Author: Margaret Love

Margaret Love is CCRC's Executive Director. A co-founder of CCRC in 2014, she served as U.S. Pardon Attorney in the 1990s and represents applicants for federal clemency in her private practice in Washington, D.C.. She is lead co-author of Collateral Consequences of Criminal Conviction: Law, Policy, and Practice (4th ed. 2021), and served as an advisor to the ALI Model Penal Code: Sentencing.

CCRC is back in action!

After nearly six months offline because of repeated malware attacks, the Collateral Consequences Resource Center website is back live — entirely rebuilt and ready again to provide web-based legal resources to the public free of charge.

We are especially happy to be able to reintroduce our flagship resource, the Restoration of Rights Project (RRP), which was hard hit by the malware attacks, mysteriously losing both data and functionality. Those who use and rely on the RRP know its value in collecting and analyzing laws in each state that aim to mitigate the adverse effects of a criminal record, through civil rights restoration, executive pardon, judicial record clearing, and fair chance employment and licensing. The RRP also includes 50-state comparison charts for each of these four areas of research.

Our work on the RRP has been supported in recent years by generous grants from Arnold Ventures, and we have made a point of keeping its resources updated in real time as new laws are enacted. We have also published specialized research reports based on RRP research, most recently on loss and restoration of firearm rights, as well as annual reports on newly enacted laws.

Reconstructing the RRP’s hundreds of web pages has been the work of many weeks for me and Beth Johnson, who for the past two years has been my right hand in keeping the RRP up to date and accurate. Fortunately, we have been able to restore almost all of the material that was lost or compromised, and we have taken the opportunity to add new laws and expand areas of current interest such as non-conviction dispositions and record relief for human trafficking survivors.

Beth and I have had time to consider the importance of the RRP project, and to appreciate the work that goes into its upkeep. The fact is that maintaining the RRP has been a labor of love since I began it more than 20 years ago. It also requires a love of labor, because this is careful, detailed work, done behind the scenes, that can frequently be tedious and seem repetitious. We worry a lot about striking a useful balance between including too much and not enough technical detail, given our varied audience.

We know that there is no other resource that seeks to bring this body of law together in one place. And, over the years, we have seen and heard enough feedback – from lawyers and journalists and members of the public – to be confident that the information is being used in meaningful ways to benefit the justice-impacted and their advocates, and that it does benefit them. We have also been told that the RRP’s comparative resources are particularly useful to legislators and other policymakers looking to improve their laws. These many anecdotal moments have been enough to sustain Beth and me in the rebuilding effort.

In the end, we are convinced that this real-time research needs to continue.  So we are returning to the RRP reinvigorated, with gratitude to the many people who have reached out while the site was offline, as well as to those who have in the past relied on and shared the work. Our hope simply is that the resource is and will remain useful to the people seeking to understand and address the problem of collateral consequences.

In this spirit, we hope that those of you who have used CCRC’s resources over the years, as well as those who are being introduced to them for the first time, will take a few minutes to fill in the short survey below to assess the usefulness of the site’s resources, and to let us know what you’d like to see us include in the future.

Restoration of Rights Project (RRP) Feedback Survey

Help us improve this resource.

The Restoration of Rights Project is committed to providing accurate, clear, and useful information to the public free of charge. Your feedback helps us improve the site and better meet the needs of people who rely on it.

This survey takes about 2 minutes. You can take the survey here.

 

SBA finalizes rule limiting consideration of criminal history in loan programs

Today, the Small Business Administration’s rule removing most criminal history restrictions in its federally guaranteed loan programs will be published in final form. This marks an important step in opening additional sources of business capital to justice-impacted entrepreneurs, and a boon to developing communities that thrive on the success of their small businesses.

The final rule makes few changes from the version published last fall for comment, which proposed removing most criminal history restrictions from the SBA’s business and disaster loan programs. The proposed rule is described in this post. The only substantive difference in the final rule is that business owners under indictment, along with those actually incarcerated, will remain ineligible for federally guaranteed loans.

The SBA noted that of the 19 comments received on the proposed rule, almost all were favorable. It also pointed out, as it did last fall, that there is no data indicating an enhanced risk of default from this population of entrepreneurs. At the same time, the SBA comments that even though it will no longer be conducting extensive criminal records checks on loan applicants, lenders may continue to do so.

In describing the background of the now-final rule, the SBA cites some eye-catching statistics indicating that in recent years it has been giving lenders the green light on hundreds of loan applications from business owners with a felony record, while disapproving only a handful. These statistics, which are consistent with the SBA’s responses to FOIA requests with which CCRC is familiar, would seem to indicate that the SBA has available to it data that could shed light on actual risk through default rates.  We look forward to learning more about this data, which could give banks additional incentives to make loans to justice-impacted entrepreneurs.

We have recently attended several programs sponsored by the Treasury Department and its agencies in which the issues raised by “fair chance lending” have been explored, and we expect to be continuing that conversation in weeks to come.

 

SBA proposes to remove criminal record restrictions in loan programs

On September 15, the SBA published for comment a series of rule changes eliminating criminal record restrictions in all of its various federally guaranteed business and disaster loan programs, including rules making business owners ineligible for loans if they are on parole or probation or under indictment.  Application forms and procedures will no longer inquire about a business owner’s criminal history, with one exception: Owners and principal employees who are “actually incarcerated” will remain ineligible. Comments on the proposed rule must be filed by November 14, 2023.

