SB237 By Senator Ward RFD Judiciary Rd 1 25-FEB-20

SYNOPSIS: Under existing law, an inmate does not receive a deduction in his or her sentence for the successful completion of academic, vocational, risk-reducing, or apprenticeship programs.

This bill would provide an inmate with a deduction in his or her sentence upon a successful completion of a qualifying academic, vocational, risk-reducing, or apprenticeship program.

This bill would also require the Department of Corrections, in consultation with a task force, to adopt rules for the administration of education incentive time.

This bill would also establish a task force under the supervision of the Department of Corrections to make recommendations for rules for the administering education incentive time.

This bill would provide a tax credit to an employer that employs an individual recently released from incarceration.

This bill would prohibit the state and political subdivisions of the state, as employers, from inquiring into or considering an applicant's arrest or conviction history for consideration of a job until after the applicant has received a conditional job offer, except under certain conditions.

This bill would require the state and political subdivisions of the state, as employers, to maintain certain employment and hiring records relating to the conviction history of employees and job applicants.

This bill would also authorize the State Personnel Department to enforce certain provisions of this act.

A BILL TO BE ENTITLED AN ACT

Relating to corrections; to add a new Article 4 to Title 14 of the Code of Alabama 1975; to provide for a deduction of a prisoner's sentence upon completion of qualifying programs; to require the Department of Corrections, in consultation with a task force, to adopt rules for the administration of education incentive time; to provide for the task force membership and duties; to provide an income tax credit for an employer that employs an individual recently released from incarceration; to prohibit the state and political subdivisions of the state, as employers, from inquiring into or considering an applicant's criminal conviction history for consideration of a job until after the applicant has received a conditional job offer, with exceptions; to require the state and political subdivisions, as employers, to maintain certain employment and hiring records relating to the conviction history of employees and job applicants; and to authorize the State Personnel Department to enforce certain provisions of this act.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Article 4, beginning with Section 14-9-100, is added to Chapter 9 of Title 14 of the Code of Alabama 1975, to read as follows:

Article 4.

§14-9-100.

The Legislature finds and declares that according to 2013 RAND Corporation research, offenders who participate in quality education programs are 43 percent less likely to return to prison within three years. The Legislature further finds and declares that providing this group of individuals with skills essential for post-release success is paramount, in that it will reduce recidivism and improve post-release transition for offenders.

§14-9-101.

This article shall be known as the "Alabama Education Incentive Time Act."

§14-9-102.

As used in this article, the following terms shall have the following meanings:

(1) TERM OF INCARCERATION. A continuous period of time during which a prisoner is in the legal or physical custody of the Department of Corrections pursuant to one or more court-imposed sentences starting on the sentence begins date recorded on the prisoner’s conviction transcript and concluding on the prisoner’s Department calculated end of sentence date.

(2) QUALIFYING PROGRAM. An academic, vocational, risk-reducing, or apprenticeship program approved by the Department of Corrections.

§14-9-103.

The Department of Corrections shall adopt rules regarding the administration of education incentive time; provided, however, the board may not propose rules without approval from the task force created pursuant to Section 14-9-104. For the purposes of this section, approval requires an affirmative vote from at least three-fifths of the task force members. The rules shall include, but are not limited to, specifying the maximum amount of time a sentence may be reduced based on the successful completion of a qualifying program, determining the incremental credit awarded depending on the program complexity and length, establishing a revocation provision for disciplinary infractions, and any additional restrictions at the discretion of the task force. The final rules shall be certified to the Legislative Services Agency no later than March 1, 2021.

§14-9-104.

(a) A task force is created to serve under the supervision of the Department of Corrections to approve proposed rules of the department regarding the administration of education incentive time, in accordance with Section 14-9-103. The task force shall include all of the following representatives:

(1) The Commissioner of the Department of Corrections, or his or her designee

(2) The Attorney General, or his or her designee.

(3) The Director of the Alabama Board of Pardons and Paroles, or his or her designee.

(4)The Chancellor of the Alabama Community College System, or his or her designee.

(5) The President of Ingram State Technical College, or his or her designee.

(6) The President of Calhoun Community College, or his or her designee.

