Restoration of Rights Project – Wisconsin Profile

Guide to restoration of rights, pardon, sealing & expungement following a Wisconsin criminal conviction

A Fresh Start: Wisconsin’s Atypical Expungement Law and Options for Reform

Describes Wisconsin’s unique system of requiring expungement decisions to be made at the time of sentencing, and recommends reforms. Wisconsin Policy Forum (January 2018)

Wisconsin Compilation of Collateral Consequences

Interactive database of collateral consequences imposed by Wisconsin and federal statutes and regulations. Prepared by the Collateral Consequences Resource Center for the Wisconsin Public Defender.

Felony Convictions and Employment (Wisconsin Law)

2014 guide from the Wisconsin Public Defender

Civil Consequences of Conviction – The Impact of Criminal Records under Wisconsin Law

2012 guide from the Wisconsin Public Defender

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Oklahoma and California win Reintegration Champion awards for 2022 laws (1/17/2023) - On January 10 we posted our annual report on new laws enacted in 2022 to restore rights and opportunities to people with a record of arrest or conviction. Like our earlier reports, it documents the steady progress of what we characterized two years ago as “a full-fledged law reform movement” aimed at restoring rights and dignity to individuals who have successfully navigated the criminal law system. This year’s criminal record reforms bring the total number of separate laws enacted in the past five years to more than 500. Posted below is our fourth annual legislative Report Card recognizing the most productive states in 2022. Reintegration Awards for 2022 While more than a handful of states enacted noteworthy laws in 2022, two states stand out for the quantity and quality of their legislation: California and Oklahoma share our 2022 Reintegration Champion award for their passage of at least two major pieces of record reform legislation. California – Enacted a whopping 11 new laws, including the broadest general record clearing law in the nation, a direction to courts to effectuate clearing of marijuana records, removal of restitution as a bar to clearing criminal records, easing access to judicial certificates of rehabilitation, and simplification of the process for certifying people with criminal records to work in community care. California’s governor also vetoed a bill that would have facilitated background screening by eliminating court-imposed restrictions on online access to personal identifying information. Oklahoma – Enacted a major automatic record clearing law and the most sweeping update to an occupational licensing scheme of any state in the country this year. Oklahoma also passed a significant law allowing young people who successfully complete the state’s youthful offender program to have their charges dismissed and expunged. Another eight states earned an Honorable Mention for their enactment of at least one significant new record reform law: Colorado – Expanded automatic sealing to include all offenses eligible for petition-based sealing, reduced the waiting period for low-level drug possession from three years to two, and enhanced procedural rights of those applying for occupational licenses. Connecticut – Made it easier for people with felony convictions to work in dozens of occupations under the state department of public health and authorized a binding preliminary determination. Delaware – Enacted the “Fair Chance Licensing Act,” establishing a binding preliminary application process, providing that many records may not be grounds for denial (convictions over 10 years old with no intervening convictions; pardoned, sealed, or expunged convictions; non-conviction records; and juvenile adjudications). Even “substantially related” crimes must be given an opportunity for a waiver via a board vote. Delaware also authorized automatic expungement of records of charges lacking a final disposition and prohibited higher education institutions from inquiring into an applicant's criminal history. Indiana – Eliminated the one-year waiting period for sealing non-conviction records, including uncharged arrests, and made this relief automatic. Louisiana – Strengthened and extended its occupational licensing law, by establishing a binding preliminary determination, providing for appeal, bringing many new boards under its general licensing limits, and adopting new factors to be considered in determining “direct relationship.” The state also provided unusually broad record relief for victims of human trafficking. Maryland – Legalized the personal use of up to 1.5 ounces of cannabis for adults 21 and older, authorized resentencing and expungement of marijuana conviction records and established a business assistance fund that prioritizes individuals with cannabis convictions. Maryland also enacted a law removing state authority over the delinquency of children aged 13 and under. Missouri – Missouri voters amended the state constitution to legalize personal use of marijuana, and at the same time authorized release from prison for those serving prison sentences for marijuana trafficking, provided for automatic expungement for numerous marijuana convictions upon completion of sentence, and extended preference in commercial licensure to sell legalized marijuana to those with convictions. In addition, Governor Mike Parson has become the most prolific pardoner in the state in more than 40 years, working efficiently to reduce a case backlog built up over many years. Rhode Island – Legalized adult possession of small amounts of marijuana, provided for automatic expungement of convictions for decriminalized marijuana offenses, and waived costs as a bar to expungement for anyone who has been incarcerated for a marijuana offense. Low marks go to two states that enacted no record reform laws at all in 2022. While there are many other states in this category this year, the legislatures of Alaska and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2021, 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records. Wisconsin’s one saving grace is the extensive record of pardoning by Governor Tony Evers in the past 30 months, during which he has pardoned more than 600 individuals, 325 in 2022 alone. Looking ahead to 2023, we expect to see a continuing expansion of eligibility for record clearing, and reduction of access barriers like lengthy waiting periods, outstanding court debt and application-related costs. We also predict efforts to improve records management to accommodate automation of record clearance. We look for extension of state fair employment laws, and further facilitation of occupational licensing, both areas where bipartisan reforms have benefitted from helpful model laws. We are slightly less optimistic about additional progress toward dismantling the structure of felony disenfranchisement, which has become mired in faction looking toward the presidential race in 2024. Hopefully, 2023 will see some record reform action in Congress and federal agencies, including measures to extend access to government-guaranteed loans and contracting opportunities to small businesses owned or managed by people with a criminal history. We have come a long way just in the past five years, but there is still a long way to go.
