Ohio governor establishes expedited pardon process

On December 3, Governor Mike DeWine announced an initiative that promises to revive the pardon power in Ohio and bring much-needed relief from collateral consequences to many hundreds of deserving individuals convicted over the years in that state.  The Expedited Pardon Project, a collaboration between the Governor’s Office and the Drug Enforcement Policy Center at Ohio State University and the Reentry Clinic at The University of Akron School of Law, aspires to expedite the process by which people apply for a pardon under Ohio’s laws by enlisting law students to assist in preparing pardon applications.  Once petitions are filed, the formal pardon process prescribed by statute will be collapsed into a period of months, with final action by the governor in less than a year.

This initiative could elevate Ohio into the small group of states that have productive and regular pardon programs, including states like Connecticut, Delaware, Georgia and South Carolina, where duly constituted pardon boards (some entirely independent of the governor) preside over programs that issue hundreds of pardons every year, granting relief to a high percentage of individuals that apply.  Another handful of states, including Arkansas, Nebraska, and Nevada, have somewhat smaller pardon programs but still issue between 50 and 100 grants each year.  With this expedited initiative, Ohio could quickly join their ranks, supplementing the state’s limited judicial sealing and certificate laws in furthering the goals of restoration and reintegration.  It could also make the Ohio pardon process one of the most efficient in the nation.

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UPDATED: 50-State Chart on Relief from Sex Offender Registration

We have completed an overhaul of our 50-State chart on relief from sex offender registration obligations, to bring it up to date and ensure that it is thorough and accurate.  This chart documents the duration of sex offender registration requirements, as well as legal mechanisms for early termination from such requirements.

In conducting this review, we have identified a handful of states that have, since the chart was last revised in November 2017, expanded the availability of relief from sex offender registration requirements, including for people who have successfully completed diversionary dispositions, people with serious disabilities, and people who are registered based on out-of-state offenses.  These recent changes in the law, incorporated in the chart, are summarized below. Read more

Algorithms, Race, and Reentry: A Review of Sandra G. Mayson’s Bias In, Bias Out

In true Minority Report fashion, state actors are increasingly relying on algorithms to assess the risk a person will commit a future crime.  Unlike Minority Report, these algorithms simply estimate the likelihood of rearrests; they do not offer the absolute answer to future criminal behavior that condemned the defendant, Tom Cruise, in the 2002 action film.  Still, criminal justice actors are using many types of algorithmic risk assessments to inform their decisions in pre-trial investigations, bail recommendations and decisions, and post-trial sentencing and parole proceedings.  Sandra G. Mayson’s article[1], Bias In, Bias Out, published this year in the Yale Law Journal, explains how these algorithms could reflect and project past and present racial bias in the criminal justice system and elsewhere.

At its core, an algorithm specifies individual traits that are correlated with crime commission.  If the data show that people of color are arrested more frequently, then the algorithm will predict more arrests for people of color.  In this sense, an accurate algorithm “holds a mirror to the past” by “distilling patterns in past data and projecting them into the future.”  Mayson provides an in-depth, yet easy-to-follow explanation of why race neutrality is unattainable when the base rates of arrest differ across racial groups.  These mirror-like algorithms give us the opportunity to clearly view the racial disparity in arrests and convictions.  Is there something wrong with this image, and what should we do now that we’ve seen it?

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Association of Prosecuting Attorneys joins Restoration of Rights Project as partner

The Collateral Consequences Resource Center is pleased to announce that the Association of Prosecuting Attorneys (APA) has joined as a partner in our Restoration of Rights Project (RRP).  The APA is a membership organization of elected and appointed prosecutors whose mission is to provide training and technical assistance to prosecutors in the United States,  and to facilitate collaboration with criminal justice partners on emerging issues related to the administration of justice.  APA President and CEO David LaBahn participated in the roundtable on non-conviction records held in August at the University of Michigan Law School, a project that relies heavily on the state law research in the RRP.  The RRP’s other partner organizations are the National Association of Criminal Defense Lawyers, National Legal Aid & Defender Association, and National HIRE Network.

The RRP describes current U.S. law and practice concerning restoration of rights and record relief following arrest or conviction in the 50 states, D.C., Puerto Rico, Virgin Islands, and federal system, in three formats: summaries of every jurisdiction, detailed profiles of each jurisdiction, and 50-state comparison charts.  Topics include sealing and expungement, employment and licensing, pardons, voting, jury service, public office, and firearms rights.   People visit the RRP more than 1,000 times every day looking for information about ways to alleviate the burdens of a criminal record.

