Author Archives: CCRC Staff

“Certifying Second Chances”

This is the title of a provocative new article by Cara Suvall, Assistant Clinical Professor of Law at Vanderbilt Law School, and Director of the Youth Opportunity Clinic.  The article, forthcoming in the Cardozo Law Review, catalogues and analyzes the costs and burdens that deter people from accessing certificates intended to enhance employment opportunities.  Professor Suvall focuses particular attention on certificate programs in Tennessee, Georgia, and New York, which vary widely in eligibility criteria, administration, and legal effect.  She highlights the learning, compliance, and psychological barriers that limit effectiveness of existing certificate programs, and describes proposals to lower those barriers.

Here is the abstract:

Policymakers around the country are grappling with how to provide a second chance to people with criminal records. These records create collateral consequences—invisible punishments that inhibit opportunity in all facets of a person’s life. Over the past seven years, states have repeatedly tried to legislate new paths for people trying to move on with their lives. State legislators passed more than 150 laws targeting collateral consequences in 2019 alone.

But what happens when these paths to second chances are littered with learning, compliance, and psychological costs? The people who most need these new opportunities may find that they are out of reach. A major problem, I argue, is the administrative burdens involved in accessing these remedies. Because of these hurdles, people with fewer resources—the population that would most benefit from the help—are the ones most likely to find these second chances out of reach. The Article closely examines one increasingly popular type of second-chance program: certificate laws that remove employment barriers.

Building on recent research identifying the low usage rates of petition-based second-chance programs, this Article catalogues and analyzes the costs and burdens placed on people attempting to access employment certificates. Of particular concern is not only these low usage rates themselves, but also the identity of those least likely to access these interventions. Second-chance programs like employment certificates that provide a way forward for people with greater resources while leaving behind those without may be more harmful than helpful when placed in the larger context of mass criminalization and social change, even if they help the small number of individuals who do access them. In contrast, a well-designed second-chance initiative that appropriately considers administrative burdens and the way that interventions like employment certificates fit in to the broader picture of social change could provide short-term benefits to people with criminal records while also bolstering larger-scale reforms to the criminal legal system.

How states reduce jury diversity by excluding people with a record

https://static.prisonpolicy.org/images/reportthumbs/juries_reportcover_250w.pngLast month, the Prison Policy Initiative released a report called Rigging the Jury, showing how all 50 states reduce jury diversity by excluding some people because of their criminal record, in some cases permanently.

The report, which includes a map, table, and detailed appendix explaining each state’s policies, shows that:

  • 44 states bar people with felony convictions from jury service when they are no longer incarcerated. (By comparison, 30 states bar voting by those who are not incarcerated.)
  • 6 states go even further, barring people with some misdemeanor convictions from juries.
  • 7 states bar legally innocent people from juries if they are called to serve while charges are pending against them.

The report also explains how excluding people with records makes juries less diverse (e.g., one  in three Black men have felony convictions), why jury diversity is essential to the fairness of a trial, and what must be done to fix this unfair system.

https://static.prisonpolicy.org/images/reportthumbs/juries_reportcover_250w.png

 

 

 

 

 

 

 

 

 

 

 

 

 

The full report is here.

Note: Our Restoration of Rights Project also provides state-by-state and 50-state information on loss and restoration of rights to serve on a jury due to a record. We updated and, in a few cases, corrected our data based on the PPI study – and thank its authors!  

 

 

 

 

Applying for SBA COVID-19 relief with a criminal record in 2021

Last Updated: September 9, 2021

In December 2020, Congress authorized additional COVID-19 financial relief for small businesses and nonprofits, available through the Small Business Administration (SBA). The SBA’s two primary programs for COVID-19 financial relief are the Paycheck Protection Program (PPP), which provides forgivable loans to small businesses and nonprofits to help keep their staff employed during the crisis; and the COVID-19 Economic Injury Disaster Loan (EIDL) program, which provides advances and loans to small businesses and nonprofits that experience a temporary loss of revenue due to COVID-19.

After the first COVID-19 relief bill, the CARES Act, funded these programs in March 2020, the SBA imposed broad criminal history restrictions on applicants. In the face of pressure, the administration relaxed those restrictions several times over the course of the following months.  In March 2021, the Biden Administration removed an additional restriction.  In this post, we review those developments and describe the SBA’s current criminal history policies, also available on the SBA’s website (PPP and EIDL).

