Second Chance Month: A Federal Reintegration Agenda

In 2017, Prison Fellowship declared April Second Chance Month for the first time. The designation has since gained support from Congress, the White House, state and local bodies, and nongovernmental organizations, as an opportunity to raise awareness about the collateral consequences of arrest or conviction along with the importance of providing second-chance opportunities for people with a record to reintegrate into society.

CCRC’s flagship resource, the Restoration of Rights Project provides 50-state resources detailing current law and practice for four types of second-chance remedies: (1) restoration of civil and firearms rights; (2) pardoning; (3) expungement, sealing, and other record relief; and (4) limits on consideration of criminal records in employment and occupational licensing. Our annual reports on new legislation document the astonishing pace of state reform action on these issue since 2013. We are proud to see these resources utilized by impacted individuals, attorneys, advocates, journalists, scholars, lawmakers, courts, and others to understand second-chance remedies, pursue relief, and bring about reforms.

President Biden’s Proclamation on Second Chance Month declares that the criminal justice system must offer “meaningful opportunities for redemption and rehabilitation”:

Every person leaving incarceration should have housing, the opportunity at a decent job, and health care. A person’s conviction history should not unfairly exclude them from employment, occupational licenses, access to credit, public benefits, or the right to vote. Certain criminal records should be expunged and sealed so people can overcome their past.

The President took an important step toward this goal when he directed federal agencies to facilitate voting for those in federal custody or under federal supervision.

During the wave of criminal record reform that began around 2013, every state legislature has taken steps to chip away at the negative effects of a record, thereby supporting opportunities to earn a living, access public benefits, education, and housing, regain voting rights, and otherwise reintegrate into society. Many states have entirely remade their record relief systems—authorizing or expanding expungement, sealing, set-aside, certificates of relief, and/or diversion—and limited the consideration of arrest and conviction records in employment and licensing. State reforms continue to accelerate in 2021.

Congress has belatedly become interested in the reintegration agenda, limiting background checks in federal employment and contracting in 2019, and removing some barriers to public benefits in 2020. However, many federal barriers remain, and individuals with federal records have no access to the kind of relief mechanisms now available in most states. Recent controversies over presidential pardoning offer an incentive to wean the federal justice system from its dependence upon presidential action for the sort of routine relief these mechanisms promise.

In honor of Second Chance Month, we recommend that the Biden Administration work with Congress to pursue an ambitious and bipartisan legislative approach to criminal record reforms in the following four areas:

  • Record relief: Authorize federal courts to expunge certain records, grant certificates of relief, and increase use to deferred adjudication; give effect to state relief in federal law; prohibit dissemination of certain records by background screeners and the FBI; and, provide relief from firearms dispossession.
  • Federal public benefits: End record-related restrictions in financial assistance to small businesses, SNAP and TANF benefits, and student aid.
  • Employment & licensing: Establish enforceable standards for consideration of criminal record in federal employment and contracting, and limit record-based restrictions in federally-regulated occupations.
  • Voting rights: Allow voting in federal elections regardless of a person’s criminal record unless currently incarcerated for a felony conviction.

Our full federal agenda details specific measures by which Congress can accomplish these goals.

Legislative Report Card: “The Reintegration Agenda During Pandemic”

CCRC’s new report documents legislative efforts in 2020 to reduce the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. In total, 32 states, D.C., and the federal government enacted 106 bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a record.

Our Legislative Report Card recognizes the most (and least) productive state legislatures last year. Hands down, Michigan was the Reintegration Champion of 2020 with 26 new record reform laws, while Utah was runner-up, and seven other states were commended for their work.

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“The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020”

In each of the past five years, CCRC has issued an end-of-year report on legislative efforts to reduce the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life.[i] These reports document the progress of what has become a full-fledged law reform movement to restore individuals’ rights and status following their navigation of the criminal law system.

Our 2020 report, linked here, shows a continuation of this legislative trend. While fewer states enacted fewer laws in 2020 than in the preceding two years, evidently because of the disruptions caused by the pandemic, the fact that there was still considerable progress is testament to a genuine and enduring public commitment to a reintegration agenda.

In 2020, 32 states, the District of Columbia, and the federal government enacted 106 legislative bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a criminal record.

