Reintegration reform returns to pre-pandemic levels in first half of 2021
This year is proving to be a landmark one for legislation restoring rights and opportunities to people with a criminal record, extending the remarkable era of “reintegration reform” that began around 2013. Just in the past six months, 30 states and the District of Columbia have enacted an extraordinary 101 new laws to mitigate collateral consequences. Six more bills await a governor’s signature. It appears that legislative momentum in support of facilitating reintegration has returned to the pre-pandemic pace of 2019.
Overall, the past 30 months have produced an astonishing total of 361 laws aimed at neutralizing the adverse effect of a criminal record, plus more than a dozen additional executive actions and ballot initiatives.
Much of this year’s new legislation is quite significant. For example, of the 25 states enacting new record relief laws, three states authorized conviction record clearance for the very first time: Alabama, Arizona, and Virginia joined the 38 other states that now allow sealing or expungement of at least some misdemeanor and felony convictions. Arizona also became the thirteenth state to authorize its courts to issue judicial certificates of relief.
Four states (New Jersey, New Mexico, New York, and Virginia) adopted expansive authorities for the automatic expungement of marijuana offenses as part of legalization. Five states (Colorado, Connecticut, Maryland, Virginia, and Vermont) enacted automatic relief provisions applicable more generally to certain non-conviction and/or conviction records, bringing the total number of states that authorize automatic clearing of at least some conviction records to 12 and of non-conviction records to 18. Additional automatic relief measures await the governor’s signature in Delaware and Illinois. Dozens of other record reforms enacted since January 2021 reduce eligibility barriers and waiting periods for sealing and expungement, streamline procedures, and expand the effect of this relief.
Steady progress continued in regulating consideration of criminal records in the workplace. The District of Columbia enacted one of the most ambitious and comprehensive occupational licensing reforms in the country, and ten other states extended existing limits on how licensing boards consider criminal records, including in health care and in the legalized cannabis industry.
Illinois became the fifth state to prohibit discrimination based on criminal record as part of its general fair employment law, and a recent trend of limiting use of records in housing, education, and driver’s licenses continued. Most notably, New Jersey adopted the most rigorous state legislation to date limiting criminal history checks in housing decisions—a policy that only three states had previously adopted.
The dismantling of felony disenfranchisement laws also proceeded apace, with Connecticut, New York, and Washington joining the 16 other states that allow voting except during a period of actual incarceration for a felony convictions. (Two additional states and the District of Columbia do not disenfranchise at all based on conviction.) Other ameliorative actions included repealing prohibitions on access to public benefits, authorizing reentry services for people leaving custody, and requiring sentencing courts to provide notice to defendants about collateral consequences and the availability of record relief.
Meanwhile, in stark contrast to this prolific state lawmaking, Congress has done little to address the challenges of reintegration for more than a decade, beyond reauthorizing funding for reentry programs (2018), limiting background checks in federal employment and contracting (2019), and repealing certain barriers to public benefits (2020). The only record relief available to those with federal convictions remains the largely illusory presidential pardon. Our federal agenda recommends specific measures that Congress could adopt to reduce barriers to opportunity. In months to come we intend to focus attention on reducing barriers to financial support for small businesses owned or operated by justice-involved individuals.
The Biden Administration has taken a few tentative steps to address collateral consequences, notably including an executive order requiring the Attorney General to ensure voting access and education for people in federal custody or supervision, and a further rollback of criminal history restrictions in the Paycheck Protection Program. Recently, the administration included support for reentry programs, housing access, and hiring programs as part of its strategy to combat gun violence.
While the momentum for reintegration reform has returned to pre-pandemic levels, the health and economic consequences of the COVID-19 crisis—along with the racial inequalities in the “negative credentialing” of criminal records—call for even greater urgency in this work in the remaining months of 2021 and beyond.
Below, we describe some of the more significant new laws by category, covering restoration of voting and other civil rights; record relief; limits on use of criminal records in civil contexts; and other softening of harsh collateral consequences. Further details about the new laws are available in the state profiles and summary charts of the Restoration of Rights Project.
1. Restoration of civil and firearms rights
In the first half of 2021, three states enacted laws authorizing automatic restoration of the vote to anyone not actually incarcerated for a felony, and a fourth state did so through executive order, while beginning the process of amending its constitution to accomplish this result.
