Submission of Kim Workman on the

Petition of Eric Knight and 156 Others

Regarding the Clean Slate Act

1.0 Thank you for inviting me to submit on the Petition of Eric Knight and 156
others, which requests:

“That the House amend the Criminal Records (Clean Slate) Act 2004 to apply
to individuals who have been sentenced to a custodial sentence of 12 months
or less, once a period of twenty years has passed since the date of last
sentencing”

3.0 Summary of Conclusions

This submission comes to the following key conclusions;

Concealment of Criminal Record after Date of Last Conviction

3.1 That the available evidence shows that;

a) After seven years from the date of their last conviction, ex-offenders are
almost indistinguishable from citizens who have led a crime free existence,
whether or not they have served a custodial sentence;

b) After 10 years from the date of last conviction, very little sexual recidivism
occurs, whether or not the offender has served a custodial sentence.

3.2 If changes to the clean slate legislation were aligned to the available empirical
evidence, there would be little if any risk to public safety.

3.3That the clean slate legislation be reviewed, based on the current evidence, and on
the basis of the following guidelines:

a) That a person’s criminal history be concealed after a period of seven years

following the last conviction, including persons who have served a period of:

i. Home detention;

1
 ii. A sentence of imprisonment of two years or less;

3.4 That a person’s criminal history be concealed after a period of ten years following
the last conviction, if they have served a period of imprisonment for more than two
years, but less than five years;

3.5 That a person’s criminal history be concealed after a period of fifteen years
following the last conviction, if they have served a period of imprisonment for five
years or more;

3.6 That the Select Committee seek expert advice on whether there should be a blanket
exclusion of sex offenders from the ‘clean slate provisions’, or whether certain
types of sex offending should be concealed, for what length, and under what
conditions.

2
 The Impact of Criminal Record in Obtaining Employment

3.7 That the existence of a criminal record has a major impact on an offender’s ability
to secure employment;

3.8 That there is a direct relationship between employment, and an offender’s ability to
desist from crime.

3.9 That the ‘collateral consequences’ of a criminal record, impact not only on
employment, but in relationship to access to housing, education and training, long
after the offender has ceased to be a risk to public safety.

3.10 Collateral consequences are ethically, if not legally, problematic because they
amplify punishment beyond the sanctions imposed by the criminal justice system.

Public Access to Criminal Records

3.11 In New Zealand, employers and institutions are increasingly requiring

potential employees and applicants for housing or educational grants, to provide
information about their criminal history.

3.12 The existence of a criminal record may be relevant in certain cases, for
reasons of public safety, the safety of children, or financial security. However, in
other cases, the information may not be relevant to the position.

3.13 There is no consistent policy in place to determine whether a blanket

approach is necessary or appropriate, or what processes should be followed when
questioning applicants about their criminal history.

Equal Employment Opportunity Policies for Persons with Criminal Convictions

3.14 Core Equal Employment Opportunity policies (e.g. State Services

Commission, and Diversity Works Trust) do not provide guidelines for the
employment of persons with a criminal history. However, all refer to removing
employment barriers for Māori. Given that 57% of all Māori men born in 1978,
have a criminal conviction, this is a significant policy gap that needs to addressed.

3
3.15 It is recommended that New Zealand follow the example of the US Equal
Employment Opportunities Commission, which has developed comprehensive
guidelines relating to the employment of persons with a criminal conviction.

Judicial Rehabilitation

3.16 It is recommended that the Select Committee consider the introduction of

legislation which enables former offenders to apply to the Court for a Certificate of
Good Conduct; if the Court is satisfied, not only that the offender had desisted from
crime, but is able to show that they had contributed to the community and society
itself, through acts of good citizenship, over a substantial period of time.

4.0 About the Petition

4.1 The petition is straightforward enough. It mirrors the circumstances of

thousands of New Zealanders who commit crime (half of whom do so between the
ages of 18 and 23), go on to stop offending and lead law-abiding lives, only to
spend a lifetime being declined work, housing and educational opportunities,
because of their criminal history.

4.2 The best way to respond to this petition, is to take an evidence-based approach
and consider the petition in terms of the government’s BPS Reducing Reoffending
goal, by addressing the following questions;

a) What current demographic information is available to indicate that people

who are convicted of a criminal offence, cease offending over time?

b) What evidence is there to support the idea that after a given period of time,
the risk of recidivism for a person who has been convicted in the distant
past, is indistinguishable from that of a population of persons with no
arrests?

c) What evidence is there to show that ex-offenders who are denied

employment on the basis of criminal history, are less likely to desist from
crime, and more likely to reoffend?

4
 d) What changes, (if any), to the clean slate legislation, would more effectively
promote offender desistance from crime, without compromising public
safety?;

e) What other changes to legislation or public policy would increase offender

access to employment and promote desistance from crime?

5.0 Demographic Information

5.1 International research confirms that only about 5% to 10% of young offenders
actually go on to become “chronic” criminals over time. 1 2 3 4 In New Zealand, a
third of the young people who are subject to a Family Group Conference, and then
“age out” of the Youth Court jurisdiction, do not offend at all. A further 22%
offend but only to a minor degree.5

5.2 At the recent launch of the Justice Sector Investment Approach, on 1 May, the
Ministry of Justice distributed an infographic handout, which made clear the extent
to which New Zealanders accumulate criminal convictions. According to it, of all
the babies born in 1978;

 One in four now have a criminal conviction;

 One in three men have a criminal conviction;

 One in two Māori and Pacific men have a criminal conviction. I have since
established that 48% of Pacific men in that group have a criminal conviction,
and 57% of Māori men. 6