We are very excited to have this respected national prosecutor organization as a partner in the RRP enterprise, to help bring the RRP’s resources to the prosecutor community, along with a greater awareness of the need for and availability of mechanisms to mitigate the collateral consequences of arrest and conviction.  We look forward to the new perspectives the APA can bring to bear as we work to expand the RRP and make it more useful to all those interested in restoration of rights and record relief.

Legislative update: third quarter 2019 sees more new licensing and expungement laws

In July we reported on the extraordinary number of new laws enacted in the first half of 2019 aimed at restoring rights and status after arrest and conviction.  A total of 97 separate pieces of legislation, some covering multiple topics, were enacted by 38 states and many broke new ground in their jurisdictions.  Moreover, clear trends begun in 2018 accelerated in the first half of 2019, as state lawmakers continued to focus most of their attention on facilitating access to record-clearing.  In addition, a significant number of new laws limited the authority of occupational licensing boards to disqualify a person based on criminal record.  Another area of progress was restoring voting rights.

Those trends continued over the summer, with 17 new laws, including significant laws enacted to regulate occupational licensing and expand record relief, including but not limited to marijuana convictions.  Several states showed a keen interest in exploring the possibility of automating record relief, although only one state actually enacted an automatic relief system by the end of the quarter (New York, for marijuana convictions).  (California enacted a “clean slate” law shortly after the beginning of the fourth quarter.)  At the end of the third quarter, Arkansas, Colorado and Florida were studying the feasibility of automating relief, North Carolina was considering automatic expunction of non-conviction records, and the Governor of New Jersey was attempting to persuade his legislature to adopt an automated system for convictions as well as non-convictions.)

By the end of the third quarter of 2019, 42 states had enacted an unprecedented total of 114 laws restoring rights and status, and more new laws on the horizon.

All of the laws described briefly below are more fully analyzed in the context of the state’s overall restoration scheme, in the detailed profiles of the Restoration of Rights Project.

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California becomes third state to adopt “clean slate” record relief

On October 8, Governor Newsom signed into law AB 1076, the so-called “Clean Slate Act,” authorizing automatic record relief in the form of set-aside or sealing for individuals with certain convictions and arrests under California law.  The new law supplements but does not supplant the existing system of petition-based relief, and applies to convictions and arrests occurring after the bill’s effective date of January 1, 2021.  Eligibility for automatic relief under the new law is similar to but not precisely coincident with eligibility under existing law.  The new law also for the first time prohibits courts and the state repository from disclosing information about conviction records that have been granted relief, except where specifically authorized, whether under the new automatic process or the older petition-based system.

California is now the third state to adopt general “clean slate” record relief, after Pennsylvania (2018) and Utah (2019).  While the automatic feature of the new law has prospective effect only, its limits on disclosure will, when effective, apply to all conviction records that have at any time been dismissed or set aside, whether automatically or by petition, as well as to all arrests and other non-conviction records that have been sealed.  The specific features of AB 1076 are described in detail in the following comment posted on October 3.

Governor Newsom also on October 8 signed two other bills that affect collateral consequences:  SB 310 amends Section 203 of California’s Code of Civil Procedure to make people convicted of a felony eligible to serve of a trial jury unless incarcerated or under supervision, or required to register as a sex offender based upon a felony conviction; and AB 1394 repeals a law requiring that juveniles pay a fee to have their records sealed.

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California poised to become third state to adopt “clean slate” record relief

On September 23, the California legislature sent AB 1076 to California Governor Gavin Newsom, who has until October 13 to sign or veto this potentially transformative legislation.  If enacted, AB 1076 would make California the third state (after Pennsylvania (2018) and Utah (2019)) to authorize “clean slate” record relief, a direction to authorities to seal certain arrest and conviction records automatically. (Illinois, New York, and California have enacted automatic relief for certain marijuana convictions, and several states have automatic relief for non-convictions.)  AB 1076 creates a parallel eligibility scheme that overlaps but is not exactly coincident with the petition-based system, as well as a new procedure for automatic relief.  The specific provisions are described generally below, and more fully after the break.

AB 1076 would not modify eligibility for relief under California’s existing scheme of judicial remedies for people with criminal records, via sealing as well as dismissal and set-aside.  Rather, effective January 1, 2021, it would create a new process obviating the requirement of an individually-filed petition or motion in most cases.  If this bill is signed into law, California would break new ground in becoming the first state to extend automatic “clean slate” relief to felony convictions (other than for marijuana possession).

