Restoration of Rights Project – Nebraska Profile
Guide to restoration of rights, pardon, sealing & expungement following a Nebraska criminal conviction
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- First fair chance licensing reforms of 2024 (3/27/2024) - Expanding employment opportunities in licensed occupations has been a priority for criminal record reformers in the past half dozen years. Happily, fair chance licensing reforms also appear less politically controversial than some others, with Midwestern states like Iowa and Indiana among the most progressive in the Nation in their treatment of justice-impacted license applicants and licensees. In the first three months of 2024, two more Midwestern states (South Dakota and Nebraska) enacted comprehensive changes to their licensing laws, while a third state (Pennsylvania) was poised to close a major loophole in its licensing scheme. These reforms continue a nationwide trend that since 2017 has seen 43 states and the District of Columbia enact 79 separate laws* to limit state power to deny opportunity to qualified individuals based on their criminal history. Significant legislation is under serious consideration in half a dozen additional states, so we expect this year to produce another bumper crop of fair chance licensing laws. The new laws are described briefly below, and additional details can be found in the relevant state profile from the Restoration of Rights Project. South Dakota In February, South Dakota became the most recent state to enact a uniform approach to licensing justice-impacted individuals. SB 57. As we noted in 2022 in The Many Roads from Reentry to Reintegration report, South Dakota was one of only 3 states that had “no general law or regulations setting limits on how licensing boards may consider an applicant’s criminal record.” But now, under SB 57, licensing boards may only disqualify applicants with a criminal history if they have been convicted of a crime that “directly relates” to the license at hand, in which case the agency must consider whether “the applicant or licensee has been rehabilitated to the extent that the person no longer poses the kind of risk to the profession or occupation associated with that type of conviction.” Boards are further prohibited from considering non-conviction records, or convictions that have been pardoned, sealed, or expunged. The new law also requires boards to provide applicants with an opportunity for a hearing before denial, and a right to appeal the board’s decision. Critically, SB 57 also establishes a preliminary determination process that allows potential applicants to petition a board to see if their record would be disqualifying before they invest in any costly training or coursework. Nebraska A few weeks after South Dakota adopted its first-time reforms, Nebraska produced an expansive overhaul of its licensing restrictions that resulted in some of the nation’s strongest protections for justice-impacted people seeking licensure. Nebraska’s LB 16 strengthens the protections offered by the new South Dakota law by authorizing denial only if a conviction “directly and specifically” relates to the occupation; if obtaining a license “would pose a direct and substantial risk to public safety because the individual has not been rehabilitated;” and, starting next year, only if a license applicant or licensee has been convicted of an offense on a list of 27 serious violent or fraud offenses. The new Nebraska law forbids consideration of non-conviction records or records that have been expunged, set aside, sealed, or pardoned. If more were required, the new law prohibits consideration of convictions older than 3 years if no prison sentence was imposed, and three years after release from prison if it was -- unless the conviction is one of the 27 potentially disqualifying convictions defined in the statute. Nebraska’s scheme builds on its 2018 Occupational Board Reform Act, which established the policy of the state to protect the "fundamental right of an individual with a criminal history to obtain an occupational license, government certification, or state recognition of the individual’s personal qualifications.” That law included a process for a preliminary determination to ascertain future eligibility The 2024 law excludes a number of licensing agencies from the reach of Nebraska's licensing reforms, including those previously enacted in 2018, an unfortunate limitation in an otherwise impressive reform. The 2018 law and its current extension are described in detail in the Nebraska profile from the Restoration of Rights Project. Pennsylvania A third significant licensing reform was put in place in Pennsylvania, where its State Bureau of Professional and Occupational Affairs released regulations to limit the ability of licensing boards to reject qualified applicants based on their criminal history. In 2020, the state required each board to develop a list of crimes considered “directly related” to the license sought. Conviction of one of these crimes would create a “rebuttable presumption” that licensure of that individual would pose a substantial risk to public safety, without regard to how long ago the conviction occurred. Perhaps predictably, and without general guidance from the State, individual boards stretched the limits of their authority, proposing long lists of crimes to be directly related to the licenses they issue. The potential damage done to thousands of individuals – particularly those with older criminal records -- was described in an extended piece posted last fall by Community Legal Services of Philadelphia. Responding to the concerns exoressed by advocates, the State Bureau eliminated hundreds of these proposed offenses on grounds that they bore only an attenuated relationship to the particular license. More significantly, convictions more than 5 years old are no longer to be considered “directly related.” “These regulations will allow people who do not present risk to move on to better jobs and provide better lives for their families. They will also help businesses fill job openings with fully qualified workers,” said Sharon Dietrich, Litigation Director for Community Legal Services, which spearheaded the coalition that backed the new regulations. “We thank the Shapiro Administration and the boards and occupations for issuing these win-win regulations.” Final approval of these regulations by the Pennsylvania Independent Regulatory Review Commission is expected at its public meeting on April 18. For further details, see our post from July 2020 as well as the Pennsylvania profile in the RRP. Previews: There are additional important fair licensing reforms being seriously considered in several states, including Alabama, Colorado, Georgia, Kentucky, Massachusetts, and New York. We hope our readers will alert us to others. ________________________________________________________________________ *Our count is based on the listing in footnote 237 of The Many Roads from Reentry to Reintegration, supplemented by our annual reports on new laws enacted since that report was published in March 2022.
