More and more states are enacting new expungement and sealing laws, or expanding existing ones, some covering convictions for the first time. The first four months of 2016 alone saw courts given significant new authority to limit access to criminal records in four states, and bills have been introduced in several others that promise more new laws in months to come.
In April, Kentucky authorized expungement of felonies for the first time, while New Jersey reduced waiting periods for some offenses and made expungement automatic for some others. Also in April, Maryland’s Governor Hogan signed that state’s Justice Reinvestment Act, permitting expungement of misdemeanor convictions for the first time. Beginning in November, Pennsylvania courts will have new authority to seal misdemeanor offenses, and follow-up bills have been introduced in both houses to make sealing automatic for most non-felony records after a waiting period. There are also several pending proposals to significantly expand existing expungement laws in Oklahoma, Missouri, and Rhode Island.
We take a closer look at each of these new expungement authorities below.
The new laws evidence the growing momentum behind second-chance reforms. They also show how expansion of expungement and sealing mechanisms can be an incremental process. For example, the legislatures in Maryland and Pennsylvania first tested the waters by giving courts new authority to mitigate low-level conviction records in relatively limited ways, with both following up shortly after with proposals to increase both the availability and effectiveness of those mechanisms. Meanwhile, states with fairly robust expungement mechanisms already in place, like New Jersey, Missouri, and Kentucky, have taken steps to make relief available sooner and to more people. Relatedly, in the first four months of 2016, six more states enacted or expanded state-wide ban-the-box laws limiting inquiry about criminal records at early stages of the hiring process, bringing the total to 23.
On April 29th the U.S. Department of Health and Human Services announced a shift in policy that will for the first time allow released prisoners residing in “halfway houses” to take advantage of the services made available through the Affordable Care Act’s Medicaid Expansion. The change will provide much-needed medical and rehabilitative services to countless former inmates that would not otherwise have access to essential healthcare resources. It may seem like a minor change but as a practical matter it is likely to do more to encourage successful reentry than any other single policy decision in recent years.
Until now, halfway house residents have been excluded from coverage because of an interpretation of the Medicaid statute that considered halfway house residents to be “inmates of public institutions” – a category of persons that are statutorily ineligible for Medicaid coverage. The new DHHS guidance removes those in halfway houses from that category so long as they have “freedom of movement and association while residing in the facility.” It also clarifies that individuals on parole and probation are not “inmates” and are eligible for coverage.
The National Inventory of Collateral Consequences (NICCC), a comprehensive interactive catalog of collateral consequences and relief mechanisms, will soon become a part of the federally funded National Reentry Resource Center (NRRC). The NICCC, described by the Justice Department as an integral part of its Smart on Crime initiative, was developed by the American Bar Association between 2011 and 2014 under a grant from the National Institute of Justice (NIJ). The NRRC, also closely tied to the Administration’s reentry strategy, was established in 2011 by the Council of State Governments and has been supported by grants from a number of federal agencies, including NIJ, and by private foundations. Now the government has decided to consolidate the two projects under the Bureau of Justice Assistance (BJA).
According to a grant solicitation issued by the BJA earlier this month, bidders for a $5 million grant to administer the NRRC grant must “propose a plan to transfer” the NICCC and keep it up to date at an approximate annual cost of $100,000. The solicitation does not make clear what if any conditions apply to the transfer of the NICCC, or what if any continuing role the ABA would have for its maintenance, and we must assume the government has determined that it should be permanently transferred to whatever organization wins the bid for the NRRC. Bids are due by June 2. Read more
In the last few years, Pennsylvania’s courts have taken an active role in defining the propriety and scope of the state’s sex offender registration program. Following on the heels of a December 2014 decision striking down sex offender registration for juveniles, the Pennsylvania Supreme Court recently agreed to hear a sweeping challenge to the retroactive application of Pennsylvania’s adult sex offender registry. The new law, generally referred to as SORNA (Sex Offender Registration and Notification Act), took effect on December 20, 2012 as part of an effort to comply with the federal laws governing sex offenders. SORNA replaced a more lenient registration scheme where the majority of people convicted of sexual crimes had to register for only ten years. SORNA changed the paradigm and drastically increased the number of people included on the registry, the time periods for which they would have to register, and the number of things they have to report. Of the close to 19,500 people on the registry today, roughly three quarters have to register for the rest of their lives without any chance of removal.
In addition to making most offenders lifetime registrants, SORNA reclassified thousands of people who were ten year registrants under the old law and retroactively increased their terms of registration – in most instances to life. Hundreds of registrants sued, raising a number of different challenges to the law. Until now, the Pennsylvania Supreme Court has refused to get involved.
The Department of Education (DOE) is asking colleges and universities to reconsider the use of criminal record inquiries on admissions applications in a new report released on Monday. The report, Beyond the Box: Increasing Access to Higher Education for Justice-Involved Individuals, looks at how broad inquiries into applicants’ criminal histories may deter people with criminal records from applying for post-secondary educational opportunities. It also suggests steps schools can take to ensure that their admission processes promote second chances for qualified applicants with criminal records, including banning the box on initial applications.
According to the report, “A survey of postsecondary institutions found that 66 percent of them collect CJI [criminal justice information] for all prospective students, and another 5 percent request CJI only for some students.” The Common Application, a uniform application used by nearly 700 schools, has since 2006 asked whether a person has been convicted of a misdemeanor or felony, “or other crime.” Some schools that use the Common Application allow applicants to opt out of disclosure, or delay criminal history inquiries until a preliminary admissions decision has been made. Other schools use their own non-standard applications which may require disclosure of convictions, arrests, or mere allegations of misconduct.
