The Suffolk Superior Court recently decided that the Boston Police Department was unjustified in bypassing a black applicant due to a minor criminal offense 16 years earlier.
The Lawyers’ Committee for Civil Rights and Economic Justice filed a complaint in 2017, Finklea vs. Boston Police Dept., on behalf of Kevin Finklea, a black candidate who scored high on the civil service exam and had favorable references from previous employers. However, BPD did not hire him as a police officer, citing the continued without a finding Finklea received when he was 18 years old for being in possession of a stolen tire a friend gave him.
A CWOF is a specific plea where the defendant admits that the prosecution has “sufficient facts” to prove guilt, but does not technically plead guilty.
Although state law disqualifies candidates with felony convictions to work in civil service, according to the court decision, “there is no such statutory definition in Massachusetts under which a CWOF would be considered a conviction.”
“Any sort of blanket system that makes decisions wholly on criminal records runs a really significant risk of being discriminatory,” said Sophia Hall, staff attorney at the Lawyers’ Committee and counsel to Finklea.
Hall said that the judge was given information on Finklea’s circumstances, his qualifications and the context surrounding his CWOF, “so that they could take a holistic view of who Mr. Finklea was, and to be frank, that’s what BPD should have done during their hiring process and we fundamentally believe that they didn’t.”
When young Finklea unwittingly accepted a stolen tire from a friend, his mother had already passed away from cancer, he was helping raise his younger siblings and he was preparing to go to college.
“He was homeless at one point, and was assigned a public defender,” said Hall. The attorney told the Banner that Finklea’s public defender pressured him into taking the CWOF and told him that it would not show up on his record. “And why wouldn’t an 18-year-old kid with no parents and no help not believe his lawyer?”
Although the court barred the use of Finklea’s CWOF as a reason to not employ him, Hall said they are also fighting BPD’s use of Finklea’s driving record as another reason. “He did have violations when he was younger but a lot of them relate to having to pay to get your car fixed,” she said. “They are violations that are indicative of poverty.” The judge will then make a final decision on whether Finklea can work in the police force.
In the grand scheme of things, Hall said that Finklea’s case is “one move into the right direction in having a conversation about criminal records, about people of color and ensuring diverse applicants get a fair shake when they go to apply to be police officers.
She continued, “But what I also hope happens, outside of BPD’s hiring decision, is that the community becomes educated about what can and what can’t be used against them—that they use this as a means of empowerment, to understand that even some interactions with the criminal justice system do not block the rest of your life and the dreams you might have.”
Since 2005, the Equal Employment Opportunity Commission has held the position that employers’ use of criminal background checks can violate anti-discrimination statutes. And just last year, the Civil Service Commission investigated BPD’s hiring practices and found numerous irregularities and subsequently ordered remedial measures.
