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New 2019 laws on immigration consequences and driver’s license suspension

This is the fifth and final comment on new 2019 laws restoring rights or delivering record relief.  The laws included cover immigration consequences, driver’s licenses, pardon procedures, and several miscellaneous topics.  The full report on 2019 laws is available here.

Immigration consequences

In 2019, four states took steps enabling non-citizens charged with offenses to avoid deportation based on sentence or guilty plea.  Colorado, New York, and Utah capped prison sentences for misdemeanors at 364 days, to avoid mandatory deportation based on a one-year prison sentence, with the first two states giving the law retroactive effect.  New York also restricted the dissemination of certain criminal record information to federal immigration authorities.  Oregon revised its law on deferred judgments to prohibit guilty pleas that would trigger deportability.  Oregon also, along with Nevada, regulated the questioning of criminal defendants or detained individuals about their immigration status.

  • Colorado passed three laws aimed at mitigating the immigration consequences of conviction.   The first two relate to mandatory deportation for state misdemeanors carrying a potential one-year sentence.  See 8 U.S.C. § 1227(a)(2).  To avoid this consequence, Colorado reduced the maximum jail sentence for various offenses from one year to 364 days. (HB 1148; HB 1263).  Colorado also authorized individuals to withdraw guilty pleas where they had pled guilty pursuant to a deferred adjudication or drug offense dismissal scheme, and thereby unknowingly exposed themselves to immigration consequences (federal immigration law treats such pleas as convictions, even though state law may not, see 8 U.S.C. §§ 1101(a)(48)(A), 1227(a)(2)) (S 30).
  • New York not only capped misdemeanor penalties at 364 days, but it gave the provision retroactive effect by authorizing resentencing in cases where the penalty originally imposed would result in “severe collateral consequences.”  (S 1505).  In addition, New York barred access by federal immigration authorities to some motor vehicle records, which may include criminal record information (A3675).
  • Utah reduced the maximum prison term for misdemeanors to “one year with a credit for one day,” but made no provision for retroactive application (HB 244).
  • Oregon removed a guilty plea requirement from the controlled substances diversion statute, making this benefit available to non-citizens without exposing them to deportation (HB 3201).  The law specifically provides that “[e]ntering into a probation agreement does not constitute an admission of guilt” and is “not sufficient to warrant a finding or adjudication of guilt by a court.”  As noted in the diversion section, however, the bill added a provision requiring defendants to agree to pay restitution to victims and court-appointed counsel fees as a condition of participation, with no provision for waiver.  Another new Oregon law prohibits a criminal court from inquiring about a defendant’s immigration status, and requires the court to allow a defendant additional time to consider a plea after being informed of immigration consequences (HB 2932).  Last year Oregon limited sentences for minor crimes to 364 days to avoid deportation (much as Colorado, New York and Utah did this year).
  • Nevada passed a law prohibiting anyone from questioning a person in a jail or other detention facility about their immigration status, unless they first informed the detainee of the purpose of the questioning (AB 376).

In addition, Indiana reduced selected misdemeanors to non-criminal civil infractions, taking them out ac riminal category, and avoiding immigration consequences (SB 336).

Driver’s License Suspension 

Six states repealed laws mandating suspension of a driver’s license for non-driving offenses.

  • Mississippi (HB 1352) and New York (S 1505) repealed provisions making loss of a driver’s license a mandatory penalty for a drug crime.
  • Montana (HB 217) and Virginia (HB 1700) repealed laws mandating suspension of a driver’s license for failure to pay court costs.
  • New Jersey addressed both of these issues, repealing provisions mandating suspension of driver’s licenses for conviction of drug and other crimes, and for failure to pay court debt (S1080).
  • Florida modified or deleted provisions for driver’s license suspension or revocation for underage tobacco and alcohol sales or consumption, misdemeanor theft, and drug crimes (HB 7125).Fla. Stat. §§ 569.11, 877.112, 562.11, 562.111, 812.0155, 322.055, 322.056.