1
Dunford, Franklyn and Delbert Elliot. 1984 Identifying career offenders using self-reported data. Journal of
Research in Crime and Delinquency 21:57–86.
2
Moffit, Terrie 1993 Adolescent-limited and life-course persistent antisocial behavior. Psychological Review
100:674–701.
3
Shannon, Lyle W. 1982 Assessing the Relationship of Adult Criminal Careers to Juvenile Careers. Washington,
D.C.: U.S. Department of Justice.
4
Wolfgang, Marvin E., Robert M. Figlio, and Thorsten Sellin 1972 Delinquency in a Birth Cohort. Chicago, Ill.:
University of Chicago Press.
5
Becroft, Andrew, Youth Justice Family Group Conferences: A Quick “Nip and Tuck” or Transplant Surgery -
What Would the Doctor Order in 2006? International Conference on the Family Group Conference – “Coming
Home – Te Hokinga Mai” Wellington, New Zealand,27-29 November 2006.
6
Email Communication with Ministry of Justice 25 May 2016.

5
5.3 The infographic commented that “many of these convictions are for minor
crimes like shoplifting and careless driving, but show many New Zealanders are
involved with the Justice Sector at some point.”

5.4 The infographic also advised that:

 Half of all offending happened when people were 17 – 22 years old;

 Most offending careers ended shortly after they begun.

5.5 It further commented that “most offenders are known to the Justice sector for
only a few years before desisting”. An accompanying graph showed a steady
descent in offending levels from the age of 22 years, and almost all criminal careers
petering out by 34 years of age.

5.6 The Ministry of Justice will be able to provide you with a more sophisticated
data set. What is clear is that while a significant number of New Zealanders have
criminal convictions, with Pacific and Māori men disproportionately represented,
most people stop offending shortly after they begin.

6.0 Recidivism Risk from the Date of Last Conviction

6.1 Eric Knight’s petition reflects a common and ongoing struggle for the large
number of New Zealanders with a record of past offending, who encounter
resistance when they try to obtain employment, even if a person’s most recent
offence occurred in the distant past. There may be many reasons for such obstacles,
but they are at least partially premised on the concern that individuals with arrest
records—even from the distant past—are more likely to offend in the future than
persons with no criminal history.

6.2 There are two well-documented empirical facts that will serve to guide the
Select Committee in its deliberations;

(1) Individuals who have offended in the past are relatively more likely to
offend in the future, and

(2) The risk of recidivism declines as the time since the last criminal act
increases.

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6.3 What the research tells us is that most people with a criminal justice contact at
some point early in life actually pose little or no risk of going on to become long-
term recidivists. Moreover, existing research suggests that the ignored element of
“time since last arrest/conviction” is a significant factor in understanding the
connection between past and future criminal activity.

6.4 The current ‘clean slate’ legislation provides that a person’s criminal history
can be concealed after a period of seven years following the last conviction.
However, there are a range of criminal convictions, excluded; i.e.

a) Custodial sentences,

b) Specified offences, ( a range of sex offences, involving children, rape or

incest),

c) An order by the Court, following a criminal case, that the offender be

detained in a hospital due to their mental condition

d) Any indefinite disqualification from driving ordered by the court for repeat
offending, even if the disqualification has subsequently been lifted by the
Court

6.5 Research confirms that the seven year limit is appropriate. In a recent
Philadelphia study of males arrested by the Police it confirmed that individuals
who have managed to refrain from offending for a long period of time, even though
they offended in the past, consistently exhibit much lower risk of future offending
than individuals who have offended in recent years. After between six and seven
years of crime free living, they are almost indistinguishable from citizens who have
led a crime free existence, with a less than 1% risk of reoffending compared to non-
offenders.7

6.6 The issue for Eric Knight is that he spent time in custody, and is ineligible for
concealment of his criminal record. The research however, shows that the pattern
described above is the same for persons who have served a custodial sentence, as it
is for those who have not. Schmidt and Witte followed two cohorts of North

7
Kurlychek, Megan C. ; Brame, Robert ; Bushway, Shawn D., Scarlet Letters and Recidivism: Does an Old
Criminal Record predict Future Offending? Criminology & Public Policy, 2006, Vol.5(3), pp.483-504
Ibid

7
Carolina released prisoners prison to estimate the percentage of released prisoners
who return to prison.8 Their analysis showed that the percentage of prisoners
returning to prison peaked before the released prisoners had been in the
community for 10 months. At the 20-month mark, the percentage dropped to half of
the peak level. By the 40-month mark, the estimated percentage returning to prison
was half of its 20-month level. These results imply that risk of recidivism for a
cohort of offenders returning to the community peaks fairly quickly and then
diminishes considerably with the passage of time. Many studies exhibit this same
time-to recidivism pattern. 9 10 11 12. In addition, most of the studies indicate that the
percentage of the population recidivating begins to approach zero after about seven
years of follow-up13

6.7 In other words, the current research shows that the recidivism risk of a person
who has was last convicted seven years prior approaches zero, whether or not they
have served a custodial sentence.

6.8 I cannot tell from the petition, whether or not Eric Knight’s convictions were
for a ‘specified offence’ i.e. sex related offences. The research into sex offender
recidivism explodes the current myth that sex offenders are at a high risk of
offending. Reoffending by sexual offenders is low, and even for those assigned to a
high risk group based on actuarial factors, the majority will not go on to sexually
reoffend in the follow-up period.

