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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Loss and restoration of voting and firearms rights after conviction: A national survey

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

Earlier today we announced the forthcoming publication of a national report on mechanisms for restoring rights and opportunities following arrest or conviction, titled “The Many Roads to Reintegration.”  As promised, here is the first chapter of that report on loss and restoration of voting and firearms rights, a subject that needs little or no introduction.  The research, drawn from the Restoration of Rights Project, reveals a trend since 2015 toward expanding opportunities to regain the vote that has accelerated just in the past two years.

This trend seems particularly timely in light of the pending constitutional challenge to Florida’s restoration system, which raises the question whether the state may constitutionally require people to pay outstanding legal financial obligations (LFOs) before being allowed to vote, even if they cannot afford to do so.  There are now only two states in addition to Florida in which the vote is permanently lost for those unable to pay all LFOs associated with a disqualifying conviction.  An additional seven states permanently deny the vote for those unable to pay certain types of LFOs.  (Early next week, we will publish a report surveying state laws and practices on this issue, which will be included in abbreviated form in an amicus brief we plan to file in the court of appeals in support of the Florida plaintiffs.)

In contrast to voting rights law, there has been almost no change in the past half dozen years in how state and federal law treats firearms restoration after conviction.  In most states, firearms dispossession remains indefinite for anyone convicted of a felony, and restoration depends upon petitioning a court for discretionary relief or asking for a pardon. In 11 of the 26 states in which all firearms rights are permanently lost upon conviction of any felony, and for those with a federal conviction, a pardon is the exclusive restoration mechanism.

A PDF of this chapter is available here.  Coming next week, the report’s chapter on “Employment and Occupational Licensing.”

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The Many Roads to Reintegration: A national survey of laws restoring rights and opportunities after arrest or conviction

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

We are pleased to announce that this summer we will publish a national report on the various approaches to restoration of rights and opportunities following arrest or conviction being implemented throughout the United States.  Over the next few weeks, we will preview sections of the report on this site.

Titled “The Many Roads to Reintegration,” the report revises and substantially expands our earlier national report last updated in August 2018.  Just in the last two years there has been a veritable torrent of law-making aimed at mitigating or avoiding the collateral consequences of a criminal record, which we have chronicled in our annual reports on new legislation. We hope that this national report will allow us to take stock of how far we’ve come as a country in the past several years, and show us where we need to go.  We envision it as a kind of summing up at the end of the beginning of this new Age of Record Reform in which we find ourselves.

Later today, we will post the first chapter on “Loss and Restoration of Voting and Firearms Rights.”  Next up, next week, will be the third chapter on fair employment and occupational licensing.  The final piece of the report, which we expect will be ready for publication by the second week in August, will deal with the myriad approaches to record relief being developed and implemented across the country, including executive pardon, legislative “clean slate” laws, and judicial expungement.  We expect to publish the whole report, complete with appendices, by mid-to-late August.  We welcome feedback on the chapters as we publish them, so that we can make improvements before the entire report is final.

The Table of Contents is published below to give our audience a picture of what to expect when the report is published in August.

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Pennsylvania expands access to 255 licensed occupations for people with a record

On July 1, Pennsylvania Governor Tom Wolf signed into law an expansive new regulation of the state’s occupational licensing process, giving the agencies that control access to 255 occupations detailed new standards for considering criminal records in the licensing process.  Pennsylvania has not addressed these issues on a state-wide basis since the 1970’s, and with proper implementation the new law promises a path to the middle class for skilled individuals whose career prospects might otherwise be limited.

While Pennsylvania’s law is by far the most ambitious one of its kind passed this year, five other states have also passed laws since the beginning of 2020 regulating consideration of criminal record in occupational licensing.  Two were states that previously had no general law governing this issue (Idaho and Missouri) and three were states that extended laws passed in recent years (Iowa, Utah and West Virginia).

Pennsylvania’s new law is analyzed in detail below.  The provisions of the other five states’ new licensing laws are summarized briefly at the end of the post, and the laws of all six states are written up in greater detail in the relevant state profiles in the Restoration of Rights Project.

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SBA throws in the towel and Congress extends the PPP deadline

After Congress authorized hundreds of billions of dollars for small business relief during COVID-19, the Small Business Administration (SBA) by rule and by policy imposed restrictions on applicants with an arrest or conviction history.  As we have documented, these SBA barriers, neither required nor contemplated by Congress, unlawfully impeded access to the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan (EIDL) program.  Over many weeks, the Administration stubbornly defended those barriers.  Finally, facing a bipartisan chorus of criticism including from members of Congress, and lawsuits in federal court, the Administration threw in the towel.

On June 12, shortly after the SBA eased some of the PPP restrictions, lawsuits were filed in federal court by several Maryland business owners challenging those restrictions.  On June 24, SBA further relaxed its PPP barriers, this time in a far more significant fashion, notably making the business owners who had sued the SBA eligible.  But the latest policy change came with less a week before the June 30 application deadline.

