Reintegration reform returns to pre-pandemic levels in first half of 2021

This year is proving to be a landmark one for legislation restoring rights and opportunities to people with a criminal record, extending the remarkable era of “reintegration reform” that began around 2013. Just in the past six months, 30 states and the District of Columbia have enacted an extraordinary 101 new laws to mitigate collateral consequences. Six more bills await a governor’s signature.  It appears that legislative momentum in support of facilitating reintegration has returned to the pre-pandemic pace of 2019.

Overall, the past 30 months have produced an astonishing total of 361 laws aimed at neutralizing the adverse effect of a criminal record, plus more than a dozen additional executive actions and ballot initiatives.

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New fair chance employment and housing laws in 2021

In the first half of 2021, two states enacted major laws significantly expanding protections against discrimination based on criminal record: Illinois in the area of employment and New Jersey in housing decisions. Several other states also enacted new laws regulating consideration of criminal records in employment and housing, which are summarized below.

Fair chance employment

  • On March 23, 2021, Illinois Governor Pritzker signed into law HR1480, a major expansion of the Illinois Human Rights Act to add a new section prohibiting discrimination in employment based on criminal record. Unless otherwise authorized by law, it is a civil rights violation for any employer, employment agency or labor organization to use a conviction record as a basis to refuse to hire or to take any other adverse action unless: 1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held, or 2) the granting or continuation of the employment would involve a public safety risk. “Substantial relationship” means that the position offers the opportunity for the same or a similar offense to occur and “whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.” In making a determination the employer must consider various factors, including the time since conviction and evidence of rehabilitation. If the employer makes a “preliminary decision” to take adverse action, the employer shall notify the employee in writing, and explain the person’s right to respond. The employer must consider information submitted by the employee before making a final decision, and if the final decision is based “solely or in part” on the person’s conviction record, the employer must notify the person of their reasoning, inform them of whatever avenues of appeal may exist, and of their right to file a charge with the Department of Human Rights.
  • Louisiana‘s HB707 prohibits consideration of non-conviction records in employment decisions and requires employers to make an individual assessment of whether an applicant’s criminal record has “a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position,” considering certain specified factor relating to the criminal case and the applicant’s subsequent history. This law applies to any public or private employer.
  • Maryland enacted a ban-the-box rule applicable to private employers, after the legislature overrode Governor Hogan’s veto. Companies with 15 or more employees may not ask an applicant about their criminal history or conduct a background check at any time before the first in-person interview.
  • New Mexico enacted SB2, amending its 1974 law prohibiting certain discrimination in public employment and occupational licensure. (This law was written up in our earlier post on occupational licensure.) The new law bars consideration of convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.”

Fair chance housing

  • On June 18, New Jersey Governor Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances. The law prohibits consideration of any criminal record at the initial rental application stage, allows only certain records to be considered after a conditional offer is made, and imposes substantive and procedural standards for withdrawal of a conditional offer. Violations may be sanctioned with up to $10,000 in fines and other compliance measures, civil immunity is provided for landlords from claims based on decisions to rent to individuals with a record, and reporting requirements are included. The specific provisions of the new law were described in detail in a June 22 post by David Schlussel.
  • IllinoisSB1980 requires local housing authorities in Illinois to collect data on the number of applications for federally assisted housing by people with a criminal record, how many applications denied, and how many overturned after a records assessment hearing. The data must be reported to the Illinois Criminal Justice Information authority and to the legislature, and posted on the CJIA website. Per a 2020 law, the Illinois Human Rights Act also prohibits inquiries about, or discrimination in public and private employment and “real estate transactions” based on “arrest record,” defined as “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.”
  • Louisiana‘s HB374 requires landlords in Louisiana to give notice to prospective tenants if they will consider criminal record information.

More details on these laws are available in the Restoration of Rights Project.

Restoration of voting and other civil rights in 2021

Voting rights

In the first half of 2021, three states enacted laws authorizing automatic restoration of the vote to anyone not actually incarcerated for a felony, and a fourth state did so through executive order, while beginning the process of amending its constitution to accomplish this result.

New York and Connecticut repealed provisions disenfranchising anyone on parole, while Washington restored the vote to anyone no longer confined for a felony. In March 2021, Virginia Governor Ralph Northam issued an executive order restoring the vote to 69,000 people who had been released from prison but had not yet completed their supervision, culminating a process of automatic expansion of the franchise by gubernatorial executive order that began in 2013. The Virginia legislature approved a proposal to amend the state constitution that, if approved a second time by the next legislature and by a referendum, will disenfranchise only people who are sentenced to a prison term for a felony and will restore their right to vote upon release from prison.

