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In Pennsylvania, a consortium of private and public interest lawyers successfully challenged a state statute that unfairly eliminates people from employment in the long-term health care field and simultaneously deprives elderly, sick and disabled people of caregivers they need to survive.

At issue in Peake v. Pennsylvania were provisions of the Older Adults Protective Services Act (OAPSA) that prohibit certain health care facilities—including nursing homes, other residential facilities, and home health care agencies—from hiring individuals who have certain criminal histories.  The lifetime ban applies regardless of the age of the conviction and precludes employers from considering any rehabilitative efforts in which the ex-offender engaged in the often-lengthy intervening time period. 

The plaintiffs’ expert, a criminologist in the field of recidivism, concludes that although past criminal acts may suggest a temporary increase in the likelihood of a future risk of illegal behavior, there is no such correlation for older or minor offenses.  It turns out that, based upon accepted and peer-reviewed studies quantifying rates of recidivism and specific types of recurrent behavior, the science supports the conclusion that, after a relatively brief amount of time from the conviction–four to seven years for a single conviction–an individual’s risk of committing another offense is the same as any other member of the general population. In short, it is a myth that a prior criminal history suggests that an individual is more likely to commit another crime than anyone else, at least over the long term.  

As an example, the lead plaintiff, Tyrone Peake, shared his circumstances. In 1982, when he was 18 years old, he was found guilty of attempted theft after being a passenger in a car that friends had stolen.  He accepted responsibility and successfully completed probation. He has committed no other crimes since.   After working in a series of low-paying jobs, he decided to go back to school to improve his life. To do so, he worked through a learning disability, and ultimately succeeded in earning an Associate’s Degree in Behavioral Health and Human Services, as well as certificates in Addiction Studies and Recovery.  He has since been accepted to a Bachelor of Arts program in Behavioral Sciences. He explained that because he knows what it is like to struggle with a learning disability, he relishes working in therapeutic care and seeks to help people with mental or behavioral disabilities.  However, because of his one-time, non-violent mistake from 32 years ago, OAPSA precludes him from being able to advance in his profession, to find employment, and to provide much-needed care.

Mr. Peake's problem with obtaining employment is the other side of the coin for those who need his services but cannot find people like him willing to help, according to another plaintiff, Resources for Human Development (RHD), a non-profit organization providing residential programs and services for those with mental illness, developmental challenges, and chemical dependency issues.  RHD (which was a plaintiff in a similar lawsuit fourteen years ago) believes that many people with criminal records can become valuable employees, particularly for serving vulnerable populations who have faced some of the same challenges.  RHD alleges that OAPSA’s overbroad lifetime bans hamper its ability to hire otherwise highly qualified individuals. 

The Philadelphia court agreed.  A unanimous seven-judge panel ruled that part of the state's Older Adult Protective Services Act was unconstitutional because it was too broad in delineating the types of past crimes that disqualified people from jobs that involve caring for the elderly and other kinds of long-term care.  The law "makes no provision for consideration of any other factor, such as the nature of the crime, the facts surrounding the conviction, the time elapsed since the conviction, evidence of the individual’s rehabilitation, and the nature and requirements of the job....The employee's criminal history is the single and overriding factor that a potential employer may consider," Judge Mary Hannah Leavitt wrote for the court. The entire panel agreed that such a provision was unconstitutional. 

This state decision joins a trend in both court and executive branch actions that recognize that blanket restrictions on employment from past criminal behavior are unfair. Several months ago, the Obama administration issued an executive order to cease criminal background checks at the early stages of the federal hiring process, in what is often called "ban the box" actions, named for halting the use of a check-box on employment applications asking if the applicant has any criminal convictions. Similarly, in October, a federal judge in Brooklyn took the enormous step of ordering a federal conviction expunged, even though there is no federal law authorizing it, because the conviction had disproportionate effects on the applicant's ability to be employed. That 2015 case is styled Doe v. U. S. in the Eastern District of New York. It is being appealed. 

All of these recent actions point towards recognizing the need for an effective, reasonable, and fair system for expunging criminal records of deserving ex-offenders so that they may reintegrate into the workforce and enjoy the benefits of gainful employment, the backbone of social stability.  

View the full text of the Peake decision  and a discussion of the case.