Then, just one day before the deadline, a federal judge ruled that the SBA’s criminal history restrictions on PPP, except for the June 24 policy change, were likely unlawful.  The court extended the deadline to apply, but only for the small business owners who had sued.

In a dramatic finale, Congress extended the PPP application deadline to August 8 for everyone.  This extension, signed into law on July 4, gives business owners made eligible under the June 24 policy a meaningful opportunity to learn about their eligibility and complete the application process.  A good outcome all around, thanks to the many people who refused to take no for an answer!

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Collected resources on record restrictions for small business relief

*NEW POST (Jan. 21, 2021): Applying for SBA COVID-19 relief with a criminal record in 2021

On this page, we collected a variety of materials on the restrictions related to arrest or conviction imposed by the Small Business Administration (SBA) on small business owners seeking relief under the Paycheck Protection Program (PPP) and Economic Injury Disaster Loan (EIDL) program during 2020. Included are proposed reform legislation, lawsuits filed, academic studies, letters from legislators and major organizations, articles by us and by others, and official documents related to this issue. (For more current information, see: Applying for SBA COVID-19 relief with a criminal record in 2021.)

After the first COVID-19 relief bill in March 2020, the CARES Act, the SBA imposed broad criminal history restrictions on applicants. Following the introduction of a bipartisan Senate bill, Treasury Secretary Steven Mnuchin agreed on June 10, 2020, to revise the PPP restrictions.  On June 12, 2020, SBA issued new regulations and applications forms to ease some of the barriers in the PPP.  On June 24, 2020, the SBA further relaxed its criminal history barriers for PPP assistance, this time in a far more significant fashion, and in a manner that makes the business owners who are suing the SBA now eligible to apply.  The new regulation and application form came less a week before the June 30, 2020 deadline to apply for relief.

Meanwhile, two lawsuits were filed against the SBA in federal court in Maryland, asserting that the SBA’s criminal history restrictions are beyond the agency’s authority, arbitrary and capricious, and contrary to the text of the CARES Act; the second lawsuit also asserts that the restrictions fall hardest on minority businesses due to the impact of over-criminalization on communities of color.  On June 29, 2020, a federal judge ruled that the SBA’s criminal history restrictions on PPP, except for the June 24 policy change, were likely unlawful.  The court extended the deadline to apply, but only for the small business owners who had sued.

In a dramatic finale, Congress extended the PPP application deadline to August 8, 2020 for everyone.  This extension, signed into law on July 4, gave business owners made eligible under the June 24, 2020 policy a meaningful opportunity to learn about their eligibility and complete the application process.

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North Carolina enacts Second Chance Act

CCRC Board member John Rubin of the University of North Carolina faculty has provided us with a detailed account of NC’s brand new Second Chance Act, and we are pleased to post it below.  We are particularly pleased to see North Carolina join the 13 other states that have enacted automatic record relief for dismissals and acquittals, and remove its prior felony bar to eligibility.  It appears that only a handful of states still retain this unfortunate provision, including Rhode Island, Oklahoma, and West Virginia.  We look forward to studying the new law in detail, and will shortly incorporate its provisions into the NC profile and 50-state charts from the Restoration of Rights Project.

We are also pleased to introduce our new 50-state chart on “Process for expunging or sealing non-convictions,” which indicates that there are now a total of 20 states that deliver relief for dismissals and acquittals that is either automatic or expedited at time of disposition.  At least half of these laws have been enacted in the past two years.  But there are still 24 states and D.C. that require people to file petitions, satisfy complex eligibility requirements, and jump through a variety of procedural hoops to limit public access to these records, and one state (Arizona) and the federal system offer no relief at all.  There is no excuse for allowing these records to remain publicly available and the source of discrimination, when the government was unwilling or unable to prosecute their charges to conviction.  We will continue to work for reforms based on the Model Law on Non-Conviction Records, and are happy to offer advice and assistance to any jurisdiction that decides to take on these issues.

A Second Chance in North Carolina Through Expanded Record Clearance
John Rubin
© UNC School of Government

North Carolina continues to make gradual strides in helping people clear their criminal records and enhance their opportunities going forward. Last week the Governor signed the Second Chance Act, S.L. 2020-35 (S 562), which passed the General Assembly unanimously. The Second Chance Act expands expunction opportunities and streamlines the process for people trying to clear their records. The product of negotiation and compromise, it reflects the interests of prosecutors, law enforcement, and court administrators as well. The act illustrates many of the record clearance issues being considered around the country, including automatic expunction of nonconviction records (to begin in North Carolina at the end of 2021), removal of barriers to expunctions of nonconviction records (most notably, no longer will prior convictions, whether for a felony or misdemeanor, be a bar), somewhat greater opportunities to expunge older convictions if “nonviolent,” and greater access by prosecutors and law enforcement to expunged case information. This summary does not try to explore the many nooks and crannies in the legislation. It is a first pass at describing the changes. Read more

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