In addition, Minnesota authorized cities and counties to create a driver’s license reinstatement diversion program (SF 8).

Housing discrimination

Illinois extended two laws, including its Human Rights Law, to bar private parties’ reliance on certain criminal records to deny housing.  Previously both laws applied only to employment.

  • Illinois barred housing discrimination through an amendment to its Human Rights Law to prohibit discrimination based on “arrest record” in any “real estate transaction,” including both rental and sale of real property. The term “arrest record” was defined to include non-conviction records, juvenile adjudications, and sealed or expunged convictions.  (SB1780).  (This same enactment also extended the Law’s employment discrimination provisions to non-conviction records, since the other categories of records were already covered.)
  • Illinois also extended the effect of its certificate of good conduct to lift mandatory licensing and housing bars, in additional to employment bars. (SB 3580).  However, a certificate of good conduct does not limit any employer, landlord, judicial proceeding, administrative, licensing, or other body, board, or authority from accessing criminal background information; nor does it hide, alter, or expunge the record.  Nor does the existence of a certificate of good conduct does not preclude a landlord or an administrative, licensing, or other body, board, or authority from retaining full discretion to grant or deny the application for housing or licensure.

Pardon procedure 

Nevada and South Dakota took steps to further streamline their already productive pardon systems.

  • The Nevada legislature proposes to repeal a requirement in the state constitution that the governor must approve all clemency grants by the Board of Pardons Commissioners, on which the governor sits as a member (SJR 1A). This proposal, which also requires the Board to meet at least quarterly, must be approved by popular vote in 2020.
  • The South Dakota legislature authorized a hearing panel of the Board of Pardons to make clemency recommendations to the governor, rather than the entire Board as under preexisting law. (HB1005).

Miscellaneous relief provisions

Among the more notable miscellaneous collateral consequences provisions enacted in 2019 is Utah’s new law giving courts new authority to terminate sex offender registration obligations, and loosening restrictions on driver’s licenses for people on the registry.  Another interesting new law is Connecticut’s establishment of a high-level study group to make recommendations on reducing various forms of discrimination based on criminal history.

  • Utah loosened restrictions on registered sex offenders, including rescinding a requirement that they renew driver’s licenses annually, expanding the number of offenses that qualify for removal from the registry after 5 years, and enacting a new provision authorizing the court to terminate registration after 10 years (HB298).
  • Connecticut established a “Council on the Collateral Consequences of a Criminal Record,” composed of high-ranking members of the legislature and the executive branch and representatives of advocacy groups and unions, and charged it with making recommendations by February 1, 2020, for legislation to reduce or eliminate discrimination based on criminal history (HB6921).
  • Louisiana relaxed restrictions on fostering and adoption for people with convictions (HB 112).
  • New York outlawed release of booking information and “mugshots” by police departments without a law enforcement purpose (S1505).

Record-breaking number of new expungement laws enacted in 2019

This is the third in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief.  The full report on 2019 laws is available here.

Criminal record relief (expungement, sealing, set aside)

As in past years, the reform measure most frequently enacted in 2019 was record relief, i.e. expungement, sealing, or other mechanism to limit access to criminal records or set aside convictions.  This past year, 31 states and D.C. enacted no fewer than 67 separate bills creating, expanding, or streamlining record relief.  This total does not include a dozen other new laws authorizing non-conviction dispositions that will be eligible for record-clearing under existing law.  A trend we observed in our 2018 report toward “a growing preference for more transparent restoration mechanisms” that limit use of a criminal record, as opposed to access, does not appear so obvious to us this year.  If anything, jurisdictions appear to be looking for new efficiencies in clearing records.

In 2019, 27 states and D.C. made certain classes of convictions newly eligible for expungement, sealing, or vacatur relief.  Five of those states enacted their first general authority for expunging or sealing convictions (North Dakota, New Mexico, West Virginia, Delaware, Iowa), making record relief available for the first time to thousands of people.   Nonetheless, most potential beneficiaries of these new relief schemes find them hard to navigate:  eligibility criteria are frequently complex and unclear, and court procedures are usually intimidating, burdensome and expensive.  These and other barriers to access have been shown to discourage the law’s intended beneficiaries.