Reintegration Champion Awards for 2021 (1/27/2022) - Based on our annual report on 2021 criminal record reforms, the bipartisan commitment to a reintegration agenda keeps getting stronger. A majority of the 151 new laws enacted last year authorize courts to clear criminal records, in some states for the very first time, and several states enacted “clean slate” automatic record clearing. Other new laws restore voting and other civil rights lost as a result of conviction, and still others limit how criminal record is considered by employers, occupational licensing agencies, and landlords. (The report includes specific citations to each of the new laws, and they are analyzed in the larger context of each state's reintegration scheme in our Restoration of Rights Project.) Again this year we have published a Report Card recognizing the most (and least) productive legislatures in the past year. While more than a dozen states enacted noteworthy laws in 2021, two states stand out for the quantity and quality of their lawmaking: Arizona and Connecticut share our 2021 Reintegration Champion award for their passage of three or more major pieces of record reform legislation. Arizona – The state enacted eight new laws, including a broad new record clearing law, two laws improving its occupational licensing scheme, and a judicial “second chance” certificate. Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors. Connecticut – Enacted a major automatic record clearing scheme, restored the right to vote and hold office upon release from prison, provided for record clearing in connection with marijuana legalization, and broadened expungement for victims of human trafficking. Another eight states and the District of Columbia earned Honorable Mention for their enactment of at least one major new law: Alabama – Enacted first state record-clearing authority applicable to misdemeanor convictions and pardoned felonies, and extended non-conviction sealing. California – Gave retroactive effect to automatic conviction sealing law enacted in 2019. (This new law may be the most consequential of any enacted last year in terms of its impact on criminal records in the state, and it was done without fanfare or publicity.) District of Columbia – Enacted a comprehensive scheme to limit consideration of criminal record in occupational licensing. Illinois – Added employment discrimination based on conviction to the state Human Rights Act, authorized voter education for prisoners. New Jersey – Enacted a landmark fair housing bill; made some improvements to its 1970’s-era occupational licensing law; and, provided for automatic record clearing in connection with marijuana legalization. (New Jersey was our Reintegration Champion for 2019, but evidently is not resting on its laurels.) New Mexico – Improved 1970’s-era public employment and licensing law; authorized expungement of marijuana convictions; and, enacted a substantial part of the Uniform Collateral Consequences of Conviction Act, limiting and providing relief from collateral consequences. Ohio – Expanded eligibility for record-clearing; significantly improved occupational licensing law. Virginia – Authorized petition-based and automated record-clearing of non-convictions and convictions, including convictions for marijuana possession; restored vote upon release by executive order and took steps to amend constitution to this end. Washington – restored vote upon release from prison; amended occupational licensing standards for health professions; repealed driver’s license suspension based on outstanding financial obligations Low marks go to three states that enacted no record reform laws at all in 2021. While there are six other states in this category this year, the legislatures of Alaska, Massachusetts, and Wisconsin earn their place at the bottom of the heap for having been equally unproductive in 2020 and 2019, years in which almost every other state passed at least some law limiting access to and use of criminal records. The profile of each state's restoration of rights scheme from CCRC’s Restoration of Rights Project is linked above (except for the states that made no progress). The profiles contain citations and links to the relevant new laws so that interested individuals can check their specific terms.
