’ recidivism and their ability to obtain meaningful employment,3 the public policy towards successful reintegration of ex-offenders into society also represents a priority that we, as the most incarcerated country in the world, cannot underestimate.4 * B.A. & M.A. 2002, Tomsk State University, Russia; Juris Doctor Candidate 2008, Michigan State University College of Law. I would like to thank Eugene Volokh and lawtopic.org for the suggestion of the topic, and Professor Jeremy Harrison and the Law Review staff for their help in developing this Comment. 1. Day to Day: California Prison Inmates Earn School Degrees (Michigan Public Radio broadcast Feb. 16, 2007), available at http://www.npr.org/templates/- story/story.php?storyId=7447943. 2. The growth of the incidents of workplace violence is alarming throughout the country in general and in Michigan in particular, where homicide is the leading cause of work-related deaths. Ann E. Phillips, Violence in the Workplace: Reevaluating the Employer’s Role, 44 BUFF. L. REV. 139, 140 n.5 (1996) (citations omitted). Nationwide, workplace violence costs employers annually 876,000 lost workdays and sixteen million dollars in lost wages. Jules M. Davis, Potential Violence to the Bottom Line—Expanding Employer Liability for Acts of Workplace Violence in North Carolina, 78 N.C. L. REV. 2053, 2054 (2000) (citation omitted). 3. See Byron Harrison & Robert Carl Schehr, Offenders and Post-Release Jobs: Variables Influencing Success and Failure, 39 J. OFFENDER REHABILITATION 35, 39-40 (2004) (discussing different studies establishing the connection between ex-offenders’ employment and recidivism rate, but pointing to a group of researchers who saw only “minimal positive results” of employment in prevention of recidivism). 4. In 2000, the inmate population of the United States reached a whopping 2,026,596 incarcerated, seventy percent of whom were repeat offenders. Id. at 36. Con- Winter] Reaching a Compromise 1053 Somewhere at the crossroads of these two policies lies a problem that, to some extent, concerns each one of us—the natural choice of employers to err on the side of caution and the resulting employment discrimination against people with criminal records.5 Although this problem has already received the attention of some states, it still remains largely unresolved in the majority of jurisdictions.6 Michigan belongs to the latter group. Rather than enacting its own legislation prohibiting misplaced focus on criminal records in hiring decisions, the state relies on the limited and selective protections afforded to exoffenders by federal statutes such as Title VII of the Civil Rights Act of 19647 and the Equal Protection and Due Process Clauses of the Fourteenth Amendment.8 Apart from the minimal constraints of these safeguards, local employers are virtually free to discriminate against ex-offenders on the basis of criminal records no matter how unrelated to the position sought and regardless of the gravity of offenses. Indeed, fears of potentially devastating negligent hiring liability reinforce employers’ inclination to do so.9 Moreover, the state routinely denies ex-offenders occupational licenses for a host of professions.10 The only restraint that Michigan employers or licensing bodies need to account for in making negative employment or licensing determinations is the prohibition against the use of misdemeanor arrest records to an applicant’s detriment.11 Beyond that, employers are given carte vinced by these threatening numbers, the House of Representatives recently proposed the Second Chance Act of 2005, H.R. 1704, 109th Cong. (2005), not yet adopted, which implements the rehabilitative ideals of criminology and, among other goals, seeks to address problems with obtaining employment by ex-offenders. Id. § 2(22). 5. Indeed, as one author points out, “risks averted by exclusion of offenders in the workplace might translate into increased risks of crimes to the public at large.” Patricia M. Harris & Kimberly S. Keller, Ex-Offenders Need Not Apply, 81 J. CONTEMP. CRIM. JUST. 6, 19 (2005). Hence, the relationship between the law of negligent hiring and the crime rate within the community creates a dilemma affecting all of the community’s members. 6. In contrast to the U.S. practice, almost all prospering countries have uniformly passed some sort of legislation protecting ex-offenders from employment discrimination. Helen Lam & Mark Harcourt, The Use of Criminal Record in Employment Decisions: The Rights of Ex-Offenders, Employers and the Public, 47 J. BUS. ETHICS 237, 237 (2003). To give just a few examples, Australia, Britain, Canada, and New Zealand have enacted laws prohibiting discrimination of ex-offenders—either in the form of “‘spent convictions’ statutes,” in effect sealing a conviction from public view, or by way of “human rights statutes” prohibiting discrimination based on the criminal record. See id. at 246-50 (proposing to merge the techniques presented by the two kinds of statutes). 7. Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000(a)(h) (2000)). See discussion infra Subsection II.A.1. 8. U.S. CONST. amend. XIV, § 1. See discussion infra Subsection II.A.2. 9. See discussion infra Part I. 10. See discussion infra Subsection II.B.2. 11. Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS § 37.2205a(1) (2000); see Seals v. Henry Ford Hosp., 333 N.W.2d 272, 275-76 (Mich. Ct. App. 1983) (enforcing the 1054 Michigan State Law Review [Vol. 2007:1051 blanche to discriminate against ex-offenders who, as a result, suffer massive exclusion from many workplace opportunities.12 This Comment will argue that, to limit negative effects of the negligent hiring doctrine on people with criminal records,13 Michigan should adopt a holistic approach consisting of a number of well-coordinated measures that both stimulate employers’ willingness to hire ex-offenders and prevent employers from arbitrarily refusing to hire offenders.14 These measures should prohibit employment discrimination based on offenses not compromising ex-offenders’ ability to perform their duties, empower sentencing courts to issue orders removing collateral disabilities of a conviction, and universally require employers to investigate applicants’ criminal records at hiring. At the same time, the state should also strive to allay employers’ fears in hiring ex-offenders. This can be achieved through creating a wage subsidy program covering a share of ex-offenders’ wages; allowing employers free access to applicants’ criminal records; establishing an intermediary organization dealing specifically with ex-offenders’ employment; and shielding employers’ decisions from judicial review if hiring occurs after a criminal records inquiry or via an ex-offender intermediary organization. This model strikes the correct balance between the interests of exoffenders and employers and helps to bring a fundamental change in the state’s attitude towards collateral consequences of a conviction. prohibition against the use of arrest records at hiring and listing scholarly articles endorsing the prohibition). 12. The damaging effects of such exclusion are startling. In the United States, more than forty percent of released prisoners are rearrested within the first year after their release; this figure rises to about two-thirds of all released prisoners three years after release. Devah Pager, Evidence-Based Policy for Successful Prisoner Reentry, 5 CRIMINOLOGY & PUB. POL’Y 505, 509 (2006) (citing Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994 (2002), http://www.ojp.usdoj.gov/bjs/abstract/rpr94.htm). In Michigan in particular, eighteen percent of the parolees return to prisons within one year following their release, and about forty-four percent of the released offenders return to the Department of Corrections within two years. NGA Center for Best Practices, Prisoner Reentry – Michigan (Dec. 10, 2004), http://www.nga.org/portal/site/nga/menuitem.9123e83a1f6786440ddcbeeb501010a0/?vgnextoid=83e5303cb0b32010VgnVCM1000001a01010aRCRD (last visited Feb. 1, 2008). 13. To be sure, a criminal record is but one of a host of ex-offenders’ characteristics contributing to their low employment rate. Factors such as poor education, lack of vocational skills, the “prisonization” effects caused by serving a lengthy prison term, and a poor economy also impair the group’s competitiveness in today’s tight job market. See Harrison & Schehr, supra note 3, at 42-49 (surveying variables affecting ex-offenders’ employability). 14. Concerned with the far-reaching consequences of the criminal conviction, the State Bar of Michigan, too, has recently decided to initiate “work to come up with holistic solutions to criminal justice” and collateral consequences of the conviction. State Bar of Michigan, New SBM Initiative to Address Civil Law Consequences of Criminal Convictions (Nov. 13, 2006), http://michbar.org/news/releases/archives06/criminal_issues_initiative.cfm. Although without any definitive results yet, these efforts are a promising beginning. Winter] Reaching a Compromise 1055 The Comment proceeds in three parts. Part I discusses the current status of the tort of negligent hiring in Michigan and illuminates its evasive and unpredictable contours. Part II describes available federal safeguards against records-based discrimination, and familiarizes readers with the Michigan approach towards availability and use of criminal records in private and public employment and licensing. The analysis of suggested legislative alternatives addressing the issue of ex-offenders’ employment follows in Part III. Among other things, this Part endorses court-issued orders restoring ex-offenders’ rights; supports ex-offender anti-discrimination statutes; favors protecting employers’ business judgment; and argues for granting employers free access to applicants’ criminal records, except for the records of arrests. Lastly, Part III suggests the creation of a wage subsidy program for ex-offenders and the establishment of an intermediary organization facilitating both ex-offenders’ and employers’ needs at hiring. I. SURVEY OF NEGLIGENT HIRING DOCTRINE IN MICHIGAN Unlike other jurisdictions in the country,15 Michigan has been relatively slow to recognize the cause of action for negligent hiring, retention and supervision.16 Some claims of employers’ negligence have been traditionally foreclosed by the exclusivity provision of the Workers’ Disabilities Compensation Act,17 which was intended to provide a quick and exclusive response to employees’ injuries in the course of employment.18 Others— 15. In some jurisdictions, negligent hiring is deemed to be one of the “fastestgrowing segments of law.” Jennifer Leavitt, Walking a Tightrope: Balancing Competing Public Interests in the Employment of Criminal Offenders, 34 CONN. L. REV. 1281, 1301 (2002) (quoting a Phoenix newspaper article) (citation omitted). 16. These three torts are far from an exhaustive list of claims based on a violation of employers’ common law duty of care to third parties. Related to them are the torts of negligent recommendation or misrepresentation and of failure to warn. See Luis F. AntonettiZequeira, Workplace Violence: Its Legal Perspective and Its Socio-Economic Impact, 36 REV. JUR. U.I.P.R. 93, 105-09 (2001) (analyzing the elements for each of these claims). This Comment will focus only on negligent hiring as representative of other possible claims premised on the direct liability of an employer. 17. MICH. COMP. LAWS § 418.131 (1999). 18. See, e.g., Oaks v. Twin City Foods, Inc., 497 N.W.2d 196, 197 (Mich. Ct. App. 1992) (holding that a suit based on employer’s negligence was foreclosed by the exclusivity provision of the Workers’ Compensation Act when the employee was injured after being directed to perform work on the unguarded catwalk at the job site); Downer v. Detroit Receiving Hosp., 477 N.W.2d 146, 148 (Mich. Ct. App. 1991) (affirming the dismissal of the plaintiff’s negligent hiring claim because it was subsumed by the remedies under the Workers’ Disability Compensation Act); see generally Phillips, supra note 2, at 150 (discussing nationwide tendencies in the development of workers’ compensation laws and exceptions to them). But see Note, Exceptions to the Exclusive Remedy Requirements of Workers’ Compensation Statutes, 96 HARV. L. REV. 1641, 1660-61 (1983) (maintaining that the bargain 1056 Michigan State Law Review [Vol. 2007:1051 such as claims based on workplace sexual harassment—could not be premised on the common-law negligence of the employer because of the exclusive remedy provided for sexual harassment in the Elliot-Larsen Civil Rights Act.19 Yet, a suit directly against an employer has two important advantages over actions sounding in vicarious liability: it entitles qualified plaintiffs to greater compensatory damages, and it opens up a path to punitive damages in case of employers’ recklessness or gross negligence.20 Naturally, these advantages make this theory highly popular among plaintiffs.21 A. Negligent Hiring in Michigan at Its Nascent Stage The first affirmative recognition of the tort in Michigan appears in a seminal negligent hiring case, Hersh v. Kentfield Builders, Inc.22 Although the court styled its opinion in terms of the duty to keep the premises safe for the public rather than in terms of “negligent hiring,” it clearly imposed on employers a duty of reasonable care in hiring employees.23 Predictably, the court regarded an applicant’s criminal record as having a direct bearing on the violation of this duty.24 In state-law vernacular, Hersh established the so-called “violent propensity” exception to the employers’ non-liability rule. This exception held employers liable for employees’ actions even outside the scope of employoffered by the workers’ compensation system is no longer fair and arguing for an expansive treatment of exceptions to the statutes). 19. Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS §§ 37.2101-37.2804 (2001). See, e.g., McClements v. Ford Motor Co., 702 N.W.2d 166 (Mich. 2005) (dismissing the negligent retention claim based on workplace sexual harassment and holding that the exclusive remedy to sexual harassment claims is provided under the State’s civil rights act). But cf. Rosanne Lienhard, Negligent Retention of Employees: An Expanding Doctrine, 63 DEF. COUNS. J. 389, 390-91 (1996) (cataloguing other jurisdictions’ successful negligent retention claims arising out of sexual harassment). 20. See Michael F. Wais, Negligent Hiring—Holding Employers Liable When Their Employees’ Intentional Torts Occur Outside of the Scope of Employment, 37 WAYNE L. REV. 237, 247 (1990) (summarizing the differences between employer liability based on respondeat superior and liability grounded in negligent hiring, and arguing for an expansion of the tort of negligent hiring in Michigan); John C. North, The Responsibility of Employers for the Actions of Their Employees: The Negligent Hiring Theory of Liability, 53 CHI.-KENT L. REV. 717, 717-19 (1977) (demonstrating differences between the two theories through the use of hypothetical examples). 21. As a matter of background knowledge, the negligent hiring doctrine originated from the common law fellow-servant rule imposing on employers a duty to select prospective employees so that they would not harm their fellow co-workers at the job. See Martin R. Loftus, Employer’s Duty to Know Deficiencies of Employees, 16 CLEV.-MARSHALL L. REV. 143, 145-46 (1967) (explaining the origins and development of the negligent hiring doctrine). 22. 189 N.W.2d 286 (Mich. 1971). 23. Id. at 288-89. 24. Id. The case featured an assaultive builder whose employer knew about the builder’s previous conviction for manslaughter but still hired the man. Id. at 287-88. Winter] Reaching a Compromise 1057 ment “if the employer knew, or should have known, of the employee’s violent propensities.”25 Specifically, to establish a claim of negligent hiring, a plaintiff must prove the four traditional components of a negligence action: (1) existence of a legal duty on the part of the defendant; (2) a breach of that duty; (3) causation; and (4) damages.26 Among these elements, the notion of legal duty and the interrelated notion of causation present the greatest difficulties. B. An Evasive Concept of Legal Duty: The Triggering Factors The concept of legal duty in the context of negligent hiring has two separate dimensions. At one level, the existence of duty depends on the relationship between the parties: absent a “special relationship” between the plaintiff and the defendant or the defendant and a third party, employers have no legal duty to protect the defendant or a third party from the criminal acts of their employees.27 Michigan courts have, however, struggled with determining precisely what kinds of relationships trigger this protective duty and exactly what degree of background investigation satisfies the duty when it exists.28 25. Brown v. Brown, 716 N.W.2d 626, 629 (Mich. Ct. App. 2006). See J. Hoult Verkerke, Notice Liability in Employment Discrimination Law, 81 VA. L. REV. 273, 306 (1995) (discussing the interesting concept of managerial liability based on notice: “Employers that learn of a tendency towards violence . . . must respond with appropriate precautions against further harm”). 26. Kendrick v. Ritz-Carlton Hotel Co., No. 256696, 2006 Mich. Ct. App. LEXIS 2393, at *6 (Mich. Ct. App. July 27, 2006). Compare with Evans v. Ohio State Univ., 680 N.E.2d 161, 171 (Ohio Ct. App. 1996) (presenting a much more elaborate, five-prong standard for negligent hiring liability: “(1) the existence of an employment relationship; (2) the employee’s incompetence; (3) the employer’s actual or constructive knowledge of such incompetence; (4) the employee’s act or omission causing the plaintiff’s injuries; and (5) the employer’s negligence in hiring or retaining the employee as the proximate cause of plaintiff’s injuries”) (quotation omitted). 27. Brown, 716 N.W.2d at 629 (citing Murdock v. Higgins, 559 N.W.2d 639, 643 (Mich. 1997)). 28. See, e.g., Burch v. A & G Assocs., 333 N.W.2d 140, 143-44 (Mich. Ct. App. 1983) (finding a special relationship between a passenger and a common carrier, but not reaching the issue of whether the existing heightened duty demanded universal background checks of carrier’s employees); Tyus v. Booth, 235 N.W.2d 69, 71 (Mich. Ct. App. 1975) (finding a special duty between a gas station operator and business invitees, but holding that the duty did not encompass affirmative in-depth background checks of all employees); Bradley v. Stevens, 46 N.W.2d 382, 384-85 (Mich. 1951) (holding that a car shop owner’s duty towards his customers did not demand affirmative background checks of all prospective employees). Compare with Kendrick, 2006 Mich. Ct. App. LEXIS 2393, at *9-14 (finding no special relationship between an inn-keeper and a guest such as to give rise to the innkeeper’s duty to perform an authorized criminal background check of a prospective employee); Campbell v. Kovich, 731 N.W.2d 112 (Mich. Ct. App. 2006) (holding that Michigan does not recognize a cause of action for negligent hiring of an independent contractor); see gener- 1058 Michigan State Law Review [Vol. 2007:1051 At another level, the investigative duty arises only where a defendantemployer should have foreseen that certain conduct would pose an unreasonable risk of harm to the victim.29 The existence of actual or constructive knowledge forewarning the employer of the possibility of harm to others is essential for establishing foreseeability.30 To be sure, the term “foreseeability” in the negligent hiring setting may cause some confusion, for a fictitious reasonable person is not always required to anticipate the criminal conduct of others.31 Nevertheless, in deciding when it is reasonable for the employer to anticipate the employee’s criminal conduct, courts have generally used either the prior similar incidents rule or a broader, totality-ofcircumstances approach.32 Of these two, Michigan seems to adhere to the latter standard.33 Interestingly, Michigan courts have been reluctant to impose on employers an affirmative legal duty to investigate backgrounds of all prospec- ally North, supra note 20, at 721 (designating the landlord-tenant and employer-business customer relationships as the two situations in which a special duty to protect arises); Cindy M. Haerle, Minnesota Developments: Employer Liability for the Criminal Acts of Employees Under Negligent Hiring Theory: Ponticas v. K.M.S. Investments, 68 MINN. L. REV. 1303, 1308 (1984) (summarizing the countrywide tendency of finding liability in cases “where employers invite the general public onto the business premises, or require employees to visit residences or employment establishments”) (citations omitted). 29. See Kendrick, 2006 Mich. Ct. App. LEXIS 2393, at *7 (“The existence of a duty depends in part on foreseeability, i.e., whether it was foreseeable that the actor’s conduct may create a risk of harm to the victim.”). For an argument for elimination of the unpredictable foreseeability-of-harm component of employers’ duty, see Stephen J. Beaver, Beyond the Exclusivity Rule: Employer’s Liability for Workplace Violence, 81 MARQ. L. REV. 103, 131-32 (1997). Naturally, foreseeability and special relationship between the parties are not the only factors in determining the existence of the duty to investigate. Other, less significant factors include the likelihood of the injury, the immediate link between the conduct and the injury, the level of the conduct’s blameworthiness, and policy considerations associated with imposing potential liability on the defendant. Kendrick, 2006 Mich. Ct. App. LEXIS 2393, at *8 (citing Terry v. City of Detroit, 573 N.W.2d 348, 352 (Mich. Ct. App. 1997)). 30. Samson v. Saginaw Prof’l Bldg., Inc., 205 N.W.2d 833, 839 (Mich. Ct. App. 1973). 31. See Phillips, supra note 2, at 165 (quoting Gregory A. Crouse, Negligence Liability for the Criminal Acts of Another, 15 J. MARSHALL L. REV. 459, 465 (1982)) (“The law ordinarily does not require the prudent person to expect the criminal activities of others.”). 32. See id. at 169-70. Under the prior similar incidents rule, courts consider solely whether the act was foreseeable in light of the “proximity, time, number and types . . . of prior violent incidents,” whereas the totality-of-circumstances inquiry focuses not only on the past criminal acts, but also on the “nature of the business, the condition of the premises and the surrounding neighborhood.” Id. Compare Sch. Bd. of Palm Beach County v. Anderson, 411 So. 2d 940, 942 (Fla. Dist. Ct. App. 1982) (requiring showing of similar incidents in order to find foreseeability), with Isaacs v. Huntington Mem’l Hosp., 695 P.2d 653, 659-60 (Cal. 1985) (holding that the existence of prior incidents in itself is not enough to establish foreseeability of a criminal act). 33. See cases cited supra note 28. Winter] Reaching a Compromise 1059 tive employees.34 This position is not unique: despite the intense criticism of the absence of a legal duty to investigate—the rule that obviously rewards employers’ ignorance of employees’ convictions—courts in other states have generally concurred that imposing an affirmative duty is unduly burdensome.35 The effect of courts’ reluctance to demand universal background checks was the shrinking of the concept of constructive knowledge about applicants’ violent propensities. Accordingly, with the exception of a few opinions,36 employers are almost never required to attempt to ascertain whether an applicant has dangerous proclivities, even though the absence of the requirement, according to some, tends to “eviscerate any question of whether an employer ‘should have known’ of a danger.”37 Significantly, proceeding to hire an applicant despite the discovered criminal record is not dispositive of an employer’s liability either.38 Prior convictions notwithstanding, “even a conviction for a crime of violence, does not in itself establish the fact that that person has a violent or vicious nature so that an employer would be negligent in hiring him . . . .”39 Never34. See, e.g., Tyus v. Booth, 235 N.W.2d 69, 71 (Mich. Ct. App. 1975) (“[A] gasoline service station employer . . . was not required to conduct an in-depth background investigation of his employee.”); Kendrick, 2006 Mich. Ct. App. LEXIS 2393, at ∗11 (a defendant-hotel was under no obligation to conduct a criminal background check of its prospective employees, even though all of them consented to it). 35. See, e.g., Garcia v. Duffy, 492 So. 2d 435, 439 (Fla. Dist. Ct. App. 1986) (holding that the duty to investigate is triggered only when an employer is responsible for bringing third persons in contact with employees whom he or she knows or has a reason to know to be dangerous); Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 912 (Minn. 1983) (holding that the scope of reasonable investigation broadens with the amount of risk posed by careless employment to third persons); Stevens v. Lankard, 254 N.E.2d 339, 339 (N.Y. 1969) (affirming the lower court’s dismissal of the plaintiff’s claim where the employer did not have actual knowledge of the employee’s conviction from another state). For arguments in support of imposing a universal legal obligation to conduct a background check, see Dermot Sullivan, Employee Violence, Negligent Hiring, and Criminal Records Checks: New York’s Need to Reevaluate Its Priorities to Promote Public Safety, 72 ST. JOHN’S L. REV. 581, 600-01 (1998) (arguing that a criminal background check must be mandatory); Beaver, supra note 29, at 103 (urging the congressional action imposing a uniform statutory duty of background checks to arrive at a clear and unequivocal standard of care). 