Round-up of fair chance licensing reforms in 2024

Expanding employment opportunities in licensed occupations has been a priority for criminal record reformers in the past half dozen years. Happily, fair chance licensing reforms also appear less politically controversial than some others, with Midwestern states like Iowa and Indiana among the most progressive in the Nation in their treatment of justice-impacted license applicants in the licensing process.

In the first half of 2024, two more Midwestern states (South Dakota and Nebraska) enacted comprehensive changes to their licensing laws, Colorado produced a major reform in its licensing scheme, and Pennsylvania closed a gaping loophole in its licensing rules. These major reforms continue a nationwide trend that since 2017 has seen 44 states and the District of Columbia enact 86 separate laws* to limit state power to deny workplace opportunities to qualified individuals based on their criminal history.

The new 2024 laws are described briefly below, and additional details can be found in the relevant state profile from the Restoration of Rights Project. A few less comprehensive licensing reforms are also mentioned, as are bills not yet enacted that are being given serious consideration in half a dozen other states. Read more

“Positive Credentials That Limit Risk: A Report on Certificates of Relief”

We are pleased to present a new report dealing with “certificates of relief,” a form of relief from the collateral consequences of conviction that is less far-reaching than record clearing but potentially available to more people at an earlier point in time. These certificates, offered by a court or correctional agency, do not limit public access to a person’s record but are effective in reducing many record-related disadvantages in the workplace, including by providing employers and others with protection against the risk of being sued for negligence.

Positive Credentials That Limit Risk: A Report on Certificates of Relief makes the case that, at least as long as expungement and sealing remain unavailable to many people with a felony conviction record, or are available only after lengthy waiting periods, certificates of relief can provide an important addition to a state’s reentry scheme, and serve as a bridge to more thorough forms of record relief like expungement or pardon.

At the same time, in a promising development, certificates are beginning to be widely used by prison and parole agencies to encourage employment opportunities and otherwise facilitate reentry for those exiting prison or completing supervision.

Given the perceived limits of record clearing as a comprehensive reentry strategy, social science researchers have become interested in studying the effect of laws that aim to increase the positive information about individuals with a criminal record to counter the negative effect of the record itself. This report is intended to support these research efforts by describing the state of the law relating to certificates of relief in the 21 states that now offer them, and by suggesting directions of further research. A follow-up study will look at pardons.

We hope that this report will stimulate public interest in a type of relief that has been neglected in recent years as background screening has become widespread, and suggest ways to make it more widely appreciated and available. Our goal is to encourage a view of certificates and expungement as complementary parts of a single structured system of serially available criminal record relief.

As state certificate programs are referenced in the body of this report, readers may want to refer to the comparison charts and state-by-state summaries of the law included in the Appendices.  Certificates can be put into the broader context of a state’s other record relief mechanisms in the state profiles from CCRC’s Restoration of Rights Project.

 

SBA finalizes rule limiting consideration of criminal history in loan programs

Today, the Small Business Administration’s rule removing most criminal history restrictions in its federally guaranteed loan programs will be published in final form. This marks an important step in opening additional sources of business capital to justice-impacted entrepreneurs, and a boon to developing communities that thrive on the success of their small businesses.

The final rule makes few changes from the version published last fall for comment, which proposed removing most criminal history restrictions from the SBA’s business and disaster loan programs. The proposed rule is described in this post. The only substantive difference in the final rule is that business owners under indictment, along with those actually incarcerated, will remain ineligible for federally guaranteed loans.

The SBA noted that of the 19 comments received on the proposed rule, almost all were favorable. It also pointed out, as it did last fall, that there is no data indicating an enhanced risk of default from this population of entrepreneurs. At the same time, the SBA comments that even though it will no longer be conducting extensive criminal records checks on loan applicants, lenders may continue to do so.

