Preview of 50-state report on effective relief mechanisms
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.
Pardon is the patriarch of restoration mechanisms, and for most of our history constituted the only way that persons convicted of a felony could regain their civil rights and restore their status in society. Now, in most states, pardon is a pale shadow of its once robust self, largely because of the reluctance of elected officials to risk making a mistake. But in about a dozen states, where administrative arrangements shield the pardoning authority from the political process, pardon still thrives. In those states people who can demonstrate their rehabilitation have a very good chance of official forgiveness.
In the half dozen states where the constitutional pardon power is exercised by an independent board, pardoning is frequent and regular, and the pardon process transparent and accountable. Alabama, Connecticut, Georgia, South Carolina, and Idaho fall into this category, and in each of these states hundreds of pardons are issued each year to ordinary people convicted of garden variety crimes. States where the governor shares pardoning power with other officials or an appointed “gatekeeper” board also tend to make regular use of pardon: Delaware, Nebraska, and Pennsylvania are the stars of this category. Arkansas governors have traditionally pardoned generously, and California’s current governor Jerry Brown has revived the practice in that state, which had fallen on hard times since the 1980s.
States with generous and regular pardoning practices are indicated on the map above in gold, while states whose pardoning is regular but sparing are indicated in dark blue. The states colored pale blue on the map are ones in which pardoning in recent years has been infrequent or rare, or uneven depending upon the incumbent governor. In none of them at present may an ordinary person have a reasonable expectation of success.
An overview of pardoning policies and practices in each state is available in the 50-state chart on pardons from the Restoration of Rights Project. More detailed information about pardon procedures and frequency of grants is available in the state-by-state profiles.
Laws limiting public access to criminal records have proliferated in the past half dozen years, as legislatures are coming to terms with the downstream effects of three decades of mass conviction. But record-closing laws differ widely from state to state, in scope, eligibility criteria, and functional effect. Most frequently relief is styled as expungement or sealing, but these terms have no uniform meaning. In some states records may be closed to private parties only, in others public employers and licensing boards may also be denied access, and in still others records may no longer be available even to law enforcement. In many cases where state sealing law authorizes a person to deny having been convicted, the record may still be available to many authorized parties.1 In sum, record-closing relief can rarely promise an entirely clean slate, particularly where felony convictions are involved.
The map at the left organizes state record-closing laws into categories according to covered offenses, and does not take account of eligibility criteria such as prior record and waiting periods, or thoroughness of relief. Even so limited, making assignments to specific categories was an exercise that sometimes felt like pounding a square peg into a round hole. With that caveat, we summarize the data represented by the map categories.
Although closure of at least some adult criminal conviction records is authorized in all but nine states, scope ranges widely. At one extreme, Nevada’s recently expanded sealing law extends to all felonies but sex offenses, without regard to an applicant’s prior record; at the other, California authorizes closure only for underage first offender misdemeanors and minor marijuana offenses.2
Between these two extremes, there are as many differing approaches as there are states, with scope generally dependent on the seriousness of the offense, and eligibility generally dependent on prior record and the passage of time since completion of sentence. For example, in New York and Oregon, closure is available for most felonies but only if it is the person’s only felony offense. Indiana’s law extends “expungement” to all but the most serious violent offenses after graduated waiting periods, but “sealing” is available only for misdemeanors and less serious felonies.3 North Carolina and Kentucky authorize closure of most non-violent misdemeanors and low-level felonies, but only for those with no prior felony convictions. Missouri’s new sealing law, which takes effect at the beginning of next year, will permit closure of a significant number of felonies and misdemeanors, but only one felony and two misdemeanors will be eligible for closure in a person’s lifetime. Michigan’s recently expanded law is similar, as is Ohio’s.
In addition to first offender eligibility requirements imposed by some states, other states make record-closing a one-bite business: In Indiana and Illinois, for example, individuals may seek sealing relief for multiple prior eligible offenses, but may not return for further relief if they are again convicted.
Eligibility is not always categorical: Maryland limits closure to a long list of over 100 misdemeanors, while Minnesota limits felony sealing to a list of 50 offenses ranging from aggravated forgery to livestock theft. Eligibility criteria are sometimes curiously complex. For example, in Oregon closure is available for many non-violent misdemeanors and less serious felonies, but only if the individual has not been convicted in the previous 10 years (or ever, if the record for which closure is sought is a Class B felony) nor arrested within the previous three years.