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Non-conviction records: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

In July, we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.” So far, we have previewed the report by publishing draft chapters covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing.” We also published “pardon policy and practice” and “deferred adjudication” sections of the chapter on record relief, a term comprising the various remedies that revise or supplement a person’s criminal record to reduce or eliminate barriers to opportunity in civil society.

Today we are publishing a third section of the record relief chapter on non-conviction records: arrest and court records that can create lifelong barriers in employment, housing, and other areas of daily life. More than half the states still require a restrictive and burdensome court procedure to expunge or seal non-convictions. Our Model Law on Non-Conviction Records recommends automatic expungement of these records, an approach that has been enacted in 17 states. Later this week we will publish additional sections of this chapter, on conviction relief, judicial certificates, and juvenile records. We expect to publish the entire “Many Roads” report by the end of the month.

A PDF of the section on non-convictions is available here. The full text follows, with end notes.

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CCRC reports on criminal record reforms in 2019

We are pleased to publish our annual report on criminal record reforms enacted during the past calendar year.  This is the fourth in a series of reports since 2016 on new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction.  This year we have included for the first time a Report Card grading the progress of the most (and least) productive state legislatures in 2019.  The press release accompanying the report is reprinted below:

Report finds record-breaking number of criminal record reforms enacted in 2019

February 17, 2020

Washington, D.C. — The Collateral Consequences Resource Center (CCRC) has released a new report documenting the astonishing number of laws passed in 2019 aimed at promoting reintegration for individuals with a criminal record.  Last year, 43 states, the District of Columbia, and the federal government enacted an extraordinary 153 laws to provide criminal record relief or to alleviate the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime and frequently have little or no public safety rationale. 

The year 2019 was the most productive legislative year since a wave of “fair chance” reforms began in 2013, a period CCRC has documented in a series of legislative reports (2013-2016, 2017, and 2018). 

CCRC’s 2019 report, titled “Pathways to Reintegration: Criminal Record Reforms in 2019,” is available here.

This report is our first to include a Report Card on how state legislatures performed during the year in advancing the goals of reintegration,” said CCRC Executive Director Margaret Love. “We wanted to recognize New Jersey as Reintegration Champion for having the most consequential legislative record in 2019, including three important new laws authorizing clean slaterecord relief, restoring voting rights, and curbing driver’s license suspensions.

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New 2019 laws on immigration consequences and driver’s license suspension

This is the fifth and final comment on new 2019 laws restoring rights or delivering record relief.  The laws included cover immigration consequences, driver’s licenses, pardon procedures, and several miscellaneous topics.  The full report on 2019 laws is available here.

Immigration consequences

In 2019, four states took steps enabling non-citizens charged with offenses to avoid deportation based on sentence or guilty plea.  Colorado, New York, and Utah capped prison sentences for misdemeanors at 364 days, to avoid mandatory deportation based on a one-year prison sentence, with the first two states giving the law retroactive effect.  New York also restricted the dissemination of certain criminal record information to federal immigration authorities.  Oregon revised its law on deferred judgments to prohibit guilty pleas that would trigger deportability.  Oregon also, along with Nevada, regulated the questioning of criminal defendants or detained individuals about their immigration status.

  • Colorado passed three laws aimed at mitigating the immigration consequences of conviction.   The first two relate to mandatory deportation for state misdemeanors carrying a potential one-year sentence.  See 8 U.S.C. § 1227(a)(2).  To avoid this consequence, Colorado reduced the maximum jail sentence for various offenses from one year to 364 days. (HB 1148; HB 1263).  Colorado also authorized individuals to withdraw guilty pleas where they had pled guilty pursuant to a deferred adjudication or drug offense dismissal scheme, and thereby unknowingly exposed themselves to immigration consequences (federal immigration law treats such pleas as convictions, even though state law may not, see 8 U.S.C. §§ 1101(a)(48)(A), 1227(a)(2)) (S 30).
  • New York not only capped misdemeanor penalties at 364 days, but it gave the provision retroactive effect by authorizing resentencing in cases where the penalty originally imposed would result in “severe collateral consequences.”  (S 1505).  In addition, New York barred access by federal immigration authorities to some motor vehicle records, which may include criminal record information (A3675).
  • Utah reduced the maximum prison term for misdemeanors to “one year with a credit for one day,” but made no provision for retroactive application (HB 244).
  • Oregon removed a guilty plea requirement from the controlled substances diversion statute, making this benefit available to non-citizens without exposing them to deportation (HB 3201).  The law specifically provides that “[e]ntering into a probation agreement does not constitute an admission of guilt” and is “not sufficient to warrant a finding or adjudication of guilt by a court.”  As noted in the diversion section, however, the bill added a provision requiring defendants to agree to pay restitution to victims and court-appointed counsel fees as a condition of participation, with no provision for waiver.  Another new Oregon law prohibits a criminal court from inquiring about a defendant’s immigration status, and requires the court to allow a defendant additional time to consider a plea after being informed of immigration consequences (HB 2932).  Last year Oregon limited sentences for minor crimes to 364 days to avoid deportation (much as Colorado, New York and Utah did this year).
  • Nevada passed a law prohibiting anyone from questioning a person in a jail or other detention facility about their immigration status, unless they first informed the detainee of the purpose of the questioning (AB 376).

