Note: This is the first of what we anticipate will be a series of reports on some of the more progressive restoration schemes enacted in the past several years.
Marion County Deputy Prosecutor Andrew Fogle says the four years since Indiana enacted a broad “second chance” law have been like “the Wild West.” Fogle, who oversees petitions for expungement for his office in Indiana’s most populous county, agreed to be interviewed about what may be the Nation’s most comprehensive and creative scheme to overcome the adverse effects of a criminal record. We also spoke about the law to a number of criminal defense attorneys and legal service providers in the State.
Indiana’s expungement law, first enacted in 2013 and amended several times since, extends to all but the most serious offenses, although the effect of relief as well as the process for obtaining it differs considerably depending on the offense involved. Perhaps most important, the term “expungement” doesn’t have the same meaning in Indiana as it has in most states, because it doesn’t necessarily result in limiting access to the record.
Earlier today the Council of State Governments (CSG) launched the Clean Slate Clearinghouse, an impressive online resource that provides information on the availability of expungement and sealing in all 50 states and helps individuals with criminal records connect with pro bono legal service providers. The project, which is jointly funded by the U.S. Departments of Justice and Labor, is the result of over a year’s work by CSG and its partner organizations.
The resource is focused squarely on record closure mechanisms and does not cover restoration authorities that leave the record intact, such as executive pardon, judicial certificates of relief, or nondiscrimination laws. It also does not directly address the effect of closure in different jurisdictions. It does, however, provide succinct information about the various record closure procedures available in each state, and does so in a way that non-lawyers can easily understand. In addition, it collects links to state application forms and guides as well as links to helpful third-party resources. As such, it will be a useful tool for individuals seeking to leave their criminal records in the past. It complements the more detailed legal analysis in the Restoration of Rights Project.
The Clearinghouse is available at https://cleanslateclearinghouse.org. We look forward to hearing about how it is being put to use and to watching its further development. The official project description follows:
In just over a month, an amendment to Nevada’s adult conviction sealing law will take effect, drastically reducing the waiting periods for all conviction types, and reducing procedural burdens on applicants. Nevada’s law is already one of the broadest in the country, permitting sealing of all adult conviction records except for those related to particularly serious offenses (including sex offenses and DUI homicides), and treating sealed convictions as if they never occurred for most purposes. When the new changes go into effect, Nevadans will not only be able to obtain relief much earlier, they will also enjoy a new presumption in favor of sealing if they meet all the statutory eligibility requirements.
In the same legislative session, Nevada also enacted a broad law governing nondiscrimination in public employment that includes both standards for decision and an enforcement mechanism. That law, which will take effect early next year, is described in greater detail in the Nevada profile from the Restoration of Rights Project.
More than four years ago, Indiana’s then-Governor Mike Pence signed into law what was at the time perhaps the Nation’s most comprehensive and elaborate scheme for restoring rights and status after conviction. In the fall of 2014, as one of CCRC’s very first posts, Margaret Love published her interview with the legislator primarily responsible for its enactment, in which he shared details of his successful legislative strategy. Later posts on this site reported on judicial interpretation of the law. Since that time, a number of other states have enacted broad record-closing laws, including Louisiana, Missouri, Nevada, New York, and most recently Illinois.
We have been impressed by the evident enthusiasm for Indiana’s “expungement” law within the state, from the courts, the bar, the advocacy community, and even from prosecutors. So we thought it might be both interesting and useful to take a closer look at how the Indiana law has been interpreted and administered, how many people have taken advantage of it, and how effective it has been in facilitating opportunities for individuals with a criminal record, particularly in the workforce. We also wanted to see what light this might shed on what has brought to the forefront of reform so many politically-conservative states. Spoiler alert: the Chamber of Commerce was one of the strongest proponents of the law.
We expect to be able to post our account of the Indiana expungement law shortly after Labor Day. In the meantime, we thought it might be useful to reprint our 2014 interview with former Rep. Jud McMillan, which has been among our most viewed posts.
On Fiday Illinois governor Bruce Rauner signed into law what appears to be the broadest sealing law in the United States, covering almost all felonies and requiring a relatively short eligibility waiting period of three years. We expect to provide a more in-depth discussion of the law next week from practitioners working on the ground in the state, and will soon update the Illinois Restoration of Rights Project profile to reflect these important changes. In the meantime, we share the following from Cabrini Green Legal Aid, which was among the organizations that helped push the legislation through.
This afternoon, Governor Bruce Rauner signed into law six pieces of legislation that impact people with arrest and conviction records, including HB 2373 – the sealing expansion bill. This marks the LARGEST expansion of a sealing law in the United States and is a huge win in criminal justice reform. Effective immediately, this new law will provide thousands of people in Illinois the opportunity for criminal records relief by allowing them to petition the court to remove barriers in their lives as a result of their past criminal record. On behalf of our partners with the Restoring Rights and Opportunities Coalition of Illinois (RROCI),* Cabrini Green Legal Aid (CGLA) appreciates the support and involvement of so many of you who took action making phone calls, sending emails and traveling to Springfield.
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
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:
For the first time in its history, Montana has enacted a law authorizing its courts to limit public access to adult conviction records. On April 13, Governor Steve Bullock signed into law House Bill 168, giving district courts the power to “expunge” the records of misdemeanor convictions after completion of sentence, effective October 1 of this year. This makes Montana the 30th state since 2012 to enact some form of record-closing law, or to expand an existing one. The possibility of full destruction of the record for all misdemeanor convictions makes Montana’s one of the more ambitious collateral consequences reform measures of the past several years.
Late Sunday night, the New York Senate finally passed the beleaguered 2017-18 budget bill, which was signed by Governor Andrew Cuomo the following day. And while the passage of the bill was good news to New Yorkers eager to avoid a government shutdown, it should be even better news to a significant number of New Yorkers with criminal convictions. Tucked away inside the massive bill is an unheralded provision creating the state’s first general sealing authority for adult criminal convictions. Previously, record sealing was available only for non-conviction records and diversion and drug treatment dispositions. Now sealing will be available for misdemeanors and all but the most serious felony offenses.
The new law, which takes effect in October, gives New York one of the most expansive record-closing authorities in the Nation, rivaling such traditional sealing centers as Massachusetts, Washington, and Minnesota.
High drama on the final day of the West Virginia legislative session produced a last minute compromise between House and Senate over SB76, the WV Second Chance for Employment Act. If the governor signs the bill into law, individuals convicted of non-violent felonies will be able to return to court after 10 years to have their convictions reduced to misdemeanors. [NOTE: The bill was signed into law on April 25.]
For several years the WV legislature has been considering how to improve employment opportunities for people with non-violent convictions, but the House and Senate had different ideas about how to do it. The Senate approach would have expanded the state’s expungement law, which now applies only to youthful misdemeanors, while the House preferred reducing nonviolent felonies to misdemeanors. As the seconds ticked toward midnight on April 8, the Senate agreed to accept the “forgiving” approach favored by the House, creating a new category of “reduced misdemeanor” that need not be reported on employment applications but will be reflected in background investigations.