The New York Times has two great Sunday editorials on issues relating to collateral consequences. One deals with the issue of labeling people with a criminal record, of special concern when headline writers seem unable to resist using what Bill Keller at the Marshall Project recently called “the other F-word.” The editorial points out that ugly demeaning labels like “convict” and “felon” are “an unfair life sentence.” Let us hope the message reaches newsrooms across the country, and that journalists (especially headline writers) will find another way of describing people with a criminal record.
The Times also has another very fine editorial on Virginia Governor McAuliffe’s restoration of the vote to more than 200,000 individuals, pointing out that his authority under the Virginia Constitution is indisputable.
A very good day for the editorial staff of the Gray Lady, whose editorial page is setting an example of enlightened thinking about criminal law issues – notably including the collateral consequences of conviction.
Vermonter Rich Cassidy, who chairs the CCRC Board, drew our attention to this extraordinary story of courage and compassion and plain good sense in the Green Mountain State. Published last week in the Vermont weekly Seven Days, it tells the story of LaMoille County Sheriff Roger Marcoux Jr.’s decision to take a chance on Timothy Szad, described as “a gifted carpenter and diligent worker” who is also “Lamoille County’s most notorious criminal.”
Here are a few introductory paragraphs to a story well worth reading in full.
In 2000, Szad stalked and sexually assaulted a 13-year-old boy in the southern Vermont woods. He went to jail for his crime and served the maximum sentence. But his punishment didn’t end when he got out, in 2013. His release was widely publicized, which generated something of a vigilante reaction. So he embarked on a cross-country journey in search of a new home. When no place would have him, he wound up back in Vermont — this time, in sleepy Hyde Park.
Starting next summer, private as well as public employers in Vermont will no longer be permitted to ask about a job applicant’s criminal history on an initial employment application. The change comes with the enactment of House Bill 261, which Governor Peter Shumlin signed into law yesterday. With the law’s enactment, Vermont becomes just the eighth state to ban the box in private employment. When CCRC Board Chair Rich Cassidy testified in favor of the provision before the Vermont legislature, he emphasized the importance of extending the prohibition to private employers.
In a signing ceremony, Governor Shumlin, who last year issued an executive order banning the box in public employment, had the following to say about the new law’s significance:
Too many Vermonters with criminal records are unable to successfully re-enter their communities due to lack of employment. Banning the box is all about breaking down barriers and giving those Vermonters who have paid their debt to society a fair chance at finding a good job. Nobody wins when Vermonters are trapped in a cycle of unemployment and incarceration.
The Washington Post has published an op ed by a top Justice Department official responsible for grants and contracts announcing that her agency* will no longer use labels like “felon” and “offender” to describe people who have a criminal record. Assistant Attorney General Karol Mason, who heads the Office of Justice Programs, said that she had recently issued “an agency-wide policy directing our employees to consider how the language we use affects reentry success.”
I have come to believe that we have a responsibility to reduce not only the physical but also the psychological barriers to reintegration. The labels we affix to those who have served time can drain their sense of self-worth and perpetuate a cycle of crime, the very thing reentry programs are designed to prevent.
This is terrific news, and comes on the heels of a thoughtful editorial by Bill Keller of The Marshall Project proposing that journalists ought to make an effort to avoid disparaging language:
[W]ords that not long ago were used without qualms may come to be regarded as demeaning: “colored,” “illegals.” “Felon,” which makes the person synonymous with the crime, is such a word. Likewise “convict.” I’m less troubled by words that describe a temporary status without the suggestion of irredeemable wickedness — “inmate” and “prisoner” and “ex-offender” — but ask me again a year from now.
Ms. Mason’s piece explained further:
This new policy statement replaces unnecessarily disparaging labels with terms like “person who committed a crime” and “individual who was incarcerated,” decoupling past actions from the person being described and anticipating the contributions we expect them to make when they return. We will be using the new terminology in speeches, solicitations, website content, and social media posts, and I am hopeful that other agencies and organizations will consider doing the same.
Interestingly, the Post editor either didn’t read Ms. Mason’s piece or didn’t agree with it, since the paragraph introducing it used the word “convict” twice. I guess it just takes time.
*A note at the bottom of the op ed explains that Ms. Mason’s new policy applies only to OJP and not to the Justice Department as a whole.
Lincoln Caplan, formerly of the editorial staff of The New York Times and now on the faculty at Yale Law School, has written a thoughtful piece about collateral consequences for the New Yorker. It points out why Governor McAuliffe’s order restoring the vote to Virginians with a criminal record doesn’t help them deal with the myriad of legal restrictions that deny them opportunities, or with what he calls “a relentless form of social stigma.” He concludes that relief measures like expungement, which are based on concealing the fact of conviction, may be less effective for felony-level crimes than more transparent measures like pardon or certificates of rehabilitation. He concludes that “Forgiving, when someone has earned it, gives an individual a fresh start and, just as important, it helps restore the idea of rehabilitation in American justice.”
A featured piece by a well-regarded journalist in such a sophisticated venue may do a lot to bring the problem of collateral consequences to the attention of people in a position to do something about them. We reprint portions of the article below. Read more