36. One of a few rare cases where the notion of constructive knowledge finds its application is Samson v. Saginaw Professional Building, Inc., 205 N.W.2d 833, 839 (Mich. Ct. App. 1973), where, despite the lack of actual knowledge, the knowledge of the tenant’s violent propensities was constructively imputed to the landlord-defendant and the duty to conduct an in-depth investigation of the tenant’s background arose. See also Brown v. Brown, 716 N.W.2d 626, 633 (Mich. Ct. App. 2006) (finding the possibility of constructive knowledge about the employee’s violent propensities based on the victim’s repeated complaints to her employer about her offender’s sexual advances). 37. Kendrick, 2006 Mich. Ct. App. LEXIS 2393, at *21-22 (Davis, J., dissenting). See generally Sullivan, supra note 35, at 593 (observing that courts “virtually never find employers liable because they ‘should have known’ of an employee’s harmful propensities”). 38. Hersh v. Kentfield Builders, Inc., 189 N.W.2d 286, 289 (Mich. 1971). 39. Id. (quoting trial court’s jury instructions). 1060 Michigan State Law Review [Vol. 2007:1051 theless, this caveat does not sufficiently protect ex-offenders’ interests. Employers will remain wary of hiring ex-offenders as long as a violent crime conviction provides a sufficient forewarning to trigger a further, indepth inquiry into the background of an employee.40 Since the exact scope of that inquiry has not yet been defined, employers will likely prefer to err on the side of caution. C. Establishing Proximate Causation: In the Hands of Jurors? Adding to the vagueness of the legal duty are the uncertainties of causation. Generally, causation exists where a certain act is within the orbit of foreseeable risks or, alternatively, where the negligence of the employer directly created a given risk.41 In both cases, though, proximate cause will be found only if it is the offender’s employment relationship with the defendant that gave him access to the victim.42 Additionally, the chain of causation may be broken by an intervening criminal act that, unless “reasonably foreseeable,” relieves employers of negligent hiring liability.43 By contrast, the chain of causation will remain intact regardless of a third person’s intervening criminal act if an employer “realized or should have realized the likelihood that such a situation might be created.”44 Bean v. Directions Unlimited, Inc.,45 a case based on troubling facts,46 illustrates the complexities of establishing proximate cause in Michigan. Although the jury in that case found the defendant-center negligent in hiring and supervising its employee, the center did not have to ultimately pay any 40. Brown, 716 N.W.2d at 632-33. 41. See generally Phillips, supra note 2, at 184-85 (outlining the two approaches to proximate causation and cataloguing states accordingly). 42. Cf. Bean v. Directions Unltd., Inc., 609 N.W.2d 567, 571 (Mich. 2000) (refusing to find proximate cause where the sexual assault of a mentally impaired victim was committed by an employee of a drop-in medical center whose presence on the premises was not authorized). See generally Janet E. Goldberg, Employees with Mental and Emotional Problems—Workplace Security and Implications of State Discrimination Laws, the Americans with Disabilities Act, the Rehabilitation Act, Workers’ Compensation, and Related Issues, 24 STETSON L. REV. 201, 221 (1994) (“Proximate cause should exist . . . if the employee’s position is such that it gives him access to the person he harms.”). 43. McMillian v. Vliet, 374 N.W.2d 679, 682 (Mich. 1985). 44. Metcalf v. Waterbury, 231 N.W.2d 437, 442 (Mich. Ct. App. 1975) (quoting RESTATEMENT (SECOND) OF TORTS § 448 (1965)). 45. 609 N.W.2d 567 (Mich. 2000). 46. The plaintiff was a woman of limited mental abilities who alleged to have been sexually victimized by an employee of a drop-in center for individuals with mental and emotional maladies. Id. at 568. The interaction occurred while the employee visited the patient before the center’s operating hours. Id. The offender, a past patient himself, had been previously convicted of criminal sexual conduct involving a mentally impaired victim at a similar facility. Id. at 569. Despite the knowledge of this fact, the defendant-center continued its working relationship with the offender. Id. Winter] Reaching a Compromise 1061 damages due to the lack of proximate causation.47 Because of the beforehours occurrence of the complained-of incident and the offender’s dual role as an employee and an ex-patient, the court held that the offender’s act “was not accomplished through the exercise of authority given to [him] by [defendant]” and was thus not the proximate cause of the victim’s harm.48 This outcome may be explained by the deferential standard of review of the jury findings on appeal.49 Or the decision might simply have been wrong. As the dissent compellingly argues, the employee’s contact with the victim could not have occurred outside the facility, and the offender gained access to the facility solely by virtue of his employment there, so the requisite proximate cause should have been found.50 This decision is particularly interesting because of the clear distinction that it draws between the issues of legal duty and causation. Normally interrelated, these two concepts are tied together especially close in the case of negligent hiring, where the determination of the duty itself makes the estimation of whether the intervening criminal act was foreseeable.51 Equally significant is the fact that the decision passes both the determination of foreseeability and that of proximate causation to the jury—the route usually more favorable for plaintiffs and the one that limits courts’ ability to restrict liability as a matter of law.52 Although this strategy may facilitate reaching a well-balanced decision tailored to particular facts, it may at the same time fail to provide sufficient certainty and predictability to employers. As a corollary, this failure may lead to new frontiers in discriminating against exoffenders in their attempts to obtain hard-to-find employment in Michigan.53 47. Id. at 570. 48. Id. at 571. 49. After all, many contested findings were made by the jury. Id. at 568. 50. Id. at 573-74 (Kelly, J., dissenting). This position is consistent with the views of many other jurisdictions. See, e.g., Ponticas v. K.M.S. Invs., 331 N.W.2d 907, 915 (Minn. 1983) (finding the proximate cause when an apartment manager enabled access of the offending employee to tenants by entrusting him a passkey to an apartment building); Williams v. Feather Sound, Inc., 386 So. 2d 1238, 1240 (Fla. Dist. Ct. App. 1980) (finding employer liable even though an employee gained access to the plaintiff’s apartment unlawfully). 51. See Phillips, supra note 2, at 191 (“[I]n jurisdictions where foreseeability is a duty determinant, and the court subsequently rules that a duty exists to protect the defendant based on foreseeability, then the issue of causation disappears.”). 52. See id. at 191-93 for a discussion of other courts’ concerns over the merger between the inquiry into foreseeability based on the “combination of factors” and the issue of proximate causation. But see Laura DiCola Kulwicki, A Landowner’s Duty to Guard Against Criminal Attack: Foreseeability and the Prior Similar Incidents Rule, 48 OHIO ST. L.J. 247, 260-62 (1987) (arguing that the determination of foreseeability is the domain of the juries). 53. Studies indicate that even legal disincentives aside, poor economy in the region, general poverty, and high unemployment rates—all quite characteristic of Michigan today— are “key factors impacting ex-offender employability and recidivism.” See Harrison & Schehr, supra note 3, at 49 (citing to a variety of studies concluding the same). 1062 Michigan State Law Review [Vol. 2007:1051 II. RECORDS-BASED EMPLOYMENT DISCRIMINATION: FEDERAL VERSUS STATE VIEW As the total number of incarcerated individuals kept climbing to inordinate heights,54 and the stigma of the conviction strengthened,55 some states began passing statutes facilitating ex-offenders’ reentry and limiting collateral consequences of the conviction.56 Other states, including Michigan, maintained the status quo, instead relying solely on available federal statutes.57 Unfortunately, these statutes do not directly focus on ex-offenders as a group.58 Rather, federal laws protect ex-offenders only insofar as plaintiffs can prevail on the challenges grounded in other suspect classifications.59 In light of the proliferation of restrictions on ex-offenders’ employment and licensing,60 and the growing number and accessibility of criminal records in Michigan,61 the resistance to ex-offenders’ successful reintegration has escalated to the level where federal protections are grossly inadequate and an affirmative action by the state is long overdue. A. Limited Federal Protections Federal law provides ex-offenders with meager safeguards against their exclusion from employment opportunities. Primarily, protections come from Title VII of the 1964 Civil Rights Act62 and sometimes from the 54. See supra note 4. During the last thirty years, the country saw a five-fold increase in the number of incarcerated individuals. Ben Geiger, The Case for Treating ExOffenders as a Suspect Class, 94 CAL. L. REV. 1191, 1194 (2006). 55. Employment is only one of many collateral disabilities faced by ex-offenders. In addition, ex-offenders are also vastly disadvantaged in many other areas ranging from immigration, eligibility for student loans, voting rights, jury participation, parental rights, and rights to hold public office. See Jeremy Travis, Invisible Punishment: An Instrument of Social Exclusion, in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 15, 22-24 (Marc Mauer & Meda Chesney-Lind eds., 2002) [hereinafter Travis, Invisible Punishment] (enumerating state and federal encumbrances to ex-offenders’ successful reentry). 56. See, e.g., New York, Wisconsin, Minnesota and Hawaii anti-discrimination statutes described infra notes 209-12. 57. For a more complete description of the nuances of jurisdictional approaches to ex-offenders’ problems, and for information on the number of jurisdictions electing to enact measures to protect ex-offenders, see analysis infra pp. 1089-1092. 58. See discussion infra Section II.A. 59. See id. 60. See infra Section II.B for a discussion of the obstacles to employment and licensing of ex-offenders in Michigan. 61. For a discussion of the situation surrounding criminal records in Michigan, see discussion infra Subsection II.B.3. 62. 42 U.S.C. §§ 2000(a)-(h) (2000). Winter] Reaching a Compromise 1063 Equal Protection and Due Process Clauses of the Fourteenth Amendment.63 Despite the suggestions of some jurists,64 criminal record is not a suspect classification and, therefore, employment restrictions based on criminal record are subject to a low-level, rational basis review.65 1. Title VII: The Theory of Disparate Impact The narrow avenue for bringing an ex-offender’s Title VII suit is a theory of disparate impact enunciated in Griggs v. Duke Power Co.66 Under this theory, the lack of an employer’s discriminatory intent for introducing certain screening mechanisms is irrelevant; all that matters is whether the practice functions as “built-in headwinds” sifting out minority groups and 63. U.S. CONST. amend. XIV, § 1. See Kay Kohler, The Revolving Door: The Effect of Employment Discrimination Against Ex-Prisoners, 26 HASTINGS L.J. 1403, 1408-29 (1974) (analyzing the remedies provided by Title VII and the Fourteenth Amendment to exoffenders). In addition, plaintiffs may, in some instances, sue the government under a provision of the Federal Torts Claim Act, 28 U.S.C. § 1346(b) (2000). See, e.g., Senger v. United States, 103 F.3d 1437, 1443-44 (9th Cir. 1996) (plaintiff permitted to sue for negligent hiring, negligent supervision, and negligent failure to warn, after a post office employee grabbed him by the neck and threatened to kill him). The negligent hiring suits against the government are, however, outside the scope of this Comment. 64. See, e.g., Geiger, supra note 54, at 1215-31 (2006) (arguing that ex-offenders should be treated as a suspect classification deserving a heightened judicial protection); cf. Miriam J. Aukerman, The Somewhat Suspect Class: Towards a Constitutional Framework for Evaluating Occupational Restrictions Affecting People with Criminal Records, 7 J.L. SOC’Y 18 (2005) (analyzing successful challenges to occupational restrictions based on overbreadth and ex-offender classification and concluding that courts treat ex-offenders as a “somewhat suspect” class). But cf. RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION LAWS 197-200 (1992) (concluding that protections afforded on the basis of a conviction record under a theory of disparate impact are contrary to the intent of the framers of the Civil Rights Act of 1964); Thomas M. Hruz, The Unwisdom of the Wisconsin Fair Employment Act’s Ban of Employment Discrimination on the Basis of Conviction Records, 85 MARQ. L. REV. 779, 857 (2002) (proposing to repeal a local statute narrowing the instances of permissible convictions-based discrimination because “a mutable trait that is widely recognized as being negative, such as an individual’s evidenced involvement in criminal activity, should not be placed on the same plain as other bases of discrimination derived from immutable and non-nefarious traits”). 65. Hawker v. N.Y., 170 U.S. 189, 192 (1898). See Elena Saxonhouse, Unequal Protection: Comparing Former Felons’ Challenges to Disenfranchisement and Employment Discrimination, 56 STAN. L. REV. 1597, 1615-35 (2004), for the analysis of employment discrimination cases decided under the rational basis test and an interesting comparison of the results with the outcomes of ex-felons disenfranchisement cases. 66. 401 U.S. 424 (1971). Quite apart from criminal records, the case involved requirements for obtaining a high school diploma or passing a standardized intelligence test as a precondition of employment. Id. at 425. Nevertheless, its holding was broad enough to open a path to a flow of cases encompassing a conviction record. See Kohler, supra note 63, at 1412-13 (describing the application of the Griggs principles to cases involving criminal records). 1064 Michigan State Law Review [Vol. 2007:1051 whether the requirement is related to the job capability of an applicant.67 Found nowhere in the text of the Act, the doctrine of disparate impact was conceived as a judicial recognition of the need to prevent pretextual discrimination and to absolve plaintiffs from having to prove an elusive intent to discriminate.68 The doctrine of disparate impact found its extension into the area of conviction-bar cases in Green v. Missouri Pacific Railroad Co.,69 where the statistical data of a disproportionately high number of minority applicants rejected on the basis of criminal records created the requisite disparate impact.70 A significant wrinkle in an otherwise straightforward application of the theory is the defense of business necessity that exonerates employers from liability even if the challenged practice has a disproportionately exclusionary effect on minorities.71 Despite the suggestions of the Equal Employment Opportunity Commission that employers avoid excluding exoffenders unless their convictions are genuinely related to their prospective duties,72 the substantial deference that courts give to employers’ decisions, 67. Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971) (quotation omitted). The concept of “de facto discrimination” has been instrumental in challenging other facially neutral employment barriers, such as a policy not to hire women with illegitimate children. See Andrews v. Drew Mun. Separate Sch. Dist., 371 F. Supp. 27 (N.D. Miss. 1973); see generally Kohler, supra note 63, at 1409-10 (describing the application of the concept of de facto discrimination in various facially neutral policies). See Yifat Bitton, The Limits of Equality and the Virtues of Discrimination, 2006 MICH. ST. L. REV. 593, 595, for an interesting argument that de jure discrimination of a group advances the group’s chances to access the court system and obtain relief, while groups discriminated against de facto are often deprived of access to the criminal system and, consequently, of any remedy. 68. See George Rutherglen, Disparate Impact Under Title VII: An Objective Theory of Discrimination, 73 VA. L. REV. 1297, 1344-45 (1987) (labeling the theory of disparate impact as an example of federal common law). 69. 549 F.2d 1158 (8th Cir. 1975). 70. Id. at 1159. Unfortunately, the statistical disparity in the minority groups’ conviction rates has not faded over the years. A recent study reported that about seventy percent of prison entrants are either Black or Hispanic, and forty percent of them are recidivists. Harrison & Schehr, supra note 3, at 42 (citation omitted). 71. See Rutherglen, supra note 68, at 1297 (explaining that after a plaintiff can establish disparate impact, the burden shifts to an employer to prove business necessity justifying the disparate impact). In Green, business necessity had to relate to an applicant’s job performance. 549 F.2d at 1159. The standard for finding a business necessity defense does not seem to be as strict today. See Linda Lye, Title VII’s Tangled Tale: The Erosion and Confusion of Disparate Impact and the Business Necessity Defense, 19 BERKELEY J. EMP. & LAB. L. 315, 319-20 (1998) (describing the evolution of the doctrine through discussing relevant key precedents and criticizing courts for lowering the threshold for finding business necessity). 72. See EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, Conviction Records (Feb. 4, 1987), available at http://www.eeoc.gov/policy/docs/convict1.html#N_6_. The EEOC suggests the following factors as bearing on the relationship between a conviction and employment: “1. The nature and gravity of the offense or offenses; 2. The time that has passed since the conviction . . . ; Winter] Reaching a Compromise 1065 difficulties in proving causation and statistical disparity in treatment, and lax standards for finding business necessity can make even a blanket restriction on ex-offenders’ employment impervious to attacks.73 Furthermore, a Title VII action will only protect active defenders of their rights who find confidence, time, and resources to initiate such a suit—all of which are often unavailable to ex-offenders. Accordingly, the reactive character of Title VII protections diminishes its practical benefits for exoffenders.74 In addition, Title VII actions are limited to attacking the policies of private employers,75 and only with respect to minority applicants.76 Lastly, a hefty burden of proving business necessity, in theory the responsibility of employers, has to be shouldered by plaintiffs in practice.77 In spite of its shortcomings, Title VII has brought some success to convicted job seekers. For instance, it served as a ground for unequivocal and 3. The nature of the job held or sought.” Id. (citing Green, 549 F.2d at 1160). A similar requirement of finding a “nexus” between the misconduct and an occupied position exists in federal employment disciplinary actions under the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (1978) (codified as amended in titles 5, 10, 15, 28, 31, and 39 U.S.C. (2000) and 42 U.S.C. (2000)). See Neal Miller, Criminal Convictions, “Off-Duty Misconduct,” and Federal Employment: The Need for Better Definition of the Basis for Disciplinary Action, 39 AM. U. L. REV. 869, 908 (1990) (arguing, with respect to determining the nexus between employment and misconduct, that a “rebuttable presumption of rehabilitation” negating the nexus may be established after three years after the date of the last conviction). 73. See Lye, supra note 71, at 343-53, for a more thorough discussion of these encumbrances. The high watermark of the anti-disparate-impact attitude of the judiciary is Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), the decision that served as a catalyst for enacting the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e to 2000e-16 (2000)). See Note, The Civil Rights Act of 1991: The Business Necessity Standard, 106 HARV. L. REV. 896, 897-99 (1993) [hereinafter The Civil Rights Act of 1991] (discussing the legal significance of Wards Cove Parking Co. in the business necessity jurisprudence and the history behind the enactment of the Civil Rights Act of 1991). 74. See James R. Todd, “It’s Not My Problem”: How Workplace Violence and Potential Employer Liability Lead to Employment Discrimination of Ex-Convicts, 36 ARIZ. ST. L.J. 725, 747-49 (2004) (discussing insufficiency of reactive, and the need for proactive, approach to employment discrimination). 75. Similar attacks on public employers must be reviewed “on due process grounds under the 5th and 14th Amendments.” Nicholas G. Miller, Insurance for Ex-Offender Employees: A Proposal, 28 STAN. L. REV. 333, 342 n.48 (1975). 76. See Sheri-Ann S.L. Lau, Employment Discrimination Because of One’s Arrest and Court Record in Hawai‘i, 22 U. HAW. L. REV. 709, 723 (2000) (emphasizing that only minorities can bring a Title VII action). But cf. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) (holding that two white employees who were fired for an alleged theft at their place of employment stated a prima facie case of discriminatory treatment under Title VII when the employer arbitrarily decided to keep a black employee, the third participant in the alleged theft); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205 (1972) (permitting white residents’ challenge of the landlord’s racially discriminatory practices). 77. See Kohler, supra note 63, at 1416 (observing that because most employers do not identify the criteria germane to job performance, proving the relevance of a certain requirement to a specific job becomes the plaintiffs’ concern). 1066 Michigan State Law Review [Vol. 2007:1051 prohibition of employment discrimination on the basis of records of arrest.78 Attempting to rectify some of the above problems with the doctrine, Congress enacted the Civil Rights Act of 199179 with its strong pro-plaintiff policy mandate. Unfortunately, political pressures at its inception, and the drafters’ desire to strike a political compromise, resulted in the Act’s ambiguity, opening it up for broad judicial interpretation.80 In fact, the text of the Act provided a reader with no guidance as to the scope of business necessity, suggesting only—in a circuitous way—that to avoid liability, employers must “demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.”81 Understandably, the courts’ interpretation of this nebulous standard has varied across the board, with some of the decisions straying quite far away from the noble legislative intent of the Act.82 As a result, the Act, too, has failed to provide exoffenders with a reliable mechanism of protection.83 2. Equal Protection and Due Process Challenges Limited relief to ex-offenders is also available through the application of the Fourteenth Amendment Equal Protection Clause.84 Contrary to the challenge based on Title VII, the action brought on equal protection grounds must relate to public employment by state or local governments and does not have to focus on the applicant’s race or other suspect category.85 78. Gregory v. Litton Sys., Inc., 316 F. Supp. 401 (C.D. Ca. 1970). Nevertheless, an employer may still use the conduct underlying the arrest for excluding an applicant from employment. See EEOC Policy Guidance on the Consideration of Arrest Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (Sept. 7, 1990), 1990 WL 1104708, at *4. 79. 42 U.S.C. §§ 2000e to 2000e-16 (2000). 80. See The Civil Rights Act of 1991, supra note 73, at 896-97 (analyzing the failings of the Act and the reasons behind them). 81. 42 U.S.C. § 2000e-2(k)(1)(A)(i) (2000). 82. Compare Nash v. Consol. City of Jacksonville, 895 F. Supp. 1536, 1545 (M.D. Fla. 1995) (requiring a compelling business justification based on the prediction of an applicant’s job performance), with Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1118-19 (11th Cir. 1993) (announcing that, in part, a questioned practice must be “necessary to meeting a goal that, as a matter of law, qualifies as an important business goal for Title VII purposes”), and Stender v. Lucky Stores, Inc., 803 F. Supp. 259, 331-32 (N.D. Cal. 1992) (requiring that a practice is manifestly related to the employment and significantly serves valid employment goals, citing to both Wards Cove and Griggs). See generally Lye, supra note 71, at 348-53 (categorizing various business necessity interpretations into four groups). 83. See cases cited supra note 82; see generally Lye, supra note 71, at 361 (“[t]he cases interpreting the post-1991 Act business necessity standard illustrate the extensive confusion shrouding the disparate impact model”). 84. U.S. CONST. amend. XIV, § 1. 