Some states require lengthy eligibility waiting periods following release from prison, which seems inconsistent with the law’s avowed purpose to facilitate reentry. Louisiana‘s new expungement law is a case in point.
In some cases, the law specifies criteria to guide a court’s discretion (e.g., Minnesota and New Hampshire), in others the court’s discretion is unlimited (e.g., New Jersey and North Carolina), and in still others sealing is mandatory if statutory eligibility criteria are met (e.g., Indiana, Kentucky, and Louisiana). The effect of record-closing relief may also vary widely, ranging from limited restrictions (e.g., Kansas and Massachusetts) to complete destruction of the record (e.g., Pennsylvania and Connecticut).
More detailed information about record-closing laws in all 50 states is available in the Restoration of Rights Project state profiles and the RRP 50-state chart on “judicial expungement, sealing & set-aside.” Note that our full report will also discuss judicial relief that does not involve sealing or otherwise limiting access to the record, such as set-aside, certificates of rehabilitation, and reduction of felonies to misdemeanors. Because this type of “forgiving” relief is so much less common than the other kinds of relief dealt with in this preview, we did not feel that mapping its frequency would be a particularly illuminating exercise.
Deferred adjudication (or deferred sentencing) is a statutory judicial mechanism that allows individuals to avoid the collateral consequences of a criminal conviction at the front end of the process by giving them an opportunity to avoid conviction altogether. In most states, an individual must first enter a guilty plea, after which the court continues the case — without entering judgement — while the individual serves a period of probation or supervision. Upon successful completion of probation or supervision, the charges are dismissed without a judgement of conviction, and the record may be sealed or expunged. Deferred adjudication, which is generally managed by the court, is distinguished from pure diversion, which is generally controlled entirely by the prosecutor.
As the map at the right indicates, deferred adjudication is available in at least some cases in all but 13 states. In almost all of the states that make deferred adjudication available for a significant number of offenses, closure of the record of charges/arrest is available at the end of the process.
Eligibility for deferred adjudication is generally based on the type of offense and on an individual’s criminal history. This disposition is generally not available for particularly serious offenses since it requires admission of guilt and, in most states, a relatively brief period of probation or supervision. However, as with conviction record-closing mechanisms discussed in the preceding section, eligibility varies greatly among states.
Fifteen states (gold on the map), including New York, Texas, and Washington, make deferred adjudication available, with record closure, for most misdemeanors and significant number of felonies, even to individuals who have been previously convicted.4 Eight other states (dark blue), including Illinois, Michigan, and Maryland, make deferred adjudication with record closure available for a similarly broad class of offenses, but restrict eligibility to first felony offenders. The remaining states either restrict eligibility to misdemeanors and minor felonies (medium blue) or to a narrow subset of offenses (light blue) – usually minor drug offenses, as is the case in New Jersey, South Carolina, and Virginia.
Detailed information about deferred adjudication procedures and eligibility can be found in the Restoration of Rights Project state profiles and the RRP 50-state chart on judicial expungement, sealing & set-aside. Because diversion is rarely controlled by statute, it is not captured in the RRP.
States are increasingly (and commendably) concerned about the employment barriers facing people with a criminal record in an age of widespread reliance on criminal background checks. A majority of states now have at least some overarching laws limiting discrimination based on criminal record in either employment or licensure, or both. These laws are often difficult to enforce and usually include exemptions for certain types of employment or licenses, but they nonetheless require employers and licensing boards to make individualized determinations.
States with nondiscrimination laws typically prohibit consideration of conviction in employment and licensing decisions unless there is some type of relationship—e.g., “direct,” “substantial,” “reasonable,”—between the conviction and the duties and responsibilities of the employment or license sought. In the map at left, states in the “general regulation” category (medium blue) have laws like this for either employment or licensing or both. These laws typically have no enforcement mechanism, and would be hard to enforce even if they did. Wisconsin’s experience over the years proves that point.
Ten states and the District of Columbia (indicated on the map in gold) have more specific regulation of both public employment and licensing decisions that goes beyond the general standard in a number of ways. Another 16 states (dark blue) specifically regulate either employment or licensing, but not both. (A full description of these states’ laws may be found in the profiles of the Restoration of Rights Project.) Most commonly, these states give teeth to the general “relationship” standard by requiring employers and/or licensing authorities to consider specific enumerated factors before denying employment or refusing to grant a license on the basis of conviction. These factors usually include nature and seriousness of offense; relationship between the offense and ability and capacity to perform the duties required of the position sought; time elapsed since commission of the offense; age of applicant at the time of offense; and efforts at rehabilitation since the offense. In Hawaii, Minnesota, and New Mexico, a person determined to be rehabilitated may not be disqualified even if their conviction is found to be directly related to the employment or license sought. A number of states in these “specific regulation” categories require a licensing board to give written reasons for a rejection based on conviction.