In describing the background of the now-final rule, the SBA cites some eye-catching statistics iindicating that in recent years it has been giving lenders the green light on hundreds of loan applications from business owners with a felony record, while disapproving only a handful. These statistics, which are consistent with the SBA’s responses to FOIA requests with which CCRC is familiar, would seem to indicate that the SBA has available to it data that could shed light on actual risk through default rates.  We look forward to learning more about this data, which could give banks additional incentives to make loans to hustice-impacted entrepreneurs.

We have recently attended several programs sponsored by the Treasury Department and its agencies in which the issues raised by “fair chance lending” have been explored, and we expect to be continuing that conversation in weeks to come.

 

First fair chance licensing reforms of 2024

Expanding employment opportunities in licensed occupations has been a priority for criminal record reformers in the past half dozen years. Happily, fair chance licensing reforms also appear less politically controversial than some others, with Midwestern states like Iowa and Indiana among the most progressive in the Nation in their treatment of justice-impacted license applicants and licensees.

In the first three months of 2024, two more Midwestern states (South Dakota and Nebraska) enacted comprehensive changes to their licensing laws, while a third state (Pennsylvania) was poised to close a major loophole in its licensing scheme. These reforms continue a nationwide trend that since 2017 has seen 43 states and the District of Columbia enact 79 separate laws* to limit state power to deny opportunity to qualified individuals based on their criminal history. Significant legislation is under serious consideration in half a dozen additional states, so we expect this year to produce another bumper crop of fair chance licensing laws.

The new laws are described briefly below, and additional details can be found in the relevant state profile from the Restoration of Rights Project. Read more

Making the research case for hiring people with a conviction record

To persuade employers and policymakers to make fact-based decisions on hiring people who have been involved with the criminal justice system, they need the research facts presented in an accessible way. A new, short, sharable publication from Dr. Shawn Bushway at RAND explodes many of the myths about people with a conviction record that keep them from getting hired. Using plain language for hiring managers, it lays out the deep body of research that can help them make better decisions.

The research brief “Resetting the Record: The Facts on Hiring People With Criminal Histories” is designed to help overcome fear-based skepticism about hiring people with records. It includes citations to the underlying research for advocates who want to learn more.

“Advancing Second Chances: Clean Slate and Other Record Reforms in 2023”

At the beginning of each year since 2016, CCRC has issued a report on legislative enactments in the year just ended, describing and evaluating new laws aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. This year’s report, “Advancing Second Chances: Clean Slate and Other Record Reforms in 2023,” is now available.

Our annual legislative reports have documented the steady progress of what we characterized three years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. Between 2018 and 2022, more than 500 new record reforms were enacted by all but two states.  

Last year we reported that the legislative momentum had slowed somewhat, and this year it has slowed still further.  Only a handful of states enacted significant new record reforms in 2023, most in the form of new record-clearing schemes. We attribute this slowdown in part to how much has been accomplished in legislatures across the country in the past seven years. For example, more than half the states now allow people with a felony conviction to vote unless they are actually incarcerated, a number that has doubled since 2016.  In addition, most states have also taken steps to limit public access to some criminal records, and to ensure that employers and licensing agencies do not discriminate against people with a criminal history. Many have extended diversionary dispositions well beyond the class of first offenders who were uniquely eligible for non-conviction relief a decade ago. 

In 2023, 20 states, the District of Columbia, and the federal government enacted 36 separate pieces of legislation and took executive action to restore rights and opportunities to people with an arrest or conviction history.

As in past years, more than half of the new laws in 2023 involved individual record clearing. Because of the significant progress on this front in recent years, many of the laws enacted in 2022 represent measured changes to existing record relief schemes rather than radical new reforms. Nonetheless, three states enacted major new automatic “clean slate” record schemes while others expanded eligibility for petition-based sealing. A handful of states continued to remove marijuana convictions from public view, and still other states trimmed barriers to relief by automating the application process, reducing waiting periods, or eliminating obstacles represented by outstanding court debt (fines and fees).

