Category: Expungement/sealing

Bumper crop of new expungement laws expected in 2019

Earlier this year we reported that, in 2018, legislatures enacted an unprecedented number of new laws aimed at restoring rights and opportunities for people with a criminal record.  (Last year 32 states, D.C., and the U.S. Virgin Islands enacted 61 new laws to facilitate reentry and reintegration.)  The first quarter of 2019 has already produced a baker’s dozen of new restoration laws, some quite significant, indicating that this year is likely to be every bit as productive as last.  The 13 new laws enhance access to record-clearing relief, occupational licensing and employment, and executive clemency.  Also notable, if only for the sheer number of people who will benefit when the law goes into effect on July 1, is the Virginia legislature’s accession to Governor Ralph Northam’s request that it “eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees,” which will immediately reinstate driving privileges to more than 627,000 Virginians.

This year to date, state lawmakers have focused most of their attention on improving access to record-clearing: 8 of the 13 new laws expand eligibility for expungement and sealing and streamline applicable procedures.  The two most significant new laws were enacted in Western states.  Utah’s HB 431—signed by Governor Gary Herbert on March 28, 2019—provides for automated sealing relief for certain non-conviction, infraction, and misdemeanor conviction records.  When it takes effect on May 1, 2020, it will be the nation’s second “clean slate” law in operation (Pennsylvania’s first-in-the-Nation 2018 clean slate law will be implemented over a 12-month period beginning in June 2019).  Utah also clarified that employers may not ask about—and an applicant for employment need not disclose—expunged convictions (except under narrow exceptions for public employment).

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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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“High Time for Marijuana Expungement”

Any state that legalizes or decriminalizes marijuana should automatically include an expungement provision that clears the criminal record of individuals who engaged in activities deemed lawful under the new legalization or decriminalization laws.  This is the thesis of my new article, “High Time for Criminal Justice Reform: Marijuana Expungement Statutes in States with Legalized or Decriminalized Laws.”  At the federal level, Senator Cory Booker’s recently reintroduced Senate Bill 597, the “Marijuana Justice Act of 2019,” would do just that: remove marijuana from the Schedule of Controlled Substances and expunge records of marijuana possession and use convictions.  At the same time, some local governments are focusing on more efficient and expeditious expungement processes.  Earlier this year, the San Francisco District Attorney partnered with Code for America to identify and process eligible marijuana cases, including past convictions dating back to 1975.  The Denver District Attorney launched “Turn Over a New Leaf Program,” which helps individuals who committed now-repealed marijuana-related offenses vacate the records of their convictions.  While Colorado has a marijuana sealing statute (Col. Rev. Stat. § 24-72-710 allows sealing of misdemeanor marijuana possession or use offenses if an individual files a petition, pays a filing fee plus $65, and proves that the offense is no longer considered a crime), the New Leaf Program has attorneys from the Denver City Attorney’s Office guide individuals through the process and ask courts to vacate, dismiss, and seal convictions for marijuana offenses that are no longer illegal.

However—as I document in my article—of the ten states that have legalized, only four states have enacted marijuana-expungement legislation; of the thirteen states that have decriminalized marijuana, only three have enacted marijuana-expungement legislation.  My article includes charts compiling the status of expungement statutes in states that have legalized or decriminalized recreational marijuana and includes a model marijuana expungement statute.  My article draws on previous scholarship in this area by Professor Douglas Berman (Leveraging Marijuana Reform to Enhance Expungement Practices) and CCRC fellow David Schlussel (The Mellow Pot-Smoker: White Individualism in Marijuana Legalization Campaigns).

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Starr and Prescott publish groundbreaking empirical study of expungement

Professors Sonja B. Starr and J.J. Prescott of Michigan Law School have released the first-ever broad-based empirical study of the effects of a state law limiting public access to criminal records.   CCRC’s reports have noted the lack of empirical research to inform policies aimed at promoting reentry and reintegration for people with a criminal record—something this study of Michigan’s set-aside law begins to correct.  As its authors observe, “Despite the considerable legislative ferment and the excitement that surrounds ‘clean slate’ initiatives in the civil rights and criminal justice reform worlds, what has been missing from the debate is hard evidence about the effects and true potential of conviction expungement laws.”  A reason for this, as the authors also note, is that by definition criminal records that are the subject of sealing or expungement relief are often unavailable to study.  [Note:  In the summer of 2019, the study was accepted for publication in the Harvard Law Review.]