6.9 Recent research by Hanson et al, examined the extent to which sexual offenders
present an enduring risk for sexual recidivism over a 20-year follow-up period. 14
Using an aggregated sample of 7,740 sexual offenders from 21 samples, the yearly
recidivism rates were calculated using survival analysis. Overall, the risk of sexual

8
Schmidt, Paul and Ann D. Witte 1988 Predicting Recidivism Using Survival Models. NewYork: Springer-Verlag.
9
Greenberg, David F. 1978 Recidivism as radioactive decay. Journal of Research in Crime and Delinquency
15:124–125.
10
Harris, C.M. and Soumyo Moitra 1978 Improved statistical techniques for the measurement of recidivism.
Journal of Research in Crime and Delinquency 15:194–213.
11
Harris, C. M., A. R. Kaylan, and Michael D. Maltz
1981 Refinements in the statistics of recidivism measurement. In James A. Fox (ed.), Models in Quantitative
Criminology. New York: Academic Press.
12
Maltz, Michael D. 1984 Recidivism. New York: Academic Press.
13
Blumstein, Alfred, Jacqueline Cohen, Jeffrey Roth, and Christy Visher 1986 Criminal Careers and “Career
Criminals.” Vol. 1. Washington, D.C.: National Academy Press.
14
Hanson, R. Karl., Andrew J. R. Harris, Leslie Helmus and David Thornton ‘High-Risk Sex Offenders May Not Be
High Risk Forever’, in Journal of Interpersonal Violence published online 24 March 2014,
http://jiv.sagepub.com/content/early/2014/03/20/0886260514526062

8
recidivism was highest during the first few years after release, and decreased
substantially the longer individuals remained sex offence–free in the community.

6.10 Research conducted by the Department of Corrections in 2011 and 2012,

confirms these findings. While sexual recidivism rates for all sex offenders
released from prison in 1992, and followed up in 2003 were 16%, more recent work
undertaken by the Department of Corrections found that only 11% were found to
sexually reoffend, representing a decline of nearly one third in the rate of
recidivism which had occurred in the previous decade. 15 For men who offended
sexually against children, and released in 2001, the 10 year old recidivism rate has
declined from 13% to 5 ½ percent.16

6.11 Department of Corrections research shows that about 50-% of those who will
sexually recidivate will do so within three years, and after six years approximately
80% of those who do go on to sexually reoffend will have done so. Very little
sexual recidivism occurs 10 years following an offender’s last offence. This 10 year
trend appears to apply irrespective of whether the offender has spent the majority
of time in prison, or in the community. This ‘latency’ effect appears to operate
regardless of the individual’s opportunity to offend.17

6.12 In summary then, the available evidence shows that,

a) After seven years from the date of their last conviction, ex-offenders are
almost indistinguishable from citizens who have led a crime free existence,
whether or not they have served a custodial sentence;

b) After 10 years from the date of their last conviction for a sexual offence, very
little sexual recidivism occurs, whether or not the offender has served a
custodial sentence.

c) If changes to the clean slate legislation were aligned to the available

empirical evidence, there would be little if any significant risk to public
safety.

15
Skelton, A. (2012) Manual for the Automated Sexual Recidivism Scale – II (Draft) Wellington, Department of
Corrections.
16
Ibid
17
Ibid

9
 6.13 While probably not relevant to this petition, I do not understand the
rationale for excluding from the clean slate legislation, those cases where the Court
has lifted an indefinite disqualification from driving for repeat traffic offending. I
consulted with Dr Leon Bakker, an expert on repeat driving offending. 18 His
research showed that judges will only lift an indefinite suspension, if they are
satisfied that the offender will not re-offend – it is not something done lightly. In
his view, those convictions could be safely concealed at the time that the suspension
is lifted.

6.14 One of the ongoing difficulties in carrying out literature reviews of this kind, is
that there is a dearth of local research Reliance on overseas research has its
shortcomings. However, I note that the Justice Sector Investment Approach has
accumulated a large amount of data on the IDI, including Life-course Risk
Modelling i.e. identifying which offenders are most at risk of future offending. It
may well be possible for the Ministry to replicate the research quoted above, to
determine whether the conclusions arrived at in this paper, hold true for New
Zealand offenders.

7.0 The Collateral Consequences of a Criminal Conviction on Employment

Opportunity

7.1 Eric Knights major concern with the ‘clean slate’ provisions is the impact his
criminal record has had, on his ability to gain employment. It is one of the many
‘collateral consequences’ which affect convicted persons, and ranks alongside
eligibility for social housing, and access to educational support. The impact is
more severe for former prisoners, but attaches also to persons convicted of minor
offences who have never been imprisoned. “Collateral consequences” tend to last
indefinitely, long after an individual is fully rehabilitated and has ceased to be a
risk to public safety.

7.2 Successful prisoner reintegration involves the linked process of integration into
social institutions such as work, family and whānau. The public policy imperative
is to accelerate the desistance process by facilitating entry into the job market. The
Department of Corrections understands that, and has a recent focus on equipping
prisoners with marketable job skills. The major impediment however, is that most

18
Bakker, L. W., Hudson, S. M., & Ward, T. (2000). Reducing Recidivism in Driving While Disqualified
A Treatment Evaluation. Criminal Justice and Behavior, 27(5), 531-560.

10
employers are reluctant to hire someone with criminal convictions, particularly if
they involve time in prison. Former offenders with a history of joblessness are at
high risk of re-engaging in criminal activity, and locating stable, high-quality work
can provide an important pathway out of crime.