- Bumper crop of new expungement laws expected in 2019 (4/9/2019) - Earlier this year we reported that, in 2018, legislatures enacted an unprecedented number of new laws aimed at restoring rights and opportunities for people with a criminal record. (Last year 32 states, D.C., and the U.S. Virgin Islands enacted 61 new laws to facilitate reentry and reintegration.) The first quarter of 2019 has already produced a baker's dozen of new restoration laws, some quite significant, indicating that this year is likely to be every bit as productive as last. The 13 new laws enhance access to record-clearing relief, occupational licensing and employment, and executive clemency. Also notable, if only for the sheer number of people who will benefit when the law goes into effect on July 1, is the Virginia legislature's accession to Governor Ralph Northam's request that it "eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees," which will immediately reinstate driving privileges to more than 627,000 Virginians. This year to date, state lawmakers have focused most of their attention on improving access to record-clearing: 8 of the 13 new laws expand eligibility for expungement and sealing and streamline applicable procedures. The two most significant new laws were enacted in Western states. Utah's HB 431—signed by Governor Gary Herbert on March 28, 2019—provides for automated sealing relief for certain non-conviction, infraction, and misdemeanor conviction records. When it takes effect on May 1, 2020, it will be the nation's second "clean slate" law in operation (Pennsylvania's first-in-the-Nation 2018 clean slate law will be implemented over a 12-month period beginning in June 2019). Utah also clarified that employers may not ask about—and an applicant for employment need not disclose—expunged convictions (except under narrow exceptions for public employment). New Mexico's Criminal Records Expungement Act (CREA) for the first time authorizes courts in that state, upon application, to limit public access to adult records, including both felonies and misdemeanors, as well as non-conviction records. HB 370, signed by the governor on April 3 and effective January 1, 2020, provides graduated eligibility waiting periods depending upon the seriousness of the offense, and applies to all but a handful of crimes. Other highlights from the new record-closing laws include expanded sealing eligibility for adults in Kentucky and West Virginia, and for juveniles in Nebraska and Wyoming. Occupational licensing reforms were enacted in Ohio and Utah that regulate how licensing boards may consider criminal records, continuing a recent push for reform in this area. Both states will now allow individuals to request at any time a preliminary determination whether their record would disqualify them from holding a license. Ohio will also require licensing boards to publish on the internet a list of all criminal offenses for which a conviction would disqualify a person. In addition, New Mexico extended its "ban-the-box" law to private employment, requiring employers to delay consideration of an applicant's criminal history in the hiring process. Finally, South Dakota streamlined its clemency process by allowing two members of the pardon and parole board to make clemency recommendations to the governor (rather than a majority of the nine-member board). The 13 new laws enacted to date in 2019 are described in further detail below, and have been added to the state profiles in the Restoration of Rights Project. We will be tracking restoration bills throughout the year, and will report periodically in this space - particularly when a significant new law is enacted. RECORD-CLEARING RELIEF Utah - Clean slate; effect of expungement On March 28, 2019, Utah Governor Gary Herbert signed HB 431, a highly significant "clean slate" law that will automate expungement or deletion of a variety of criminal records when it takes effect on May 1, 2020. Acquittals and dismissals with prejudice are eligible. Certain infractions, misdemeanor convictions, and pleas in abeyance are eligible under a complex set of criteria. Automated relief will apply both to cases adjudicated on or after May 1, 2020, and to cases adjudicated before that date, with separate procedures for each category. 77-40-116(1)(a) and (1)(b). A more detailed explanation of this new law can be found in the Restoration of Rights Project, Utah profile. On March 25, 2019, Governor Herbert signed HB 90 (effective May 14, 2019) that makes clear that an applicant with an expunged criminal record seeking employment from a private employer “may answer a question related to an expunged criminal record as though the action underlying the expunged criminal record never occurred.” § 34-52-301. The new law also clarifies that a public employer may not make an inquiry related to expunged criminal history—and an applicant may answer such a question “as though the action underlying the expunged criminal record never occurred,” except for preexisting exemptions for certain types of public employers, volunteer work, or when consideration of criminal history is required by law. § 34-52-201. More information can be found in the Restoration of Rights Project, Utah profile. New Mexico - First general authority to expunge adult records In 2019, New Mexico enacted a comprehensive law authorizing expungement (sealing) of most non-conviction records, and of conviction records for all but a limited number of crimes, including those involving serious violence and sexual assault. See