85. See Miller v. Carter, 547 F.2d 1314, 1316 (7th Cir. 1977) (concluding that a city ordinance disqualifying individuals with certain convictions from obtaining a driver’s license violated the Equal Protection Clause); Butts v. Nichols, 381 F. Supp. 573, 581-82 (S.D. Iowa Winter] Reaching a Compromise 1067 The Equal Protection Clause generally prohibits unreasonable and arbitrary discrimination against one person in favor of another.86 Since a criminal conviction is not a suspect classification, nor is the right to employment a fundamental right,87 courts analyze ex-offenders’ claims of employment discrimination under a rational basis test.88 And because this test is satisfied upon showing of a rational relation of the challenged practice to a “legitimate state purpose or interest,”89 it is usually met relatively easily, save some instances of blanket exclusions of ex-offenders.90 Thus, even though equal protection challenges can bring occasional success to exoffenders, they are not a reliable source for the systematic enforcement of ex-offenders’ rights.91 Similarly, substantial obstacles arise if an ex-offender chooses to challenge the governmental regulation on the basis of the Due Process Clause.92 Because procedural due process only dictates adequate procedures for depriving individuals of an interest in “life, liberty, or property,”93 exoffenders can potentially avail themselves only of substantive due process 1974) (invalidating as violative of the Equal Protection Clause an Iowa statute barring exoffenders from all civil service positions); see also Kohler, supra note 63, at 1425 (describing ex-offenders’ actions under the Equal Protection Clause). 86. See cases described supra note 85; Kohler, supra note 63, at 1417-18. 87. Schanuel v. Anderson, 546 F. Supp. 519, 524 (S.D. Ill. 1982) (citation omitted). However, even for Equal Protection purposes, courts may review the legislation disqualifying ex-offenders under the strict scrutiny test if the regulation proves to have a disparate effect on a suspect category and a plaintiff presents the evidence of an employer’s actual discriminatory intent. Washington v. Davis, 426 U.S. 229 (1976); see also Saxonhouse, supra note 65, at 1615 n.109 (noting that unlike with the theory of disparate impact, plaintiff alleging unequal treatment and desiring to obtain a strict scrutiny review must produce the evidence of an employer’s actual discriminatory purpose). 88. See Furst v. N.Y. City Transit Auth., 631 F. Supp. 1331, 1336 (E.D.N.Y. 1986); Smith v. Fussenich, 440 F. Supp. 1077, 1079 (D. Conn. 1977); Butts, 381 F. Supp. at 578. 89. Furst, 631 F. Supp. at 1336. 90. See, e.g., People v. Lindner, 535 N.E.2d 829, 833 (Ill. 1989) (invalidating the categorical revocation of a sex offender’s driver’s license on equal protection grounds); Kindem v. City of Alameda, 502 F. Supp. 1108, 1113-14 (N.D. Cal. 1980) (holding that general exclusion of ex-offenders from civil service ran afoul of the Equal Protection Clause); Smith, 440 F. Supp. at 1080-81 (invalidating a state ban on employment of exoffenders in the capacity of security guards or private detectors); see generally Saxonhouse, supra note 65, at 1621 (“[u]ntailored statutes and license denials generally do not fare well in court”). 91. See Aukerman, supra note 64, at 18, 39-43, 47-51, 65-69, 85-87 (surveying successful equal protection challenges to occupational restrictions, concluding that courts review such challenges under the “rational basis with bite” test, and proposing to treat exoffenders as a “somewhat suspect” class); Saxonhouse, supra note 65, at 1619-23 (giving an overview and analysis of equal protection cases with both successful and unsuccessful outcomes). 92. U.S. CONST. amend. XIV, § 1. 93. Id. 1068 Michigan State Law Review [Vol. 2007:1051 in order to obtain a meaningful relief from collateral disabilities.94 Substantive due process guarantees that the government cannot infringe on an individual’s “fundamental” liberty interest “unless the infringement is narrowly tailored to serve a compelling state interest.”95 If the interest involved is less than “fundamental,” the challenged regulation will not run afoul of substantive due process as long as it is “rationally connected to a governmental interest.”96 It is thus not surprising that most ex-offender-disqualifying regulations are upheld either because they do not involve any liberty interest or because they are rationally related to legitimate government goals.97 Finally, employment discrimination rarely concerns state action, and, therefore, would rarely implicate the Due Process Clause. B. Approach to Employment Discrimination against Ex-Offenders in Michigan In the motley landscape of American jurisdictions, Michigan represents one of the more employer-friendly approaches to claims of discrimination by ex-offenders. This is so despite the oft-proclaimed commitment of the state to remove barriers to former offenders’ reintegration into society.98 To be sure, the state is far from being alone in this stance since few jurisdic- 94. See DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989) (separating due process into substantive and procedural, and setting forth the differences between the two); see generally Deborah N. Archer & Kele S. Williams, Making America “The Land of Second Chances”: Restoring Socioeconomic Rights for Ex-Offenders, 30 N.Y.U. REV. L. & SOC. CHANGE 527, 552-53 (2006) (noting that procedural due process regulates only the means of depriving an individual of a protected interest). 95. Reno v. Flores, 507 U.S. 292, 302 (1993). 96. Id. at 303. 97. See, e.g., Delong v. Dep’t of Health & Human Servs., 264 F.3d 1334, 1341-43 (Fed. Cir. 2001) (concluding that an interest in continued federal employment is not fundamental and thus upholding the absolute ban on employing convicted individuals for the work with Indian children because the ban is rationally related to the government’s interest in preventing abuse of Indian children); Darks v. City of Cincinnati, 745 F.2d 1040, 1044 (6th Cir. 1984) (upholding the blanket policy of denying dance hall licenses to individuals convicted of a felony as rationally related to governmental interests); Bolden v. City of New York, 256 F. Supp. 2d 193, 195 (S.D.N.Y. 2003) (upholding the statute dismissing felons from employment with the city because public officers lose any property right in their jobs upon a felony conviction); see generally Archer & Williams, supra note 94, at 552 (concluding that due process rarely provides relief to ex-offenders). But see Kohler, supra note 63, at 1426 (giving an optimistic perspective on the power of due process to improve ex-offenders’ situation). 98. See Froede v. Holland Ladder & Manuf. Co., 523 N.W.2d 849, 852 (Mich. Ct. App. 1994) (relying on policy toward ex-offenders’ rehabilitation in restoring a former felon’s rights to serve on a jury); Rios v. Dep’t of State Police, 469 N.W.2d 71, 73 (Mich. Ct. App. 1991) (holding in favor of an applicant denied a detective’s license by citing to the state’s goal to assist ex-offenders in their reassuming responsibilities of citizenship). Winter] Reaching a Compromise 1069 tions have enacted effective measures to protect former offenders.99 The “growing, comfortable majority” of the states either do not actively regulate the use of criminal records in hiring decisions or regulate only in very limited instances.100 1. Private Employment Private employment of former offenders in Michigan is almost entirely unregulated. The only restraint against the complete freedom of private employers to engage in records-based discrimination is the prohibition against using a record of a “misdemeanor arrest, detention, or disposition where a conviction did not result.”101 Notably, the statute on its face excludes from its protective ambit the records of an arrest on felony charges.102 Naturally, people whose records have been set aside under the state’s expungement statute,103 or who have received executive pardons,104 are authorized not to disclose their previous convictions and are, therefore, no longer 99. Among the most proactive are the statutes in New York, Wisconsin, Hawaii, and Minnesota. For a more detailed description of these statutes, see infra notes 209-12 and accompanying text. Connecticut too has enacted a rather strong statute, but has not received as wide acclaim as the previous four have. See CONN. GEN. STAT. ANN. § 46a-80 (West 2004) (prohibiting denial of employment on the basis of arrest and conviction records unless a direct relationship between the previous offense(s) and employment can be established in light of three suggested factors). 100. Leavitt, supra note 15, at 1289. See id. at 1288-98 for a more thorough discussion of various jurisdictional approaches to the subject. 101. Elliott-Larsen Civil Rights Act, MICH. COMP. LAWS § 37.2205a(1) (2000). Indeed, even individuals whose employment interest was adversely affected by an employer’s use of a misdemeanor arrest record at times face insurmountable barriers in proving causation in their cases. See, e.g., Quatrine v. Shell Oil Co., No. 87-1422, 1988 WL 54093, at *3 (6th Cir. May 31, 1988) (dismissing the case of a truck driver accused by his employer of larceny and later acquitted, and holding that nothing in the pertinent provision of the ElliottLarsen Act prohibited the employer “from obtaining an arrest record in connection with its investigation of a theft by a [sic] employee against that employer”). 102. MICH. COMP. LAWS § 37.2205a(1) (2000). 103. Id. § 780.621. The statute provides for setting aside an applicant’s sole conviction provided that five years have passed since the day of the conviction or an applicant’s release and the conviction was not for a crime or attempt to commit a crime punishable by a maximum penalty of life imprisonment, or certain criminal sexual conduct crimes. Id. § 780.621(2)-(3). Nor can the statute be utilized to set aside traffic offenses. Id. § 780.621(3). 104. The power to grant executive pardons is given to the Governor, who, after receiving a recommendation of the Parole Board, may grant or refuse the pardon. MICH. CONST. art. 5, § 14. Since 1969, only thirty-three pardons have been granted in Michigan. See MARGARET COLGATE LOVE, THE SENTENCING PROJECT, RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION: A STATE BY STATE RESOURCE GUIDE, MI3 (2007), available at http://www.sentencingproject.org/tmp/File/Collateral%20Consequences/Michigan(1).pdf. 1070 Michigan State Law Review [Vol. 2007:1051 faced with disqualifications.105 But those who do not fit into these narrow exceptions are subject to unlimited discrimination stemming from biased misperceptions of cautious employers.106 2. Licensed Occupations and Public Employment Ex-offenders’ access to a host of professions in Michigan is further constricted further by the state’s requirement of professional licensure in many occupational fields.107 Along with such well-recognized areas subject to state control as medicine, law, and positions of financial responsibility,108 applicants wishing to enter multiple other professions—from barbers to dead animal dealers—must satisfy the character component of the respective statutes.109 To meet the standard, applicants are usually required to be 105. With an exception of offenses requiring registration under the provisions of the Sex Offenders Registration Act, MICH. COMP. LAWS § 28.722, the statute authorizes successful expungement applicants to state that they have never been convicted. Id. § 780.622(1); see also People v. Van Heck, 651 N.W.2d 174, 178-79 (Mich. Ct. App. 2002) (holding that a Michigan pardon “releases the punishment and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the offense”) (quotation omitted). But see Margaret Colgate Love, Starting Over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code, 30 FORDHAM URB. L.J. 1705, 1721 (2003) [hereinafter Love, Starting Over with a Clean Slate] (noting that a state pardon ordinarily will not remove disabilities imposed by federal laws). 106. Needless to say, the number of people exposed to this kind of discrimination in Michigan is great. In 2004, 48,883 persons were imprisoned in the State’s forty-three prisons and ten camps. MICHIGAN DEPARTMENT OF CORRECTIONS, 2004 ANNUAL REPORT 29 (2004), available at http://www.michigan.gov/documents/2004_Annual_Report_147719_7.pdf [hereinafter MDOC 2004 REPORT]. In addition, about 18,000 people were released on parole, and about 54,000 more were under probation supervision. Id. Majority of these people will be discriminated against by employers. Statistics gathered in the 1990s in Los Angeles, for example, confirmed that over forty percent of employers unconstrained by legal limitations would “definitely” abstain from hiring ex-offenders. Harry J. Holzer et al., The Effect of an Applicant’s Criminal History on Employer Hiring Decisions and Screening Practices: Evidence from Los Angeles (Dec. 2004) (unpublished research paper, National Poverty Center), available at http://socrates.berkeley.edu/~raphael/04-15.pdf. Worse yet, even in the event that employers do not conduct a background check, they are more prone to engage in “statistical discrimination” resulting in “attributing the perceived attributes of one’s readily definable group to the individual and making decisions accordingly, in order to minimize the risk of hiring an ex-offender.” Steven Raphael, Should Criminal History Records Be Universally Available?, 5 CRIMINOLOGY & PUB. POL’Y 515, 518 (2006). 107. See Walter Gellhorn, The Abuse of Occupational Licensing, 44 U. CHI. L. REV. 6 (1976), for a thoughtful criticism of the present licensing system, and the proposal that applicants be registered for the occupation automatically and the responsibilities of supervising the profession’s members be conferred on an independent body not associated with the occupation itself. 108. MICH. COMP. LAWS §§ 333.16174, 600.934, 339.725 (2001) (licensing requirements for health specialists, lawyers, and public accountants respectively). 109. Id. § 339.1105 (barbers), id. § 287.661 (dead animal dealers). Among other areas of state regulation are foresters, id. § 339.2103; real estate brokers and salespersons, id. Winter] Reaching a Compromise 1071 of “good moral character,” a phrase vaguely defined as a “propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner.”110 Exactly what this elocution amounts to is unclear even in theory, although it is generally recognized that a record of a conviction cannot serve as the sole basis for license denial.111 To be sure, in its attempt to curtail unjust application of licensing laws to former criminals, Michigan’s Licensing of Former Offenders Act112 prohibits the discriminatory use of arrest records and records of reversed or vacated convictions, convictions for offenses not entailing jail punishments, and convictions “unrelated to the person’s likelihood to serve the public in a fair, honest, and open manner.”113 Moreover, the Act mandates that upon denying a license, the administrative body furnish to an applicant a written explanation of its decision, appeal to which can be taken before the same administrative board or in one of the state’s circuit courts.114 In practice, however, the contours of the good moral character inquiry are far from being ex-offender-friendly.115 The overall elusiveness of the § 339.2505; insurance producers, id. § 500.1204; insurance solicitors, id. § 500.1214; adjusters, id. § 500.1224; insurance counselors, id. § 500.1234; private detectives, id. § 338.826; plumbers, id. § 338.3527; boxing promoters, id. § 338.3633; collection agents, id. § 339.904; employment or consulting agents, id. § 339.1004; cosmetologists, id. § 339.1207; electrologists, id. § 339.1208; manicurists, id. § 339.1209; estheticians, id. § 339.1210; individuals practicing natural hair cultivation, id. § 339.1210a; hearing aid dealers, id. §339.1305; individuals engaging in mortuary science, id. § 339.1806; mechanical contractors, id. § 338.976; residential builders, id. § 339.2404; casino gaming organizations representatives, id. § 432.207c; and individuals involved in using dogs and cats for research, id. § 287.383. 110. Id. § 338.41. After all, much enigma surrounds drawing the magic line between a good and a bad moral character. See Donald R. Stacy, Limitations on Denying Licensure to Ex-Offenders, 2 CAP. U. L. REV. 1, 5-6 (1973) (suggesting, instead of the current system, the automatic granting of licensure to ex-offenders). 111. See Rios v. Dep’t of State Police, 469 N.W.2d 71 (Mich. Ct. App. 1991) (upholding the denial of the plaintiff’s detective license not on the basis of the conviction itself, but because of the underlying conduct suggestive of the applicant’s dishonesty and deceit). 112. MICH. COMP. LAWS § 338.43 (2007); see Miriam J. Aukerman, Barriers to Reentry: Legal Strategies to Reduce Recidivism and Promote the Success of Ex-offenders, 2003 MICH. CRIM. L. ANN. J. 4, 6 (describing the Licensing of Former Offenders Act as one source of ex-offenders’ protection in Michigan). 113. MICH. COMP. LAWS § 338.43(1)(c) (2007). 114. Id. §§ 338.45-46. 115. See Bruce E. May, The Character Component of Occupational Licensing Laws: A Continuing Barrier to the Ex-Felon’s Employment Opportunities, 71 N.D. L. REV. 187, 197 (1995) (characterizing statutes styled in terms of good moral character as “the second greatest barrier to the ex-felon obtaining an occupational license” after the statutes expressly excluding ex-felons from licensure). But see Kenneth Olson & Richard A. Pasewark, Licensing Restrictions for Criminal Offenders, 5 J. OFFENDER COUNSELING SERVS. & REHAB.19, 19 (1980) (concluding that although almost all occupations restrict access to ex-offenders based on moral character, these restrictions end in denials of licenses solely based on a criminal record extremely rarely). 1072 Michigan State Law Review [Vol. 2007:1051 standard, the zealous vigilance of decisionmakers on guard of the chastity of their profession, the lack of express guidelines for measuring the relevance of past convictions to the licensed activity, and the omission of rehabilitation-suggestive factors from the agency’s consideration usually defeat success of aspiring ex-offenders.116 As one commentator correctly notes, in the face of the rising outsourcing of low-skill positions and multiplying licensure requirements in technical and professional skills spheres, ex-offenders’ prospects of gaining satisfactory employment grow increasingly dimmer.117 These problems are exacerbated by intolerance towards a past criminal record in the public employment sector.118 For instance, the policy of the Michigan Department of Corrections is to reject, in a blanket-like manner, any candidates with a felony conviction, any controlled substance violation, as well as applicants convicted of a misdemeanor less than one year ago, and even those with misdemeanor or felony charges pending.119 Even the Michigan law enforcement standards, which are usually higher than standards used in other types of public employment, are less stringent: they disqualify only ex-felons.120 The situation is marginally better in the Michigan public schools that reject applicants on the basis of only enumerated convictions.121 Finally, the Michigan Department of Human Services promises to 116. See Archer & Williams, supra note 94, at 535-39 (pointing to these and other drawbacks of licensing laws, such as their essentially retributive nature, their especially devastating effects on offenders who are unable to use the skills they acquired before or during their prison terms, and hurdles imposed on ex-offenders vicariously through the loss of driving privileges); see also Walter Matthews Grant et al., The Collateral Consequences of a Criminal Conviction, 23 VAND. L. REV. 929, 1009-10 (1970) (criticizing “good moral character” requirement for its nebulous relationship to some of the regulated professions and for creating a fertile ground for exclusion of ex-offenders). 117. See Marlaina Freisthler & Mark A. Godsey, Going Home to Stay: A Review of Collateral Consequences of Conviction, Post-Incarceration Employment, and Recidivism in Ohio, 36 U. TOL. L. REV. 525, 539 (2005) (supporting an ex-offender anti-discrimination bill currently pending in the Ohio legislature). 118. As one commentator put it, the unwillingness of a state government to give exoffenders a second chance at public employment and licensing is “a sad commentary on the state’s opinion of its ability to reform offenders.” Barry M. Portnoy, Employment of Former Criminals, 55 CORNELL L. REV. 306, 317 (1970). 119. Michigan Department of Corrections, Corrections Officer Selection and Probation Process (2006), http://www.michigan.gov/documents/Hire_Process_156436_7.pdf (last visited Feb. 1, 2008). 120. See Michigan Commission on Law Enforcement Standards, Employment Standards for Michigan Law Enforcement Officers, http://www.michigan.gov/documents/Standards_List-10-04_155315_7.pdf. Interestingly, however, the employment standards require law enforcement applicants to disclose even instances of previous arrests not resulting in a conviction and of expunged convictions. Id. 121. MICH. COMP. LAWS § 380.1539b (2005) (prohibiting schools from employing public school teachers convicted of a set number of enumerated offenses involving mainly morally compromising offenses related to minors). The statute mandates school employees Winter] Reaching a Compromise 1073 consider each applicant’s individual criminal record before making a hiring decision, focusing on the length of time since the conviction date, the relation of a conviction to perspective employment, and the sincerity of an applicant in disclosing the conviction.122 However noble the spirit of the policy, though, it may prove to be rather ineffective in the absence of welldefined factors for measuring direct relationship and of the sanctions enforcing the prescribed course. Taken together, these regulations amount to obstacles that can be drastically out of proportion with the long-faded culpability of ex-offenders. 3. Accessibility of Criminal Records in Michigan As discussed previously, the current legal system in Michigan does not place on employers an affirmative obligation for conducting a criminal background search, except for some limited instances.123 Yet, the uncertainty of the negligence hiring standards, the recent drastic rise in workplace violence, and the enhanced post-9/11 willingness of employers to gain a deeper understanding of prospective employees’ backgrounds lead thousands of employers into the market of criminal records search.124 Unlike some states,125 Michigan does not provide employers with free and unreto report any newly-brought qualified charges to the Michigan Department of Education within fifteen days. Id. § 380.1230d. 122. Michigan Department of Human Services, Criminal History Files Search by Fingerprint(s) 1 (Jan. 1, 2006), http://www.mfia.state.mi.us/olmweb/ex/ahp/629-9.pdf. 123. See discussion supra Section I.B. The Michigan legislature has recently imposed an affirmative requirement of conducting a criminal background check in the healthcare sphere embracing nursing homes, county medical care facilities, hospitals with swing bed services, Medicare-certified home health agencies, facilities for mentally retarded, and psychiatric facilities and inpatient services. H.R. 5168, 93d Leg., Reg. Sess. (Mich. 2006); H.R. 5448, 93d Leg., Reg. Sess. (Mich. 2006); S.B. 621, 93d Leg., Reg. Sess. (Mich. 2006); S.B. 622, 93d Leg., Reg. Sess. (Mich. 2006); H.R. 4057, 91st Leg., Reg. Sess. (Mich. 2002). See Aukerman, supra note 112, at 5 (characterizing as “draconian” the statutory barriers to ex-offenders’ employment created by the recent Michigan Nursing Home law). 124. See Holzer et al., supra note 106, at 23-26 (presenting the statistical evidence from Los Angeles and explaining the reasons for an inclination of employers to conduct background checks on prospective recruits). See also Louis P. DiLorenzo, An Emerging Trend in State Employment Law—Employers’ Responsibility to Conduct Employment Background Checks, A.L.I.-A.B.A., June 3-5, 2004, at 359 (cataloguing recent developments in states’ approaches to background checks, and endorsing their use). 