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Jack E. Cohoon

Head Attorney, Employment Unit

South Carolina Legal Services

2109 Bull Street

Columbia, SC 29201

(803) 744-4166

jackcohoon@sclegal.org

Serving Clients

with Criminal Records

Mission Statement

South Carolina Legal Services (SCLS) is a statewide law

firm that provides civil legal services to protect the

rights and represent the interests of low income South

Carolinians.

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Which Areas of Law?

Consumer/Finance

Education

Employment

Family

Health

Housing

Income Maintenance/Public Benefits

Elder Law and Miscellaneous

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EmploymentTo ensure economic stability and access to employment remedies

Barriers to Employment

Employment Discrimination

Wage Claims

Earned Income Tax Credit

Other Tax Issues

Employee Rights

Other Employment Issues

(including wrongful termination)

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SCLS Offices & Counties Served

Charleston OfficeServing: Beaufort, Berkeley, Charleston, Colleton, Dorchester, Hampton, and Jasper Counties

Columbia OfficeServing: Lee, Lexington, Kershaw, Richland, and Sumter Counties

Conway OfficeServing: Georgetown, Horry, Marion, and Williamsburg Counties

Pee Dee OfficeServing: Chesterfield, Clarendon, Darlington, Dillon, Florence, and Marlboro Counties

Greenville OfficeServing: Anderson, Greenville, Oconee, and Pickens Counties

Greenwood OfficeServing: Abbeville, Edgefield, Greenwood, Laurens, McCormick, Newberry, and Saluda Counties

Orangeburg OfficeServing: Aiken, Allendale, Bamberg, Barnwell, Calhoun, and Orangeburg Counties

Rock Hill OfficeServing: Chester, Fairfield, Lancaster, and York Counties

Spartanburg OfficeServing: Cherokee, Spartanburg, and Union Counties

Intake Requests: Centralized Intake Office: 888-346-5592

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To Apply

Statewide Intake Office

Hours of operation -- 9:00 a.m. to 6:00 p.m., Monday through

Thursday.

(888) 346-5592

Office Intakes

Referrals received from out of state legal services programs;

Emergency referrals from court staff, other service providers or

community based organizations;

Applicants who are unable to communicate by telephone because

of an impairment, homebound or in an institution;

Walk-ins

Online Intakes

www.lawhelp.org/sc/online-intake

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Why are Criminal Records

Important?

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Americans with Criminal Records--

≈30%65 million

See “How Many Americans Have a Police Record? Probably More Than You Think,” Wall Street Journal, Aug. 7, 2015,

http://www.wsj.com/articles/how-many-americans-have-a-police-record-probably-more-than-you-think-1438939802

About 2 percent of the population

is under correctional supervision.

Who is being arrested?

In 2016—

African Americans made up 13.4% of the U.S. population.

African Americans made up 26.7% of arrests for drug

offenses.

Sources: Uniform Crime Reporting Program, FBI; U.S. Census Bureau, 2016 (accessed July 23, 2018)

https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-21; U.S. Census Quick Facts

(accessed July 23, 2018) https://www.census.gov/quickfacts/fact/table/US/PST045217.

Source: Twelve Facts about Incarceration and Prisoner Reentry:

http://www.hamiltonproject.org/papers/twelve_facts_about_incarceration_and_prisoner_reentry (accessed July 23,

2018) (data from Uniform Reporting System and National Longitudinal Survey of Youth).

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Brain injuries and criminality—the connection

Lesion network localization of criminal behavior. Ryan Darby

et al., National Academy of Sciences of the U.S.A., Jan. 16,

2018. http://www.pnas.org/content/115/3/601 (accessed July

23, 2018).

• Following brain lesions, previously normal patients sometimes

exhibit criminal behavior.

• Systematic mapping of lesions with known temporal association to

criminal behavior, identifying 17 lesion cases.

• Lesion sites were spatially heterogeneous, including the medial

prefrontal cortex, orbitofrontal cortex, and different locations within

the bilateral temporal lobes.

