Judicial certificates of relief: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

Last month we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.” So far, we have previewed the report in draft chapters covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing,” as well as several sections of the chapter on record relief, a term comprising the various remedies that revise or supplement a person’s criminal record to reduce or eliminate barriers to opportunity in civil society. The sections published so far are “pardon policy and practice,” “deferred adjudication,” and “non-conviction records.”

This installment of the record relief chapter concerns judicial certificates, orders that courts or parole boards in a dozen states are authorized to issue to convicted individuals with the dual purpose of avoiding mandatory collateral consequences and helping to overcome discretionary ones. Later this week we will publish the final major section of this chapter, on conviction relief via expungement, sealing, and set-aside.

We expect to publish the entire “Many Roads” report by the end of the month. In addition to a series of “report cards” on specific relief mechanisms, it will include an ranking of states for the effectiveness of their overall combined relief schemes.

A PDF of the section on judicial certificates is available here. The full text follows, with end notes.

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Non-conviction records: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

In July, we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.” So far, we have previewed the report by publishing draft chapters covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing.” We also published “pardon policy and practice” and “deferred adjudication” sections of the chapter on record relief, a term comprising the various remedies that revise or supplement a person’s criminal record to reduce or eliminate barriers to opportunity in civil society.

Today we are publishing a third section of the record relief chapter on non-conviction records: arrest and court records that can create lifelong barriers in employment, housing, and other areas of daily life. More than half the states still require a restrictive and burdensome court procedure to expunge or seal non-convictions. Our Model Law on Non-Conviction Records recommends automatic expungement of these records, an approach that has been enacted in 17 states. Later this week we will publish additional sections of this chapter, on conviction relief, judicial certificates, and juvenile records. We expect to publish the entire “Many Roads” report by the end of the month.

A PDF of the section on non-convictions is available here. The full text follows, with end notes.

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Deferred adjudication: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

In July, we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.” So far, we have previewed the report by publishing draft chapters covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing.” Yesterday we published “pardon policy and practice,” a section of the chapter on record relief, a term comprising the various remedies that revise or supplement a person’s criminal record to reduce or eliminate barriers to opportunity in civil society.

Today we are publishing a second section of the record relief chapter on deferred adjudication, a disposition whose goal is to divert individuals away from a conviction record at the front end of a criminal case. Next week we will publish additional sections of this chapter, on expungement, record-sealing, set-aside, judicial certificates, and juvenile records. We expect to publish the entire “Many Roads” report by the end of the month.

A PDF of the section on deferred adjudication is available here. The full text follows, with end notes.

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Pardon policy & practice: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

In July, we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.”  So far, we have previewed the report by publishing draft sections covering “loss and restoration of voting and firearms rights” and “fair employment & occupational licensing.”  Today we publish a draft section on pardon, the ultimate expression of forgiveness and reconciliation from the sovereign that secured the conviction.  While pardon is no longer routinely available in all or even most U.S. jurisdictions, in the 18 states where post-sentence pardoning is frequent and regular it provides an important record remedy – frequently the only remedy – for those convicted of more serious offenses, for those seeking restoration of firearms rights, and for non-citizens seeking to avoid conviction-related immigration consequences.

This section on “pardon policy & practice” is part of a chapter on “record relief.”  This chapter deals with any remedy that revises or supplements a person’s criminal record to reduce or eliminate barriers to opportunity in civil society.  Later this week, we will publish additional sections of the record relief chapter on deferred adjudication and judicial certificates, followed next week by sections on expungement, record-sealing, and set-aside.  We expect to publish the entire “Many Roads” report by the end of the month.

A PDF of this section is available here.  The full text follows, with end notes.

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The Purgatory of Digital Punishment

It doesn’t matter whether they’re accurate—criminal records are all over the internet, where anyone can find them. And everyone does.

By SARAH ESTHER LAGESON

On a frozen December day in Minneapolis, William walked into a free legal aid seminar, to try to fix his criminal record. Lumbering toward a lawyer, his arms full of paperwork, William tried to explain his situation quickly. “I want to show you my record here that I got from my probation officer. Here.” Frustrated, William waved papers in the air.

After an employer and a landlord both denied his applications following private background checks, William started to suspect something was wrong with his criminal record. When he finally got a copy, the data made no sense. One arrest was dated to 1901. Another arrest was linked to an active warrant.

