SBA proposes rules affecting businesses owned by veterans with a record

Over the past two years, CCRC has been studying the restrictions imposed by the U.S. Small Business Administration on loans to small businesses owned by justice-affected individuals. Many of those same restrictions, which are grounded in an operating policy that recipients of federal assistance have “good character,” also apply by formal rule in the SBA’s business development program under 8(a) of the Small Business Act.

For more than half a century, the so-called “8(a) program” has earmarked federal contracts for businesses owned by socially or economically disadvantaged individuals, and it has been a key driver of community development in urban areas. But the program’s “good character” test has historically excluded from participation many if not most business owned or managed by individuals with a criminal history. The 8(a) program also has satellite programs, including ones offering preferential treatment to businesses owned by women and veterans, though it is less clear whether these programs have similar criminal history restrictions.

Recently, Congress returned responsibility for certifying program eligibility for veteran-owned business from the VA to the SBA, and the SBA has now published proposed certification rules for public comment. These proposed rules offer a first chance to speak to the SBA’s “good character” requirement.

CCRC worked with the Washington Lawyer’s Committee for Civil Rights to draft comments on the proposed rule that are critical of the SBA’s vague and open-ended test of business owners’ “character” that results in disqualification of many deserving individuals from this and other federal programs administered by the SBA. Those comments, which are joined by 24 other organizations, were filed on August 5 and are available here.

Read more

How Europe manages access to criminal records – a model for U.S. reformers

We are pleased to republish a book review by CCRC Executive Director Margaret Love of a collection of essays about how European countries manage access to criminal records. The philosophy and values underpinning the EU approach revealed in these essays are so different from our own that their product will make record reformers in the U.S. green with envy.

For example, the review points out that one of the foundational premises of European systems of criminal records is that giving the public broad access would be “contrary to ‘fundamental’ considerations of privacy and human dignity protected by the European Convention on Human Rights, which implicitly limit loss of liberty and public stigmatization through disclosure of a past crime.” Accordingly, employers and other non-law enforcement entities can have access to criminal records only if their subject explicitly authorizes it, and even then a request will be permitted only in specified circumstances where a criminal record is deemed relevant.

Individuals asked to produce their record may decide that the uncertainty of benefit is not worth the risk of exposure. In this fashion, individuals may take responsibility for achieving their own social redemption even if they lose an economic opportunity.

Only a “dystopian account” of the Australian system of accessing criminal records will seem familiar to U.S. practitioners.

Here is the review by CCRC’s Margaret Love, which originally appeared in Criminal Law and Criminal Justice Books:

Read more

CCRC is seeking its next Deputy Director

The Collateral Consequences Resource Center is seeking an enterprising and committed individual with strong technical skills to serve as its next Deputy Director. The incumbent will work with the Executive Director in all aspects of CCRC’s program, and will have primary responsibility for maintaining the Restoration of Rights Project (RRP), including its various derivative reports for which CCRC is best known. The RRP is a unique national inventory of laws and practices relating to criminal record relief and restoration of rights in each U.S. jurisdiction, which attracts thousands of visits to the CCRC website each day. Keeping the RRP current in real time requires strong research skills, patience and attention to detail in analyzing complex statutes, and a passion for issues relating to restoration of rights after arrest or conviction.

In producing the annual reports on new legislation and issue-specific analyses of current trends, the Deputy Director will have an incomparable opportunity to guide the development of public policy in this important emerging area of the law.  The incumbent will be responsible for developing other aspects of CCRC’s work, and will have opportunities to publish scholarly articles and participate in academic conferences.

CCRC was established in 2014 to promote public engagement on the myriad issues raised by the collateral consequences of arrest or conviction.  It provides technical assistance to advocates and lawmakers in support of state reform efforts, participates in court cases challenging specific collateral consequences, and collaborates with other organizations in reporting on such issues as court debt as a barrier to record clearing and exclusion of convicted individuals from jury service. In addition to maintaining the Restoration of Rights Project, CCRC provides technical assistance to advocates and lawmakers in support of state reform efforts, participates in court cases challenging specific collateral consequences, and collaborates with other organizations in reporting on such issues as court debt as a barrier to record clearing. Most recently, through its Fair Chance Lending Project, CCRC has advocated for the elimination of criminal record restrictions in federally guaranteed small business loans and federal contract set-aside programs.

A fuller description of CCRC’s work and of the Deputy Director position is here.