• Lesion network mapping, has recently identified regions involved

in symptom generation across a variety of lesion-induced

disorders. All lesions were functionally connected to the same

network of brain regions.

• “Our results suggest that lesions in criminals occur in

different brain locations but localize to a unique resting state

network, providing insight into the neurobiology of criminal

behavior.”

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Brain injuries and criminality—the connection

• 35-year population study in Sweden by Oxford University

researchers.

• Results showed that overall, Swedes had a 2.5% chance of

becoming violent offenders. If they had a head injury on their

records, that rose to 9%. To make allowances for the fact

brain injuries could be a result of upbringing, the researchers

also looked at the siblings of those with brain damage — they

had a 4.5% chance of becoming offenders too.

• The Oxford research shows that people have nearly

double the chance of becoming violent offenders if they

something in their upbringing, genetics, or environment

that predisposes it. Add a head injury on top of that, then

the risk is doubled again.

Source: Brain injuries can cause some people to become violent criminals, Business Insider,

https://www.businessinsider.com/brain-damage-can-turn-people-into-criminals-2018-2 (accessed

July 23, 2018)

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National Inventory of Collateral Consequences of Conviction

38,000+ collateral consequences under state and federal law!

http://www.abacollateralconsequences.org/

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Examples of collateral consequences affecting employment

Even misdemeanor convictions can interfere with ability to work—

• selling, manufacturing, or repairing manufactured housing, S.C. Code Ann. § 40-29-120;

• as an embalmer or funeral director, Id. at § 40-19-140;

• as an engineer or surveyor, Id. at § 40-22-140;

• as a property manager; Id. § 40-57-115

• as a barber; Id. § 40-7-140;

• as a health care worker, Id. § 44-7-2910;

• as a dry cleaner, S.C. Regs. § 61-33.

Employers that ask about

criminal records—

Workers with Criminal Records, SHRM and Koch Institute. https://www.shrm.org/hr-today/trends-and-forecasting/research-and-surveys/Documents/SHRM-CKI%20Workers%20with%20Criminal%20Records%20Issue%20Brief%202018-05-17.pdf (accessed July 23, 2018).

What is a criminal record?

“Rap” Sheet – SLED and FBI

Court records

Public index

Private database (pre-

employment screening

companies)

“Rap” Sheets

Can be obtained from SLED website

www.sled.sc.gov

$25 payable by credit card / $8

for a charitable organization.

Returns South Carolina results

only.

Public Index

A really useful tool—and it’s free!

Every Judicial Circuit has a different website.

What is on a SLED report?

Convictions

Arrests (even if no conviction)

Dismissed charges

Nol prossed (not prosecuted) charges.

Not guilty verdicts!?!?!

ExpungementsWhat everybody wants but not everybody can get.

What is an expungement?

The destruction or sealing of criminal records related to

an arrest or criminal conviction.

Expunged charges and convictions are no longer

reported on the SLED report or in public index.

Category 1: Non-ConvictionsS.C. Code § 17-1-40

Arrests and charges not resulting in conviction.

Dismissed charges.

Nol prossed charges

Not guilty verdicts

Expungements for cases dismissed after June 2, 2009 are automatic. Before that date, the expungement must be requested.

Must turn in the expungement to the court you were charged in.

Free! (if not part of a plea bargain).

Dismissed, Nol Prossed,

Not Guilty Charges

All Other Expungements

Court you were

charged in

Solicitor’s Office in

arresting county

Category 2: PTIS.C. Code § 17-22-150(a)

Charges dismissed by Solicitor because the defendant successfully completed the Pretrial Intervention Program (PTI).

Fees (payable by cashier’s check or money order)

$250 to the Solicitor.

$35 to the Clerk of Court.

Category 3: Alcohol Education

ProgramS.C. Code § 17-22-530

Charges dismissed by Solicitor because the defendant successfully completed the Alcohol Education Program (AEP).