Illinois set to become fifth state to cover criminal record discrimination in its fair employment law (2/13/2021) - NOTE: Governor Pritzker signed S1480 into law on March 23. In our recent report on criminal record reforms enacted in 2020, we noted that there were only four states that had fully incorporated criminal record into their fair employment law as a prohibited basis of discrimination. These states (New York, Wisconsin, Hawaii, and California) provide that employers can only disqualify a person based on their record if it meets a specific standard, such as being related to the work in question or posing an unreasonable risk to public safety. Illinois will become the fifth state to take this important step as soon as Governor Pritzker signs S1480. Illinois has been working up to this, having amended its Human Rights Act in 2019 to prohibit employment discrimination based on “an arrest not leading to a conviction, a juvenile record, or criminal history record information ordered expunged, sealed, or impounded.” With S1480, Illinois has now taken the final step of incorporating criminal record fully into the law's structure, which includes authorization to file a lawsuit in the event administrative enforcement is unsatisfactory. A preliminary analysis of the new Illinois law indicates that it now offers more protection for more people with a criminal record in the employment context than any state in the Nation other than California. The provisions of the Illinois bill, enrolled and sent to the governor for signature on February 12, are described below. We then compare them with the laws in the four other states that incorporate criminal record into their fair employment law. This post notes the handful of additional states that have fortified their record-related employment protections in recent years, then summarizes relevant reforms that were enacted in 2020. The new Illinois law makes it unlawful for any employer, employment agency, or labor union to use a conviction record “as a basis to refuse to hire” or to take other employment related adverse action, unless “there is a substantial relationship between one or more of the previous criminal offenses and the employment sought or held” or “the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” 775 Ill. Comp. Stat. 5/2-103.1(A). “Substantial relationship” is defined to mean “a consideration of whether the employment position offers the opportunity for the same or a similar offense to occur.” In making a determination under subsection (A), the employer must consider a variety of factors including the length of time since conviction, the extent of the record, the nature and severity of the conviction itself and its relationship to the safety and security of others, the age of the employee at the time of the offense, and evidence of “rehabilitation efforts.” 5/2-103.1(B). If the employer reaches a preliminary determination of disqualification or other adverse action, the employer must give written notice and an opportunity for respond, and in the event of a final determination an explanation of the reasons.” 5/2-103.1(C). The new Illinois law compares well with the laws in the four other states that incorporate criminal record into their fair employment law. Although the Illinois “substantial relationship” standard is not as protective as New York’s “direct relationship” standard, Illinois law elaborates the standard with the same public safety emphasis and offers more procedural protections in the form of reasons and an opportunity for reconsideration. Also, unlike New York, it prohibits any consideration of non-conviction records and sealed or expunged convictions. Hawaii has a weaker “rational relationship” standard and also excludes a large number of employments, although it bars inquiry into criminal record until after a conditional offer has been made and thereafter prohibits any consideration of non-conviction records, as well as any conviction more than seven years in the past for felonies and five years for misdemeanors (as reduced in 2020). California also bars inquiry until after a conditional offer has been made, prohibits consideration of non-conviction records and records that have been the subject of judicial relief, provides considerable procedural protections, and has the strongest standard for testing the relevance of a conviction (“direct and adverse relationship”). Wisconsin’s law is the weakest of the five: it applies a “substantial relationship” standard but does not elaborate it, and it offers no procedural protections to applicants or existing employees other than administrative enforcement of this substantive standard. The District of Columbia has also enacted robust fair chance employment protections that apply to both public and many private employers, but its law stops short of authorizing individuals dissatisfied with action by the Office of Human Rights to go to court. Colorado, Connecticut, and Nevada have recently prohibited some employers from considering certain criminal records, but those prohibitions are not fully integrated into a broader nondiscrimination law. Other states are still catching up, with many stalled at the "ban the box" stage. Our report on new legislation in 2020 documented comparatively modest but still noteworthy advances toward fair chance employment in 6 states last year. We reprint the discussion of 2020 reforms from our report below: In 2020, 6 states expanded access to employment for people with a record through 7 bills and one executive order. Two states (New Hampshire and Virginia) enacted a ban-the-box law applicable to public employment, while North Carolina’s governor issued a broad executive order that not