The CCRC Deputy Director is a full-time remote position and may be particularly attractive to individuals seeking a flexible work schedule.  Compensation is negotiable depending on experience. An early start date is desirable, and a limited-term tenure may be possible.

TO APPLY:  Submit the following materials to margaretlove@pardonlaw.com

  • Cover letter
  • Resume
  • Writing sample
  • List of three references

Applications will be accepted on a rolling basis until the position is filled.

Applying for a USDA loan with a criminal record

This post is a part of CCRC’s Fair Chance Lending Project (FCLP), and was prepared by students from Yale Law School’s Community Economic Development Clinic, which is working with CCRC on the project. The FCLP promotes greater access to government-sponsored loans to justice-impacted small business owners and managers, particularly within the Small Business Administration loan guarantee programs. The post builds on briefing materials originally prepared by CCRC staff, including its former intern Jack Keating.

Applying for a USDA Loan with a Criminal Record

The United States Department of Agriculture offers a selection of guaranteed loan programs for farms and other small businesses in rural communities. While these USDA loan programs are broadly analogous to the Small Business Administration’s business loan guarantee programs, their eligibility requirements differ in at least one significant way: the USDA imposes no general criminal record restrictions on loan eligibility for justice-impacted individuals who own or manage small businesses. Instead, USDA imposes only narrow record-based restrictions that are specifically required by statute, and that are likely to apply to very few loan applicants. Because applicants for SBA loans are more likely to be racial or ethnic minorities than applicants for the USDA’s financial products, the disparate impact of the SBA’s uniquely stringent criminal background requirements is amplified

In this post, we describe the restrictions on lending to justice-impacted individuals within programs administered by the USDA, focusing mainly on the agency’s flagship Business & Industry Loan Guarantees Program. CCRC’s Fair Chance Lending Project is focused on advocating for changes to SBA lending policies, and we believe that other agencies’ practices may provide instructive alternative models that can guide the SBA as it modernizes its rules.  Thus, in a final section we discuss the implications of USDA loan policies for those of the SBA.

Read more

Oklahoma enacts automatic record clearing law

On May 2, 2022, Oklahoma Governor Stitt signed into law a comprehensive process making expungement automatic for all otherwise eligible misdemeanors and a range of non-conviction records.  See HB 3316, enacting 22 Okla. Stat. Ann. § 18(C).  Oklahoma thus becomes the tenth state to join the bipartisan trend toward broadening the availability of record clearing to people with convictions, without requiring them to file a petition and go to court for relief.  In addition to these states, another 10 states now make expungement automatic for non-conviction records. 

The Oklahoman reported that the “clean slate” bill passed the House and Senate with strong bipartisan support, with a combined five votes against, and it was promptly signed into law by Oklahoma’s Republican governor.  The bill’s primary sponsor Rep. Nicole Miller, R-Edmond, said that “There was certainly a general consensus that, you know, this this isn’t anything that’s partisan related; what it’s about is it’s about humans. So this is really a measure to help people.” 

Under Oklahoma law expunged records are sealed, but remain available to law enforcement and may be used in subsequent prosecutions.  Any record that has been sealed may be ordered “obliterated or destroyed” after an additional 10 years.  § 19(K).  Oklahoma also authorizes its courts to expunge up to two non-violent felonies, andn also pardoned felonies, but these were not included in the new law (styled “clean slate”).  The law is effective November 1, 2022, and the process for automatic expungement is to commence three years after that date.   

The Oklahoma process for expunging records without a petition is spelled out in a new § 19(B): the Oklahoma Bureau of Criminal Investigation must provide a list of eligible cases to the prosecutor on a monthly basis for a 45-day review.  The prosecutor mayh object only for specified reasons:  the case does not meet the definition of a clean slate eligible case; the individual has not paid court-ordered restitution to the victim; or “the agency has a reasonable belief, grounded in supporting facts, that an individual with a clean slate eligible case is continuing to engage in criminal activity, whether charged or not charged, within or outside the state.”  A list of cases as to which there has been no objection is then sent to the court for expungement.  The court must expunge all cases on the list sent to it, and notify all agencies holding records directing them to expunge as well.  The law does not provide for notifying individuals in case of prosecutor objection, or after their record has been expunged, al though the state supreme court and the BCI are authorized to make rules governing the process.  The BCI is required to provide to the legislature a list of individuals whose records have been expunged on an annual basis.  Read more

“The Many Roads From Reentry to Reintegration”

We are pleased to publish the March 2022 revision of our national survey of laws restoring rights and opportunities after arrest or conviction, “The Many Roads from Reentry to Reintegration.“ Like the earlier report, this report contains a series of essays on various relief mechanisms operating in the states, including legislative restoration of voting and firearms rights, various types of criminal record relief (expungement and sealing, pardon, judicial certificates), and laws limiting consideration of criminal record in fair employment and occupational licensing.