(7) The President of Coastal Alabama Community College, or his or her designee.

(8) The President of Gadsden State Community College, or his or her designee.

(9) The President of Wallace Community College - Dothan, or his or her designee

(10) Two members from the Alabama District Attorneys Association, of which one shall be from a largely populated metropolitan judicial circuit and the other shall be from a small, rurally populated judicial circuit.

(b) The Commissioner of the Department of Corrections, or his or her designee, shall serve as chair of the task force.

(c) The first meeting of the task force shall be held no later than August 1, 2020, at which time the task force may appoint or elect a vice chair.

§14-9-105.

(a) Each prisoner who is serving a term of incarceration may be entitled to earn a deduction from the term of his or her sentence for successfully completing a qualifying program, known as education incentive time.

(b) No prisoner may receive more than a total of 12 months of education incentive time during any term of incarceration.

(c) No prisoner may receive education incentive time for the completion of any qualifying program that was completed prior to the beginning of the term of incarceration.

(d) Deductions from a prisoner's term of incarceration based on education incentive time shall be in addition to any other available sentence deductions, including, but not limited to, correctional incentive time awarded pursuant to Section 14-9-41.

(e) No prisoner may receive the benefit of education incentive time if he or she has been sentenced to death, a term of life imprisonment, or upon the conviction of a sex offense involving a child as provided in Section 15-20A-4.

§14-9-106.

(a) Any education incentive time awarded by the department to a prisoner shall be reported by the department to the Board of Pardons and Paroles. The Board of Pardons and Paroles shall apply education incentive time to advance the initial consideration date and any tentative parole review date already established for the prisoner. The board shall consider the education incentive time when making a final parole release decision of the prisoner.

(b) The department shall report to the Board of Pardons and Paroles when a prisoner, who is capable of participating in a qualifying program, declines or refuses to participate in a qualifying program. The board shall consider the lack of participation in a qualifying program when making a final parole release decision of the prisoner.

(c) A prisoner may not be eligible for parole if he or she is able to participate in a qualifying program and chooses not to participate in any program.

§14-9-107.

This article does not create an interest or right for any prisoner to participate in, or receive education incentive time, for any qualifying program, nor does it authorize the commissioner to create an interest or right. No prisoner or class of prisoners may bring any cause of action against any party in any court involving the subject matter of education incentive time under this article. No court has subject matter jurisdiction over challenges to directives, rules, or policies adopted under this article; awards or failures to award education incentive time; decisions related to approving programs for credit; program admission decisions; financial aid eligibility determinations; evaluations or grades; certifications of program completion; or any other acts or omissions arising from or related to the authority granted by this article.

§14-9-108.

The Board of Pardons and Paroles shall adopt rules to implement and administer this article.

Section 2. Article 6, beginning with Section 36-26-150, is added to Chapter 26 of Title 36 of the Code of Alabama 1975, to read as follows:

Article 6.

§36-26-150.

The Legislature finds and declares that reducing barriers to employment for people with arrest and conviction records and decreasing unemployment in communities with concentrated numbers of people with criminal conviction records are matters of statewide concern. The Legislature further finds and declares that increasing employment opportunities for people with criminal conviction records will reduce recidivism and improve economic stability in our communities.

§36-26-151.

As used in this article, the following words shall have the following meanings:

(1) APPLICANT. An individual considered for, or who requests to be considered for, employment, or an employee considered for, or who requests to be considered for, another employment position by the employer.

(2) EMPLOYER. State agencies, boards, commissions, or departments, or political subdivisions of the state.

(3) HIRING AUTHORITY. The person, board, commission, or department of the state, or the agencies or political subdivisions thereof, responsible by law for hiring individuals for public employment.

