We have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement. This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records. The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004. We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials.
A brief overview of research methodology and conclusions follows.
A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life. Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse. In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety. One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.” Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.
At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions. The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.
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.
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 50-state chart of judicial relief mechanisms from the NACDL Restoration of Rights Resource, which is also posted on this site, is a comprehensive survey of all authorities for judicial relief in the states and federal system. We wanted to bring it to our readers’ attention in light of the new federal interest in helping individuals with a criminal record overcome barriers to employment and licensing through clearing their records.
The National Clean Slate Clearinghouse, recently announced as part of President Obama’s reentry initiative, will “provide technical assistance to local legal aid programs, public defender offices, and reentry service providers to build capacity for legal services needed to help with record-cleaning, expungement, and related civil legal services.” This joint project of the Labor and Justice Departments will doubtless make it a first priority to survey the laws providing judicial and other relief in different states, to determine what sort of assistance lawyers will need to neutralize the adverse employment consequences of conviction, though the courts or otherwise. We hope these resources will prove useful in that effort.
On October 8, a former chief judge of the Eastern District of New York held that he was “constrained by controlling precedent” to deny the expungement petition of a woman who feared that her 23-year-old fraud conviction would prevent her from obtaining a nurse’s license. See Stephenson v. United States, No. 10-MC-712. Judge Raymond Dearie declined to find the “extreme circumstances” warranting expungement under Second Circuit precedent, noting that the petitioner before him was fully employed and that her aspiration to become a nurse was realistic, in light of the protection afforded her by New York’s nondiscrimination laws. He proposed that his own willingness to certify her rehabilitation could help satisfy the “good moral character” standard for a nursing license. (Could this be the sort of “certificate of rehabilitation” contemplated by Judge John Gleeson in his second Jane Doe expungement case? If so, it would seem to require no specific statutory authority for him to issue it to an individual he sentenced, no matter how long ago.)
Judge Dearie contrasted the case before him with the one in which Judge Gleeson ordered expungement in May, where the petitioner’s criminal record was having “a dramatic adverse impact on her ability to work,” citing Jane Doe I at *5. The government has appealed Judge Gleeson’s expungement order.
Joe Palazzolo has posted at the Wall Street Journal Blog an article describing an amicus brief filed yesterday in United States v. Jane Doe (Jane Doe II), one of two federal expungement cases before Judge John Gleeson that we’ve been following. Argument in Jane Doe II is now scheduled for October 26. (The government has appealed Judge Gleeson’s May 21 expungement order in Jane Doe I to the Second Circuit Court of Appeals.) The brief begins like this:
This Court invited the views of Amica on the Court’s authority to issue “a certificate of rehabilitation in lieu of expungement” and the appropriateness of issuing such a certificate in this case. While there is no federal statute that authorizes a court to issue relief styled as a “certificate of rehabilitation,” Amica wishes to bring to the Court’s attention two mechanisms, each perhaps underappreciated but with deep historical roots, by which the Court may recognize an individual’s rehabilitation and otherwise address issues such as those raised by petitioner’s case. The first is by exercising its statutory authority to issue a writ of audita querela, which is available in extraordinary circumstances under the All Writs Act, 28 U.S.C. §1651, to grant a measure of relief from the collateral consequences of conviction. The second is by recommending to the President that he grant clemency.
The blog post describing the brief is reprinted in full after the jump.
This piece was originally published in The Crime Report on July 13, and republished in revised form on July 16.
On Monday President Obama announced in a video address that he had commuted the sentences of 46 people sentenced to long prison terms for drug offenses. His counsel, Neil Eggleston, stated that “While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.“
Mr. Eggleston added that “the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.” However, judging from his speech to the NAACP the next day, clemency is the only one of those tools that is calculated to result in any more prison releases.
In commuting the sentences of 46 individuals serving long drug sentences, President Obama declared that America is a “nation of second chances” in a video address posted on the White House website. But that sunny optimism about our country’s willingness to forgive hasn’t led him to grant very many pardons, the relief whose purpose is to restore rights and status to those who have fully served their sentences, to give them a second chance at first class citizenship. Indeed, as Michael Isikoff reported the same day the commutations were issued, Obama’s 64 pardons are the fewest issued by any full-term president since John Adams. Indeed, the President has commuted more in the past six months than he has pardoned in his entire time in office.
The President’s determination to reduce unjustly lengthy prison sentences is commendable and historically significant. But it need and should not lead him to the neglect the other part of the clemency caseload, the petitions filed by individuals who have led exemplary lives for many years but are still burdened by severe collateral consequences and the stigma of conviction. Unfortunately those petitions appear to have have been shunted to the back burner in the excitement of the so-called “clemency initiative.”
An investigation by the Wall Street Journal reveals the little-known role that insurance companies play in shaping employer policies on hiring people with a criminal record. Joe Palazzolo reports in “Criminal Records Haunt Hiring Initiative” that the “unseen hand of commercial insurers” frustrates efforts by some employers to implement fair hiring policies, and gives others an excuse for maintaining broad prohibitions on hiring convicted individuals. “An employee is typically excluded from standard insurance policy against fraud, theft, embezzlement and other crimes—known as a fidelity bond—as soon as the employer discovers that he or she has committed a dishonest act, whether recently or in the past.”
The extent of the problem is illustrated by the story of Louis Henry, an Alabama man who lost a sales-management position at a medical-technology company after one day on the job, when a background check revealed a dated conviction for misreporting the status of a loan on the books of a bank where he worked. “A May 1 letter from the employer, reviewed by The Wall Street Journal, said Mr. Henry’s record placed the company in violation of its insurance policies.”