Drawing on material from CCRC’s flagship resource the Restoration of Rights Project, the report grades each state for the scope and efficacy of its laws in nine different relief categories. Based on these grades, it compiles an overall ranking of the states. As described below, most of the states identified as reform leaders in our 2020 report still rank highly, but several new states have joined them. Half a dozen other states made substantial improvements in their ranking by virtue of progressive legislation enacted in 2020 and 2021, in two cases (D.C. and Virginia) rising from the bottom ten to the top 20.

The legal landscape has been changing rapidly in the 18 months since the first edition of this report was published in September 2020. Substantial progress has been made in a number of states, and in the Nation as a whole, toward devising and implementing an effective and functional system for relieving collateral consequences. The bipartisan public commitment to a reintegration agenda seems more than ever grounded in economic imperatives, as pandemic dislocations have brought home the need to support, train, and recruit workers, who are essential to rebuilding the small businesses that are the lifeblood of healthy communities.

The greatest headway has been made in restoring the vote and broadening workplace opportunities controlled by the state, both areas where there are national models and best practices. The area where there is least consensus, and that remains most challenging to reform advocates, is managing dissemination of criminal record information. Time will tell how the goal of a workable and effective criminal record relief system is achieved in our laboratories of democracy.

One area of record relief on which there does appear to be an emerging bipartisan consensus is that non-conviction records should be automatically sealed or expunged on case disposition. We are particularly pleased to see how many states have enacted laws limiting access to the record of cases disposed in favor of the defendant just since publication of our Model Law on Non-Conviction Records in 2019.

Read more

Judicial Diversion and Deferred Adjudication: A National Survey

Last week we announced the forthcoming publication of a national report surveying various legal mechanisms for restoring rights and opportunities following arrest or conviction, a revision and updating of our 2020 report “The Many Roads to Reintegration.” The first post in the series (“Expungement, Sealing & Set-Aside of Convictions“), published on February 25, gives some additional background about the report. The second post in this “preview” series (“Fair Chance Employment & Occupational Licensure“) was published on February 26.  The third part (“Executive Pardon“) was published on February 28.

Today’s post concerns the role that court-managed diversionary dispositions play in reducing convictions and avoiding collateral consequences.  Since our first national report was published in 2018, many states have expanded the availability of these non-conviction dispositions, including for any defendant potentially eligible for a probationary sentence, and made record clearing more generally available.

We expect to publish the whole national report, plus our Reintegration Report Card for 2022, later this week.

Judicial Diversion and Deferred Adjudication: A National Survey

An increasingly desirable strategy for facilitating reintegration through avoiding collateral consequences is to divert individuals away from a conviction at the front end of a criminal case. Diversion in its various forms offers a less adversarial means of resolving an investigation or prosecution through compliance with agreed-upon community-based conditions leading to dismissal of charges and termination of the matter without conviction. Diversionary dispositions are described in the Model Penal Code: Sentencing as a way to “hold the individual accountable for criminal conduct when justice and public safety do not require that the individual be subjected to the stigma and collateral consequences associated with conviction.”[1] In this understanding, diversion functions as a mechanism for ensuring accountability and facilitating rehabilitation, rather than as retribution for its own sake.[2] The effectiveness of diversionary dispositions in furthering these goals has not been studied in depth, and they are not without their controversial aspects, but existing research suggests their promise.[3] Diversion may allow for a mutually-acceptable outcome for the prosecutor and defendant in cases where the extent of culpability is not clear, where a treatment intervention seems appropriate, or where the defendant otherwise fits within some category considered deserving of leniency (e.g., human trafficking victims, veterans, “youthful offenders”).

Read more

Executive Pardon: A National Survey

Last week we announced the forthcoming publication of a national report surveying various legal mechanisms for restoring rights and opportunities following arrest or conviction, a revision and updating of our 2020 report “The Many Roads to Reintegration.” The first post in the series (“Expungement, Sealing & Set-Aside of Convictions“), published on February 25, gives some additional background about the report. The second post in this “preview” series (“Fair Chance Employment & Occupational Licensure“) was published on February 26.