HB 370, signed into law not yet codified. Effective January 1, 2020, the Criminal Record Expungement Act (CREA) authorizes courts to limit public access to most non-conviction records after a one-year waiting period, as long as no charges are pending against the individual. Courts are also authorized to limit public access to the record of most convictions after waiting periods ranging from two to ten years, depending upon the seriousness of the offense, with no intervening convictions. The court must find that “justice will be served by an order to expunge,” applying a multi-factor test. Under current law, New Mexico law contains no judicial authority to seal adult records, and an administrative authority to seal non-conviction records applies only to some misdemeanors. Upon taking effect, CREA will give New Mexico one of the broadest record-closing authorities in the Nation. More information about this important new law can be found in the Restoration of Rights Project, New Mexico profile. West Virginia - Expanded eligibility for expungement to some felonies On March 25, 2019, West Virginia Governor Jim Justice signed into law SB 152, which will significantly expand the availability of expungement when it becomes effective on June 7, 2019. The law extends eligibility for expungement beyond the limited class of youthful misdemeanants that benefit under existing law, and also makes certain felonies eligible for expungement relief for the first time. (It repeals a 2017 law that authorized reduction of these felonies to misdemeanors, but withheld expungement.) Violent and sexual crimes are ineligible. Under the new law, persons convicted of eligible misdemeanors may petition for expungement one year after conviction, or completion of incarceration or supervision if later. The waiting period is extended to two years for persons convicted of more than one eligible misdemeanor, and to five years for eligible felonies. Persons who have completed substance abuse treatment or graduated from a state-approved job training program may seek relief after an abbreviated waiting period (90 days for a single misdemeanor; one year for multiple misdemeanors; three years for felonies). Employers required by state or federal law to conduct a background check may access expunged convictions. More information can be found in the Restoration of Rights Project, West Virginia profile. Kentucky - Expanded expungement eligibility and procedural reforms On March 26, 2019, Kentucky Governor Matt Bevin signed SB 57 (effective June 26, 2019), which makes several changes to Kentucky's expungement law, expanding non-conviction and felony eligibility. First, the new law will make charges dismissed without prejudice eligible for expungement after a 5-year waiting period (under current law, such charges cannot be expunged). § 431.076. Second, certificates of eligibility will no longer need to be sought prior to a petition to expunge a non-conviction record (but are still required for a conviction record). Third, the new law expands eligibility to vacate, dismiss, and expunge class D felony convictions. A 2016 law had made a specific list of class D felony offenses eligible (or multiple eligible felonies stemming from a single incident). Prior to that, Class D felonies were only eligible if adjudication was deferred. Under SB 57, any Class D felony or a "series" of such felonies will be eligible, except for violations of Ky. Rev. Stat. Ann. §§ 189A.010 (DUI), 508.032 (domestic assault), or 519.055 (impersonating a peace officer), abuse of public office, a sex offense, an offense committed against a child, or an offense that resulted in serious bodily injury or death. § 431.073. If a prosecutor objects to expunging a Class D felony from this expanded set of offenses, the applicant must show by clear and convincing evidence at a hearing that vacating the judgment and expunging the record is consistent with public welfare and safety, supported by the applicant's behavior since conviction, and warranted by the interests of justice. Id. More details about this law can be found in the Restoration of Rights Project, Kentucky profile. Nebraska - Automatic sealing of juvenile records expanded On March 27, 2019, Nebraska Governor Pete Ricketts signed LB 354 (effective three months after the legislature adjourns in 2019), which makes a host of changes to facilitate the sealing of juvenile records. Most notably, this new law expands automatic juvenile sealing (which already covers non-conviction dispositions) to include satisfactory completion of juvenile probation, supervision, or other treatment or rehabilitation program or a county court probation or sentence. Neb. Rev. Stat. § 43-2,108.03. More details about this law can be found in the Restoration of Rights Project, Nebraska profile. Wyoming - Juvenile expungement procedures strengthened On February 15, 2019, Wyoming Governor Mark Gordon signed HB 44, which makes several changes to strengthen Wyoming's juvenile expungement laws, effective effective July 1, 2019. These changes include the following. No filing fee may be charged for a petition to expunge juvenile records. A state or municipality may petition to expunge juvenile records. Prosecutors have 20 days to object to a petition for juvenile expungement, after which the court may summarily grant the request. A minor admitted to a diversion program or granted a deferral, or whose arrest, charges, or disposition do not result in conviction or adjudication, may petition to expunge municipal and circuit