“Now, here’s a thing about it. I got one [conviction] in ’82; that was the last time I was in jail.” William paused to scan the document. “And that was that charge here. All of this,” he said, pointing to the paper, “is not me.” It seemed as if someone with a similar name—and a far more extensive criminal history—had been matched to William’s identity in a state police or court record database. He quickly realized that not only was his record incorrect, but it had spread across databases used by background check companies—and was posted on the internet. It was as if someone had stolen his identity—but instead of using his identity to buy something, they used it to slip stolen goods into his pocket.

The lawyers warned William of the Kafkaesque bureaucracy he would face. He had to fix the mismatched identity with the state police, ask the court to fix the 1901 data error, and close the mistaken (but open) warrant. Because he could not afford a lawyer, William had to rely on free legal aid or deal directly with the courts and state bureaus himself. This wasn’t what he wanted to hear. He had been trying for months to get help. The first time he’d tried to meet with a volunteer attorney, he was given an incorrect address and walked around downtown Minneapolis for hours trying to find the office. All of this confusion and frustration led him to the seminar today. He was about ready to give up.

“It’s too much. It’s too frustrating,” William said. “You know, you ain’t done nothing in 30-something years and then all of a sudden you want to get an apartment and you can’t. You’re just stuck the way you are at. That’s just terrible. It’s a bad feeling. It’s like I’ve been on a standstill.”

The problems William faced are rapidly multiplying across the country, in various forms. Incorrect or misleading records from years past pop up on Google searches. Criminal convictions that accurately appear on one background check don’t appear on another. Sealed, expunged, and juvenile records that are legally hidden from public view continue to live on across databases and websites.

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CCRC research featured in Florida felony voting case briefs

Last week, we published our amicus brief in an appeal about the constitutionality of Florida’s system for restoring the vote to people with felony convictions.  We urged the Eleventh Circuit to affirm a district court decision that Florida’s “pay-to-vote” system is unconstitutional, relying on our research report showing that few states have as restrictive a scheme as Florida’s.  Other groups also weighed in, including 19 states and D.C. and several organizations that draw on CCRC’s research to argue in favor of the decision below.  CCRC board members Jack Chin and Nora Demleitner joined a group of 93 law professors who also argued in favor of the district court’s determination that Florida’s scheme is unconstitutional.

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Fair chance employment and occupational licensing: A national survey

*Update (9/8/20): the full national report, “The Many Roads to Reintegration,” is now available.

Last week we announced the forthcoming publication of a national report surveying mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.”  Also last week, we published the first chapter of that report on loss and restoration of voting and firearms rights.  Today we publish a near-final draft of the third chapter of the “Many Roads” report, dealing with laws that systematically regulate how criminal record is considered in the workplace, by employers and by occupational licensing authorities.  Next week we expect to publish the second chapter of the report on “record relief” (including record-sealing, pardon, and judicial certificates).  The research, drawn from CCRC’s Restoration of Rights Project, reveals a trend in the states toward restricting the power of occupational licensing agencies to reject applicants with criminal records based upon factors not directly related to their qualifications.

There has also been marked progress in extending fair chance employment laws, primarily through limiting inquiry into criminal record in the early stages of the hiring process and setting standards for later consideration of the record.  These trends, which have accelerated in the past three years, recall and in many cases build on an earlier period of criminal record reforms in the 1970s.  At the conclusion of the chapter are report cards with color-coded maps ranking state laws by specific criteria, to facilitate comparisons between and among states.

There are some surprises.  For one thing, there is not a particularly strong correlation between how states rate in each of the two areas.  That is, states that have a robust system of fair chance employment laws may not and frequently do not have a similarly strong system for regulating how occupational licensing agencies treat people with a criminal record.  In fact, only two states (Illinois and Minnesota) scored at the top of both categories.  Three other states that scored well on employment also scored reasonably well on occupational licensing (California, New York, and Wisconsin), but the last two jurisdictions in the top employment category (Hawaii and the District of Columbia) scored poorly on occupational licensing.  Conversely, four states that ranked in the top tier for occupational licensing had no law at all regulating consideration of criminal record in employment (Iowa, Mississippi, New Hampshire, and North Carolina) and two others had only minimal regulation of public employment (Indiana and Utah).  Three states had no law at all governing either employment or occupational licensing (Alaska, South Carolina, and South Dakota).