125. For example, Georgia law, GA. CODE ANN. § 35-3-34.1 (Supp. 2003), authorizes employers’ free access to a “first offender’s record of arrests, charges, or sentences for certain sexual offenses” upon the offender’s application to certain sensitive positions. Joseph Larkin, Georgia Bureau of Investigation: Provide Records Related to the Prosecution of Certain Offenses to Potential Employers Involved in Caring for Minor Children, the Elderly, or the Mentally Afflicted, 20 GA. ST. U. L. REV. 179, 183-84 (2003) (describing the recently enacted law as striking the correct balance between the utility of criminal records, protection of vulnerable groups, and employees’ status as first-time offenders). Free records have also 1074 Michigan State Law Review [Vol. 2007:1051 stricted access to its criminal database, with the significant exceptions of its Offender Tracking Information System126 and the Michigan Sex Offender Registry.127 The records provided by these two systems somewhat overlap and contain only crimes grave enough to warrant either registration as a sex offender or serving a term in the Department of Corrections.128 To fill this void, the Michigan State Police, for a modest fee of ten dollars, provides interested employers with the records of one’s misdemeanors and felonies, as well as arrests.129 Along with the commercial efforts of the Michigan State Police, many other out-of-state providers are also in the market of background searches.130 Unfortunately, in this sea of information, the accubecome recently available to Michigan nursing homes and healthcare facilities by virtue of a pilot U.S. Department of Health and Human Service-funded program aimed at developing a “comprehensive background-check system” for these specific needs. Press Release, Michigan State University Newsroom, $5 million Grant to Fund Program to Improve NursingHome Employee Background Checks (Feb. 1, 2005), available at http://newsroom.msu.edu/site/indexer/2296/content.htm. Likewise, non-profit agencies can receive fee-waived Michigan record checks for any of their volunteers. See Michigan State Police, ICHAT Offers Fee-Waived Michigan Criminal History Background Checks to NonProfit Charitable Agencies, http://www.michigan.gov/documents/BACKGROUND_CHECKS_96361_7.pdf. 126. Offender Tracking Information System, Michigan Department of Corrections, http://www.state.mi.us/mdoc/asp/otis2.html (last visited Feb. 1, 2008). This registry contains criminal records of people who have been or currently are under the supervision of the Michigan Department of Corrections, serving their terms for either misdemeanor or felony offenses. Id. 127. Michigan State Police, Michigan Public Sex Offender Registry, http://www.mipsor.state.mi.us (last visited Feb. 1, 2008). This registry is a much more detailed compilation of records tracking individuals convicted of certain sexual offenses and required to register under the Sex Offender Registration Act, MICH. COMP. LAWS §§ 28.72128.731 (2004 & Supp. 2006). Apart from these two services, some courts also provide free and unrestricted access to their computerized records containing the entries of individuals’ arrests, convictions, and sentencing results. See, e.g., Oakland County, Michigan, Oakland County District Court Case Search, http://www.oakgov.com/crts0004/main (last visited Feb. 1, 2008). 128. See Offender Tracking Information System, supra note 126 (containing information only on individuals who have been sentenced to serve a term in the Michigan Department of Corrections); Michigan Public Sex Offender Registry, supra note 127 (encompassing only individuals convicted of sex-related crimes). 129. Michigan State Police, Internet Criminal History Access Tool, http://mimall.michigan.gov/webapp/wcs/stores/servlet/StoreCatalogDisplay?storeId=10201&langId=1&catalogId=10201 (last visited Feb. 1, 2008). Michigan is one of the ten states that does not allow for expungement or sealing of records of arrest. Debbie A. Mukamal & Paul N. Samuels, Statutory Limitations on Civil Rights of People with Criminal Records, 30 FORDHAM URB. L.J. 1501, 1509-10 (2003). 130. See, e.g., Background Ferret, Michigan Criminal Records Background Checks, http://www.backgroundferret.com/catalog/michigan_criminal_records_background_checks_ 127768_products.htm (last visited Feb. 1, 2008) (providing information about state convictions at the price of $12.95-$24.95, depending on the time span and depth of investigation); Criminal-records-search.com, Michigan Criminal Records Search, http://www.criminal- Winter] Reaching a Compromise 1075 racy of the distributed criminal records leaves much to be desired, yet the mistakes may be of tragic consequences to the aggrieved.131 III. TOWARDS A HOLISTIC MODEL OF IMPROVING EX-OFFENDERS’ EMPLOYMENT Despite its drawbacks,132 the law of negligent hiring serves legitimate purposes that could not be achieved through the system of workers’ compensation or the doctrine of respondeat superior—prevention of workplace violence and provision of meaningful compensation to its victims.133 While the negligent hiring doctrine in Michigan is not nearly as employer-averse as in some jurisdictions,134 its indeterminate scope, potentially grim consequences, and dangers of jury hindsight—all compounded by other factors records-search.com/michigan-criminal-records (last visited Feb. 1, 2008) (furnishing a report on any convictions, arrests, and warrants that occurred in and outside of Michigan for a price of $26.95-$39.95); Accurate Credit Bureau, Michigan Criminal Records Search, http://accuratecredit.com/html/criminal-records-michigan.html (last visited Feb. 1, 2008) (providing a statewide convictions report for a price of $27.50). 131. See Letter from Community Legal Services, Inc. to Richard A. Herling, Deputy Assistant Attorney General (Aug. 5, 2005), available at http://126.96.36.199/olp/pdf/commentstoag.pdf (noting, on the basis of evidence from Pennsylvania, that errors in criminal records are pervasive and call for an urgent corrective action). 132. One paradox of the negligent hiring doctrine is the unparalleled burden that it places on employers who are usually not well-versed in matters of criminal justice. Indeed, this burden is much higher than the burden carried by parole boards and professionals responsible for the placement of ex-offenders in the community, who are usually either entirely immune from liability or have much less stringent duties with respect to their decisions. See Haerle, supra note 28, at 1320 (noticing this paradox). 133. While the majority of negligent hiring cases involve violent acts, the rationale of the doctrine applies equally to economic crimes. See, e.g., Pruitt v. Pavelin, 685 P.2d 1347, 1354 (Ariz. Ct. App. 1984) (negligent hiring liability for hiring a convicted real estate agent who defrauded the plaintiff); see also Katrin U. Byford, The Quest for the Honest Worker: A Proposal for Regulation of Integrity Testing, 49 SMU L. REV. 329, 361 (1996) (“Nothing in the nature of negligent hiring as a theory of liability would confine its application strictly to those circumstances where the plaintiff sustained physical injury rather than economic damage.”). Although possible in theory, the author has not located any Michigan cases imposing negligent hiring liability for economic losses. 134. Compare Michigan negligent hiring cases discussed supra notes 19, 28, with Bryant v. Livigni, 619 N.E.2d 550, 553 (Ill. App. Ct. 1993) (imposing negligent retention liability by imputing to the management the knowledge of other store employees about their co-worker’s prior violent acts), and Ponticas v. K.M.S. Invs., 331 N.W.2d 907 (Minn. 1983) (imposing negligent hiring liability on the apartment complex that, upon hiring, failed to investigate the criminal background of the complex manager who later assaulted the tenant); see generally Charles A. Odewahn & Darryl L. Webb, Negligent Hiring and Discrimination: An Employer’s Dilemma?, 40:11 LAB. L.J. 705, 705-09 (1989) (discussing early aggressive negligent hiring cases from other states). 1076 Michigan State Law Review [Vol. 2007:1051 disfavoring employment of ex-offenders135—militate against employers’ hiring applicants with record of past transgressions.136 These side effects of the doctrine create a disproportionate and unfair punishment of ex-offenders and are at odds with the major tenets of penology.137 And although Michigan’s overall treatment of ex-offenders is not the worst in the country,138 unique economic difficulties of the state, its tight employment market, and high crime rates add urgency to the problem as the state is struggling with the financial burdens of such an unforgiving system of justice.139 Under these circumstances, a holistic model of well-coordinated statutory measures140 is necessary to prevent an ever-increasing number of Michigan ex-offenders141 from facing an “internal exile.”142 135. Along with the heavy stigma of a criminal conviction, ex-offenders are usually set back by virtue of their poor education and lack of “soft skills,” such as general presentability, effective oral communication, and commitment to showing up at work on time and ready to learn. Raphael, supra note 106, at 517. To make matters worse, seventy percent of all prisoners function at the two lowest literacy levels, see Second Chance Act of 2005, H.R. 1704, 109th Cong. § 2(22) (2005), eighty-four percent of the prison population has a history of drug or alcohol abuse, and the rate of mental diseases among prisoners is four times as high as that in the general population. Anthony C. Thompson, Navigating the Hidden Obstacles to Ex-Offender Reentry, 45 B.C. L. REV. 255, 259 (2004). 136. According to one survey, as many as sixty-five percent of employers would not hire an ex-convict. See Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 AM. U. L. REV. 65, 133 n.313 (2004) (describing a survey conducted in five major American cities) (citation omitted). But see Holzer et al., supra note 106, at 7 (reporting the results of the more optimistic survey in Los Angeles where about thirty-five percent of employers would be willing to hire ex-offenders depending on the nature of a crime). 137. See Andrew von Hirsch & Martin Wasik, Civil Disqualifications Attending Conviction: A Suggested Conceptual Framework, 56 CAMBRIDGE L.J. 599, 605 (1997) (cautioning against relegating ex-offenders to the status of “second-class citizenship” and emphasizing the importance of the penology rule of imposing disqualifications “parsimoniously, with appropriate restrictions of purpose, duration, and scope”). 138. According to one study, Michigan is ranked ninth on a list of the most progressive states based on the number of legal barriers to ex-offender reentry that a state’s laws and policies create. LEGAL ACTION CTR., AFTER PRISON: ROADBLOCKS TO REENTRY: A REPORT ON STATE LEGAL BARRIERS FACING PEOPLE WITH CRIMINAL RECORDS 21 (2004), available at http://www.lac.org/lac/upload/lacreport/LAC_PrintReport.pdf [hereinafter ROADBLOCKS TO REENTRY]. Yet, the study was probably too hasty to praise the State’s advancements: Just recently, Michigan adopted a provision permanently disqualifying ex-felons from jury service. MICH. COMP. LAWS § 600.1307a(1)(e) (Supp. 2006) (amended by the Act of Dec. 30, 2002, Pub. L. No. 739, 2002 Mich. Legis. Serv. 739 (West) (effective Oct. 1, 2003)). 139. See discussion supra note 106 for information on the number of Michigan prisoners, parolees, and probationers. The Department of Corrections’ appropriations in 2004 was 1.7 billion dollars, MDOC 2004 REPORT, supra note 106, at 29, compared with 1.6 billion as recently as in 2000. THE MICHIGAN DEPARTMENT OF CORRECTIONS, 2000 ANNUAL REPORT 150 (2000), available at http://www.michigan.gov/documents/2000annualreport_2420_7.pdf. 140. The “holistic perspective” on ex-offender discrimination is especially important, and is to be contrasted with the “compartmentalization” of efforts to eradicate ex-offender discrimination. Michael Pinard, An Integrated Perspective on the Collateral Consequences Winter] Reaching a Compromise 1077 A. Court-Issued Orders Restoring Ex-Offenders’ Rights The concept of the individualized restoration of ex-offenders’ rights originated in the 1940s in the context of sealing or expunging conviction records for youthful offenders143 and was later extended to employment disqualifications against all ex-offenders.144 Building on these principles, New York has been in the vanguard of states that implemented the idea of rehabilitation certificates, which limited the discretion of employers in hiring applicants with tarnished backgrounds.145 Its lead has been followed by several states, but Michigan is not one of them.146 Yet, the idea, if slightly modified, merits the attention of Michigan legislators. Without interfering with valid goals of law enforcement in arof Criminal Convictions and Reentry Issues Faced by Formerly Incarcerated Individuals, 86 B.U. L. REV. 623, 623 (2006). In the absence of good coordination between different measures protecting ex-offenders, efforts of one group may cancel out the efforts of another, thus reducing the overall efficiency of an ex-offender program in a state. Id; see also infra notes 241, 267. 141. Without any mechanism for removal of records, the number of people with criminal records is certain to increase. See Pager, supra note 12, at 507. This effect is multiplied by the activities of commercial data providers, who are prone to disseminate the records even after they are officially sealed. See EMPLOYMENT SCREENING FOR CRIMINAL RECORDS: ATTORNEY GENERAL’S RECOMMENDATIONS TO CONGRESS 21 (Aug. 5, 2005), available at http://www.nelp.org/docUploads/AGCommentsNELP.pdf (reporting that fiftyseven percent of the commercial criminal history providers would be willing to search their records beyond the statutory cut-off point). 142. The term is borrowed from Nora V. Demleitner, Preventing Internal Exile: The Need for Restrictions on Collateral Sentencing Consequences, 11 STAN. L. & POL’Y REV. 153, 153 (1999), and aptly describes the “exclusion of ex-offenders from . . . the labor market . . . [that] parallels the effect of restrictions on the ex-offender’s right to contract in the nineteenth and twentieth centuries.” Id. at 156. 143. See Love, Starting Over with a Clean Slate, supra note 105, at 1709 (exploring the origins of the concept of expungement). 144. For an early proposal of the idea of issuing a Certificate of Rehabilitation to facilitate employment of ex-offenders, see Michael Meltsner et al., An Act to Promote the Rehabilitation of Criminal Offenders in the State of New York, 24 SYRACUSE L. REV. 885 (1973). 145. The New York statute authorizes two kinds of certificates. First, the State may issue a Certificate of Relief from Disabilities, N.Y. CORR. LAW § 701 (McKinney 2003), granted either by the sentencing court, id. § 702, or by the board of parole, id. § 703. Second, the State has the power to grant a Certificate of Good Conduct, which is issued after a certain period of rehabilitation varying in length from one to five years depending on the seriousness of the offense, id. § 703a-b. While both certificates grant ex-offenders relief against absolute, conviction-based licensing or employment disqualifications and provide the presumption of rehabilitation, they do not foreclose review of an underlying offense in employment or licensing context. See OFFICE OF THE PARDON ATTORNEY, U.S. DEP’T OF JUSTICE, CIVIL DISABILITIES OF CONVICTED FELONS: A STATE-BY-STATE SURVEY 81-82 (1996). 146. To be precise, five states have followed—to a greater or lesser degree—New York’s example. See ROADBLOCKS TO REENTRY, supra note 138, at 10 (listing—in addition to New York—Arizona, California, Illinois, Nevada, and New Jersey). 1078 Michigan State Law Review [Vol. 2007:1051 chiving criminal records,147 rehabilitation certificates create for eligible applicants a presumption of rehabilitation pertinent to finding good moral character in licensing decisions.148 They also demand a more personalized approach to private and public employment decisions. An individualized risk assessment eliminates automatic disqualifications of ex-offenders from employment and other benefits while leaving to employers the necessary discretion149 unclouded by prejudice.150 The certificate thus helps to replace blanket restrictions on ex-offenders’ employment with optional, utilitarian 147. Evaluations of the value of criminal records vary from laudatory to skeptical. Some view a conviction as “the most accurate tool for predicting whether a person is dishonest or has a propensity for violence.” Monica Scales, Employer Catch-22: The Paradox Between Employer Liability for Employee Criminal Acts and the Prohibition Against ExConvict Discrimination, 11 GEO. MASON L. REV. 419, 420 (2002); accord T. Markus Funk, The Dangers of Hiding Criminal Pasts, 66 TENN. L. REV. 287, 303 (1998) (debunking the idea of sealing juvenile records from employers’ view). Yet, others underscore that predictability of reoffending is based on a great variety of variables, and “risk can attach only to those individuals who exhibit multiple risk characteristics.” Harris & Keller, supra note 5, at 12; accord Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 CRIMINOLOGY & PUB. POL’Y 483, 483 (2006) (endorsing the prognostic value of criminal records shortly following the arrest, but concluding that after six or seven years, the risk of reoffending “begins to approximate (but not match) the risk of new offenses among persons with no criminal record”). See also Jeffery T. Ulmer, Intermediate Sanctions: A Comparative Analysis of the Probability and Severity of Recidivism, 71 SOC. INQUIRY 164, 185 (2001), for a conclusion that compared to men, women with previous arrests are less likely to be rearrested and their subsequent arrests are likely to be for less serious offenses. 148. See Legal Action Center, Recommended Key Provisions for Certificate of Rehabilitation Legislation, http://www.lac.org/toolkits/certificates/Key%20Provisions%20%20Certificates.pdf (last visited Feb. 1, 2008) [hereinafter Recommended Key Provisions] (describing the presumptive effect of New York rehabilitation certificates in licensing determinations of good moral character). 149. Of course, in a case of racial discrimination, neither the law of negligent hiring nor the anti-discrimination measures protecting convicted individuals should be able to alter the truism that employers are allowed to rely on their personal preferences in selecting their employees. Cf. D. Marvin Jones, No Time for Trumpets: Title VII, Equality, and the Fin de Siecle, 92 MICH. L. REV. 2311, 2339 (1994) (“The line dividing between racial animus and the employer’s taste—to hire and fire whom he pleases for good reason, bad reason, or no reason at all—again becomes the dividing line between public and private spheres of decisionmaking.”) (citation omitted). 150. Critics of this approach may point out that public and private employers might not be sufficiently influenced by the certificates. See Pager, supra note 12, at 508 n.4 (pointing to ineffectiveness of certificates in eradicating employers’ preconceptions); Debbie A. Mukamal, Confronting the Employment Barriers of Criminal Records: Effective Legal and Practical Strategies, 33 CLEARINGHOUSE REV. 597, 604 (2000) (doubting the powerful effects of certificates on private employers); cf. Geiger, supra note 54, at 1201 (noting, in the context of arrest records, that unless they are sealed, employers might be in the “dubious position of being able to view, but not consider” them). To cure this possible drawback, certificates should be replaced by restoration orders issued by sentencing courts, which would grant the decision the judicial imprimatur deserving of employers’ respect. See infra Subsection III.A.1. Winter] Reaching a Compromise 1079 disqualifications based on the conduct underlying the conviction, rather than the fact of the conviction itself.151 1. Advantages over Other Methods of Restoration The legal effect and persuasiveness of the certificates to employers could be enhanced if they were issued exclusively by the sentencing court, rather than an administrative body,152 in the form of an order removing an ex-offender’s disabilities—either directly upon sentencing or at a later time, upon an individual’s application.153 Such a two-tiered model would complement the current Michigan system of equalizing ex-offenders’ opportunities or, perhaps, altogether replace its limited and rarely-utilized expungement and pardon provisions.154 151. A similar movement towards finding the middle ground between automatic disqualifications based on a conviction and automatic reinstatement to the status quo ante existed in Europe in the twentieth century. See Mirjan R. Damaska, Adverse Legal Consequences of Conviction and Their Removal: A Comparative Study (Part 2), 59 J. CRIM. L. CRIMINOLOGY & POLICE SCI. 542, 564-67 (1968). Today, when the time colored by the “get tough” attitude towards crime characteristic of the 1980-90s has seemingly passed, the idea of gradual elimination of collateral consequences of a conviction is supported by many authors. See, e.g., Freisthler & Godsey, supra note 117 (proposing to prohibit conviction-based disqualifications unless they are justified because of the conduct underlying convictions); Sharon M. Dietrich, Criminal Records and Employment: Ex-Offenders Thwarted in Attempts to Earn a Living for Their Families, in CTR FOR LAW AND SOC. POL’Y & CMTY. LEGAL SERVS., INC., EVERY DOOR CLOSED: BARRIERS FACING PARENTS WITH CRIMINAL RECORDS 13, 25 (2002) [hereinafter EVERY DOOR CLOSED] (endorsing expungement of records after a period of time, sealing records, offering certificates of rehabilitation, and reexamining pardon standards); Nora V. Demleitner, “Collateral Damage”: No Re-Entry for Drug Offenders, 47 VILL. L. REV. 1027, 1053 (2002) (proposing a “Marshall Plan” of post-sentence assistance to drug offenders where “[e]very step toward rehabilitation would be rewarded with greater access to the labor market”). 152. Naturally, the exclusive power of courts to issue such removal orders does not mean the cessation of any collaboration between the probation or parole offices and the courts. In appropriate circumstances, courts should be able to order recommendations from the probation or parole personnel, as well as, perhaps, from the prosecuting attorney. But see Note, Winning the War on Drugs: A “Second Chance” for Nonviolent Drug Offenders, 113 HARV. L. REV. 1485, 1501-02 (2000) (pointing out an internal conflict between prosecutorial initial duties to condemn and convict a defendant and the subsequent obligation to objectively assess the degree of a defendant’s rehabilitative success). 153. The restoration of ex-offenders’ status is achieved also by way of a court decision in Italy, Greece, Switzerland, Poland, Turkey, and a number of South American countries. See Damaska, supra note 151, at 564. The same approach is advocated by the American Law Institute’s MODEL PENAL CODE § 306.6. See Love, Starting Over with a Clean Slate, supra note 105, for a thoughtful analysis of the Section and a strong argument in favor of its adoption. 154. See the description of expungement and pardon mechanisms in Michigan supra notes 103-05. The same approach of vesting judges with the responsibilities of removing civil disabilities of ex-offenders seems to exist in Arizona. See ARIZ. REV. STAT. ANN. § 13- 1080 Michigan State Law Review [Vol. 2007:1051 The court-issued restoration order is superior to the automatic restoration155 in that it represents a thorough, judicially-weighed judgment on the degree of the person’s rehabilitation, and serves as a more reliable indicator of one’s good moral character.156 Because it does more than simply attest to the crime-free conduct of an applicant during the specified period of time, the restoration order surpasses, in its effect, New York’s Certificates of Relief from Disabilities issued by the Parole Board or Certificates of Good Conduct.157 Further, as an order issued by the courts of the state, the restoration order carries with it the kind of judicial imprimatur that the Certificate issued by the Parole Board or an administrative agency would lack.158 Likewise, the removal order provides a superior alternative to a lengthy, unreliable, and rarely-utilized procedure of executive pardons, which takes years to complete, varies from jurisdiction to jurisdiction, has a political price attached to it,159 and is ineffective with respect to federal disqualifications.160 906(A)-(B) (2001) (providing for the restoration of ex-offenders’ civil rights “by the superior court judge by whom the person was sentenced or his successors in office”). 155. One interesting method of the automatic restoration of ex-offenders’ rights used in England has been to pass a statute that would prohibit individuals and entities from counting an offense as a conviction or giving it the legal effect of such. See von Hirsch & Wasik, supra note 137, at 604 (describing the Powers of Criminal Courts Act 1973). 156. See Love, Starting Over with a Clean Slate, supra note 105, at 1719. Even though some licensing agencies or professional boards may consider convictions in determining an applicant’s good moral character despite the issued certificate, a better enforcement of the State’s anti-discrimination statute, see infra Section III.B, wider public dissemination of the information about the statute, and the requirement of thorough explanation of an adverse hiring or licensing decision may remedy this potential drawback. See THE INDEP. COMM. ON REENTRY & EMPLOYMENT: REPORT AND RECOMMENDATIONS TO NEW YORK STATE ON ENHANCING EMPLOYMENT OPPORTUNITIES FOR FORMERLY INCARCERATED PEOPLE 57 (2006) [hereinafter REPORT AND RECOMMENDATIONS TO NEW YORK STATE] (reporting that “more often than not” employers and licensing boards consider one’s criminal record as reflecting on the person’s moral character). 157. See supra note 145 for a detailed description of the New York’s model for issuing these Certificates. 158. See Love, Starting Over with a Clean Slate, supra note 105, at 1732 (“[B]ecause it requires the personal action of a judge, restoration under section 306.6(1) [of the Model Penal Code] carries with it a certain imprimatur of official respectability that automatic restoration and administrative procedures do not have.”). 159. As is well-known, ex-offenders—who are themselves a politically impotent group—are not particularly popular with the public. See Harris & Keller, supra note 5, at 23. Thus, governors, including those from Michigan, have not been too ardent in granting pardons to applicants. See discussion of the frequency of pardons in Michigan supra note 104. 