CCRC launches major study of non-conviction records

CCRC is pleased to announce that we are undertaking a major study of the public availability and use of non-conviction records – including arrests that are never charged, charges that are dismissed, deferred and diversionary dispositions, and acquittals.   Law enforcement agencies and courts frequently make these records available to the public allowing widespread dissemination on the internet, both directly and through private for-profit databases.  Their appearance in background checks can lead to significant discrimination against people who have never been convicted of a crime, and result unfairly in barriers to employment, housing, education, and many other opportunities.  Research has shown that limiting public access to these records through mechanisms like sealing and expungement is valuable in economic terms for those who receive this relief, and improvements in their economic status will in turn benefit their families and communities.

While almost every U.S. jurisdiction makes some provision for limiting public access to non-conviction records, such relief varies widely in availability and effect, and is often difficult to take advantage of without a lawyer.  What’s more, arrest records may remain accessible on the internet long after official court files have been made confidential or even destroyed.  While CCRC’s Restoration of Rights Project now includes state-by-state information on how non-conviction records may be sealed or expunged, our new project will examine the operation of applicable laws more closely.

The first phase of this project will produce by early June 2019 a detailed inventory of the laws in each U.S. jurisdiction for limiting public use of and access to records of arrests and/or judicial proceedings that do not result in conviction.  Among other things, this inventory will examine both: (1) categorical or automatic relief (such as general confidentiality laws and limits on considering non-conviction records by employers and licensing boards); and (2) case-specific relief (such as sealing and expungement, either automatic or by application).  For this second type of relief, the study will look at eligibility criteria (including waiting periods and overall criminal record), procedures (including filing fees or other financial barriers), and effect (entities excepted from restrictions on access and use). It will also note where state law or court rulings permit redaction of records so that dismissed charges may be sealed even if one or more charges in a case do result in conviction.

After completing the research phase of the project, CCRC will consult with scholars and practitioners to prepare a nationwide analysis, examining specific issues across all jurisdictions, identifying patterns and gaps in existing laws and policies.

The second and final phase of the project will be launched at a roundtable meeting on August 16-17, 2019, hosted by the University of Michigan Law School. The roundtable will produce a set of policy recommendations and model legislation aimed at neutralizing the effect of non-conviction records.  Professors JJ Prescott and Sonja Starr of the Law School faculty will serve as conference hosts and collaborators on this second phrase.  A number of legal scholars, practitioners, judges, law enforcement officials, and legislators have already agreed to participate.  At least three of those invited themselves have criminal records.  We expect to have several technology experts at the table to advise about the operational implications of the policies and legislation we are considering, in light of how states manage their criminal records systems.

Following the August roundtable, we will finalize its recommendations and model law with the assistance of scholars and other experts; publish them in a report; and promote them widely in the academic and advocacy community.

The principal value of this project will be to inform and strengthen efforts underway in legislatures and advocacy organizations across the country to mitigate the disabling effects of a criminal record on the lives of people who have one, on their families and on their communities.  We believe that reforming the law is as important a part of the reintegration agenda as advocating for and providing services to those who are seeking a second chance, and we hope this project will be the first stage of a larger national law reform effort to address access to and use of all types of criminal records. In light of the intense interest in legislatures across the country in mitigating the effect of criminal records, as evidenced in our 2018 report on relevant laws passed just last year, there is an obvious need for such guidance.  The first months of 2019 have evidenced an even greater level of legislative interest, on which we expect to report again shortly.

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WA lifetime ban on childcare work held unconstitutional

On February 21, 2019, the Washington State Supreme Court declared that a state regulation imposing a lifetime ban from ever obtaining a childcare license, or having unsupervised access to children in childcare, is unconstitutional as applied to Chrystal Fields.  The lifetime ban was triggered by Ms. Fields’ 1988 attempted second degree robbery conviction for trying to grab a woman’s purse in front of a drugstore.  (The licensing agency has a list of 50 permanently disqualifying convictions, one of which is robbery; an attempted offense is treated the same as a completed offense.)  The court held that the licensing agency’s failure to conduct an individualized determination of Ms. Fields’ qualifications violated her federal right to due process.  Fields v. Dep’t of Early Learning, No. 95024-5 (Wash. Feb. 21, 2019).  The full decision is available here.  A brief discussion of the case follows.

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Living with a marijuana conviction after legalization (updated)

Jacob Sullum, senior editor at Reason, has written a fabulous article about expungement of marijuana convictions in places that have since legalized marijuana: so far 10 states, DC, and the Northern Mariana Islands have legalized.  The piece is now available to the public at this link: http://reason.com/archives/2019/03/01/the-lingering-stench-of-mariju

Sullum tells the stories of eleven individuals, from the jurisdictions that have legalized, who describe how their marijuana convictions have impacted their lives before and after legalization.  He documents the lingering legal and social sanctions that burden people long after they have served their sentences, sanctions that “seem especially unjust and irrational in the growing number of U.S. jurisdictions that have legalized marijuana for recreational use.”

