We are very pleased to see that the U.S. Small Business Administration has taken a significant step toward ending discrimination against justice-affected small business owners in the programs it administers. In a new rule governing certification of veteran-owned businesses for preferential treatment in the award of VA contracts, the SBA has omitted a requirement that business owners must have “good character” to be certified. This is a step we recommended in commenting on the rule when it was proposed last summer, and we are gratified that the SBA accepted our recommendation.
CCRC’s study of the SBA’s record-based restrictions has identified the “good character” requirement as that agency’s long-established way of weeding out people with a criminal history from the programs it administers, including business loans, disaster assistance, and federal contracting opportunities like the one at issue here. Typically, SBA operating procedures give agency staff broad discretion to deny assistance to justice-affected business owners based solely on untested assumptions about perceived risk and desert embodied in the “good character” requirement. Broad inquiries into criminal history on application forms deter many from even applying.
It was therefore a matter of concern to see a “good character” criterion included when the SBA proposed its veteran-owned business rule last summer. The good news was that this offered a first chance for public comment on how this criterion limits opportunities for justice-affected business owners. And it appears that it has led to a very favorable outcome that augurs well for future SBA criminal record reforms.
Webinar November 10 at 1 EST
Generational Wealth: Credit Barriers for People with a Criminal History
Tune on Thursday Nov. 10 at 1 EST for a webinar hosted by the National Community Reinvestment Coalition on barriers to credit for small business owners with a criminal record. Panelists, including CCRC’s Margaret Love, will describe the many formal and informal restrictions on access to credit that make it difficult for an entrepreneur with a criminal record to build a business, including those imposed by the U.S. Small Business Administration on access to federally-guaranteed bank loans. These are issues that CCRC has been exploring since the early days of the pandemic when the SBA’s restrictions on the Paycheck Protection Program came to light.
- Margaret Love, Executive Director, Collateral Consequences Resource Center
- Lettisha Boyd, Owner and Principal Consultant, Beyond Savvy Consumers
- Bonnie Crockett, Director of Small Business Lending at Baltimore Community Lending Inc.
- Susan Grutza, Policy Counsel of the Office of Fair Lending & Equal Opportunity, Consumer Financial Protection Bureau
Register for the webinar here:
The NCRC’s announcement is here:
Nearly 1 in 3 Americans have a criminal record. Each year over 600,000 Americans are released from state or federal prisons and re-enter society. Re-entry into society poses barriers to everyone but disproportionately affects African Americans and other minorities as African Americans and Hispanics make up 56% of the incarcerated population. This disproportionate representation within the criminal justice system impacts these communities and their ability to build generational wealth due to the barriers that exist upon re-entry.
Join us on November 10th as we speak with advocates, a CDFI, and the CFPB about the barriers that exist for people with a criminal record to build wealth and what can be done to overcome these barriers.
In addition to its lending and other programs in support of small businesses, the U.S. Small Business Administration provides long-term low-interest loans under Section 7(b) of the Small Business Act directly to individuals, businesses, and nonprofits in declared disaster areas. The current devastation wrought by Hurricane Ian in Florida — the subject of a dedicated new page on the SBA’s website — reminded us of some research we published two years ago, at the height of the pandemic, about how people with a criminal record were faring under the SBA’s COVID-related disaster relief program. The answer initially was “not well.”
Our research indicates that neither FEMA (emergency aid) nor the USDA (farm loans) impose criminal record restrictions on disaster assistance. But the SBA does. What’s more, the SBA’s restrictions are not formalized in a regulation but buried in operating procedures.
The criminal history restrictions on SBA economic injury disaster loans (EIDL) under the CARES Act were initially even more restrictive than those that applied to its PPP relief, and they too were never formalized in a rule. The PPP restrictions were rolled back in response to public outcry and lawsuits, and the following year the COVID-related EIDL policy was also rolled back to disqualify the same limited population as the PPP itself (people in prison or on probation or parole, with pending felony charges, or with recent financial fraud and related convictions). However, criminal record restrictions in the SBA’s general non-COVID lending programs, including its general disaster assistance programs, were not affected.
