NH limits denial of licenses based on criminal record

On July 2, 2018, New Hampshire’s Governor Sununu signed into law SB 589, making his state the 10th so far in 2018 to approve comprehensive limits on consideration of criminal record in occupational and professional licensing.  Like enactments earlier this year in Indiana, Kansas, Tennessee, and Wisconsin, New Hampshire’s new law is intended to ensure that people with the requisite professional qualifications will not be unfairly denied a license based on their record of arrest or conviction.  In this respect, it reflects the provisions of the Institute for Justice’s model occupational licensing act.

New Hampshire’s new law, which goes into effect on August 31, authorizes individuals to seek a preliminary determination as to whether their criminal record will be disqualifying, and allows disqualification only based on a demonstrated public safety concern arising from the facts and circumstances of an individual’s situation.  It requires a board to give reasons for denial in writing, to explain what remedial measures an individual may take to address the board’s concerns, and limits the amount of the fee the board may charge to render its determination.  Finally, it requires each board to report annually on the number of licenses granted and denied to people with a criminal record.  The provisions of the new law are explained in further detail below.

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BU Law Review publishes symposium on misdemeanors

In May 2018 the Boston University Law Review published a symposium titled “Misdemeanor Machinery: The Hidden Heart of the American Criminal Justice System.”  Links to the articles, which were presented at a conference held in November 2017, are below.  The conference also benefited from presentations by a number of distinguished academics, judges, and policy-makers, including Alexandra Natapoff, Issa Kohler-Hausmann, Jeffrey Fagan and retired Judge Shira Scheindlin.  The full list of speakers is available here.

A recurring theme throughout the conference was how misdemeanors impose significant collateral consequences, including in ways that are deeply disproportionate.  The articles offer valuable insight into how prosecutors, public defenders, lawmakers and judges ought to consider collateral consequences of misdemeanor arrests and convictions.  The entire symposium issue is well worth a read.

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Justice Kennedy’s contributions to sentencing and corrections reform

The following post on Justice Kennedy’s contributions to sentencing and corrections reform appeared earlier this week on Douglas Berman’s Sentencing Law and Policy blog.  While it does not involve collateral consequences directly, it seems fitting that CCRC recognize the significant contributions the Justice made to criminal law, notably in his statements off the bench about the injustice and inhumanity of excessive punishment.  One of the most vivid memories I have of the 2008 ABA Roundtable conference whose proceedings were published in the FSR symposium issue discussed below, is of Justice Kennedy’s enthusiastic description of the federal reentry court that had recently been established in Oregon, one of the first of its kind.  He made sure we all appreciated, as we discussed sentencing issues, that the consequences of a criminal case have adverse effects on individuals long after they have served their court-imposed sentence.  In the decade since that conference, the idea that collateral consequences are an integral part of punishment that must at some point end, is one that that has taken root in new laws and practices in almost every state.

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“Managing Collateral Consequences in the Information Age”

“Managing Collateral Consequences in the Information Age” is the title of a symposium issue of the Federal Sentencing Reporter.  It is composed of papers prepared for a Roundtable conference on criminal records issues jointly sponsored by the American Law Institute and the National Conference of State Legislatures in January 2018, and associated primary source materials.  The issue’s Table of Contents shows the breadth and variety of topics covered. An introductory essay by Margaret Love summarizes the approach to managing collateral consequences in the revised sentencing articles of the Model Penal Code, and the seemingly contrary trends in criminal records management in state legislatures in recent years.  She describes each of the papers in the issue, and policy recommendations tentatively reached by participants in the January Roundtable.

  • Alessandro Corda of Queens University (Belfast) contributes a discussion of “American exceptionalism” in criminal records matters, and proposes a way of neutralizing their malign effect.
  • Scholars and practitioners describe how relief schemes work (or don’t work) in states as diverse as:
    • North Carolina (John Rubin, UNC/Government)
    • Tennessee (Joy Radice, UT/Law)
    • Nevada (Sen. Tick Segerblom and Nick Anthony, NV Legislature)
    • California (Jack Chin, UC Davis/Law; Eliza Hersh)
    • Indiana (Josh Gaines and Margaret Love, CCRC)
  • Douglas Berman and Nora Demleitner write about subsets of the collateral consequences problem (sex offender registration and marijuana decriminalization).
The issue also publishes the provisions of the Model Penal Code: Sentencing on non-conviction dispositions and on collateral consequences, and a collection of reports and other materials from the Collateral Consequences Resource Center.
The University of California Press has generously made available to non-subscribers the entire FSR issue for downloading at this link.

SC legislature overrides veto to broaden expungement laws

On June 27, the South Carolina legislature took the extraordinary step of overriding Governor McMaster’s veto of a bill that expanded eligibility for expungement in several significant (if relatively modest) ways.  House Bill 3209 is now law, and will take effect in six months.  This is one of the very few times in recent years that a state legislature has overridden a governor’s veto of a bill intended to improve opportunities for people with a criminal record.

The new law, which will go into effect after six months, extends expungement eligibility to first offense simple drug possession (after three years) or possession with intent to distribute (after twenty years), and to conviction of repealed offenses.  It also repeals first offender limits on expungement eligibility for convictions in magistrates court (summary offenses) and in juvenile proceedings, and applies all of these authorities retroactively.  HR 3209 also restructures fee provisions and authorizes private donations to defray costs for those who cannot afford to pay the fee.  Finally, HR 3209 authorizes expungement for anyone convicted prior to passage of the Youthful Offender Act of 2010 who could have been eligible for sentencing as a first offender under that provision.  The YOA provides that individuals between the ages of 17 and 25 who are convicted of certain non-violent misdemeanors and minor felonies may be sentenced to probation and treatment, so the extension of that law’s relief to pre-2010 convictions is quite significant.