“The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020”
In each of the past five years, CCRC has issued an end-of-year report on legislative efforts to reduce the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life.[i] These reports document the progress of what has become a full-fledged law reform movement to restore individuals’ rights and status following their navigation of the criminal law system.
Our 2020 report, linked here, shows a continuation of this legislative trend. While fewer states enacted fewer laws in 2020 than in the preceding two years, evidently because of the disruptions caused by the pandemic, the fact that there was still considerable progress is testament to a genuine and enduring public commitment to a reintegration agenda.
In 2020, 32 states, the District of Columbia, and the federal government enacted 106 legislative bills, approved 5 ballot initiatives, and issued 4 executive orders to restore rights and opportunities to people with a criminal record.
As in 2019, in 2020 a majority of the new laws involve what we have come to call “record relief,” measures that operate directly on the criminal record itself to reduce its negative effect. Record relief may limit public access through expungement or sealing, vacate or pardon the conviction, or avoid a conviction record through diversion or deferral of judgment. Other restoration laws regulate discretionary decisionmakers that control access to the workplace, public benefits, and education. Still others expand the franchise, and curb driver’s license suspensions based on unpaid court debt or grounds unrelated to driving offenses.
Also, again this year we publish a legislative Report Card recognizing the most (and least) productive state legislatures in 2020. Hands down, Michigan was the Reintegration Champion of 2020 with 26 new record reform laws, while Utah was runner-up, and seven other states were commended for their work. We will publish this Report Card separately tomorrow.
The body of the report itself provides topical discussions of last year’s reform measures, followed by an appendix documenting the laws by jurisdiction. More detailed analysis of each state’s laws is available in the CCRC Restoration of Rights Project. (A general roundup of criminal justice reforms in 2020 is also available at The Appeal’s Political Report.)
Looking ahead to 2021
The legal landscape at the end of 2020 shows states continuing to experiment with different types of relief to advance a reintegration agenda. The crisis of the pandemic may have slowed the legislative momentum seen in 2019, but it certainly did not bring it to a halt. Approaches to record reform continue to vary widely from state to state, with respect to the type of relief, the specifics of who is eligible for it, the mechanics of delivery, and its effect. Yet despite this variety it is clear that there has been no flagging in the lively national conversation about how best to limit unwarranted record-based discrimination.
In 2021, we predict a continuing expansion of record-clearing opportunities, both for conviction and non-conviction dispositions. We also expect additional efforts to automate record relief, which in turn will necessitate simplification of eligibility criteria and improved records management by courts and repositories, which should lead to better coordination of state and federal records systems and more reliable criminal background checks.
Elimination of bars to occupational licensing will also continue to be a top priority, given the bipartisan support for these regulatory reforms. So will expansion of diversionary and deferred dispositions, which we were pleased to see in the Business Roundtable’s “second chance agenda.”
We also hope for continued progress toward restored voting rights for—at the very least—all citizens living in the community, without regard to whether they have completed the terms of their sentence or paid off court-ordered financial obligations. Other issues that should be addressed by the states are the extension of fair employment and housing laws to cover discrimination based on criminal record, matters of particular importance during a pandemic and economic crisis.
Finally, we hope that Congress will work to develop and make available to people with federal convictions the same type of statutory restoration mechanisms that are available for people with state convictions, to supplement if not largely replace presidential pardons as a routine record relief mechanism. For example, the absence of any statutory or administrative mechanism for restoring firearms rights to people with a federal conviction has swelled pardon case backlogs at the Justice Department in the past 25 years, and this issue should be addressed by the incoming administration.
Congress could also usefully expand the existing federal deferred adjudication statute[ii] to cover any probation-eligible offense, since avoiding a conviction record is infinitely preferable to trying to neutralize one after the fact. Another area that Congress should reconsider is how federal statutes treat state non-conviction dispositions like diversion and deferred adjudication, including under the immigration laws, Fair Credit Reporting Act, Small Business Administration assistance, and criminal history provisions of the Federal Sentencing Guidelines.[iii]
In short, in 2021 we expect to see a continuation of recent years’ commitment to fair treatment of people with a criminal record, in legislatures, in state houses, and in courts. In this regard, three projects we intend to focus on this year are improving access to petition-based felony expungement, putting together a set of best practices for court-managed diversionary programs, and advising jurisdictions in developing a reasonably attainable legislative package of record reforms. We will develop an agenda of statutory and regulatory reforms for the federal system as well.
We will also look for opportunities to advocate for improvements in specific laws and record relief programs, and to participate as amicus curiae in promising litigation involving restoration of rights. Throughout, we will encourage a conversation about the vexing problem of unclear and inconsistent terminology that frustrates the development of a consistent national record relief policy. And, of course, we will continue to update the Restoration of Rights Project as laws are enacted, report periodically on significant new authorities, and sum up each year’s work at its conclusion.
The full report is available here.
[i] See CCRC annual reports on new legislation describing new restoration and record relief laws from 2013 through 2019, accessible at https://ccresourcecenter.org/resources-2/resources-reports-and-studies/: Pathways to Reintegration: Criminal Record Reforms in 2019 (2020); Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018 (2019); Second Chance Reforms in 2017: Roundup of new expungement and restoration Laws (2018); Four Years of Second Chance Reforms, 2013 – 2016: Restoration of Rights & Relief from Collateral Consequences (2017).
[ii] 18 U. S. C. § 3607, the so-called Federal First Offender Act.
[iii] See Federal laws that give effect to state relief mechanisms, Federal: Restoration of Rights & Record Relief, CCRC Restoration of Rights Project (Last updated Nov. 2, 2020), https://ccresourcecenter.org/state-restoration-profiles/federalrestoration-of-rights-pardon-expungement-sealing/#E_Federal_laws_that_give_effect_to_state_relief_mechanisms.
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- Legislative Report Card: “The Reintegration Agenda During Pandemic” - January 25, 2021
- “The Reintegration Agenda During Pandemic: Criminal Record Reforms in 2020” - January 14, 2021