only prohibited public employers from making application-stage inquiries, but also established standards for considering criminal record thereafter. Maryland’s legislature overrode a governor’s veto to apply application-stage limits on inquiry to private employers with more than 15 employees. Hawaii amended its venerable fair employment law to reduce the periods after which a conviction may not be considered by any employers. Overall, however, these 2020 laws had limited effect on the fair employment landscape. At the end of 2020, there were still only four states (California, Hawaii, New York, and Wisconsin) that included discrimination based on criminal record as part of their general fair employment scheme, and all but California’s law were enacted many years ago. Colorado, Connecticut, and Nevada have, like Illinois, more recently prohibited some employers from considering certain criminal records, but those prohibitions are not fully integrated into a broader nondiscrimination law. Most of the fair employment laws recently enacted involve fairly modest limits on application stage inquiry. The National Employment Law Project keeps a running tab of new “ban-the-box” laws, and reported in September 2020 that 36 states and more than 150 municipal and county ordinances now require public employers to consider applicants’ qualifications before their criminal histories, with 14 extending these limits to private employers. However, as noted in our Many Roads report, few of these laws include the kind of robust post-inquiry standards that make the 2020 North Carolina Executive Order described below stand out. The new employment laws and orders in 2020 are described briefly below: Hawaii shortened the lookback period in which a person may be disqualified based on conviction under its fair employment law, to seven years for felonies and five years for misdemeanors, excluding periods of incarceration (SB 2193). Hawaii includes discrimination based on conviction record in its more general fair employment practices law, and under preexisting law it is an unlawful employment practice to inquire into arrest and conviction records before the employee receives a conditional offer of employment, and an employer could withdraw an offer only if a conviction within the previous 10 years (exclusive of any period of incarceration) “bears a rational relationship to the duties and responsibilities of the position.” Under this new law, 10-year period is reduced to 7 years for felonies and 5 years for misdemeanors. Maryland enacted a ban-the-box law applicable to private employers with more than 15 employees, overriding Governor Hogan’s veto. The law prohibits inquiry into an applicant’s criminal record until the first interview; and authorizes civil penalties. Certain employment is excepted. The law specifically does not preclude local jurisdictions from imposed stricter standards (HB 994). Md. Code Lab. & Empl. § 3-1403. North Carolina’s governor issued an executive order (EO 158), which directs all state agencies to remove questions about criminal record from employment application forms, and to defer inquiries until “the completion of the initial job interview.” The order further prohibits agencies from considering the following: (i) expunged or pardoned convictions, (ii) charges or convictions that do not relate to the underlying employment matter, (iii) arrests not resulting in a conviction, or (iv) charges resulting in dismissal or not guilty. State employment decisions “shall not be based on the criminal history of an individual unless that criminal history is demonstrably job-related and consistent with business necessity associated with the position, or if state or federal law prohibits hiring an individual convicted of certain crimes for a particular position.” New Hampshire prohibited an application-stage inquiry into criminal record in public employment prior to the initial interview, “unless the public employer is required to screen applications for specific criminal convictions because it is prohibited from hiring those with such convictions under state or federal law” (HB 253). N.H. Rev. Stat. Ann. § 275:37-c(II). Utah removed an absolute barrier based on certain convictions for employment with vulnerable populations, if the applicant will be serving only adults whose only impairment is a mental health diagnosis. In addition, certain convictions cannot be disqualifying after 10 conviction-free years for felonies, and three years for misdemeanors (HB 436). Virginia prohibited inquiry into criminal record by public employers prior to interview. Excepts law enforcement employment and certain other sensitive employments (HB 757). Va. Code Ann. §§ 2.2-2812.1, 15.2-1505.3. Virginia added crimes to the list for which an exception is available for employment with a substance abuse or mental health program at community services boards and private providers of behavioral health services licensed by the Department of Behavioral Health and Developmental Services. This law also allows the Department to hire individuals convicted of various crimes at a state facility if the Department determines the individual has been rehabilitated successfully and is not a risk to those receiving services (HB 1540). Virginia also decriminalizes marijuana possession, restricted public access to records relating to past arrests, charges, or convictions for this offense, prohibited employers and educational institutions from inquiring about them, and prohibited state and local officials from requiring an applicant for a license, permit, registration, or governmental service to disclose information about them (SB 2 / HB 972). Va. Code Ann. §§ 18.2-250.1; 19.2-389.3.
