Upgrades to the Restoration of Rights Project

We are pleased to announce the completion of a major project to upgrade our flagship resource, the Restoration of Rights Project (RRP).  The RRP is a free on-line compendium of legal research that describes and analyzes the laws and practices relating to criminal record relief in the United States.  The improvements we have made will make it easier for our readers to gain both a snapshot and more detailed understanding of how record relief laws and policies operate within each of the 50 states, D.C., 2 territories, and the federal system.  They will also facilitate comparisons of how different states address various types of relief, producing a national-level picture against which each state can measure its progress.

This major undertaking was a collaboration between CCRC staff and four students at Yale Law School: Jordan Dannenberg, Kallie Klein, Jackson Skeen, and Tor Tarantola.  We thank these students, as well as YLS Professor Kate Stith, for their excellent contributions to our mission of promoting public engagement on the issues raised by the collateral consequences of arrest or conviction.

The state-by-state profiles, summaries and 50-state comparison charts from the RRP are what we rely on in preparing periodic and year-end summary reports on new legislation, which we track and add to the RRP in real time throughout the year.  The research and analysis in the RRP also informs our commentary on everything from new court decisions and scholarship to politics and practice, as well as the amicus briefs we file from time to time in significant litigation.  It is the foundation of our work on model legislation.  The RRP provided the raw material for a national overview report of record relief laws and policies, Forgiving and Forgetting in American Justice, which was last revised in August 2018.  Because of this report’s value in identifying overall patterns and emerging trends, we are already at work bringing it up to date with the more than 200 new laws passed since it was last revised.

Through the upgrade project we reorganized and expanded the RRP in three major ways.

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Updated report on 2018 fair chance and expungement reforms

On January 10, 2019, we released a report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  Since that time, we discovered five additional laws enacted in 2018 (in AL, PA, OR, MO, and the U.S. Virgin Islands), and have updated our report accordingly.

In 2018, 32 states, the District of Columbia, and the U.S. Virgin Islands enacted at least 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 last year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.

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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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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NC expands certificate law, taking three steps forward, one step back

The states are on a roll in passing new “second chance” legislation.  In addition to the extraordinary new Pennsylvania bill on automatic sealing we posted about earlier today, we’ve just learned that the North Carolina legislature has approved a bill modifying eligibility for judicial Certificates of Relief.  Certificates, which are available from the sentencing court one year after sentencing, remove mandatory collateral consequences (including in employment and licensing), certify that an individual poses no public safety risk, and provide negligent hiring protection.  The bill has been sent to the Governor for signature, we will inform you as soon as he has done so.   Hat’s off to our friends at the North Carolina Justice Center, who worked hard to get this bill passed!   

The bill will provide further relief and opportunity for people with multiple convictions.  The “one step back” referred to in the title of this post is that while the bill significantly expands eligibility for misdemeanors and the lowest level felonies, it also removes from eligibility one class of felony.   It is inevitable that there will occasionally be some last-minute counter-current in pressing for extension of relief provisions.   In North Carolina, what might have been cause for discouragement has evidently (and commendably) provided advocates with additional incentive to pursue a reform agenda and to educate employers about the value of certificates.   

Here is a description of the bill from Daniel Bowes at the NCJC:     Read more

First crop of restoration laws enacted in 2018

In 2017, state legislatures produced a bumper crop of laws restoring rights and opportunities, with 24 separate states enacting new legal mechanisms to facilitate reentry and reintegration.  Based on pending bills and laws already enacted this year, 2018 promises to be similarly productive.  In March, the governors of Florida, Utah and Washington all signed into law new measures expanding their existing restoration schemes.  Washington enacted a ban-the-box law applicable to both public and private employment, and both Florida and Utah expanded their laws authorizing expungement of non-conviction records.  These new authorities are described in the post that follows, and can be seen in the context of related laws in the state profiles in the Restoration of Rights Project.

While none of these first enactments of 2018 is particularly remarkable standing alone, they deserve mention as harbingers of things to come.  More than thirty additional states have restoration bills pending, and half a dozen of these are well along in the enactment process.  We will be tracking restoration bills through the year, and will report periodically in this space – particularly when a significant new law is enacted.  We also hope to produce in 2018 another annual report on Second Chance Laws enacted during the year, as resources permit.