160. See Love, Starting Over with a Clean Slate, supra note 105, at 1720-23 (noting the drawbacks of state pardon mechanisms). Federal laws, meanwhile, set a multitude of roadblocks on ex-offenders’ way to successful reintegration. See OFFICE OF THE PARDON ATTORNEY, U.S. DEP’T OF JUSTICE, FEDERAL STATUTES IMPOSING COLLATERAL CONSEQUENCES UPON CONVICTION (2000), available at http://www.usdoj.gov/pardon/collateral_consequences.pdf (enumerating federal statutes disqualifying ex-offenders Winter] Reaching a Compromise 1081 Removal orders would also provide relief to a broader spectrum of exoffenders than would be eligible through an expungement procedure.161 In addition, unlike expungement, which is founded on the fiction that the offense never happened, a removal order would not attempt to conceal the truth, but, to the contrary, would stand as a proud pronouncement of an exoffender’s rehabilitation.162 Naturally, upon issuance, a removal order must be entered into an applicant’s criminal record, perhaps, with an explanation of its legal effect for employers’ information.163 In that way, the order, albeit leaving the record transparent for scrutiny, would still provide the presumption of complete rehabilitation for the purposes of licensing and absolve public or private employers from negligent hiring liability.164 Another advantage of having removal orders issued potentially upon sentencing is the resulting treatment of collateral consequences of a conviction as a “part of the sentence itself,” which subjects them to the usual sentencing restraints of “fairness and proportionality.”165 Accordingly, informfrom various opportunities); see also Meltsner et al., supra note 144, at 889-90 (“When it comes to providing jobs . . . those very entities that are responsible for rehabilitating prisoners—the states and the federal government—set a most unedifying example.”) (quoting PRESIDENT’S TASK FORCE ON PRISONER REHABILITATION, THE CRIMINAL OFFENDER—WHAT SHOULD BE DONE? 10 (1970)). Sadly, the number of federal restrictions on ex-offenders’ employment has increased significantly after September 11, 2001. See REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 13. 161. As noted previously, Michigan, like many states, limits expungement to first offenders, excluding certain sexual offenses and offenses carrying potential life sentences. See supra note 103. 162. See Love, Starting Over with a Clean Slate, supra note 105, at 1726 (“[E]xpungement fails to afford an opportunity for the offender to be reconciled to the community and ‘helps society to evade its obligation to change its views toward former offenders.’”) (citation omitted); see also Portnoy, supra note 118, at 317 (emphasizing the ineffectiveness of pardons and expungement provisions as “indirect methods of blotting out past crimes” because of society’s reluctance “to give up its right to know”). 163. See Recommended Key Provisions, supra note 148, at 2 (instructing states enacting the rehabilitation certificates procedure to make a notation about an award of the certificate upon an ex-offender’s record). In conjunction with the requirement of the notation on the record, the State must either mandate that commercial data providers verify the completeness of their records upon release to clients, or altogether restrict the task of dissemination of records to state repositories. See EMPLOYMENT SCREENING FOR CRIMINAL RECORDS: ATTORNEY GENERAL’S RECOMMENDATIONS TO CONGRESS, supra note 141, at 16 (proposing to reserve a function of conducting criminal records searches to state agencies and to limit the records accessible by employers to the results of a standard “fitness determination” inquiry); see also discussion infra Subsection III.C.1. 164. See discussion infra Subsection III.B.1. The function of a removal order as releasing an employer from potential negligent hiring liability is of paramount importance. In this aspect, a removal order differs from the New York certificate of rehabilitation, which does not prevent employers and licensing bodies from considering the underlying offenses and consequently does not shield them from negligent hiring liability. See supra note 145. 165. Love, Starting Over with a Clean Slate, supra note 105, at 1732. Then, the consequences of a conviction become “calibrated specifically to the offense and offender’s 1082 Michigan State Law Review [Vol. 2007:1051 ing an individual of the collateral consequences of a conviction becomes the necessary condition of accepting a plea, which, in turn, increases the accused’s awareness of the far-reaching importance of entering into the plea arrangement.166 Although court-issued removal orders are vulnerable to criticism based on the political incentives of elected state judges and the Governor to issue these orders parsimoniously,167 the requirement of thorough explanation of the grounds for the decision and the opportunity to appeal the denial should provide a sufficient check on judges’ political motivations.168 2. The Two-Shots-at-Restoration Approach The present Michigan system provides for a limited, one-shot opportunity for restoring an ex-offender’s civil rights.169 Yet, the principle of proportionality favors a more nuanced system of gradually rewarding one’s rehabilitative efforts with the correspondingly expanding number of civil rights and privileges.170 Such a system can be implemented by way of granting, at first, a temporary, revocable order restoring only some of an exoffender’s suspended rights, and issuing a complete, unqualified restoration background,” which better serves preventive, denunciatory, and retributive goals of criminal punishment. Demleitner, supra note 142, at 160-61. 166. Taking into consideration the fact that about ninety percent of all criminal cases are disposed of by way of a plea arrangement, informing defendants of potential consequences of their pleas is vital. Leroy D. Clark, A Civil Rights Task: Removing Barriers to Employment of Ex-Convicts, 38 U.S.F. L. REV. 193, 197 (2004). Not surprisingly, then, the idea of informing criminal defendants of collateral consequences following the plea has been widely advocated. See, e.g., Clark, supra, at 197-98 (urging that both a defense counsel and a judge must have responsibilities to advise a defendant of collateral consequences stemming from her plea); Jennifer L. Bahnson & Robert J. Dieter, Collateral Effects of a Criminal Conviction in Colorado, 35 COLO. LAW. 39, 39-40, 45 (2006) (noting that collateral consequences of a plea might be far greater than an immediate impact of the imposed sentence and arguing that courts should disclose them in advance). 167. See Note, Winning the War on Drugs: A “Second Chance” for Nonviolent Drug Offenders, supra note 152, at 1502 (discussing the potential pitfall of political disincentives in the judicial sealing of criminal records). 168. The same basic requirements of giving a written explanation for the decision and appealability of the denial are already in place in the Michigan licensing statutes. See, e.g., MICH. COMP. LAWS § 333.6243 (2001) (providing an opportunity for a hearing and appeal in licensing actions involving substance abuse services); id. § 400.722 (providing for a hearing, opportunity for appeal, and an explanation of the grounds for denial in foster care facility licensing actions). 169. See supra notes 103-05. 170. Under such a system, even though the full extent of civil opportunities might not be available to ex-offenders at once, the prospect of achieving a greater freedom from disabilities in the future could incentivize them to desist from committing further offenses. Cf. Raphael, supra note 106, at 516 (suggesting the possibility of positive behavioral response of ex-offenders to the prospects of having their records purged). Winter] Reaching a Compromise 1083 order only after a set period of time commensurate with the categorical seriousness of the offense and the number of an individual’s convictions.171 In this model, an offender’s first chance to circumscribe the collateral damage of the conviction presents itself at the time of the sentencing, where a judge could, in appropriate circumstances, limit the effect of the conviction on the defendant’s subsequent employability.172 Naturally, not all offenders would be eligible for a restoration order immediately upon sentencing. Many, especially those sentenced to a prison term, would be eligible for restoration only after accumulating significant evidence of rehabilitation.173 Nor would the sentencing court always be well-equipped to make prospective determinations of a conviction’s relevance to all possible employment positions or licensed activities, let alone judgments on a conviction’s germaneness to particular risks of various employment fields or occupations.174 These de171. See discussion of the terms for the second order infra Subsection III.A.3. A similar double-tier system for restoration of an ex-offender’s status exists in the New York model of rehabilitation certificates, where an ex-offender can first receive a Certificate of Rehabilitation restoring some of his rights, and then, after a period of one to five years (depending on the seriousness of an offense), a non-revocable Certificate of Good Conduct. See supra note 145. Similarly, MPC’s Section 306.6 divides the restoration process into the initial Order Removing Disqualifications or Disabilities, MODEL PENAL CODE § 306.6(1), and a subsequent Order Vacating the Judgment of the Conviction, id. § 306.6(2). See Love, Starting Over with a Clean Slate, supra note 105, at 1731-33 (discussing the symbolic value of the vacation order under MPC’s § 306.6(2) as certifying that “the convicted person has paid the full price for his crime and has earned the right to return to responsible membership in society”). 172. This judgment should combine both an evaluation of the gravity of a crime and a prediction of the defendant’s tendency to recidivate. For instance, a first-time, non-violent offender might be eligible for restoration of full employment privileges immediately upon the completion of the sentence. Cf. REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 11 (proposal to seal records for certain categories of non-violent offenses conditionally immediately upon completion of the sentence). Besides an assessment of individual characteristics of an offender and particular facts of the underlying offense, another indicator of one’s eligibility to have her employment privileges restored at sentencing is the categorical nature of a crime: victimizing versus victimless, malum in se versus malum prohibitum, deceptive versus non-deceptive, repeated versus first-time, moral turpitude versus non-moral turpitude. Kalt, supra note 136, at 142-45 (suggesting to abandon blanket exclusion of ex-felons from jury service in favor of an individualized treatment of crimes, criminals, or trials). 173. In addition to merely being crime-free during a certain period of time, an exoffender may strengthen her case by presenting evidence of gainful employment and demonstrating other means of support, evidence of sobriety, reference letters, participation in community service, and attainment of vocational and educational training. See Recommended Key Provisions, supra note 148, at 2 (providing factors indicative of rehabilitation for the benefit of other states considering enacting a provision for certificates of rehabilitation). 174. See von Hirsch & Wasik, supra note 137, at 625 (“A judge cannot be expected to specify, at the time of sentence, every form of employment in respect of which a convicted person would represent a substantial risk . . . .”). At the same time, such rulings are not entirely impossible. For instance, a court is perfectly capable of restoring employment rights 1084 Michigan State Law Review [Vol. 2007:1051 terminations would be best made later, by employers or courts charged with enforcing the jurisdiction’s ex-offender anti-discrimination statute.175 Nevertheless, the sentencing court’s general ability to relieve qualified defendants176 of employment disqualifications is a necessary and effective tool in the state’s overall effort to reduce discrimination against ex-offenders.177 3. Absolute Restoration: Outer Limits of Proportionality Because the collateral effects of the conviction are predicated on the notion of preventing future risks178 and because petty crimes prompted merely by one’s imprudence do not merit onerous disqualifications lasting forever, an offender must, at some point, be regarded as fully redeemed.179 The absolute removal of disabilities should then be available to individuals who already received the initial and likely limited-scope removal orders at the time of the sentencing. More importantly, it should be available to those whose sentencing requests for removal orders were denied and who have refrained from committing a crime for a certain period of time. A tougher of a person convicted of drunk driving to the extent that the job’s essential duties do not involve operating a vehicle. 175. See discussion of the proposed anti-discrimination statute infra Section III.B. 176. It is important not to restrict—in a categorical manner as New York does—the eligibility for initial removal orders issued at sentencing to individuals with no more than one felony conviction. Contra N.Y. CORR. LAW § 702-03 (McKinney 2003) (reserving the applicability of the initial Certificates of Relief from Disabilities to individuals with no more than one felony offense). Such restrictions are unwise, for they are ill-tailored to the particular circumstances of each defendant’s case that might very well merit a favorable judicial decision immediately upon sentencing (as, for instance, in a case of a felon with a substantial time gap separating the two felony convictions). 177. The ability of the courts to streamline the process of removing employment disabilities of ex-offenders is especially valuable in light of the nationwide data indicating that about three out of every four individuals released from prisons in 2003 have served their time for non-violent offenses. EMPLOYMENT SCREENING FOR CRIMINAL RECORDS: ATTORNEY GENERAL’S RECOMMENDATIONS TO CONGRESS, supra note 141, at 10. Moreover, thirty-seven percent of non-violent offenders expected to be released in the first six months of 2004 were serving their terms for drug offenses, and seventeen-and-one-half percent were incarcerated for drug possession specifically. Id. With some minor exceptions, these offenders could qualify for complete reinstatement of employment privileges upon sentencing, or upon secondary application to the sentencing court after release. 178. But see Harris & Keller, supra note 5, at 14 (concluding that state and federal laws governing the entry of ex-offenders into the workforce are flawed in that they both overstate the relation of a criminal record to an individual risk of re-offending and attribute too much significance to the idea of crime specialization and therefore “do not convey useful information concerning the likelihood that particular applicants will engage in repeat offending”). 179. See von Hirsch and Wasik, supra note 137, at 612-15 (analyzing the reasons for the existence of outer proportionality limits on civil disqualifications and recognizing that due to their non-penal nature, collateral disqualifications are not circumscribed by any lower temporal constraints). Winter] Reaching a Compromise 1085 question is how long this period of time should be, and whether it should vary in consideration of the gravity and number of offenses.180 In answering these questions, consideration of empirical data is beneficial. This data unequivocally demonstrates that the likelihood of recidivism among the newly-released offenders is especially high during the first three years following release.181 With the passage of time, however, the recidivism curve flattens out, becoming virtually non-distinguishable from the crime rate among first offenders after six or seven years of the crimefree conduct.182 Similarly, research reveals the connection between the type of conviction and the ex-offender’s tendency to commit another offense in the same field.183 Nevertheless, these statistics do not fully answer all the questions. Given the complex and somewhat circuitous nature of the crimeemployment relationship,184 setting a demarcation line at which an ex180. While many scholars support automatic removal of disabilities after a certain period of time, the view that this period should vary for different categories of defendants depending on the gravity of the committed offense is not so popular. See, e.g., Love, Starting Over with a Clean Slate, supra note 105 (advocating the MPC § 306.6(2) approach of waiting for five years before becoming eligible for the Order Vacating the Judgment of Conviction); Grant et al., supra note 116, at 1239 (recommending “automatic restoration of all rights and privileges five years after the convict’s release into the community”); Kurlychek et al., supra note 147, at 498-500 (presenting empirical data in support of a federal trucking statute’s universal seven-year limit on the use of criminal records to applicants’ detriment). Compare with Meltsner et al., supra note 144, at 906 (proposing the model for absolute removal of disabilities, with removal available directly upon conviction in case of a violation [an offense punishable by a maximum of fifteen days of imprisonment], and with the statutory waiting period of seven years in case of a felony, and three years in case of a misdemeanor); cf. Kalt, supra note 136, at 143 (proposing to “tie the length of exclusion [from jury service] to the length of a sentence, so that short sentences allowed for relatively swift restoration of jury eligibility”). 181. See discussion of recidivism rates early upon ex-offenders’ release supra note 12. 182. See Kurlychek et al., supra note 147, at 483 (presenting an empirical study that shows that after six or seven years of crime-free conduct ex-offenders’ risk of reoffending begins to approximate, although not exactly match, the risk posed by people with clean records); see also Peter B. Hoffman & Barbara Stone-Meierhoefer, Reporting Recidivism Rates, 8 J. CRIM. JUST. 53, 57 (1980) (listing annual rates of recidivism at fifteen percent during the first year, ten percent during the second, seven percent during the third, and four, three, and three percent during the fourth through the sixth years respectively). 183. For instance, sex offenders are at a higher risk of committing another sex-related crime than people without prior record of sex crimes. See Harris & Keller, supra note 5, at 13. At the same time, it is also true that the majority of sex offenses are committed by individuals without prior sex-related convictions. Id. 184. See discussion of the relationship between crime and employment supra notes 3, 106, and 136. Apart from the interrelationship between crime and employment at the level of each individual offender, the reciprocal relationship between crime and employment also operates—and with much more pronounced consequences—at the level of a community. See Shawn D. Bushway & Peter Reuter, Labor Markets and Crime Risk Factors, in EVIDENCE- 1086 Michigan State Law Review [Vol. 2007:1051 offender may apply for the absolute removal of civil disabilities inevitably becomes a policy-laden decision, balancing societal concerns about security and reduction of workplace crime with the policy towards successful reintegration of ex-offenders and decrease in the prison population. Since the majority of these concerns revolve around violent crimes—both from the standpoint of policymakers185 and that of employers, equally186 —they would be best accommodated by the disparate treatment of violent and non-violent offenders.187 Consistent with this principle, the Michigan legislature would BASED CRIME PREVENTION 198-99 (Lawrence W. Sherman et al. eds., 2002) [hereinafter Bushway & Reuter, Labor Markets and Crime Risk Factors]. Inasmuch as “[c]rime in a community is the outcome of the interaction between propensity and opportunity to commit crime,” different communities either attract or repel criminal behavior. Id. at 199. “[P]oor communities offer weak job prospects but also . . . financially unrewarding criminal opportunities,” whereas “high employment may be associated with . . . greater wealth,” but at the same time, with the increased criminal opportunities. Id. As a result, high-crime communities are not only unattractive in terms of investment opportunities, but also expose the property and residents within the community to higher risks associated with crime. Id. 185. Non-violent offenders represent three quarters of the nationwide prison population. EMPLOYMENT SCREENING FOR CRIMINAL RECORDS: ATTORNEY GENERAL’S RECOMMENDATIONS TO CONGRESS, supra note 141, at 10. Yet, this category of offenders (especially drug offenders’ subcategory) seems to bear the brunt of civil disqualifications faced by ex-offenders generally. See Demleitner, supra note 151, at 1033-45 (describing collateral consequences imposed by federal laws specifically on drug offenders as “more severe than those imposed on murderers, rapists and kidnappers”); see also Note, Winning the War on Drugs: A “Second Chance” for Nonviolent Drug Offenders, supra note 152, at 1491-93, 1502 (2000) (discussing both collateral and direct components of the War on Drugs and endorsing the Second Chance legislation developed by Harvard Professor Charles Ogletree, Jr., former New York Mayor Ed Koch, and civil rights activist Reverend Al Sharpton). 186. Generally, employers are particularly hesitant to hire individuals with a record of violent crimes. See Holzer et al., supra note 106, at 24 (reporting the results of the study confirming this proposition in Los Angeles); see also Kalt, supra note 136 (reporting results of another survey indicating that sixty-five percent of employers would not be willing to hire an ex-offender). Indeed, this unwillingness is understandable, for a great majority of negligent hiring cases stem from employers’ failure to discover employees’ violent propensities as alerted to by their criminal records. See discussion supra note 133. 187. The idea of using collateral consequences of non-violent (mainly drug) offenders more sparingly underlies the Second Chance proposal endorsed by the Legal Action Center. See COALITION FOR CRIMINAL JUSTICE REFORM, BLUEPRINT FOR CRIMINAL JUSTICE REFORM: BRINGING JUSTICE TO SCALE 22 (Feb. 2007), advance copy available at http://www.lac.org/pubs/gratis/Blueprint_final_11-29-06.pdf. The proposed legislation would permit conditional sealing of certain non-violent convictions, after giving a notice and an opportunity to respond to a prosecuting attorney. Id. at 38. Relief would be available to eligible applicants immediately upon completion of the sentence in case of a drug felony conviction, after three years of completion of the sentence in case of “class D or E nonviolent felony,” and after five years after completion of the sentence in case of “class B or C non-violent felony.” Id. at 38-39. In any event, records of non-violent convictions would be sealed automatically ten years after completion of the sentence for the last offense. Id. at 37. See also NEV. REV. STAT. § 213.090 (2005) (disqualifying serious violent offenders from the scope of the Nevada pardon provision). Winter] Reaching a Compromise 1087 strike an appropriate balance between the competing interests of exoffenders and society at large by allowing non-violent misdemeanor offenders to apply for unqualified restoration orders after one year of crime-free conduct,188 while extending this period to three years for those convicted of violent misdemeanors.189 In parallel with the scheme for misdemeanors, former felons should be permitted to apply for absolute removal orders after three years of crime-free behavior in the case of a non-violent felony,190 and after five years in the case of a violent one.191 Exceptions must be made for individuals with multiple convictions—for instance, those who have at least two felonies on their record,192 as well as for individuals convicted of sexual 188. In light of the overall calculus of the proposed legislation for the reinstatement of ex-offenders’ civil rights, the legislature should measure the period of “crime-free conduct” as commencing at the date of the last conviction or of the person’s release from actual confinement, whichever is the later date. See Meltsner et al., supra note 144, at 906 (suggesting that the initial calculation point is either the release from actual confinement or the date of the last conviction, but not the discharge from parole). This formulation of the “crime-free conduct” would enable not-yet-discharged parolees to also get secondary removal orders and thus improve their chances at full reintegration. See, e.g., CAL. PENAL CODE § 4852.03(a) (West 2000) (“The period of rehabilitation shall begin to run upon the discharge of the petitioner from custody . . . or upon his or her release on parole or probation, whichever is sooner.”); cf. N.Y. CORR. LAW § 703-b (McKinney 2003) (allowing parolees to file only for temporary, revocable Certificates of Good Conduct). But see ARIZ. REV. STAT. ANN. § 13-906(B) (2001) (starting the restoration order clock for individuals discharged from a prison and convicted of two or more felonies only from the time of their “absolute discharge”). 