Prisoners fighting California fires denied licenses after release (8/20/2018) - Nick Sibilla, a legislative analyst at the Institute for Justice, has published this fine op ed piece in today's USA Today, describing how the 2,000 state prisoners currently engaged in fighting the largest fire in California history, are barred from obtaining the necessary EMT license that would enable them to continue this work after their release. It contains, inter alia, a description of the two bills currently pending in the California legislature that would end what Nick describes as a "bitterly ironic" situation, where prisoners gain valuable training in certain vocations that they cannot use after their release. The piece seems particularly relevant, in light of the amazing work being done on occupational licensing reform across the country, much of it inspired by the Institute for Justice's Model Collateral Consequences in Occupational Licensing Act. See, e.g. New Hampshire, Wisconsin, Kansas, Indiana, Arizona, and Tennessee. We hope California will soon join this group of enlightened jurisdictions, and that other states will follow in the coming year. Despite fighting California's largest fires, inmates are denied licenses they need to become firefighters after they get out. by Nick Sibilla, USA Today, August 20, 2018 As California struggles to contain the largest fire in state history, more than 2,000 inmates have volunteered to fight the flames. Offering just $1 an hour, the state has long encouraged low-level prisoners to risk their lives and serve alongside professional firefighters, who earn nearly $74,000 a year on average. Firefighting, along with less life-threatening trades like plumbing, welding, and cosmetology, is one of several vocational training programs offered to prisoners by the California Department of Corrections and Rehabilitation. But in a bitterly ironic twist, once inmates leave prison, they often can’t work as firefighters, despite their frontline experience. In California, nearly all counties require firefighters to become licensed emergency medical technician (EMTs) — a credential that can be denied to almost anyone with a criminal record. Many are denied jobs for their criminal record Nor are firefighters the only position off-limits. Under California law, the state’s licensing boards can deny a credential on the basis of an applicant’s criminal record or alleged misconduct. Thanks to the rise in occupational licensing, nearly 1,800 occupations now require a license, certification, or clearance in the Golden State, affecting one-fourth of California’s workforce. As a result, hundreds of different occupations are effectively barred to roughly 8 million Californians. California’s firefighting felons are a particularly stark illustration of a growing, national problem. According to the American Bar Association, the nation’s occupational and business licensing laws contain over 27,000 restrictions on ex-offenders, including bans on working as barbers or hosting bingo games. Those barriers impose significant costs. Research by the Center for Economic and Policy estimates that in 2014, employment barriers for the incarcerated and those with felony convictions cost the nation’s economy up to $87 billion in annual GDP, equal to “the loss of 1.7 to 1.9 million workers.” Not only do these policies slam the door on economic opportunity, they may also increase re-offending. A recent study from Arizona State University found that states with more burdensome licensing laws saw their average recidivism rates jump by nine percent. By comparison, states with fewer licensing restrictions and no moralizing provisions had recidivism rates decline by 2.5 percent, on average. In fact, licensing burdens were second only to the overall labor market climate when it came to influencing recidivism rates. California is trying to fix the problem Fortunately, new legislation would curb some of California’s licensing barriers against ex-offenders. As part of a public safety omnibus signed earlier this year, the California Department of Forestry and Fire Protection (CAL-FIRE) can certify former prison firefighters as “emergency medical responders,” a certification CAL-FIRE accepts in lieu of an EMT license for some state firefighter jobs. A separate bill would require agencies to report the number of applicants with a criminal conviction who have been denied or granted an EMT license, which would provide valuable data for further reforms. More broadly, another bill, AB 2138, would tighten the standard used to disqualify ex-offenders by the Department of Consumer Affairs, which governs 38 different boards, bureaus and commissions. Under the bill, boards could not use a conviction older than five years to reject a license (though that would not apply to violent felonies). Each board would also have to publish the criteria it uses to evaluate applicants, which must include any evidence of rehabilitation, the time elapsed since the offense as well as the nature and gravity of the offense. Critically, boards could only use convictions, not arrests or records from dismissed cases. AB 2138 has already passed the Assembly earlier this year and is currently under consideration in the Senate. California could soon join 16 states that have already eased or eliminated licensing barriers for Americans with criminal records since 2015. Many of these state reforms protect the ability of ex-offenders to get the permits they need, while also ensuring that boards only deny applicants who would truly threaten public safety. California needs fewer requirements to work These efforts are all welcome reforms to a system in desperate need of an overhaul. Yet even if former inmates aren’t automatically barred because of their past mistakes, burdensome licensing requirements can still keep them from working. According to a recent, nationwide study by the Institute for Justice (where I work), the average license for a lower-income occupation takes almost a year of education or experience. California ranked as the “worst licensing environment for workers in lower-income occupations,” with the average license requiring a staggering 827 days of training. Absurdly, becoming a professional tree trimmer, barber, or painting contractor in California takes vastly more experience than becoming an EMT, who literally holds the lives of others in their hands. A steady job is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work. The denial of so many fundamental civil rights and liberties has essentially turned many ex-offenders into second-class citizens. Restoring the right to earn an honest living is crucial for ex-offenders to regain a sense of hope and a new chance at redemption. Nick Sibilla is a legislative analyst at the Institute for Justice. You can follow him on Twitter: @nick_sibilla More: Louisiana is the only state that requires occupational licenses for florists. It's absurd. Ridiculous licensing rules are holding back people who want to work Prisoners who risk their lives during Calif. wildfires shouldn't be shut out of profession
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.