(4) SENSITIVE GOVERNMENTAL POSITION. Any of the following:

a. Any employment position with the employer in which the employee will have access or be exposed to Federal Tax Information as defined from time to time in Internal Revenue Service Publication 1075 and which is subject to the confidentiality protections of the Internal Revenue Code and safeguarding requirements of Section 6103 of the Internal Revenue Code; return information subject to the confidentiality provisions of Section 40-2A-10; or personal information subject to the confidentiality provisions of the federal Driver's Privacy Protection Act (Public Law 103-322).

b. Any employment position with the employer in which the applicant or employee will be subject to the provisions of Section 38-13-1, et seq., which requires nationwide criminal history background checks in order to determine the suitability of individuals to have unsupervised access to a child, an elderly person, or a person with a disability as one of the essential functions of the job under Section 38-13-3.

c. Any employment position with the employer in which the applicant or employee will have access to funds, public benefits, or personal information subject to the confidentiality provisions of Section 26-14-8, 38-2-6, 38-7-13, 38-9-6, or 38-13-8.

§36-26-152.

(a) The following criminal records may not be used, distributed, or disseminated by an employee or hiring authority, in connection with any application for employment with an employer:

(1) Arrest not followed by a valid conviction.

(2) Convictions that have been sealed, dismissed, or expunged.

(3) Infraction or misdemeanor convictions for which no jail sentence may be imposed.

(b) Any information pertaining to an applicant's background check obtained by an employer or hiring authority in conjunction with the hiring process shall remain confidential, and may not be used, distributed, or disseminated by the state or political subdivisions of the state, except as otherwise required by law.

§36-26-153.

(a) An employer or hiring authority may not inquire into or consider an applicant's conviction history until after the applicant has received a conditional job offer.

(b) Except as provided in Section 36-26-154 or 36-26-156, an application for employment with an employer may not include questions regarding an applicant's conviction history.

§36-26-154.

(a) An individual may not be disqualified from employment with an employer solely or in part because of a prior conviction, unless a conviction is directly related to the position of employment sought. If a state or federal law, rule, or regulation explicitly requires that certain convictions are an automatic bar to employment, then those convictions shall be considered.

(b) In determining whether a conviction directly relates to the position of employment sought, the employer or hiring authority shall consider all of the following:

(1) Whether the conviction is directly related to the duties and responsibilities of that employment position or occupation.

(2) Whether the position or occupation offers the opportunity for the same or a similar offense to occur.

(3) Whether circumstances leading to the conduct for which the applicant was convicted will recur in the position or occupation.

(4) The length of time since the offense occurred.

§36-26-155.

(a) Nothing in this article shall be interpreted as creating any requirement, power, or duty in conflict with any federal or state law, rule, or regulation, or with a requirement of any governmental agency or employer, that may govern applicant inquiries, employment decisions, or applicant communications.

(b) Nothing in this article shall prohibit an employer from notifying applicants in writing of the specific offenses that will disqualify an applicant from employment in a particular position due to federal or state law or the employer's policy.

§36-26-156.

(a) The requirements set forth in this article do not apply to positions where a standard fidelity bond or an equivalent bond is required and an applicant's conviction of one or more specified offenses would disqualify the applicant from obtaining the bond, in which case an employer may include a question or otherwise inquire whether the applicant has ever been convicted of any of those offenses.

(b) This article does not apply to the hiring of Alabama Securities Commission personnel who have access to confidential information or who perform law enforcement functions or to the hiring of Alabama Banking Department personnel who have access to confidential supervisory information.

(c) This article does not apply to an employer that is a law enforcement agency.

(d) This article does not apply to positions filled through the direct appointment provisions authorized by State Personnel Board rules.

(e) This article does not apply to applicants for sensitive government positions, as defined in Section 36-26-151, for which a criminal history would be an immediate disqualification.

§36-26-157.

If an employer or hiring authority intends to deny an applicant a position of employment solely or in part because of the applicant's prior conviction, the employer or hiring authority, prior to a final decision, shall provide the applicant written notification of both of the following:

(1) The specific conviction or convictions that are the basis for the potential denial or disqualification.

(2) A copy of the conviction history report, if any.

§36-26-158.

(a) The State Personnel Department shall be responsible for enforcing the provisions relating to the hiring practices of state agencies, boards, commissions, and departments. A state employee who is aggrieved by an employer's or hiring authority's violation of this act may contact the State Personnel Department to report any problems, concerns, or suggestions regarding the implementation, compliance, and impact of the provisions of this act, and the department shall keep a record. In addition, the State Personnel Department shall conduct periodic reviews to assess compliance with this act. The State Personnel Department shall investigate and review complaints and maintain records detailing complaints and their dispositions.