7.3 The relationship between employment and desistance from crime is well
established. Connections made through work are likely to serve as “informal social
controls” that inhibit criminal behaviour.19 20 Strong work and whanau/family
connections have the capacity to alter the social networks of offenders and increase
social capital by replacing criminally involved friends with co-workers, supportive
family members, and law-abiding peers. 21 22

7.4 Māori and Pacific communities are disproportionately disadvantaged by lack of

employment, Given that 57% of Māori men born in 1978 have a criminal conviction,
the positive impact of working adults in Māori communities reaches beyond
individual benefit. Ethnographic research on changes in such communities,
emphasise the importance of social networks in obtaining good jobs and forming
strong whānau. Older working adults, serve not only as a role model to the
younger generation, but are often able to facilitate the entry of the younger
generation into local industry, through work connections.23

7.5 When criminal history becomes a major impediment to employment, then the
absence of job opportunities and the presence of economic disadvantage, leads to
young people becoming “embedded” in criminal social networks.24 As a result,
they “knife off” from more conventional work and whānau opportunities, turn to
further criminal offending, which inevitably leads to further convictions and
restricts even further, their eligibility for work. What usually remains, are low
quality jobs; casual, unskilled, low paid, and repetitive. Research confirms that
inadequate employment as well as unemployment increases arrest rates amongst
young adults. 25 Conversely, jobs which pay a decent wage and offer the
19
Sampson, Robert J., and John H. Laub , 1993. Crime in the Making: Pathways and Turning Points through
Life. Cambridge, MA: Harvard University Press.
20
Sampson, Robert J. and John H. Laub, 1990. “Crime and Deviance over the Life Course: The Salience of
Adult Social Bonds.” American Sociological Review 55(5): 609-627.
21
Coleman, James, 1990. Foundations of Social Theory. Cambridge, MA; Harvard University Press.
22
Gronovettor, Mark S. 1973. “The Strength of Weak Ties.” American Journal of Sociology 78: 1360-1380.
23
Anderson, Elijah A. 1992. Streetwise: Race, Class, and Change in an Urban Community. Chicago: University
of Chicago Press.
24
Hagan, John, and Blair Wheaton, 1993. “The Search for Adolescent Role Exits and the Transition to
Adulthood.” Social Forces 71(4):955 – 980.
25
Allan, Emilie Anderson, and Darrell J. Steffensmeier. 1989. “Youth, Underemployment, and Property Crime:
Differential Effects of Job Availability and Job Quality on Juvenile and Young Adult Arrest Rates,” American

11
opportunity to exercise creativity and intelligence, facilitate desistance from
crime.26

8.0 The Wider Collateral Consequences of a Criminal Conviction

8.1 I have addressed in some detail the consequences of a criminal record on an

individual’s capacity to secure employment; the issue at the heart of Eric Knight’s
petition. It is also very likely that his unemployment has had severe consequences
on family income, his mental and emotional health and on family relationships. It
is not difficult to assume that the impact of a criminal history, thirty years after his
last conviction, causes considerable social harm, well beyond the challenge of
gaining employment.

8.2 Besides the legal implications of having a prior conviction, the evidence shows
that a conviction record poses an obstacle to reintegration (e.g. access to jobs, loss of
parental rights, access to social housing). The conviction record reinforces a
felonious identity, is a major ground for social exclusion, and makes it difficult to
adopt a new identity, i.e. that of a ‘law abiding citizen’.27

8.3 Collateral consequences are ethically, if not legally, problematic because they
amplify punishment beyond the sanctions imposed by the criminal justice system.
In this and many other cases, the ongoing stigmatisation and punishment has
extended well beyond the period in which the person is a risk to public safety.

9.0 Recommendations for Change

9.1 The 2016 budget provides $20 million for out-of-gate reintegration services, to
support offenders as they leave prison and get used to life outside. It is a clear
indication of the government’s support for prisoner reintegration. More important
than financial support for Corrections however, is the development of policy
responses that remove societal barriers to effective prisoner reintegration.
While this paper addresses the issue of prisoner employment, there is also
compelling evidence around the difficulty of prisoners and ex-offenders in securing
social housing and educational and developmental opportunities.

Sociological Review 54 (1): 107-123.

26
Shover, Neal. (1996) Great Pretenders: Pursuits and Careers of Persistent Thieves. Boulder, CO: Westview
Press.
27
Uggen, U., Mamza, J., Behrens, A. (2004) ’Less than the average citizen’: stigma, role transition and the civic
reintegration of convicted felons, in Maruna,S. & Immarigeon,R. (eds) After Crime and Punishment.
Cullompton, Willan.

12
9.2 A two pronged approach is necessary. First, there should be an evidence-
based approach to a revision of the ‘clean slate provisions’; one that maintains
public safety, but also promotes successful prisoner and offender reintegration.
Second, a policy review on the issue of ex-prisoner and offender employment,
would have the potential to promote more effective prisoner and offender
reintegration.

9.3 In the next section, I will address each approach in turn.

10.0 Changes to ‘Clean Slate’ Legislation

10.1 The available empirical evidence referred to earlier, if followed and

implemented faithfully, would likely cause a negative public response, even though
it would assist prisoner and offender reintegration.

10.2 I would recommend a more conservative and staged approach, with time
frames in excess of those identified by the available research. I have not done an in
depth analysis of the clean slate provisions, but there are some broad policy
principles that could underpin such a review. On that basis, I would recommend
the following;

General Offences

10.3 That a person’s criminal history can be concealed after a period of seven years
following the last conviction, including persons who have served a period of:

a) Home detention;

b) Imprisonment of two years or less;

10.4 That a person’s criminal history can be concealed after a period of ten years
following the last conviction, if they have served a period of imprisonment for
more than two years, but less than five years;

13
10.5 That a person’s criminal history can be concealed after a period of fifteen
years following the last conviction, if they have served a period of
imprisonment for five years or more;

11.0 Sex Offenders

11.1 Persons who commit ‘specified offences’ i.e. a range of sex offences involving
children, rape and incest, present a special challenge. The evidence is that after ten
years of crime free existence, the prospect of reoffending is very slight. However,
public and political attitudes toward sex offenders, would suggest that a
recommendation for changes that align with the evidence, would not be well
received. Ericson (and a great many others) would accuse me of indulging in
‘precautionary logic’ (logic not based on evidence). 28 Differentiating sexual crime
from other forms of offending over the last twenty years, has reinforced the public
image of sex offences as primarily predators and paedophiles, and has coined the
term ‘criminal apartheid’. 29

11.2 However, I would advise against taking a blanket approach to sex offenders,
by excluding all of them from ‘clean slate’ provisions. I am aware for example, that
there is a significant difference between persons who commit incest, (and rarely re-
offend), compared to the 1-2% of the 800 persons in prison for sex offences, who are
dangerous and predatory.

