Model law proposes automatic expungement of non-conviction records

An advisory group drawn from across the criminal justice system has completed work on a model law that recommends automatic expungement of most arrests and charges that do not result in conviction.  Margaret Love and David Schlussel of the Collateral Consequences Resource Center served as reporters for the model law.  It is available in PDF and HTML formats.

“Many people may not realize how even cases that terminate in a person’s favor lead to lost opportunities and discrimination,” says Sharon Dietrich, Litigation Director of Community Legal Services of Philadelphia, and one of the advisors of the model law project.  “Over the years, my legal aid program has seen thousands of cases where non-convictions cost people jobs.”

In proposing broad restrictions on access to and use of non-conviction records, the project aims to contribute to conversations underway in legislatures across the country about how to improve opportunities for people with a criminal record.  Already in 2019, states have enacted more than 130 new laws addressing the collateral consequences of arrest and conviction.  The group regards its model as the first step in a broader law reform initiative that will address conviction records as well.

Law enforcement officials make over 10 million arrests each year, a substantial percentage of which do not lead to charges or conviction.  Records of these arrests have become widely available as a result of digitized records systems and a new commerce in background screening and data aggregation.  These checks often turn up an “open” arrest or charges without any final disposition, which may seem to an employer or landlord more ominous than a closed case.

Very few states have taken steps to deal with the high percentage of records in repositories and court systems with no final disposition indicated.  Paul McDonnell, Deputy Counsel for New York’s Office of Court Administration and a project advisor, noted: “Criminal records that include no final disposition make it appear to the untrained eye that an individual has an open, pending case, which can have serious results for that person. New York has recently made legislative progress in addressing this problem, though more can be done.”

Current state and federal laws restricting access to and use of non-conviction records have limited application and are hard to enforce.  Eligibility criteria tend to be either unclear or restrictive, and petition-based procedures tend to be burdensome, expensive, and intimidating.  In recent years, lawmakers and reform advocates have expressed a growing interest in curbing the widespread dissemination and use of non-convictions, leading some states to simplify and broaden eligibility for relief, reduce procedural and financial barriers to access, and in a handful of states to make relief automatic.

Rep. Mike Weissman, a Colorado State Representative and model law project advisor, noted that Colorado has recently overhauled its laws on criminal records with broad bipartisan support.  “It is heartening to see similar reforms underway in other states, both red and blue, as well.  I commend the practitioners and researchers who helped formulate the model law for illustrating avenues for further progress in reducing collateral consequences.”

The model law would take this wave of criminal record reforms to a new level.  It recommends that expungement be immediate and automatic where all charges are terminated in favor of an accused.  Uncharged arrests should also be automatically expunged after a brief waiting period, as should dismissed or acquitted charges in cases where other charges result in conviction.  Cases that indicate no final disposition should also be expunged, unless there is indication that they are in fact pending.

The model law also recommends that expunged non-conviction records should not be used against a person in a range of criminal justice decisions, including by law enforcement agencies.  It would prohibit commercial providers of criminal background checks from disseminating expunged and dated non-conviction records, and civil decision-makers from considering them.

David LaBahn, President of the national Association of Prosecuting Attorneys, indicated that organization’s support for the model law, stating that the collateral consequences of non-convictions “do not serve to make the community safer,” and that “the current structures in place to expunge a non-conviction record can be confusing and difficult for the layperson to navigate alone.”

This model law sets the stage for jurisdictions to address record relief for convictions more generally, and its structure and principles can be brought to bear on that important work.

The Collateral Consequences Resource Center organized this model law project.  An early draft of the model law was discussed at an August 2019 Roundtable conference at the University of Michigan that was supported by the Charles Koch Foundation.  The model law report was supported by Arnold Ventures.

Read the model law in PDF or HTML.

California poised to become third state to adopt “clean slate” record relief

On September 23, the California legislature sent AB 1076 to California Governor Gavin Newsom, who has until October 13 to sign or veto this potentially transformative legislation.  If enacted, AB 1076 would make California the third state (after Pennsylvania (2018) and Utah (2019)) to authorize “clean slate” record relief, a direction to authorities to seal certain arrest and conviction records automatically. (Illinois, New York, and California have enacted automatic relief for certain marijuana convictions, and several states have automatic relief for non-convictions.)  AB 1076 creates a parallel eligibility scheme that overlaps but is not exactly coincident with the petition-based system, as well as a new procedure for automatic relief.  The specific provisions are described generally below, and more fully after the break.

