Author Archives: CCRC Staff

California poised to become third state to adopt “clean slate” record relief

On September 23, the California legislature sent AB 1076 to California Governor Gavin Newsom, who has until October 13 to sign or veto this potentially transformative legislation.  If enacted, AB 1076 would make California the third state (after Pennsylvania (2018) and Utah (2019)) to authorize “clean slate” record relief, a direction to authorities to seal certain arrest and conviction records automatically. (Illinois, New York, and California have enacted automatic relief for certain marijuana convictions, and several states have automatic relief for non-convictions.)  AB 1076 creates a parallel eligibility scheme that overlaps but is not exactly coincident with the petition-based system, as well as a new procedure for automatic relief.  The specific provisions are described generally below, and more fully after the break.

AB 1076 would not modify eligibility for relief under California’s existing scheme of judicial remedies for people with criminal records, via sealing as well as dismissal and set-aside.  Rather, effective January 1, 2021, it would create a new process obviating the requirement of an individually-filed petition or motion in most cases.  If this bill is signed into law, California would break new ground in becoming the first state to extend automatic “clean slate” relief to felony convictions (other than for marijuana possession).

A less-noted but significant feature of AB 1076 is its expansion of the effect of relief for conviction records:  it provides for non-disclosure of records of convictions that have been dismissed or set aside, whether automatically or by petition, and makes this provision applicable both to court records (effective February 1, 2021) and to records in the state repository (effective January 1, 2021), except in certain specified circumstances where disclosure is mandated by law.  As it is, and notwithstanding the widespread use of the term “expungement” to describe its general relief scheme for convictions, California has no law authorizing limits on public access to most conviction records, whether held by the court or by the state repository.  This would change in 2021, if this law is enacted.  (Most non-conviction records are now eligible for sealing by petition under California law.)  Note that, like most state repositories, California’s repository permits disclosure only to government agencies and specified private entities, so that the new limits apply within the class of otherwise authorized repository users.

The sponsors of AB 1076 emphasize that making relief automatic without the need for individual action will significantly reduce “barriers to employment and housing opportunities for millions of Californians.”  They point to the key findings of J.J. Prescott and Sonja Starr’s 2019 study of record-sealing in Michigan: 1) people who had their conviction records sealed tended to have improved employment outcomes and lower recidivism rates than the general population; but 2) only a small percentage (6.5%) of those individuals eligible for set-aside and sealing actually applied, likely because of the complexity and burdens of filing a petition for relief with the court.  While no comparable study has been done for California, experience with that state’s marijuana-sealing law suggests that the low “take-up” rate is similar to the one Prescott and Starr found in Michigan.

If California’s new law is enacted, beginning in 2021 the state will automatically grant relief for many arrests not resulting in conviction, for infraction and misdemeanor convictions, and for some less serious felony convictions.  For eligible non-convictions—misdemeanor and some felony arrests—sealing will become automatic.  (However, a significant set of felony arrests not leading to conviction are excluded, as discussed below, although most of these dispositions remain eligible for petition-based relief.)  For eligible convictions, dismissal and set-aside will be automatic provided that a number of additional eligibility requirements are satisfied, including that a person must not be required to register as a sex offender, or be currently subject to prosecution, supervision, or incarceration for any offense.  Prosecutors and probation officers may object to automatic conviction relief in individual cases on “based on a showing that granting such relief would pose a substantial threat to the public safety,” and such an objection may be tested in a court hearing.

A major shortcoming of AB 1076 — in contrast to the “clean slate” laws enacted in Pennsylvania and Utah—is that its automatic relief is prospective only.  That is, relief is automatic only for arrests and convictions occurring after the law’s effective date.  Those with arrests and convictions occurring before 2021 would still have to apply to the court for relief.  Though the original bill had applied retroactively, the Assembly amended the bill to exclude arrests and convictions occurring before January 1, 1973, and then the Senate further amended it to exclude those occurring before January 1, 2021.  Presumably these changes were based on financial and logistical considerations.  The annual cost for the California Department of Justice (DOJ) and courts to carry out the final bill is estimated to total between about $2 and $5 million each year.  Moreover, the bill’s effective date, January 1, 2021, is specifically subject to an appropriation in the annual budget, and the State’s Department of Justice has indicated it “would need the implementation date to be delayed to July 1, 2023 for proper implementation.”  Despite challenges in implementation, we hope that, as the new automated system is developed, it will be feasible to extend relief to records predating 2021.