Using a data-sharing agreement with multiple Michigan state agencies, Starr and Prescott completed an extensive statewide analysis of expungement of criminal convictions in Michigan over the course of decades.  Their analysis reveals three key findings:

  • Uptake:  Just 6.5% of those eligible for expungement successfully complete Michigan’s application process within five years of eligibility.
  • Recidivism:  Expungement recipients “have extremely low subsequent crime rates, comparing favorably to the general population—a finding that defuses a common public-safety objection to expungement laws.”
  • Employment:  Expungement receipts see a “sharp upturn” in wage and employment: wages go up on average by 25% within two years, driven mostly by “unemployed people finding jobs and very minimally employed people finding steadier or higher-paying work.”

These conclusions just about cover the waterfront of findings we would most like to see about laws that limit public access to criminal records.  Looking at them in reverse order, Starr and Prescott find that expungement is valuable in economic terms for those who receive this relief, and improvements in their economic status will in turn benefit their families and communities.

They also find that those who benefit from expungement present no particular threat to public safety, whether because recipients of expungement are self-selected criminal justice success, because the courts that grant them relief take their likelihood of reoffending into account, or because expungement itself does not tend to increase recidivism risk (and in fact may reduce it).

Finally, and perhaps most disturbingly, few of the people who are intended beneficiaries of Michigan’s expungement law actually obtain this relief, either because they don’t apply for it or because their applications for expungement are not approved.  The authors find six reasons that account for this “uptake gap” (which is greater for people with misdemeanors than felonies):

  • lack of information about the availability of relief;
  • administrative hassle and time constraints;
  • cost (including court filing fees, lost wages, and transportation costs);
  • distrust and fear of the criminal justice system;
  • lack of access to counsel; and
  • insufficient motivation to remove conviction.

In addition, while not a part of the “uptake gap” strictly speaking, the authors note that “every advocate that we spoke to also emphasized the stringency of the eligibility requirements, which in their view exclude a great many worthy candidates.”  (A person must have no more than one felony conviction and no more than two misdemeanor convictions in order to be eligible for “set-aside” under what is commonly known as the “general expungement statute.”  In contrast to most states, however, most felony convictions are eligible for set-aside.  A Michigan set-aside limits public access to the record, but it remains available to law enforcement and some other government agencies.  See the description of Michigan’s law providing for set-aside in the Michigan profile from the Restoration of Rights Project.)  The authors remark about the eligibility requirements for set-aside in Michigan:

All of these restrictions mean that the low uptake rate we estimated is even starker when viewed in context: it is a very small fraction of a very small fraction. For the past decade about two thousand set asides per year have been granted in Michigan. Meanwhile, each year the Michigan state courts add about 300,000 new criminal convictions. On balance, the population of people living with criminal records is continuing to grow quickly; the set-aside law is like a bucket removing water from an ever-rising ocean.

We note that Michigan’s eligibility requirements are actually more inclusive than those in most states.  See this 50-state chart.

We expect that the findings of this remarkable new study will prove uniquely valuable to advocates and policy-makers considering changes to laws authorizing relief from collateral consequences in the days and years ahead.

Living with a marijuana conviction after legalization (updated)

Jacob Sullum, senior editor at Reason, has written a fabulous article about expungement of marijuana convictions in places that have since legalized marijuana: so far 10 states, DC, and the Northern Mariana Islands have legalized.  The piece is now available to the public at this link: http://reason.com/archives/2019/03/01/the-lingering-stench-of-mariju

Sullum tells the stories of eleven individuals, from the jurisdictions that have legalized, who describe how their marijuana convictions have impacted their lives before and after legalization.  He documents the lingering legal and social sanctions that burden people long after they have served their sentences, sanctions that “seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use.”

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UK Supreme Court issues major ruling on employer access to criminal records

On January 30, 2019, the UK Supreme Court issued a significant decision largely upholding the UK’s categorical rules for when criminal records are disclosed to employers, but declaring two key rules incompatible with privacy rights under the European Convention on Human Rights.  The first rule in question, the so-called multiple conviction rule, automatically requires people who have more than one conviction to disclose all prior convictions on “standard” and “enhanced” records checks.  (As explained below, the UK disclosure scheme provides for three levels of checks, depending on the nature of the employment involved, the two specified being the more in-depth.)  The second rule requires that certain youth reprimands and warnings—administered without an admission or determination of criminal charges—be disclosed on both types of checks.  CCRC contributor Alessandro Corda posted about this case this past July when it was being considered by the court and Christopher Stacey, co-director of a charity organization that intervened in the case, who attended the three days of hearings, provided guest commentary.

