Waiting for Relief: A National Survey of Waiting Periods for Record Clearing

Our new report is the first-ever comprehensive national survey of the period of time a person, who is otherwise eligible to expunge or seal a misdemeanor or felony conviction record, must wait before obtaining this relief. Waiting periods are usually established by statute and can range from 0 to 20 years. Typically, during a waiting period the person must be free from certain forms of involvement with the justice system: from a felony conviction, from any conviction, or from any arrest, again depending on state law. These and other conditions and circumstances may extend (or occasionally shorten) the length of a waiting period in specific cases.

Waiting for Relief: A National Survey of Waiting Periods for Record Clearing 

The waiting periods for misdemeanor convictions range from a high of 10 or 15 years in Maryland (depending on the nature of the offense) to 0 years in Mississippi (although only first-time offenses are eligible), with most states falling at the lower end of that range. Of the 44 states that authorize clearing of misdemeanor convictions, a near-majority have waiting periods of 3 years or less (19 states) and the vast majority have waiting periods of 5 years or less (35 states).

The waiting periods for felony convictions range from as high as 10 or 20 years in North Carolina to as low as 0-2 years in California, with most states falling at the lower end of that range. Of the 35 states that authorize clearing of felony convictions, a near-majority have waiting periods of 7 years or less (17 states).

Many waiting periods, notably longer ones, reflect a concept of record clearing via expungement or sealing as “recognition of successful rehabilitation and reason to terminate legal disqualifications and disabilities.”[1] In recent years, however, many states have shortened waiting periods in recognition of the constructive role that record clearance plays in facilitating reentry and rehabilitation, reasoning that individuals “need the most assistance immediately after release from prison or termination of sentence.”[2] The seven (7) states that have enacted a general conviction sealing authority for the first time since 2018 have generally (though not invariably) provided shorter waiting periods than states with more venerable systems.[3]

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“The High Cost of a Fresh Start”

The High Cost of a Fresh Start: New Report Examines Court Debt as a Barrier to Clearing a Conviction Record

Download the report: https://ccresourcecenter.org/wp-content/uploads/2022/06/Report-High-Cost-of-Fresh-Start.pdf

BOSTON – A new report from the National Consumer Law Center and the Collateral Consequences Resource Center explores the extent to which court debt—such as criminal fines, fees, costs, and restitution—is a barrier to record clearing that prevents poor and low-income people from getting a second chance. For the nearly one-third of adults in the U.S. with a record of arrest or conviction, their record is not simply part of their past but a continuing condition that impacts nearly every aspect of their life. Their record makes it hard to get a job and support a family, secure a place to live, contribute to the community, and participate fully in civic affairs.

“Criminal record clearing must not be reserved only for those who can easily pay for it,” said Margaret Love, executive director of CCRC. “States should ensure people are not being priced out of a chance at a fresh start.”

The High Cost of a Fresh Start: A State-by-State Analysis of Court Debt as a Bar to Record Clearing analyzes whether outstanding court debt bars record clearing under the laws of each of the 50 states, the District of Columbia, and the federal system. The report finds that in almost every jurisdiction, outstanding court debt is a barrier to record clearing, either rendering a person entirely ineligible or making it more difficult for them to qualify.

In recent years, most states have passed laws aimed at restoring economic opportunity, personal freedoms, and human dignity to millions of people by providing a path to clear their record. But for too many, this relief remains out of reach because of monetary barriers, including not only the cost of applying for record clearing but also requirements in many jurisdictions that applicants pay off debt incurred as part of the underlying criminal case before they can have their record cleared. This debt can include fees imposed for every month someone spends on probation or on GPS monitoring, and for their representation by a public defender—a fee that is levied only on people whom the court has deemed too poor to pay for their own defense. Interest and payment penalties can add to this court debt over time.

“The total amount of court debt can run to thousands of dollars for even minor infractions, which presents a high bar to clear,” said Ariel Nelson, staff attorney at NCLC. “Perversely, because a record makes it much harder to get a job, having an open record makes it harder to pay off court debt and therefore harder to qualify for record clearing.”