(b) An employer or hiring authority shall retain, for a minimum of three years, application forms, records of employment, and other pertinent data and records required under Sections 36-26-152 to 36-26-154, inclusive, including, but not limited to, communication with the applicant, and shall allow the State Personnel Department access to the records to monitor compliance. In addition, the employer shall maintain a record of all of the following:

(1) The number of positions requiring background checks.

(2) The number of applicants for positions described in subdivision (1) who were provided a conditional job offer.

(3) The number of applicants with a conviction record who were notified by the employer that the applicant's conviction record disqualified the applicant, as provided in Section 36-26-157.

(c) Employers and hiring authorities shall regularly conduct a confidential, anonymous survey of employees in public employment in which background checks are not conducted to determine the number of individuals with conviction records who are hired.

(d) An appeal, complaint, or grievance concerning a violation of the provisions of this act by an employer or hiring authority shall be processed and adjudicated in accordance with procedures of the State Personnel Department.

(e) The State Personnel Department shall conduct an annual audit to review the state's hiring practices in an effort to ensure that individuals with criminal records are not unreasonably denied employment with the state. The State Personnel Department shall prepare a written report of this annual audit and submit the written report to the Governor within 90 days of the end of the fiscal year for which the audit was conducted. With respect to any violations of this act noted in the annual audit report that occur after January 1, 2021, the Governor shall take immediate and appropriate action to ensure that the violations do not recur.

§36-26-159.

(a) If an applicant is denied a position of employment by a political subdivision of the state that has a hiring practice in violation of this article, the applicant may file a complaint with the circuit court.

(b) Upon a finding that the political subdivision violated this article, the court may enjoin the hiring practices of the political subdivision that are in violation of the article and may award the applicant damages, court costs, and reasonably incurred attorney fees.

§36-26-160.

The provisions of this article shall prevail over any other laws or rules which purport to govern the initiation, suspension, or termination of employment on the grounds of conviction of an offense. Nothing in this article may be construed to otherwise affect relevant proceedings involving the initiation, suspension, or termination of employment.

Section 3. (a) As used in this section, the following terms shall have the following meanings:

(1) INDIVIDUAL RELEASED FROM INCARCERATION. An individual who has been convicted of a felony offense and sentenced to a period of incarceration in a Department of Corrections facility and who is now released from incarceration, either to a term of probation, on parole, or due to reaching the end of his or her sentence and who, while serving his or her incarceration period, participated in a correctional education program through the Alabama Community College System and received a certificate or associate degree through the correctional education program.

(2) ELIGIBLE EMPLOYER. A taxpayer who first employs an individual released from incarceration on or after the effective date of this act.

(b)(1) An Alabama income tax credit is established for eligible employers that employ for at least seven months of the taxable year an individual released from incarceration. The credit shall equal one thousand dollars ($1,000) for each individual employed. The credit shall not be available for an individual for more than four taxable years.

(2) The credit shall be allowed against the tax imposed by Chapter 18 of Title 40, Code of Alabama 1975. This tax credit shall not be allowed to decrease a taxpayer’s tax liability to less than zero. The credit is not refundable or transferable. The credit shall be available, on a pro rata basis, to the owners of qualified employers that are entities taxed under subchapters S or K of the Internal Revenue Code. An employer applying for a tax credit must apply each year to receive the credit for the preceding calendar year.

(c)(1) The Chancellor of the Alabama Community College System may adopt rules necessary to establish standards for participation and eligibility and to implement and administer this section. The Alabama Community College System shall consult with the Department of Revenue and the Department of Corrections to coordinate their efforts.

(2) The Department of Revenue shall create a form to claim this credit that provides information to the department that is sufficient for the proper administration of this credit.

(d) The income tax credit created pursuant to this act shall be effective January 1, 2021 for the 2021 taxable year and each subsequent taxable year thereafter.

Section 4. Section 1 of this act, relating to education incentive time, shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law; Section 2 of this act, relating to criminal convictions, shall become effective January 1, 2021; Section 3 of this act, relating to income taxes credits shall become effective immediately.

Corrections Department

Prisons and Prisoners

Sentencing

State Agencies

Education

Code Added