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).

UPDATED: 50-State Chart on Relief from Sex Offender Registration

We have completed an overhaul of our 50-State chart on relief from sex offender registration obligations, to bring it up to date and ensure that it is thorough and accurate.  This chart documents the duration of sex offender registration requirements, as well as legal mechanisms for early termination from such requirements.

In conducting this review, we have identified a handful of states that have, since the chart was last revised in November 2017, expanded the availability of relief from sex offender registration requirements, including for people who have successfully completed diversionary dispositions, people with serious disabilities, and people who are registered based on out-of-state offenses.  These recent changes in the law, incorporated in the chart, are summarized below. Read more

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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PA high court will again review sex offender registration

Two years ago, the Pennsylvania Supreme Court shook up long-settled orthodoxy by ruling that the state’s sex offender registration law, otherwise known as SORNA (Sexual Offender Registration and Notification Act) was punishment. The case, Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2018), presented the Court with two questions: whether people who committed their crimes before the adoption of the law could continue to be registered without running afoul of the state Constitution’s Ex Post Facto Clause, a fairness doctrine that prevents governments from retroactively applying greater punishments to conduct than could have been applied at the time of the crime; and, second, whether the law more broadly violates due process by unfairly labeling a person as sexually dangerous without first proving that fact and without giving the person an opportunity to challenge that message. While the Court answered the first question with a resounding yes, it punted on the second.

The effect of that decision meant that although Pennsylvania was forced to reduce the length of registration for many people who had committed their crimes many years before, or in many cases remove them from the registry altogether, it did little to change how the law would be applied moving forward.  SORNA was largely left undisturbed for the roughly 1500 new people added to the registry every year.  The due process issue left undecided by the Pennsylvania high court in Muniz is now again before that court, and this time it will be harder to avoid deciding it.

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Sex offender registration litigation: punishment and free speech

In the past week, there were two notable developments regarding the constitutionality of state sex offender registration schemes.

First, as noted by Douglas A. Berman at Sentencing Law and Policy, Michigan Attorney General Dana Nessel filed highly significant amicus briefs in two Michigan Supreme Court cases, “arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.”  Both of the Michigan cases involve constitutional challenges under the Ex Post Facto Clause to the retroactive application of the state registration requirement.  Michigan v Snyder, No. 153696; People v. Betts, No. 148981.

In the second development, U.S. District Judge W. Keith Watkins of the Middle District of Alabama on Monday held that Alabama’s sex offender registration law (“ASORCNA”) violates the First Amendment by branding state-issued ID cards with “CRIMINAL SEX OFFENDER” and imposing extensive internet-use reporting requirements.  Doe v. Marshall, No. 2:15-CV-606-WKW (M.D. Ala. Feb. 11, 2019).  This case presents an interesting twist on the now-vulnerable theory espoused by the U.S. Supreme Court and many states that sex offender registration is not “punishment.”

These two caselaw developments are discussed further below.

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“Challenging the Punitiveness of ‘New-Generation’ SORN Laws“

Wayne Logan has a terrific new article on the recent challenges to sex offender registration and notification laws, forthcoming in the New Criminal Law Review.  Here is the abstract:

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.

Michigan sex offender registration law held unconstitutional

On January 24, the Michigan Supreme Court held the state’s sex offender registration scheme unconstitutional on due process grounds as applied to one Boban Temelkoski.  Temelkoski had pleaded guilty under a youthful offender statute with the expectation that no collateral consequences would attach to the disposition if he successfully completed its conditions.  However, several years later a registration requirement was enacted and applied retroactively to his case.  Because the court decided Temelkoski’s case on due process grounds, it did not need to address arguments that application of the registration statute to him constituted constitutionally impermissible punishment.  However, the court hinted in dicta how it might decide that issue, stating that “It is undisputed that registration under SORA constitutes a civil disability.”  While a win is a win, we must wait another day for a decision on the constitutionality of Michigan’s registration scheme under the Ex Post Facto Clause and the State’s version of the Eighth Amendment.

An analysis of the Temelkoski decision by Asli Bashir, a 2017 graduate of Yale Law School, follows.

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CCRC files amicus brief in Illinois sex offender case

The CCRC has filed an amicus brief in the Illinois Supreme Court in support of the appellant in People v. Bingham, a case challenging the constitutionality of a state law requiring registration as a “sexual predator” based on the commission of a non-sexual offense.  The relevant facts of the case are as follows.

Jerome Bingham was convicted of attempted sexual assault in 1983 and served several years in prison on that charge.  At the time, Illinois did not have a sex offender registration requirement.  Thereafter, Bingham was convicted of a number of petty drug and theft offenses.  In 2012, Illinois enacted an amendment to its sex offender registration act (SORA) providing that its registration requirement would apply retroactively to anyone who had previously committed a qualifying sex offense and, subsequent to the 2012 act, committed any felony.  In 2013, Bingham stole goods worth $72 from a K-Mart storage lot.  Although this would ordinarily have been a misdemeanor, the fact that he had a prior similar offense permitted it to be charged as a felony, which it was, thereby subjecting him to the sex offender registration requirement.

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Big win for sex offenders in PA as registration held punishment

Yesterday, in Commonwealth v. Muniz, __A.3d__ (Pa., July 19, 2017) (47 MAP 2016), the Pennsylvania Supreme Court held what for a long time has been obvious to many: that sex offender registration is punishment. Five Justices declared that Pennsylvania’s Sex Offender Registration and Notification Act’s (SORNA) “registration provisions constitute punishment under Article 1, Section 17 of the Pennsylvania Constitution — Pennsylvania’s Ex Post Facto Clause. The majority of the Court held in no uncertain terms:

1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

This is a radical shift from prior Pennsylvania and federal law.  Although the reasoning of the justices to get to this result is a little convoluted because several in the majority did not believe that the court even needed to address the Federal claim, the end result is clear. The decision directly affects roughly 4500 people in addition to Mr. Muniz.

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