Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.
In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.
A new article in the Harvard Law & Policy Review evaluates some of the recent legislative efforts to deliver relief from the burden of collateral consequences through new or expanded expungement laws. In “A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels,” Brian Murray argues that many of the newer record-closing laws are far too modest in scope and effect to have much of an impact on the problem of reintegration, citing Louisiana and Maryland enactments as examples of relief that is both too little and too late. He admires Indiana’s broad new expungement scheme, which limits use of records as well as access to them, regarding it (as do we) as an enlightened exception to a general legislative aversion to risk. He considers recent legislation in Minnesota to fall into a middle category — and we could add Arkansas as another state to have recently augmented and clarified older record-closing laws. Our round-up of new expungement laws enacted just this year finds very little consistency from state to state, with Kentucky, Tennessee, Missouri and New Jersey all experimenting with different approaches.
Murray appreciates the need for a multifaceted approach to the problem of criminal records, and recognizes the doctrinal and practical shortcomings of a reform agenda that depends primarily on concealment. His bottom line, with which we agree, is that “[s]kepticism regarding the benefits of expungement in the information age, coupled with the incremental nature of legislative reform, leads to the conclusion that expungement law must continue to develop as one piece in a larger puzzle.”
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.
The editors of the New York Times are critical of Maryland Governor Larry Hogan’s recent veto of a law that would have allowed anyone with a felony conviction to vote if they are living in the free community. See “A Bad Voting Ban,” June 1, 2015. Maryland’s law now disenfranchises anyone convicted of a “felony and . . . actually serving a court-ordered sentence of imprisonment, including any term of parole or probation, for the conviction.” The Times editorial points out that Maryland changed its law to restore voting rights automatically upon completion of sentence in 2007, and that disenfranchisement based upon conviction is generally a punitive relic of slavery.
So if felony disenfranchisement laws are punitive relics, why should they be applied to anyone, even people who are still in prison? The logic of the Times editors’ position would seem to support voting by prisoners, as happens in Vermont and Maine and in many parts of Europe. An argument against voting by prisoners based on disenfranchisement as an integral part of court-imposed punishment would apply equally to probationers and parolees. The notion that prisoners no longer have a connection to their communities is a self-fulfilling prophecy that runs against current policies of encouraging prisoner reentry. If there are practical reasons to bar prisoners from jury service and political office, they do not apply to voting when absentee ballots have become commonplace.
Earlier this month, Maryland governor Larry Hogan signed the Second Chance Act of 2015, 2015 Md. Laws 313 (HB 244), which allows eligible persons to petition a court for “shielding” (or sealing) certain misdemeanor records. This is the first time Maryland has authorized limits on public access to conviction records other than nuisance offenses and offenses that have been pardoned.
The new law, which goes into effect on October 1, is a significant step forward in the treatment of conviction records in the state. However, its effect may not be as sweeping as many would like. Only a handful of misdemeanor offenses are eligible for relief, and records that have been generally shielded from public access remain available to a significant number of employers and licensing entities. We take a more detailed look at the new law below.
Notwithstanding the Supreme Court’s decisions in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003) and Smith v. Doe, 538 U.S. 84 (2003), state courts are coming to different conclusions under their own constitutions about whether sex offender registration and notification laws constitute punishment for purposes of due process and ex post facto analysis. The Pennsylvania Supreme Court is the most recent to invalidate mandatory registration requirements imposed on juveniles, but several state supreme courts have limited the retroactive application of registration requirements to adults under an ex post facto analysis.
An AP story about the perils of pardoning, picked up by newspapers and media outlets across the country, manages to convey three pieces of misinformation in its very first sentence. Riffing off a recent high profile pardon application, it begins like this: “Mark Wahlberg’s plea for a pardon has focused fresh attention on excusing criminal acts – something governors rarely do because it’s so politically risky.”
But pardons do not “excuse” crimes, they forgive them; governors have been pardoning more and more generously in recent years; and pardoning, like any other government program involving personal participation by a high profile elected official, is generally not risky if done in a responsible manner with good staff support and without apology.
On October 22 the Washington Lawyers Committee for Civil Rights and Urban Affairs released a report focusing on the problem of collateral consequences in the DC tri-jurisdiction region.
The report, a follow-up to an earlier WLC report on racial disparity in arrests in the District of Columbia, documents the disproportionate impact of collateral consequences on minorities, which makes them “very clearly a civil rights problem.” For example, “although African-Americans make up less than 48% of the city’s population, over 92% of those sentenced by the DC Superior Court in 2012 were African-Americans, whose overall rate of incarceration in DC is some 19 times the rate of whites.” It reports that nearly half of those in DC who have been incarcerated may be jobless with little prospect of finding consistent work, and that “this inability to find work is a major contributing cause of recidivism.” It illustrates the problem of collateral consequences with case studies of five area residents adversely affected by their records in finding employment and housing.
Among the report’s recommendations are that all three jurisdictions should limit the discretion of licensing boards to deny licenses based on criminal records, enact or strengthen ban-the-box laws limiting employers’ use of criminal records, and limit access by most employers to official arrest and conviction records. Respecting the effect of D.C.’s recently enacted ban-the-box law, it reports that D.C.’s Office of Human Resources found that “76% of post-law applicants for municipal jobs who had a criminal record were in fact suitable for government employment, but would likely have been disqualified from consideration for employment if the D.C. law were not in place.” In addition, all three area jurisdictions “should review and improve their existing mechanisms for seeking individualized relief from collateral consequences, through methods like expungement or sealing of records and restoration of rights.”
The WLC press release is here. The report is here.
Larry Hogan, Republican candidate in the Maryland gubernatorial race, criticized current governor Martin O’Malley’s sparing use of executive clemency and pardon power.
As reported in the Washington Post:
Republican Larry Hogan says a governor’s authority to commute sentences and pardon prisoners is an important power that he would rejuvenate if he is elected governor.
Hogan spoke in an interview with reporters of The Associated Press on Monday. Hogan says he believes Gov. Martin O’Malley’s administration hasn’t made pardons and commutations a priority of his tenure. Hogan says while he considers himself to be a tough law and order candidate, there are people who need the pardon and commutation process. He says he would seek help former Gov. Robert Ehrlich’s help in using the power more.