court records in the same manner as juvenile records. Expungement of juvenile records (and certain municipal and circuit court records involving minors) is defined to mean destruction of records. More details can be found in the Restoration of Rights Project, Wyoming profile. Virginia - Automatic expungement for absolute pardons On February 27, 2019, Governor Ralph Northam signed HB 2278, which takes effect on July 1, 2019. This new law will entitle a person who receives an “absolute” pardon to automatic judicial expungement—no petition need be filed with the court. Va. Code Ann. § 19.2-392.2(I). (Absolute pardons are generally granted only for innocence.) More details can be found in the Restoration of Rights Project, Virginia profile. OCCUPATIONAL LICENSING Ohio - Preliminary determination of whether record disqualifies from occupational licensure; publication of disqualifying convictions On December 27, 2018, the Ohio Legislature enrolled SB 225, which became law 10 days later without action by the governor. Effective April 5, 2019, anyone who has a conviction may request at any time that a licensing authority determine whether the conviction disqualifies the person from obtaining an occupational or professional license. Ohio Rev. Code Ann. § 9.78(B). A fee of no more than $25 may be charged. Id. Within thirty days of receiving a request, the licensing authority must inform the person of its decision (the decision is not binding if the licensing authority determines that the person's convictions differ from what was included in the request). Id. In addition, licensing authorities must make available on the internet a list of all criminal offenses for which a conviction would disqualify a person from obtaining a license. § 9.78(C). More details can be found in the Restoration of Rights Project, Ohio profile. Utah - Preliminary determination of whether record disqualifies from occupational licensure On March 25, 2019, Utah Governor Gary Herbert signed a law that will allow a person with a criminal record to apply at any time for a determination of whether their record would disqualify them from obtaining a license in an occupation or profession regulated by Title 58 of the Utah code, when it takes effect on May 14, 2019. See HB 90; Utah Code Ann. § 58-1-310. A fee may be charged. Within 30 days of receipt of a completed application, the Division of Occupational and Professional Licensing must make a written determination, and the decision may include additional steps the individual could take to qualify for a license. Id. This new law also amends the definition of "unprofessional conduct" in § 58-1-501(2), based on which a license may be denied or restricted. Existing law defines "unprofessional conduct" to include, among other things, a plea or conviction for a crime of moral turpitude or a crime that bears a "reasonable relationship" to safe or competent performance of the occupation. § 58-1-501(2). The new law replaces "reasonable relationship" with "substantial relationship." See id; HB 90. More details can be found in the Restoration of Rights Project, Utah profile. EMPLOYMENT New Mexico - Ban-the-box in the private employment On April 3, 2019, New Mexico Governor Michelle Lujan Grisham signed SB 96, which will extend "ban-the-box" to include private employers when it goes into effect. Under the new law, if a private employer uses an employment application, the employer may not make an inquiry regarding an applicant's criminal history. (Enacted as new section of N.M. Stat. Ann. § 28-2-1, et seq.) Nonetheless, an employer "may take into consideration an applicant's conviction after review of the applicant's application and upon discussion of employment with the applicant." And an employer may notify the public or an applicant that the law or the employer's policy could disqualify an applicant with a certain criminal history from particular positions. Id. More details can be found in the Restoration of Rights Project, New Mexico profile. (Note that the ban-the-box law applicable to public employers in New Mexico is considerably more protective of individuals with a record, prohibiting inquiries until the applicant has been selected as a finalist, and disallowing consideration of non-conviction records and misdemeanors not involving "moral turpitude.") CLEMENCY South Dakota - Streamlined clemency process On February 5, 2019, South Dakota Governor Kristi Noem signed HB 1005, which authorizes a hearing panel of two Board members appointed by the chair to make clemency recommendations to the governor. See HB 1005 (repealing the requirement in S.D. Codified Laws § 24-13-4.6 that commutation and pardon recommendations be made by a majority of the nine-member board, and making conforming amendments to §§ 24-15A-10 and 24-15A-11). A new provision of § 24-15A provides for review of a panel’s decision to deny a pardon recommendation by the full Board, which may “adopt, modify, or reject the panel’s denial and recommend a pardon.” More details can be found in the Restoration of Rights Project, South Dakota profile. MISCELLANEOUS Virginia - Reinstatement of drivers' licenses An amendment to Virginia's 2019 budget bill specifically requested by Governor Ralph Northam to "eliminate[] the unfair practice of revoking a person’s driver’s license for failure to pay court fines and fees," was accepted by the legislature on April 3, 2019. See HB 1700. When this law becomes effective on July 1, it will immediately reinstate driving privileges to more than 627,000 Virginians.