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UK Supreme Court issues major ruling on employer access to criminal records

On January 30, 2019, the UK Supreme Court issued a significant decision largely upholding the UK’s categorical rules for when criminal records are disclosed to employers, but declaring two key rules incompatible with privacy rights under the European Convention on Human Rights.  The first rule in question, the so-called multiple conviction rule, automatically requires people who have more than one conviction to disclose all prior convictions on “standard” and “enhanced” records checks.  (As explained below, the UK disclosure scheme provides for three levels of checks, depending on the nature of the employment involved, the two specified being the more in-depth.)  The second rule requires that certain youth reprimands and warnings—administered without an admission or determination of criminal charges—be disclosed on both types of checks.  CCRC contributor Alessandro Corda posted about this case this past July when it was being considered by the court and Christopher Stacey, co-director of a charity organization that intervened in the case, who attended the three days of hearings, provided guest commentary.

The decision has significant implications for the employability of people with criminal records in the UK and could offer policy lessons for the US.  It is therefore worth discussing in some detail.

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Sex offender registration litigation: punishment and free speech

In the past week, there were two notable developments regarding the constitutionality of state sex offender registration schemes.

First, as noted by Douglas A. Berman at Sentencing Law and Policy, Michigan Attorney General Dana Nessel filed highly significant amicus briefs in two Michigan Supreme Court cases, “arguing that Michigan’s sex offender registration and notification requirements are punishment because they are so burdensome and fail to distinguish between dangerous offenders and those who are not a threat to the community.”  Both of the Michigan cases involve constitutional challenges under the Ex Post Facto Clause to the retroactive application of the state registration requirement.  Michigan v Snyder, No. 153696; People v. Betts, No. 148981.

In the second development, U.S. District Judge W. Keith Watkins of the Middle District of Alabama on Monday held that Alabama’s sex offender registration law (“ASORCNA”) violates the First Amendment by branding state-issued ID cards with “CRIMINAL SEX OFFENDER” and imposing extensive internet-use reporting requirements.  Doe v. Marshall, No. 2:15-CV-606-WKW (M.D. Ala. Feb. 11, 2019).  This case presents an interesting twist on the now-vulnerable theory espoused by the U.S. Supreme Court and many states that sex offender registration is not “punishment.”

These two caselaw developments are discussed further below.

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“Executive Clemency in the United States”

This is the title of CCRC Executive Director Margaret Love’s new article for the Oxford Research Encyclopedia.  The article describes the historic role played by the executive pardon power in reducing punishments (including collateral ones) and explains clemency’s diminished vitality and reliability in modern times in most states and in the federal system.  Love concludes that “[i]t appears unlikely that an unregulated and unrestrained executive power will ever be restored to its former justice-enhancing role, so that those concerned about fairness and proportionality in criminal punishments must engage in the more demanding work of democratic reform.”

Here’s the abstract:

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Federal farm bill legalizes hemp, but bars participation based on criminal record

In the past six years, almost every state has taken at least some steps to chip away at the negative effects of a criminal record on a person’s ability to achieve employment, housing, education and public benefits, and participation in civil society.  In stark contrast, Congress has not dealt with the problem of reintegration for more than a decade—either by reducing federal collateral consequences or by restoring rights to people with federal convictions.  The new farm bill continues this trend.

Enacted on December 20, 2018, the bill puts in place a new regulatory regime for the legalized cultivation and sale of hemp, a variety of the cannabis plant grown for industrial uses.  At the same time, the bill adds a new collateral consequence to federal law (which already has more than a thousand): anyone convicted of a drug-related felony may not participate in legalized hemp production for 10 years after their date of conviction, unless they are part of a hemp pilot program authorized by the 2014 farm bill.  An earlier version of the farm bill would have banned people with drug-related felony convictions from participating in hemp production for life, so the final bill is somewhat more progressive.

This new restriction reflects and contributes to an ongoing practice in which many jurisdictions that have legalized marijuana have excluded people with marijuana convictions from participating in this booming new industry.  Moving in the other direction, some jurisdictions such as California and Massachusetts—recognizing racial disparities and other injustices of the war on drugs—have enacted policies to clear marijuana convictions, allocate marijuana tax revenue to communities disproportionately affected by past drug policies, and encourage full participation in legalized marijuana industries by members of disproportionately affected communities.