A less-noted but significant feature of AB 1076 is its expansion of the effect of relief for conviction records:  it provides for non-disclosure of records of convictions that have been dismissed or set aside, whether automatically or by petition, and makes this provision applicable both to court records (effective February 1, 2021) and to records in the state repository (effective January 1, 2021), except in certain specified circumstances where disclosure is mandated by law.  As it is, and notwithstanding the widespread use of the term “expungement” to describe its general relief scheme for convictions, California has no law authorizing limits on public access to most conviction records, whether held by the court or by the state repository.  This would change in 2021, if this law is enacted.  (Most non-conviction records are now eligible for sealing by petition under California law.)  Note that, like most state repositories, California’s repository permits disclosure only to government agencies and specified private entities, so that the new limits apply within the class of otherwise authorized repository users.

The sponsors of AB 1076 emphasize that making relief automatic without the need for individual action will significantly reduce “barriers to employment and housing opportunities for millions of Californians.”  They point to the key findings of J.J. Prescott and Sonja Starr’s 2019 study of record-sealing in Michigan: 1) people who had their conviction records sealed tended to have improved employment outcomes and lower recidivism rates than the general population; but 2) only a small percentage (6.5%) of those individuals eligible for set-aside and sealing actually applied, likely because of the complexity and burdens of filing a petition for relief with the court.  While no comparable study has been done for California, experience with that state’s marijuana-sealing law suggests that the low “take-up” rate is similar to the one Prescott and Starr found in Michigan.

If California’s new law is enacted, beginning in 2021 the state will automatically grant relief for many arrests not resulting in conviction, for infraction and misdemeanor convictions, and for some less serious felony convictions.  For eligible non-convictions—misdemeanor and some felony arrests—sealing will become automatic.  (However, a significant set of felony arrests not leading to conviction are excluded, as discussed below, although most of these dispositions remain eligible for petition-based relief.)  For eligible convictions, dismissal and set-aside will be automatic provided that a number of additional eligibility requirements are satisfied, including that a person must not be required to register as a sex offender, or be currently subject to prosecution, supervision, or incarceration for any offense.  Prosecutors and probation officers may object to automatic conviction relief in individual cases on “based on a showing that granting such relief would pose a substantial threat to the public safety,” and such an objection may be tested in a court hearing.

A major shortcoming of AB 1076 — in contrast to the “clean slate” laws enacted in Pennsylvania and Utah—is that its automatic relief is prospective only.  That is, relief is automatic only for arrests and convictions occurring after the law’s effective date.  Those with arrests and convictions occurring before 2021 would still have to apply to the court for relief.  Though the original bill had applied retroactively, the Assembly amended the bill to exclude arrests and convictions occurring before January 1, 1973, and then the Senate further amended it to exclude those occurring before January 1, 2021.  Presumably these changes were based on financial and logistical considerations.  The annual cost for the California Department of Justice (DOJ) and courts to carry out the final bill is estimated to total between about $2 and $5 million each year.  Moreover, the bill’s effective date, January 1, 2021, is specifically subject to an appropriation in the annual budget, and the State’s Department of Justice has indicated it “would need the implementation date to be delayed to July 1, 2023 for proper implementation.”  Despite challenges in implementation, we hope that, as the new automated system is developed, it will be feasible to extend relief to records predating 2021.

Of course, as noted, the provisions providing for non-disclosure of conviction records would apply to all cases dismissed or set-aside, without regard to when or by what process this relief was granted.

We will now describe in detail California’s clean slate legislation, which would add two new sections to the Penal Code, 851.93 and 1203.425, dealing with arrests and convictions, respectively, and amend the section of the Penal Code that deals with state records systems, 11105.

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Two Southern states enact impressive occupational licensing reforms

The 2019 legislative session saw two Southern states enact impressive new laws limiting the ability of occupational licensing boards to exclude qualified applicants based on their criminal record.  North Carolina and Mississippi each passed strong new substantive and procedural licensing rules, and both of the new laws show the influence of the Model Law developed by the Institute for Justice.  Both states have now eliminated vague “good moral character” criteria, and extended procedural protections that should make it substantially harder for boards to deny licenses based on criminal history.

As a result of these bills, both states now prohibit disqualification from licensure unless a crime is “directly related” to the license involved, both require written reasons in the event of denial, and both provide for a preliminary determination as to whether an individual will be favorably considered.  In North Carolina’s case, this “predetermination” is binding on the board when the applicant later applies.  North Carolina’s new law also requires licensing boards to report annually to the legislature on their consideration of applications from people with a criminal record.