The proposed new rule follows the agency’s removal last spring of “character” as a loan criterion in the 7(a) and 504 programs, and its amendment of the applicable Standard Operating Procedures (SOP) to eliminate the “character determination” through which business owners with a felony record had been denied access to federally guaranteed loans.  These earlier changes were described in our post of September 7.

The comments accompanying the proposed rule revision explain that it is “narrowly tailored to reduce barriers to access for qualified justice-impacted small business owners.” While the SBA will no longer verify an applicant’s criminal history (other than the fact of current incarceration) the rules changes do affect a lending institution’s ability to do so, “in accordance with their own policies, provided they do so in a manner that complies with the Equal Credit Opportunity Act and other relevant laws.”

Significantly, in proposing these new and important regulatory changes, the SBA relies upon empirical research to emphasize that criminal history has not been shown to have any negative impact on creditworthiness:

Importantly, SBA reviewed the relevant research and found no evidence of a negative impact on repayment for qualified individuals with criminal history records in any American business loan program. This lack of data demonstrates that continuing to rely on this restriction for that purpose would contradict the available evidence and although the restrictions may have been originally put in place with the goal of protecting program performance, the lack of data suggests continuing to rely on this restriction would reflect an outdated, inaccurate structural bias against individuals with criminal history records.

 

The SBA again relies upon research in stressing the policy benefits of its regulatory changes:

Specifically, research demonstrates that employment increases success during reentry and decreases the risk of recidivism, with entrepreneurship providing an important and distinct avenue for economic stability given persistent stigma from employers who may decline to hire people with criminal history records.

It is refreshing to see this federal policy grounded in factual research instead of unfounded assumptions about the risk of extending opportunities to justice-affected individuals, as so many other federal policies are.

At the same time, we remain concerned that, without the SBA acting in a screening capacity, lending institutions will themselves conduct background investigations of loan applicants, and apply record-related restrictions that mirror those previously applied by the SBA, or perhaps ones even more restrictive.  We noted in a post last spring, in connection with the SBA’s deletion of “character” as a loan criterion:

[T]he good news is that it appears the SBA will no longer bar banks from making loans to otherwise qualified applicants based on their criminal history. The less good news is that the agency seems to expect banks and other lending institutions to step into the void and apply their own restrictions on loans based on an applicant’s criminal history.

 

We expect to post further analysis of these important proposed SBA actions.

The Collateral Consequences Resource Center Goes Live!

The Collateral Consequences Resource Center website launches on Tuesday, November 18, 2014.  We hope it will fill a growing need for information and advice about the modern phenomenon of mass conviction and the second-class citizenship it perpetuates.

ccrc inkscapelogostackedThe legal system is only beginning to confront the fact that an increasing number of Americans have a criminal record, and the status of being a convicted person has broad legal effects. The importance of collateral consequences to the criminal justice system is illustrated by cases like Padilla v. Kentucky (2010), holding that defense counsel have a Sixth Amendment obligation to advise clients about the possibility of deportation. Civil lawyers too are mounting successful constitutional challenges to harsh consequences like lifetime sex offender registration, categorical employment disqualification, and permanent firearms dispossession, which linger long after the court-imposed sentence has been served.  Government officials have tended to regard collateral consequences primarily as a law enforcement problem involving the thousands leaving prison each year, but they are now considering how to deal with the lifetime of discrimination facing the millions who have long since left the justice system behind. Advocates are pointing out how counterproductive and unfair most mandatory collateral consequences are, and legislatures are paying attention. People with a record are organizing to promote change.

The time is right to launch the Collateral Consequences Resource Center, which will bring together in a single forum all of these diverse interests and issues. The Center’s goal is to foster public discussion and disseminate information about what has been called the “secret sentence.” Through its website the Center will provide news and commentary about developments in courts and legislatures, curate practice and advocacy resources, and provide information about how to obtain relief from collateral consequences in various jurisdictions. The Center aims to reach a broad audience of lawyers and other criminal justice practitioners, judges, scholars, researchers, policymakers, legislators, as well as those most directly affected by the consequences of conviction. It invites tips about relevant current developments, as well as proposals for blog posts on topics related to collateral consequences and criminal records: Contact Us.

 

“Second Chances for Teen Offenders”

This New York Times editorial urges states to seal or expunge juvenile records “so that young offenders are not permanently impaired by their youthful transgressions.”  It describes a new study from the Juvenile Law Center that concludes “only a few states have ironclad systems prohibiting employers and members of the public from gaining access to [juvenile] records.”

The first juvenile courts were established more than a century ago on the principle that children deserve special care under the law because they are vulnerable, because their transgressions tend to be nonviolent and because they can be expected, on the whole, to outgrow their youthful misbehavior.

These presumptions are borne out by data showing that 95 percent of young people enter the juvenile justice system for nonviolent crimes like theft or vandalism — behavior they typically leave behind when they move into adulthood. But because some juvenile court records remain open to the public when they should have been sealed or expunged, these young people can be denied jobs, housing and even admission to college.

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