AB 1076 would not modify eligibility for relief under California’s existing scheme of judicial remedies for people with criminal records, via sealing as well as dismissal and set-aside.  Rather, effective January 1, 2021, it would create a new process obviating the requirement of an individually-filed petition or motion in most cases.  If this bill is signed into law, California would break new ground in becoming the first state to extend automatic “clean slate” relief to felony convictions (other than for marijuana possession).

A less-noted but significant feature of AB 1076 is its expansion of the effect of relief for conviction records:  it provides for non-disclosure of records of convictions that have been dismissed or set aside, whether automatically or by petition, and makes this provision applicable both to court records (effective February 1, 2021) and to records in the state repository (effective January 1, 2021), except in certain specified circumstances where disclosure is mandated by law.  As it is, and notwithstanding the widespread use of the term “expungement” to describe its general relief scheme for convictions, California has no law authorizing limits on public access to most conviction records, whether held by the court or by the state repository.  This would change in 2021, if this law is enacted.  (Most non-conviction records are now eligible for sealing by petition under California law.)  Note that, like most state repositories, California’s repository permits disclosure only to government agencies and specified private entities, so that the new limits apply within the class of otherwise authorized repository users.

The sponsors of AB 1076 emphasize that making relief automatic without the need for individual action will significantly reduce “barriers to employment and housing opportunities for millions of Californians.”  They point to the key findings of J.J. Prescott and Sonja Starr’s 2019 study of record-sealing in Michigan: 1) people who had their conviction records sealed tended to have improved employment outcomes and lower recidivism rates than the general population; but 2) only a small percentage (6.5%) of those individuals eligible for set-aside and sealing actually applied, likely because of the complexity and burdens of filing a petition for relief with the court.  While no comparable study has been done for California, experience with that state’s marijuana-sealing law suggests that the low “take-up” rate is similar to the one Prescott and Starr found in Michigan.

If California’s new law is enacted, beginning in 2021 the state will automatically grant relief for many arrests not resulting in conviction, for infraction and misdemeanor convictions, and for some less serious felony convictions.  For eligible non-convictions—misdemeanor and some felony arrests—sealing will become automatic.  (However, a significant set of felony arrests not leading to conviction are excluded, as discussed below, although most of these dispositions remain eligible for petition-based relief.)  For eligible convictions, dismissal and set-aside will be automatic provided that a number of additional eligibility requirements are satisfied, including that a person must not be required to register as a sex offender, or be currently subject to prosecution, supervision, or incarceration for any offense.  Prosecutors and probation officers may object to automatic conviction relief in individual cases on “based on a showing that granting such relief would pose a substantial threat to the public safety,” and such an objection may be tested in a court hearing.

A major shortcoming of AB 1076 — in contrast to the “clean slate” laws enacted in Pennsylvania and Utah—is that its automatic relief is prospective only.  That is, relief is automatic only for arrests and convictions occurring after the law’s effective date.  Those with arrests and convictions occurring before 2021 would still have to apply to the court for relief.  Though the original bill had applied retroactively, the Assembly amended the bill to exclude arrests and convictions occurring before January 1, 1973, and then the Senate further amended it to exclude those occurring before January 1, 2021.  Presumably these changes were based on financial and logistical considerations.  The annual cost for the California Department of Justice (DOJ) and courts to carry out the final bill is estimated to total between about $2 and $5 million each year.  Moreover, the bill’s effective date, January 1, 2021, is specifically subject to an appropriation in the annual budget, and the State’s Department of Justice has indicated it “would need the implementation date to be delayed to July 1, 2023 for proper implementation.”  Despite challenges in implementation, we hope that, as the new automated system is developed, it will be feasible to extend relief to records predating 2021.

Of course, as noted, the provisions providing for non-disclosure of conviction records would apply to all cases dismissed or set-aside, without regard to when or by what process this relief was granted.

We will now describe in detail California’s clean slate legislation, which would add two new sections to the Penal Code, 851.93 and 1203.425, dealing with arrests and convictions, respectively, and amend the section of the Penal Code that deals with state records systems, 11105.

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CCRC to hold roundtable on criminal records at U. Michigan Law School

We are pleased to announce that we are convening a roundtable meeting in August 2019, hosted by the University of Michigan Law School, to develop a model law on access to and use of criminal records, specifically in cases that do not result in a conviction.

In March, we began a major study of the public availability and use of these non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public allowing widespread dissemination on the internet, both directly and through private for-profit databases.  Their appearance in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Research has shown that limiting public access to criminal records through mechanisms like sealing and expungement increases the earning ability of those who receive this relief, which in turn benefits their families and communities.

