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.
Washington – Ban-the-box applicable to public and private employment
In March 13, 2018, Governor Inslee signed into law HR 1298, prohibiting public and private employers from inquiring about criminal record until after a determination that the person is otherwise qualified for the position. The new section of Title 49 (Labor Code) will not apply to employers required or permitted by law to conduct background checks, including financial institutions, to employers of vulnerable populations, or to non-employee volunteers.
The new ban-the-box provision supplements existing provisions of Washington law that permit employers and licensing agencies to consider a conviction record only if within the last 10 years and then only the crime “directly relates” to the employment or license sought. In addition, court-issued Certificates of Restoration of Opportunity (CROP) prohibit employers and licensing agencies from disqualifying individuals based on criminal conviction, and protect against negligent hiring liability.
Washington’s laws regulating consideration of conviction in employment and licensing are set forth in the profile from the Restoration of Rights Project.
Florida – Acquittals now eligible for immediate expungement
HB 1065, signed into law 3/27/18, expands eligibility for immediate court-ordered “expunction” (destruction) to cases where a person has been acquitted by a judge, or has had a verdict of not guilty rendered by a judge or jury, by-passing the requirement under existing law that such a record must first be sealed for 10 years. Under existing law, immediate expunction is available only if all charges are dismissed before trial. Other existing eligibility requirements remain in place: only those who have had no prior convictions or expungements are eligible, and those charged with violent or sex offenses are ineligible. These changes are effective October 1, 2018.
Florida’s scheme for sealing and expungement is set forth in the RRP profile.
Utah – Expansion of authority to expunge non-conviction records.
Under Utah law in effect prior to March 19, 2018, a person was able to apply for expungement of arrest or other non-conviction records only if no charges were filed or charges were dismissed with prejudice. SB 62 as enacted now authorizes courts to expunge records where the entire case is dismissed without prejudice or without condition as long as (1) the prosecutor consents in writing to the issuance of a certificate of eligibility OR (2) at least 180 days have passed since the date of dismissal. Under the new authority, a court is required to issue an order of expungement if the court finds by clear and convincing evidence that the prosecutor provided written consent and has not filed and does not intend to refile related charges. A person seeking expungement may reapply for a certificate of eligibility if the court denies the original petition based on the prosecutor’s intent to refile charges and charges are not refiled within 180 days of the date the court denies the original petition. Requires the prosecutor opposing expungement of a case dismissed without prejudice or without condition to have a good faith basis for the intention to refile the case. Clarifies that the Department of Public Safety is prohibited from counting pending or previous infractions, traffic offenses, or minor regulatory offenses when determining whether to grant a certificate of eligibility for expungement; that only fines and interest ordered by the court related to the conviction for which expungement is sought must be paid in full before expungement may be ordered; and, that fines or fees arising from pending or previous infractions, traffic offenses, or minor regulatory offenses are not counted when determining expungement eligibility.
Utah’s scheme for sealing and expungement is set forth in the RRP profile.
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