- Collateral Consequences in Occupational Licensing Act (6/29/2018) - We've noted in recent posts the numerous states that, just in the past three or four months, have enacted broad occupational licensing reforms affecting people with a criminal record. Many of these new laws have been influenced by a model developed by the Institute for Justice (IJ), a libertarian public interest law firm that has been litigating and lobbying to reduce barriers to work for more than two decades. In turn, states like Indiana, Kansas, Tennessee and Wisconsin have built upon IJ's model to enact even more progressive schemes intended to ensure that people with the requisite professional qualifications will not be unfairly excluded based on a record of arrest or conviction. Now IJ has incorporated many of these progressive refinements into its original model licensing law, the Occupational Licensing Review Act (OLRA), and broken out the provisions relating to criminal records into a free-standing model act specifically directed at managing collateral consequences in the occupational licensing context, the new Collateral Consequences in Occupational Licensing Act (CCOLA). The CCOLA has the same key features as the original OLRA: It provides individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; It allows the individual to seek this determination at any time, including before investing in the required training necessary to otherwise qualify for the license, requires a written decision within 90 days, and limits what the agency may charge for this determination to $100; It limits the types of records that an agency may consider in a licensing decision to convictions of serious or violent crimes; It shifts the burden of proof to the agency to establish that a petitioner’s conviction is substantially related to the state’s interest in protecting public safety; It requires agencies to provide written reasons justifying denial of a license based on conviction in terms of public safety; and It requires each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action. In addition to these features, IJ has recently further clarified the types of criminal conduct that may be considered in licensing decisions, and specifically prohibited the use of vague criteria like "good moral character" as a basis for exclusion. As revised, IJ's model laws now provide that licensing agencies may not consider non-conviction records, juvenile adjudications, non-violent misdemeanors, and most felonies and violent misdemeanors that occurred more than three years prior to seeking licensure. See CCOLA, 100.02, Subd. 7. Agencies may consider violent felonies and sexual offenses at any time, although even these records must still be tested against the "public safety" standard: The board may deny the petition only if it establishes by clear and convincing evidence that: 1. The individual was convicted of a felony or violent misdemeanor, not excluded by subdivision 7, which is directly, substantially and adversely related to the state's interest in protecting public safety; and 2. The granting of state recognition will put the individual in a position where the individual is more likely than not to reoffend and cause harm. See CCOLA, 100.02, Subd 10(c). IJ's website points out that "[m]ore than 25 percent of workers need a government-issued license to work," so lowering barriers to licensure for people with a criminal record has important implications for efficiency and public safety. In introducing its stand-alone CCOLA model, IJ’s website states the following: An honest living is one of the best ways to prevent those with a criminal record from re-offending. But many occupational licensing laws block or burden ex-offenders from entering regulated fields. Numerous licensing laws have morality clauses that (1) bar automatically and permanently ex-offenders from working without any individualized review or (2) require the ex-offender to prove a negative—that the ex-offender’s past crimes will not cause him to harm customers in the future. Such provisions ironically may decrease public safety. States with prohibitions and high burdens on entry have higher criminal recidivism. Conversely, states that have no such bars and low burdens have seen declines in recidivism, according to Professor Stephen Slivinski’s landmark study Turning Shackles into Bootstraps. IJ’s website surveys some of the key provisions of many of the recently enacted state licensing reforms. It also very happily links to the relevant 50-state chart from the Restoration of Rights Project, which we very much appreciate! With an enrolled bill sitting on its governor's desk for action, New Hampshire is poised to become the 10th state to enact comprehensive licensing reform in 2018. In addition to Indiana, Kansas, Tennessee and Wisconsin, Arizona, Maryland, Massachusetts, Nebraska, and Wyoming have all just this year enacted new laws incorporating many of the features of IJ's model law. Illinois anticipated these states by six months when it significantly amended its licensing scheme to reflect IJ's approach in August 2017. We were pleased to be able to work with Lee McGrath of IJ’s office in Minneapolis in developing many of the amended features of the CCOLA, which have also been folded into IJ's broader model occupational licensing act. We look forward to continuing to work with Lee and his colleagues in months to come.
