Category: Employment/Licensing

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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WA lifetime ban on childcare work held unconstitutional

On February 21, 2019, the Washington State Supreme Court declared that a state regulation imposing a lifetime ban from ever obtaining a childcare license, or having unsupervised access to children in childcare, is unconstitutional as applied to Chrystal Fields.  The lifetime ban was triggered by Ms. Fields’ 1988 attempted second degree robbery conviction for trying to grab a woman’s purse in front of a drugstore.  (The licensing agency has a list of 50 permanently disqualifying convictions, one of which is robbery; an attempted offense is treated the same as a completed offense.)  The court held that the licensing agency’s failure to conduct an individualized determination of Ms. Fields’ qualifications violated her federal right to due process.  Fields v. Dep’t of Early Learning, No. 95024-5 (Wash. Feb. 21, 2019).  The full decision is available here.  A brief discussion of the case follows.

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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 now available to the public at this link: http://reason.com/archives/2019/03/01/the-lingering-stench-of-mariju

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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UK Supreme Court issues major ruling on employer access to criminal records

On January 30, 2019, the UK Supreme Court issued a significant decision largely upholding the UK’s categorical rules for when criminal records are disclosed to employers, but declaring two key rules incompatible with privacy rights under the European Convention on Human Rights.  The first rule in question, the so-called multiple conviction rule, automatically requires people who have more than one conviction to disclose all prior convictions on “standard” and “enhanced” records checks.  (As explained below, the UK disclosure scheme provides for three levels of checks, depending on the nature of the employment involved, the two specified being the more in-depth.)  The second rule requires that certain youth reprimands and warnings—administered without an admission or determination of criminal charges—be disclosed on both types of checks.  CCRC contributor Alessandro Corda posted about this case this past July when it was being considered by the court and Christopher Stacey, co-director of a charity organization that intervened in the case, who attended the three days of hearings, provided guest commentary.

The decision has significant implications for the employability of people with criminal records in the UK and could offer policy lessons for the US.  It is therefore worth discussing in some detail.

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Federal farm bill legalizes hemp, but bars participation based on criminal record

In the past six years, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on a person’s ability to achieve employment, housing, education and public benefits, and participation in civil society.  In stark contrast, Congress has not dealt with the problem of reintegration for more than a decade—either by reducing federal collateral consequences or by restoring rights to people with federal convictions.  The new farm bill continues this trend.

Enacted on December 20, 2018, the bill puts in place a new regulatory regime for the legalized cultivation and sale of hemp, a variety of the cannabis plant grown for industrial uses.  At the same time, the bill adds a new collateral consequence to federal law (which already has more than a thousand): anyone convicted of a drug-related felony may not participate in legalized hemp production for 10 years after their date of conviction, unless they are part of a hemp pilot program authorized by the 2014 farm bill.  An earlier version of the farm bill would have banned people with drug-related felony convictions from participating in hemp production for life, so the final bill is somewhat more progressive.

This new restriction reflects and contributes to an ongoing practice in which many jurisdictions that have legalized marijuana have excluded people with marijuana convictions from participating in this booming new industry.  Moving in the other direction, some jurisdictions such as California and Massachusetts—recognizing racial disparities and other injustices of the war on drugs—have enacted policies to clear marijuana convictions, allocate marijuana tax revenue to communities disproportionately affected by past drug policies, and encourage full participation in legalized marijuana industries by members of disproportionately affected communities.

Press release: New report on 2018 fair chance and expungement reforms (updated)

Washington, D.C. — The Collateral Consequences Resource Center (CCRC) has released a new report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  In the past twelve months, 32 states, the District of Columbia, and the U.S. Virgin Islands have enacted 61 new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime.  The CCRC report analyzes the past year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.  The report, titled “Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018,” is available to download here. 

Last year saw the most productive legislative year since a wave of “fair chance” reforms began in 2013.  CCRC documented these earlier developments in reports on the 2013-2016 reforms and 2017 reforms.  In the period 2012–2018, every state legislature has in some way addressed the problem of reintegration.  Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.

The state laws enacted in 2018 aim to break down legal and other barriers to success in the courts, the workplace, the pardon process, and at the ballot box:

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Lawsuit challenges PA good-character requirement for cosmetologists

The Institute for Justice has filed a lawsuit on behalf of two women who were denied a license by the Pennsylvania Board of Cosmetology based on their criminal record, because they could not establish the necessary “good moral character.”  The IJ lawsuit illustrates the continuing difficulties faced by people with a past conviction in the workplace even when they are qualified and fully rehabilitated.  At the same time, in recent years Pennsylvania courts have not looked kindly on conviction-based employment bars, and last summer a board appointed by Governor Tom Wolf to review occupational licensing in the state issued a report critical of the good-character requirement in many licensing laws.  So perhaps the tide is turning.   