Three other states clarified the timing of restoration of voting rights or facilitated their exercise. Louisiana clarified its law to ensure that a return to jail for violating parole will not extend the 5-year period after which a person released on parole may vote. Maryland passed a law to ensure that individuals detained in Baltimore’s jail may vote, and Illinois passed a law to facilitate registration by those exiting prison.

At the federal level, President Biden issued an Executive Order titled “Promoting Access to Voting” whose Section 9 (“Ensuring Access to Voter Registration for Eligible Individuals in Federal Custody”) requires the Attorney General to take four important actions to ensure access, for people in federal custody or under federal supervision, to voter registration and educational materials on restoration of voting rights.

Jury eligibility

Connecticut limited ineligibility for jury service to a period of actual incarceration, and Louisiana replaced its lifetime bar with a five-year period after release from prison or probation.

Office-holding 

Illinois recognized its governor’s authority to restore eligibility for municipal office to a person with a federal conviction, by granting a certificate of restoration of rights.

Firearms

Kansas expanded the effect of expungement to restore firearms rights.

More details on these laws are available in the Restoration of Rights Project.

New collection of research on sex offense registration

Cambridge University Press has just published a new book, edited by Professors Wayne A. Logan and J.J. Prescott, containing chapters from the nation’s leading social science researchers on the many important empirical questions surrounding sex offense registration and community notification (SORN).  Since SORN’s origin in the early 1990s, basic questions have existed regarding its effects, including whether it actually achieves its intended purpose of reducing sexual offending.

SORN surely numbers among the most significant social control methods of the past several decades.  Although the Supreme Court in 2003 rejected two constitutional challenges to SORN laws (Connecticut Dept. of Public Safety v. Doe and Smith v. Doe), of late courts, including the Sixth Circuit Court of Appeals (Does v. Snyder, 2016), have cast a more critical eye, invalidating new generation SORN laws that have become more onerous and expansive in their reach.

An updated review of caselaw from Professor Logan on SORN and other collateral consequences triggered primarily by sex offenses will be included in the forthcoming fourth edition of Love, Roberts & Logan, Collateral Consequences of Arrest & Conviction: Law Policy & Practice (West/NACDL, 4th ed. 2021). Also, as readers might be aware, the American Law Institute, as part of its overhaul of the Model Penal Code’s sex offense-related provisions, has tentatively approved a slate of reforms advocating a vastly reduced approach to registration and discontinuation of community notification. (We plan a post about the MPC’s important new model in the near future.)

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New Jersey puts “fair chance housing” on the national agenda

People with a record frequently experience challenges in obtaining or maintaining housing. For those who have been incarcerated, on supervision, charged, and/or arrested, the background check for rental applications can be a persistent obstacle. Lack of stable housing is a major roadblock to successful reintegration into the community or the pursuit of social and economic opportunities. It is therefore encouraging that states have begun to enact laws limiting record-based disqualifications in housing decisions.

On June 18, New Jersey Governor Phil Murphy signed into law the Fair Chance in Housing Act, the most rigorous state legislation to date limiting consideration of criminal records in housing decisions. During a ceremony to commemorate Juneteenth, he described the new law as a step to “level what has been for too long an uneven playing field when it comes to access to housing,” explaining that it will bar landlords from asking about criminal history in most instances. The NAACP New Jersey State Conference, Latino Action Network, Fair Share Housing Center, and New Jersey Religious Action Center of Reform Judaism led organizational advocacy for the measure. Senator Troy Singleton, one of the bill’s primary sponsors, cited the “staggering amount of data on the national level that shows securing housing is one of the key barriers to reducing recidivism,” according to the New York Times. “This measure will allow those who have paid their debt to society to move forward with their lives in a productive manner.” Another sponsor, Assemblyman Benjie Wimberly, noted that “We’re fighting generational poverty, homelessness, and hopelessness through social justice reform measures such as this one.”

With New Jersey’s legislation—following on the heels of laws enacted in 2019 in Colorado, Illinois, and New York, legislation in D.C. in 2017, and a slew of local ordinances since 2016— “fair chance housing” has arrived on the national reintegration agenda. While many states have adopted reforms that limit the use of criminal records in employment and occupational licensing, until these recent developments housing does not appear to have been a priority for lawmakers, at least at the state level.

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New Mexico a new leader in criminal record reforms

This year, New Mexico enacted three significant laws restoring rights and opportunities to people with a criminal record, continuing a recent trend of major reforms in this area. The three measures involve adopting most of the provisions of the Uniform Collateral Consequences of Conviction Act, authorizing automatic expungement for a broad range of marijuana offenses as part of legalization, and expanding existing law regulating public employment and licensure to prohibit consideration of many types of convictions. A fourth new law significantly limits burdens imposed by court debt. These developments follow 2019 reforms introducing expungement into the state’s legal system for the very first time—through a comprehensive system of petition-based relief for most types of criminal records—and adopting a private sector ban-the-box law.