In addition, many of the new laws limited consideration of criminal records in economic settings, regulating employment and occupational licensing, or removing barriers to restoring a driver’s license.  The U.S. Small Business Administration took important steps toward eliminating restrictions in federally guaranteed loans.

Our sixth annual legislative report card (Reintegration Awards for 2023, reprinted below) recognizes the most productive legislatures in 2023, and notes that there are now only two states that have enacted no record reforms since our reporting began in 2016. As in the past, the state legislatures that have enacted the most significant reforms span the political spectrum, from Minnesota and New York to Louisiana and South Carolina.

Detailed analysis of most of these new laws is available in the state profiles from CCRC’s Restoration of Rights Project, with a national overview in our 50-state comparison charts on various types of record relief.

Reintegration Awards for 2023

While half a dozen states enacted noteworthy laws in 2023, one state stands out for the quantity and quality of its legislation: Minnesota is our 2023 Reintegration Champion for its passage of three major pieces of record reform legislation, and several other less significant yet still noteworthy laws.

  • Minnesota – Enacted four separate laws, one of which was an omnibus criminal justice bill that accomplished several entirely independent major record reforms. The omnibus bill enacted a significant expansion of the state’s statutory expungement scheme and made most of it automatic. It also accomplished a complete overhaul of the state’s pardon process to facilitate more grants. As part of a bill that legalized marijuana, it authorized automatic expungement of misdemeanor convictions and created a new board to review nonviolent felony convictions for potential expungement. If more were necessary, it limited felony disenfranchisement to a period of actual incarceration, capped sentences for gross misdemeanors to avoid immigration consequences, extended ban-the-box to multimember agencies, and further eased the drug felony ban on SNAP and TANF benefits.

Another six states and the District of Columbia earned an Honorable Mention for their enactment of at least one significant new record reform:

  • District of Columbia: DC replaced one of the most complex and restrictive record-clearing schemes in the country with an expansive one that makes all but the most serious felonies eligible for relief, and includes some automatic relief. Its major shortcoming is that it is presently not scheduled to take effect for several more years.
  • Maryland: Cut in half what were among the longest waiting periods in the country for record-clearing, from 10 years after completion of sentence to five years for misdemeanors and from 15 years to 7 years for felonies. Maryland also provided that any unpaid court fees or costs will not bar expungement, and made expungement of non-conviction records automatic.
  • New York: The Clean Slate Act substantially expanded sealing eligibility from a rather stingy maximum of two convictions (only one of which could be a felony) to all misdemeanors and all but the most serious felonies, without numerical limits, making New York’s automatic record-clearing law the broadest in the Nation by far. It also reduced some waiting periods.
  • New Mexico – Limited felony disenfranchisement to actual incarceration and encouraged registration during reentry; limited suspension of driver’s license due to unpaid court debt and allowed discharge of court debt through community service; and, extended automatic expungement of marijuana convictions to juvenile adjudications.
  • Ohio – Extended eligibility for sealing to additional categories of felonies, shortened waiting periods, authorized prosecutor-initiated sealing, and created a new authority for expungement after an additional waiting period. The law also authorized courts to seal the record of pardoned cases on the same basis as non-conviction records.
  • South Carolina – Significantly limited the discretion of the state’s licensing boards to deny licensure to people with criminal records. The law added new procedural protections for applicants with a record and prohibited boards from using arbitrary character determinations, non-conviction records, and convictions that do not “directly relate” to the license at hand, as a basis to disqualify applicants.

Low marks go once again to two of the states that enacted no record reform laws at all in 2023. While there are many other states in this category this year, the legislatures of Alaska and Wisconsin have earned their place at the bottom of the heap for having been equally unproductive since 2018, a period in which almost every other state passed at least some law limiting access to and use of criminal records.  Wisconsin’s one saving grace is the extraordinary record of pardoning by its governor:  Barely into his second term,Tony Evers has pardoned more than 1100 individuals, 833 in the last two years alone.