This burden falls especially heavily on Black and Brown communities, which are more likely to have high concentrations of both criminal records and poverty because of long-standing structural racism in criminal law enforcement and in the economy.

Based on their research, the authors offer the following recommendations:

  • Court debt should never be a barrier to record clearing.Qualification for record clearing should not be conditioned on payment of court debt, and outstanding court debt should not be a basis for denying relief, regardless of whether record clearing is petition-based or automatic.
  • Costs to apply for record clearing, including filing fees, should never be a barrier to record clearing. States should adopt automatic record-clearing processes that do not require individuals to incur costs to have their records cleared.
  • Jurisdictions should collect and report data on monetary barriers to record clearing.Jurisdictions where record clearing may be denied on the basis of outstanding court debt should collect and report data reflecting the impact of these barriers on record clearing.

Download the full report for report findings, recommendations, maps, graphics, and state-by-state analysis: https://bit.ly/lp-high-cost-of-a-fresh-start-22

The report’s appendix cointains a state-by-state analysis of the role played by outstanding court debt in qualifying for record clearing.  It may be separately downloaded at this link:  https://www.nclc.org/images/pdf/criminal-justice/High-Cost-of-Fresh-Start-Appendix.pdf 

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The nonprofit National Consumer Law Center® (NCLC®) works for economic justice for low-income and other disadvantaged people in the U.S. through policy analysis and advocacy, publications, litigation, and training.

The Collateral Consequences Resource Center (CCRC) works to restore rights and opportunities to people with a history of arrest or conviction through research and policy advocacy.

 

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CCRC seeks intern to assist with Restoration of Rights Project

The CCRC is seeking an Intern to assist its legal staff in maintaining the Restoration of Rights Project. The RRP is a collection of laws and policies in each U.S. jurisdiction relating to restoration of rights and status following arrest or conviction.

The RRP Intern’s primary duties would include tracking relevant legislative bills and collecting and summarizing new enactments, for analysis and entry into the RRP by CCRC legal staff. The RRP Intern may also have an opportunity to work on other issues, including keeping the practice resources on the CCRC website up to date and drafting short pieces for website publication. Duties and responsibilities will vary depending upon the interests and abilities of the incumbent.

The responsibilities of the position are more fully described here.

The RRP Intern position will be part-time, with hours and compensation negotiable. The Intern will work directly with the CCRC Executive Director, and it would be a suitable position either for a college student interested in the law or for a law student.

Qualifications:
• Interest in criminal law issues generally, with specific interest in policies related to the consequences of arrest or conviction.
• Research and writing ability, with a premium on attention to detail, thoroughness, and curiosity. Familiarity with criminal law and with the legislative process desirable.
• Microsoft Office skills, including Outlook, and experience in internet research. Experience with WordPress programs desirable.

TO APPLY: Submit the following materials to CCRC Executive Director Margaret Love at margaretlove@pardonlaw.com.
• Letter of interest
• Resume
• Writing sample

 

CFPB documents the financial burdens imposed on justice-involved individuals

The Consumer Financial Protection Bureau has just issued an extraordinary new report on the financial challenges faced by justice-involved individuals in navigating each stage of the criminal justice system. The report, which describes itself as “the first of its kind done by the CFPB,” paints a devastating picture of how the criminal law enforcement system conspires at every step to exacerbate the financially precarious situation in which many entering the justice system already find themselves.

“Justice-Involved Individuals and the Consumer Financial Marketplace” documents in clear and compelling prose how the financial products and services marketed to individuals and families entangled in the criminal justice system “too often contain exploitative terms and features, offer little or no consumer choice, and can have long-term negative consequences for the individuals and families affected.” What the CFPB researchers found “raises serious questions about the transparency, fairness, and availability of consumer choice in markets associated with the justice system, as well as demonstrating the pervasive reach of predatory practices targeted at justice-involved individuals.”

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When banks ask loan applicants about their arrest record

The National Community Reinvestment Coalition reports that its evaluation of small business loan applications from a sample of seven banks in Washington, DC revealed that “some lenders discriminate against applicants who have been charged at any time in their lives with a criminal offense.”  A comment on the NCRC website proposes that these banks consider applicants to be “a lending risk for having been ‘ever charged’ with any crime, other than a minor vehicle violation, no matter when it occurred.”  It goes on to argue that “[t]his practice is not only factually suspect, it is discriminatory.”  The comment, written by Anneliese Lederer, the NCRC’s Director of Fair Lending, was subsequently republished in The American Banker. 