To obviate the need for individual applications, in 2019 three states followed the example set by Pennsylvania’s 2018 “Clean Slate Act” by enacting automatic relief for a range of conviction and non-conviction records (Utah, California, New Jersey).  Specific provisions of these important new laws are described in the following pages, and in greater detail in the relevant state profiles in the Restoration of Rights Project.  Six additional states focused automatic relief provisions on specific offenses or dispositions (

, Illinois, New York, Virginia, Nebraska, Texas).

Also notable were bills providing relief for victims of human trafficking and for marijuana offenses.  Seven states and D.C. authorized relief for victims of human trafficking, allowing them to vacate, expunge, and seal a range of criminal records resulting from their status as a victim.   Seven other states—all of which have legalized or decriminalized marijuana—authorized record relief for certain marijuana offenses, including two automated relief measures (New York and Illinois).

In addition to these marijuana measures, which often extend to arrests and other non-conviction records, eleven states extended relief to certain non-conviction records for the first time.  Most far-reaching, new provisions in New York’s annual budget bill limited access to cases in which there has been no docket entry for five years; precluded the inclusion of such undisposed cases in background check reports; and extended New York’s automatic sealing of non-convictions to cases decided prior to the enactment of that relief in 1992. 

Finally, thirteen states enacted 18 laws to streamline and/or make more effective the procedures for obtaining relief under existing mechanisms.  Three states (Colorado, Washington, and New York) made particularly noteworthy and broad-based procedural reforms to their criminal records laws.

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To summarize the bounteous haul of record relief laws enacted in 2019, we have organized them into three categories: (1) new automatic relief schemes; (2) new petition-based relief; and (3) improved procedures and effect of existing record relief mechanisms.

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New 2019 laws restore voting rights in 11 states

This is the first in a series of comments describing some of the 153 laws passed in 2019 restoring rights or delivering record relief in various ways.  The full report on 2019 laws is available here.

Restoration of Civil Rights

  1. Voting 

In 2019, eleven states took steps to restore the right to vote and to expand awareness of voting eligibility.  Our experience is that many people convicted of a felony believe they are disqualified from voting when they are not:  almost every state restores voting rights automatically to most convicted individuals at some point, if they are even disenfranchised to begin with.

The most significant new re-enfranchisement laws were enacted in Colorado, Nevada and New Jersey, where convicted individuals are now eligible to vote except when actually incarcerated.  Colorado restored the vote to persons on parole supervision, while Nevada revised its complex system for restoring civil rights so that all people with felony convictions may now vote except while in prison.  In one of the final legislative acts of 2019, New Jersey’s governor signed a law limiting disenfranchisement to a period of actual incarceration, even in cases where a court has ordered loss of the vote for election law violations, immediately restoring the vote to 80,000 people.  These three states joined the two states (New York and Louisiana) that in 2018 took steps to limit disenfranchisement to a period of incarceration:  New York’s governor issued the first of a series of executive orders under his pardon power restoring the vote to individuals on parole, and Louisiana passed a law allowing people to register if they have been out of prison for at least five years.

Now, only three of the 19 states that disenfranchise only those sentenced to prison still extend ineligibility through completion of parole:  California, Connecticut, and Idaho.  Bills under consideration in 2019 in both California and Connecticut would allow people to vote once they leave prison, though in California this will require a constitutional amendment.

Kentucky saw perhaps the most dramatic extension of the franchise in 2019, when its incoming governor Andy Beshear issued an executive order restoring the vote and eligibility for office to an estimated 140,000 individuals convicted of non-violent felonies who had completed their sentences.  Before the order, individuals were required to petition the governor individually to obtain restoration of their voting rights.  (Governor Beshear’s father had issued a similar order in 2015 at the end of his own term as governor, but it was revoked by his successor.)  Iowa is now the only state that does not restore the vote automatically to most convicted individuals at some point.