Persons between the age of 17-20 years old, charged with alcohol related offense.

Fees (payable by cashier’s check or money order):

$250 to the Solicitor.

$35 to the Clerk of Court.

Category 4: Traffic Education

ProgramS.C. Code § 17-22-330(A)

⚫ This is only for people who have successfully completed a traffic education program.

⚫ Once the TEP is complete, the solicitor will mark the charges as dismissed and the charge may be expunged.

⚫ Established to educate drivers with minor traffic offenses, while giving them the opportunity to have eligible traffic tickets dismissed.

⚫ Persons who commit traffic related offenses that are punishable only by a fine and loss of 4 points or less, no significant history of traffic violations, and has not previously participated in TEP. (Participation in AEP or PTI is not a bar to TEP)

⚫ Fees (payable by cashier’s check or money order):

$250 to the Solicitor.

$35 to the Clerk of Court. 2

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Category 5: Fraudulent CheckS.C. Code § 34-11-90(e)

Must be first offense misdemeanor conviction under the Fraudulent Check Law.

Each fraudulent check is a separate offense. However, the Court may consider an expungement for a person with multiple warrants served at the same time.

There must be no criminal conviction within one year from date of conviction.

Fees (payable by cashier’s check or money order):

$250 to the Solicitor.

$35 to the Clerk of Court.

$25 to SLED.

Category 6:Drug Possession/

Conditional DischargeS.C. Code § 44-53-450(b)

Conviction of a first offense drug possession.

Defendant received conditional discharge.

Defendant successfully complied with terms of the conditional discharge.

Fees (payable by cashier’s check or money order):

$250 to the Solicitor.

$35 to the Clerk of Court.

Category 7: First Offense

Drug ConvictionS.C. Code § 22-5-930*

First offense conviction for either simple possession of a controlled substance or unlawful possession of a prescription drug. Must wait 3 years(No other convictions) after the completion of the sentence, probation or parole.

First offense conviction for possession with intent to distribute a controlled substance. Must wait 20 years(No other drug convictions) from the completion of any sentence, probation, parole. (also includes any associated bench warrant)

May not obtain if criminal charges pending unless pending for more than 5 years, or if a conditional discharge was received within 5 years prior to date of arrest, 10 years if other drug offenses (controlled substance, unlawful possession of prescription drug).

Fees (payable by cashier’s check or money order):

$250 to the Solicitor.

$35 to the Clerk of Court.

Category 8: Conviction with max.

penalty of 30 days/ $1,000.S.C. Code § 22-5-910(A)

The expungement of any 30-day term of imprisonment/$1000 fine conviction may be expunged

No other convictions within 3 years of conviction (or 5 years if Domestic Violence)

Charge does not have to be a first offense.

May only use once. Fees (payable by cashier’s check or money

order): $250 to the Solicitor.

$35 to the Clerk of Court.

$25 to SLED.

Category 9: First Offense

Youthful OffenderS.C. Code § 22-5-920

First offense conviction under the Youthful Offender Act (age 17 to 25) or, if conviction was prior to June 2, 2010, was a youthful offender at that time.

Includes offenses for which the individual received a youthful offender sentence at a single sentencing proceeding for offenses that are closely connected and arose out of the same incident may be considered as one offense and treated as one conviction for expungement purposes.

No additional conviction for 5 years after completion of sentence, including probation and parole.

Motor vehicle offenses cannot be expunged.

Fees (payable by cashier’s check or money order):

$250 to the Solicitor.

$35 to the Clerk of Court.

$25 to SLED.

Category 10:

Failure to Stop for Blue LightS.C. Code § 56-50-750(f)

Conviction of misdemeanor first offense Failure to Stop Motor Vehicle.

No additional conviction for 3 years after completion of the sentence.

Fees (payable by cashier’s check or money order): $250 to the Solicitor.

$35 to the Clerk of Court.

$25 to SLED.

