We are pleased to publish the March 2022 revision of our national survey of laws restoring rights and opportunities after arrest or conviction, “The Many Roads from Reentry to Reintegration.“ Like the earlier report, this report contains a series of essays on various relief mechanisms operating in the states, including legislative restoration of voting and firearms rights, various types of criminal record relief (expungement and sealing, pardon, judicial certificates), and laws limiting consideration of criminal record in fair employment and occupational licensing.

Drawing on material from CCRC’s flagship resource the Restoration of Rights Project, the report grades each state for the scope and efficacy of its laws in nine different relief categories. Based on these grades, it compiles an overall ranking of the states. As described below, most of the states identified as reform leaders in our 2020 report still rank highly, but several new states have joined them. Half a dozen other states made substantial improvements in their ranking by virtue of progressive legislation enacted in 2020 and 2021, in two cases (D.C. and Virginia) rising from the bottom ten to the top 20.

The legal landscape has been changing rapidly in the 18 months since the first edition of this report was published in September 2020. Substantial progress has been made in a number of states, and in the Nation as a whole, toward devising and implementing an effective and functional system for relieving collateral consequences. The bipartisan public commitment to a reintegration agenda seems more than ever grounded in economic imperatives, as pandemic dislocations have brought home the need to support, train, and recruit workers, who are essential to rebuilding the small businesses that are the lifeblood of healthy communities.

The greatest headway has been made in restoring the vote and broadening workplace opportunities controlled by the state, both areas where there are national models and best practices. The area where there is least consensus, and that remains most challenging to reform advocates, is managing dissemination of criminal record information. Time will tell how the goal of a workable and effective criminal record relief system is achieved in our laboratories of democracy.

One area of record relief on which there does appear to be an emerging bipartisan consensus is that non-conviction records should be automatically sealed or expunged on case disposition. We are particularly pleased to see how many states have enacted laws limiting access to the record of cases disposed in favor of the defendant just since publication of our Model Law on Non-Conviction Records in 2019.

But despite so much encouraging progress, there is still a long way to go before people with a record are treated fairly in getting a job and supporting a family, securing a place to live, and participating fully in civic affairs. A recent federal agency report noted how the criminal justice system conspires at every step to exacerbate the financially precarious situation in which many entering that system already find themselves.[1] Another recent report, which CCRC co-authored, shows how the “high cost of a fresh start” extends to many if not most of the record relief mechanisms now available.[2]

The two sections below describe the contents of the report in greater detail, and explain how we graded and ranked the states.

Contents of the Report

Gabriel Chin’s introduction to the report outlines the features of a functional relief system, and urges “objective time limits on dissemination of criminal justice information, just as there are in other countries with which we compare ourselves.” He notes that “lawmakers and policymakers seem to have come to recognize that collateral consequences are, and must be treated as, part of the criminal justice system,” as opposed to some separate system of civil regulation.

Like criminal sentences themselves, [collateral consequences] should be imposed only when and to the extent necessary, there should be opportunities for case-by-case consideration, and there should be an end to them. Otherwise, collateral consequences, designed to promote public safety, risk undermining it.

The executive summary of the report introduces the characteristics of the new “age of reform” that seemingly looks to redress some of the lasting injustices of the 30-year War on Crime, and explains the report’s grading and ranking system.

The first chapter finds a continuation of the trend toward restricting felony disenfranchisement to those actually incarcerated, a long-time goal of national reform organizations and advocates. Some of these reforms may have been influenced by the high-profile litigation over Florida’s “pay-to-vote” system, which shined a national spotlight on the unfairness of financial barriers to the franchise and their disproportionate exclusion of Black and Brown individuals. This chapter also finds that systems for restoring firearms rights are considerably more varied, with many states providing relief through the courts but others requiring a full pardon.