In addition, Indiana reduced selected misdemeanors to non-criminal civil infractions, taking them out ac riminal category, and avoiding immigration consequences (SB 336).

Driver’s License Suspension 

Six states repealed laws mandating suspension of a driver’s license for non-driving offenses.

  • Mississippi (HB 1352) and New York (S 1505) repealed provisions making loss of a driver’s license a mandatory penalty for a drug crime.
  • Montana (HB 217) and Virginia (HB 1700) repealed laws mandating suspension of a driver’s license for failure to pay court costs.
  • New Jersey addressed both of these issues, repealing provisions mandating suspension of driver’s licenses for conviction of drug and other crimes, and for failure to pay court debt (S1080).
  • Florida modified or deleted provisions for driver’s license suspension or revocation for underage tobacco and alcohol sales or consumption, misdemeanor theft, and drug crimes (HB 7125).Fla. Stat. §§ 569.11, 877.112, 562.11, 562.111, 812.0155, 322.055, 322.056.

In addition, Minnesota authorized cities and counties to create a driver’s license reinstatement diversion program (SF 8).

Housing discrimination

Illinois extended two laws, including its Human Rights Law, to bar private parties’ reliance on certain criminal records to deny housing.  Previously both laws applied only to employment.

  • Illinois barred housing discrimination through an amendment to its Human Rights Law to prohibit discrimination based on “arrest record” in any “real estate transaction,” including both rental and sale of real property. The term “arrest record” was defined to include non-conviction records, juvenile adjudications, and sealed or expunged convictions.  (SB1780).  (This same enactment also extended the Law’s employment discrimination provisions to non-conviction records, since the other categories of records were already covered.)
  • Illinois also extended the effect of its certificate of good conduct to lift mandatory licensing and housing bars, in additional to employment bars. (SB 3580).  However, a certificate of good conduct does not limit any employer, landlord, judicial proceeding, administrative, licensing, or other body, board, or authority from accessing criminal background information; nor does it hide, alter, or expunge the record.  Nor does the existence of a certificate of good conduct does not preclude a landlord or an administrative, licensing, or other body, board, or authority from retaining full discretion to grant or deny the application for housing or licensure.

Pardon procedure 

Nevada and South Dakota took steps to further streamline their already productive pardon systems.

  • The Nevada legislature proposes to repeal a requirement in the state constitution that the governor must approve all clemency grants by the Board of Pardons Commissioners, on which the governor sits as a member (SJR 1A). This proposal, which also requires the Board to meet at least quarterly, must be approved by popular vote in 2020.
  • The South Dakota legislature authorized a hearing panel of the Board of Pardons to make clemency recommendations to the governor, rather than the entire Board as under preexisting law. (HB1005).

Miscellaneous relief provisions

Among the more notable miscellaneous collateral consequences provisions enacted in 2019 is Utah’s new law giving courts new authority to terminate sex offender registration obligations, and loosening restrictions on driver’s licenses for people on the registry.  Another interesting new law is Connecticut’s establishment of a high-level study group to make recommendations on reducing various forms of discrimination based on criminal history.