11.3 I would therefore recommend the Committee seek expert advice on this issue.
Dr Gwenda Wills, University of Auckland, Dr Devon Polaschek or Professor Tony
Ward, of Victoria University, or the Justice Sector Science Advisor, Dr Ian Lambie,
are all people who could advise on the question of whether convictions for sex
offences should be concealed, for what length, and under what conditions.

12.0 Promoting Desistance from Crime

28
Ericson RV (2007) Crime in an Insecure World. Cambridge: Polity Press.

29
Soothill K, Francis B and Ackerley E (1998) Paedophilia and paedophiles. New Law Journal 12 June: 882–823.

14
12.1 Eric Knight’s petition tells a story, not of making one job application and being
turned down on the basis of his criminal record, but of a six year history of
rejection. This is becoming a very common pattern in New Zealand for persons
with criminal records, especially those who have served time in prison, or on
community based sentences. When the justice system makes it more difficult for
offenders to succeed, it has a disproportionate impact on Māori, given that Māori
represent 15% of the general population, and 56% of the prison population. In 2011
I was advised by the Ministry of Justice that 22% of Māori males born before 1975
had a Corrections-managed sentence (i.e. prison or community based sentences)
before their 20th birthday, and 44% had such a sentence by the age of 35.30 I
understand that statistic has since worsened. Policies that punish beyond the
sentence itself contribute to and exacerbate the disproportionality of Māori
representation within the criminal justice system.

12.2 Desistance may be achieved at a given time, but it is first and foremost a
process.31 During this process, the person is exposed to temptations, can be fragile
and relapse. This does not necessarily mean the desistance process has not started:
the new offence may be less serious; there may be fewer of them. What society can
do on a social and human level has now been well explored.32 33 From a legislative
viewpoint, it can be argued that former prisoners have a right to reintegration, 34 or
at least a right not to be barred from it. Society and the community, has a right to
see that everything possible is done to make sure offenders or ex-offenders have all
the necessary tools at their disposal to desist from crime. While the personal, social
and environmental elements of the desisting process have now been well studied,
legal and legislative support has been less well addressed. That in New Zealand
we refer to the ‘concealment’ of records, (inferring a sneaky and underhand act),
rather than their expungement, says something about our reluctance to help.

12.3 For the above reasons, I would urge the Select Committee to consider what
legislative and public policy changes, apart from changes to the ‘clean slate’
provisions, it could recommend which would assist the petitioner Eric Knight, and
others like him, to successfully reintegrate into the community.

30
Statistic provided by Ministry of Justice, 5 May 2011. ‘Corrections-managed’ includes both custodial and
community-based sentences.
31
Ward T. and Maruna S. (2007), Rehabilitation, Routledge, Abingdon
32
McNeill F. and Farrall S. (forthcoming), „Desistance Research and Criminal Justice Social Work‟, in Herzog-
Evans (dir.), Transnational Criminology Manual, Wolf Legal Publishers, Nijmegen
33
Trotter C (2006), Working with Involuntary Clients, 2d ed., Edition, Sage, London, Thousand Oaks
34
Bain A. and Parkinson G. (2010), „Resettlement and social rehabilitation: Are we supporting success ?‟,
Probation Journal, 57(1): 63-74

15
The next section of this submission, addresses three key issues;

a) Public Access to Criminal Records

b) Equal Employment Opportunity Employment for Ex-prisoners and

Offenders

c) Judicial Rehabilitation;

13.0 Public Access to Criminal Records for Employment Purposes

13.1 One of the difficulties facing Eric Knight and others like him, is the increasing
public access in New Zealand to the criminal history of ex-prisoners and offenders.
While it is considered important that employers should be able to access this
information, that is not the case in other countries. It has reached a point at which
access to that information is adversely impacting on offenders who are attempting
to desist from crime. It raises the question as to whether our current policies and
practices achieve a proper balance between a regard for public safety, and assisting
in the successful reintegration of prisoners and offenders. It is therefore
worthwhile, comparing ourselves with other nations, so we can strike a better
balance.

13.2 All prisoners and offenders suffer the ‘collateral consequences’ of a criminal
conviction, but none face anything like the policy environment that exists within
the United States. Anyone with access to a computer and the internet can
download a remarkable amount of information about neighbours, friends and
strangers who might have been arrested or convicted of a crime in most states.
Uggen estimates that as many as 47 million Americans have a criminal history file
on record and could therefore be impacted by these various disclosures. 35
Additionally, individuals with criminal records in the US can also be restricted
from gaining licences for a remarkable range of jobs, including work as embalmers,
billiard room employees, septic tank cleaners, plumbers, eyeglass dispensers,
barbers and real estate agents.36

35
Uggen, C., Manza, J. & Behrens, A. (2004). Less than the average citizen: stigma, role transition and the civic
reintegration of convicted felons. In S. Maruna & R. Immarigeon (Eds.), After Crime and Punishment: Pathways
to Offender Reintegration (pp. 261-293). Cullompton: Willan.
36
Pager, D. (2007). Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration. Chicago, IL:
University of Chicago Press.