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Preview of 50-state report on effective relief mechanisms

The Collateral Consequences Resource Center is currently finalizing a 50-state report on the availability of relief from the adverse civil effects of a criminal arrest or conviction. Using research from the Restoration of Rights Project (RRP), the report analyzes the data in several different categories, including executive pardon, judicial record-closing and certificates, and regulation of employment and licensing.  It showcases those states that have the most comprehensive and effective relief mechanisms, and at the same time provides a snapshot of the extraordinary recent interest in restoration of rights and status in state legislatures across the country.  It also looks at what states are doing to enable less serious offenders to avoid a criminal record altogether, through statutory deferred adjudication programs managed by the courts.

We preview here the report’s conclusions, illustrated by a series of color-coded maps that create a visual image of where people with a criminal record appear to have the best chance of regaining their rights and status through a variety of different relief mechanisms.  The full report will be published shortly after Labor Day.

Table  

1. Executive pardon

2. Judicial record-closing

3. Deferred adjudication

4. Regulation of employment and licensing

5. Loss and restoration of voting rights

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“More Justice and Less Harm: Reinventing Access to Criminal History Records”

This is the title of an important new article published by Alessandro Corda in the Howard Law Journal proposing a radical way of addressing the malign social impact of our current policies on public access to arrest and conviction records.  Corda traces the evolution of record dissemination policies and practices since the 1950s, contrasting the American and European experience where “informal collateral consequences” are concerned.  He critiques “partial remedial measures” like expungement and certificates of rehabilitation, and argues for making publication of a defendant’s record an “ancillary sanction” ordered (or not) by the court at sentencing.

While this solution may at first blush seem a bit ambitious, there are states (like Wisconsin) whose sentencing courts can offer the promise of set-aside and expungement upon successful completion of sentence, and that is indeed how the federal Youth Corrections Act operated before its repeal in 1984.

At the very least, Corda makes a convincing case that strong measures are necessary to mitigate the permanent stigma of a criminal record in the information age.  The historical and international material will be of particular value to those currently working on this problem in legislatures across the country.  Here is the abstract:

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National law reform proposal on collateral consequences

A long-running national law reform project that is reaching its final stages includes a broad and progressive scheme for dealing with the collateral consequences of conviction.  The American Law Institute (ALI), the nation’s oldest and most respected law reform organization, will meet in Washington on May 22-24 to approve a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC: Sentencing includes an ambitious and comprehensive scheme for managing and limiting collateral consequences.  [NOTE: The MPC: Sentencing draft was given final approval by the ALI Annual Meeting on May 24.]

In commentary published last month on the ALI website, MPC Reporters Kevin Reitz and Cecelia Klingele discussed the role of sentencing commissions in managing collateral consequences under the MPC provisions, as well as its provisions relating to notice and relief.   As under the original 1962 Code, the 2017 Code gives the sentencing court the key roles in ensuring that defendants have an opportunity to overcome the adverse effects of collateral consequences.  The 2017 Code provisions also include an important role for sentencing commissions in establishing policy and practice for the courts. The commentary is well worth reading by anyone searching for innovative ways to lighten the burden of a criminal record.

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How effective are judicial certificates in relieving collateral consequences?

An empirical study of Ohio’s judicial “certificate of qualification for employment” finds that it is “an effective avenue for lessening the stigma of a criminal record” in the context of employment and licensing.  The certificate, authorized in 2012, lifts mandatory legal restrictions and limits employer liability for negligent hiring claims, with the goal of ensuring that employment and licensing decisions about certificate holders are on a case-by-case basis, on the merits. The court-issued certificate is available to anyone with any Ohio conviction, no matter how serious, as long as they have completed their sentence and can show that they are barred from employment or licensure by a “collateral sanction.” There is a short waiting period, and applicants must show that they pose no public safety risk.

The Ohio certificates are part of a recent trend toward authorizing courts to grant certificates of restoration of rights to people with conviction records.  It seems that states are far more likely to authorize this more transparent form of relief for those convicted of felonies, reserving record-sealing to misdemeanor or non-conviction records.

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New research report: Four Years of Second Chance Reforms, 2013-2016

Introduction

4 year report coverSince 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society.  It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences.  To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief.  Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction.

In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction.  As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend.

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