Now that the SBA’s disaster assistance programs are no longer administered under the exceptional and well-publicized approach of the pandemic-related authorities, we thought it would be timely to take another look at how those programs — presumably including the one that specifically applies to Hurricane Ian relief — are available to people with a criminal record.
NOTE: On September 29, Governor Newsom signed into law both of the bills discussed in the post below. They will take effect on January 1, 2023.
California Governor Gavin Newsom is expected to sign this week two bills that will give that state the broadest record-clearing laws in the nation. Senate Bill 731 would extend both automatic and petition-based and record relief to felony-level offenses, while Senate Bill 1106 would preclude denial of relief based on outstanding court debt in most cases.
When signed into law, Senate Bill 731 will place California at the forefront of record clearing nationwide. It would expand automatic record relief to all felony non-convictions since January 1, 1973, six years after the date of arrest. California law currently excludes felony arrests from eligibility for automatic relief if the charge is serious enough to potentially result in incarceration at a state prison. Other felony non-convictions remain eligible for automatic relief after three years unless the charge was punishable by eight years’ incarceration or more in a county jail, for which the new six-year wait period applies.
SB 731 also expands eligibility for automatic relief to persons convicted of a felony and sentenced to probation on or after January 1, 2005, if they violated probation but later completed all terms of supervision. Current law excludes from relief anyone who violated their probation. The new law requires a four-year conviction-free period after completion of the sentence. This expansion of automatic relief does not apply to certain serious and violent felonies, and ones for which the person is required to register as a sex offender. As noted below, all but the last-mentioned category will now be eligible for relief by petition.
Reproduced below is a press release describing new research by three California scholars published in the Law & Society Review, based on California sentencing data, showing how eligibility criteria for automatic record clearing “can inadvertently perpetuate racial inequity within the criminal justice system.”
This conclusion seems to us unsurprising, and likely has broader national application for two interrelated reasons: Prosecution policies nationwide have tended to result in more Blacks than Whites being convicted of more serious felonies resulting in prison sentences, while eligibility for automatic record clearance has to date been authorized primarily for non-convictions and misdemeanors (see sections 2 and 3 from the 50-state charts at this link from our Restoration of Rights website: https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside-2/.) The authors recommend that “to reduce the racial gap in criminal records, a change in policy needs to happen to extend record clearance eligibility to a wider range of cases—for example, people with felonies or those sent to prison who are currently excluded.”
The California legislature seems to have anticipated the recommendations in this report, for on August 18 it enrolled and sent to Governor Newsom’s desk a bill that would extend existing automatic record clearing authority to most felonies after four felony-free years, and for the first time to felony non-conviction records. See SB 731. This makes California’s “clean slate” law by far the most extensive in the country.
Over the past two years, CCRC has been studying the restrictions imposed by the U.S. Small Business Administration on loans to small businesses owned by justice-affected individuals. Many of those same restrictions, which are grounded in an operating policy that recipients of federal assistance have “good character,” also apply by formal rule in the SBA’s business development program under 8(a) of the Small Business Act.
For more than half a century, the so-called “8(a) program” has earmarked federal contracts for businesses owned by socially or economically disadvantaged individuals, and it has been a key driver of community development in urban areas. But the program’s “good character” test has historically excluded from participation many if not most business owned or managed by individuals with a criminal history. The 8(a) program also has satellite programs, including ones offering preferential treatment to businesses owned by women and veterans, though it is less clear whether these programs have similar criminal history restrictions.
Recently, Congress returned responsibility for certifying program eligibility for veteran-owned business from the VA to the SBA, and the SBA has now published proposed certification rules for public comment. These proposed rules offer a first chance to speak to the SBA’s “good character” requirement.
