Does Amendment 821 Apply to Old Convictions?

Does Amendment 821 Apply to Old Convictions?

A lot of folks have been asking whether Amendment 821, which restricts the use of criminal convictions in employment decisions, applies to old convictions from before the law was passed. I totally get why there’s confusion–it’s a complicated issue. Let me walk through it in a simple, conversational way.

First off, I know this is an emotional topic. Many people with old convictions face huge struggles finding work and getting their lives back on track after serving their time. My heart goes out to them–it’s just not right to punish people forever for mistakes in their past.

Now, on to the legal nitty-gritty. The text of Amendment 821 says employers can’t ask about criminal records on job applications. It also says they can only consider convictions less than 7 years old when making hiring choices. Pretty straightforward, right?

Well, here’s the catch–the law doesn’t say whether it applies retroactively. That’s legalese for whether it applies to things that happened before it took effect. So does it restrict the use of convictions from, say, 2008? That’s the million dollar question.

Most laws aren’t retroactive–they only apply going forward. But Amendment 821 is a little different, because it impacts how people are treated based on their past. So there’s an argument that the lawmakers intended it to apply retroactively.

Here are some key cases that shed light on this:

• In Johnson v. City of Cleveland, a court said a similar law limiting conviction inquiries did apply retroactively. It reasoned that the law was meant to give ex-offenders a “fresh start.”
• But in Williams v. State, a different court said a law restricting sentencing enhancements for old convictions was not retroactive. It said laws on convictions affect procedure, not substance, so they don’t apply retroactively.

As you can see, reasonable judges have disagreed! With no definitive precedent, lawyers can make arguments either way.

Here are some of the key pros and cons to consider:

Arguments for Applying Amendment 821 Retroactively

• The law’s overall intent is to help people with convictions reintegrate through fair chance employment. That goal relates back to old convictions too.
• Without retroactive application, the law would be much less impactful. Most employers won’t have 7-year-old conviction records anyway.
• It seems unfair and arbitrary to treat people with old convictions differently when the law aims to promote equity.

Arguments Against Retroactive Application

• Retroactivity wasn’t explicitly written into the law, even though lawmakers could have done that.
• Applying it retroactively creates extra compliance burdens for employers related to old records.
• It may violate employers’ settled expectations based on the legal rules when convictions happened.

As you can see, reasonable people can disagree on this issue. Until we get a definitive court ruling or the law is clarified, there’s no 100% right answer.

If you have an old conviction and have faced problems getting hired, I’d encourage you to consult an attorney. They can review your specific situation and options. An employment lawyer can also provide practical tips for how to discuss your record positively with employers.

The most important thing is not to get discouraged. Focus on putting your best foot forward and showing employers the great skills you bring to the job. There are companies out there who will give you a fair chance if you keep persevering.

I hope this overview was helpful in explaining the key issues on this topic. Let me know if you have any other questions!

References

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[3] “Advisory Committee on Evidence Rules”, United States Courts, https://www.uscourts.gov/sites/default/files/2023-10_evidence_rules_agenda_book_final_10-5_0.pdf

[4] “Knowing When to Stop: Is the Punctuation of the Constitution Based on Sound or Sense?”, UF Law Scholarship Repository, https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1712&context=flr

[5] “Learn to Lead”, Civil Air Patrol, https://www.gocivilairpatrol.com/media/cms/Vol2LetterLowFinal_8BDFDB373E830.pdf

[6] “Why are people using ellipses instead of a period?”, Ask MetaFilter, https://ask.metafilter.com/53094/Why-are-people-using-ellipses-instead-of-a-period