16
13.3 In the past three decades, the US Congress “took collateral consequences to a
new level of irrationality, making a single criminal conviction grounds for
automatic exclusion from a whole range of welfare benefits” at the Federal level. 37
American citizens with even a single conviction for drug offences and other charges
can be denied housing assistance, food stamps, education loans, and the right to
vote.38

13.4 According to Jacobs, “public policy seems to be moving inexorably toward

making criminal records more widely available‟.39 The trend is toward the erosion
of official laws and legal protections in most countries, with the exception of
France, where the movement has been towards more protection. Spain appears to
be the one with the most protection for former prisoners‟ identities, (and the least
developed system of record-keeping and sharing of conviction information). 40 41

13.5 One crucial distinction between the United States and Europe is the issue of
free speech and privacy. Whereas, countries like Spain have considerable
protections for those people convicted of crimes (newspaper coverage of criminal
cases typically use only the accused’s initials to protect the privacy of the person
and his or her family), the United States has a long history of freedom of
information (including ‘naming and shaming’) that dates back to the Salem witch
trials.

13.6 Some authors note that there is a difference between theory and practice in
terms of privacy provisions in Continental Europe and Anglophile countries. That
is, legal provisions aimed at protecting ex-prisoners against discrimination exist on
the books in several jurisdictions, but may not always be followed in actual
practice.42

13.7 Despite the evidence that employment decreases crime, the use of criminal
history records in employment decisions in the USA has been increasing over the
37
Love, M. C. (2003). Starting over with a Clean Slate: In Praise of a Forgotten Section of the Model Penal Code.
Fordham Urban Law Journal, 30, 101-136. P.112
38
Allard, P. (2002). Life Sentences: Denying Welfare Benefits to Women Convicted of Drug Offenses.
Washington, DC: Sentencing Project.
39
Jacobs, J. B. (2006). Mass incarceration and the proliferation of criminal records. University of St. Thomas
Law Journal. 3(3), 387-420. p. 419
40
Maruna, Shadd, ‘Judicial Rehabilitation and the ‘Clean Bill of Health’ in Criminal Justice’ European Journal of
Probation, Vol. 3, No.1, 2011, p.101
41
Larrauri, Elena, Conviction Records in Spain: Obstacles to Reintegration of Offenders? European Journal of
Probation Vol. 3, No.1, 2011, pp 50 – 62
42
Maruna, Shadd, ‘Judicial Rehabilitation and the ‘Clean Bill of Health’ in Criminal Justice’ European Journal of
Probation, Vol. 3, No.1, 2011, pp 97 – 117

17
last 10 years. A recent employer survey suggests that over 50% of employers now
check some type of criminal history records in the Los Angeles area and another
survey of large employers reports that over 80% now use criminal history records
checks in the hiring process. 43Moreover, new federal rules about background
checks for workers in the transportation industry have dramatically increased the
number of employees covered by background checks.

13.8 What seems to be happening in New Zealand is not that criminal history
records are being made more publicly available, but that increasingly, employers
and institutions are requiring applications for jobs, training, or educational grants,
to provide information about their criminal history, and request the applicant to
authorise third party access to that information. While clearly that information is
needed in some cases, e.g. where child safety or financial security is an issue, it is
difficult to justify that kind of information for other occupations.

13.9 There is growing evidence that existence of a criminal record, is limiting the
reintegration process of offenders and prisoners in the areas of employment,
housing and education. For example, in the public sector, the Ministry of Justice
will not approve a person with a criminal history, for a role as a restorative justice
facilitator. The Ministry of Social Development will not consider an application for
a social work scholarship from a person with a criminal history. The Ministry of
Housing will not provide social housing to a released prisoner.

13.10 What is concerning, is that there does not appear to a consistent policy or
process in place to firstly, determine whether such a policy is appropriate, and
more importantly, what processes should be followed when questioning such
persons. This issue is addressed in the next section.

14.0 Equal Employment Opportunity Employment for Ex-prisoners and

Offenders.

14.1 The challenge for the Select Committee is to consider ways in which the
petitioner Eric Knight, and people in his situation, can get better access to
employment, and overcome the impediment of a criminal history. Significantly,

43
Stoll, Michael, Steven Raphael, and Harry Holzer 2006 Will employers hire ex-offenders? Employer
preferences, background checks and their determinants. In Mary Patillo-McCoy, David Weiman, and Bruce
Western (eds.), The Consequences of Mass Incarceration on Families and Communities. New York: Russell Sage
Foundation.

18
this has become a major issue in the USA, and its response to it, provides a useful
guide as to how New Zealand might respond.

14.2 Concern about this widespread access to criminal history records has led to a
renewed national conversation on the topic, and Congress has asked the Attorney
General for feedback on the proper use of criminal history records in background
checks. Much of this attention has focused not on denying access to the records but
on better defining the relevance of criminal history records. There is a consensus
that the blanket exclusion of individuals with criminal history records makes little
sense, and in any case, is explicitly disallowed as discriminating against minorities
under the Civil Rights Act.44

14.3 The US Equal Employment Opportunity Commission, (EEOC) while

outlawing blanket exclusion, allowed the use of an arrest or conviction record as
evidence in an employment decision provided the employer considers;

a) the nature and gravity of the offence,

b) the time that has passed since the arrest, and

c) the nature of the job held or sought.