The problems of access and use are not limited to private actors:  a recent court decision in New York suggests that police departments in some jurisdictions make operational use of sealed non-conviction records even when the law prohibits it.

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“High Time for Marijuana Expungement”

Any state that legalizes or decriminalizes marijuana should automatically include an expungement provision that clears the criminal record of individuals who engaged in activities deemed lawful under the new legalization or decriminalization laws.  This is the thesis of my new article, “High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Laws.”  At the federal level, Senator Cory Booker’s recently reintroduced Senate Bill 597, the “Marijuana Justice Act of 2019,” would do just that: remove marijuana from the Schedule of Controlled Substances and expunge records of marijuana possession and use convictions.  At the same time, some local governments are focusing on more efficient and expeditious expungement processes.  Earlier this year, the San Francisco District Attorney partnered with Code for America to identify and process eligible marijuana cases, including past convictions dating back to 1975.  The Denver District Attorney launched “Turn Over a New Leaf Program,” which helps individuals who committed now-repealed marijuana-related offenses vacate the records of their convictions.  While Colorado has a marijuana sealing statute (Col. Rev. Stat. § 24-72-710 allows sealing of misdemeanor marijuana possession or use offenses if an individual files a petition, pays a filing fee plus $65, and proves that the offense is no longer considered a crime), the New Leaf Program has attorneys from the Denver City Attorney’s Office guide individuals through the process and ask courts to vacate, dismiss, and seal convictions for marijuana offenses that are no longer illegal.

However—as I document in my article—of the ten states that have legalized, only four states have enacted marijuana-expungement legislation; of the thirteen states that have decriminalized marijuana, only three have enacted marijuana-expungement legislation.  My article includes charts compiling the status of expungement statutes in states that have legalized or decriminalized recreational marijuana and includes a model marijuana expungement statute.  My article draws on previous scholarship in this area by Professor Douglas Berman (Leveraging Marijuana Reform to Enhance Expungement Practices) and CCRC fellow David Schlussel (The Mellow Pot-Smoker: White Individualism in Marijuana Legalization Campaigns).

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CCRC launches major study of non-conviction records

CCRC is pleased to announce that we are undertaking a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public allowing widespread dissemination on the internet, both directly and through private for-profit databases.  Their appearance in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Research has shown that limiting public access to these records through mechanisms like sealing and expungement is valuable in economic terms for those who receive this relief, and improvements in their economic status will in turn benefit their families and communities.

While almost every U.S. jurisdiction makes some provision for limiting public access to non-conviction records, such relief varies widely in availability and effect, and is often difficult to take advantage of without a lawyer.  What’s more, arrest records may remain accessible on the internet long after official court files have been made confidential or even destroyed.  While CCRC’s Restoration of Rights Project now includes state-by-state information on how non-conviction records may be sealed or expunged, our new project will examine the operation of applicable laws more closely.

The first phase of this project will produce by early June 2019 a detailed inventory of the laws in each U.S. jurisdiction for limiting public use of and access to records of arrests and/or judicial proceedings that do not result in conviction.  Among other things, this inventory will examine both: (1) categorical or automatic relief (such as general confidentiality laws and limits on considering non-conviction records by employers and licensing boards); and (2) case-specific relief (such as sealing and expungement, either automatic or by application).  For this second type of relief, the study will look at eligibility criteria (including waiting periods and overall criminal record), procedures (including filing fees or other financial barriers), and effect (entities excepted from restrictions on access and use). It will also note where state law or court rulings permit redaction of records so that dismissed charges may be sealed even if one or more charges in a case do result in conviction.

After completing the research phase of the project, CCRC will consult with scholars and practitioners to prepare a nationwide analysis, examining specific issues across all jurisdictions, identifying patterns and gaps in existing laws and policies.

The second and final phase of the project will be launched at a roundtable meeting on August 16-17, 2019, hosted by the University of Michigan Law School. The roundtable will produce a set of policy recommendations and model legislation aimed at neutralizing the effect of non-conviction records.  Professors JJ Prescott and Sonja Starr of the Law School faculty will serve as conference hosts and collaborators on this second phrase.  A number of legal scholars, practitioners, judges, law enforcement officials, and legislators have already agreed to participate.  At least three of those invited themselves have criminal records.  We expect to have several technology experts at the table to advise about the operational implications of the policies and legislation we are considering, in light of how states manage their criminal records systems.

Following the August roundtable, we will finalize its recommendations and model law with the assistance of scholars and other experts; publish them in a report; and promote them widely in the academic and advocacy community.