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<<
Divided Wisconsin Supreme Court declines to extend Padilla to other serious consequences (6/10/2016) - Last month the Wisconsin Supreme Court held in State v. Lemere that the Sixth Amendment does not require defense counsel to advise a client that a conviction for a pending charge of sexual assault could result in future commitment proceedings under chapter 980. The case could be appropriate for certiorari review in the U.S. Supreme Court regarding the scope of the Sixth Amendment right to counsel, since it reflects differing views in state high courts. [1. Ed. Note: State high courts have reached differing conclusions about the scope of the Padilla holding under the federal Constitution. The Illinois Supreme Court held in People v. Hughes that failure to warn about the possibility of civil commitment was sufficient to invalidate a plea. The Utah Supreme Court reached a contrary conclusion in State v. Trotter.] The defendant, seeking to withdraw his guilty plea to a charge of first-degree sexual assault of a child, relied on a claim that his trial attorney had failed to advise him of the potential for a chapter 980 commitment following his term of incarceration. He further alleged that had he been informed of that possibility, he would not have pleaded guilty. The defense relied heavily on Padilla v. Kentucky, in which the U.S. Supreme Court found that Padilla’s attorney performed deficiently by providing incorrect information about the immigration consequences of a drug conviction. The 2010 Padilla decision recognized that despite the traditional distinction between direct punishment and collateral consequences, the duty of defense attorneys in advising clients includes immigration consequences when a criminal conviction would automatically render the client deportable. Interpreted narrowly, the Padilla exception to the direct/collateral dichotomy is limited to the unique consequence of immigration (and possibly limited to circumstances in which these consequences are clear under federal immigration statutes). Read more broadly, however, Padilla could support case-by-case consideration of whether reasonable representation requires the attorney to provide information about the other legal consequences of conviction. And in this broader context, the potential for lifetime civil commitment under chapter 980 would seemingly be a logical extension of Padilla’s reasoning. In adopting the narrower interpretation, the Lemere majority starts with the traditional distinction between direct components of a criminal sentence and collateral consequences, which are indirect and may be contingent upon future events or proceedings. The majority also emphasized that the Padilla Court described deportation as a specific, severe, and “nearly automatic” consequence that could not be neatly categorized as either direct or collateral. The majority relied upon a subsequent U.S. Supreme Court case, Chaidez v. United States, 133 S. Ct. 1103, 1112 (2013), for the view that Padilla had created an exception, but had not rejected the distinction between direct and collateral consequences. In addition to noting the limited holding of Padilla, the majority compares the consequences of deportation and chapter 980 commitment, starting with their relative severity. Although acknowledging that a chapter 980 commitment is serious and can even be a lifetime commitment, the majority concludes that chapter 980 “is not as uncompromisingly severe a consequence as deportation.” Next, the majority reviewed precedent holding that chapter 980 commitments are not punitive, but rather intended to provide treatment necessary to reduce the threat of future sexual assaults. The majority opinion also analyzes the connection between the criminal conviction and the potential consequence, emphasizing that only a small percentage of eligible inmates are subject to chapter 980 petitions. Even if a petition is filed, the respondent has the right to a trial at which the State has the burden to prove factual elements (dangerousness and mental disorder) in addition to the nature of the conviction. The dissent, written by Justice Ann Walsh Bradley and joined by Justice Abrahamson, evaluated the chapter 980 consequence as similar to the immigration consequence in Padilla because of its severity and because the conviction renders the defendant automatically subject to the consequence. The dissent concludes that these factors override the traditional direct-collateral distinction. The dissent criticizes the majority’s attempt to minimize the severity of a chapter 980 commitment and the attempt to characterize chapter 980 as less certain than deportation. The dissent relies on statistics regarding the duration of commitments and cites both U.S. and Wisconsin Supreme Court opinions emphasizing the risk of (or automatic eligibility for) deportation, not the certainty of deportation. The majority and dissent agree on one point: The best practice is certainly for the defense attorney to discuss with his or her client all meaningful consequences of a plea. Not all consequences are as well known or as common as chapter 980, but there are resources available to assist in identifying potential consequences. An open-ended client interview is important to learn what consequences (such as areas of employment and other activities) may be of particular interest.