Another result that may surprise those who have not been following recent developments in this area of the law, is that high marks for reining in the exclusionary policies of licensing boards go to some states not ordinarily considered politically and socially progressive.  The unexpectedly strong performance of some states in regulating occupational licensing boards may be attributable to antipathy toward government interference in free markets as well as an interest in efficiency and fairness.

A PDF of this chapter is available here.  The full text follows, with end notes. Coming next, the report’s chapter on “Record Relief.”

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CCRC urges 11th Circuit to uphold Florida felony voting decision

Yesterday, we filed an amicus brief in the U.S. Court of Appeals for the Eleventh Circuit in a case about the constitutionality of Florida’s system for restoring the vote to people with felony convictions.  We urge the court to affirm the lower court decision’s that declared Florida’s “pay-to-vote” system unconstitutional.  The brief draws on our new 50-state research report to show that Florida’s approach to this issue is an outlier among the states.

We were ably represented by Andrew L. Frey, Scott A. Chesin, and Luc W. M. Mitchell of Mayer Brown and very much appreciate their work.

Our brief is a contribution to high-stakes federal litigation in Florida over that state’s 2018 ballot initiative, Amendment 4, which many expected would restore voting rights to more than a million people disenfranchised because of their criminal record, in some cases for crimes that occurred decades ago.  However, the initiative has been interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which threatens to drastically limit its anticipated reach.

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The Clean Slate Initiative works to advance automated record clearance

We are pleased to publish a description of the Clean Slate Initiative we invited from its newly installed Managing Director.

The Clean Slate Initiative: Working to Ensure A Criminal Record is Not a Life Sentence to Poverty

By Sheena Meade*

As our nation responds to the COVID-19 pandemic, it is an imperative that lawmakers enact policies that include the tens of millions of justice-involved people and their families— already facing economic vulnerability from the stigma of a criminal record. One in three Americans, 70 million people, have some type of criminal record, and these records can create lifelong barriers to opportunity for them and their families. 

Nearly 9 in 10 employers, 4 in 5 landlords, and 3 in 5 colleges are now using background checks. Any record—no matter how old or minor—can put employment, housing, education, and other basics permanently out of reach. 

This harm is generational: Nearly half of children have at least one parent with a criminal record, resulting in difficulty for their parents to secure stable employment, economic stability and housing — all of which lead to less educational opportunities and hindered cognitive development. 

While most states allow people to petition for expungement or sealing of at least certain types of records, due to the cumbersome and complicated petition-based system used in most states, only a tiny fraction of people eligible for expungement or sealing ever obtain the relief they need. Navigating the complex record-clearing process can prove extremely challenging, often requiring expensive legal assistance and court fees—making it impossible for millions to move on with their lives.

As a national bipartisan coalition, the Clean Slate Initiative is working to fix this broken system in states across the country by advancing policies to automatically clear eligible criminal records. By sealing or expunging certain records after an individual remains crime free for a period of time we can remove these barriers, get people back to work and open the door to opportunity for them and their family.  Read more

Who Must Pay to Regain the Vote? A 50-State Survey

We are pleased to publish a new 50-state report on how unpaid court debt blocks restoration of voting rights lost as a result of conviction:

Who Must Pay to Regain the Vote? A 50-State Survey

This report examines the extent to which state reenfranchisement laws consider payment of legal financial obligations (LFOs), including fines, fees, and restitution, in determining whether and when to restore voting rights to people disenfranchised due to a felony conviction.

This issue has come to the fore as a result of the high-stakes federal litigation in Florida over that state’s 2018 ballot initiative, which many expected would restore voting rights to more than a million people disenfranchised because of their criminal record, in some cases for crimes that occurred decades ago. However, the initiative has been interpreted by Florida’s legislature and supreme court to condition reenfranchisement on payment of all outstanding fines, fees, costs, and restitution, which threatens to drastically limit its anticipated reach.

After a group of voters and organizations sued, a federal judge found this “pay-to-vote” system unconstitutional. The case is currently on appeal in the U.S. Court of Appeals for the Eleventh Circuit. CCRC expects to file an amicus brief next week that will include an abbreviated version of this report. Our brief will address the claim that many states have reenfranchisement schemes like Florida’s, and that the trial court’s decision would therefore cast doubt on a widespread national practice. But our research finds that very few states have laws like Florida’s that indefinitely deny reenfranchisement based on any unpaid debt related to a disqualifying conviction. In fact, only two other states, Alabama and Arkansas, share the specifics of Florida’s approach.

The issues in the Florida case and the findings of our report are detailed below.

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