Of course, as noted, the provisions providing for non-disclosure of conviction records would apply to all cases dismissed or set-aside, without regard to when or by what process this relief was granted.

We will now describe in detail California’s clean slate legislation, which would add two new sections to the Penal Code, 851.93 and 1203.425, dealing with arrests and convictions, respectively, and amend the section of the Penal Code that deals with state records systems, 11105.

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Two Southern states enact impressive occupational licensing reforms

The 2019 legislative session saw two Southern states enact impressive new laws limiting the ability of occupational licensing boards to exclude qualified applicants based on their criminal record.  North Carolina and Mississippi each passed strong new substantive and procedural licensing rules, and both of the new laws show the influence of the Model Law developed by the Institute for Justice.  Both states have now eliminated vague “good moral character” criteria, and extended procedural protections that should make it substantially harder for boards to deny licenses based on criminal history.

As a result of these bills, both states now prohibit disqualification from licensure unless a crime is “directly related” to the license involved, both require written reasons in the event of denial, and both provide for a preliminary determination as to whether an individual will be favorably considered.  In North Carolina’s case, this “predetermination” is binding on the board when the applicant later applies.  North Carolina’s new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record.

In 2019, the following additional states have enacted new restrictions on the occupational licensing process:  Arizona, Arkansas, Florida, Nevada, Ohio, Texas, Utah and West Virginia.  All told, in the past eight months 14 states have enacted 18 laws regulating occupational licensing in one form or another, with Texas accounting for five of the 18.  These new laws are described in the relevant state profiles of the RRP, and they will be discussed in greater detail in our year-end report.  They will also be incorporated into the updating of our general survey of U.S. relief and restoration mechanisms (“Forgiving and Forgetting in American Justice”),  which is now underway.

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CCRC urges Supreme Court to reverse Iowa expungement decision

*Update 2: On November 25, 2019, the Supreme Court denied the petition.

*Update (11/1/2019):  On September 23, 2019, the Supreme Court asked Iowa to respond to the cert petition.  Iowa’s response is here.  The petitioner’s reply is here.

On September 9, we filed an amicus brief at the U.S. Supreme Court urging the justices to review and reverse a decision out of Iowa that upholds wealth-based barriers to expungement.  We were joined by the Institute for Justice, a libertarian public interest law firm.  At issue in the case is an Iowa law that bars a person from obtaining expungement of a dismissed or acquitted case if they owe any court fees in the case.  We point out the inequity of denying access to expungement based on socio-economic status:  “The irony of Iowa’s expungement law could not be clearer: a law that removes a hurdle to employment and economic security cannot be invoked by indigent individuals until outstanding costs and fees are paid to the state, effectively defeating the very purpose of providing expungement relief in the first place.”

This case arises from Jone Doe’s request in 2018 to expunge her dismissed criminal case from 2009.  But she still owes $550.38 for her court-appointed attorney, which she cannot afford to pay.  Doe argued the requirement to pay outstanding fees before obtaining expungement violates her equal protection rights under the constitution.  She pointed out that had she been able to hire a private attorney, she would be eligible for expungement, whether or not she owed attorney fees.  The lower court denied the request, finding that Doe “was made aware of reimbursing attorney fees and that expungement could not occur until all fees and assessed costs were paid.”  The Iowa Supreme Court, by a 4-3 vote, upheld the requirement, finding the state has a legitimate purpose “to encourage payment of court debt.”  On petition to the Supreme Court, we urge the Court to “grant certiorari and hold that one’s inability to pay court fees may not restrict access to statutorily-created expungement rights.”

We were represented by Ethan P. Fallon and Thomas M. Bondy of Orrick, Herrington, & Sutcliffe LLP, and appreciate their work on this case.  The full amicus brief is available here.

Appeals court invalidates EEOC criminal record guidance

On August 6, the 5th Circuit Court of Appeals invalidated the EEOC’s 2012 Enforcement Guidance on “Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964.”  See Texas v. EEOC, No. 18-10638 (August 6, 2019).  Among other things, the Guidance prohibits consideration of blanket bans on hiring people with a criminal record, and requires nuanced case-by-case consideration as to whether a particular employment policy or action satisfies Title VII’s business necessity test.  The State of Texas claimed that the Guidance was an unauthorized substantive rule that would override numerous mandatory state law bars to hiring people with a felony conviction.  After rejecting various jurisdictional defenses based on lack of finality and standing, the court affirmed the district court’s holding invalidating the Guidance.