- Wisconsin joins crowd of states regulating occupational licensure (4/30/2018) - On April 16, Wisconsin Governor Scott Walker signed into law Act 278, making his state the sixth in the past two months to establish new rules on consideration of criminal record in the context of occupational and professional licensure. Effective August 1, 2018, licensing boards in Wisconsin will be prohibited in most cases from denying or revoking a license based on arrests or pending charges, and required to justify in writing any adverse action based on conviction. Boards will also be required to give applicants a preliminary determination as to whether a particular conviction will be disqualifying. Indiana, Arizona, Massachusetts, Nebraska and Tennessee have all recently enacted laws regulating how licensing boards treat arrests and convictions, in some cases with strikingly similar features, as described in recent posts here and here. The conviction-related provisions of the model occupational licensing law proposed by the Institute for Justice are reflected in almost all of these new laws, though many of them go even farther to discourage unwarranted discrimination affecting as much as 25% of the U.S. workforce. Act 278 puts new teeth into the provisions of Wisconsin’s Fair Employment Act that relate to occupational and professional licensing through a new subsection titled "Discrimination in Licensing." See Wisc. Stat. § 111.335 (4). A licensing agency will be required, before denying or terminating a license based on a prior conviction, to state its reasons in writing, including "a statement of how the circumstances of the offense relate to the particular licensed activity." An agency must also provide individuals with an opportunity to show evidence of rehabilitation and fitness to engage in the licensed activity. Moreover, "[i]f the individual shows competent evidence of sufficient rehabilitation and fitness to perform the licensed activity . . . . the licensing agency may not refuse to license the individual or bar or terminate the individual from licensing based on that conviction." In addition to any evidence of rehabilitation adduced by the applicant, agencies are directed to take into account the nature and seriousness of the offense, any "mitigating circumstances or social conditions surrounding the commission of the offense," the age of the individual at the time the offense was committed and the time elapsed since, and letters of reference by persons who have been in contact with the individual since. Negligent hiring protections are included for any firm that hired a licensee approved pursuant to an agency determination of rehabilitation. See Wis. Stat. § 452.139. Act 278 tightens provisions of current law that permit denial of licensure based on a pending criminal charge, or based on a juvenile adjudication, if the offense conduct is "substantially related" to the licensed activity, by adding a proviso that the substantial relationship standard will be met in this context only if the charge or adjudication involved a “crime against life and bodily security” or a crime “against children.” Like most of the other recently enacted occupational licensing laws, Act 278 requires agencies to make it possible for individuals to obtain a preliminary determination as to whether they would be disqualified from obtaining a license due to a prior conviction, a determination that is binding on the agency in connection with a formal application. A fee may be charged to cover the cost of processing. This provision comes straight from the model occupational licensing law proposed by the Institute for Justice, discussed in our post of April 18. Finally, each licensing agency must also publish on its Internet site a document indicating the offenses or kinds of offenses that may result in denial or termination of a license. The provisions of Wisconsin's Fair Employment Act are further elaborated in the Wisconsin profile from the Restoration of Rights Project.
- Two more states regulate consideration of conviction in occupational licensing (4/25/2018) - Tennessee and Nebraska are the two most recent states to enact laws regulating how a criminal record will be considered in occupational licensing. Nebraska's Occupational Board Reform Act (LB 299) was approved by Governor Pete Ricketts on Appril 23, and Tennessee's Fresh Start Act (SB 2465) was signed into law by Governor Bill Haslam on the same day. The Nebraska law (which does not take effect until July 2019) is a general deregulation of licensing that includes a provision whereby individuals with a criminal record may obtain a preliminary determination of their eligibility from the relevant licensing board, even before they have obtained the necessary training and qualification. The board must issue a written determination within 90 days giving its "findings of fact and conclusions of law," and the fee for this determination may not exceed $100. The individual may include with the preliminary application “additional information about the individual's current circumstances, including the time since the offense, completion of the criminal sentence, other evidence of rehabilitation, testimonials, employment history, and employment aspirations.” The board's decision may be appealed under the state's administrative procedure act. Tennessee's new law (which is effective July 1, 2018) provides for a preliminary determination of eligibility by a licensing board and written reasons for denial. However, unlike the Nebraska law, it also contains a more detailed set of standards and procedures that apply to a board's consideration whether a conviction is "directly related" to the license, and it also contains a presumption in favor of issuing a license (with certain exceptions). Among other things, the licensing authority "must demonstrate by a preponderance of the evidence that [the applicant's conviction] is related to the applicable occupation, profession, business, or trade.” Additional bills laws regulating consideration of conviction in licensing are well along in the legislative process in Kansas and Louisiana, and an enrolled bill is awaiting the governor's signature in Maryland. We have revised the Tennessee and Nebraska profiles and 50-state charts from the Restoration of Rights Project to reflect the new licensing laws.