Category 11: Juvenile OffensesS.C. Code § 63-19-2050

Must be non-violent (“violent” offenses are defined by S.C. Code § 16-1-60).

Successfully completed any dispositional sentence.

No subsequent charge for any criminal offense.

The court has discretion to grant or not grant.

Fees (payable by cashier’s check or money order):

$250 to the Solicitor.

$35 to the Clerk of Court.

$25 to SLED.

Category 12: Human Trafficking

VictimsS.C. Code § 16-3-2020

You must be a victim of human trafficking

You must have been convicted of human

trafficking, as defined in §16-3-2020, OR

you must have been convicted of

prostitution.

Your participation in the offense(s) you

wish to be expunged must be a direct

result of being a victim.

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Update: Fee Restructuring

The Solicitor’s office is required to implement

a policy and procedure regarding the

collecting funds to defray the costs.

The Solicitor’s office will establish an account

to collect funds to assist in defraying the

administrative fee by up to 50%.

Fees are available on a first-come first-serve

basis.

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What we’ve accomplished for our clients!

• Bob was young man who wanted to be a truck driver. However, trucking

companies wouldn’t hire him because of an error on his rap sheet showing a

DUI. An SCLS advocate challenged this error and got the false DUI removed.

Now Bob is able to pursue his chosen career.

• Suzanne is a working mom. She applied for a job with a state agency.

However, the agency wouldn’t hire her because of two fraudulent check

convictions from when she was young, including a $6 bounced check to a

beauty supply store. The bad checks were too close in time to each other for

either to be eligible for expungement. SCLS represented Suzanne to reopen

one of the convictions so it could be dismissed. As a result, both items could

now be expunged, and Suzanne was immediately hired to her new job.

• Rita was offered a job in a field she was qualified in pending a background

check. However, when the background check came back, it showed,

erroneously, that she had a felony conviction. The background check company

refused to correct the error. SCLS represented Rita to bring a law suit under

the Fair Credit Reporting Act that forced the background company to make the

correction and got her compensation for the lost job opportunity.

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What about convictions that

cannot be expunged?

Pardons

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About Pardons

A pardon is the State’s forgiveness of a

person for all the legal consequences of

his crime and conviction.

Does not remove the criminal conviction

from the SLED report, however

convictions are noted as “pardoned.”

May lessen the effects of a criminal

conviction, show that you are a

“changed” person.

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Eligibility for a Pardon

Probationers: any time after discharge from supervision.

Parolees: completion of 5 years under supervision; any time after date of discharge of successful completion of the maximum parole period, if less than 5 years.

Persons Discharged from a sentence: any time after date of discharge.

No person shall be granted a pardon unless all restitution and collection fees have been paid in full.

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Process for obtaining a

Pardon

It is not necessary to hire an attorney.

Complete application to Dept. of Probation, Paroles, and Pardons.

Available at http://www.dppps.sc.gov/

Make sure that you list all convictions on the application so that all convictions are pardoned.

Filing fee of $100.

Process for obtaining a

Pardon (cont.)

A minimum of 3 letters of reference (preacher, employer, etc.)

A hearing will be held. It is not mandatory that you attend by your chances are greatly diminished if you are not present.

Takes 7-9 months. 2/3’s (5 out 7) members must agree.

If you are denied you cannot re-apply for at least one (1) year.

70% of pardon applications are granted!42

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Strategy—

First, try to get everything

expunged that you can.

Then apply for a pardon for

the rest.

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• SLED error correction

• Driver’s license restoration

• Child support on rap sheets

• Title VII (Civil Rights Act of 1964).

• Occupational license restoration

• Reopening criminal convictions

• Fair Credit Reporting Act

Other tools to help peoplewith legal obstacles to employment

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Partners and Resources

• SC Department of Vocational Rehabilitation

• Federal Bonding Program (through SCWorks)

• Workforce Investment Opportunity Act (through SCWorks)

• Goodwill

• Fast Forward Community Tech Center

• Dept. of Veterans Affairs