Looking ahead

Looking ahead to 2024, we are cautiously optimistic that even in a presidential election year there will be a continuing expansion of eligibility for record clearing, and reduction of access barriers like lengthy waiting periods, outstanding court debt and application-related costs. We also predict efforts to improve records management to accommodate automation of record clearance. We look for further facilitation of occupational licensing, an area where bipartisan reforms have benefitted from helpful model laws, and for efforts to support entrepreneurship by people with a criminal history. We have come a long way just in the past five years, but there is still a long way to go.

Round-up of 2023 record-clearing laws

In a year that saw fewer criminal record reforms enacted than in the recent past, six states plus the District of Columbia took significant steps to expand their sealing and expungement laws.

Minnesota, New York, and the District of Columbia enacted the most ambitious record-clearing schemes, expanding eligibility for relief while also making some relief automatic for the first time. Louisiana continued to resist a full “clean slate” approach, but established an automated application system that should make it easier for individuals to seek expungement once the legislature reduces the sky-high statutory application fee. Like Louisiana, Maryland significantly improved its record relief system even without changing eligibility criteria, including by cutting waiting periods in half. Ohio and Pennsylvania expanded eligibility for petition-based sealing and reduced waiting periods, with Pennsylvania also extending automatic relief to some drug felonies.

These seven reforms are described in greater detail below, in approximate order of importance.  Further analysis of each state’s new law can be found in the relevant state profile from the Restoration of Rights Project.  All in all, considering the relatively few record reforms in other categories enacted in 2023, they make for a surprisingly productive year for record clearing.

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Many States Still Deny SNAP and TANF Benefits to People with a Drug Felony, According to a New Report

 

 

 

 

FOR IMMEDIATE RELEASE

December 6, 2023

Media Contact:
Nick Sibilla

nick@ccresourcecenter.org

David Hebert
dhebert@arnoldventures.org

Many States Still Deny SNAP and TANF Benefits to People with a Drug Felony, According to a New Report

Washington, D.C. — Almost half the states still exclude thousands of Americans with a drug felony in their past from receiving essential public benefits, according to a new nationwide study released today by the Collateral Consequences Resource Center (CCRC) with support from Arnold Ventures.

A provision in President Bill Clinton’s 1996 welfare reform law imposed a lifetime ban on eligibility for the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps) and Temporary Assistance for Needy Families (TANF) for anyone convicted of a drug felony. However, the federal law permitted states to opt out of one or both bans or to modify them with their own conditions.

CCRC’s report, “Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws,” offers a comprehensive and up-to-date picture of the differing ways states have responded to this federal ban, including relevant sections of statutory text to facilitate analysis and comparison.

Today, 25 states, plus the District of Columbia, have opted out of both bans on SNAP and TANF. But a surprising number of states remain committed in some fashion to this outdated artifact of the War on Drugs.

CCRC’s report focuses on those states that have modified the federal ban by enacting their own conditions on access to benefits – 18 states for TANF and 20 states for SNAP.  In many cases these so-called “modified opt-outs” require applicants for benefits to participate in drug treatment programs and frequent drug-testing independent of any conditions imposed by the sentencing court and regardless of individual need.

“Research has found that conditions on benefits that require compliance with state-imposed behavioral requirements are counterproductive, and hardly less punitive than an outright ban,” said Margaret Love, CCRC’s Executive Director and the report’s co-author.

Some states limit the kinds of drug convictions that qualify for benefits, so that lifetime bars remain in place for drug trafficking convictions no matter how dated. Other states require waiting periods before benefits begin that frequently run from release from prison, a time when a person’s need for support is greatest.

“There is strong evidence that bans and restrictive conditions on public benefits do not improve community safety and, to the contrary, may increase crime and harm school achievement and wellbeing outcomes for children of impacted people with records,” said Juliene James, vice president of criminal justice at Arnold Ventures. “This report is a great resource for advocates and lawmakers who are interested in reforming this ineffective practice.”