Today’s post concerns the role that executive pardon plays in supplementing and in some cases providing the only record relief following conviction. We expect to publish the whole national report, plus our Reintegration Report Card for 2022, later this week.

*******

Executive Pardon: A National Survey

Pardon has been described as the patriarch of restoration mechanisms, whose roots in America are directly traceable to the power of the English crown. Just as a power to pardon was assigned to the president in Article II of the U.S. Constitution, the constitution of every state save two provides for an executive pardoning power.[1]  Both in theory and practice, pardon is the ultimate expression of forgiveness and reconciliation from the sovereign that secured the conviction.

For almost two centuries, executive pardon played a routine operational role in criminal justice systems throughout the United States, dispensing with or mitigating court-imposed punishments and, after a sentence had been served, restoring rights and status after conviction.

Nowadays, in many U.S. jurisdictions pardon is a shadow of its once-robust self, particularly in those where it is exercised without institutional restraint or encouragement. Since the 1980s, governors and presidents alike have been wary of exposing themselves to public criticism from an ill-advised grant.  In many jurisdictions pardoning has stopped being thought of as part of the chief executive’s job — though being labeled “soft on crime” seems thankfully no longer a political kiss of death. Still, it is not surprising that reformers tend to regard pardon with suspicion, dubious about its legitimate operational role in the modern justice system.

Yet pardon fills significant gaps in record relief schemes across the country, supplementing judicial record relief mechanisms like sealing and expungement. For example, in 20 states pardon offers the only way to regain firearms rights lost because of conviction, including California, Colorado, Florida, Georgia, Nebraska, Oklahoma, and Wyoming. In 11 states ineligibility for jury service is permanent without a pardon, including Arkansas, Delaware, Oklahoma, Pennsylvania, South Carolina, and Texas. (By comparison, expungement restores firearms rights in only five states, and jury rights in only two.[2]) A pardon may be necessary to enable a person to stand for elected office, or to demonstrate the requisite good character to secure a professional or business license.

Read more

Fair Chance Employment and Occupational Licensure: A National Survey

Yesterday we announced the forthcoming publication of a national report surveying various legal mechanisms for restoring rights and opportunities following arrest or conviction, a revision and updating of our 2020 report “The Many Roads to Reintegration.” The first post in the series (“Expungement, Sealing & Set-Aside of Convictions“) gives some additional background about the report. This second post in this “preview” series deals with how the law regulates consideration of criminal history in employment and occupational licensing. We expect to publish the whole report, plus our Reintegration Report Card for 2022, early next week.

Fair Chance Employment & Occupational Licensing
Introduction

There is perhaps no more critical aspect of a reintegration agenda than removing the many unjustified and unjustifiable barriers faced by people with a criminal record in the workplace.[1] In an era of near-universal background checking and search engines, the “Mark of Cain” these individuals bear will sooner or later be known to potential employers and licensing boards even if criminal record information is not requested on an initial application.

Some barriers take the form of laws formally disqualifying people with certain types of convictions from certain types of jobs or licenses. More frequently, barriers result from informal discrimination grounded in an aversion to risk and, too frequently, racial stereotypes. Whether it is securing an entry level job, moving up to management responsibilities, or being certified in a skilled occupation, people with a criminal record are at a competitive disadvantage, if they are even allowed to compete. As between two individuals with hypothetically equal qualifications, it is easy for a risk-averse prospective employer or licensing agency to justify breaking the tie in favor of the person who has never been arrested.

Individualized record relief mechanisms like expungement or pardon are intended to improve employment opportunities, and they can be helpful on a case-by-case basis to those who are eligible and able to access them.[2] But equally important are fair employment and licensing laws that impose general standards limiting consideration of criminal record and provide for their enforcement, offering class-wide relief to all similarly situated individuals. States have enacted an impressive number of this sort of systemic “clean slate” law[3] just since 2015, some building on laws enacted in an earlier period of reform half a century ago in the 1960s and 1970s,[4] and others breaking new ground in regulating how employers and licensing agencies consider an applicant’s criminal record.