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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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New drug policy center blends scholarship and public engagement

The Drug Enforcement and Policy Center (DEPC), which is housed at the Ohio State University Moritz College of Law, focuses on promoting and supporting interdisciplinary, evidence-based research, scholarship, education, community outreach and public engagement on the myriad issues and societal impacts surrounding the reform of criminal and civil laws prohibiting or regulating the use and distribution of traditionally illicit drugs.  DEPC examines the impact of modern drug laws, policies and enforcement on personal freedoms and human well-being, giving particularized and sustained attention to analyzing the rapid evolution of marijuana laws and the impacts of state-level reform efforts.  DEPC strives to advance scholarship from across academia, while also working with government actors, legal practitioners, public policy advocates and other stakeholders, in order to help shape and thoughtfully enrich public conversations about the intersecting fields of drug policy and criminal justice reform.

Questions relating to drug enforcement and policy intersect with collateral consequences in any number of ways.  One obvious example involves the on-going robust discussion of whether and how marijuana reforms at the state level should incorporate distinct provisions for the expungement of past marijuana convictions – a conversation now taking place in New Jersey as that state prepares to vote on legalization.  The Executive Director of DEPC, Professor Douglas Berman, wrote on this topic last year in his article for the Federal Sentencing Reporter titled “Leveraging Marijuana Reform to Enhance Expungement Practices.”

Another important question relates to whether people with a criminal record (including for long-ago drug crimes) should be barred from working or otherwise participating in the lucrative marijuana industry.

But other important (and uncertain) intersections abound.  For example, given the large number of drug arrests annually, are non-conviction records distinct and distinctly important in the drug enforcement arena?  We expect to consider this issue in our study of non-conviction records presently underway.  Also, given the tendency of some employment restrictions and other collateral consequences to focus on certain types of prior convictions, do past drug offenses present a uniquely problematic barrier for reentry?    DEPC is eager to help develop and promote research on these kinds of critical topics (and many more).

New era for expungement reform? Too soon to tell.

A new article in the Harvard Law & Policy Review evaluates some of the recent legislative efforts to deliver relief from the burden of collateral consequences through new or expanded expungement laws.  In “A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels,” Brian Murray argues that many of the newer record-closing laws are far too modest in scope and effect to have much of an impact on the problem of reintegration, citing Louisiana and Maryland enactments as examples of relief that is both too little and too late.  He admires Indiana’s broad new expungement scheme, which limits use of records as well as access to them, regarding it (as do we) as an enlightened exception to a general legislative aversion to risk.  He considers recent legislation in Minnesota to fall into a middle category — and we could add Arkansas as another state to have recently augmented and clarified older record-closing laws.  Our round-up of new expungement laws enacted just this year finds very little consistency from state to state, with Kentucky, Tennessee, Missouri and New Jersey all experimenting with different approaches.

Murray appreciates the need for a multifaceted approach to the problem of criminal records, and recognizes the doctrinal and practical shortcomings of a reform agenda that depends primarily on concealment.  His bottom line, with which we agree, is that “[s]kepticism regarding the benefits of expungement in the information age, coupled with the incremental nature of legislative reform, leads to the conclusion that expungement law must continue to develop as one piece in a larger puzzle.”

 

Restoration of Rights Project: State-specific guides to restoration of rights, pardon, expungement, sealing & certificates of relief

Federal / Puerto Rico / Virgin Islands Federal | Read the Full Profile |  Summary: Loss & restoration of civil/firearms rights Read more Pardon policy & practice  Read more Expungement, sealing & other record relief Read more Criminal record in employment & licensing Read more | Return to Top | Alabama  | Read the Full Profile | Summary: Loss & restoration of civil/firearms rights Read more […]

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Round-up of 2023 record-clearing laws

In a year that saw fewer criminal record reforms enacted than in the recent past, six states plus the District of Columbia took significant steps to expand their sealing and expungement laws.