The second chapter deals with laws intended to revise, supplement, or limit public access to criminal records, relief mechanisms that have attracted the most attention in legislatures thanks to vigorous advocacy efforts, but that have benefited the least from national models and generally accepted best practices. This chapter is divided into several parts, based on the type of relief offered (e.g., pardon, expungement, set-aside, certificates, diversion, etc.), and the type of record affected (conviction or non-conviction). It includes a discussion of recent efforts to make record relief automatic, in light of the barriers in petition-based systems that tend to discourage individuals from taking advantage of remedies intended by legislatures to benefit them. The wide variety in eligibility, process, and effect of these record relief laws speaks volumes about how far the Nation is from common ground on which records should be available and at what point, and who they should be available to — although, as noted above, there appears to be a growing acceptance of the need to limit access to non-conviction records.

The third chapter of the report describes the area in which perhaps the most dramatic progress has been made just since 2018: the regulation of how criminal record is considered in the workplace, particularly where the state controls access to employment opportunities. In enacting these “fair chance” laws, legislatures have been guided and encouraged by helpful model laws and policies proposed by two national organizations with differing regulatory philosophies: The Institute for Justice, a libertarian public interest law firm, and the National Employment Law Project, a workers’ rights advocacy organization. Regulation of private employment has also been influenced by national models, although to a lesser extent.

Grading and ranking the states

In each section of the report, after our discussion of the type of relief, we assign a grade to each state, D.C., and the federal system, and explain the basis for our grading system. In an appendix, we collate these grades to produce a consolidated ranking of states and D.C. in the nine categories that we graded. That ranking is reproduced below.

 

 

State rankings have changed somewhat since the first edition of this report was published in September 2020. New Jersey and New Mexico moved into the top 10 by virtue of impressive lawmaking in 2021, while the District of Columbia, Michigan, Ohio, and Virginia moved into the top 20 based on laws enacted in the last 18 months. Most encouraging, two of the latter group of movers had been well down toward the bottom of the pack in our earlier report card, with Virginia making a particularly strong showing, moving from #44 place to #16, and D.C. moving from #40 place to #19. Oregon also improved its rank significantly based on an overhaul of its record-clearing law. That Arizona‘s ranking changed only slightly is deceptive: it got less credit than it deserved for its first-ever record-sealing law, essentially because its parallel set-aside law was credited in our 2020 report. Finally, Indiana would have joined the states ranked in the top 20 had it given final approval to a bill making expungement of non-conviction records automatic, on the governor’s desk for signature at the time this report was published. [Indiana’s governor signed the bill on March 7, making that state the 19th to make clearance of non-convictions automatic, and the 13th in the past four years.]

Illinois retained its top rank, with Connecticut and California close behind. Most of the other states ranked in the top 10 in the 2020 Report Card are still there (or close by), while most of the states ranked in the bottom 10 in the earlier report remained where they were. (Rankings from the 2020 report can be accessed for comparative purposes here.)

The record reforms enacted by the District of Columbia in the past few years are worth a separate comment, for they present a remarkable study in contrasts:  On the one hand, D.C. has enacted a series of extraordinarily progressive laws to open opportunities for people with a record in civil areas like voting, employment, housing, and occupational licensing. At the same time, D.C.’s laws in every category of criminal record relief have not changed in years and are among the lowest of any U.S. jurisdiction, likely reflecting the heavy hand of federal prosecutors.

The grades in each category and overall rankings of the states are collected in a companion report, The Reintegration Report Card, which explains how each state rated in the nine graded categories and proposes specific ways in which each state may strengthen or extend its laws and thus improve its ranking. In some cases, a state’s law is compared to analogous laws in surrounding states with which the state may compare itself. Hopefully, our grades and rankings will challenge, encourage, and inspire additional reforms in the months and years ahead.

Our grading and ranking judgments deserve one further comment. Gabriel Chin’s introduction describes the operational features of a desirable relief system: accessible, effective, coordinated, fair, and administrable. Because we have not studied how the relief systems described in this report actually operate, we cannot say for certain whether or to what extent any of them deliver on these five features. Our grades are based solely on the text of each state’s law, and we welcome more nuanced judgments by practitioners, researchers, and the law’s intended beneficiaries.

 

[1] See Consumer Financial Protection Bureau, Justice-Involved Individuals and the Consumer Financial Marketplace (January 2022).

[2] See, e.g., Collateral Consequences Resource Center & National Consumer Law Center, The High Cost of a Fresh Start: A State-by-State Analysis of Court Debt as a Bar to Record Clearing (February 2022).