In employment, one of the most striking legislative trends in the past decade is the embrace of limits on inquiry into criminal history in the early stages of the hiring process, particularly for public employment. The so-called “ban-the-box” campaign that began modestly more than 20 years ago in Hawaii and took off nationwide after it was adopted in California, has now produced new laws or executive orders in more than two-thirds of the states and in over one hundred cities and counties. More efficient and broadly effective than after-the-fact lawsuits, ban-the-box laws now represent the primary tool for eliminating unwarranted record-based employment discrimination on a system-wide basis. They are premised on an expectation that getting to know applicants before learning about adverse information in their background is likely to lead to a fairer and more defensible hiring decision. This should be particularly true when a records check is permitted only after a conditional offer of employment has been made, so there is little doubt about the reason in the event of a later withdrawal.[5] A few states (though still too few) have coupled ban-the-box strategies with standards for considering a person’s record after inquiry is permitted.

Occupational licensing has also seen an acceleration of legislative efforts to limit the arbitrary rejection of qualified workers. Significant procedural and substantive reforms have been enacted in more than two thirds of the states in the last five years, in some cases building on reforms originally adopted in the 1970s, and in others following models recently proposed by policy advocacy organizations from across the political spectrum whose model laws aim to make licensing authorities newly accountable for their actions and individuals newly able to obtain and practice a skill with enhanced career prospects. Following these models, states have

  • substituted objective standards related to the specific occupation for vague “good moral character” criteria;
  • afforded individuals a preliminary decision about whether their record will be disqualifying before they invest in education or training;
  • prohibited consideration of certain records considered unrelated to job performance, including based on their minor or dated nature;
  • required licensing agencies to justify negative decisions, frequently in terms of public safety, and to afford disappointed applicants an opportunity to appeal;
  • imposed legislative oversight requirements to hold licensing agencies accountable for their performance.

As shown in the following discussion and in the “Report Card” maps that follow the section, almost every state now has at least some law aimed at limiting record-based discrimination in employment or licensure, and most have both. Enforcement of these new laws may in many cases depend on education and persuasion rather than on lawsuits and executive orders, but this may make systemic change come sooner and have a more lasting effect. The very exercise of repeatedly having to decide the relevance of an individual’s past conduct through a transparent and accountable process is likely to result in more reliable decision-making, and a better understanding of those relatively few instances when denial of opportunity is justifiable. We discuss the state of the law in greater detail in the following sections.

Read more

Expungement, Sealing & Set-Aside of Convictions: A National Survey

We are pleased to announce the forthcoming publication of a national survey of the various legal mechanisms that exist in each state to restore rights and opportunities after arrest or conviction. Titled “The Many Roads from Reentry to Reintegration,” the report revises and updates the survey CCRC originally published in the summer of 2020.  Like that earlier report, it includes grades for each state in nine different categories of relief, and an overall ranking of the states according to the efficacy of their combined restoration measures. Those who are familiar with the rankings in our 2020 report will find that since then many states have improved their position substantially (mostly at the higher end of the ranking scale, with several impressive exceptions) and many have not (mostly at its lower end).

We hope that this report will allow us to take stock of the extraordinary things that legislatures across the country have been able to accomplish in just the past 18 months, enacting a total of more than 250 separate laws to restore the franchise, clear criminal records, and ensure fair consideration in employment and licensing.  We expect to publish the entire new “Many Roads” report next week, along with a new version of our Reintegration Report Card that showcases the states that have made the most progress and suggests how each state may improve its ranking for the next report.

Today we are publishing an excerpt from the new “Many Roads” report on two of its nine categories: record clearing for felony and misdemeanor convictions. Each state is graded separately in the two categories, although the map that is included midway through this post combines them, as they are combined in the 50-state chart from the Restoration of Rights Project. Record clearing for non-conviction records is covered in a separate section, and will be published here in the next few days.

***********

Expungement, Sealing & Set-Aside of Convictions: A National Survey

Tens of millions of Americans have been convicted of a felony or misdemeanor.[1] This number has grown substantially in the last four decades as a result of the policies of “mass incarceration” and so-called “war on crime,” with disproportionate impacts on Black and Brown people.[2] The vast network of collateral consequences that can flow from a conviction in the modern era has been described as a new form of “civil death.”[3] In addition to formal consequences imposed by law and rule, widespread dissemination of criminal records online and in background checks operates as a form of continuing “digital punishment.”[4]  In recent years collateral consequences of a less formal variety have extended even to mere arrest records not followed by conviction.[5] The American way of dealing with a person’s criminal history is unburdened with the considerations of privacy, utility, and basic fairness that have shaped European systems.[6]

Read more

1 2 3 4 5 6 … 58