New York and Connecticut repealed provisions disenfranchising anyone on parole, while Washington restored the vote to anyone no longer confined for a felony. In March 2021, Virginia Governor Ralph Northam issued an executive order restoring the vote to 69,000 people who had been released from prison but had not yet completed their supervision, culminating a process of automatic expansion of the franchise by gubernatorial executive order that began in 2013. The Virginia legislature approved a proposal to amend the state constitution that, if approved a second time by the next legislature and by a referendum, will disenfranchise only people who are sentenced to a prison term for a felony and will restore their right to vote upon release from prison.
Three other states clarified the timing of restoration of voting rights or facilitated their exercise. Louisiana clarified its law to ensure that a return to jail for violating parole will not extend the 5-year period after which a person released on parole may vote. Maryland passed a law to ensure that individuals detained in Baltimore’s jail may vote, and Illinois passed a law to facilitate registration by those exiting prison.
At the federal level, President Biden issued an Executive Order titled “Promoting Access to Voting” whose Section 9 (“Ensuring Access to Voter Registration for Eligible Individuals in Federal Custody”) requires the Attorney General to take four important actions to ensure access, for people in federal custody or under federal supervision, to voter registration and educational materials on restoration of voting rights.
Illinois recognized its governor’s authority to restore eligibility for municipal office to a person with a federal conviction, by granting a certificate of restoration of rights.
Kansas expanded the effect of expungement to restore firearms rights.
2. Record relief (i.e. expungement, sealing, set-aside)
Three states for the first time enacted general statutes for the expungement or sealing of certain misdemeanor and felony convictions: Alabama, Arizona, and Virginia. Alabama enacted the so-called REDEEMER Act, authorizing petition-based expungement of non-violent misdemeanors and violations, and pardoned felonies. Arizona authorized its courts to seal most types of conviction records upon petition. Arizona also granted its courts authority to issue a Certificate of Second Chance to individuals whose conviction has been set aside.
Virginia approved two laws creating one of the more progressive record relief systems in the country, with a mixture of automatic and petition-based sealing, both for convictions generally and marijuana offenses specifically. Notably, court debt will not be a barrier to record clearance, and the legislation includes a system of court-appointed counsel for petitions. Private companies that buy and sell criminal records will be required to routinely delete sealed records, with a private right of action if companies refuse to do so. However, Virginia’s laws will not go into effect until 2025.
In addition to Virginia’s marijuana sealing law, three states enacted automatic expungement or sealing for a wide range of felony and misdemeanor marijuana offenses: New York, New Jersey, and New Mexico (we described these laws in detail, accompanied by an infographic here). Further, Colorado, Connecticut, and Montana expanded petition-based relief for marijuana-related records (with limited automatic relief in Connecticut authorized as well for certain possession convictions).
Connecticut also enacted a general “clean slate law” which, effective 2023, requires the automatic “erasure” of records of most misdemeanor convictions and certain felony convictions entered after January 1, 2000, after a specified period following the person’s most recent conviction. In addition, Colorado approved the sealing of multiple convictions and pardoned convictions, directed the automatic sealing of uncharged arrests, and authorized its public defenders to apply for public and private funds to represent indigent individuals in sealing proceedings.
Among the dozens of other record reforms enacted so far this year, the following merit mention. Maryland authorized automatic expungement of non-convictions beginning in October 2021 (non-conviction records before then are eligible for expungement by petition and subject to non-disclosure in the Maryland Judiciary Case Search), a study of partial expungement, and expungement for an additional conviction (fourth-degree burglary). New Mexico added to its significant 2019 expungement scheme by enacting most of the provisions of the Uniform Collateral Consequences of Conviction Act (UCCCA), giving courts authority to relieve mandatory collateral consequences as early as sentencing (New York, Vermont, and New Jersey are the only other states with such authority). This same law not only offered this relief to those with convictions from other jurisdictions, it also gave effect to relief granted by other jurisdictions (the only state other than Vermont that has done this). Tennessee expanded expungement eligibility to include grade C and D felonies, made the filing fee discretionary with the court clerk, and required the court to give reasons for denying expungement. Tennessee also required judges to notify, if practicable, a defendant at sentencing if the conviction is for an expungable offense and the time period after which a petition may be filed; and required the administrative office of the courts to provide with supporting documentation. South Dakota reduced the waiting period for automatic sealing of minor misdemeanors and petty offenses from ten to five years. Vermont enacted automatic sealing of certain motor vehicle violations traffic violations and called for further study of clean slate automation. Washington rewrote its laws applicable to victims of sex trafficking and related sexual abuses, authorizing vacatur for both B and C felonies and misdemeanors, and providing that a petition may be filed either by the victim or by the prosecutor.
