CCRC’s collection of scholarship on collateral consequences updated

Scholars, practitioners, and those affected by the criminal system can now more easily access relevant and timely scholarship related to collateral consequences. CCRC has updated the Books and Academic Articles page of its resources section to facilitate quicker retrieval of relevant content. Specifically, CCRC has organized the relevant books and academic articles by category. These categories offer a wide array of academic perspectives on collateral consequences, restoration of rights, and record relief.

CCRC has similarly updated the books and academic articles section with new and potent scholarship, and expanded the coverage of restoration of voting rights. New scholarship since 2020 runs the gamut of collateral consequences, and includes work on expungement and record relief, executive clemency, drug related issues, and issues of inequity. The page has also been updated to include the most recent edition of the Federal Sentencing Reporter on the past, present, and future of the Federal pardon power, guest-edited by our Executive Director Margaret Love and featuring our Board Chair Gabriel J. Chin and our Deputy Director David Schlussel.

CCRC hopes that the resource section will continue to offer an array of insightful academic pieces for scholars, practitioners, and those seeking to restore their own rights.

Arizona enacts its very first sealing law – and it’s impressive!

In July 2021, in an unheralded action in the final days of its legislative session, Arizona enacted a law that authorized its courts for the first time to seal conviction records. See SB1294, enacting Ariz. Rev. Stat. § 13-911. The same law authorized sealing of uncharged arrests and dismissed and acquitted charges, also for the first time. Prior to this enactment, Arizona was one of a handful of states whose legislature had made no provision for limiting public access to conviction records, and was literally the only state in the country whose courts and records repository had no authority to seal non-conviction records. Now the state will have one of the broadest sealing laws in the country when it becomes effective on January 1, 2023.

(In the November 2020 election, Arizona voters approved a proposition to legalize marijuana, which included a provision for expungement of certain marijuana-related records.  But until now no general sealing authority had been enacted by the Arizona legislature.)

As described below, the law makes all but the most serious offenses eligible for sealing after completion of sentence (including payment of court debt) and a graduated waiting period.  It also appears that 1) multiple eligible convictions may be sealed, in a single proceeding or sequentially; 2) the prior conviction of a felony (even if ineligible) does not disqualify an eligible offense from relief but simply extends the applicable waiting period; 3) a conviction during the waiting period restarts the waiting period; and 4) there is no limit on the number of occasions on which sealing may be sought.

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North Carolina court restores the vote to 56,000

Update: This decision was stayed by the North Carolina Court of Appeals on September 3, 2021. As a result, the decision will not go into effect either until the appeal is resolved or further order of the court.

A three-judge state court in North Carolina has ruled that state’s felony disenfranchisement law unconstitutional as applied to individuals under supervision in the community, immediately restoring the vote to some 56,000 individuals. The decision means that in 24 states and the District of Columbia individuals convicted of felonies and serving a sentence in the community may vote.  North Carolina is the first southern state to restore the vote to convicted individuals upon release from prison.

As the New York Times noted in describing the court’s action, the ruling was “not entirely unexpected,” since “the same court had temporarily blocked enforcement of part of the law before the November general election, stating that most people who had completed their prison sentences could not be barred from voting if [the] only reason for their continued supervision was that they owed fines or court fees.”  See Community Success Initiative v. Moore, No. 19-cv-15941 (N.C. Super. Ct. Sept. 4, 2020).

While last year’s preliminary decision rested on the ground that requiring payment of court debt represented an poll tax, the challenge to North Carolina’s reenfranchisement scheme relied more broadly on its origins in intentional post-Civil War discrimination against Black people.  As the Times article noted, the decision “followed a trial that bared the history of the state’s disenfranchisement of Black people in sometimes shocking detail.”

The law struck down on Monday, which was enacted in 1877, extended disenfranchisement to people convicted of felonies in response to the 15th Amendment, which enshrined Black voting rights in the Constitution. But in the decade before that, local judges had reacted to the Civil War’s freeing of Black people by convicting them en masse and delivering public whippings, bringing them under a law denying the vote to anyone convicted of a crime for which whipping was a penalty.

A handful of Black legislators in the General Assembly tried to rescind the 1877 law in the early 1970s, but secured only procedural changes, such as a limit on the discretion of judges to prolong probation or court supervision.

The court has not yet released its opinion, and state officials may decide to appeal.

Federal policies block loans to small business owners with a record

Starting a small business is increasingly recognized as a pathway to opportunity for individuals with an arrest or conviction history—particularly given the disadvantages they face in the labor market. An estimated 4% of small businesses in the United States have an owner with a conviction (1.5% have a felony conviction). Small businesses provide “a vital opportunity for those with a criminal record to contribute to society, to earn an honest profit, and to give back to others.” They also frequently employ people with a record and help reduce recidivism. A growing number of organizations and government programs are devoted to supporting individuals with a record in building their own businesses.

Yet many structural barriers remain, including a series of little-known federal regulations and policies that impose broad criminal history restrictions on access to government-sponsored business loans, notably by the U.S. Small Business Administration (SBA).  A recent article illustrates the steep challenges faced by business owners with a record by telling the stories of several entrepreneurs who were either denied an SBA loan or were discouraged from even trying for one because of a dated felony conviction.  One of those entrepreneurs comments: “You might do five years, ten years, one year, but you pay for it until you’re in the grave.”

To illuminate and help reduce these barriers, our organization is working to develop a new “Fair Chance Lending” project. We hope to show that—rather than broadly exclude individuals with a criminal history—officials should draw record-based restrictions as narrowly as feasible, facilitate access to resources, and celebrate entrepreneurial efforts, consistent with growing national support for reintegration and fair chances in civil society.

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Reintegration reform returns to pre-pandemic levels in first half of 2021

This year is proving to be a landmark one for legislation restoring rights and opportunities to people with a criminal record, extending the remarkable era of “reintegration reform” that began around 2013. Just in the past six months, 30 states and the District of Columbia have enacted an extraordinary 101 new laws to mitigate collateral consequences. Six more bills await a governor’s signature.  It appears that legislative momentum in support of facilitating reintegration has returned to the pre-pandemic pace of 2019.

Overall, the past 30 months have produced an astonishing total of 361 laws aimed at neutralizing the adverse effect of a criminal record, plus more than a dozen additional executive actions and ballot initiatives.

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