14.4 While criminal history records can assist in assessing future employees,
employers and others used criminal history records differently from other fields of
past information. Educational information was used to grant or restrict future
educational opportunities, and financial failures were used to limit financial
opportunities. The significance of time was also different. Credit scoring
companies and insurance companies explicitly restrict the time period for which
prior behavior is considered relevant. Credit scores typically look back seven
years, whereas insurance records often limited their inquiry to three years.45

14.5 As a result, Congress has worked with authorities to develop clear guidelines
for the use of criminal history in the determination of employment suitability, and
in relation to educational opportunity.
44
Kurlychek, Megan C. ; Brame, Robert ; Bushway, Shawn D., Scarlet Letters and Recidivism: Does an Old
Criminal Record predict Future Offending? Criminology & Public Policy, 2006, Vol.5(3), pp.483-504
45
Ibid

19
14.6 The progress in the USA has been remarkable and sets an example that New
Zealand could well follow. Delaying or removing consideration of criminal justice
information is a growing trend in employment across the public sector at the local,
state, and federal level, as well as in the private sector. Over 100 U.S. cities and
counties have adopted fair-chance-hiring practices and policies to reduce barriers of
employment for people with criminal histories. Furthermore, 25 cities and
counties extend the fair-chance policies to government contractors or private
employers. Currently, 23 states have developed policies removing questions about
criminal history, past criminal justice involvement, or convictions from their
employment applications or are delaying such inquiries until later in the hiring
process.46
14.7 Additionally, in April 2016, after President Obama directed the Office of
Personnel Management (OPM) to delay inquiries into criminal history during the
hiring process for federal employees,47 OPM published a proposed rule that delays
such inquiries until a conditional offer of employment is made. 48 The U.S. Equal
Employment Opportunity Commission (EEOC) endorsed removing the criminal
history question from job applications as a best practice in its 2012 guidance, and
made clear that certain employment practices on the use of criminal histories could
violate federal civil rights laws.49

14.8 The private sector has also embraced fair-chance-hiring policies, and 112
companies from across the American economy signed on to the White House Fair
Chance Business Pledge,50 which calls on businesses to make commitments to
achieve the goals of promoting opportunity for all, eliminating barriers to offender
reintegration, and providing meaningful opportunities to succeed for returning
offenders..51
46
Avery, Beth and Michelle Natividad Rodriguez. Ban the Box: US Cities, Counties, and States Adopt Fair-
Chance Policies to Advance Employment Opportunities for People With Past Convictions. New York: National
Employment Law Project, 2016. http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-
local-guide/
.
47
The White House, Office of the Press Secretary, FACT SHEET: President Obama Announces New Actions to
Promote Rehabilitation and Reintegration for the Formerly- Incarcerated, November 2, 2015.
https://www.whitehouse.gov/the-press-office/2015/11/02/fact-sheet-president-obama-announces-new-
actions-promote-rehabilitation
48
5 C.F.R. Parts 330 and 731, available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-10063.pdf.
49
Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions
under Title VII of the Civil Rights Act of 1964. http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
50
The White House, Office of the Press Secretary. FACT SHEET: White House Launches the Fair Chance Business
Pledge, April 11, 2016, available at https://www.whitehouse.gov/the-press-office/2016/04/11/fact-sheet-
white-house-launches-fair-chance-business-pledge, accessed April 18, 2016.
51
Ibid

20
14.9 The critical test, is what if any, impact policies of this kind may have made any
difference to Eric Knight. It is clear they would. First, it is very likely that in some
of the applications he made, a question about criminal history would not have been
asked. Secondly, in those cases where it was deemed relevant, the question would
have been delayed until such time as he was offered a position. At that point he
would have had the opportunity to talk about his history, the nature of offending,
the length of time passed since his last offence, and any other mitigating
circumstances.

14.10 In the preparation of this submission, I carried out a random check of equal
employment policies and government commitment to diversity. I checked the
Human Rights Commission website, the State Services Commission EEO Policy
promoting ‘Equality and Diversity in the Public Service’, the Diversity Works Trust
website, and the Universities of Wellington and Canterbury EEO policies. None
mention policies or processes relating to the employment of persons with a criminal
history, but all make clearly known a passionate commitment to meeting the
employment needs of Maori, and a commitment to the Treaty of Waitangi.

14.11 The State Services Commission EEO policy is a good example. It makes the
following points:

a) It is important to treat people fairly and with respect (to ensure equality);

b) The concept of fairness is “at the heart of the democratic process”, and
means not discriminating against individuals or groups on the basis of their
race, gender, ethnicity, culture, sexual orientation or physical dis/ability.

c) Fairness sometimes involves treating people differently in order to ensure

equality of access to opportunities.

d) It is important to understand, appreciate and realise the benefits of individual

differences (i.e. diversity) so that people can perform to their best and
contribute to organisational success.

21
 e) It is important that the Public Service reflects the diversity of the community
it serves, and creates working environments that support and build on
different capabilities and perspectives.

14.12 Given that 58% of Māori men born in 1978 have a criminal conviction, I
consider that the exclusion of information policy or guidelines relating to the
employment of persons with a criminal history from EEO policies is a major
omission. In the USA, the EEOC considers that criminal record exclusions have “a
disparate impact based on race and national origin” and are potentially a violation
of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination in
employment. It is painfully clear that one of the significant barriers to the
employment of Māori is the existence of a criminal conviction – but there are no
guiding policies to address that issue.