A piece in Forbes by IJ’s Andrew Wimer describes the case of Amanda Spillane, one of the two plaintiffs in the lawsuit:  As a teenager, Amanda started using drugs to self-medicate for mental health issues. Eventually, she turned to burglary to support her habit. She was caught, convicted and spent two years in a state correctional facility.  In prison, she overcame her addiction to drugs and found a new faith. After release, with help from family, she remained clean and worked a fast food job, before deciding to improve her prospects by taking a course to become an esthetician (a cosmetologist who focuses on the face), which required 300 hours of instruction and cost about $6,000.  In applying for a license, Amanda did not expect her past to be an issue; she knew cosmetology was a skill taught to women in prison.  But the Board of Cosmetology informed her that she lacked the requisite “good moral character” for licensure because of her criminal record. When she appealed, a board official “questioned whether her faith was real, demanded proof that Amanda gave regularly to charity, and asked why the people who had provided letters of recommendation had not traveled the two hours to the hearing to testify in person.”  Her appeal was denied.

On December 12, 2018, IJ filed suit on behalf of Amanda and Courtney Haveman—another Pennsylvania woman similarly rejected for a license—challenging the Pennsylvania law that requires applicants for esthetician, nail technician, and natural-hair barber licenses to “be of good moral character.”  Click here to read the complaint.  

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California enacts modest occupational licensing reform

On September 30, 2018, California Governor Jerry Brown signed into law AB 2138, making California the twelfth state this year to enact occupational licensing reform. This flurry of legislation will make it easier for people with a criminal record to obtain occupational and professional licenses. (As discussed in recent posts, the Institute for Justice’s model occupational licensing act and the National Employment Law Project’s model state law have influenced this legislative trend.) However, California’s take on licensing reform is relatively tepid compared to more extensive reforms in states like Indiana, Kansas, New Hampshire, Tennessee, and Wisconsin.

In California, nearly 30 percent of jobs require licensure, certification, or clearance. When AB 2138 takes effect in 2020, it will prohibit licensing boards from denying a license based on certain acts not resulting in conviction, or certain less serious convictions after seven years. The law will require boards to consider rehabilitation evidence for any conviction (not just misdemeanors, as under existing law), to establish more detailed criteria for evaluating convictions, and to issue annual reports.

While a more robust version of the bill first passed the California Assembly, it was weakened in the California State Senate, and ultimately, the Senate’s version prevailed. The legislative process and bill’s provisions are discussed in more detail below.

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Marijuana decriminalization drives expungement reform

The national trend toward expanding opportunities for restoration of rights after conviction has continued to accelerate throughout 2018.  By our count, so far this year alone 31 states have broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  On November 6, Florida could take the most politically momentous step of the year if its voters approve a ballot initiative amending the state constitution to re-enfranchise more than a million and a half individuals who are now permanently barred from voting because of a past felony conviction.  We expect to publish a full report on these 2018 reforms, similar to the report we published last winter on 2017 laws, by the end of the year.  Expect it to feature the broad occupational licensing reforms enacted in more than a dozen states since last spring.

Another important series of second chance reforms this year has accompanied marijuana decriminalization.  These reforms are documented and analyzed by Professor Douglas Berman in an important new paper titled “Leveraging Marijuana Reform to Enhance Expungement Practices.”  Published in a symposium issue of the Federal Sentencing Reporter devoted to various aspects of collateral consequences and criminal records management, Professor Berman’s paper showcases issues that will becomes increasingly important as the War on Drugs winds down.  Professor Berman is the executive director of Ohio State University’s Drug Enforcement and Policy Center, whose official launch is November 2.  We expect that the Center under his management will give restoration of rights an important place on its policy agenda.

The abstract of Professor Berman’s article follows:  Read more

Prisoners fighting California fires denied licenses after release

Nick Sibilla, a legislative analyst at the Institute for Justice, has published this fine op ed piece in today’s USA Today, describing how the 2,000 state prisoners currently engaged in fighting the largest fire in California history, are barred from obtaining the necessary EMT license that would enable them to continue this work after their release.  It contains, inter alia, a description of the two bills currently pending in the California legislature that would end what Nick describes as a “bitterly ironic” situation, where prisoners gain valuable training in certain vocations that they cannot use after their release.  The piece seems particularly relevant, in light of the amazing work being done on occupational licensing reform across the country, much of it inspired by the Institute for Justice’s Model Collateral Consequences in Occupational Licensing Act.   See, e.g. New Hampshire, Wisconsin, Kansas, Indiana, Arizona, and Tennessee.  We hope California will soon join this group of enlightened jurisdictions, and that other states will follow in the coming year.

Despite fighting California’s largest fires, inmates are denied licenses they need to become firefighters after they get out.

by Nick Sibilla, USA Today, August 20, 2018

As California struggles to contain the largest fire in state history, more than 2,000 inmates have volunteered to fight the flames. Offering just $1 an hour, the state has long  encouraged low-level prisoners to risk their lives and serve alongside professional firefighters, who earn nearly $74,000 a year on average. Firefighting, along with less life-threatening trades like plumbing, welding, and cosmetology, is one of several vocational training programs offered to prisoners by the California Department of Corrections and Rehabilitation.

But in a bitterly ironic twist, once inmates leave prison, they often can’t work as firefighters, despite their frontline experience. In California, nearly all counties require firefighters to become licensed emergency medical technician (EMTs) — a credential that can be denied to almost anyone with a criminal record.

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