CCRC worked with the Washington Lawyer’s Committee for Civil Rights to draft comments on the proposed rule that are critical of the SBA’s vague and open-ended test of business owners’ “character” that results in disqualification of many deserving individuals from this and other federal programs administered by the SBA. Those comments, which are joined by 24 other organizations, were filed on August 5 and are available here.
We are pleased to republish a book review by CCRC Executive Director Margaret Love of a collection of essays about how European countries manage access to criminal records. The philosophy and values underpinning the EU approach revealed in these essays are so different from our own that their product will make record reformers in the U.S. green with envy.
For example, the review points out that one of the foundational premises of European systems of criminal records is that giving the public broad access would be “contrary to ‘fundamental’ considerations of privacy and human dignity protected by the European Convention on Human Rights, which implicitly limit loss of liberty and public stigmatization through disclosure of a past crime.” Accordingly, employers and other non-law enforcement entities can have access to criminal records only if their subject explicitly authorizes it, and even then a request will be permitted only in specified circumstances where a criminal record is deemed relevant.
Individuals asked to produce their record may decide that the uncertainty of benefit is not worth the risk of exposure. In this fashion, individuals may take responsibility for achieving their own social redemption even if they lose an economic opportunity.
Only a “dystopian account” of the Australian system of accessing criminal records will seem familiar to U.S. practitioners.
Here is the review by CCRC’s Margaret Love, which originally appeared in Criminal Law and Criminal Justice Books:
The Collateral Consequences Resource Center is seeking an enterprising and committed individual with strong technical skills to serve as its next Deputy Director. The incumbent will work with the Executive Director in all aspects of CCRC’s program, and will have primary responsibility for maintaining the Restoration of Rights Project (RRP), including its various derivative reports for which CCRC is best known. The RRP is a unique national inventory of laws and practices relating to criminal record relief and restoration of rights in each U.S. jurisdiction, which attracts thousands of visits to the CCRC website each day. Keeping the RRP current in real time requires strong research skills, patience and attention to detail in analyzing complex statutes, and a passion for issues relating to restoration of rights after arrest or conviction.
In producing the annual reports on new legislation and issue-specific analyses of current trends, the Deputy Director will have an incomparable opportunity to guide the development of public policy in this important emerging area of the law. The incumbent will be responsible for developing other aspects of CCRC’s work, and will have opportunities to publish scholarly articles and participate in academic conferences.
CCRC was established in 2014 to promote public engagement on the myriad issues raised by the collateral consequences of arrest or conviction. It provides technical assistance to advocates and lawmakers in support of state reform efforts, participates in court cases challenging specific collateral consequences, and collaborates with other organizations in reporting on such issues as court debt as a barrier to record clearing and exclusion of convicted individuals from jury service. In addition to maintaining the Restoration of Rights Project, CCRC provides technical assistance to advocates and lawmakers in support of state reform efforts, participates in court cases challenging specific collateral consequences, and collaborates with other organizations in reporting on such issues as court debt as a barrier to record clearing. Most recently, through its Fair Chance Lending Project, CCRC has advocated for the elimination of criminal record restrictions in federally guaranteed small business loans and federal contract set-aside programs.
A fuller description of CCRC’s work and of the Deputy Director position is here.
The CCRC Deputy Director is a full-time remote position and may be particularly attractive to individuals seeking a flexible work schedule. Compensation is negotiable depending on experience. An early start date is desirable, and a limited-term tenure may be possible.
TO APPLY: Submit the following materials to email@example.com
- Cover letter
- Writing sample
- List of three references
Applications will be accepted on a rolling basis until the position is filled.
On May 2, 2022, Oklahoma Governor Stitt signed into law a comprehensive process making expungement automatic for all otherwise eligible misdemeanors and a range of non-conviction records. See HB 3316, enacting 22 Okla. Stat. Ann. § 18(C). Oklahoma thus becomes the tenth state to join the bipartisan trend toward broadening the availability of record clearing to people with convictions, without requiring them to file a petition and go to court for relief. In addition to these states, another 10 states now make expungement automatic for non-conviction records.