The principal value of this project will be to inform and strengthen efforts underway in legislatures and advocacy organizations across the country to mitigate the disabling effects of a criminal record on the lives of people who have one, on their families and on their communities.  We believe that reforming the law is as important a part of the reintegration agenda as advocating for and providing services to those who are seeking a second chance, and we hope this project will be the first stage of a larger national law reform effort to address access to and use of all types of criminal records. In light of the intense interest in legislatures across the country in mitigating the effect of criminal records, as evidenced in our 2018 report on relevant laws passed just last year, there is an obvious need for such guidance.  The first months of 2019 have evidenced an even greater level of legislative interest, on which we expect to report again shortly.

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Living with a marijuana conviction after legalization (updated)

Jacob Sullum, senior editor at Reason, has written a fabulous article about expungement of marijuana convictions in places that have since legalized marijuana: so far 10 states, DC, and the Northern Mariana Islands have legalized.  The piece is currently available to Reason subscribers and will be available to the public in the coming weeks (we will update this post with the link).

Sullum tells the stories of eleven individuals, from the jurisdictions that have legalized, who describe how their marijuana convictions have impacted their lives before and after legalization.  He documents the lingering legal and social sanctions that burden people long after they have served their sentences, sanctions that “seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use.”

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SUNY bans the box on admissions application

On September 14, the Board of Trustees of the State University of New York (SUNY), the nation’s largest comprehensive university system, voted to ban the box in its admissions process.  It is the first university system in the country to reverse its decision to engage in criminal history screening and remove the question from its admissions application.

The resolution laying out the policy change references the advocacy of the Education From the Inside Out (EIO) Coalition, including a 2015 case study of SUNY conducted by the Center for Community Alternatives, “Boxed Out: Criminal History Screening and College Application Attrition.”  That study found that about two-thirds of the nearly 3,000 SUNY applicants who disclose a felony conviction each year do not complete the application process (compared to only 21 percent of the overall pool of applicants) and thus are never considered for admission.  It concluded that this is the result of the daunting – and sometimes impossible – supplemental process triggered by that disclosure as well as the stigmatizing nature of the inquiry itself.

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Ban the other box – Suspension and expulsion shouldn’t be a bar to college

University application form

The following piece was originally published by The Marshall Project, a nonprofit news organization focused on the US criminal justice system.  Even though criminal records and school disciplinary records are entirely distinct, they both pose similar, often unjust, obstacles to higher education.  Consideration of both types of records in the admissions process can have the troubling effect of excluding qualified and motivated young people — particularly those from minority communities — from America’s colleges and universities because of past mistakes that have little to do with academic potential or the protection of public safety.

The story is familiar: a high school student grabs another student’s iPhone at lunch and tries to sell it. He is caught, arrested, and booked into juvenile hall. He is also suspended. If universities and colleges follow the recent recommendation of the Obama administration, colleges will not consider the student’s criminal record in the initial stages of the admissions process. These recommendations, contained in a recently released “Dear Colleague” letter by Education Secretary John B. King, represent a significant step in removing barriers to education for people with criminal records. And just this week, over a dozen colleges and universities signed on to the White House’s Fair Chance Higher Education Pledge.

Unfortunately, the letter and the pledge are silent about another common question on college applications: Have you ever been suspended or expelled from school? For the teenager who stole the phone, this means that while his criminal record may not ruin his chance to be admitted to college, his school disciplinary record just might.

More than 3 million students are either suspended or expelled from schools each year and when they are, a discipline record is generated. While the barriers created by criminal records have begun to receive much-needed attention, the barriers created by school discipline records have been largely overlooked. The Department of Education report that accompanies King’s letter mentions school records only in passing, without taking a firm position. Like criminal records, school discipline records can, and do, jeopardize young people’s chances to succeed. Like criminal records, school records are a scarlet letter.

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Feds nudge colleges to go “beyond the box”

1024px-US-DeptOfEducation-Seal.svgThe 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.

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New York Times weighs in on college applications and criminal records

BoxedOut.untitledThe New York Times has published an editorial about the recently issued report of the Center for Community Alternatives on the deterrent effect of questions about criminal records on applications for admission to the State University of New York.  (See the piece about the report “Boxed Out: Criminal History Screening and College Attrition” by CCA Director Alan Rosenthal published in this space 10 days ago.)  The editorial notes that the 24 campuses of the CUNY system do not include “the box” asking about criminal record on their application forms and have reported no safety issues as a result.  Perhaps this will be one of those rare cases where effective public advocacy highlighted in editorial pages will actually have a concrete result.

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