Wisconsin court rules for non-citizen years after her plea (3/3/2016) - In an unusual case involving judicial failure to warn about the immigration consequences of a guilty plea, the Wisconsin Supreme Court has held that the likelihood of inadmissibility (as opposed to deportation) was sufficient to set aside three guilty pleas entered more than a decade before. State v. Valadez, 216 WI 4 (Jan. 28, 2016). The decision suggests that it may be possible to challenge guilty pleas years after the fact, in any jurisdiction where a statute or court rule requires the court to warn about immigration consequences before accepting a guilty plea. Melisa Valadez became a lawful permanent resident of the United States in 2001, at age 15. At age 19, she was convicted in three cases of drug-related offenses. In all three cases, the Wisconsin state court failed to provide statutory warnings that a plea of guilty or no contest could carry adverse immigration consequences. (The case was decided under Wisconsin Statute 971.08(1)(c), which requires the court to warn about immigration consequences prior to accepting a plea, and so does not implicate the right to counsel as applied in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010)). After serving jail time and successfully completing probation, Ms. Valadez had no subsequent convictions. In 2013, she filed a motion to withdraw her guilty pleas, arguing that the convictions would likely result in her exclusion from (denial of admission to) the U.S. if she were to leave and then seek to return. The State argued that, because she was not threatened with deportation, she had not demonstrated a likelihood of an adverse consequence, which is a statutory requirement for relief when the court has failed to provide the immigration advisal. The Wisconsin Supreme Court held that by showing that exclusion was likely under the applicable federal statutes, Ms. Valadez had satisfied the likelihood requirement regarding an adverse impact. She did not need to leave the U.S. and actually suffer the adverse consequence of exclusion. By contrast, when relying upon a likelihood of deportation as the pertinent adverse consequence, a defendant must allege specific facts to show a causal connection between the conviction in question and the likelihood of a deportation proceeding (a burden difficult to meet if immigration authorities have not detained the defendant or initiated deportation proceedings). Although the intermediate court of appeals had raised the issue of timeliness of the defendant’s motion, the parties agreed that even if a time limit might be appropriate in other circumstances, Ms. Valadez was entitled to a ruling on the merits of her motion. This case underscores the importance of potential immigration consequences to non-citizen defendants in criminal cases. In the context of plea negotiations, the defense attorney has a constitutional responsibility to provide accurate information about these consequences, and by statute the court must give the basic notice that a guilty or no contest plea may result in adverse consequences.