In 2019, the following additional states have enacted new restrictions on the occupational licensing process:  Arizona, Arkansas, Florida, Nevada, Ohio, Texas, Utah and West Virginia.  All told, in the past eight months 14 states have enacted 18 laws regulating occupational licensing in one form or another, with Texas accounting for five of the 18.  These new laws are described in the relevant state profiles of the RRP, and they will be discussed in greater detail in our year-end report.  They will also be incorporated into the updating of our general survey of U.S. relief and restoration mechanisms (“Forgiving and Forgetting in American Justice”),  which is now underway.

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CCRC urges Supreme Court to reverse Iowa expungement decision

*Update 2: On November 25, 2019, the Supreme Court denied the petition.

*Update (11/1/2019):  On September 23, 2019, the Supreme Court asked Iowa to respond to the cert petition.  Iowa’s response is here.  The petitioner’s reply is here.

On September 9, we filed an amicus brief at the U.S. Supreme Court urging the justices to review and reverse a decision out of Iowa that upholds wealth-based barriers to expungement.  We were joined by the Institute for Justice, a libertarian public interest law firm.  At issue in the case is an Iowa law that bars a person from obtaining expungement of a dismissed or acquitted case if they owe any court fees in the case.  We point out the inequity of denying access to expungement based on socio-economic status:  “The irony of Iowa’s expungement law could not be clearer: a law that removes a hurdle to employment and economic security cannot be invoked by indigent individuals until outstanding costs and fees are paid to the state, effectively defeating the very purpose of providing expungement relief in the first place.”

This case arises from Jone Doe’s request in 2018 to expunge her dismissed criminal case from 2009.  But she still owes $550.38 for her court-appointed attorney, which she cannot afford to pay.  Doe argued the requirement to pay outstanding fees before obtaining expungement violates her equal protection rights under the constitution.  She pointed out that had she been able to hire a private attorney, she would be eligible for expungement, whether or not she owed attorney fees.  The lower court denied the request, finding that Doe “was made aware of reimbursing attorney fees and that expungement could not occur until all fees and assessed costs were paid.”  The Iowa Supreme Court, by a 4-3 vote, upheld the requirement, finding the state has a legitimate purpose “to encourage payment of court debt.”  On petition to the Supreme Court, we urge the Court to “grant certiorari and hold that one’s inability to pay court fees may not restrict access to statutorily-created expungement rights.”

We were represented by Ethan P. Fallon and Thomas M. Bondy of Orrick, Herrington, & Sutcliffe LLP, and appreciate their work on this case.  The full amicus brief is available here.

Florida gov asks state court to resolve felony voting dispute

Florida Governor Ron DeSantis has opened up a new front in the legal battle in Florida over voting rights for people with felony convictions.  DeSantis is asking the state supreme court for an opinion on whether Amendment 4, passed by Florida voters in 2018, restores the vote for people with outstanding court-ordered fines and fees.  DeSantis signed a law passed by the legislature saying no, but that law is being challenged in federal court.

Amendment 4

Amendment 4 automatically restored the right to vote for people convicted of felonies, other than murder or sexual offenses, upon “completion of all terms of sentence including parole or probation.”   On June 28, 2019, DeSantis signed legislation (SB7066) that defines “completion of all terms of sentence” to include legal financial obligations (LFOs), including if a court has converted the LFOs to a civil lien.  Supporters of SB7066 point to a previous hearing before the Florida Supreme Court—regarding whether Amendment 4 should be on the 2018 ballot—where the Amendment’s sponsors told the Justices that completion of sentence includes court-ordered fines and costs.

In federal court, individuals and supporters of Amendment 4 have brought several challenges to SB7066 as violating the U.S. constitution on a variety of grounds.  One complaint argues that by disqualifying persons with outstanding LFOs, even if a person has no ability to pay and even if the court has converted an LFO to a civil lien, the law violates the Equal Protection and Due Process guarantees of the Fourteenth Amendment.  It also argues that the law burdens the fundamental right to vote, is an unconstitutional poll tax, infringes on free speech and association, and was enacted with a racially discriminatory purpose.

UCLA law professor Beth Colgan recently published a survey of wealth-based penal disenfranchisement in the U.S.  She argues that while this widespread practice has been upheld in the lower courts under rational basis review, properly considered as a form of punishment it violates the Equal Protection Clause of the Fourteenth Amendment.

Request for Opinion

On August 8, DeSantis filed a four-page letter asking the Florida Supreme Court to weigh in on the meaning of the amendment.  “I will not infringe on the proper restoration of an individual’s right to vote under the Florida Constitution,” DeSantis states, asking the justices for “your interpretation of whether ‘completion of all terms of sentence’ encompasses financial obligations, such as fines, fees and restitution (‘legal financial obligations’ or ‘LFOs’) imposed by the court in the sentencing order.”

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