The NCRC findings demonstrate that even interactions with the criminal justice system that do not result in a conviction record can have “lasting implications:”

It is known that having a criminal record is a barrier to both housing and employment. There are few protections for people with a criminal record.

But what about for people who have been charged and found not guilty, or their charges were dropped? What barriers do they face? Unfortunately, they face similar barriers as people who have a criminal record, especially in the small business lending arena.

Citing CCRC’s analyses of lending policies of the Small Business Administration, the NCRC comment highlights how these policies have given banks cover for their discriminatory practices:

Small business loans administered by the Small Business Administration (SBA) have broad criminal history restrictions. Analysis conducted by the Collateral Consequences Resource Center (CCRC) found that no statute requires criminal history to be used as a factor in determining creditworthiness. Instead, the Small Business Act uses the words “may verify the applicant’s criminal background.” Furthermore, many restrictions that the US Small Business Administration (SBA) implements on interactions with the justice system are not codified. These restrictions are “either unannounced or only disclosed through FAQs published on the agency’s website…..[or] through policy statements and application forms.”

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Reintegration Champion Awards for 2021

Based on our annual report on 2021 criminal record reforms, the bipartisan commitment to a reintegration agenda keeps getting stronger. A majority of the 151 new laws enacted last year authorize courts to clear criminal records, in some states for the very first time, and several states enacted “clean slate” automatic record clearing.  Other new laws restore voting and other civil rights lost as a result of conviction, and still others limit how criminal record is considered by employers, occupational licensing agencies, and landlords.  (The report includes specific citations to each of the new laws, and they are analyzed in the larger context of each state’s reintegration scheme in our Restoration of Rights Project.)

Again this year we have published a Report Card recognizing the most (and least) productive legislatures in the past year. While more than a dozen states enacted noteworthy laws in 2021, two states stand out for the quantity and quality of their lawmaking:  Arizona and Connecticut share our 2021 Reintegration Champion award for their passage of three or more major pieces of record reform legislation.

  • Arizona – The state enacted eight new laws, including a broad new record clearing law, two laws improving its occupational licensing scheme, and a judicial “second chance” certificate. Arizona also repealed a law authorizing suspension of driver’s licenses for failure to pay and authorized its courts to redesignate some felonies as misdemeanors.
  • Connecticut – Enacted a major automatic record clearing scheme, restored the right to vote and hold office upon release from prison, provided for record clearing in connection with marijuana legalization, and broadened expungement for victims of human trafficking.

Another eight states and the District of Columbia earned Honorable Mention for their enactment of at least one major new law: Read more

“From Reentry to Reintegration: Criminal Record Reforms in 2021”

At the beginning of each year since 2017, CCRC has issued a report on legislation enacted in the past year that is aimed at reducing the barriers faced by people with a criminal record in the workplace, at the ballot box, and in many other areas of daily life. These reports have documented the steady progress of what last year’s report characterized as “a full-fledged law reform movement” aimed at restoring rights and status to individuals who have successfully navigated the criminal law system. The legislative momentum, which slowed a bit during the first year of the pandemic, picked up again in 2021.

The title of this post introduces our annual report on new laws enacted during the past year, and emphasizes the continuum from reentry (for those who go to jail or prison) to the full restoration of rights and status represented by reintegration. Recent research indicates that most people with a conviction never have a second one, and that the likelihood of another conviction declines rapidly as more time passes. The goal of full reintegration is thus both an economic and moral imperative.

In the past year the bipartisan commitment to a reintegration agenda has seemed 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 businesses that are the lifeblood of the economy. If there is any one thing that will end unwarranted discrimination against people with a criminal history, it is a recognition that it does not pay.