- More states facilitating licensing for people with a criminal record (4/18/2018) - Last week we posted a description of a detailed new Indiana law regulating consideration of conviction in occupational and professional licensure throughout the state. It now appears that this may represent a trend, as eight additional states have either recently enacted or are poised to enact similarly progressive occupational licensing schemes. New general laws regulating licensure are in place in Arizona, Illinois, and Massachusetts. Similar bills have been enrolled and are on the governor's desk for signature in Kansas, Maryland, Nebraska, and Tennessee. Arizona's new 2018 licensing law follows on another law passed in that state in 2017 that authorized provisional licenses for individuals with a criminal record. Massachusett's new licensing law is part of a more general criminal justice reform bill. Delaware and Connecticut have also recently loosened restrictions on licensing for cosmetology and related professions. The licensing reforms in these states - and in several other states where licensing bills are less far along toward enactment -- seem to have been influenced by a model law proposed by the Institute for Justice, a libertarian public interest law firm. Key features of the Model Occupational Licensing Review Act as they affect individuals with criminal records are 1) to provide individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; 2) to require licensing agencies to disqualify only if an applicant has been convicted of a felony or violent misdemeanor, and if the agency determines that "the state has an important interest in protecting public safety that is superior to the individual's right to pursue a lawful occupation"; and 3) to require each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action. Disqualification is justified under this model law only if the conviction is "substantially related to the state's interest in protecting public safety," and the individual will be "more likely to reoffend by having the license than by not having the license." The federal government is also encouraging licensing reform: the U.S. Department of Labor is supporting a three-year project to assist states improve their general policies and practices related to occupational licensing, including those that affect persons with a criminal record. The project brings together 11 states to participate in the Occupational Licensing Learning Consortium. The 11 states are Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin. We are monitoring this legislative trend and will revise the state profiles and other materials in the Restoration of Rights Project as new laws are enacted.
- New research report: Four Years of Second Chance Reforms, 2013-2016 (2/8/2017) - Introduction Since 2013, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on an individual’s ability to earn a living, access housing, education and public benefits, and otherwise fully participate in civil society. It has not been an easy task, in part because of the volume and complexity of state and federal laws imposing collateral consequences. To encourage employers and other decision-makers to give convicted individuals a fair chance, some states have enacted or modified judicial restoration mechanisms like expungement, sealing, and certificates of relief. Others have extended nondiscrimination laws, limited criminal record inquiries, and facilitated front-end opportunities to avoid conviction. In partnership with the NACDL Restoration of Rights Project, the CCRC maintains a comprehensive and current state-by-state guide to mechanisms for restoration of rights and status after conviction. As a part of keeping that resource up to date, we have inventoried measures enacted and policies adopted by states in the past four years to mitigate or avoid the disabling effects of a criminal record, and present it here as a snapshot of an encouraging national trend. Summary of findings Between 2013 and 2016, forty-two states and the District of Columbia adopted significant reforms of various types. The most common of these reforms are ban-the-box laws and policies that prohibit employers from inquiring into an applicant’s criminal history during the initial stages of the application process. Twenty-one states banned the box in public employment, and eight (CT, DC, IL, MN, NJ, OR, RI, and VT) expanded their ban-the-box prohibitions to cover private employers as well. Expungement and sealing authorities were also expanded in a significant number of states. Arkansas, Indiana, and Minnesota enacted comprehensive new expungement/sealing schemes that grant many individuals an opportunity to have their records sealed from public view and/or rights restored for the first time. Additionally, California, Illinois, Kentucky, Louisiana, and Missouri all expanded existing expungement/sealing laws to make certain felonies eligible. Maryland, Pennsylvania, and South Dakota enacted entirely new authorities limiting public access to misdemeanor records. Another fifteen states expanded existing expungement or sealing opportunities, either to increase the number and type of eligible offenses and dispositions, or to broaden the protections afforded to, or rights restored by, an expunged or sealed record. Unfortunately, stiff filing fees in states like Louisiana and Kentucky will inevitably discourage people of limited means from taking advantage of these new authorities. Judicial and/or administrative “certificates of relief” were also made available in nine states for the first time. These certificates adhere to a “forgiving,” as opposed to “forgetting,” model of criminal record mitigation. The new certificates with the broadest application and effect are those in Ohio and Vermont, both of which are modeled after provisions in the Uniform Collateral Consequences of Conviction Act (UCCCA) that authorize courts to completely remove specified mandatory collateral consequences imposed by law, allowing individuals to be considered for employment or licensing opportunities on the merits. Colorado's new "order of collateral relief" provides relief from mandatory consequences specified in the order, with exceptions, but is only available for non-prison sentences. The new certificate authorities in most other states either protect employers and/or other private entities from negligent hiring or retention claims based solely upon their agent’s conviction, or prohibit employers or licensing bodies from denying applicants “based solely upon” their conviction. The effect or availability of pre-existing certificate authorities were expanded in another three states. Another notable trend was the expansion of the effect and availability of deferred adjudication and diversion mechanisms, which allow individuals to avoid conviction altogether following successful completion of probation or other conditions. Five states (AL, CA, DE, GA, NJ) enacted legislation explicitly authorizing expungement or sealing of deferred adjudication records for the first time, while Colorado and Illinois enacted entirely new deferred adjudication authority. These programs provide a great benefit to those who can take advantage of them, but, in many states, prosecutorial control of these programs can result in disparate treatment and costly relief. >>View the full report below or download here<<