“Wealth-Based Penal Disenfranchisement”

This is the title of an important new article by Professor Beth Colgan, forthcoming in the Vanderbilt Law Review, in which she documents how inability to pay economic sanctions associated with a criminal conviction (such as fines, fees and restitution) results in continuing disenfranchisement nationwide.  While the law in almost every state now restores the vote to those convicted of felonies no later than completion of sentence, and while fewer than a dozen states explicitly condition re-enfranchisement upon payment of court-imposed debt, Colgan shows how the link between re-infranchisement and conditions of supervision “significantly expands the authorization of wealth-based penal disenfranchisement across the country.”  Through a detailed analysis of interrelated laws, rules, policies and practices, including those related to conditions of probation and parole, she establishes that “wealth-based penal disenfranchisement is authorized in forty-eight states and the District of Columbia.”

After describing the mechanisms of wealth-based penal disenfranchisement, Colgan offers a legal theory for “dismantling” them.  She argues that courts have looked at these mechanisms “through the wrong frame—the right to vote—when the proper frame is through the lens of punishment.”  Applying the doctrine developed in cases restricting governmental action that would result in disparate treatment between rich and poor in criminal justice practices, she concludes that wealth-based penal disenfranchisement violates the Fourteenth Amendment.

The article’s abstract follows:

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Press release: New report on 2018 fair chance and expungement reforms (updated)

Washington, D.C. — The Collateral Consequences Resource Center (CCRC) has released a new report documenting the extraordinary number of laws passed in 2018 aimed at reducing barriers to successful reintegration for individuals with a criminal record.  In the past twelve months, 32 states, the District of Columbia, and the U.S. Virgin Islands have enacted 61 new laws aimed at avoiding or mitigating the collateral consequences of arrest and conviction, consequences that may otherwise last a lifetime.  The CCRC report analyzes the past year’s lawmaking and summarizes all 61 new authorities, which include 57 statutes, 3 executive orders, and one ballot initiative.  The report, titled “Reducing Barriers to Reintegration: Fair chance and expungement reforms in 2018,” is available to download here. 

Last year saw the most productive legislative year since a wave of “fair chance” reforms began in 2013.  CCRC documented these earlier developments in reports on the 2013-2016 reforms and 2017 reforms.  In the period 2012–2018, every state legislature has in some way addressed the problem of reintegration.  Congress has not enacted any laws dealing with the problems presented by collateral consequences for more than a decade.

The state laws enacted in 2018 aim to break down legal and other barriers to success in the courts, the workplace, the pardon process, and at the ballot box:

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New edition of collateral consequences treatise now available

The 2018-2019 edition of the West/NACDL treatise on collateral consequences is now available for purchase, at a publisher’s promotional discount. Wayne A. Logan has joined Margaret Love and Jenny Roberts as a co-author of this comprehensive resource: Collateral Consequences of Criminal Conviction: Law, Policy & Practice.

This third edition of the treatise has been entirely updated, and includes new material on regulation of criminal background checking; consideration of collateral consequences in the criminal case; laws providing for restoration of rights and status, including in employment and occupational licensing; and, recent court decisions on sex offender registration and related penalties.  Appendices include detailed state-by-state analysis of restoration laws, and other primary source materials.  The full table of contents for this 1048-page book is available here. 

The publisher describes the book as follows: 

Today, many millions of Americans have a criminal record of some kind, potentially triggering a vast array of highly burdensome and stigmatizing consequences that can have life-long debilitating effects. This volume provides comprehensive discussion and analysis of these after-effects of the nation’s ongoing “tough on crime” policies, ranging from loss of civil rights and employment opportunities, to registration and residency restrictions.  It serves as a single go-to resource for practicing lawyers, judges, and policymakers as they negotiate the often-complex and sometimes-obscure statutes and regulations that come into play as a result of arrest and conviction.

Highlighted features:

  • Describes specific types of consequences, including firearms dispossession, licensing and contracting bars, travel restrictions, immigration consequences, and sex offender registration
  • Addresses legal and ethical duties of counsel and courts
  • Analyzes constitutional law aspects of collateral consequences
  • Explains varied methods of rights restoration and preservation in different U.S. jurisdictions
  • Covers criminal practice-related issues (charging, negotiating pleas, sentencing, appeals and collateral relief)
  • Addresses access to criminal records and regulation of criminal background checking
  • Discusses current and possible future law reform efforts (ALI/MPC, state initiatives, etc.)

Appendices contain summaries of state and federal laws on restoration of and status, and key documents on law reform proposals.

The book is available for purchase, currently at a discounted price of $186.30 for paperback or e-book (though the discounted rate may not be shown on the West catalogue page).  For the discounted rate, please call the publisher at 800-328-9352, and press “2” to place an order.

The book is also available on-line on Westlaw.  Endorsements from Bryan Stevenson, Jeremy Travis, Judge John Gleeson, and Jo-Ann Wallace can be seen here.

 

 

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