More states facilitating licensing for people with a criminal record

Last week we posted a description of a detailed new Indiana law regulating consideration of conviction in occupational and professional licensure throughout the state.  It now appears that this may represent a trend, as eight additional states have either recently enacted or are poised to enact similarly progressive occupational licensing schemes.  New general laws regulating licensure are in place in Arizona, Illinois, and Massachusetts.  Similar bills have been enrolled and are on the governor’s desk for signature in Kansas, Maryland, Nebraska, and Tennessee.  Arizona’s new 2018 licensing law follows on another law passed in that state in 2017 that authorized provisional licenses for individuals with a criminal record.  Massachusett’s new licensing law is part of a more general criminal justice reform bill.   Delaware and Connecticut have also recently loosened restrictions on licensing for cosmetology and related professions.

The licensing reforms in these states – and in several other states where licensing bills are less far along toward enactment — seem to have been influenced by a model law proposed by the Institute for Justice, a libertarian public interest law firm.  Key features of the Model Occupational Licensing Review Act as they affect individuals with criminal records are 1) to provide individuals with an opportunity to seek a preliminary determination from the licensing agency as to whether their criminal record will be disqualifying; 2) to require licensing agencies to disqualify only if an applicant has been convicted of a felony or violent misdemeanor, and if the agency determines that “the state has an important interest in protecting public safety that is superior to the individual’s right to pursue a lawful occupation”; and 3) to require each agency to publish a report annually on the number of applicants with a criminal record seeking a license, the number of approvals and denials, and the type of offenses for each type of action.  Disqualification is justified under this model law only if the conviction is “substantially related to the state’s interest in protecting public safety,” and the individual will be “more likely to reoffend by having the license than by not having the license.”

The federal government is also encouraging licensing reform: the U.S. Department of Labor is supporting a three-year project to assist states improve their general policies and practices related to occupational licensing, including those that affect persons with a criminal record. The project brings together 11 states to participate in the Occupational Licensing Learning Consortium. The 11 states are Arkansas, Colorado, Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Nevada, Utah and Wisconsin.

We are monitoring this legislative trend and will revise the state profiles and other materials in the Restoration of Rights Project as new laws are enacted.

 

Indiana enacts progressive new licensing law

The race is on in 2018 to see which State can enact the most progressive new laws on restoration of rights.  As in the past, Indiana is at the forefront of reform.  On March 21, Governor Eric Holcomb signed into law HB 1245, which appears to be the most progressive and comprehensive scheme for regulation of occupational and professional licensure in the country.  It applies not only to state licensing agencies, but also to units of county and municipal government that issue licenses, and requires that state agencies work with them to eliminate redundant and overlapping rules.  Agencies must report to the legislature respecting their implementation of the new law by November 1, 2018.

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First crop of restoration laws enacted in 2018

In 2017, state legislatures produced a bumper crop of laws restoring rights and opportunities, with 24 separate states enacting new legal mechanisms to facilitate reentry and reintegration.  Based on pending bills and laws already enacted this year, 2018 promises to be similarly productive.  In March, the governors of Florida, Utah and Washington all signed into law new measures expanding their existing restoration schemes.  Washington enacted a ban-the-box law applicable to both public and private employment, and both Florida and Utah expanded their laws authorizing expungement of non-conviction records.  These new authorities are described in the post that follows, and can be seen in the context of related laws in the state profiles in the Restoration of Rights Project.

While none of these first enactments of 2018 is particularly remarkable standing alone, they deserve mention as harbingers of things to come.  More than thirty additional states have restoration bills pending, and half a dozen of these are well along in the enactment process.  We will be tracking restoration bills through the year, and will report periodically in this space – particularly when a significant new law is enacted.  We also hope to produce in 2018 another annual report on Second Chance Laws enacted during the year, as resources permit.

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“The Scale of Misdemeanor Justice”

There is a growing awareness that the consequences of a misdemeanor arrest or conviction have become exponentially more serious in recent years.  We also know that the misdemeanor system is enormous, and that its very size makes it particularly susceptible of abuse.  Yet we have very little reliable information about how many people in the United States have a misdemeanor record.  A new research report by Professors Megan Stevenson and Sandra Mayson begins to fill this gap, in the process challenging the conventional wisdom that the misdemeanor system is expanding.
Based on “the most comprehensive national-level analysis of misdemeanor criminal justice that is currently feasible,” the report reaches the surprising conclusion that both the number of misdemeanor arrests and cases filed each year have “declined markedly” in recent years.  At the same time, unsurprisingly, it concludes that there is “profound racial disparity” in misdemeanor arrest rates for most offense types, and that this disparity has “remained remarkably constant” over almost four decades.   While the report confirms current perceptions about the scale of misdemeanor justice and its disparate racial impact, its fascinating findings of “declining arrest and case-filing rates present a challenge for misdemeanor scholarship.”

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Erasing the line between felony and misdemeanor

Two provocative new scholarly articles examine the extent to which the crisp line historically drawn in law between felonies and misdemeanors is becoming increasingly ephemeral.  In Informed Misdemeanor Sentencing, Jenny Roberts points out that conviction of a misdemeanor has become exponentially more serious in recent years as the associated collateral consequences have increased in number and severity.  She urges judges to “explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.”  She recommends that sentencing courts should make “more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.”

Jack Chin and John Ormonde make essentially the same point about the blurring of the old distinction between felony and misdemeanor in a forthcoming article in the Minnesota Law Review.  In Infamous Misdemeanors and the Grand Jury Clause, they point out that “[i]n the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment.”  They conclude that, because of the stigma that attaches to any criminal record, the Fifth Amendment requires that “many more federal offenses should be prosecuted by grand jury indictment than is now the practice.”

It is impossible to determine exactly how many of the 48,000 consequences collected in the National Inventory of the Collateral Consequences of Conviction are triggered by a misdemeanor conviction, but so many legal and regulatory consequences attach to specific categories of offenses that include misdemeanors (e.g., drug crimes, sexual offenses, crimes involving dishonesty), it is likely a substantial portion.  Moreover, given the ubiquity of criminal background checking pervading every area of modern life, even a criminal record involving dismissed misdemeanor charges may result in discrimination and exclusion.

Below are the abstracts for these two articles:

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