189. Similar one- and three-year waiting provisions currently exist in New York for applying for a Certificate of Good Conduct; however, instead of a violent/non-violent distinction, the one-year waiting period applies to misdemeanors, while the three-year provision applies to less serious felonies classified under Classes C, D or E. See N.Y. CORR. LAW § 703-b (McKinney 2003). 190. Similarly, a recently enacted Illinois statute, for example, authorizes the sealing of a record of certain misdemeanors and minor felonies after a three-year waiting period. 20 ILL. COMP. STAT. ANN. 2630/5 § 5 (West Supp. 2006). 191. The five-year term has been symbolic in the jurisprudence defining eligibility of ex-offenders to regain their unqualified civil status. Not only does Michigan employ this term in defining the eligibility of an applicant desiring to set aside her conviction, see supra note 103, but many researchers also attribute special significance to the five-year point. See, e.g., MODEL PENAL CODE § 306.6(b) (recommending a five-year waiting period before an applicant can apply for an Order Vacating the Judgment of the Conviction); Grant et al., supra note 116, at 1239 (recommending automatic restoration of civil disqualifications after five years of crime-free conduct); cf. R. Paul Davis, Records of Arrest and Conviction: A Comparative Study of Institutional Abuse, 13 CREIGHTON L. REV. 863 (1979) (describing the 1977 Proposal of the Attorney General of California that records of misdemeanor arrests not followed by a conviction be kept for five years). 192. The exclusion on the grounds of multiple felony convictions is fairly typical and is supported by stronger justifications of crime prevention than other types of collateral disqualifications. See, e.g., NEV. REV. STAT. § 213.090 (2005) (disqualifying individuals with two or more felony convictions arising out of distinct occurrences from eligibility to apply for pardon and restoration of civil rights); MICH. COMP. LAWS § 780.621 (1998) (disqualify- 1088 Michigan State Law Review [Vol. 2007:1051 offenses.193 In this case, the legislature should perhaps use an upperbracket, seven-year period for the purpose of determining the eligibility of these offenders for removal orders.194 The suggested time increments should be used to determine when former offenders are allowed to apply for absolute removal of all disabilities associated with their convictions. In addition to these periods, the legislature should identify a period of time after which individuals whose requests for absolute removal orders were denied should become eligible for reconsideration—for instance, two years since the last denial.195 To better tailor the provision to the individual circumstances of each case, judges considering the case must have discretion to waive the statutorily-imposed waiting term in compelling circumstances.196 ing multiple offenders from pardon eligibility). One way to soften the impact of this harsh provision is to provide for an equitable waiver of the statute’s longer term applied to multiple felony offenders if a person’s felony convictions are separated by a significant gap in time— for instance, by a minimum of five years. 193. One basis for disparate treatment of sex offenders is a greater recidivism potential presented by the group. See discussion supra note 183. But these greater risks notwithstanding, the handicaps and the stigma attached to sex offenders must still be at some point circumscribed. See G. Scott Rafshoon, Community Notification of Sex Offenders: Issues of Punishment, Privacy, and Due Process, 44 EMORY L.J. 1633 (1995) (endorsing the registration requirement imposed on sex offenders and characterizing it as a part of punishment [and not as a civil disability], but debunking the concept of community notification because it imposes an excessive disability). The issues surrounding the treatment of sex-offenders specifically are, however, beyond the scope of this Comment. 194. The seven-year waiting period is likewise proposed in many academic proposals for removing civil disabilities of ex-offenders and is used in practice in some existing statutes. See, e.g., Meltsner et al., supra note 144, at 906 (proposing to eliminate collateral disabilities accompanying a felony conviction after seven years of crime-free conduct); EMPLOYMENT SCREENING FOR CRIMINAL RECORDS: ATTORNEY GENERAL’S RECOMMENDATIONS TO CONGRESS, supra note 141, at 8 (recommending that Congress adopt the model of the Maritime Transportation Security Act of 2002, 46 U.S.C. § 70105(c)(1)(A) (2000), which uses a seven-year cut-off point after which an individual may not be denied a transportation security card on the basis of a felony conviction); cf. Fair and Accurate Credit Transactions Act of 2003, 15 U.S.C. § 1681C(a) (Supp. 2004) (prohibiting from inclusion into a consumer credit report breaches of credit worthiness that are more than seven years old). 195. The same two-year waiting period was utilized, for instance, in the New Jersey statute providing that “[a]n application for a certificate of good conduct shall not be entertained unless . . . at least two years have passed since the date any similar application was denied . . . .” N.J. ADMIN. CODE § 10A:70-8.2 (2002). The statute has since expired. 196. Again, the expired New Jersey statute exemplified the suggested approach. See id. What represents a “compelling circumstance” is hard to define; it should be determined by way of a case-by-case evaluation performed by an individual judge, and it is likely to be tied to the nature of an underlying offense(s) and the obstacles preventing the judge from granting absolute relief during the initial attempt. Winter] Reaching a Compromise 1089 In sum, if we are to curb the incarceration binge of the eighties and nineties,197 the notion of affording everybody—even multiple or violent offenders—a second chance is crucial. Equally crucial is the understanding that doing so will not sacrifice the safety and integrity of society as long as the courts charged with issuing removal orders—and not private employers, licensing bodies, or overworked parole and probation agents198—will perform their task of filtering out dangerous or unfit ex-offenders. Furthermore, an additional safeguard against the risks associated with employing ex-offenders at certain jobs comes from the combined effects of the negligent hiring doctrine and the direct relationship test of the anti-discrimination statute that Michigan should adopt.199 B. Ex-Offender Anti-Discrimination Statute: Direct Relationship Test Navigating between the proclaimed policy of the state towards rehabilitation of ex-offenders200 and its laissez-faire attitude towards private employment relationships is difficult because these two ends are in inherent tension.201 Yet, leaving this conflict without state regulation—as Michigan does202—results in rampant exclusion of ex-offenders from the private workforce.203 To cure the side effects produced by the combination of the law of 197. See Kathleen M. Olivares et al., The Collateral Consequences of a Felony Conviction: A National Study of State Legal Codes 10 Years Later, 60 FED. PROBATION 10, 10 (1996) (concluding, after having compared the states’ legal codes in 1986 with the codes in 1996, that “[t]he criminal justice system has witnessed a shift toward policies aimed at ensuring deterrence and incapacitation”). 198. One way to characterize the proposed plan for issuance of removal orders is as a method to redirect the discretionary powers over ex-offenders’ fates from the hands of employers, licensing bodies, and people in general, who act on their intuitive urges, into the hands of judges, who are better equipped to make individualized decisions of that kind. See Holzer et al., supra note 106, at 21, for a discussion of “statistical discrimination” that employers engage in and that exemplifies the emotional, rather than rational, nature of employers’ decisionmaking. 199. See discussion infra Section III.B. 200. See discussion supra Section II.B and cases cited supra note 98. 201. Employers’ reluctance to hire ex-offenders is propelled, in part, by their fears of negligent hiring liability, see discussion supra Part I, as well as by other concerns usually associated with ex-offenders as a group, see supra note 135. 202. While Michigan makes certain attempts to circumscribe discrimination stemming from stale convictions in the sphere of licensing, see discussion supra Subsection II.B.2 and note 112, the state lacks any regulations governing private employment, see discussion supra Subsection II.B.1. See also Margaret Colgate Love, The Debt That Can Never Be Paid, 21-Fall CRIM. JUST. 16, 23 (2006) [hereinafter Love, The Debt That Can Never Be Paid] (listing Michigan as one of the eleven states that “limit consideration of conviction in connection with occupational licensing but not employment”). 203. In addition to the problem of complete exclusion, ex-offenders who do succeed in finding jobs face the problem of a “‘wage penalty,’” which operates to diminish exoffenders’ wages by about ten to twenty percent as compared to their non-convicted counter- 1090 Michigan State Law Review [Vol. 2007:1051 negligent hiring and the state’s policy of non-interference, Michigan should not rely solely on the selective protections of federal regulations, but instead should enact its own aggressive and easily enforceable “color-blind”204 legislation prohibiting discrimination on the basis of a conviction record unless the latter is “directly related” to prospective employment or licensed activity.205 Such a regulation will invalidate capricious and biased decisions of an employer while protecting the decisions legitimately grounded in business necessity.206 1. The Elements-Only Approach: Protecting Employers from Chaos Albeit in a variety of formulations,207 two-thirds of American jurisdictions have adopted some form of the direct relationship test to assess the relevancy of one’s criminal record to the prospective occupation or employment in limiting the scope of permissible conviction-based disqualificaparts. See JEREMY TRAVIS ET AL., FROM PRISON TO HOME: THE DIMENSIONS AND CONSEQUENCES OF PRISONER REENTRY 32 (2001), http://www.urban.org/UploadedPDF/from_prison_to_home.pdf. Maybe it is partly due to the lack of any regulations protecting ex-offenders from these practices that Michigan, along with ten other states, “accounted for 57% of all state prison releases in 1983,” with sixtythree percent of these offenders ultimately rearrested in connection with a felony or a serious misdemeanor. Thompson, supra note 135, at 259 n.21 (quoting results of the 1989 Department of Justice Study). 204. The term is borrowed from EVERY DOOR CLOSED, supra note 151, at 24 (proposing to codify the EEOC Guidelines for meeting the Title VII “‘business necessity’” standard into “color-blind” laws). 205. Of course, the formulation of the test in terms of “direct relationship” is not principal. See infra notes 209-12 for other possible formulations of the test used in the leading jurisdictions. The same spirit of “direct relationship” is reflected in a recent proposal introduced into the Michigan Senate to prohibit employment discrimination on the basis of an individual’s credit history unless a good credit history is “an established bona fide occupational requirement of a particular position.” S. 1252, 93d Leg., Reg. Sess. (Mich. 2006). 206. Integrating this law into the Elliott-Larsen Civil Rights Act—as opposed to enacting it as an isolated and a freestanding provision—would boost the statute’s enforceability, enhance the public’s familiarity with it, and, most importantly, provide for the payment of reasonable attorney fees under the fee-shifting mechanism of the statute. MICH. COMP. LAWS § 37.2802 (2001). See Love, The Debt That Can Never Be Paid, supra note 202, at 23 (noting that only a few states’ records-based anti-discrimination provisions are incorporated into the states’ fair employment practices schemes and implying that an opposite approach diminishes the enforceability value of these provisions); see also EVERY DOOR CLOSED, supra note 151, at 19 (positing the absence of a typical employment discrimination fee-shifting provision as an explanation for rare enforcement of conviction-based antidiscrimination statutes). 207. See Margaret Colgate Love, Consideration of Criminal Record in Licensing and Employment, in THE SENTENCING PROJECT, RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION tbl. 6 (Jan. 2006), available at http://www.sentencingproject.org/tmp/File/table6.pdf, for a complete overview of jurisdictional approaches towards the regulation of private and public employment and licensing. Winter] Reaching a Compromise 1091 tions.208 Among the most widely acclaimed of these approaches are the following four: New York’s Human Rights Law,209 Wisconsin’s Fair Employment Act,210 Minnesota’s Criminal Rehabilitation Act,211 and Hawaii’s antidiscrimination model.212 While all of these statutes unite in their broader goal of limiting unwarranted conviction-based disqualifications, they differ appreciably in the degree of consideration they give to one’s rehabilitative efforts213 and to particular circumstances of the offense underlying each 208. See Love, The Debt That Can Never Be Paid, supra note 202, at 22 (roughly classifying the states into the ones that simply prohibit arbitrary discrimination solely on the basis of a conviction; the ones that define direct relationship through a combination of “the circumstances of the offense, the amount of time since conviction, and the individual’s demonstrated rehabilitation;” and the ones that “presume rehabilitation after a specified number of years”). 209. N.Y. CORR. LAW §§ 750-55 (McKinney 2003). With the exception of law enforcement positions, positions requiring possession of a weapon, and employers with less than ten employees, the New York model prohibits employers from disqualifying job applicants from prospective employment on the basis of a criminal conviction unless there is a direct relationship between a previous conviction and a prospective employment or a licensed activity, or unless “the issuance of the license or the granting of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” Id. § 752. In making their determination, the decisionmakers are encouraged to be guided by eight enumerated factors: (1) the public policy of the state towards the reintegration of ex-offenders; (2) essential duties and functions of employment/licensed activity; (3) the impact of the criminal offense on “fitness or ability to perform” these duties or responsibilities; (4) the passage of time since the last offense; (5) the age of a person at the time of the conviction; (6) gravity of an offense; (7) individual evidence of rehabilitation; and (8) “[t]he legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.” Id. § 753(1). This model received many accolades as the most sensible way of implementing the direct relationship test. See, e.g., Todd, supra note 74, at 757-60 (calling for the adoption of the New York’s model in Arizona); Leavitt, supra note 15, at 1310 (characterizing the New York regulation as having made “great strides in the establishment of a statutory scheme that reduces many of the common barriers to employment for exoffenders”). 210. WIS. STAT. ANN. § 111.322 (West 2002). The Wisconsin statute prohibits employment discrimination on the basis of a conviction or arrest record unless the circumstances of an offense “substantially relate to the circumstances of the particular job or licensed activity,” or if the person is not bondable. Id. § 111.335(b). 211. MINN. STAT. ANN. § 364.03 (West 2004). The statute prohibits employment discrimination based on a conviction unless a direct relationship exists between the conduct underlying a conviction and an employment or occupation, as measured by the suggested factors and if an applicant has not demonstrated sufficient evidence of rehabilitation. Id. 212. HAW. REV. STAT. ANN. § 378-2.5 (LexisNexis 2004). With some exceptions, employers are prohibited from discriminating on the basis of an applicant’s arrest or court record unless this record is “rationally related” to the prospective job; in addition, the Hawaii statute is unique because any inquiry into an applicant’s background must occur after a conditional employment offer has already been extended. Id.; see generally Lau, supra note 76, at 709-11 (describing the Hawaii model in detail). 213. Compare MINN. STAT. ANN. § 364.03 (West 2004) (prohibiting an adverse employment and licensing action—even if the applicant’s prior offense is directly related to 1092 Michigan State Law Review [Vol. 2007:1051 individual conviction.214 They also differ in the choices regarding the enumeration of certain factors for employers’ guidance when assessing the existence of the direct relationship.215 In effect, these variances leave the power of making final determinations either to employers and licensing boards or to the judicial branch.216 That Michigan should adopt some version of the direct-relationship anti-discrimination statute governing private and public employment actions and embracing licensing determinations is somewhat obvious.217 It is consistent with the policy of the state to facilitate reintegration of exoffenders218 and with some of its other initiatives to limit unwarranted dis- prospective employment or occupation—if the applicant has presented sufficient evidence of rehabilitation), with N.Y. CORR. LAW § 753(1) (McKinney 2003) (regarding evidence of rehabilitation as only one of eight factors to be considered during the direct relationship inquiry). See generally Lau, supra note 76, at 732-33 (stressing the difference between the New York and the Minnesota laws on the issue of rehabilitation and endorsing the latter scheme); Love, The Debt That Can Never Be Paid, supra note 202, at 23-24 (cataloguing states’ approaches to establishing ex-offenders’ rehabilitation). 214. The Wisconsin statute, as interpreted judicially over time, illuminates particularly well the distinction between the “factor-specific” approach, which mandates an inquiry into the specific circumstances of the past offense and the more abstract, “elements-only” approach, which limits the inquiry to the examination of “‘elements’ or ‘essential concomitants’ of the crime.” Jeffrey D. Myers, County of Milwaukee v. LIRC: Levels of Abstraction and Employment Discrimination of Arrest or Conviction Record, 1988 WIS. L. REV. 891, 911 (favoring a factor-specific approach which includes the mitigating circumstances of an offense into consideration). But see Hruz, supra note 64, at 848 (preferring the elements-only test because it “looks only to clearly restricted considerations, namely the elements of the crime and the duties and context of the job” and is, therefore, easier to apply). 215. Compare N.Y. CORR. LAW § 753(1) (McKinney 2003) (listing eight specific factors for employers’ use in hiring decisions), with HAW. REV. STAT. ANN. § 831-3.1 (LexisNexis 2007) (omitting from the statute any specific factors for employers’ or courts’ guidance). See Lau, supra note 76, at 734 (urging for clarification of what factors must be evaluated within the parameters of the rational relationship test and advising to look to the New York or Minnesota models for guidance). 216. See Hruz, supra note 64, at 844-45, 849 (positing that a generic and less individualized approach towards the direct relationship test appropriately vests the power to make final judgments in employers who are directly involved in the decision). 217. The adoption of the direct relationship test has been advocated by many researchers. See, e.g., Josephine R. Potuto, A Model Proposal to Avoid Ex-Offender Employment Discrimination, 41 OHIO ST. L.J. 77, 101-06 (1980) (proposing the direct relationship test and enumerating criteria for meeting the test); Kohler, supra note 63, at 1431-32 (suggesting the job-relatedness test and endorsing giving applicants the opportunity to state why he should be hired in spite of the conviction). In addition, the direct relationship test is already used by the EEOC in enforcing Title VII and in the Civil Service Reform Act, Pub. L. No. 95-454, 92 Stat. 1111 (1978) (codified as amended in titles 5, 10, 15, 28, 31, and 39 U.S.C. (2000) and 42 U.S.C. (2000)), for the purposes of imposing disciplinary action on federal employees. See discussion supra note 72. 218. See supra note 98. Winter] Reaching a Compromise 1093 criminatory practices.219 At the same time, private employers must be protected from the uncertainties of judicial second-guessing when they, in good faith, attempt to apply the direct relationship test, but ultimately refuse to hire an applicant.220 Following this logic, private employers should not be charged with the task of determining the degree of one’s rehabilitation so that their smallest misstep—on either side of the razor-thin line of correctness—would bring grim consequences to their businesses.221 To account for these concerns, the Michigan anti-discrimination statute should be based on a categorical approach222 which does not require private employers to consider individual circumstances of an offense or conduct an in-depth inquiry into the extent of rehabilitative efforts of an applicant.223 At the same time, employers will have to respect the courtissued orders lifting ex-offenders’ disabilities. Defined in this way, the test will promote practical and speedy determinations by employers, yet remove 219. For instance, the Michigan Senate has recently proposed steps to prevent discrimination against people with credit difficulties. See discussion supra note 205. Speaking more broadly, the direct relationship test weeds out excessive collateral consequences, mandates an individualized assessment of each offender’s case, and opens an avenue for relief for those who have been wronged by employers’ misconceptions. See Travis, Invisible Punishment, supra note 55, at 34-36 (focusing the complexity of the proposed collateral consequences reforms around the principles of proportionality, individualized justice, provision of avenues for relief, and embracing the goal of reintegration of ex-offenders). 220. The predicament that employers are placed into by virtue of the combination of the direct relationship test on the one hand, and the law of negligent hiring on the other, is exemplified by the advice given to corporate employers by one employment attorney: “[T]he best test of any course of action . . . is: would six ordinary people think this is reasonable under the circumstances? If the answer is yes, you and your company should prosper.” Diana Rousseau Belbruno, Selected Negligence Problems in Employment Law, in HANDLING CORPORATE EMPLOYMENT PROBLEMS 341, 406 (Pract. L. Inst. 1991). Naturally, this kind of an indeterminate standard places employers into an irresolvable and unnecessary conundrum and needs to be revised. See Scales, supra note 147, at 434-35 (suggesting that employers should be given “a presumption of good faith” to soften the impact of the inherent tension between the state anti-discrimination measure and the negligent hiring doctrine). 221. As discussed in Subsection III.A.1, courts are much better qualified to make these determinations by way of issuing orders attesting to ex-offenders’ rehabilitation. Cf. Haerle, supra note 28, at 1319-20 (noting that employers are ill-equipped to estimate the extent of ex-offender’s rehabilitation). In turn, once such an order has been issued to an exoffender, employers can be validly held responsible for the refusal to hire a rehabilitated exoffender because of a previous conviction. 222. See County of Milwaukee v. Labor & Indus. Review Comm’n, 407 N.W.2d 908 (Wis. 1987), for an example of the elements-only, categorical approach to conviction-based anti-discrimination provision in Wisconsin. 223. Although rehabilitation may still be one of the factors to be considered, see infra note 236, requiring more would lead to a “full-blown factual hearing” standing in the way of the “confident, timely and informed” decision by an employer. County of Milwaukee, 407 N.W.2d at 917. Conducting such “full-blown factual hearing[s]” is the proper domain of the courts issuing certificates removing ex-offenders’ disabilities. Id. 1094 Michigan State Law Review [Vol. 2007:1051 the potential for subjectivity from their decisions.224 Plainly, the test will force employers to estimate a threat posed by a certain offense and an opportunity for the commission of a similar offense in a given position.225 Evaluating the elements-only formulation of the test, critics suggest that the deference afforded to employers’ decisions would effectively eviscerate the protective force of the test.226 To prevent such a result, the Michigan legislation should provide for a written explanation of the denial— similar to the one the state demands from a licensing body denying an applicant227—and for the criminal record check to be conducted only after the conditional offer of employment has been extended.228 Conducting a criminal record inquiry after having made the substantive employment decision and having to explain, in written form, the reasons for changing this initial decision will counterbalance the ease of judicial review and prevent employers from advancing after-the-fact rationalizations of denials that could have been raised if the sequence were reversed. 