A few states also go beyond the general relationship standard by prohibiting consideration of older convictions. In Washington, employers may only consider convictions that occurred within the last ten years (and only if the crime directly relates to the employment sought). In Maine, licensing agencies may only consider convictions within the last 3-10 years, depending on the license sought. In Massachusetts, misdemeanor convictions older than five years may not be considered in employment decisions. Hawaii requires a more stringent standard when considering convictions older than 10 years.
California belongs in a category unto itself because coverage of its fair employment and licensing statutes depends upon a prior judicial action: employers are prohibited only from considering any conviction that has been sealed or set aside, and licensing agencies are barred from adverse action based on a felony conviction only if a person has received a certificate of rehabilitation.
Eleven states have no general nondiscrimination laws that limit consideration of convictions in employment and licensing. Some of these states, however, have other laws designed to provide employment opportunities for people with criminal records. For example, Rhode Island, Nebraska, and Utah have “ban-the-box” laws designed to allow public employers to review an applicant’s qualifications before considering any criminal history.5 In addition, Alabama, Nebraska, West Virginia, and Rhode Island have license-specific regulations on consideration of convictions, though no overarching law.
For an overview of state laws regulating consideration of conviction in employment and licensing, see the 50-state chart from the Restoration of Rights Project. The state-by-state profiles in the RRP contain a more complete description of relevant laws and policies. A fine report by the National Employment Law Project should also be consulted for its detailed analysis of state licensing laws.
The map below reflects national patterns of felony disenfranchisement. While most people know that Vermont and Maine allow even prisoners to vote, many are unaware that in 19 additional states and the District of Columbia (dark blue on the map) felony offenders do not lose their right to vote at all unless sentenced to a prison term.
In 21 states (medium blue) the right to vote is restored automatically in most cases upon completion of a court-imposed sentence.6. In Alabama and Mississippi, only conviction of certain crimes results in disenfranchisement, and restoration is by pardon.7 There are only four states in which felony offenders lose the right to vote permanently unless restored by the governor: Florida, Iowa, Kentucky, and Virginia. The rules applicable in cases where restoration is not automatic can be found in the state-by-state profiles in the RRP.
We hope this preview of our forthcoming report will encourage practitioners and others to review the more detailed information in the state-by-state profiles from the Restoration of Rights Project, and as always we welcome suggestions for correction and elaboration. We expect the full report to be issued shortly after Labor Day.
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- In some states, limits imposed by a court may not extend to state records repositories or FBI records, whether through shortcomings in process or administrative oversight.
- California’s set-aside authority, which is colloquially referred to within the state as “expungement,” does not close access to the record, but limits the use to which a record may be put in the employment context. Arizona’s set-aside law is similar, as is Nebraska’s, but Washington and New Hampshire have recently authorized sealing after set-aside.
- In Indiana “expungement” limits the use to which convictions may be put, including whether they may be reported by background-checking companies, but only “sealing” limits public access to the record.
- However, because courts generally have broad discretion to grant or deny a request for deferred adjudication, prior criminal history may still pose a significant barrier to relief.
- A majority of states (29) and the District of Columbia now have ban-the-box laws that apply to public employment decisions, and in some cases to private employment as well. The National Employment Law Project keeps track of these laws in a report that is periodically updated. To the extent ban-the-box laws simply postpone consideration of criminal history until a later stage in the hiring process, they may not be a complete solution to the problem of employment discrimination. Ban-the-box laws are most effective where they are combined with substantive limitations on employer decisions that come into play at a later stage of the hiring process, as in most of the states colored gold or dark blue on the map.
- In Arizona and Nevada, restoration is automatic only for first offenders, and in Wyoming only for non-violent first offenders. All others must seek restoration from the court or administrative board. In addition, a number of states in this category have special rules for people convicted of voter fraud, requiring them to seek a pardon. See 50-state chart on loss and restoration of civil rights in Restoration of Rights Project.
- In Alabama restoration is relatively easy, especially for first offenders, but in Mississippi it is exceedingly rare.