Wisconsin considering redacting youthful dismissed charges (7/4/2015) - As part of budget deliberations, the Wisconsin Legislature’s Joint Finance Commitment approved a provision that would allow courts to remove records of certain dismissed charges from the computerized statewide records system. Under current law, although certain conviction records of youthful defendants may be expunged, anomalously dismissed charges remain accessible. The new provision would allow a judge to order removal of a record from the internet site if all charges have been dismissed; all charges carried a maximum penalty not exceeding six years of imprisonment; none of the charges were classified as violent crimes; and the charges were filed before the defendant attained age 25.http://rma-api.gravity.com/v1/beacons/log?cbust=123-37&site_guid=8e869b3a021a8bf8e030fa6bc6ebd3d6&action=beacon&user_guid=38ad249caa95ed029d1657149130d3b2&referrer=&browser_useragent=Mozilla%2F5.0%20(AOL%209.7%3B%20AOLBuild%204343.1028%3B%20Windows%20NT%206.1%3B%20WOW64%3B%20Trident%2F7.0%3B%20SLCC2%3B%20.NET%20CLR%202.0.50727%3B%20.NET%20CLR%203.5.30729%3B%20.NET%20CLR%203.0.30729%3B%20Media%20Center%20PC%206.0%3B%20.NET4.0C%3B%20InfoPath.3%3B%20rv%3A11.0)%20like%20Gecko&OS=Windows&href=http%3A%2F%2Fhost.madison.com%2Fnews%2Flocal%2Fexpungement-change-approved-by-budget-panel-could-help-young-offenders%2Farticle_1172c39d-141d-5192-8bf8-1a12990bbe1f.html&url=http%3A%2F%2Fhost.madison.com%2Fnews%2Flocal%2Fexpungement-change-approved-by-budget-panel-could-help-young-offenders%2Farticle_1172c39d-141d-5192-8bf8-1a12990bbe1f.html&article_title=Expungement%20change%20approved%20by%20budget%20panel%20could%20help%20young%20offenders%20%3A%20Wsj&type=contenthttps://apis.google.com/_/scs/apps-static/_/js/k=oz.gapi.en.RArmLpCIYB0.O/m=auth/exm=plusone/rt=j/sv=1/d=1/ed=1/am=UQ/rs=AGLTcCNdsHwKwytm_BdBPIfRKL9FK1gKdQ/t=zcms/cb=gapi.loaded_1https://apis.google.com/_/scs/apps-static/_/js/k=oz.gapi.en.RArmLpCIYB0.O/m=plusone/rt=j/sv=1/d=1/ed=1/am=UQ/rs=AGLTcCNdsHwKwytm_BdBPIfRKL9FK1gKdQ/t=zcms/cb=gapi.loaded_0//api-public.addthis.com/url/shares.json?url=http%3A%2F%2Fhost.madison.com%2Fnews%2Flocal%2Fexpungement-change-approved-by-budget-panel-could-help-young-offenders%2Farticle_1172c39d-141d-5192-8bf8-1a12990bbe1f.html&callback=_ate.cbs.sc_httphostmadisoncomnewslocalexpungementchangeapprovedbybudgetpanelcouldhelpyoungoffendersarticle1172c39d141d51928bf81a12990bbe1fhtml0http://rma-api.gravity.com/v1/beacons/initialize?u=undefined&sg=8e869b3a021a8bf8e030fa6bc6ebd3d6//apis.google.com/js/plusone.jshttp://b.grvcdn.com/moth-min.js//q.addthis.com/feeds/1.0/trending.json?pubid=ra-4f4bf36f35963358&period=week&domain=host.madison.com&callback=_ate.cbs.fds_ra4f4bf36f359633580 These are the same criteria that apply to expungement of youthful convictions. // <![CDATA[ (function() { var src = '//ox-d.leessp.servedbyopenx.com/w/1.0/jstag?nc=8438-Lee'; document.write(''); })(); // ]]>//ox-d.leessp.servedbyopenx.com/w/1.0/jstag?nc=8438-Lee// http://partner.googleadservices.com/gpt/pubads_impl_65.js https://html5shim.googlecode.com/svn/trunk/html5.js /shared-content/art/tncms-ad-manager/swfobject/swfobject.js// //s7.addthis.com/static/box.9b6859bdb7b6ea817497.jshttps://www.syncaccess.net/lee/mad/api/svcs/meter?sessionId=&contentId=metered&externalId=&referrer=&page=http%3A%2F%2Fhost.madison.com%2Fnews%2Flocal%2Fexpungement-change-approved-by-budget-panel-could-help-young-offenders%2Farticle_1172c39d-141d-5192-8bf8-1a12990bbe1f.html&authToken=&source=&callback=serverCallback&nocache=1435980516222//s7.addthis.com/static/menu.16fba156d6c0f44d6b65.js//s7.addthis.com/static/hi-res-css.0d3543bb44e244a26641.js//s7.addthis.com/static/counter.650de04709add36ab0dd.js//s7.addthis.com/static/hi-res-css.0d3543bb44e244a26641.js//s7.addthis.com/static/layers.121a0e4a469de658b97e.jshttp://pagead2.googlesyndication.com/pagead/osd.js People who would benefit from the change include people whose only contact with the criminal justice system was a case that was ultimately dismissed after they went through deferred prosecution or a first offenders program. The new law would apply retroactively, thus allowing individuals to apply for removal from the website of charges dismissed before the effective date of the provision. The redaction of records would apparently apply only to records accessible on the website, not to court records accessible through the local clerk of court, nor to arrest records accessible through law enforcement agencies. The state budget still awaits approval by both houses of the Legislature and by the Governor, who has broad authority for line-item vetoes.