14.13 In the USA, prisoners and people with criminal convictions, are getting a
great deal of attention, from those concerned with promoting fairness and diversity
in employment. The ‘Ban the Box’ campaign,52 run by the National Employment
Law Project, promotes fair and equitable hiring practices across the nation. It
provides a toolkit for employers, 53 advice about the EEOC’s policies and guidelines
(including advice about disparate impact), 54 and a summary of research that
supports the employment of persons with a criminal history.55

15.0 Judicial Rehabilitation –

15.1 Judicial Rehabilitation is a process which is additional to the clean slate

provisions, and applies after a criminal record has been concealed. It is consistent
with the research which advocates the establishment of a judicially managed
process, which would reinforce the offender’s own certitude that he or she has
desisted successfully, and it is a means by which the offender can convince the
community and society itself, that they have become a good citizen.56 In brief, the
former offender can apply to the Court for a Certificate of Good Conduct. It would
only be issued, if the Court was satisfied, not only that the offender had desisted
from crime, but was able to show that they had contributed to the community and
society itself, through acts of good citizenship.

52
http://www.nelp.org/publication/ban-the-box-fair-chance-hiring-state-and-local-guide/
53
http://www.nelp.org/publication/the-fair-chance-ban-the-box-toolkit/
54
https://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
55
http://www.nelp.org/content/uploads/Fair-Chance-Ban-the-Box-Research.pdf
56
Maruna S. (2011), „Reentry as a Rite of Passage‟, Punishment and Society, 13(1), 1-27

22
15.2 Such an occasion places the Court in a position, not of punishing bad conduct,
but of affirming that the offender has contributed back to society. The certificate
would make it clear that it was issued for the period from the date of the offender’s
last conviction, and is current to the date that the certificate was granted. It could
be then used by the offender as a testimony, and have traction within the
community. The granting of the certificate could be accompanied by a short
ceremony, conducted either within the Court, or by a supporting community,
acknowledging that such a certificate is not easily obtained, or freely granted. Such
a ceremony has a restorative element, and reinforces the offenders efforts toward
full social integration.

15.3 Such a system is used within the French judicial system, 57 and has the
following key characteristics;

a) The claimant can only present his case after a certain amount of time after
having served their sentence.

b) If the court rejects the request, the ex-offender must wait for two more years.

c) The claimant must have paid all the damages to the victim(s). It refers to the
idea that the first step to redemption is to acknowledge one’s own faults and
that paying damages is one way to do that. The court undertakes a
scrupulous examination of the person’s past, present and even potential
future actions.

d) The examination takes a close look at previous conduct, whether the

criminal activity was a regular or unique occurrence, and whether it posed a
serious threat to public security. However, the spirit of the law commands
that judicial rehabilitation should not be denied a person on the sole basis of
his past criminal activity. What counts the most is what happened since the
sentence was completed and that the claimant has displayed “irreproachable
behaviour‟ since his release.

e) The Court examines such issues as employment, family life, training, peers,
environment, and whether the offender has made a significant U-turn such

57
Herzog-Evans, Martine. "Judicial rehabilitation in France: Helping with the desisting process and
acknowledging achieved desistance." European Journal of Probation 3.1 (2011): 4-19.

23
 as healing relationships, committing to self-improvement and renouncing
former criminal associates.

f) The Court may require reports from the Police, prison management, and
make discreet enquiries within the community.

g) Generative aspects are also part of the analysis carried out by the courts.
Involvement in charities, community work, caring for others, are taken into
account.

15.4 Even when criminal histories are concealed, community members may still be
aware of a person’s background. The Certificate of Good Conduct can be used by
the offender to demonstrate that the Court is of the view that they have transitioned
into good citizens. It may well make the difference between securing employment
or not. For someone like Eric Knight, having a Certificate of Good Conduct, may
persuade an employer, who would otherwise not hire him.

15.5 The process of Judicial Rehabilitation is being actively considered in other

jurisdictions; e.g. the Netherlands, Germany and Spain..58 Its success in France
results from a positive mind-set toward prisoner rehabilitation and reintegration.
French people are strong believers in privacy and their tolerance for privacy
violation is limited; it shows in their attitude toward freedom of the press, CCTV,
and access to police records. In addition, they believe in the “right to be forgotten”;
after a person has served a sentence of punishment, they should be left in peace.
Moreover, French law regarding prison release, probation, community sanctions
and re-entry is consistently based on the ideal of resocialization, which roughly
corresponds to the idea of desistance. The goal of imprisonment should be to help
people succeed in re-socializing and Courts must make sure they do not destroy
these ‘embryos’ of socialization.59 These values, which are also present in northern
Europe and Scandinavia, contribute significantly to an extremely low reoffending
rate.

58
Maruna, S. (2011). Judicial rehabilitation and the ‘Clean Bill of Health’in criminal justice. European Journal of
Probation, 3(1), 97-117.
59
Supra. Herzog-Evans, Martine (2011) p.8

24
16.0 Concluding Comments

16.1 This submission has been written with Eric Knight constantly in mind, but
knowing that thousands of other New Zealanders suffer a similar plight. I would
recommend that members of the Select Committee, consider what the life and
future of Eric Knight would look like, if all the proposed changes would have been
in place shortly after Eric had left prison for the last time. In that scenario:

a) Eric Knight would have been able to apply for employment, knowing
that his criminal history would only be an issue where it was relevant
to the position for which he was applying.

b) Questions about his criminal history would only be asked at the point
that he was the preferred candidate for the position;

c) Questions about the nature of his criminal history would be asked in

accordance with an established and agreed protocol, and be relevant
to the position;

d) The above processes would greatly increase the likelihood that Eric
would desist from criminal offending;

e) After seven years from his last conviction, Eric’s criminal record
would be concealed;
f) At that point, Eric could make an application to the Court to be issues
with a Certificate of Good Conduct; if the Court was satisfied that he
had made a valuable contribution back to society, and has successfully
desisted from crime, it would be granted.
g) The Certificate of Good Conduct would serve as a testimony for future
job applications, if he chose to use it.

16.2 Thank you for the opportunity to comment – I discovered some new things
along the way.

Kim Workman DLitt Well

25