The decision has significant implications for the employability of people with criminal records in the UK and could offer policy lessons for the US.  It is therefore worth discussing in some detail.

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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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Marijuana decriminalization drives expungement reform

The national trend toward expanding opportunities for restoration of rights after conviction has continued to accelerate throughout 2018.  By our count, so far this year alone 31 states have broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  On November 6, Florida could take the most politically momentous step of the year if its voters approve a ballot initiative amending the state constitution to re-enfranchise more than a million and a half individuals who are now permanently barred from voting because of a past felony conviction.  We expect to publish a full report on these 2018 reforms, similar to the report we published last winter on 2017 laws, by the end of the year.  Expect it to feature the broad occupational licensing reforms enacted in more than a dozen states since last spring.

Another important series of second chance reforms this year has accompanied marijuana decriminalization.  These reforms are documented and analyzed by Professor Douglas Berman in an important new paper titled “Leveraging Marijuana Reform to Enhance Expungement Practices.”  Published in a symposium issue of the Federal Sentencing Reporter devoted to various aspects of collateral consequences and criminal records management, Professor Berman’s paper showcases issues that will becomes increasingly important as the War on Drugs winds down.  Professor Berman is the executive director of Ohio State University’s Drug Enforcement and Policy Center, whose official launch is November 2.  We expect that the Center under his management will give restoration of rights an important place on its policy agenda.

The abstract of Professor Berman’s article follows:  Read more

Landmark criminal record disclosure case in the UK Supreme Court

Court litigation and policy debate revolving around the issue of criminal record disclosure are not unique to the United States. Especially in the United Kingdom, the past few years have witnessed important court decisions on the legal framework in place regulating access to criminal history information and the amount of information that can be obtained by third parties. For people with criminal records in the United Kingdom, last month was pretty significant.  This is why I am very happy to post on the CCRC blog a commentary on recent litigation before the UK Supreme Court authored by Christopher Stacey, co-director of Unlock, an independent charity organization that provides a voice and support for people with convictions who are facing stigma and obstacles because of their criminal record. Christopher last month led Unlock’s intervention before the UK Supreme Court. They put forward strong arguments on behalf of those who are unfairly affected by the criminal records disclosure regime.

Before discussing the case, let me briefly summarize the framework of the disclosure regime currently in place in the UK.  This regime and the ongoing court litigation should be particularly interesting to advocates and lawmakers in the U.S. who are working to reform their own regimes.

Following the adoption of the Rehabilitation of Offenders Act in 1974, adult and juvenile convictions automatically become “spent” after the passage of a certain amount of “rehabilitation” time following completion of the sentence if the punishment imposed in court did not exceed a certain threshold provided for by the law (currently, a custodial sentence of over four years). Convictions triggering a custodial sentence of more than four years can never become spent.  Required periods of post-sentence rehabilitation before a conviction is considered spent currently range from one to seven years for adult convictions, and from six months to three and a half years for juvenile offenses.  There is no rehabilitation period before criminal records not resulting in conviction are considered spent.

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SC legislature overrides veto to broaden expungement laws

On June 27, the South Carolina legislature took the extraordinary step of overriding Governor McMaster’s veto of a bill that expanded eligibility for expungement in several significant (if relatively modest) ways.  House Bill 3209 is now law, and will take effect in six months.  This is one of the very few times in recent years that a state legislature has overridden a governor’s veto of a bill intended to improve opportunities for people with a criminal record.

The new law, which will go into effect after six months, extends expungement eligibility to first offense simple drug possession (after three years) or possession with intent to distribute (after twenty years), and to conviction of repealed offenses.  It also repeals first offender limits on expungement eligibility for convictions in magistrates court (summary offenses) and in juvenile proceedings, and applies all of these authorities retroactively.  HR 3209 also restructures fee provisions and authorizes private donations to defray costs for those who cannot afford to pay the fee.  Finally, HR 3209 authorizes expungement for anyone convicted prior to passage of the Youthful Offender Act of 2010 who could have been eligible for sentencing as a first offender under that provision.  The YOA provides that individuals between the ages of 17 and 25 who are convicted of certain non-violent misdemeanors and minor felonies may be sentenced to probation and treatment, so the extension of that law’s relief to pre-2010 convictions is quite significant.  

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