Three states also enrolled significant bills that await a governor’s signature. Delaware passed three pieces of Clean Slate legislation, automating sealing for most of the offenses that had been authorized for petition-based mandatory and discretionary sealing in 2019. The bill is to be effective in 2021, but automatic sealing is to begin in August 2024. Oregon passed substantial improvements to eligibility criteria and procedural barriers under its petition-based expungement law, described here, reducing waiting periods and modifying disqualifying priors. The Illinois legislature sent to the governor a bill providing for the automatic expungement of felony prostitution offenses.
It bears remarking that many of the automatic relief schemes enacted or enrolled to date in 2021, like those enacted in previous years, will take some time to implement. While Connecticut’s new law (applicable to cases decided after 1999) will be effective January 1, 2023, Virginia’s automated authority is not expected to come on-line until 2025, and Delaware’s clean slate bill has a three-year development period. Automated authorities enacted in previous years are also still being developed, with California’s 2019 clean slate authority now projected for August 2023, and Michigan’s 2019 law projected “no earlier than” 2023. While New Jersey has not specified a date when its automatic system will be operational, in the interim it is allowing newly eligible individuals to petition the court for relief. An April 2021 letter from 21 Attorneys General requested that Congress “appropriate necessary funds for technology and process improvements” to support the development of automatic record clearing systems.
3. Limits on use of criminal records in civil contexts
Illinois became the fifth state to cover criminal record discrimination in its fair employment law. The law, described here, makes it a civil rights violation, unless otherwise authorized by law, for any employer, employment agency or labor organization to use a conviction record as a basis to refuse to hire or to take any other adverse action unless: 1) there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held, or 2) the granting or continuation of the employment would involve a public safety risk. Various procedural requirements and enforcement mechanisms apply. Under a 2020 law, employers may not consider records of an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.
In addition, Louisiana prohibited prohibits consideration of non-conviction records in employment decisions and required employers to make an individual assessment of whether an applicant’s criminal record has “a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position,” considering certain specified factor relating to the criminal case and the applicant’s subsequent history. Maryland enacted a ban-the-box rule applicable to private employers with 15 or more employees, after the legislature overrode Governor Hogan’s veto. New Mexico amended its 1974 law prohibiting certain discrimination in public employment and occupational licensure to bar consideration of convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.”
The District of Columbia’s ambitious and comprehensive licensing reform, described here, imposed a detailed regulatory scheme on consideration of criminal record for many occupational licenses, including health-related professions. No one may be denied a license based on conviction of a crime unless it is “directly related” to the occupation. Various procedural protections apply and a pre-application petition process is authorized individuals to determine eligibility based on a criminal conviction, which must be completed within 90 days.
In addition, seven states made significant reforms to their occupational licensing schemes:
- Two laws enacted by Arizona, the fourth and fifth licensing laws in three years, heightened the standard for disqualification based on a criminal record and barred licensing agencies from considering the following: non-convictions; sealed, expunged, and pardoned records; juvenile records; non-violent misdemeanors; and a range of drug offenses.
- Georgia will require a finding that an offense is “directly related” to a profession before a license may be denied based on supervision status, with exceptions for certain serious offenses.
- New Jersey revised its 1970’s-era law governing licensure by dozens of state boards, from conviction “of a crime of involving moral turpitude or relating adversely” to the regulated occupation, to “a direct or substantial relationship to the activity regulated by the board or is of a nature such that certification, registration or licensure of the person would be inconsistent with the public’s health, safety, or welfare . . . .”
- New Mexico also modified its decades-old licensing law to preclude consideration of convictions that have been sealed, dismissed, expunged or pardoned; juvenile adjudications; or convictions for a crime that “is not recent enough and sufficiently job-related to be predictive of performance in the position sought, given the position’s duties and responsibilities.”
- Ohio’s existing law required licensing agencies to list crimes that mandate disqualification because they are “directly related” to the licensed occupation. As further amended, boards must list convictions that “may” be disqualifying, precluding denial based on any other records. Vague terms like “moral character” and “moral turpitude” may not be used. Even if a conviction is on the list of those “directly related,” the board must still consider certain standards linked to an applicant’s overall record that are linked to public safety and may not deny after a period of either five or 10 years depending on the offense. In the event of denial, a board must provide procedural protections.
- Tennessee amended its 2018 Fresh Start Act to provide specific criteria governing a licensing board in determining the fitness of a person for licensure based on their criminal record, including the relationship of the crime to the ability performs the duties of the occupation, and evidence of the person’s rehabilitation. (The Act already included a “direct relationship” standard.) The 2021 amendments also deleted a rebuttable presumption that certain felony convictions relate to the fitness of the applicant or licensee.