The report also found that in just in the last four years eight states have taken steps to move from full or modified bans to a full opt out for both types of benefits. Pennsylvania is the only state during this period that moved the other way, from full opt out back to modified bans for both SNAP and TANF that are among the toughest in the country. In Congress, Sens. Cory Booker and Raphael Warnock have introduced a bill to repeal the SNAP ban, but there has been no similar effort in Congress to jettison the ban on TANF.

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ABOUT CCRC

The Collateral Consequences Resource Center is a non-profit organization that researches laws and policies relating to restoration of rights and criminal record relief throughout the country, whose work makes it possible to see national patterns and emerging trends in efforts to mitigate the adverse impact of a criminal record. For more information visit https://ccresourcecenter.org/.   

ABOUT ARNOLD VENTURES

Arnold Ventures is a philanthropy dedicated to tackling some of the most pressing problems in the United States. Driven by a mission to maximize opportunity and minimize injustice, it invests in sustainable change, building it from the ground up based on research, deep thinking, and a strong foundation of evidence. Arnold Ventures is headquartered in Houston, with offices in Washington, D.C., and New York City. For more information about Arnold Ventures, visit www.arnoldventures.org. 

 

Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws

We are pleased to present a new report, “Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws.” This report offers a comprehensive and up-to-date picture of the differing ways states have responded to the 1996 federal ban on access to SNAP and TANF benefits for those with a felony drug conviction, either by opting out of the ban or by modifying it, and includes illustrative maps and relevant sections of statutory text to facilitate analysis and comparison.

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The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) imposed a lifetime ban on federal food assistance benefits (SNAP) and Temporary Assistance for Needy Families (TANF) for anyone with a drug felony conviction obtained after passage of the Act.1 PRWORA allowed states to opt out of the ban or to modify it, and over the years all but one state has opted out of the ban or modified it for at least one of the two benefit programs. That said, fully half the states remain committed in some fashion to this outdated artifact of the War on Drugs.

Over the years there have been numerous reports critical of the policy underpinnings of the categorical ban on public welfare benefits imposed by PRWORA, and researchers have generally concluded that the ban is counterproductive even in modified form, including in criminal justice terms.2 Indeed, a recent empirical study of modified versions of the SNAP/TANF bans concluded that by “introducing greater state scrutiny of recipients’ conformity to state-sanctioned behavioral norms,” modified bans are “not inherently less punitive” than full bans.3

We do not intend to dwell on the policy arguments against the PRWORA ban in this report. Rather, our purpose here is the more modest one of providing a detailed description of state laws that currently modify participation in the SNAP/TANF bans, for use by policymakers and advocates seeking further reforms.

Surprisingly, this has not been done in the more than 25 years since PRWORA’s enactment. Two recent private sector studies have identified the extent of state participation in one or both of the PRWORA bans, but their conclusions are not consistent with one another or, in all cases, with our own research.4 Notably, neither of these studies documents the specific features of modified bans, which can vary widely from state to state in scope and effect.

Significantly, no previous report on the SNAP/TANF bans has included statutory text that would permit analysis of the ways various states have modified them, and comparisons between and among states. Our report attempts to remedy this shortcoming.

We illustrate the national landscape of participation in the SNAP/TANF bans through a set of maps: one map shows the national landscape of participation in the PRWORA ban for all 50 states, and two additional maps show how states have modified the ban for each of the two benefit programs. A 30-page Appendix includes the text and an analysis of each state’s relevant law(s), providing additional detail about how access to benefits may be controlled differently even within the same general category of modification.

We hope that advocates in states that have not yet fully opted out of both the PRWORA bans will find this unique collection of research tools helpful as they work to complete this important law reform project. 

Preparation of “Access to SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws” was made possible by a generous grant from Arnold Ventures.

Citation: Margaret Love & Nick Sibilla, Access to SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws, Collateral Consequences Res. Ctr. (December 2023)

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