For these 2019 reforms, New Mexico earned an “honorable mention” for a productive legislative season in our reintegration report card for that year. This year’s noteworthy follow-up measures, summarized below, make New Mexico a contender for CCRC’s “reintegration champion” award in 2021.

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New occupational licensing laws in 2021

In the first five months of 2021, seven states and the District of Columbia enacted nine separate laws improving opportunities for people with a criminal record to obtain occupational licenses. This continues a four-year trend begun in 2017 that has seen 33 states and the District of Columbia enact 54 separate laws regulating consideration of criminal record in the licensing process.

Our report on new legislation in 2020 noted that “[o]f all the criminal record reforms enacted during this modern reintegration reform era, no other approaches the regulation of occupational licensing agencies in terms of breadth, consistency, and likely efficacy.” Laws enacted during this four-year period have “transformed the licensing policy landscape across the Nation and opened opportunities in regulated professions for many thousands of people.” The only period of law reform that rivals the present one came during the early 1970s, when many of the laws now being revised and extended were first enacted. The effectiveness of advocacy efforts by the Institute for Justice and National Employment Law Project in influencing this trend cannot be overstated.

So far during 2021, the U.S. jurisdiction to have enacted the most ambitious and comprehensive licensing scheme is the District of Columbia, and its new law (described in detail below) is one of the most progressive in the nation. New Jersey, New Mexico and Washington had not previously legislated in this area for many years, and all three extended and improved laws first enacted in the 1970s. Arizona, Georgia, Ohio, and Tennessee extended recently enacted laws, with Arizona legislating for the fourth time in this area in as many years!

The nine new laws are described below, and have been added to the state profiles and 50-state charts of the Restoration of Rights Project.

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People with records excluded from growing occupations

People with arrest and conviction records continue to demand that employers and policymakers remove unfair barriers to work. Their demands have spurred much-needed legislative change, including “fair chance licensing” laws that reform restrictions on working in occupations requiring a government license or certification. Such changes are crucial to achieving racial equity. Decades of biased policing and charging have left Black and Latinx communities with disproportionately high rates of records, thus compounding the economic disinvestment and other disadvantages resulting from structural racism.

In support of fair chance licensing advocacy efforts, the National Employment Law Project (NELP) recently developed a set of short fact sheets evaluating the legal barriers that face people with records who desire to work in growing occupations in eight states–Colorado, Delaware, Indiana, Louisiana, Michigan, Ohio, Oregon, and Tennessee. Given the confusing tangle of statutory and regulatory restrictions in most states, focusing on growing professions in high-demand industries may prove to be an important strategy for state advocates who seek to maximize job opportunities for people with records.

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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.

DC’s non-conviction sealing law is uniquely complex and restrictive

Last year, 20 states enacted reforms expanding access to expungement, record-sealing, and other forms of record relief. Many legislatures, including the District of Columbia Council, are considering reform proposals this session. Given the progressive steps taken by the District in the past year to expand opportunities for people with a criminal record to vote and obtain occupational licensing, we are optimistic that the Council will enact significant improvements to its lagging record-sealing law.

Compared to states across the country, DC’s record relief law is very prohibitive and unusually complex. First, its non-conviction sealing scheme is “one of the most restrictive” in the country (as we described it in our Model Law on Non-Conviction Records). Second, to seal a misdemeanor conviction, an 8-year waiting period must be satisfied (far longer than most states), and then a series of rules exclude individuals based on a long list of ineligible offenses and a variety of disqualifying prior and subsequent records. Finally, DC allows only a single specific felony conviction to be sealed,1 while 34 states allow a range of felonies to be sealed or expunged.

This post explains how DC’s law on sealing of non-conviction records in particular does not fare well in the national landscape.

Summary

Current DC law is out of step with national trends toward automatic and expedited sealing of non-conviction records at or shortly after disposition (approaches enacted last year in Kentucky and North Carolina, for example). It is also more complex and restrictive than analogous laws in almost every state in three primary areas:

  • The waiting period before a person may apply for sealing a non-conviction record is longer than in most states, and the effect that a prior or subsequent conviction has on extending the waiting period is unusually severe.
  • The provision ruling out sealing for a successfully completed deferred sentencing agreement based on the person’s other record is counterproductive and harsher than the norm.
  • The procedures and standards that apply in proceedings to seal a non-conviction record are more burdensome and restrictive than in any state, differing little from the procedures and standards that apply to sealing a conviction record.

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