Perhaps the most significant thing about the appeals court’s ruling is its conclusion that the Guidance was a substantive rule that exceeded the EEOC’s authority to bind either public or private employers.  The district court had simply enjoined enforcement of the Guidance pending satisfaction of the notice and comment rulemaking requirements of the APA.  But the court of appeals went further, stating that “the text of Title VII and precedent confirm that EEOC lacks authority to promulgate substantive rules implementing Title VII.”  It therefore modified the district court’s injunction to strike the clause “until the EEOC has complied with the notice and comment requirements under the APA for promulgating an enforceable substantive rule.”  The court also “clarified” the terms of the injunction to say that “the EEOC and the Attorney General may not treat the Guidance as binding in any respect.”

While there may yet be further litigation over the Guidance, and while Congress may yet decide to act to bar record-based discrimination, it would appear that action to secure fair chance employment will now be with the states.

 

 

 

Diversion pleas qualify as convictions under federal background check law

The federal Fair Credit Reporting Act (FCRA) prohibits companies engaged in criminal background screening from reporting records of arrests that are more than seven years old.  But since the 1990’s, there has been no time limit on reporting “records of convictions of crimes.” See 15 U.S.C. § 1681c(a)(2) and (5).  It might reasonably be assumed that criminal cases terminated in favor of the accused without a conviction (such as uncharged arrests, acquittals and dismissed charges) would fall into the first category, and so would not be reportable after seven years.  But we were recently alerted to a decision of the 7th Circuit from April that defined the term “conviction” in FCRA broadly to include any disposition involving a guilty plea, even if the charges are dismissed pursuant to a diversionary program with no resulting conviction under state law.

In Aldaco v. Rentgrow, a background screening company reported to Rafaela Aldaco’s prospective landlord that she had pleaded guilty to a battery charge twenty years earlier.  As a result, the landlord rejected Aldaco’s rental application.  Aldaco conceded her guilty plea, but pointed out that the court had deferred proceedings while she successfully completed a brief supervision sentence, after which the court had dismissed the battery charge without a judgment of conviction under Illinois law.  She sued the background screener, arguing that reporting her dated non-conviction disposition violated FCRA’s seven-year bar.

The court of appeals ruled against Aldaco, holding that the term “conviction” in FCRA must be defined by federal rather than state law, and that a guilty plea is all it takes to convert a state non-conviction disposition into one that qualifies as a conviction under federal law.  The leading Supreme Court case in this area is Dickerson v. New Banner Institute, 460 U.S. 103 (1983), which held that an Iowa man whose charges had been diverted and expunged after a guilty plea nonetheless had a “conviction” for purposes of the federal felon-in-possession law.  (Congress later revised the federal firearms law to incorporate state relief mechanisms into that law’s definition of conviction.  See 18 U.S.C. § 921(a)(20).)  The term “conviction” in other federal laws has been similarly interpreted  to include state non-conviction dispositions that include a guilty plea.  See United States v. Gomez, 24 F.3d 924 (7th Cir. 1994)(“prior conviction” under § 841(b)(1) includes a plea to a probationary sentence that did not result in a final adjudication); Cleaton v. Department of Justice, 839 F.3d 1126, 1130 (Fed. Cir. 2016)(5 U.S.C. § 7371(b) requires that “[a]ny law enforcement officer who is convicted of a felony shall be removed from employment,” and this includes a guilty plea simpliciter); Harmon v. Teamsters Local 371, 832 F.2d 976 (7th Cir. 1987)(29 U.S.C. § 504(a) prohibits persons “convicted of” various felonies from serving as an officer, director, consultant, or in other leadership roles in labor organizations, and the term is defined by federal law and includes deferred judgments).  These decisions suggest that absent a contrary indication from Congress,  federal courts will count diversionary pleas as convictions under federal law, including FCRA.

Short of revising FCRA itself, it would appear that there are two ways to ensure that state non-conviction dispositions are not included in background checks as federal “convictions” after seven years.  One is to eliminate the requirement of a guilty plea from diversionary dispositions.  The U.S. Sentencing Guidelines show the way: the provisions on criminal history distinguish between “[d]iversion from the judicial process without a finding of guilt” which is not counted as part of an individual’s criminal history for sentencing purposes, and “a diversionary disposition resulting from a finding or admission of guilt, or a plea of nolo contendere” which counts toward criminal history.  See U.S.S.G. § 4A1.2(f).  Therefore, if states want their diversion programs to achieve their stated goals of avoiding convictions in appropriate cases, they should consider phasing out plea requirements.

