Category: Relief

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.  

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

Automated sealing nears enactment in Pennsylvania

[NOTE:  On June 30, HR 1419 was signed into law as Act 56.  Its provisions have been incorporated into the Pennsylvania profile of the Restoration of Rights Project.]

On Friday June 22, the Pennsylvania legislature took its final step toward passage of the so-called Clean Slate Act of 2018, delivering to Governor Wolf a bill (HR 1419) that he has already indicated he will sign.  When enacted, the Act will be the first state law providing for automated sealing of at least some conviction records, sparing individuals with qualifying records the trouble and expense of filing a formal petition for relief with a court.  Congratulations are due to the Community Legal Services of Philadelphia and the Center for American Progress for their sustained efforts over several years to enact this ground-breaking legislation, which will provide relief for “hundreds of thousands of Pennsylvanians with old and minor criminal convictions or who were arrested but not convicted.”  Their press release, linked here, notes that “[t]he bill enjoyed remarkably broad support, including from legislators and advocacy groups that rarely find common ground.”  

As soon as HR 1419 has been signed into law, we expect to incorporate into the Restoration of Rights Project a full analysis of its relevant provisions, which are fairly complex, and which become effective on different dates.  In the meantime, we note below what appear to be the bill’s most salient features.

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More states enact major “second chance” reforms

In recent weeks, three more states — Colorado, Louisiana and Vermont — have enacted laws intended to make it easier for people with a criminal record to find and keep employment, or otherwise to regain rights and status.

We are just now noting Wyoming’s enactment in March 2018 of general standards for professional and occupational licensure, which impose new restrictions on how criminal record may be taken into account by licensing agencies, and its amendment of more than a dozen specific licensing laws.

In the first five months of 2018 alone, a total of 21 states have enacted legislation to improve opportunities for people with a criminal record, with more similar laws evidently on the way.  States have enacted several different types of “second chance” laws this year, from expansion of voting rights to expansion of judicial authority to relieve collateral consequences at sentencing.

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Civil death lives!

The first and foremost collateral consequence in Colonial America was civil death; based on the grim fact that felonies were punished by execution, upon conviction, the law began to wrap up the convict’s affairs.  As the law developed, capital punishment ceased to be the default punishment, and civil death was seen as too harsh for a felon who might serve a probationary sentence instead of being executed or even going to prison at all.  The Rhode Island Supreme Court recently issued an opinion demonstrating that this ancient doctrine is not entirely obsolete.

In Gallup v. Adult Correctional Institutions, the court upheld dismissal of a complaint alleging that the state negligently allowed the plaintiff, a prisoner serving life, to be assaulted by another inmate.  The court pointed to the state’s civil death statute, which applies to prisoners serving life in an adult correctional institution. Such persons “shall, with respect to all rights of property, to the bond of matrimony and to all civil rights and relations of any nature whatsoever, be deemed to be dead in all respects, as if his or her natural death had taken place at the time of conviction.”  Of U.S. jurisdictions, only Rhode Island, New York, and the Virgin Islands maintain civil death, and New York’s statute has many exceptions.  There is, accordingly, not much modern law on the scope of civil death statutes.

One wonders whether the Rhode Island statute could really extend to the full scope of its language; could a lifer be denied, for example, freedom of religion and speech under the U.S. and/or Rhode Island constitutions?  Suggesting that the answer is “no” is the fact that the court granted the plaintiff leave to plead a 42 U.S.C. § 1983 action based on the same underlying facts; the court recognized that a state statute cannot eliminate federal rights.

That acknowledgement raises the hard question of the extent to which the federal Constitution protects the property, right to marry, and “civil rights and relations” of even a person serving a life sentence.

New expungement legislation: Maryland and Oklahoma

The trend toward expanding expungement and sealing laws is continuing.  In the last week of April, the governors of Maryland and Oklahoma signed bills enlarging eligibility criteria and reducing waiting periods, joining Florida and Utah with new record-sealing enactments in 2018.  The provisions of these two newest laws are described below.  Similar legislation is well along in Illinois, Pennsylvania, Tennessee and Vermont.  Vermont S 173, enrolled and awaiting the governor’s signature, is of particular interest since it makes expungement automatic in some categories without the requirement of a petition or filing fee (“unless either party objects in the interest of justice”).   We are tracking these pending bills and will add them to the Restoration of Rights Project if and when they are enacted.

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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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“The Juvenile Record Myth”

A new article in the Georgetown Law Journal exposes the fallacy that delinquency adjudications don’t follow juveniles into adulthood, and documents the alarming extent to which records of juvenile delinquency adjudications have become almost as accessible to the public as records of adult convictions.  In The Juvenile Record Myth, University of Tennessee Law Professor Joy Radice argues that state confidentiality and sealing provisions often provide far less protection than is commonly believed, and that juveniles frequently face continuing legal restrictions and stigma.   Almost all states permit some degree of public access, and some even publish juvenile records online.  Using recent literature on juvenile brain development and the recidivism research of criminologists, Radice presents new arguments for why delinquency records should not follow a juvenile into adulthood—and why the state’s obligation to help rehabilitate juveniles (an obligation typically recognized in a state’s juvenile code) should extend to restricting access to juvenile records.  The abstract of Professor Radice’s article is reprinted at the end of this post.

The state-by-state profiles from the Restoration of Rights Project analyze each state’s laws on access to records of juvenile adjudications.  These laws are summarized in the RRP’s 50-state-chart on expungement and sealing.

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Michigan set-asides found to increase wages and reduce recidivism

Preliminary results of an empirical study by two University of Michigan law professors show that setting aside an individual’s record of conviction is associated with “a significant increase in employment and average wages,” and with a low recidivism rate.  We know of only one other similar study, conducted by researchers at the University of California at Berkeley, and it came to essentially the same conclusion.  One relevant difference between the two studies is that in Michigan set-aside results in sealing of the record, while in California it does not.  Such studies are rare because of the difficulty of obtaining data, particularly where relief seals the record, but they are a very important way of advancing a reform agenda.  Thus, Professors Sonja Starr and J.J. Prescott propose that their research “provides important empirical guidance to the broader social policy debates associated with set-aside laws and accessibility of criminal records.”  In the hope that their work will encourage others to undertake similar research, we reprint the entire report below.

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