- Washington provided that each licensing agency must allow potential applicants for a license to receive a “preliminary determination” as to whether their criminal record will be disqualifying. No fee may be charged, a determination must be made within two months, and a denial must be accompanied by a statement of reasons. Another law gave new protections to employees of long-term care facilities, setting forth time limits beyond which certain theft and assault convictions will not be disqualifying. A third law expanded access to licenses in the legalized cannabis industry for individuals convicted of non-violent cannabis felonies and misdemeanors.
New Jersey’s Fair Chance in Housing Act is most rigorous state legislation to date limiting consideration of criminal records in housing decisions. The law, described here, prohibits consideration of any criminal record at the initial rental application stage, allows only certain records to be considered after a conditional offer is made, and imposes substantive and procedural standards for withdrawal of a conditional offer. In addition, Illinois required local housing authorities to collect data on number of applications for federally assisted housing by people with a criminal record, how many applications denied, and how many overturned after a records assessment hearing. Louisiana required landlords to give notice to prospective tenants if they will consider criminal record information.
Two states prohibited the use of criminal records in admissions decisions for higher education, with certain exceptions: Oregon (most private and public institutions) and Virginia (most public institutions; admission may be withdrawn if the institution determines the record poses a threat to the community). Washington created “prison to postsecondary education pathways.”
Seven states adopted laws aimed at limiting grounds for suspension of a driver’s licenses on the basis of unpaid court debt and/or offenses unrelated to dangerous driving: Alabama, Arizona, Colorado, Nevada, Oklahoma, Utah, and Washington. Mississippi adopted a law to provide reentering citizens with a six-month provisional driver’s license to support reintegration.
Washington enacted a law to facilitate successful jail reentry by not suspending Medicaid for individuals incarcerated for less than 30 days.
Nevada and Kentucky opted out of the federal ban on access to the Supplemental Nutrition Assistance Program and Temporary Assistance for Needy Families program for those convicted of a drug-related felony. Illinois enrolled a bill that would opt the state out of this ban with respect the Temporary Assistance for Needy Families program.
Kentucky enacted a bill providing that when a person is released from prison, they shall be issued documentation of their criminal and institutional history, they may be issued a driver’s license or personal identification card, and they shall be issued a certificate of employability if they have satisfied certain criteria. Oklahoma provided that persons being released from prison shall be issued an identification card or driver’s license. Washington revamped and expanded its reentry services program.
As part of a federal strategy to address gun violence, the Biden Administration announced steps to support reentry, including grants to help formerly incarcerated individuals find employment, leveraging tax credits to incentivize hiring, expanded federal hiring, the issuance of regulations to implement the 2019 federal “ban the box” legislation, hiring a Second Chance Act fellow, and taking actions through HUD to expand access to housing.
Other collateral consequences reforms
As discussed above, New Mexico enacted most of the provisions of the Uniform Collateral Consequences of Conviction Act (UCCCA), including giving courts authority to relieve mandatory collateral consequences as early as sentencing.
Louisiana requested that the Louisiana State Law Institute study collateral consequences affecting employment and licensure and noted, among other things, the need for short-term relief prior to expungement eligibility—such as a judicial certificate of relief or other mechanism to mitigate structural barriers. Louisiana required the court to notify defendants prior to entry of a felony guilty plea that they may be subject to collateral consequences including potential deportation, loss of voting rights, and loss of firearms rights; it also authorized the court or defense counsel to notify defendants of additional collateral consequences regarding higher education, housing, employment, licensing, and other categories.
Montana provided for automatic removal from the “violent offender registry” after 10 years, unless convicted during that period of failure to register or of a felony.
- Comments on SBA proposal to eliminate criminal history loan restrictions - November 16, 2023
- Minnesota enacts four major record reforms in 2023 - October 18, 2023
- SBA takes one step toward fair chance lending, but needs to take another - September 7, 2023
- CCRC seeking a Deputy Director - June 13, 2023
- Biden Administration announces actions to promote reintegration - April 28, 2023
- SBA modifies criminal history restrictions in its loan programs - April 14, 2023
- DC enacts progressive new record-clearing law - April 6, 2023
- Pending federal reforms promise support for justice-affected entrepreneurs - March 9, 2023
- SBA proposes to ease criminal history restrictions in loan programs - January 19, 2023
- Oklahoma and California win Reintegration Champion awards for 2022 laws - January 17, 2023