To summarize, as a result of developments to date, the SBA now excludes from PPP relief only a narrow category of people with a criminal record: those 1) actually incarcerated or with pending felony charges; or 2) convicted, pleaded guilty or nolo contendere to, or commenced any form of parole or probation within the last 5 years for certain financial felonies. The category of those excluded from EIDL relief is broader: 1) anyone convicted of any felony within the past five years, and 2) anyone with any sort of pending criminal charges.

We conclude with a series of recommended changes to the laws governing SBA loans that affect people with a criminal record, and to related SBA regulations and policies.  These recommendations include consideration of how a loan applicant’s criminal record is treated in the rules and policies governing the SBA’s general lending programs under Section 7(a) and 7(b) of the Small Business Act, whose only mention of criminal record is to authorize the SBA to “verify the applicant’s criminal background, or lack thereof,” including through an FBI background check.

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Access Barriers to Felony Expungement: The Case of Illinois

Currently, 33 states authorize the expungement or sealing of at least some felony convictions.i However, recent research has shown that only a small percentage of eligible individuals actually complete the court petition process required to obtain this relief in most jurisdictions.ii In the fall of 2020, as an outgrowth of its work surveying record relief laws in the 50 states, the Collateral Consequences Resource Center (CCRC) decided to take a closer look at barriers that prevent people with felony convictions from accessing relief intended to benefit them.

Ideally, the most efficient way to overcome access barriers would be to make sealing automatic, dispensing with the requirement of filing individual petitions. However, the move toward automatic sealing is in its early stages,iii and we anticipate that petitions will remain the primary way to clear felony conviction records in most states for the foreseeable future. Accordingly, it is important to minimize barriers to petition-based relief at every level.

In order to minimize barriers, they must first be identified and documented. We have therefore begun work on a project to analyze barriers to petition-based sealing of felonies in a number of different states. This will hopefully encourage those states to reform their process to retain only substantive and procedural requirements that are truly necessary from a policy perspective, and to shift burdens now placed on individual applicants to the government wherever practicable. At the same time, the revealed difficulty of accessing petition-based relief on an equitable basis would be a strong incentive to consider automation, and the costs and benefits of each process could more easily be compared.

As a preliminary step toward launching this project, we collaborated with Beth Johnson and her partners in the Rights and Restoration Law Group (RRLG) to develop a survey instrument that collects information about access barriers to felony expungement across four domains: (1) resource and knowledge; (2) eligibility; (3) process; and (4) effectiveness. We tested our survey instrument with practitioners from several states. Beth and her team took the survey for their home state of Illinois and analyzed the strengths and weaknesses of the state’s record-sealing system.iv

We are publishing the RRLG Illinois report that follows as a pilot for additional state-specific studies. It provides detailed descriptions of the Illinois system’s strengths and weaknesses in the four areas identified above, and makes recommendations for reform. RRLG’s survey responses are in the appendix.

The Illinois report is available as a PDF here, and included in this post below.

We hope to be able to broaden this project to work with practitioners from additional states to complete the survey and write up case studies, on the basis of which we could recommend state-specific reforms as well as more general best practices. In addition to this project, we have been collaborating with Jessica K. Steinberg, director of the Prisoner & Reentry Clinic at GW Law, on an initiative in which the clinic has created a survey tool and conducted data collection on pro se access barriers to felony expungement in 34 states, with a white paper planned for later this year.

In the meantime, here are links to the survey questions used for this report. We invite anyone interested to complete it, to help us gather data for this undertaking:

Part I. Resource & Knowledge Barriers: https://forms.gle/MxRYtcpvMahYybcM7

Part II. Eligibility Barriers: https://forms.gle/RHQo92DedtddqyrJ7

Part III. Process Barriers: https://forms.gle/nAjUHKwKjmbKzXMZ9

Part IV. Effectiveness Barriers: https://forms.gle/t2iNh1RPJDPLDkXm7

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After a haul of record relief reforms in 2020, more states launch clean slate campaigns

Yesterday, the Clean Slate Initiative, a bipartisan national effort to automate the clearing of criminal records, announced four new state campaigns in Texas, New York, Oregon, and Delaware, joining ongoing campaigns in Louisiana, Connecticut, and North Carolina to advocate for automatic record relief legislation.

This announcement follows a productive year for record relief reforms in 2020, when Michigan became the sixth state to enact automatic relief for a range of conviction records, the most expansive such authority enacted to date. In total, 20 states enacted 35 bills and two ballot measures creating or expanding record relief (i.e. expungement, sealing, set-aside) last year. Michigan, along with three other states, also enacted major legislation expanding eligibility for petition-based conviction relief. Kentucky and North Carolina authorized the automatic sealing of many non-conviction records (with simplified petitions for others), consistent with a 2019 model law on non-conviction records developed by a group of practitioners under CCRC’s leadership. Other reforms addressed marijuana offenses, victims of human trafficking, juvenile records, and more.