2. Factors Measuring Direct Relationship—Not Too Personal, but Personal Enough Unquestionably, the Michigan statute must set forth either the definition of the term “direct relationship,”229 or, at a minimum, the factors for 224. Employers will be spared the “conundrum of limitless factors to be compared, weighed, and shuffled” because, under this interpretation, employers will only have to compare the elements of a criminal offense, proven beyond reasonable doubt in the court of law, with the categorical needs of particular employment. Hruz, supra note 64, at 850. But see Myers, supra note 214, at 918-19 (arguing that merely considering the “opportunity for criminal behavior” at a certain position and “the reaction to responsibility evidenced by the conviction” is not enough). 225. Licensing actions, however, should be treated differently. Because licensing bodies are better equipped and have more resources to pass judgment on the evidence of rehabilitation and on the individual circumstances of each offense, they must be held to a higher standard of inquiry than private employers. In particular, licensing bodies should presume rehabilitation of applicants and bear the burden of rebutting this presumption in appropriate circumstances. See ABA STANDARDS FOR CRIMINAL JUSTICE: LEGAL STATUS OF PRISONERS § 23-8.3 (1986) (charging states with the burden of proving “in each individual case that the disability or penalty is necessary to advance important governmental or public interest”). 226. See, e.g., Myers, supra note 214, at 918-19 (expressing fears that the simplified per se approach will undercut the goals of the direct relationship test); see also County of Milwaukee, 407 N.W.2d at 919 (Abrahamson, J., concurring) (fearing that a high level of generality in interpreting the circumstances of an offense will “eviscerate the statute”). 227. See discussion of the written explanation requirement supra note 168. 228. A similar scheme exists in Hawaii, the only state to prohibit inquiry into an applicant’s criminal record before the conditional offer of employment has been extended. For a detailed discussion of the statute, see supra note 212. 229. In addition to the “direct relationship” test, the New York statute contains the “unreasonable risk” test as an alternative basis for the lawful exclusion of ex-offenders from Winter] Reaching a Compromise 1095 employers’ guidance in determining whether such direct relationship exists.230 In addition to expressly reaffirming the policy of the state toward rehabilitation of ex-offenders,231 the statute should outline for employers a limited number of factors to rely on in determining whether the conviction is sufficiently related to the prospective employment so that an employer would be justified in refusing to hire an applicant.232 The Model Sentencing and Corrections Act233 provides a well-balanced list of factors, neither overly broad nor overly narrow, that may effectively and justifiably constrain employers’ judgment when hiring ex-offenders.234 The Act delineates the following five factors as the sole basis for employers’ decisions: (1) whether the occupation, profession, or educational endeavor provides an opportunity for the commission of similar offenses; (2) whether the circumstances leading to the offense will recur; (3) whether the person has committed other offenses since the conviction or his conduct since conviction makes it likely that he will commit other offenses; (4) whether the person seeks to establish or maintain the relationship with an individual or organization with which his victim is associated or was associated at the time of the offense; and (5) the time elapsed since release.235 employment. See N.Y. CORR. LAW § 752 (McKinney 2003). The two tests are closely interrelated, and, depending on the definition, the latter can be subsumed by the former. For instance, such would be the case if the direct relationship test would require an evaluation of “whether the occupation, profession, or educational endeavor provides an opportunity for the commission of similar offenses.” MODEL SENTENCING AND CORR. ACT § 4-1005(c)(1) (1978). See discussion infra pp. 1095-1096. 230. In fact, a recent proposal on how to improve the New York anti-discrimination model insisted on supplying the precise definition for the term “direct relationship” in addition to simply enumerating factors to be considered. See REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 48. 231. Florida Governor’s Executive Order No. 06-89 is instructive in this respect. Along with announcing the policy of Florida to reintegrate ex-offenders, the Order requires all executive agencies in the State to reevaluate their policies towards employment of exoffenders and to prepare reports on the existing disqualifications and their justifications. See Exec. Order No. 06-89 (State of Fla. Office of Governor 2005), available at http://www.wakullacivolunteers.org/images/06-89-exoftf%5B1%5D.pdf. 232. Listing the pertinent factors is important in limiting capricious and bias-driven decisionmaking of employers, many of whom are inherently averse to hiring ex-offenders. Otherwise, the broad and vague provisions of the statute leave too much room for employers’ maneuverability, which impedes the statute in achieving its goal. Cf. Lau, supra note 76, at 735 (urging that Hawaii courts use the factor-enumeration approach of New York, Minnesota, and Wisconsin as the guidance for interpreting the Hawaii legislation, which lacks any factors for employers’ or courts’ guidance). 233. MODEL SENTENCING AND CORR. ACT § 4-1005(c). 234. See Potuto, supra note 217, at 103-06 for the support of the Model Sentencing and Corrections Act guidelines. 235. MODEL SENTENCING AND CORR. ACT § 4-1005(c). 1096 Michigan State Law Review [Vol. 2007:1051 Consistent with the elements-only approach advocated in this Comment, no factor in this test requires the consideration of particular circumstances of an offense, personal traits of a particular ex-offender, or the precise degree of her rehabilitative efforts.236 Rather, the test focuses on the generic relatedness of a conviction to a particular type of employment and on the risks posed by placing individuals with certain propensities in positions presenting opportunities for realizing these propensities. The last factor of the test—the passage of time since the date of the last conviction or the date of the release—calls for employers’ tolerance towards hiring exoffenders with convictions in the distant past. While the principle of relatedness remains in force even after a significant period of time, the scope of the direct relationship test becomes more pointed as an individual continues to lead a crime-free life.237 Another salient feature of the test under the Model Act is the absence of any exemptions for law enforcement agencies and safety-sensitive positions, as well as legal and medical professions.238 Indeed, such exceptions are duplicative because the five factors of the test will already weed out the applicants with unbecoming qualifications on the basis of the direct rela236. Arguably, the third factor of the test—whether the person has committed other offenses since conviction or her conduct makes it likely he or she will commit other offenses—operates to include rehabilitation into the scope of employers’ consideration. However, the import of this factor, correctly understood, is to allow employers to consider the number of previous convictions and justify refusal to hire a multiple offender, even if her convictions are unrelated to the position sought. Potuto, supra note 217, at 103-04. To limit the negative impact of this factor, the legislature should modify its applicability, so that it would become operational only with persons who have been convicted three or more times. This change will properly accommodate concerns of employers over the reputation of their businesses without sacrificing the state’s objectives of curbing employment discrimination against exoffenders. 237. Thus, an employer who can justifiably refuse to hire an applicant with the vaguely related, but fresh conviction may no longer do so if an applicant has had a prolonged period of crime-free conduct. In the latter circumstance, a more direct and central connection between the conviction and the prospective employment or occupation will be necessary to justify an employer’s refusal to hire. 238. Conversely, many states—including those with elaborate anti-discrimination provisions—exempt these positions and occupations from the purview of their ex-offender statutes. See, e.g., FLA. STAT. ANN. § 112.011(2)(a) (West 2002) (excluding law enforcement and correctional agencies from the operation of the statute); N.M. STAT. ANN. § 28-2-5 (LexisNexis 2000) (clarifying that the statute does not apply to law enforcement positions); N.Y. CORR. LAW § 750(5) (McKinney 2003) (exempting law enforcement positions from the scope of the term “employment” in the definitional section of the statute); see generally Freisthler & Godsey, supra note 117, at 543 (recognizing and endorsing the stance of many states to retain automatic disqualification of felons from law enforcement positions); cf. Funk, supra note 147, at 306 (suggesting, in the context of youthful records expungement, that “law enforcement officials, academic researchers, day care professionals, high school administrators, and employers who seek employees for safety-sensitive positions” should be able to view the complete record of an applicant, including juvenile offenses). Winter] Reaching a Compromise 1097 tionship test.239 A different approach would therefore be unwarranted, conducive to the current reign of anti-ex-offender attitudes, and—at least in the context of occupational licensing—perhaps, even unconstitutional.240 The test is specific enough to produce real effects. In tandem with the provision for court-issued removal orders and other remedies suggested in this Comment, it will be a significant step in the right direction.241 C. Accessibility of Criminal Records and Their Effect on Duty in Negligent Hiring Many researchers find the solution to the problem of ex-offenders’ discrimination in sealing from public view or altogether erasing criminal records of ex-offenders.242 To a limited extent, Michigan has also utilized this approach in its expungement provision empowering successful applicants to deny the existence of previous convictions.243 However, in the vast majority of cases, Michigan practices wide accessibility of records to the public, including even the records of one’s arrests, 244 the reliance on which is prohibited for the purposes of private employment and licensing.245 239. Accord Potuto, supra note 217, at 97 (endorsing the Act’s approach and analyzing the drawbacks of exempting law enforcement and legal profession categories from the ambit of the direct relationship test). 240. See Aukerman, supra note 64, at 39-43, 47-51, 65-69, 85-87 (analyzing relevant precedents and concluding on their basis that in the absence of direct relationship between a conviction and the licensed activity, records-based disqualifications violate either the Equal Protection Clause or the Due Process Clause of the Constitution). 241. The interrelation of the provision for court-issued removal orders and of the exoffender anti-discrimination statute demonstrates the holistic perspective on ex-offender reintegration, see supra note 140, at a micro level. At a macro level, the holistic approach should be exemplified by the State’s commitment to reintegration of ex-offenders both at the front and back ends of the criminal justice process. See Pinard, supra note 140, at 632 (urging to “synergize . . . [the collateral consequences and reentry] components and to develop integrated perspectives that accurately reflect the scope of their interlocking issues”). 242. See, e.g., Gregory A. Forest, Sealing the Record: Helping Rehabilitated FirstTime Drug Offenders to Get Jobs, 35 MCGEORGE L. REV. 597, 604 (2004) (supporting the California legislation proposing to seal criminal records of successful drug divertees); Partners in Justice: A Colloquium Developing Collaborations Among Courts, Law School Clinical Programs, and the Practicing Bar Appendix, 30 N.Y.U. REV. L. & SOC. CHANGE 739, 788 (2006) [hereinafter Partners in Justice Colloquium] (endorsing the proposal of Governor Pataki to conditionally seal records of certain drug offenses); EMPLOYMENT SCREENING FOR CRIMINAL RECORDS: ATTORNEY GENERAL’S RECOMMENDATIONS TO CONGRESS, supra note 141, at 16 (substituting the independent access of private employers to criminal records with the results of standard “fitness determination” inquiry prepared by an agency having exclusive access to criminal records). 243. See discussion supra note 103. 244. See discussion supra Subsection II.B.3. 245. MICH. COMP. LAWS § 37.2205 (2001); see discussion supra note 11 and accompanying text. 1098 Michigan State Law Review [Vol. 2007:1051 1. The Saga of Criminal Records: Is Sweet Lie Better Than Bitter Truth? To revitalize the prohibition on using one’s arrest record in employment and licensing decisions, the state should either strictly regulate the dissemination of records to the public, prohibiting release of arrest records to private parties,246 or altogether prevent entering the records of arrests into the public domain.247 Either of these changes will give teeth to the statutory ban on using arrest records in hiring and align Michigan with the progressive views on limiting collateral consequences of arrests.248 Nevertheless, the state should preserve its current openness about revealing criminal records for validly-adjudicated convictions. This openness is consistent with the truth-seeking nature of our criminal system, and its value is so great that it can not be outweighed by the interests of exoffenders’ protection. 249 Moreover, concealing criminal records is an ineffective method of dealing with employment discrimination against exoffenders because it is unable to account for unexplained gaps in applicants’ work history or prevent the dissemination of records by commercial providers250 and other individuals legitimately accessing court records of criminal 246. The difficulties of this route stem from the participation in the dissemination process of private investigative companies and commercial criminal history providers who fail to sort out the records that may be released from those that may not. See EMPLOYMENT SCREENING FOR CRIMINAL RECORDS: ATTORNEY GENERAL’S RECOMMENDATIONS TO CONGRESS, supra note 141, at 21-23 (drawing attention to inaccuracies in commercial databases and calling for tightening federal control over entities performing background searches, including permitting individuals to contest the validity of their convictions at a hearing). Yet, this task is not insurmountable as long as criminal data providers are subject to enforceable standards for accuracy and selective release of criminal records to the public. 247. See Davis, supra note 191, at 875 (debunking the notion that arrest records are necessary for law enforcement purposes by emphasizing that “nearly every other civilized country in the world seems to maintain an equal or better crime rate than the United States without the assistance of arrest record discrimination”). 248. For instance, New York, a front runner in the sphere of criminal rehabilitation, is currently considering removing records of arrests from individuals’ “RAP” sheets, pointing to the negative impact these records have on the “crystallization of a plea offer or sentence.” Partners in Justice Colloquium, supra note 242, at 809. 249. See Marc A. Franklin & Diane Johnsen, Expunging Criminal Records: Concealment and Dishonesty in an Open Society, 9 HOFSTRA L. REV. 733, 749 (1981) (“This deliberate deception of the public violates our longstanding and generally unquestioned preference for truth over falsity.”); see also Bernard Kogon & Donald L. Loughery, Jr., Sealing and Expungement of Criminal Records—The Big Lie, 61 J. CRIM. L. CRIMINOLOGY & POL. SCI. 378, 385 (1970) (“In trying to conceal a record we seek to falsify history—to legislate an untruth.”). 250. See discussion supra note 141; see also Franklin & Johnsen, supra note 249, at 744-47 (enumerating various difficulties associated with erasing one’s criminal record and criticizing the method for its sporadic effectiveness in combating employment discrimination against ex-offenders). Winter] Reaching a Compromise 1099 proceedings which remain public regardless of sealing.251 Apart from these flaws, sealing is said to lead to the aggravation of other forms of discrimination in which employers engage in the absence of criminal background information.252 In sum, concealing criminal records is a poor solution for employment-related problems of ex-offenders.253 Rather, eliminating records-based employment discrimination must be grounded in truth: a job applicant must straightforwardly admit the existence of previous convictions on her record, but the effect of this admission should be softened by the aggressive enforcement of the anti-discrimination statute based on the direct relationship test and by placing, upon the issuance of an order removing ex-offender disabilities, of a notation upon one’s record regarding the legal effects of such an order. In combination, these measures will erect sufficient safeguards against employment discrimination vis-à-vis ex-offenders. 2. Expansion of Duty in Negligent Hiring Cases Besides being accessible, criminal records must be made widely available to all employers.254 To achieve this goal, Michigan should consider supporting and expanding the current federal government efforts in provid251. To complicate matters further, expungement of records presents constitutional challenges of speech and press restrictions flowing out of the principle enunciated in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), that criminal trials may not be closed as a matter of course. Id. at 573-74; see generally Franklin & Johnsen, supra note 249, at 747-48 (discussing the effect of Richmond Newspapers). Although sealing criminal records is usually perceived less problematic than an outright expungement, even sealing may be viewed as impermissible. See, e.g., People v. Sharman, 95 Cal. Rptr. 134, 135 (Cal. Ct. App. 1971) (refusing to seal the plaintiff’s criminal record under the state’s antidiscrimination statute because doing so is beyond the powers of the court); see generally Richard J. Peltz et al., The Arkansas Proposal on Access to Court Records: Upgrading the Common Law with Electronic Freedom of Information Norms, 59 ARK. L. REV. 555, 604 n.295 (2006) (observing the preference for sealing criminal records rather than expunging, and analyzing relevant precedents from different jurisdictions). 252. See supra note 106 for the results of empirical studies by Holzer et al., proving the connection; see also Franklin & Johnsen, supra note 249, at 769 (noting that “expungement may . . . encourage wider discrimination against discretely identifiable groups”). 253. Another argument in support of employers’ open access to criminal records is that these records afford employers an opportunity to look at the nature of the offense in question—whether it was violent or non-violent, drug-related or not—and make their determination based on these distinctions. See Holzer et al., Employment Barriers Facing ExOffenders 15 (Urban Institute Reentry Roundtable, May 19-20, 2003), available at http://www.urban.org/UploadedPDF/410855_holzer.pdf [hereinafter Holzer et al., Employment Barriers Facing Ex-Offenders] (observing that providing employers with an opportunity to assess the type of the crime underlying the conviction may improve ex-offenders’ chances of being hired). 254. See discussion of criminal records availability in Michigan supra Subsection II.B.3. 1100 Michigan State Law Review [Vol. 2007:1051 ing free background checks to specific-needs entities255 to include all employers conducting a background search on prospective employees.256 In any event, the cost of a background check should not be borne by applicants, but rather, by employers who avoid negligent hiring liability, thus realizing savings by conducting a background examination.257 With the problem of unduly burdensome costs of criminal record checks addressed, Michigan should then expand the scope of duty in negligent hiring cases to uniformly require all employers to conduct background investigations of all prospective employees.258 Such a uniform application of duty will provide the state with the long-desired bright-line rule in negligent hiring cases,259 and remove current anomalies rewarding employers’ ignorance.260 Likewise, the recognition of the positive duty to investigate employees’ background is likely to yield favorable results in the sphere of workplace violence prevention, better develop Michigan’s vague negligent hiring jurisprudence, and provide meaningful compensation to the victims of employers’ careless practices.261 In turn, through the operation of this 255. See discussion supra note 125 for the description of the pilot U.S. Department of Health and Human Service program performed by Michigan State University. The state could build on this program and expand its application to all employers willing to hire exoffenders and attempt to avoid potential negligent hiring liability. 256. As one writer proposes, the state could consider “running a restricted web site for business owners to access databases that list the criminal records of individuals.” See Scales, supra note 147, at 436. 257. See EMPLOYMENT SCREENING FOR CRIMINAL RECORDS: ATTORNEY GENERAL’S RECOMMENDATIONS TO CONGRESS, supra note 141, at 18-19 (recommending that federal law impose an obligation to pay full costs of fingerprinting and processing criminal records on employers and prevent employers from trying to recoup these costs from employees). With the criminal record check costing only ten dollars, supra p. 1074, employers realize additional savings from the limitation that the inquiry into an applicant’s background could be conducted only after the conditional offer had been extended. 258. For similar suggestions, see Elizabeth A. Gerlach, The Background Check Balancing Act: Protecting Applicants with Criminal Convictions While Encouraging Criminal Background Checks in Hiring, 8 U. PA. J. LAB. & EMP. L. 981, 995-97 (2006) (arguing for expanding the use of background checks either by statute or by altering the concept of duty in negligent hiring cases); Leavitt, supra note 15, at 1314-15 (calling for imposing the duty to conduct background checks on all employers); Sullivan, supra note 35, at 582-83 (proposing that a requirement to ascertain applicants’ criminal histories apply to all business owners with the exception of smaller employers); Scales, supra note 147, at 435-36 (supporting the uniform requirement of background checks to close a current loophole in negligent hiring law by way of which employers may claim ignorance of the applicant’s background to avoid liability). 259. See Wais, supra note 20, at 263 (underscoring the need for a better definition of the contours of the negligent hiring tort in Michigan and arguing that the absence of “identified and attainable standards” for liability increases employers’ antipathy towards hiring exoffenders). 260. See discussion supra Section I.B. 261. In addition to clarifying the scope of negligent hiring duty, Michigan courts should also address the problems of causation in negligent hiring cases. See supra Section Winter] Reaching a Compromise 1101 requirement, employers are likely to become more cognizant of their responsibilities in investigating one’s background and ipso facto more cognizant of the existence in the state of ex-offender-supportive measures.262 And, although the expansion of the scope of investigative duties may seem counterintuitive to some,263 on balance employers’ fears of uncertainty and judicial second-guessing are by far more inimical to employment prospects of ex-offenders than a well-defined and predictable rule combined with firm anti-discrimination mechanisms. D. Fiscal Therapy: State Wage Subsidy for Ex-Offenders As a Supplement to Federal Tax and Bonding Assistance Because much of employers’ hesitation in hiring ex-offenders is generated by employers’ skepticism about ex-offenders’ honesty and financial responsibility,264 fears of thefts,265 and, in some instances, ex-offenderexclusionary bonding policies,266 financial incentives protecting employers I.C. To enhance predictability and uniformity of the outcomes in these cases, courts of the state should strive towards determining proximate causation as a matter of law. Doing so will make the negligent hiring jurisprudence more cohesive and predictable. These qualities of the doctrine would contribute to creating a favorable climate for employers’ hiring of exoffenders in Michigan. 