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Santa Clara County program cleared 346 criminal records; now lacks operating funds

By Kelsey Williams | 19 Dec 2010

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Last year, the Santa Clara County public defender's office funded a program helping people clear minor offenses from their criminal records. The funds expired this year, leaving more 175 people waiting for assistance. (Photo: Kelsey Wiliams)

For years, Nancy Brewer had wanted to create a program to help reformed convicts clear their records. As an assistant public defender in Santa Clara County, she met many people still struggling with the consequences of being branded by acts they committed long ago.

For certain types of crimes, state law allows convicts — after they’ve completed their sentence and parole — to file a court petition to have their records expunged. Those with the means can simply hire an attorney to represent them.

Unfortunately for Brewer, and for many low-income residents seeking a second chance, her efforts to get county funding went nowhere. Brewer and her colleagues knew they had to get creative, and so they crafted a plan just in case the money ever presented itself.

In the spring of 2009, their chance came. Linking criminal record clearance with greater access to education and jobs, they successfully lobbied to receive some of Santa Clara County’s federal economic stimulus money.

With a $113,663 grant, the Public Defender’s Office hired attorney Neha Nagrath to work half-time, aided by a full-time clerical worker, to guide county residents through the legal process of clearing their records.

They got started on July 1, 2009. Three months later, the San Jose Mercury News ran an article announcing the Fresh Start program — and 800 calls poured into the office that day, Brewer said. Nagrath said her voicemail, which can handle up to 60 messages, remained full for at least three days.

“We didn’t have any idea. We thought we would get a few (calls),” Brewer recalled.

The program turned to volunteer interns to work as paralegals and help catch up with the backlog of requests. In its first year, Fresh Start helped 346 people.

This year, on June 30, the grant ran out — with 175 clients still waiting for assistance — and Nagrath was transferred to another division in the Public Defender’s Office. Brewer and her colleagues had to improvise yet again.

Since then, the program has been held together “by gum and shoestrings,” Brewer said. The team now includes two volunteer paralegals, San Jose State student intern Rayven Nolt, and Stanford graduate law fellow Emily Galvin.

Galvin splits her time between her fellowship duties and keeping the program going. “It’s worth doing whatever it takes,” she said.

Nolt has been involved with record clearance since taking a course at SJSU in which she helped a client go through the process. She spends 10 to 15 hours a week at the Public Defender’s Office on top of her full course load at school. She also continues to help with the SJSU record clearance project.

The rewards, Brewer said, come from “helping people who have done the right thing, and they just need a little bump.”

For each client, they compile a comprehensive portrait to present to a judge. They gather letters from friends and family, proof of drug or alcohol treatment programs completed, community service involvement, and church attendance.

Ultimately, they have to prove that it is in the “interest of justice” to clear have the person’s record cleared.

With most employers now using some form of background check, the record clearance turns a conviction into a “case dismissed” and allows people to legally write on a job application that they have not been convicted of a crime.

The cleared convictions do no completely disappear, however. The full record is still visible to law enforcement officers when they do a background check and for public licensing, such as applications for public sector jobs that require a special clearance or license.

The Public Defender’s office has yet to figure out what will happen when Galvin, whose salary is paid by Stanford for her fellowship, has to leave, or how it can find a way to take on new clients.

One option is explore closer collaboration with San Jose State to expand the university’s current program. As it stands, San Jose State has one course on record clearance taught by Peggy Stevenson, an attorney and part-time professor.

The SJSU program is not without its own budget limits. Currently it is one course taught each semester for Justice Studies students to aid one client through the legal process. The program has to turn away people seeking assistance because it lacks the resources to accommodate more than 55-67 petitions per semester, Stevenson said.

Stevenson is passionate, the students are motivated and the chairman of the Justice Studies department, Mark Correia, hopes to expand the initiative. Still, it’s a difficult prospect to persuade administrators in a cash-strapped economy to devote more school funds to a project to help ex-convicts.

“It’s a tough sell,” Stevenson acknowledged.

She often cites a study done in Chicago. It showed that people who are out of jail and employed relapse to criminal behavior at a much lower rate than those who come out of jail without employment.

Another argument for pro bono record clearance programs, Stevenson said, is that they promote fairness. Otherwise, she said, low-income convicts would be unable to handle the expense and complexity of going through the legal process without aide.

After several drug convictions, Trevor Bortorff served his sentence, stopped using drugs and started a family. SJSU's record clearance project helped him pass a job background check. (Photo: Kelsey Williams)

But perhaps the most compelling argument for these programs, and the one Stevenson tells her students, is simply to meet the clients.

Trevor Bortorff, an ex-Marine who has clear light-blue eyes and a long rugged beard, struggled for years with alcoholism and a meth addiction that led to multiple convictions. After his last conviction in 2003, Bortorff knew he had to turn his life around or face much steeper consequences should he ever get arrested again.

Bortorff attended substance abuse meetings and sought mentors to help him stay clean. After a suggestion from his friend, he trained to become a drug addiction counselor. He remarried, and he now lives with his wife and two children in Boulder Creek (he also shares custody of another son with his ex-wife).

Last September, Bortorff was excited. He had just been singled out to become a writer for an online publication on the subject of drug addiction and rehabilitation. He told his friends and colleagues about the job, happy for an opportunity to advance and reach more people struggling with addiction. One week later, he was cut off from access to the publication’s resources with a short explanation; he had not passed the background check.

Bortorff did not have the money to get his record expunged himself, and was directed by a friend to the SJSU record clearance project. With the help of the students, Bortorff’s record was cleared and he can now reapply for the job.

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