Our 2021 report highlights key developments in reintegration reforms from the past year. It documents that 40 states, the District of Columbia, and the federal government enacted 151 legislative bills and took a number of additional executive actions to restore rights and opportunities to people with an arrest or conviction history. As in past years, a majority of these new laws involved individual record clearing: All told, an astonishing 36 states enacted 92 separate laws that revise, supplement or limit public access to individual criminal records to reduce or eliminate barriers to opportunity. Most of these laws established or expanded laws authorizing expungement, sealing, or set-aside of convictions or arrest records. Several states enacted judicial record clearing laws for the very first time, and a number of states authorized “clean slate” automatic clearing. Executive pardoning was revived in several states where it had been dormant for years.

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A radical new approach to measuring recidivism risk

NOTE: This post has been updated as of 4/2 to incorporate additional research.

Researchers at the RAND Corporation have proposed a radical new approach to measuring recidivism risk that raises questions about decades of received truth about the prevalence of reoffending after people leave prison.  At least since the 1990s, the Bureau of Justice Statistics has measured risk of recidivism at the time of a person’s last interaction with the justice system, when the statistical cohort includes many who are frequent participants in the criminal system as well as those for whom it is a one-time affair.  As a result, employers and others tend to interpret background checks as overstating the risk posed by someone who in fact may have been living in the community for years without criminal incident, and is unlikely to become criminally involved again.

In Providing Another Chance: Resetting Recidivism Risk in Criminal Background Checks, Shawn Bushway and his RAND colleagues argue that risk should instead be measured at the time a background check is conducted, after an individual has had an opportunity to demonstrate their ability to reintegrate lawfully as well as their propensity to reoffend.  They label this the “reset principle,” and argue that this more individualized approach to risk assessment promises to improve the predictive value of criminal background checks.  In fact, they propose that it will “strengthen the case that people with convictions can, and usually do, change their ways.”

Coupled with other studies showing that the risk of recidivism depends on a variety of factors (e.g., age at time of offense), this new RAND study suggests that general “time to redemption” research should not be relied upon to predict future behavior of specific individuals.

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Oregon ramps up its clemency, record relief, and resentencing programs

Note: This is the second post in a series on state pardoning. The first discussed Governor Tony Evers’ reinvigoration of clemency in Wisconsin.

Oregon Governor Kate Brown, along with the state legislature, have reimagined how Oregon grants executive clemency, early release, and record relief. Brown has issued more pardons and commutations than any Oregon governor in recent history, according to Aliza Kaplan, the Director of the Criminal Justice Reform Clinic at Lewis and Clark University. In addition, Brown signed two bills into law this year that will significantly improve access to judicial remedies for people with a conviction record, thereby reducing the need for executive pardons. The bills, discussed in greater detail below, reduce barriers to record clearance via set-aside and sealing, and create a mechanism for prosecutors to agree to vacate a conviction or reduce a person’s sentence when it no longer serves the interests of justice.

In the first five years of her tenure, Governor Brown granted 20 pardons. From March 9, 2020, through November 2021, Governor Brown has granted 35 pardons. (This letter from the Governor to the state legislature covers the period from March 9, 2020 to June 25, 2021; according to Kaplan, Brown granted two more pardons between June and November.) Governor Brown pardoned people with a wide range of offenses, from murder, to DUI, narcotics possession, and other offenses. In at least one case pardon was granted based on a determination of innocence.

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“Public opinion and the politics of collateral consequence policies”

The title of this post is the title of an intriguing new academic article by Travis Johnston and Kevin H. Wozniak of the University of Massachusetts, Boston.  The two find “little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies.” Here is the abstract:

We analyze data from a national sample of the U.S. population to assess public support for policies that deny former offenders’ access to job training programs, food stamps, and public housing. We find that Americans generally oppose benefit restrictions, though support for these policies is higher among Republicans and people with higher levels of racial resentment. We also find that a legislator’s criminal justice reform positions generally do not significantly affect voters’ evaluation of him or her, and even voters with more punitive attitudes toward collateral consequence policies support legislators who advance particular kinds of reform proposals. These findings provide little evidence that any group of Americans would be mobilized to vote against a legislator who works to reform collateral consequence policies. We discuss the implications of these findings for American and comparative studies of the politics of punishment.

A link to the article is here.

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