Minnesota, New York, and the District of Columbia enacted the most ambitious record-clearing schemes, expanding eligibility for relief while also making some relief automatic for the first time. Louisiana continued to resist a full “clean slate” approach, but established an automated application system that should make it easier for individuals to seek expungement once the legislature reduces the sky-high statutory application fee. Like Louisiana, Maryland significantly improved its record relief system even without changing eligibility criteria, including by cutting waiting periods in half. Ohio and Pennsylvania expanded eligibility for petition-based sealing and reduced waiting periods, with Pennsylvania also extending automatic relief to some drug felonies.

These seven reforms are described in greater detail below, in approximate order of importance.  Further analysis of each state’s new law can be found in the relevant state profile from the Restoration of Rights Project.  All in all, considering the relatively few record reforms in other categories enacted in 2023, they make for a surprisingly productive year for record clearing.

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Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws

We are pleased to present a new report, “Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws.” This report offers a comprehensive and up-to-date picture of the differing ways states have responded to the 1996 federal ban on access to SNAP and TANF benefits for those with a felony drug conviction, either by opting out of the ban or by modifying it, and includes illustrative maps and relevant sections of statutory text to facilitate analysis and comparison.

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The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) imposed a lifetime ban on federal food assistance benefits (SNAP) and Temporary Assistance for Needy Families (TANF) for anyone with a drug felony conviction obtained after passage of the Act.1 PRWORA allowed states to opt out of the ban or to modify it, and over the years all but one state has opted out of the ban or modified it for at least one of the two benefit programs. That said, fully half the states remain committed in some fashion to this outdated artifact of the War on Drugs.

Over the years there have been numerous reports critical of the policy underpinnings of the categorical ban on public welfare benefits imposed by PRWORA, and researchers have generally concluded that the ban is counterproductive even in modified form, including in criminal justice terms.2 Indeed, a recent empirical study of modified versions of the SNAP/TANF bans concluded that by “introducing greater state scrutiny of recipients’ conformity to state-sanctioned behavioral norms,” modified bans are “not inherently less punitive” than full bans.3

We do not intend to dwell on the policy arguments against the PRWORA ban in this report. Rather, our purpose here is the more modest one of providing a detailed description of state laws that currently modify participation in the SNAP/TANF bans, for use by policymakers and advocates seeking further reforms.

Surprisingly, this has not been done in the more than 25 years since PRWORA’s enactment. Two recent private sector studies have identified the extent of state participation in one or both of the PRWORA bans, but their conclusions are not consistent with one another or, in all cases, with our own research.4 Notably, neither of these studies documents the specific features of modified bans, which can vary widely from state to state in scope and effect.

Significantly, no previous report on the SNAP/TANF bans has included statutory text that would permit analysis of the ways various states have modified them, and comparisons between and among states. Our report attempts to remedy this shortcoming.

We illustrate the national landscape of participation in the SNAP/TANF bans through a set of maps: one map shows the national landscape of participation in the PRWORA ban for all 50 states, and two additional maps show how states have modified the ban for each of the two benefit programs. A 30-page Appendix includes the text and an analysis of each state’s relevant law(s), providing additional detail about how access to benefits may be controlled differently even within the same general category of modification.

We hope that advocates in states that have not yet fully opted out of both the PRWORA bans will find this unique collection of research tools helpful as they work to complete this important law reform project. 

Preparation of “Access to SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws” was made possible by a generous grant from Arnold Ventures.

Citation: Margaret Love & Nick Sibilla, Access to SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws, Collateral Consequences Res. Ctr. (December 2023)

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Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws

We are pleased to present a new report, “Accessing SNAP and TANF Benefits after a Drug Conviction: A Survey of State Laws.” This report offers a comprehensive and up-to-date picture of the differing ways states have responded to the 1996 federal ban on access to SNAP and TANF benefits for those with a felony drug conviction, either by opting out […]

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