262. Indeed, ensuring a better awareness of employers about ex-offender-related regulations enacted in a state has been a leitmotif of many rehabilitative proposals. See, e.g., REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 29 (concluding that employers’ ignorance of both governing laws and of available incentives to employ exoffenders is one of the greatest barriers to employment of ex-offenders); Leavitt, supra note 15, at 1313-14 (discussing the obstacles posed by ignorance of both employers and potential ex-offender employees about their rights and responsibilities in the employment process); Second Chance Act of 2005, H.R. 1704, 109th Cong. § 7 (2005) (authorizing Secretary of Labor to take “such steps as are necessary . . . to educate employers about one-stop centers, existing incentives, including the Federal bonding program, for the hiring of former Federal, State, or county prisoners and tax credits”). 263. See Michigan cases discussed supra notes 29, 34-35. For a catalogue of possible challenges to laws mandating background checks—including anti-discrimination challenges and challenges on constitutional grounds—see Gerlach, supra note 258, at 993-95. 264. In addition to direct damages potentially caused by financial dishonesty of exoffenders and increased workers’ compensation premiums, employers hiring ex-offenders also have to worry about liability to third parties harmed by employees who were hired despite their known propensities to commit economic crimes. See discussion supra note 133. 265. These fears are not without grounds. For instance, twenty-three percent of all convictions for financial institution frauds secured by the U.S. Department of Justice in 2002 involved bank insiders. Harris & Keller, supra note 5, at 20. In a case of a private employer, the stakes are especially high since approximately thirty percent of all business failures are said to be attributed to an employee theft. Funk, supra note 147, at 303. 266. One estimate suggests that as many as twenty-five percent of all commercial office jobs have bonding requirements. GERHARD E. EHMANN & PAUL SULTAN, THE EMPLOYMENT OF PERSONS WITH ARREST RECORDS AND THE EX-OFFENDER 30 (1971). Bonding is ordinarily not available to employees who have committed “dishonest or fraudulent” 1102 Michigan State Law Review [Vol. 2007:1051 from these economic risks should be an integral part of the state’s overall strategy.267 The economic assistance currently available to ex-offenders in Michigan—the U.S. Department of Labor Fidelity bonding program268 and the federal Work Opportunity Tax Credit Program269—is inadequate to address these employers’ concerns.270 These federal programs cover only a acts, so commercial bonding is largely denied to ex-offenders. See Katrina Grider, Employer Liability Under FIRREA, 109 BANKING L.J. 129, 136-37 (1992). A separate disqualification from employment based on dishonest or fraudulent acts is imposed by the Financial Institutions Reform, Recovery and Enforcement Act, 12 U.S.C. §§ 1829-33e (2000), that prohibits individuals convicted of such acts from directly or indirectly serving as an institutionaffiliated party or owning, controlling, or otherwise participating in the affairs of an insured depository institution. 12 U.S.C. § 1829 (2000); see Grider, supra, at 129-30. Yet, bonding of ex-offenders, when available, has yielded excellent results. See, e.g., Meltsner et al., supra note 144, at 893 (citing the results of a survey of the bonding assistance program documenting that, for the purposes of bonding, “the average ex-offender is a better risk than non-offender employees”); EVERY DOOR CLOSED, supra note 151, at 22 (citing the information provided by the federal bonding program that ninety-nine percent of about 40,000 applicants who have obtained jobs because of bonding “turned out to be honest workers”). 267. As a “demand-side” program aimed at reducing employers’ costs in hiring exoffenders, these financial incentives complement the “supply-side” programs that focus on improving ex-offenders’ professional and educational competency and thus improving their attractiveness to employers. Bushway & Reuter, Labor Markets and Crime Risk Factors, supra note 184, at 199. 268. The free-of-charge bonding assistance program, which is administered by the Michigan Works! service center, provides coverage ranging from $5,000 to $25,000, with no deductible amount, for the first six months of an ex-offender’s employment. State of Michigan, Michigan’s Workforce, Fidelity Bonding Program: A Job Placement Tool to Help Employers and Job Seekers (Mar. 20, 2002), http://www.michigan.gov/som/0,1607,7-19229943_31422-21154--,00.html. The coverage is limited to insurance against stealing by theft, forgery, larceny, or embezzlement, and does not encompass any other types of liability. Id. 269. Under this program, an employer of an ex-felon may receive as much as $2,400 per new hire, which translates into forty percent of qualified first-year wages for those employed at least four-hundred hours and twenty-five percent for those employed at least onehundred-twenty hours. State of Michigan, Department of Labor, Nine New Ways Employers Can Earn Federal Income Tax Credits, http://www.michigan.gov/documents/uia_wotcbookforms_79128_7.pdf. The credit is limited to ex-felons who are members of low income families and who have been hired during the first year after their conviction or release. Id. In comparison, the Welfare-to-Work Tax Credit, for which ex-offenders as a group are not eligible, rewards employers for hiring long-term welfare recipients with the sum of $8,500. Id. A similar program, offering up to $2,100, once existed solely for hiring ex-offenders, but was eliminated in the late nineties. See Symposium, A Fork in the Road: Build More Prisons or Develop New Strategies to Deal with Offenders, Adult Supervision, 23 S. ILL. U. L.J. 385, 405-06 (1999) (describing the former program and proposing to bring the level of the current Work Opportunity Tax Credit coverage to the level of coverage under the Welfare-to-Work Credit). 270. Empirical research shows that about sixty-five percent of employers would not hire an ex-convict. See research data cited supra note 137. Yet, as many as fifty-one percent of employers indicated their willingness to hire ex-offenders if they were bonded. EVERY DOOR CLOSED, supra note 151, at 22. Indeed, employers would be attracted by tax credits Winter] Reaching a Compromise 1103 limited number of ex-offenders, are not well-known among employers, and do not shield employers from potentially devastating negligent hiring liability.271 To fill the gaps in the federal programs,272 Michigan should provide a solid incentive for hiring ex-offenders by implementing an independent wage subsidy program similar to the one currently considered in New York.273 In addition, the state should subject the bonding practices of commercial insurers to the general operation of the “direct relationship” test and presumptively prohibit bonding disqualification of ex-offenders who received court-issued removal orders.274 Harmonizing the behavior of commercial bonding businesses with the state’s ex-offender anti-discrimination goals will defeat one more artificial barrier on the way towards meaningful employment of ex-offenders in Michigan. Like the New York proposal, the Michigan wage subsidy program should be targeted exclusively at ex-offenders on the one end, and geared towards small businesses on the other.275 Some areas of the state may be subsidized heavier than others, but in any event, employers should be reexceeding $2,000 per employee or by the State assuming responsibilities for health and other benefits of employees, as opposed to the State merely supplying tax credits. REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 29. 271. See REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 29, 34 (criticizing the bonding program for its limited scope and concluding that available financial incentives will not make employers reconsider their cautious hiring practices); Holzer, Employment Barriers Facing Ex-Offenders, supra note 253, at 17 (noting that employers’ “takeup” of both bonding programs and the Work Opportunity Tax credits is very low and that, despite growing prison population, “purchases of bonds have actually declined over the past few decades”); EVERY DOOR CLOSED, supra note 151, at 22 (criticizing the bonding and tax credit programs as providing inadequate incentive for employers to hire exoffenders); Miller, supra note 75, at 348-55 (addressing the problems associated with bonding and tax credit programs by proposing a State-funded insurance program for ex-offenders that would insure employers against negligent hiring liability using the “direct relationship” test). 272. Naturally, federal programs’ drawbacks need to be corrected at a federal level, and the state can only consider steps to supplement these programs. See, e.g., Pager, supra note 12, at 511-12 (proposing to remedy ineffectiveness of federal programs by imposing caps on negligent hiring liability and calling for federal government to “assume federal responsibility for a larger share of damages”). 273. See REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 13-15 (proposing to create a $25 million Wage Subsidy Program for formerly incarcerated individuals that could serve, depending on the duration and hourly wage, anywhere from 1,030 to 6,302 people). 274. See Meltsner et al., supra note 144, at 893-94 (proposing to eliminate arbitrary discrimination by bonding companies and preclude them from using criminal record as a “subterfuge for denying jobs to ex-offenders for other reasons”). 275. Cf. REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 14 (proposing to direct the thrust of the New York’s wage subsidy program to seven neighborhoods with the highest reentry rates). To direct a greater share of subsidies towards small businesses, which are most vulnerable in hiring ex-offenders, the state could regulate the amount of awarded subsidies in inverse proportion to the size of a subsidized entity. See id. 1104 Michigan State Law Review [Vol. 2007:1051 quired to make a good-faith effort in keeping employees beyond the subsidized period.276 The program should last anywhere from six months to one year, a period long enough for ex-offenders to overcome employers’ unfounded biases and to demonstrate their true abilities.277 Undermining the possibility of the proposed subsidy is the lack of funds for its implementation. The immediate difficulty in obtaining funds is, however, not dispositive: these expenditures can be offset by the tremendous long-term savings realized if ex-offenders avoid entering the welfare system or returning back to prisons, and start meeting their child support responsibilities.278 What is more, benefits stemming from eliminating crimes and the attendant costs to the victims add up nationwide to hundreds of billions of dollars, and, therefore, well justify the spending.279 Finally, given the tight labor market in the state280 and the social costs of neglecting the problem of ex-offenders’ employment, a wage subsidy program281 is a worthwhile investment that will pay off in the future.282 276. See id. Further, the program should prohibit employers from “cycling several individuals though one wage-subsidized position.” Id. 277. Along with affording ex-offenders the opportunity to get “a foot in the door” and obtain some employment experience, the program also allows employers to “try before they buy” and to thus lower their turnover rates. Id. at 15. 278. According to the estimates of the Special Committee on Collateral Consequences of Criminal Proceeding of the New York bar, the accomplishment of these tasks in the state of New York will save taxpayers $3.615 million for every 100 people. Id. at 4. Paying child support presents a problem in itself, for it creates a disincentive for poor fathers to obtain formal employment and prompts them to seek “under the table” work to avoid this additional “tax” on earnings. See Holzer et al., Employment Barriers Facing Ex-Offenders, supra note 253, at 18 (proposing to modify child support policies for poor ex-offender fathers and to increase wage subsidies and tax credits for this group). 279. REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 15. Of course, not all benefits to society are quantifiable. Such damages as pain and suffering, loss of quality of life, and emotional distress attest to that truism the best. 280. However, the pressures of the tight market are expected to subside as the baby boomers retire. The demand in workers hence created is expected to have a positive impact on the employability of ex-offenders. See Holzer et al., Employment Barriers Facing ExOffenders, supra note 253, at 19 (predicting that, in the context of the increased demand for labor, financial incentives for hiring ex-offenders will carry more weight with employers). 281. Wage subsidies is a powerful method of encouraging ex-offenders’ employment, and is the preferred method of financial incentives among employers. REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 36 (reporting that ideally, employers would prefer to receive twenty-five to fifty percent of employees’ salary in wage subsidies, $2,000-3,000 per employee in tax credits, or government-provided benefits for up to one year). 282. Once again, one of the most essential conditions for the efficacy of the program lies in widely informing employers of its existence and in facilitating the application process. Today, generalizing the New York experience, employers are largely unfamiliar with the specific incentives available to them for hiring ex-offenders. Id. at 36. This problem could be resolved through the use of an intermediary organization, see infra Section III.E, that would inform employers of available incentives and help them obtain these incentives. Winter] Reaching a Compromise 1105 E. An Intermediary Organization for Ex-Offenders—A Missing Link in ExOffenders’ Employment Tax credits, bonding assistance, and wage subsidies may offer strong incentives for employers to hire ex-offenders, but may nevertheless not be enough to alter the existing hiring patterns of employers drastically.283 To enhance the effectiveness of these support mechanisms, Michigan should establish an intermediary organization specifically charged with handling the issues of ex-offender reintegration and working closely with potential employers to address their concerns in hiring ex-offenders.284 The organization should function as a liaison between employers and ex-offender employment applicants establishing contacts with the willing employers, exploring employers’ personnel needs, and assessing the potential fit between a particular employer and a particular ex-offender.285 This mechanism may allay some of employers’ fears of negligent hiring liability, especially if hiring through an intermediary organization is presumed to exhaust the extent of investigative duty in negligent hiring cases.286 In addition, through the provision of at least short-term transitional employment,287 283. See REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 36 (summarizing the results of a survey indicating that financial incentive programs encourage, but do not completely convince employers to hire ex-offenders, and suggesting that “[f]inancial incentives are most attractive when offered in conjunction with the role of intermediary organizations”); see also Holzer et al., Employment Barriers Facing Ex-Offenders, supra note 253, at 17-18 (recognizing that intermediary organizations could enhance the positive effects of financial assistance on employers’ practices in hiring ex-offenders). 284. Such centers already exist in several states. Among the most successful are the New York’s Center for Employment Opportunities, the Cleveland Works in Ohio, and the Safer Foundation in Chicago. See M. ROBIN DION ET AL., REACHING ALL JOB-SEEKERS: EMPLOYMENT PROGRAMS FOR HARD-TO-EMPLOY POPULATIONS 29-37 (1999), available at http://www.mathematica-mpr.com/PDFs/hdemploy.pdf (endorsing ex-offender-specific intermediary organizations and describing each of them in detail). Michigan Works!, a Michigan agency dealing with ex-offenders’ support, caters mainly to other disadvantaged groups of job seekers and works with ex-offenders only on a peripheral basis. See Michigan Works!, Education, Training and Employment, http://www.michiganworks.org/page.cfm/68/ (last visited Feb. 1, 2008) (listing only two programs specifically targeting ex-offenders—the Pathways Employment Program and New Way In Inc., both administered only by referral). 285. Pager, supra note 12, at 510-11. 286. See id. (“Intermediaries can help to reduce employers’ concerns about hiring exoffenders by vouching for the individual in question and by providing additional supervision capabilities to ensure the new employee follows through.”); REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 21 (“‘[E]mployers are looking to other agencies to share the burden of responsibility.’”). 287. For instance, the New York Center for Employment Opportunities employs exoffenders in work crews performing low-skill, short-term projects for the interested customers. DION ET AL., supra note 284, at 30. Participants receive about thirty-five dollars per day and much more in non-monetary terms–by building their resumes and acquiring the sense of responsibilities and expectations in the employment context. Id. 1106 Michigan State Law Review [Vol. 2007:1051 intermediary organizations can neutralize employers’ negative attitude towards hiring recently released individuals without any post-release employment.288 Likewise, such an intermediary organization can be instrumental in improving the soft skills of ex-offenders that employers commonly regard as extremely important.289 Still another important function that an intermediary organization may serve is informing employers of the financial incentives available to them and assisting them with the necessary paperwork during a fast, one-stop visit.290 Although finding funding for this initiative may be problematic, the New York Center provides a good example of financing the project through the support of charitable foundations and corporate entities.291 Money for intermediaries could also come from rechanneling the funds allotted to ineffective vocational training292 or from other state-sponsored programs.293 288. Research demonstrates that employers are particularly opposed to hiring exoffenders without any post-release work experience, and that this aversion subsides as applicants gain some post-release employment. Holzer et al., supra note 106, at 26 (conclusions based on evidence from Los Angeles). 289. See supra note 135. Along with soft skills, intermediaries need to assist exoffenders with preparing themselves for an interview—composing a resume, learning about the interview process, getting ready for responding to questions about convictions. In contrast, the programs targeting vocational skills of ex-offenders have generally proved to be ineffective. See generally Harrison & Schehr, supra note 3, at 51-52 (overview of scholarly literature coming to a consensus that federal programs for vocational guidance were “merely bureaucratic spin machines, used for political gain, that yielded no reduction in recidivism or an improved job outlook for targeted groups”); see also Michael E. Borus et al., JobPlacement Services for Ex-Offenders: An Evaluation of the Michigan Comprehensive Offender Manpower Program (COMP) Job-Placement Efforts, 11 J. HUM. RESOURCES 391 (1976) (giving a bleak assessment of the results of the Michigan COMP job-placement program that focused on pre-release educational and vocational services to convicts). But see REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 16 (hailing as successful the Department of Correctional Services vocational training program in optometry). 290. The studies conducted in New York showed that employers are generally unaware of financial incentives available to them and would prefer to have intermediary organizations assist them in applying for these incentives in a process that is “as easy and hasslefree as possible.” REPORT AND RECOMMENDATIONS TO NEW YORK STATE, supra note 156, at 21. 291. See Center for Employment Opportunities, Grants, http://www.ceoworks.org/grant.htm (last visited Feb. 1, 2008) (enumerating numerous sources sponsoring the Center). 292. To provide just one example, Grand Rapids organization Cascade Engineering recently received funds from a $495,000 U.S. Department of Labor grant, which it will use for a “series of ex-offender training sessions.” Press Release, Cascade Engineering, Cascade Engineering Selected to Implement Ex-Offender Reintegration Program (Dec. 29, 2005), http://www.cascadeng.com/press/pr/20051229.htm (last visited Feb. 1, 2008). This money could find a better application if spent to promote the intermediary organization’s goals described above. 293. One such program in Michigan is the Michigan Prisoner Re-Entry Initiative, currently implemented at eight pilot sites in Michigan and designed, among other objectives, Winter] Reaching a Compromise 1107 Whether the funds come from non-governmental grants or from the state, the idea of an intermediary organization is well worth the expenditure, as demonstrated in those jurisdictions that have adopted this model.294 CONCLUSION Despite the announced legislative policy towards reintegration of exoffenders295 and the self-laudatory estimates about the effects of implementing this policy,296 Michigan has a long way to go before it can adjust its calculus in treatment of ex-offenders from punitive exclusion to social reintegration. In today’s competitive labor market, the state must concentrate first on affording ex-offenders a meaningful chance to obtain full-time employment. The indeterminate status of the law of negligent hiring, pervasiveness of employment-related collateral consequences imposed on ex-offenders, and the insufficiency of federal protections substantially impair exoffenders’ chances to find their way out of the vicious vortex. Under these circumstances, a prompt action by the state to protect ex-offenders from records-based discrimination and to incentivize employers to hire exoffenders becomes indispensable. While the list of the desired measures to protect ex-offenders is extensive, the critical ones endorsed in this Comment provide convicted individuals with a chance to petition a court for timely relief from civil disabilities; ban records-based discrimination; clearly delineate the scope of duty in the negligent hiring cases; and supply transitional employment opportunities for ex-convicts. This Comment also recommends remedies to assist employers in hiring ex-offenders and avoiding unwarranted liability. These include creating a wage subsidy program for ex-offenders’ employment; providing employers with free access to criminal records at hiring; establishing an to connect employers with ex-offenders upon their release from prison. See MICHIGAN PRISONER REENTRY INITIATIVE, MONTHLY STATUS REPORT 3 (May 1, 2006), http://www.michigan.gov/documents/05-01-06_-_MPRI_Monthly_Report_157448_7.pdf. The idea of an intermediary organization would thus fit comfortably within the general goals of the Initiative. 294. Favorable results of the intermediaries’ efforts to employ ex-offenders are demonstrated by the Texas-based project RIO, whose participants were almost twice as likely to find employment and to avoid re-arrest as their non-RIO-participating counterparts. Pager, supra note 12, at 510; see also Maria L. Buck, Getting Back to Work: Employment Programs for Ex-Offenders (Field Report Series 2000), available at http://www.ppv.org/ppv/publications/assets/94_publication.pdf (summarizing successes of other intermediary organizations in the country). 295. See discussion supra Section II.B and cases cited supra note 98. 296. See MICHIGAN PRISONER REENTRY INITIATIVE, MONTHLY STATUS REPORT 22 (May 1, 2006), http://www.michigan.gov/documents/05-01-06_-_MPRI_Monthly_Report_157448_7.pdf (praising the expansive innovative foundations of the Michigan Prisoner ReEntry Initiative). 1108 Michigan State Law Review [Vol. 2007:1051 intermediary organization dealing with ex-offenders; and granting a business-judgment-rule protection to those employers who have conducted background checks or hired employees through the intermediary organization. This complex of measures is in sync with the holistic approach to exoffender rehabilitation prevalent in the modern literature and adopted or espoused in the progressive U.S. jurisdictions. These measures reflect the principles of proportionality and individualized justice lost in the years of the tough-on-crime political discourse. Lastly, and most importantly, these measures represent the necessary step in effecting a fundamental change in our society’s attitudes towards those who have once made a mistake.297 297. In the end, the problem of ex-offenders’ reintegration can no longer be reduced to the mere problem of recidivism. Rather, it is “best conceptualized as social integration” demanding “a new partnership of public and private entities” for the sake of not just exoffenders themselves but everybody affected by them during “their transition from prison to community.” TRAVIS ET AL., FROM PRISON TO HOME: THE DIMENSIONS OF CONSEQUENCES OF PRISONER REENTRY, supra note 203, at 47.
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