The second way to avoid having a diversionary disposition reported as a conviction is to ensure that diversion includes sealing or expungement of the record.  There is a growing body of caselaw interpreting FCRA’s requirements that data be both accurate and up to date to prohibit reporting sealed or expunged convictions.  See Sharon Dietrich’s analysis of the issue for CCRC here.  In fact, it appears that Aldaco herself may have been eligible to have her record expunged under Illinois law, though there is no indication that she sought this relief.  While expungement probably would not have mattered to the federal court’s holding on the meaning of “conviction,” it might have given Aldaco an alternative FCRA ground for challenging the background screener’s report.

 

This post is part of a series for CCRC’s non-conviction records project, a study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred dispositions, and acquittals.

Other posts in the series:

CCRC to hold roundtable on criminal records at U. Michigan Law School

Colorado limits immigration consequences of a criminal record

Survey of law enforcement access to sealed non-conviction records

Administration withdraws proposal to require federal job-seekers to disclose diversions

Iowa high court holds indigent attorney fees bar expungement

NY judge rules police need court order to access sealed arrests

CCRC opposes requiring federal job seekers to disclose some non-conviction records

CCRC launches major study of non-conviction records

 

 

 

 

New restoration laws take center stage in second quarter of 2019

State legislatures across the country are moving quickly and creatively to repair some of the damage done by the War on Crime, which left a third of the adult U.S. population with a criminal record.  In the second quarter of 2019, 26 states have enacted an eye-popping total of 78 separate new laws aimed at addressing the disabling effects of a record.  Coupled with the laws enacted in the first quarter, the total for the first half of 2019 is 97 new laws enacted by 36 states.  By way of comparison, in all of 2018 there were 61 new restoration laws enacted in 32 states and two territories, which was then a record.

Much of the new legislation this quarter is quite significant.  Some states made their first substantial effort in decades to deal with the problems presented by record-based discrimination, while others refined and extended reforms enacted in the recent past.  Some states enacted multiple laws dealing with the same restoration issue (Texas stands out with five laws on occupational licensing alone), and some dealt with multiple issues in one law (New York dealt with no fewer than twelve separate issues in a 2020 budget bill).  Many of the specific laws enacted in the second quarter were anticipated by laws enacted by other states in the first.

As in the past, state lawmakers this quarter focused most of their attention on facilitating access to record-clearing, although a significant number of new laws regulate consideration of criminal record in the occupational licensing process.  Another important area of progress is in restoration of voting rights.  Other matters addressed by new laws include driver’s licenses and firearms; diversionary dispositions; and immigration consequences.  Surprisingly few of the new laws deal directly with employment, perhaps on the assumption that limited access to criminal records will also limit employment discrimination, at least where a background check is not mandated by law (frequently an exception to sealing).  Only one law enacted during this past quarter took a step backward to restrict an existing restoration measure (a significant development in Florida in the area of voting rights).

The new laws also display a remarkable variety, indicating either that the spirit of experimentation is alive and well in the States, or that States are desperate for law reform guidance, or both.  Meanwhile, in stark contrast to this prolific state law-making, Congress has not attempted to deal with the problem of reintegration for more than a decade—either by reducing federal collateral consequences or by restoring rights to people with federal convictions.

Below, we describe some of the more significant new laws by category, covering voting rights, record-sealing, occupational licensing, immigration, and what for want of a better term we call “odds and ends.”  For those interested in further details about the new laws, we have described and analyzed them in the state profiles and summary charts of the Restoration of Rights Project.  (In order to access the full analysis of the new laws in the RRP, you must clink the link on the “summary” sheet labeled “Read the Full Profile.”)

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“Wealth-based penal disenfranchisement”

This is the title of a study by UCLA law professor Beth Colgan, published in the Vanderbilt Law Review, in which she documents how every state that disenfranchises people based upon criminal conviction also conditions restoration of the vote for at least some people upon their ability to pay.  In some states this is because the law requires people to pay fines, fees, restitution and other court costs before they can vote.  Even in the states that restore the vote immediately upon release from prison, “wealth-based penal disenfranchisement” may occur through policies applied by parole and probation authorities. Colgan proposes that such laws and policies can be challenged on Equal Protection grounds, arguing that felony disenfranchisement should be considered not as a civil rights deprivation but as punishment.  She argues that the test developed by the Supreme Court in cases involving disparate treatment between rich and poor in criminal justice practices, should operate as a flat prohibition against “the use of the government’s prosecutorial power in ways that effectively punish one’s financial circumstances unless no other alternative response could satisfy the government’s interest in punishing the disenfranchising offense.”