  • Utah loosened restrictions on registered sex offenders, including rescinding a requirement that they renew driver’s licenses annually, expanding the number of offenses that qualify for removal from the registry after 5 years, and enacting a new provision authorizing the court to terminate registration after 10 years (HB298).
  • Connecticut established a “Council on the Collateral Consequences of a Criminal Record,” composed of high-ranking members of the legislature and the executive branch and representatives of advocacy groups and unions, and charged it with making recommendations by February 1, 2020, for legislation to reduce or eliminate discrimination based on criminal history (HB6921).
  • Louisiana relaxed restrictions on fostering and adoption for people with convictions (HB 112).
  • New York outlawed release of booking information and “mugshots” by police departments without a law enforcement purpose (S1505).

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.

New restoration laws take center stage in second quarter of 2019

State legislatures across the country are moving quickly and creatively to repair some of the damage done by the War on Crime, which left a third of the adult U.S. population with a criminal record.  In the second quarter of 2019, 26 states have enacted an eye-popping total of 78 separate new laws aimed at addressing the disabling effects of a record.  Coupled with the laws enacted in the first quarter, the total for the first half of 2019 is 97 new laws enacted by 36 states.  By way of comparison, in all of 2018 there were 61 new restoration laws enacted in 32 states and two territories, which was then a record.

Much of the new legislation this quarter is quite significant.  Some states made their first substantial effort in decades to deal with the problems presented by record-based discrimination, while others refined and extended reforms enacted in the recent past.  Some states enacted multiple laws dealing with the same restoration issue (Texas stands out with five laws on occupational licensing alone), and some dealt with multiple issues in one law (New York dealt with no fewer than twelve separate issues in a 2020 budget bill).  Many of the specific laws enacted in the second quarter were anticipated by laws enacted by other states in the first.

As in the past, state lawmakers this quarter focused most of their attention on facilitating access to record-clearing, although a significant number of new laws regulate consideration of criminal record in the occupational licensing process.  Another important area of progress is in restoration of voting rights.  Other matters addressed by new laws include driver’s licenses and firearms; diversionary dispositions; and immigration consequences.  Surprisingly few of the new laws deal directly with employment, perhaps on the assumption that limited access to criminal records will also limit employment discrimination, at least where a background check is not mandated by law (frequently an exception to sealing).  Only one law enacted during this past quarter took a step backward to restrict an existing restoration measure (a significant development in Florida in the area of voting rights).

The new laws also display a remarkable variety, indicating either that the spirit of experimentation is alive and well in the States, or that States are desperate for law reform guidance, or both.  Meanwhile, in stark contrast to this prolific state law-making, Congress has not attempted to deal 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.

Below, we describe some of the more significant new laws by category, covering voting rights, record-sealing, occupational licensing, immigration, and what for want of a better term we call “odds and ends.”  For those interested in further details about the new laws, we have described and analyzed them in the state profiles and summary charts of the Restoration of Rights Project.  (In order to access the full analysis of the new laws in the RRP, you must clink the link on the “summary” sheet labeled “Read the Full Profile.”)

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Colorado limits immigration consequences of a criminal record

Colorado joins other states this session that passed legislation to avoid federal immigration consequences of state criminal matters.  The new Colorado laws—SB 30 and HB 1148—work at different stages of criminal proceedings to protect people from possible deportation: SB 30 remedies past wrongs by vacating unconstitutional guilty pleas, and SB 1148 will prevent future deportations resulting from potential one-year sentences.

On May 28, Colorado enacted SB 30, which went into effect immediately and helps ensure that when a person is offered a non-conviction diversion, it is not treated as a conviction for immigration purposes.  In many states, people facing criminal charges are offered the chance to avoid a conviction by agreeing to a type of diversion called deferred adjudication.  They plead guilty and complete a period of probation, after which the plea is withdrawn and charges are dismissed.  Sounds good right?  Not for a non-citizen.  In that case, federal law treats this arrangement as a conviction—sufficient to initiate deportation proceedings.  See 8 U.S.C. § 1101(a)(48)(A); § 1227(a)(2).  However, such a plea may be unconstitutional if a person was not properly advised of these immigration consequences.  See Padilla v. Kentucky, 559 U.S. 356 (2010).

The new Colorado law provides procedures for courts to vacate an unconstitutional guilty plea where it has already been withdrawn and the charges dismissed.  See Colo. Rev. Stat. § 18-1-410.5.  Read more

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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