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.
1. Executive pardon
2. Judicial record-closing
3. Deferred adjudication
4. Regulation of employment and licensing
5. Loss and restoration of voting rights
Since 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.
On July 22, 2016, the Virginia Supreme Court struck down a series of executive orders issued by Governor Terry McAuliffe restoring voting and other civil rights to more than 200,000 convicted individuals. See Howell v. McAuliffe (Va. 2016). The court, in a 4-to-3 decision, disputed the governor’s assertion that his restoration power was absolute under the state’s Constitution. “We respectfully disagree,” the majority justices wrote. “The clemency power may be broad, but it is not absolute.” Governor McAuliffe responded to the court’s action by promising to restore the vote on an individual basis to everyone affected by his orders, starting with the 13,000 who had already registered to vote. More details of the reaction to the court’s ruling are reported here.
The Virginia court’s decision is interesting for what it may tell us about the possibility of class-wide grants of clemency, whether full pardon or sentence commutation, under the president’s pardon power. In finding limits on the governor’s restoration power under the Virginia constitution, the court relied upon two other constitutional provisions that have no analogue in the U.S. Constitution.
The New York Times has two great Sunday editorials on issues relating to collateral consequences. One deals with the issue of labeling people with a criminal record, of special concern when headline writers seem unable to resist using what Bill Keller at the Marshall Project recently called “the other F-word.” The editorial points out that ugly demeaning labels like “convict” and “felon” are “an unfair life sentence.” Let us hope the message reaches newsrooms across the country, and that journalists (especially headline writers) will find another way of describing people with a criminal record.
The Times also has another very fine editorial on Virginia Governor McAuliffe’s restoration of the vote to more than 200,000 individuals, pointing out that his authority under the Virginia Constitution is indisputable.
A very good day for the editorial staff of the Gray Lady, whose editorial page is setting an example of enlightened thinking about criminal law issues – notably including the collateral consequences of conviction.
On April 22, Virginia Governor Terry McAuliffe issued an executive order restoring civil rights to more than 200,000 individuals once convicted of felonies. His courageous action is welcome and long overdue, and there are now only three states nationwide that permanently disenfranchise people based on a felony conviction. The Governor’s press release promises new restoration orders on a regular monthly basis as additional individuals become eligible — the model followed in Iowa between 2005 and 2011, when convicted individuals were restored to the franchise under a similar executive process before it was discontinued by a Republican governor.
The one sour note on an otherwise happy occasion was the pervasive use of the word “felon” in print and media accounts to describe the beneficiaries of Governor McAuliffe’s action. This ugly stigmatizing label has been broadly criticized as counterproductive to reintegration efforts, perpetuating stereotypes about people with a criminal record and encouraging discrimination against them. While the Governor himself was careful with his language, not a single major newspaper reporting on his action could resist including the word in its headline. Read more
We have recently converted the 50-state surveys that are part of the Restoration of Rights Resource from PDF to HTML format. Two of these surveys deal with loss and restoration of firearms privileges as a result of a criminal conviction: Chart # 1 is titled “Loss and restoration of civil rights and firearms privileges,” and Chart # 2 is “State law relief from federal firearms disabilities.” Chart # 1 is a straightforward description of the relevant provisions of each state’s laws, showing when firearms rights are lost based upon a felony conviction (or in some cases misdemeanor crimes of violence) and how firearms rights may be regained. Chart # 1 also describes for each state when conviction results in loss of basic civil rights (voting, eligibility for public office and jury service), and how those rights are regained — a matter that is frequently relevant for avoiding the independent penalties under federal firearms dispossession laws.
Chart # 2 attempts the more complex analysis of when criminal conviction results in exposure to federal prosecution as a “felon in possession” under 18 U.S.C. § 922(g). Regaining firearms rights under state law does not automatically result in avoiding the federal bar, which generally depends upon an additional measure of state relief such as a pardon or expungement, or restoration of civil rights. (The courts have generally held that automatic restoration counts.) Surprisingly, the law is not entirely clear as to when a state conviction will trigger the federal penalty, and when state relief removes it. Chart # 2 therefore emphasizes the importance of seeking legal counsel to avoid liability.
For those with a federal conviction, the only way to avoid liability under § 922(g) and regain the right to possess a firearm is through a presidential pardon (which would also relieve any state law liability). The administrative restoration provision in 18 U.S.C. § 925 has not been funded for 25 years. As reported by Alan Gura in a post on this site last winter, a few individuals with dated nonviolent federal convictions have been successful in regaining firearms rights through the courts.
The 50-state charts will remain available for download in PDF form.
In an important decision for firearms-related collateral consequences, the New Hampshire Supreme Court relied on the Second Amendment to carve out an exception to the so-called federal felon-in-possession statute, declining to follow relevant federal court precedents. At stake is whether state or federal courts have the last word on the scope of the exceptions in 18 U.S.C. 921(a)(20). In DuPont v. Nashua Police Department, the court held that a man convicted of a misdemeanor DUI, who as a result lost his right to possess a firearm under state and federal law, was able to avoid federal firearms disability by virtue of the restoration of his state firearms rights, even though he lost none of the traditional “core” civil rights (vote, office, jury). In order to get to this result, the court had to conclude that the right to possess a firearm is itself a civil right, whose loss and restoration under state law is sufficient to satisfy the “civil rights restored” requirement in 921(a)(20), thus creating a narrow but significant exception to the U.S. Supreme Court’s holding in Logan v. United States.
While the holding in DuPont applies only to a limited class of misdemeanants (those who lost and regained state firearms rights), the decision may be the opening salvo in a state backlash against federal efforts to define the scope of state relief recognized in 921(a)(20).