Below we summarize 2020’s record relief reforms, broken down into six categories: general conviction relief (9 states, 14 laws), automatic conviction relief (4 states, 5 laws), non-conviction records (4 states, 4 laws), marijuana offenses (6 states, 5 laws, 2 ballot measures), offenses by victims of human trafficking (3 states, 3 bills), and juvenile records (5 states, 6 laws). Seven bills that were vetoed are described at the end. (Our full report on 2020 legislation is available here. Further detail about a particular jurisdiction’s record relief laws can be found in the CCRC Restoration of Rights Project, which includes both individual state profiles and 50-state comparison charts for conviction and non-conviction records.)

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Illinois set to become fifth state to cover criminal record discrimination in its fair employment law

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.

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Online Criminal Records Impose ‘Digital Punishment’ on Millions

We are pleased to republish this excellent article by Andrea Cipriano, which describes a new study of online non-conviction records, with permission from The Crime Report. The study concludes that law enforcement records may remain freely available online indefinitely, notwithstanding state laws calling for automatic expungement of such records. (For more information on expungement of non-conviction records, see CCRC’s 50-state chart and CCRC’s model law on the subject.)  

Online Criminal Records Impose “Digital Punishment’ on Millions of Americans

by Andrea Cipriano    February 9, 2021

An analysis of Internet data portals that house personally identifiable information (PII) of people involved in the justice system found that compromising information on millions of Americans has been posted online by criminal justice agencies, even if they have not been convicted of a crime.

“Public records…are less likely to reveal information about the criminal justice system itself, and instead more likely to reveal information about people arrested [for] – but often not convicted of – crimes,” said researchers from Rutgers, Loyola Chicago, and UC-Irvine who conducted the analysis.

The analysis, published in the Law & Social Inquiry Journal, concluded that the amount of data accessible online effectively operates as a “digital punishment.” They noted that old arrest and criminal court data is easily accessible because of local law enforcement and court databases, and individuals named in the data have virtually no ability to wipe it from the records.

The researchers, Sarah Esther Lageson of Rutgers University-Newark School of Criminal Justice, Elizabeth Webster of Loyola University, and Juan R. Sandoval of University of California, Irvine, analyzed 200 government websites operated by law enforcement, criminal courts, corrections, and criminal record repositories across the country.

They found what they called an “impressive” amount of personally identifiable information, ranging from photographs to home addresses and birth dates.

The likelihood that this can lead to “identity theft, stalking, discrimination, and harassment” should persuade legislators and justice authorities to develop greater privacy protections, the researchers said.

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Surge in reforms to ease driving penalties

This past year saw an unprecedented surge in states enacting so-called “free to drive” laws, as we documented in our recent report on criminal record reforms in 2020. Nine states enacted 16 bills that end the suspension of driver’s licenses either due to unpaid fines and fees, or due to legal violations unrelated to dangerous driving. Such suspensions make it difficult or impossible for people to get to work, take children to school, shop for groceries, or obtain healthcare.

The Free to Drive campaign, a coalition of over 140 organizations, reports that currently, 37 states and D.C. still suspend, revoke or refuse to renew driver’s licenses for unpaid traffic, toll, misdemeanor and felony fines and fees. This coalition played an instrumental role in many of the 2020 reforms, which are described below.

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Two significant new occupational licensing laws enacted in 2021

After 11 states enacted 19 laws limiting consideration of criminal records by occupational licensing agencies last year, the first significant record reforms of 2021 are occupational licensing laws enacted by Ohio and the District of Columbia.  D.C.’s new law is particularly comprehensive, and applies both to health-related and other licensed professions in the District.

The new District of Columbia law, Act A23-0561, is described in detail in the DC profile from the Restoration of Rights Project.  It provides that no one may be denied a license based on conviction of a crime unless it is “directly related” to the licensed occupation, as determined by a detailed set of standards; prohibits inquiry about a record until an applicant has been found otherwise qualified and then prohibits consideration of certain records (including non-conviction and sealed convictions); and provides procedural protections in the event of denial. The new law also establishes a pre-application petition process for individuals with a record to determine their eligibility, and requires the Mayor to report annually to the Council on each board’s record.  The Institute for Justice has described the “landmark” new D.C. law as “the best in the nation, second only to Indiana.”