Colgan’s article is particularly relevant in light of Florida’s recent enactment of a law that seems to frustrate the will of the 64% of Florida voters who acted last fall by ballot initiative to provide relief from one of the country’s strictest disenfranchisement provisions.  On Friday, shortly after the Governor signed into law a bill conditioning restoration of the vote on payment of all court-imposed debt, a group of civil rights organizations filed suit in federal court, claiming that the new law violates the Constitution in several ways, most premised on the notion that disenfranchisement constitutes punishment.  Among other things, the suit argues that “the Fourteenth Amendment’s doctrine of fundamental fairness prevents states from punishing individuals if they fail to do the impossible—satisfy legal financial obligations when they do not have the means to do so,” and that the new law violates Equal Protection in discriminating between those who are able to pay and those who are not.  We intend to follow this litigation all the way to the Supreme Court, if necessary.

Here is the Colgan article’s abstract: Read more

CCRC to hold roundtable on criminal records at U. Michigan Law School

We are pleased to announce that we are convening a roundtable meeting in August 2019, hosted by the University of Michigan Law School, to develop a model law on access to and use of criminal records, specifically in cases that do not result in a conviction.

In March, we began a major study of the public availability and use of these non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public allowing widespread dissemination on the internet, both directly and through private for-profit databases.  Their appearance in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Research has shown that limiting public access to criminal records through mechanisms like sealing and expungement increases the earning ability of those who receive this relief, which in turn benefits their families and communities.

The problems of access and use are not limited to private actors:  a recent court decision in New York suggests that police departments in some jurisdictions make operational use of sealed non-conviction records even when the law prohibits it.

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“Invisible Stripes: The Problem of Youth Criminal Records”

This is the title of a paper by Professor Judith McMullen of Marquette University Law School.  Professor McMullen points out that “the efforts of today’s young people to ‘go straight’ are hampered by nearly unlimited online access to records of even the briefest of encounters with law enforcement, even if those encounters did not result in conviction.”  She argues that “we need to restrict access to and use of information about contacts that offenders under the age of 21 have had with the criminal justice system.”

CCRC’s forthcoming study of how jurisdictions manage non-conviction records underscores the points made in this article.  It may come as a surprise to many that few jurisdictions automatically limit public access to and use of non-conviction records, and in fact many facilitate both through mass on-line posting of records – including arrests that never result in charges.  Even states that authorize courts to seal or expunge non-conviction records frequently impose daunting barriers to this relief, including financial barriers.  A decision of the Iowa Supreme Court last month, upholding a law conditioning expungement of dismissed charges on an indigent defendant’s payment of court-appointed attorney fees, vividly illustrates this access to justice problem that squarely frustrates efforts at reintegration.  There are a number of studies underway of the adverse effect of court debt on reentry, but none that we know of linking court debt to the operation of “clean slate” laws.

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Administration withdraws proposal to require federal job-seekers to disclose diversions

The Washington Post reports that the White House has directed the Office of Personnel Management (OPM) to drop its proposal to expand the types of criminal records that must be disclosed by applicants seeking federal jobs and contracting work.  OPM’s proposal, which we described in March, would have required applicants for federal jobs and contracting work to disclose participation in pretrial diversion programs in the last 7 years.

In March, we launched our non-conviction records project, a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.  The appearance of these records in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Our letter opposing the OPM proposal cited our research on diversions and pointed out that while “state lawmakers, judges, and prosecutors favor diversionary dispositions in appropriate cases to help people avoid the restrictions and stigma of a conviction, OPM’s proposal disfavors them by treating them like convictions.”

We are pleased to see the administration quash this ill-advised proposal, in the face of opposition from advocates on the left and right, lawmakers from both parties, and prosecutors and public defenders.  At a time of growing consensus in Congress and the states about the need to prioritize rehabilitation and reintegration for individuals with a criminal record, the federal government should be moving to reduce the collateral consequences of diversion (as Indiana and Wisconsin did in 2018 when they prohibited licensing boards from considering arrests not resulting in conviction, or California and Nevada did in 2017 when they prohibited employers from considering an applicant’s successful completion of diversion).

While every state legislature has in some way addressed the problem of reintegration since 2012, Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.  Now is the time for federal action in support of reintegration, as the withdrawal of the OPM proposal evidently recognizes.

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