The Oklahoman reported that the “clean slate” bill passed the House and Senate with strong bipartisan support, with a combined five votes against, and it was promptly signed into law by Oklahoma’s Republican governor. The bill’s primary sponsor Rep. Nicole Miller, R-Edmond, said that “There was certainly a general consensus that, you know, this this isn’t anything that’s partisan related; what it’s about is it’s about humans. So this is really a measure to help people.”
Under Oklahoma law expunged records are sealed, but remain available to law enforcement and may be used in subsequent prosecutions. Any record that has been sealed may be ordered “obliterated or destroyed” after an additional 10 years. § 19(K). Oklahoma also authorizes its courts to expunge up to two non-violent felonies, andn also pardoned felonies, but these were not included in the new law (styled “clean slate”). The law is effective November 1, 2022, and the process for automatic expungement is to commence three years after that date.
The Oklahoma process for expunging records without a petition is spelled out in a new § 19(B): the Oklahoma Bureau of Criminal Investigation must provide a list of eligible cases to the prosecutor on a monthly basis for a 45-day review. The prosecutor mayh object only for specified reasons: the case does not meet the definition of a clean slate eligible case; the individual has not paid court-ordered restitution to the victim; or “the agency has a reasonable belief, grounded in supporting facts, that an individual with a clean slate eligible case is continuing to engage in criminal activity, whether charged or not charged, within or outside the state.” A list of cases as to which there has been no objection is then sent to the court for expungement. The court must expunge all cases on the list sent to it, and notify all agencies holding records directing them to expunge as well. The law does not provide for notifying individuals in case of prosecutor objection, or after their record has been expunged, al though the state supreme court and the BCI are authorized to make rules governing the process. The BCI is required to provide to the legislature a list of individuals whose records have been expunged on an annual basis. Read more
We are pleased to publish the March 2022 revision of our national survey of laws restoring rights and opportunities after arrest or conviction, “The Many Roads from Reentry to Reintegration.“ Like the earlier report, this report contains a series of essays on various relief mechanisms operating in the states, including legislative restoration of voting and firearms rights, various types of criminal record relief (expungement and sealing, pardon, judicial certificates), and laws limiting consideration of criminal record in fair employment and occupational licensing.
Drawing on material from CCRC’s flagship resource the Restoration of Rights Project, the report grades each state for the scope and efficacy of its laws in nine different relief categories. Based on these grades, it compiles an overall ranking of the states. As described below, most of the states identified as reform leaders in our 2020 report still rank highly, but several new states have joined them. Half a dozen other states made substantial improvements in their ranking by virtue of progressive legislation enacted in 2020 and 2021, in two cases (D.C. and Virginia) rising from the bottom ten to the top 20.
The legal landscape has been changing rapidly in the 18 months since the first edition of this report was published in September 2020. Substantial progress has been made in a number of states, and in the Nation as a whole, toward devising and implementing an effective and functional system for relieving collateral consequences. The bipartisan public commitment to a reintegration agenda seems more than ever grounded in economic imperatives, as pandemic dislocations have brought home the need to support, train, and recruit workers, who are essential to rebuilding the small businesses that are the lifeblood of healthy communities.
The greatest headway has been made in restoring the vote and broadening workplace opportunities controlled by the state, both areas where there are national models and best practices. The area where there is least consensus, and that remains most challenging to reform advocates, is managing dissemination of criminal record information. Time will tell how the goal of a workable and effective criminal record relief system is achieved in our laboratories of democracy.
One area of record relief on which there does appear to be an emerging bipartisan consensus is that non-conviction records should be automatically sealed or expunged on case disposition. We are particularly pleased to see how many states have enacted laws limiting access to the record of cases disposed in favor of the defendant just since publication of our Model Law on Non-Conviction Records in 2019.