New report: Roundup of 2017 expungement and restoration laws

A new report from the Collateral Consequences Resource Center shows that states across the country are continuing to expand opportunities to avoid or mitigate the adverse effects of a criminal record.  If anything, the trend first documented last winter in Four Years of Second Chance Reforms, 2013 – 2016 has accelerated in 2017. 

Second Chance Reforms in 2017 identifies 23 states, blue and red, that in the past year broadened existing second chance laws or enacted entirely new ones, enhancing the prospects for successful reentry and reintegration for many thousands of Americans.  Using research from the Restoration of Rights Project, the report describes specific changes to the law in each state during the past year along with relevant citations, analyzing and comparing approaches taken by different states.

The most frequent type of reform involves limiting public access to criminal records: new sealing or expungement laws were enacted in several states that previously had none, eligibility requirements were relaxed for many existing record-sealing authorities, and new limits were imposed on access to non-conviction and juvenile records – all making it easier for more individuals to get relief at an earlier date. However, there is remarkably little consistency among state record-closing schemes, and most states extend relief only to less serious offenses after lengthy eligibility waiting periods. Moreover, eligibility criteria are frequently so complex as to defeat the sharpest legal minds. Other recurring reforms limit employer inquiries into criminal history at the application stage, and a few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing.

The fast pace of reform in the states reflects a dawning realization that the problem of mass conviction is at least as significant in economic and social terms as the problem of mass incarceration.  At the same time, the dizzying variety and complexity of the new provisions indicates that there is still no consensus about the most effective way to avoid or mitigate the adverse effects of a criminal record. Because there has been very little empirical research into the relative effectiveness of different forms of relief, it is not surprising that experimentation seems to be the order of the day.

These new laws and significant reform proposals of the past several years – notably the collateral consequences provisions of the Model Penal Code: Sentencing – will be discussed at a Roundtable conference in Washington, D.C. on January 12, 2018, sponsored by the American Law Institute and the National Conference of State Legislatures.

Each new reform is more fully explained in the state-by-state profiles in the Restoration of Rights Project.  The Executive Summary follows, and the full report is available here.    

• In 2017, 23 states enacted laws aimed at reducing barriers faced by people with criminal records in the workplace and elsewhere.  Some of these laws significantly expanded the availability of relief, while others involved relatively minor changes to existing laws.
• Most of the new laws involved either restrictions on public access to records or limits on employer inquiries into criminal history.   A few states enacted administratively enforceable standards for consideration of criminal history in employment and licensing.
• Important new record-sealing schemes were enacted in Illinois, Montana and New York, and nine other states either relaxed eligibility requirements or otherwise supplemented their existing sealing or expungement authorities to make relief more broadly available at an earlier date.  Of these nine, the most ambitious reforms were enacted by Nevada, which was one of several states that created a presumption in favor of relief for eligible persons.
• Seven states enacted substantial revisions to their juvenile expungement and sealing laws in 2017, some of which require courts to order relief automatically after a brief waiting period.
• Ten states enacted state-wide “ban-the-box” laws limiting inquiries into criminal record by public employers at preliminary stages of the hiring process.  California, Connecticut and Vermont extended these limits to private employers as well.
• In California and Nevada, restrictions on application-stage inquiries are part of a broader nondiscrimination scheme that prohibits consideration of certain kinds of criminal records, and establishes standards for individualized determinations in all other cases. Both states provide additional procedural protections.
• While reforms are moving at a fast pace, there is no consensus about the most effective way to avoid or mitigate the adverse effects of a criminal record, and very little relevant empirical research.