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.
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 certificate system for restoring rights after conviction in New York no longer serves its intended purposes, according to an investigation by City Limits. The problem is that Certificates of Relief from Disabilities (CRD) are supposed to be a means to rehabilitation for people sentenced to probation, but the judges authorized to issue them see them (in the words of one public defender) “as a gold star, as a thing you get after you’ve been rehabilitated.” The Parole Board appears similarly Read more
Recently, in commenting on a new expungement scheme enacted by the Louisiana legislature, we noted the disconnect between the stated reentry-related purposes of the law and its lengthy eligibility waiting periods. If people have to log many years of law-abiding conduct before they can even apply for this relief, it is not likely to be of much help to people returning home from prison. Were Louisiana lawmakers unaware that the new expungement law would be unlikely to serve its stated purposes, or did they have some reason for advertising the new law in terms they knew were inapt.
Louisiana has far and away the largest prison population of any state in the country (847 per 100,000 people — Mississippi is second with 692 per), but until last year there was little that those returning home after serving felony sentences could do to unshackle themselves from their criminal records and the collateral consequences that accompany them. While Louisiana has for years authorized expungement of misdemeanor convictions and non-conviction records, the only relief available to convicted felony offenders was a governor’s pardon — very few of which have been granted in Louisiana in recent years. Most people convicted of a felony in the state, no matter how long ago and no matter how serious the conduct, were stuck with it.* That’s why we were interested to learn that in 2014 Louisiana enacted a brand new freestanding Chapter 34 of its Code of Criminal Procedure to consolidate and extend the law governing record expungement to many felonies.
We decided to find out what the new law offers to those with felony records, and how it stacks up against the three other new comprehensive expungement schemes in Arkansas, Indiana, and Minnesota. We found that while a relatively large number of people with felony convictions are newly eligible for expungement relief, the law’s effectiveness is hampered by 1) unreasonably long waiting periods and 2) limited effectiveness in mitigating collateral consequences related to employment and licensure. Read more
In updating our book on New Jersey Collateral Consequences, J.C. Lore and I analyzed the provisions of New Jerseys’ new Opportunity to Compete Act, signed by Governor Christie in August and scheduled to become effective on March 15, 2015. The Act applies a ban-the-box requirement to most public and private employers with more than 15 employees. Having followed the bill through its passage in the House last spring, we were disappointed but not surprised to see that there were a number of employer-friendly amendments added to the Act just prior to final action in the Senate, with the result that there is a great deal of uncertainty about what the law actually accomplishes. The important provisions omitted from the bill in the Senate, after lobbying by business and industry groups, included
- A prohibition on considering certain types of criminal histories, including conviction records after a certain number of years;
- A private right of action against employers;
- A definition of “initial employment application process” that permits inspection of criminal records at an earlier stage of the employment process;
- A requirement that an employer make a good faith effort to discuss the applicants criminal record if it is of concern; and
- A provision permitting negligent hiring suits in cases of “gross negligence.”
The bill as amended also preempted local ban-the-box laws, so that Newark’s more progressive ban-the-box ordinance appears to be on life support.
Attached are the enacted version of the New Jersey Opportunity to Compete Act, as well as the “advance law” with brackets to show which language was removed in the Senate.
EDITOR’S NOTE: Much chastened, the author of the NACDL Restoration of Rights Resource has made appropriate modifications in the New Jersey profile. Note that similar last-minute amendments also substantially weakened the Delaware ban-the-box law, omitting similar provisions that would have prohibited employers from considering certain types of criminal records, notably convictions more than 10 years old. In the same fashion, last-minute amendments to Vermont’s Uniform Collateral Consequences of Conviction Act restricted its coverage to less serious offenses, disappointing its sponsors.
The lesson for advocates is that they must be eternally vigilant for last-minute lobbying by special interests to dilute provisions of progressive legislation intended to give people with a criminal record a fairer chance in the workplace. – ML
Oklahoma is the most recent state to expand its expungement laws to make more people eligible for record-clearing at an earlier date. While the specific changes adopted by the Oklahoma legislature are relatively modest, involving reduced waiting periods and fewer disqualifying priors, they are significant as part of a national trend toward enlarging this type of “forgetting” relief for people with minor criminal records. Details of Oklahoma’s law are available here.
Other states that have enacted new expungement laws or broadened existing ones in the past two years include Alabama, Arkansas, Colorado, Indiana, Minnesota, and Tennessee.
Alabama’s new expungement law is the first record-closing law in that state and applies only to non-conviction records. Arkansas and Minnesota broadened or consolidated existing expungement schemes that were already quite extensive. The Indiana expungement scheme is entirely new and particularly comprehensive and progressive. (An analysis of the new law by its primary sponsor in the Indiana legislature will be posted in this space very soon.) The effect of this type of “forgetting” relief varies widely from state to state, from complete destruction of records in states like Pennsylvania and Connecticut to more limited relief in Kansas and Indiana, where expunged records remain accessible to some employers as well as law enforcement.
The other type of individualized judicial relief from collateral consequences that is growing in popularity relies not on limiting public access to a person’s criminal record, but instead on Read more