The new Ohio law, HB 263, is more complex and less protective than DC’s, requiring licensing boards to publish lists of two types of convictions: those that “shall” be disqualifying (overcome only by a court-ordered certificate) and those that “may” be found disqualify based on their “direct relationship” to the licensed occupation. Other convictions and non-conviction records may not be grounds for denying a license, and vague terms like “moral character” and “moral turpitude” may not be used. If a conviction is on the list of those “directly related,” the board must still consider certain standards linked to an applicants overall record that are linked to public safety, and may not deny after a period of either five or 10 years depending on the offense.  In the event of denial, a board must provide procedural protections including written reasons and a hearing.  These new features supplement the provision for a binding preliminary determination enacted by Ohio in 2019.

Michigan‘s governor also signed a series of bills regulating occupational licensure on the last day of 2020, which include some of the features of the schemes described above but retain the unfortunate disqualification standard of “good moral character.” While Michigan’s licensing law could use improvement, it contributed to the state’s earning the title of Reintegration Champion of 2020.

Our report on new legislation in 2020, documenting that 11 states enacted 19 licensing reform laws, noted that “[o]f all the criminal record reforms enacted during this modern reintegration reform era, no other approaches the regulation of occupational licensing agencies in terms of breadth, consistency, and likely efficacy.”  We reprint the discussion of 2020 licensing reform from our report here:

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Momentum grows to restore voting rights to people with a felony

Our new report on 2020 legislative reforms shows continued progress in state efforts to expand voting rights for people with a felony conviction. Despite a courtroom setback at the Eleventh Circuit, where a federal appeals court ruled that Florida’s landmark 2018 felony re-enfranchisement initiative does not restore the vote to people who owe court debt, two additional states and D.C. took major actions to restore voting rights to people convicted of a felony. Already in 2021, an impressive 19 states are considering bills to ease or eliminate prohibitions on voting based on a past conviction.

In 2020, California restored the vote to people on parole, via a ballot initiative amending the state constitution. Iowa‘s governor issued an executive order restoring voting rights to people convicted of most felonies after completion of incarceration and supervision. And the District of Columbia repealed felony disenfranchisement altogether so that even people in prison may vote. Since 2016, 19 states have taken steps to restore the right to vote for people with a felony and expand awareness about eligibility. 

In 2021, at least 19 state legislatures are considering bills that would expand the franchise to those with a conviction:

  • 5 states are considering measures to amend their constitutions or statutes to eliminate felony disenfranchisement entirely (Nebraska, Georgia, Massachusetts, Oregon, and Virginia). They would join Maine, Vermont, and D.C., as jurisdictions that have fully abandoned felony disenfranchisement. Connecticut also has a proposed bill that to eliminate disenfranchisement for certain felony offenses and restore the vote after incarceration for the others.
  • 10 states are considering bills to re-enfranchise individuals not presently incarcerated for a felony conviction: Alabama, Minnesota, Missouri, New Mexico, New York, Oklahoma, Washington, Texas, and Virginia (Alabama’s bill would do so 5 years after release). The Washington measure is sponsored by newly elected Rep. Tarra Simmons, believed to be the first Washington state lawmaker formerly convicted of felony.
  • The only 4 states remaining without a statutory mechanism for re-enfranchisement (Kentucky, Iowa, Mississippi, Virginia) are considering measures to restore the vote upon completion of incarceration and supervision, or earlier, for a disqualifying offense (in the case of Mississippi, after incarceration and parole only; in the case of Iowa, 5 years after completion of incarceration and supervision; Virginia has proposals to eliminate disenfranchisement completely or restore the vote upon release). These four states currently make re-enfranchisement wholly dependent upon discretionary gubernatorial action (or in Mississippi, discretionary legislative action).
  • In addition, Tennessee has a pending bill that would remove requirements that a person has paid all restitution and court costs, and be current on child support, before voting rights may be restored. Maryland and Missouri are considering bills to facilitate voting in jails for eligible individuals, and Maryland has another bill to require individuals released from correctional facilities and/or on community supervision to be informed that they are eligible to vote. Nebraska also has a pending bill to remove the two-year waiting period after completion of a felony sentence for voting rights restoration.

Our full report on 2020 criminal record reforms is available here. For an overview of loss and restoration of voting rights, see our Sept. 2020 national survey and our 50-state comparison chart. In addition, our Nov. 2020 report documents which states treat unpaid court debt as a barrier to regaining the vote.

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