- Is pardon making a comeback? Probably not, but law reform may be (1/21/2015) - A recent issue of Governing Magazine reports that pardoning is "making a comeback" after decades of neglect. It would be nice if it were true. But the evidence of comeback is thin. Almost all of the jurisdictions where pardoning is thriving today are the same ones where it was thriving a decade ago. In a dozen states, including Connecticut, Delaware, Georgia, Nebraska, South Carolina and South Dakota, pardon has never been neglected, much less abandoned by responsible officials. In these jurisdictions and a handful of others, pardon has deep roots in the justice system and is supported by accountable institutions of government. It is certainly true that Pat Quinn of Illinois and Jerry Brown of California have made generous use of the power of their office after years in which the pardon power in their states languished unused. Terry McAuliffe of Virginia is a newcomer to the small group of governors who evidently feel that pardoning is a responsibility of office. All three are to be commended for it. But three swallows do not make a summer. For the most part pardoning in the United States remains a timid exercise in tokenism, and the vitality of pardon in most jurisdictions still depends on the personal predilections of the particular elected chief executive. Most are not very interested in an activity that has few rewards and many pitfalls. Our President is a case in point. A number of current governors have refused to use their pardon power at all, some invoking bogus separation of powers arguments (Scott of Wisconsin), others making empty promises (Hickenlooper of Colorado). The Marshall Project recently published an article asking if pardon was still the third rail of American politics. Apparently most governors think it is, whatever changes there may have been in the public mood. Legislative alternatives to pardon It seems to me that if governors and presidents are reluctant to use the power of their office to temper what Alexander Hamilton called the "necessary severity" of the criminal code, they have an obligation to see that the legal system addresses the needs pardon serves. Ohio Governor John Kasich did that when he supported legislation to authorize courts to issue "certificates of qualification for employment" to help people with convictions overcome legal restrictions that bar them from certain jobs. Governors in Indiana, Louisiana, Minnesota and Vermont have also recently signed legislation giving courts the power to do what they are evidently reluctant to do themselves. That is an acceptable alternative approach to governing, both in theory and in practice. Indeed, pardon was never supposed to be a substitute for law reform, and courts or administrative agencies are likely to be fairer and more accessible than an elected official. Unfortunately, there is no indication that the Obama Administration is interested in supporting legislation that would ameliorate the adverse effects of a criminal record, though this is one of the few areas in which there is bipartisan support for reform in Congress. The President's failure to give criminal justice reform more than a passing mention in the State of the Union address, and only in the context of police/community relations, was discouraging. Many U.S. jurisdictions are attempting to deal with the problems created by mass incarceration, by reducing the number of people who go to prison and by improving social services to keep those who do from going back. Mass conviction has produced a separate and less tractable set of problems, including proliferation of collateral consequences that discourage rehabilitation, and creation of a permanent class of second class citizens defined by their criminal record. The laboratories of democracy have not yet produced a single legislative solution that can command consensus. Reform efforts in some jurisdictions involve limiting public access to criminal records through expungement or sealing, an approach that has both practical and theoretical drawbacks. Other jurisdictions have adopted the more transparent judicial certificates recommended by the 2010 Uniform Collateral Consequences of Conviction Act and the 2014 Model Penal Code: Sentencing. Indiana's approach combining the two may be the wave of the future. With a clear problem demanding a legislative solution, the recommendation of the National Association of Criminal Defense Lawyers looks appealing: The three branches of government, on the federal, state, and local levels, should undertake a comprehensive effort to promote restoration of rights and status after conviction. This is a major effort that requires a multi-faceted approach. It should include enactment of laws to circumscribe or repeal existing collateral consequences, and a resolve to stop enacting new ones. More fundamentally, government entities, the legal profession, the media and the business community must promote a change in the national mindset to embrace concepts of redemption and forgiveness, including a public education campaign to combat erroneous and harmful stereotypes and labels applied to individuals who have at one point or another committed a crime. As a cornerstone of this movement, the United States and the states and territories should establish a “National Restoration of Rights Day” to recognize the need to give individuals who have successfully fulfilled the terms of a criminal sentence the opportunity to move on with their lives. This will take leadership at a national level. Given the support for collateral consequences reform in Congress and in governor's mansions across the country, perhaps we will get it.